[Federal Register Volume 75, Number 64 (Monday, April 5, 2010)]
[Rules and Regulations]
[Pages 17208-17252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6747]



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Part II





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Parts 350, 385, 395, et al.



Electronic On-Board Recorders for Hours-of-Service Compliance; Final 
Rule

  Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 385, 395, and 396

[Docket No. FMCSA-2004-18940]
RIN 2126-AA89


Electronic On-Board Recorders for Hours-of-Service Compliance

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends 
the Federal Motor Carrier Safety Regulations (FMCSRs) to incorporate 
new performance standards for electronic on-board recorders (EOBRs) 
installed in commercial motor vehicles (CMVs) manufactured on or after 
June 4, 2012. On-board hours-of-service (HOS) recording devices meeting 
FMCSA's current requirements and installed in CMVs manufactured before 
June 4, 2012 may continue to be used for the remainder of the service 
life of those CMVs.
    Motor carriers that have demonstrated serious noncompliance with 
the HOS rules will be subject to mandatory installation of EOBRs 
meeting the new performance standards. If FMCSA determines, based on 
HOS records reviewed during a compliance review, that a motor carrier 
has a 10 percent or greater violation rate (``threshold rate 
violation'') for any HOS regulation listed in the new Appendix C to 
part 385, FMCSA will issue the carrier an EOBR remedial directive. The 
motor carrier will then be required to install EOBRs in all of its CMVs 
regardless of their date of manufacture and use the devices for HOS 
recordkeeping for a period of 2 years, unless the carrier (i) already 
equipped its vehicles with automatic on-board recording devices 
(AOBRDs) meeting the Agency's current requirements under 49 CFR 395.15 
prior to the finding, and (ii) demonstrates to FMCSA that its drivers 
understand how to use the devices.
    The FMCSA also changes the safety fitness standard to take into 
account a remedial directive when determining fitness. Additionally, to 
encourage industry-wide use of EOBRs, FMCSA revises its compliance 
review procedures to permit examination of a random sample of drivers' 
records of duty status after the initial sampling, and provides partial 
relief from HOS supporting documents requirements, if certain 
conditions are satisfied, for motor carriers that voluntarily use 
compliant EOBRs.
    Finally, because FMCSA recognizes that the potential safety risks 
associated with some motor carrier categories, such as passenger 
carriers, hazardous materials transporters, and new motor carriers 
seeking authority to conduct interstate operations in the United 
States, are such that mandatory EOBR use for such operations might be 
appropriate, the Agency will initiate a new rulemaking to consider 
expanding the scope of mandatory EOBR use beyond the ``1 x 10'' 
carriers that would be subject to a remedial directive as a result of 
today's rule.

DATES: Effective Date: This final rule is effective on June 4, 2010.
    Compliance Date: Motor carriers must comply with this final rule by 
June 4, 2012. The incorporation by reference of certain publications 
listed in the rule is approved by the Director of the Federal Register 
as of June 4, 2010.

ADDRESSES:
    Docket: For access to the docket to read background documents 
including those referenced in this document, or to read comments 
received, go to http://www.regulations.gov at any time or to the ground 
floor, room W12-140, DOT Building, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form for all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review U.S. 
Department of Transportation's (DOT) complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19476) or you 
may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations, (202) 366-5370, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: This rulemaking notice is organized as 
follows:

Table of Contents

I. Table of Abbreviations
II. Legal Basis for the Rulemaking
III. Executive Summary
IV. Discussion of Comments to the Notice of Proposed Rulemaking
V. Rulemaking Analyses and Notices

I. Table of Abbreviations

    Following is a list of abbreviations used in this document.

Advocates Advocates for Highway and Auto Safety
AMSA American Moving and Storage Association
ANPRM Advance Notice of Proposed Rulemaking
ANSI American National Standards Institute
AOBRDS Automatic On-Board Recording Devices
ASCII American Standard Code for Information Interchange
ATA American Trucking Associations
ATRI American Transportation Research Institute
Boyle Boyle Transportation
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
CR Compliance Review
CSA 2010 Comprehensive Safety Analysis 2010
CVSA Commercial Vehicle Safety Alliance
D Driving
DOE U.S. Department of Energy
DOT U.S. Department of Transportation
EA Environmental Assessment
ECM Electronic Control Module
E.O. Executive Order
EOBR Electronic On-Board Recorder
EU European Union
FedEx FedEx Corporation
FHWA Federal Highway Administration
FIPS Publications Federal Information Processing Standards 
Publications
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FMI Food Marketing Institute
FOIA Freedom of Information Act
FONSI Finding of No Significant Impact
FR Federal Register
GAO Government Accountability Office
GNIS Geographic Names Information System
GPS Global Positioning System
Hazmat Hazardous Materials
HMTAA Hazardous Materials Transportation Authorization Act of 1994
HOS Hours of Service
IBT International Brotherhood of Teamsters
ICC Interstate Commerce Commission
ICCTA ICC Termination Act of 1995
ICR Information Collection Request
IEEE Institute of Electrical and Electronic Engineers
IIHS Insurance Institute for Highway Safety
IRFA Initial Regulatory Flexibility Analysis
ITEC International Truck and Engine Corporation
J.B. Hunt J.B. Hunt Transport, Inc.
KonaWare KonaWare Transportation and Logistics
LH Long Haul
Maryland SHA Maryland State Highway Administration
Maverick Maverick Transportation, LLC
MCMIS Motor Carrier Management Information System
MCSAP Motor Carrier Safety Assistance Program
MCSIA Motor Carrier Safety Improvement Act of 1999

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MTA Minnesota Trucking Association
NEPA National Environmental Policy Act
NHTSA National Highway Traffic Safety Administration
1984 Act Motor Carrier Safety Act of 1984
1935 Act Motor Carrier Act of 1935
NPGA National Propane Gas Association
NPRDA Notice of Potential Remedial Directive Applicability
NPRM Notice of Proposed Rulemaking
NPTC National Private Truck Council, Incorporated
NTSB National Transportation Safety Board
NRMCA National Ready Mixed Concrete Association
OBD On-Board Diagnostic
ODND On Duty Not Driving
OFF Off Duty
Ohio PUC Public Utilities Commission of Ohio
OIG Office of the Inspector General
OMB Office of Management and Budget
ON On Duty
OOIDA Owner-Operator Independent Drivers Association, Inc.
PDA Personal Digital Assistant
PII Personally Identifiable Information
PIA Privacy Impact Assessment
PMAA Petroleum Marketers Association of America
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
Qualcomm Qualcomm Wireless Business Solutions
RapidLog RapidLog Corporation
RF Radio Frequency
RIA Regulatory Impact Analysis
RITA Research and Innovative Technology Administration
RODS Records of Duty Status
RP Recommended Practice
SafeStat Motor Carrier Safety Status Measuring System
SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users
SB Sleeper Berth
SBA Small Business Association
SC&RA Specialized Carriers & Rigging Association
SEA Safety Evaluation Area
SEISNOSE Significant Economic Impact on a Substantial Number of 
Small Entities
SFRM Safety Fitness Rating Methodology
SH Short Haul
Siemens Siemens AG
SNPRM Supplemental Notice of Proposed Rulemaking
Stat. Statutes
TCA Truckload Carriers Association
TEA-21 Transportation Equity Act for the 21st Century
TMC TPA Technology and Maintenance Council's Technical Policy 
Advisory Tripmaster Tripmaster Corporation
UMTRI University of Michigan Transportation Institute
U.S.C. United States Code
UTC Coordinated Universal Time
Verigo Verigo Incorporated
VSL Value of a Statistical Life
Werner Werner Enterprises, Incorporated
XATA XATA Corporation
Xora Xora, Incorporated

II. Legal Basis for the Rulemaking

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August 
9, 1935, now codified at 49 U.S.C. 31502(b)) (the 1935 Act) provides 
``the Secretary of Transportation may prescribe requirements for (1) 
qualifications and maximum hours of service of employees of, and safety 
of operation and equipment of, a motor carrier; and (2) qualifications 
and maximum hours of service of employees of, and standards of 
equipment of, a motor private carrier, when needed to promote safety of 
operation.'' This final rule addresses ``safety of operation and 
equipment'' of motor carriers and ``standards of equipment'' of motor 
private carriers and, as such, is well within the authority of the 1935 
Act. Today's final rule allows motor carriers to use Electronic On-
Board Recorders (EOBRs) in their commercial motor vehicles (CMVs) to 
document drivers' compliance with the HOS requirements; requires some 
noncompliant carriers to install, use, and maintain EOBRs for this 
purpose; and updates existing performance standards for on-board 
recording devices.
    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984) (the 1984 Act) provides concurrent 
authority to regulate drivers, motor carriers, and vehicle equipment. 
It requires the Secretary to ``prescribe regulations on commercial 
motor vehicle safety. The regulations shall prescribe minimum safety 
standards for commercial motor vehicles. At a minimum, the regulations 
shall ensure that--(1) Commercial motor vehicles are maintained, 
equipped, loaded, and operated safely; (2) the responsibilities imposed 
on operators of commercial motor vehicles do not impair their ability 
to operate the vehicles safely; (3) the physical condition of operators 
of commercial motor vehicles is adequate to enable them to operate the 
vehicles safely * * *; and (4) the operation of commercial motor 
vehicles does not have a deleterious effect on the physical condition 
of the operators'' (49 U.S.C. 31136(a)).
    Section 211(b) of the 1984 Act also grants the Secretary broad 
power, in carrying out motor carrier safety statutes and regulations, 
to ``prescribe recordkeeping and reporting requirements'' and to 
``perform other acts the Secretary considers appropriate'' (49 U.S.C. 
31133(a)(8) and (10)).
    The HOS regulations are designed to ensure that driving time--one 
of the principal ``responsibilities imposed on operators of commercial 
motor vehicles''--does ``not impair their ability to operate the 
vehicles safely.'' (49 U.S.C. 31136(a)(2)). EOBRs that are properly 
designed, used, and maintained will enable motor carriers to track 
their drivers' on-duty driving hours accurately, thus minimizing 
regulatory violations or excessive driving, and schedule vehicle and 
driver operations more efficiently. Driver compliance with the HOS 
rules helps ensure ``the physical condition of operators of commercial 
motor vehicles is adequate to enable them to operate the vehicles 
safely'' (49 U.S.C. 31136(a)(3)). To assist in the enforcement of the 
HOS regulations generally, FMCSA is requiring EOBR use by motor 
carriers with the most serious HOS compliance deficiencies (``threshold 
rate violations''), as described elsewhere in this final rule. The 
Agency considered whether this final rule would impact driver health 
under 49 U.S.C. 31136(a)(3) and (a)(4). To the extent the final rule 
has any effect on the physical condition of drivers, because the rule 
is expected to increase compliance with the HOS regulations the effect 
is unlikely to be deleterious. (See the discussion regarding health 
impacts at section 8.4. and Appendix A in the Environmental Assessment 
(EA).)
    The requirements in 49 U.S.C. 31136(a)(1) concerning safe motor 
vehicle maintenance, equipment, and loading are not germane to this 
final rule, as EOBRs influence driver operational safety rather than 
vehicular and mechanical safety. Consequently, the Agency has not 
explicitly assessed the final rule against that requirement. However, 
to the limited extent 49 U.S.C. 31136(a)(1) pertains specifically to 
driver safety and safe operation of commercial vehicles, the Agency has 
taken this statutory requirement into account throughout the final 
rule. Also, before prescribing any regulations, FMCSA must also 
consider their ``costs and benefits.'' (49 U.S.C. 31136 (c)(2)(A) and 
31502(d)). The Agency has taken these statutory requirements into 
account throughout the final rule.
    In addition, section 408 of the ICC Termination Act of 1995 (Pub. 
L. 104-88, 109 Stat. 803, 958, December 29, 1995) (ICCTA) requires the 
Agency to issue an advance notice of proposed rulemaking (ANPRM) 
``dealing with a variety of fatigue-related issues pertaining to 
commercial motor vehicle safety (including * * * automated and tamper-
proof recording devices * * *) not later than March 1, 1996.'' The 
original ANPRM under section 408 of ICCTA was published on November 5,

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1996 (61 FR 57252), the notice of proposed rulemaking (NPRM) on May 2, 
2000 (65 FR 25540), and the final rule on April 28, 2003 (68 FR 22456). 
For a number of reasons, including lack of adequate cost and benefit 
data, FMCSA decided not to adopt EOBR regulations in 2003. FMCSA noted, 
however, that it planned ``to continue research on EOBRs and other 
technologies, seeking to stimulate innovation in this promising area'' 
(68 FR 22456, 22488, April 28, 2003).
    Section 113(a) of the Hazardous Materials Transportation 
Authorization Act of 1994 (Pub. L. 103-311, 108 Stat. 1673, 1676, 
August 26, 1994) (HMTAA) required the Secretary to prescribe 
regulations to improve (A) compliance by commercial motor vehicle 
drivers and motor carriers with HOS requirements; and (B) the 
effectiveness and efficiency of Federal and State enforcement officers 
reviewing such compliance. HMTAA section 113(b)(1) states that such 
regulations must allow for a written or electronic document ``* * * to 
be used by a motor carrier or by an enforcement officer as a supporting 
document to verify the accuracy of a driver's record of duty status.'' 
Today's rule sets forth performance standards, incentives measures, and 
remedial requirements for use of devices that generate electronic 
documents, and addresses the HMTAA mandate.
    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act 
(Pub. L. 100-690, title IX, subtitle B, 102 Stat. 4181, 4529, November 
18, 1988) also anticipates the Secretary prescribing ``a regulation 
about the use of monitoring devices on commercial motor vehicles to 
increase compliance by operators of the vehicles with HOS 
regulations,'' and requires the Agency to ensure any such device is not 
used to ``harass vehicle operators'' (49 U.S.C. 31137(a)). Section 4012 
of the Transportation Equity Act for the 21st Century (Pub. L. 105-
178), 112 Stat. 107, 408-409, June 9, 1998) (TEA-21) makes inapplicable 
to drivers of utility service vehicles, during an emergency period of 
not more than 30 days, regulations issued under 49 U.S.C. 31502 or 
31136 regarding ``the installation of automatic recording devices 
associated with establishing the maximum driving and on-duty times'' 
(49 U.S.C. 31502(e)(1)(C)). The Agency has taken these statutory 
requirements into account throughout the final rule.
    Based on the legislative framework reviewed previously, FMCSA has 
statutory authority to adopt an industry-wide requirement that all 
motor carriers subject to HOS requirements under 49 CFR part 395 
install and use EOBR-based systems. The Agency has adopted a more 
targeted approach in this final rule, consistent with the scope of the 
NPRM which limits the current rulemaking proceeding to compliance-based 
regulatory approaches implemented through a remedial directive. 
However, the Agency will publish a separate notice initiating a new 
rulemaking in the near future to consider expanding the scope of 
mandatory EOBR use beyond the standard set in this rule, consistent 
with its full authority and based upon new data and analyses.
    In this final rule, the Agency establishes criteria for identifying 
carriers with threshold rates of HOS violations. We also establish 
changes to the safety fitness standard to ensure imposition of a 
remedial directive to install, use and maintain EOBRs is taken into 
account when determining a carrier's safety fitness.
    The determination of a carrier's safety fitness is well within the 
Secretary's authority. Section 215 of the 1984 Act requires the 
Secretary to ``determine whether an owner or operator is fit to operate 
safely commercial motor vehicles,'' (49 U.S.C. 31144(a)(1)) and to 
``maintain by regulation a procedure for determining the safety fitness 
of an owner or operator'' (49 U.S.C. 31144(b)). The procedure must 
include ``specific initial and continuing requirements with which an 
owner or operator must comply to demonstrate safety fitness'' (49 
U.S.C. 31144(b)(1)).
    Section 4009 of TEA-21 prohibits motor carriers found to be unfit, 
according to a safety fitness determination, from operating commercial 
motor vehicles in interstate commerce. With limited exceptions, owners 
and operators determined to be unfit may not operate commercial motor 
vehicles in interstate commerce beginning on the 61st day after the 
date of such fitness determination, or the 46th day after such 
determination in the case of carriers transporting passengers or 
hazardous materials, ``and until the Secretary determines such owner or 
operator is fit'' (49 U.S.C. 31144(c)).
    Section 4104 of the Safe, Accountable, Flexible, Efficient 
Transportation Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144, 
August 10, 2005) (SAFETEA-LU) directs FMCSA to revoke the registration 
of a motor carrier that has been prohibited from operating in 
interstate commerce for failure to comply with the safety fitness 
requirements of 49 U.S.C. 31144. Section 4114(b) of SAFETEA-LU expands 
FMCSA jurisdiction into intrastate operations by amending 49 U.S.C. 
31144(c) to further prohibit owners or operators of CMVs prohibited 
from operating in interstate commerce because FMCSA has determined they 
do not meet the safety fitness requirement, from operating any CMV that 
affects interstate commerce until the Secretary determines that such 
owner or operator is fit.

III. Executive Summary

    In its January 18, 2007 NPRM (72 FR 2340), FMCSA proposed three 
related elements to address on-board electronic devices for recording 
HOS information: (1) An updated equipment standard in light of 
technological advances; (2) mandated use of EOBRs for motor carriers 
that demonstrated a history of severe noncompliance with the HOS 
regulations; and (3) certain incentives to encourage EOBR use by all 
motor carriers. The second element, concerning the mandated use of 
EOBRs, was of greatest concern to commenters.
    The FMCSA acknowledges the safety concerns of Congress, the 
National Transportation Safety Board (NTSB), and the many organizations 
and individuals that submitted comments to the NPRM in support of a 
broader EOBR mandate. The Agency has begun work to evaluate regulatory 
options for significantly expanding the population of carriers covered 
by an EOBR mandate.
    However, the Agency cannot extend the EOBR mandate beyond those 
covered by this final rule because the scope of the current rulemaking 
proceeding is limited to compliance-based regulatory approaches, 
implemented through a remedial directive. Therefore, FMCSA will examine 
the issue of a broader mandate under a new rulemaking proceeding in 
response to the safety concerns raised by Congress, the NTSB, and 
commenters to the docket.
    As part of this activity, FMCSA also intends to gather more 
information on the voluntary use of EOBRs and to assess how increases 
in the number of units installed are influencing the costs of purchase 
and operation.
    In the meantime, focusing on motor carriers with significant HOS 
compliance problems is likely to improve the safety of the motoring 
public on the highways in the near term. Consistent with the scope of 
the NPRM, we are therefore adopting procedures for issuance of remedial 
directives requiring EOBR installation, maintenance, and use by those 
motor carriers with serious HOS noncompliance.
    As discussed in the EOBR Remedial Directives section of this 
preamble, FMCSA examined a variety of

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parameters that might be used to establish subpopulations of motor 
carriers with poor HOS compliance to which an EOBR mandate might apply. 
In focusing on the most severe violations and the most chronic 
violators, we are adopting a mandatory-installation ``trigger'' 
designed to single out motor carriers that have a demonstrated record 
of poor compliance with HOS regulations. In today's rule, as proposed 
in the NPRM, we adopt an EOBR mandatory-use requirement with a 
compliance-based trigger. It applies to motor carriers across all 
sectors that have demonstrated poor compliance with the HOS 
regulations. The NPRM details the history of this rulemaking and the 
alternatives considered (72 FR 2343).
    Previously, an Agency proposal to mandate EOBRs for CMVs used in 
long-haul and regional operations was withdrawn (68 FR 22456, Apr. 28, 
2003). The 2004 ANPRM (69 FR 53386) invited comment on a sector-based 
mandate (e.g., long-haul carriers only). FMCSA considered such broader 
mandates and discussed them again in the NPRM, although they were not 
ultimately pursued as regulatory options. Instead, the NPRM focused on 
which remedial directive option to adopt (72 FR 2372-2374).
    The Agency proposed mandating EOBR installation, maintenance, and 
use for a relatively small population of companies and drivers with a 
recurrent HOS compliance problem. EOBRs would be required for those 
carriers determined--based on HOS records reviewed during each of two 
compliance reviews conducted within a 2-year period--to have had a 10 
percent or greater violation rate (``pattern violation'') for any 
regulation in the proposed Appendix C to 49 CFR part 385 (``2 x 10'' 
Remedial Directive Carriers). As described in more detail in this 
preamble, in the final rule the Agency has chosen the more stringent 1 
x 10 remedial approach--whereby motor carriers with a 10 percent 
violation rate of any Appendix C HOS regulation in any single 
compliance review would be subject to a remedial directive (``1 x 10'' 
Remedial Directive Carriers)--instead of the 2 x 10 approach proposed 
in the NPRM.
    In the development of this final rule, the Agency found the overall 
crash rates of 1 x 10 and 2 x 10 motor carriers are considerably higher 
than the crash rates of the general motor carrier population. Using 
data from the FMCSA Motor Carrier Management Information System (MCMIS) 
database and compliance review databases, crash rates were computed by 
dividing total crashes by each carrier's number of power units. Crash 
rates were compared between the 1 x 10 and 2 x 10 motor carrier 
population and motor carriers in the general population. The 1 x 10 
motor carriers were found to have a 40 percent higher crash rate than 
the general motor carrier population, and 2 x 10 motor carriers a 90 
percent higher crash rate than the general motor carrier population. 
Many elements of the analyses of benefits and costs of this rule use 
estimates that were derived from FMCSA's 2003 estimates concerning the 
effects of HOS rules. This was done to provide analytical continuity 
through the 2004-2010 timeframe of the EOBR rulemaking actions.\1\ 
Also, due to data limitation, FMCSA used outdated studies in the 
analysis for this rule. For future HOS rulemakings, FMCSA will use 
updated studies and reports to analyze impacts.
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    \1\ Estimates of benefits and costs that will be developed for 
future HOS-related rulemaking actions will use more recent baseline 
data.
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    Numerous commenters to the NPRM stated that the proposal still 
would not require EOBR use by enough carriers to make a meaningful 
difference in highway safety, relative to the total carrier population. 
The FMCSA acknowledges the safety concerns of the commenters. In 
response to those concerns, the Agency will explore the safety benefits 
of a broader EOBR mandate in a new rulemaking proceeding that will 
begin in the near future. In the meantime, the final rule's application 
of a remedial directive to the 1 x 10 motor carriers makes the best 
immediate use of Agency resources and provides immediate safety 
benefits to society.
    The number of motor carriers that will be required to install, use 
and maintain EOBRs is significantly greater under this final rule than 
was proposed in the NPRM. If FMCSA determines, based on HOS records 
reviewed during a single compliance review, that a motor carrier had a 
10 percent or greater violation rate for any regulation in the new 
Appendix C to Part 385 (``threshold rate violation''), FMCSA will issue 
the carrier an EOBR remedial directive. The motor carrier will be 
required to install EOBRs meeting the performance requirements of this 
final rule in all of the carrier's CMVs, regardless of their date of 
manufacture, and to use the devices for HOS recordkeeping purposes for 
a period of 2 years. An exception is provided for carriers that, prior 
to the compliance review determination, already equipped their vehicles 
with automatic on-board recording devices (AOBRDs) meeting the Agency's 
current requirements under 49 CFR 395.15 and can demonstrate to FMCSA 
that their drivers understand how to use the devices.
    FMCSA amends the FMCSRs to provide new performance requirements for 
EOBRs used to monitor drivers' HOS recording devices. EOBRs will be 
required to automatically record the CMV's location at each change of 
duty status and at intervals while the CMV is in motion. Current on-
board recorders are not required to do this. EOBRs must also conform to 
specific information processing standards to ensure the security and 
integrity of the data that is recorded. Drivers will be able to add 
information to the EOBR record (``annotate'') while the EOBR maintains 
the original recorded information and tracks these annotations. The 
EOBR support system must be able to provide a digital file in a 
specified format for use by motor carrier safety enforcement officials.
    FMCSA requires on-board recording devices be integrally 
synchronized to the engine. Although the January 2007 NPRM proposed 
allowing non-synchronized devices, the Agency decided to continue 
requiring that on-board recording devices be integrally synchronized to 
ensure the accuracy of electronic records of duty status.
    The Agency also adopts other performance specifications, in 
response to comments that differ from specifications proposed. These 
include, but are not limited to: Increasing the time interval for 
recording the geographic location of a CMV in motion from 1 minute to 
60 minutes; making the recording of State-line-crossing information 
optional; removing the requirement to record a driver's acknowledgement 
of advisory messages; reducing the amount of time a CMV is stationary 
before the EOBR defaults to on-duty not driving duty status; removing 
the daily ceiling on EOBR accumulated time inaccuracy or ``time 
drift''; revising the requirements to allow a driver to enter 
annotations to denote use of a CMV as a personal conveyance and for 
yard movement; removing the requirement for an EOBR to display HOS data 
in a graph-grid format; specifying information technology security and 
integrity requirements; and adding and strengthening provisions 
concerning driver and motor carrier responsibilities relating to 
accurate EOBR records and support system performance. The details of 
the changes are discussed later in this document.
    To ensure a smooth transition from AOBRDs to EOBRs, the final rule 
requires that for CMVs manufactured

[[Page 17212]]

after June 4, 2012, devices installed by a manufacturer or motor 
carrier to record HOS must meet the requirements of Sec.  395.16. 
Commercial motor vehicles manufactured prior to June 4, 2012 may be 
equipped with an HOS recording device that meets the requirements of 
either Sec.  395.15 (AOBRD) or Sec.  395.16 (EOBR).
    Finally, the final rule provides incentives for motor carriers to 
voluntarily use EOBRs. These include elimination of the requirement to 
retain and maintain supporting documents related to driving time as 
this information will be maintained and accessible from the EOBR. 
Additionally, compliance reviews that reveal a proposed 10 percent or 
higher violation rate based on the initial focused sample would be 
expanded to assess a random sampling of the motor carrier's overall HOS 
records.

Summary of FMCSA's January 2007 Proposal

    On January 18, 2007, FMCSA proposed amending the FMCSRs to 
incorporate new performance standards for EOBRs installed in commercial 
motor vehicles manufactured on or after the date 2 years following the 
effective date of a final rule. On-board HOS recording devices meeting 
FMCSA's current requirements and voluntarily installed in CMVs 
manufactured before the implementation date of a final rule will be 
permitted for use for the remainder of the service life of those CMVs.
    Under the proposal, motor carriers that demonstrated a pattern of 
serious noncompliance with FMCSA's HOS rules would be subject to 
mandatory installation of EOBRs meeting the new performance standards. 
If FMCSA determined, based on HOS records reviewed during each of two 
compliance reviews conducted within a 2-year period, that a motor 
carrier had a 10 percent or greater violation rate (``pattern 
violation'') for any regulation in proposed Appendix C to part 385 of 
Title 49, CFR, FMCSA would issue the carrier an EOBR remedial 
directive. The motor carrier would be required to install EOBRs in all 
of its CMVs regardless of their date of manufacture and to use the 
devices for HOS recordkeeping for a period of 2 years, unless the 
carrier already had equipped its vehicles with AOBRDs meeting the 
Agency's current requirements under 49 CFR 395.15 and could demonstrate 
to FMCSA that its drivers understand how to use the devices.
    We also proposed changes to the safety fitness standard to ensure 
imposition of a remedial directive to install, use and maintain EOBRs 
as taken into account when determining a carrier's safety fitness. 
Finally, FMCSA proposed the same incentives for motor carriers to 
voluntarily use EOBRs in their CMVs as are adopted in today's final 
rule: (1) Random sampling of drivers' records of duty status; and (2) 
partial relief from HOS supporting documents requirements.

IV. Discussion of Comments to the NPRM

Overview of Comments

    The Agency received 752 comments on the proposed rule. Of these, 
609 expressed opinions without additional supporting material.
    Organizations that provided comments included the following.
    Safety advocacy groups: Advocates for Highway and Auto Safety 
(Advocates); Public Citizen; and Insurance Institute for Highway Safety 
(IIHS).
    Drivers' organizations: International Brotherhood of Teamsters 
(IBT) and Owner-Operator Independent Drivers Association, Inc. (OOIDA).
    National trucking industry associations: Canadian Trucking 
Alliance; Truckload Carriers Association (TCA); American Trucking 
Associations (ATA); National Private Truck Council, Inc. (NPTC); the 
Specialized Carriers & Rigging Association (SC&RA), and the American 
Moving and Storage Association (AMSA). Additionally, although several 
commenters referenced a Technical Policy Advisory (TPA) developed by 
the ATA Technology and Maintenance Council (TMC), TMC did not comment 
independently to the docket.
    State trucking associations: Minnesota Trucking Association (MTA).
    EOBR, software, and system providers: RapidLog Corp. (RapidLog); 
PeopleNet; Siemens AG (Siemens); Tripmaster Corp. (Tripmaster); Xora, 
Inc. (Xora); First Advantage; Verigo Inc. (Verigo); XATA Corp. (XATA); 
Qualcomm Wireless Business Solutions (Qualcomm); KonaWare 
Transportation and Logistics (KonaWare), and Report on Board.
    U.S. Government agencies: National Transportation Safety Board 
(NTSB) and the U.S. Department of Energy (DOE).
    CMV safety officials' organization: Commercial Vehicle Safety 
Alliance (CVSA).
    State government agencies: Maryland State Police, Maryland State 
Highway Administration (Maryland SHA), and Public Utilities Commission 
of Ohio (Ohio PUC).
    Motor carriers: J.B. Hunt Transport, Inc. (J.B. Hunt); FedEx Corp. 
(FedEx); Werner Enterprises, Inc. (Werner); Calvary Mountain Express 
Inc.; River Transport, Inc.; Boyle Transportation (Boyle); OTR 
Transportation; Maverick Transportation, LLC (Maverick); Metro Express 
Inc.; Brenny Specialized, Inc.; Foreman Transport; Horizontal Boring & 
Tunneling Co.; and N&M Transfer Co., Inc.
    National associations with transportation interests: International 
Foodservice Distributors Association; National Propane Gas Association 
(NPGA); National Ready Mixed Concrete Association (NRMCA); Petroleum 
Transportation and Storage Association; Petroleum Marketers Association 
of America (PMAA); and, the Food Marketing Institute (FMI).
    State association with transportation interests: Colorado Ready 
Mixed Concrete Association.
    CMV manufacturer: International Truck and Engine Corp.

1 Industry-Wide Mandate for EOBRs

    FMCSA received 57 comments, mainly from drivers or individuals, who 
believe the Agency should require the use of EOBRs. Thirty-nine 
commenters supported a broader mandate than was proposed in the NPRM, 
though not an industry-wide mandate. Nineteen commenters supported 
mandating EOBRs for all carriers.
    Advocates commented, ``enforcement efficiencies would soar with 
universal use of accurate, tamper-proof EOBRs,'' and argued that the 
increased productivity of roadside inspection officials could 
significantly improve motor carrier safety. Several commenters, 
including CVSA, NTSB, and Public Citizen, asserted European Union 
nations, Japan, and other countries that require EOBRs have seen 
positive safety results.
    Ohio PUC stated a mandate would greatly increase compliance with 
the HOS rules, increase safety, and reduce the potential for fraud.
    Public Citizen, Advocates, and two vendors stated the proposed rule 
did not meet the statutory mandate or individual guidance concerning an 
evaluation of EOBRs, and that the administrative record of FMCSA's own 
rulemakings contradicted the proposal. They noted the Agency was 
required to consider safety as its highest priority and to further the 
highest degree of safety in motor carrier transportation.
    IIHS stated the proposed rule was ``completely at odds with the 
data on truck driver fatigue.'' IIHS cited its research that found that 
one in five drivers fell asleep at the wheel in the previous month.

[[Page 17213]]

    DOE supported the NPRM, but preferred an industry-wide mandate for 
EOBR use to enhance the safety, security and cost effectiveness of the 
transportation of hazardous materials. DOE believes installation of 
EOBRs on all CMVs would enhance highway safety and HOS compliance of 
all motor carriers, including those that DOE uses to transport 
shipments of radioactive materials and waste.
    Numerous commenters argued that EOBRs are needed to improve safety, 
but motor carriers will not voluntarily choose to use EOBRs. In a 
related vein, CVSA, NTSB, Siemens, and Report on Board believed a 
mandate for all motor carriers to use EOBRs would be necessary to 
obtain the customer base and economies of scale for vendors to offer 
lower-cost EOBRs.
    An individual who identified himself as a safety consultant argued 
that motor carriers would not see sufficient advantages--either through 
reduced instances of noncompliance or reductions in paperwork burdens--
to encourage them to use EOBRs voluntarily, especially since their 
chance of being subjected to a compliance review is low. He stated many 
progressive motor carriers have installed onboard systems with Global 
Positioning System (GPS) tracking capabilities but do not use them for 
HOS recording because drivers object to it. The consultant contended 
that by not mandating universal EOBR use, the DOT is, in effect, 
rewarding those who are unwilling to invest in safety.
    IIHS stated that although AOBRDs have been allowed since 1988 and a 
substantial number of motor carriers use various types of on-board 
systems, only a small proportion of carriers use them to collect HOS 
data. As evidence that many motor carriers find EOBRs affordable and 
provide many operational benefits, IIHS cited surveys of truck drivers 
indicating about 45 percent of the long-distance drivers in 2005 said 
there were EOBRs or other on-board computers in their trucks, up from 
about 18 percent in 2003 and about 38 percent in 2004.
    Some of the commenters believed a universal EOBR mandate would 
create a ``level playing field'' in the motor carrier business 
environment. They also stated it would protect drivers from adverse 
actions by their employers in retaliation for refusing to violate HOS 
regulations. Some of the commenters also mentioned improved readability 
and simplified recordkeeping associated with EOBRs when compared to 
handwritten records, as well as assisting motor carrier safety 
enforcement personnel in performing their roadside reviews more 
efficiently and effectively.
    Advocates stated FMCSA had ignored potential health impacts of 
using EOBRs and improving HOS compliance. It said FMCSA's concern about 
the stress on drivers from using EOBRs distorted the research results 
of several studies. Furthermore, Advocates held, by not proposing to 
mandate EOBR use, the Agency was not helping ``to ameliorate the 
adverse health impacts of exceptionally long working and driving hours 
triggered by the Agency's final rules in 2003 and in 2005.''
    Response: We understand the concerns of ATA and J.B. Hunt, among 
others, who believe the proposal did not cover enough carriers. While 
FMCSA acknowledges the safety concerns of those that support an 
industry-wide EOBR mandate, the Agency cannot extend the EOBR mandate 
in that manner in this final rule because the scope of the current 
rulemaking proceeding is limited to a compliance-based regulatory 
approach, implemented through a remedial directive. However, the number 
of motor carriers that will be required to install, use and maintain 
EOBRs is significantly greater under this final rule--using the 1 x 10 
trigger--than under the 2 x 10 trigger that was proposed in the NPRM.
    FMCSA recognizes that the potential safety risks associated with 
some motor carrier categories, including passenger carriers, hazardous 
materials transporters, and new entrants, are such that mandatory EOBR 
use for such populations might be appropriate. However, as noted above, 
in today's rule, we adopt a compliance-based trigger that focuses on 
all HOS-violating motor carriers across all sectors as proposed in the 
NPRM. In addition, as some commenters to the 2007 NPRM docket 
indicated, a regulation that promotes voluntary use of EOBRs, but that 
does not mandate it for the majority of carriers, will not persuade 
many carriers to adopt the devices, even though the devices may 
generate improvements in operational productivity. And, as other 
commenters noted, a more universal approach to EOBR use may create a 
more level playing field in the industry.
    As stated earlier in this document, the Agency will initiate a new 
rulemaking to consider expanding the scope of mandatory EOBR use beyond 
the ``1 x 10'' carriers that will be subject to a remedial directive as 
a result of today's rule.
    FMCSA acknowledges that some foreign countries have an industry-
wide mandate for HOS recording devices. However, the Agency is not 
aware of any published information that demonstrates that the specific 
mandate imposed by those countries has contributed to any discernible 
benefits in safety. Still, the absence of published information by 
those governments should not preclude consideration of that regulatory 
option for the U.S. What is clear is certain motor carriers with 
threshold rates of serious HOS violations have much higher than average 
crash rates, and the mandatory use of EOBRs via a remedial directive 
for these high-risk carriers provides a means to compel such carriers 
to achieve compliance with the HOS rules.
    In terms of the benefits to motor carriers arising from EOBR use, 
FMCSA agrees that the savings in collecting, reviewing, and storing 
paper-based information alone can make EOBRs (and AOBRDs) attractive to 
many motor carriers. Furthermore, advances in information technology 
(particularly Web-based applications) and wireless telecommunications 
are making HOS monitoring applications--either in stand-alone form or 
as part of fleet management systems--far less costly on a per-power-
unit basis than they were in the past.
    Until several years ago, many on-board recording systems suppliers 
did not serve the small-fleet market, which, according to FMCSA's motor 
carrier census, makes up most of the population of motor carriers: 
approximately 90 percent of motor carriers operate fewer than 20 power 
units. The picture is vastly different today. It is not only more 
economical for motor carriers to use on-board recording and monitoring 
systems, but there are far more suppliers of these systems to choose 
from. Vendors anticipate that customers have a substantial demand that 
they can meet, and they are meeting that demand without an FMCSA 
mandate. The revised EOBR systems cost estimates discussed in the 
Rulemaking Analyses and Notices section of this document and the RIA 
reflect these advancements.
    In response to Advocates' comments on potential health impacts of 
EOBR use, the Agency has addressed both positive and negative health 
impacts in Appendix A of the EA for this rule, which has been placed in 
the docket. The Agency carefully reviewed research on the potentially 
negative impacts of electronic monitoring and concluded that use of 
EOBRs required in today's final rule will not result in negative 
impacts on driver health for two reasons: First, because monitoring of 
HOS compliance is an existing, not a new, requirement; and second, 
because

[[Page 17214]]

the Agency is requiring EOBRs to monitor safety, not workplace 
productivity. The underlying HOS regulations are the subject of a 
separate rulemaking action. Cost and benefit estimates of the HOS 
regulations are included in the analysis for that separate rulemaking 
(72 FR 71247, December 17, 2007).

2 General Opposition to Mandated Use of EOBRs

    One hundred thirty-six commenters, the majority of whom were 
drivers or individuals, generally opposed any mandated use of EOBRs. 
The SC&RA, TCA, IBT, AMSA, and a driver claimed that FMCSA had not 
demonstrated EOBR use would improve highway safety. SC&RA questioned 
FMCSA's estimates in the RIA, concerning relationships between 
improvements in HOS compliance and improvements in safety outcomes 
resulting from use of EOBRs.
    Several commenters criticized the Agency for failing to produce any 
definitive studies demonstrating the safety benefits of EOBRs. Some of 
these commenters cited the University of Michigan Transportation 
Institute (UMTRI) or American Transportation Research Institute (ATRI) 
studies which concluded that safety benefits were difficult to assess 
due to lack of empirical data. SC&RA stated that a 2006 study by ATRI 
did not identify safety benefits. OOIDA likewise criticized the RIA for 
assuming EOBRs would improve compliance rather than demonstrating that 
improvement would, in fact, occur. It also quoted a 1998 UMTRI study 
concluding EOBRs would have little or no effect on safety.
    Forty of the 136 commenters stated FMCSA failed to prove that using 
EOBRs reduced driver fatigue, prevented or reduced the severity of 
accidents, or lowered operational costs. IBT expressed concern that 
employers would use EOBR data to pressure drivers to improve their 
operational productivity by driving faster and making shorter stops.
    Gantec Trucking stated FMCSA has not shown that strict compliance 
with HOS limits improves safety, considering that accidents in which 
the CMV driver is at fault and fatigue-related accidents make up a very 
small percentage of CMV-involved accidents. Gantec criticized FMCSA for 
citing a lack of evidence to support strengthening driver training 
regulations but not holding itself to the same standard for proposing 
EOBR use. Some drivers believe EOBRs could make drivers less safe 
because they believe the accuracy of an EOBR's record would force them 
to continue driving when they would prefer to take a break: With paper 
Records of Duty Status (RODS), drivers can take breaks as needed but 
not necessarily record them. Others questioned how EOBRs could improve 
safety because they cannot automatically detect or record non-driving 
activity. IBT stated because drivers would still need to enter non-
driving time, they would still falsify their electronic records, 
because it is to their benefit to do so.
    Response: FMCSA disagrees with commenters that believe there are no 
circumstances under which the use of EOBRs should be mandated. The 
Agency believes the safety records of carriers found to have certain 
threshold rates of violations of the HOS rules are a strong indicator 
of the need to do more than issue civil penalties. The final rule 
requires such carriers to install, use and maintain EOBRs to better 
ensure their drivers comply with the applicable HOS requirements and 
provides a means for prohibiting these motor carriers from continuing 
to operate CMVs in interstate commerce if they fail to comply with the 
remedial directive. This action is a significant first step toward 
strengthening the enforcement of the HOS rules for carriers with 
threshold rates of noncompliance.
    The use of electronic records allows deviations from safety and 
operational norms to be made more visible because they can be detected 
far more rapidly than with paper records. Also, the electronic records 
will enable motor carriers to develop safety or operational 
countermeasures to address these deviations more efficiently and 
effectively. However, the Agency does not accept the assertion that 
drivers would not take breaks from driving because those breaks would 
be recorded.

3 EOBR Remedial Directive

3.1. Applicability of the Remedial Directive
    The Minnesota Trucking Association, AMSA, and one individual 
supported requiring EOBRs only for motor carriers with a demonstrated a 
history of serious noncompliance with the HOS rules.
    In contrast, J.B. Hunt and many other commenters stated the 
proposed threshold would not capture enough carriers to serve as a 
meaningful deterrent to noncompliance or to positively influence 
highway safety outcomes. ATA stated that the method described in the 
NPRM for determining whether a remedial directive should be issued is 
not likely to dissuade the bulk of the egregious or defiant HOS 
offenders. ATA recommended focusing on at least the top 10 percent most 
egregious HOS violators. This population could be determined by use of 
valid compliance review data and, potentially, driver out-of-service 
rates for HOS violations from roadside inspection data. ATA further 
recommended, prior to taking remedial action, FMCSA provide motor 
carriers an adequate warning period to give them an opportunity to 
institute improved safety management controls. If improvement 
benchmarks were not adequately attained, then more severe enforcement 
action would be warranted.
    OOIDA stated the proposed rule would punish only those carriers 
that keep accurate records of their noncompliance and would not punish 
the worst offenders who do not comply and who disguise their 
violations.
    Numerous commenters including Maverick and Werner stated the 
requirement should apply to the driver rather than to the carrier. Such 
commenters argued that if most of a carrier's drivers are not in 
violation, mandating an EOBR for the carrier penalizes compliant 
drivers, which increases the cost. Also, if the remedial directive is 
applied to a carrier, the non-compliant drivers will simply go to 
another carrier to avoid using the EOBR, which effectively nullifies 
the potential benefits from mandating EOBR use.
    Werner stated carriers are limited to taking after-the-fact 
compliance and enforcement actions against their drivers. The carrier 
should not be penalized for the actions of non-compliant drivers whom 
it no longer employs if the carrier has made an effort to deal with the 
drivers' HOS issues during their employment. ATA stated a record of HOS 
noncompliance should follow the driver and should only be considered in 
assessing the compliance status of the motor carrier where the driver 
is currently employed. ATA argued, ``Penalties for EOBR violations 
should be proportional for all responsible parties, with special 
attention for tampering with the devices and the data.''
    The National Propane Gas Association (NPGA)) asserted motor 
carriers transporting placardable quantities of hazardous materials, 
taken as a whole, do not represent a risk greater than non-hazmat 
carriers and should not be required to use EOBRs. Conversely, Advocates 
believes the inherently higher safety and security risks posed by 
hazardous materials transportation and the special safety concerns 
related to passenger motorcoach transportation, justify mandatory EOBR 
use for both categories of motor carriers.

[[Page 17215]]

    OOIDA and three individuals objected to the trigger for imposition 
of a remedial directive because they believe the directives would 
disproportionately affect smaller companies. The individuals noted a 
company with very few trucks could be required to install EOBRs if only 
one driver is put out-of-service, while a large company could have many 
such drivers and not be targeted. Moreover, where a minority of drivers 
is out of compliance, the innocent majority of the carrier's drivers 
would be punished by a company-wide mandate. OOIDA asked if new entrant 
safety audits would be included in the compliance reviews (CRs) 
considered for the trigger; if so, it argued, small businesses would be 
severely affected because most new entrants are small operations. J.B. 
Hunt suggested FMCSA consider requiring new entrants to use EOBRs for a 
minimum period.
    NTSB stated encouraging carriers to view EOBRs as a means of 
punishment would undermine the goal of industry-wide acceptance; such 
broad acceptance would result in greater safety for all motorists. 
Boyle Transportation agreed the punitive nature of the remedy would be 
a disincentive for carriers to install them.
    Some commenters focused on the perceived underlying problem--the 
need for stronger HOS enforcement. According to Public Citizen, the 
onus is still on the Agency to commit to improving enforcement of HOS 
compliance. Advocates stated the rule would not address the pervasive 
nature of HOS violations. It stated RoadCheck 2006 found there was an 
upward trend in the number of HOS violations even though the new HOS 
rules adopted in 2003 allowed drivers to work longer hours. CVSA agreed 
that a more effective option for dealing with the habitual HOS 
offenders is stronger enforcement. They also noted HOS noncompliance is 
indicative of a systemic management problem within the carrier's 
operation, and the mere installation of EOBRs will not correct this 
problem. Finally, CVSA noted that government resources needed to 
monitor carriers subject to mandatory EOBR use will be substantial, and 
the benefits will not outweigh the costs.
    Response: In its September 2004 ANPRM (69 FR 53386), the Agency 
requested commenters to address the scope of the EOBR requirement. 
Specifically, the Agency requested comment on whether it should: 
``Propose requiring that motor carriers in general, or only certain 
types of motor carrier operations, use EOBRs.'' 69 FR 53395. The Agency 
received numerous comments on this issue. In the 2007 NPRM the Agency 
noted it had the legal authority to adopt an industry-wide standard 
that all motor carriers subject to the HOS requirements use EOBRs. The 
Agency announced it would not exercise ``the full extent of its 
authority at this time, however, and [would] instead propose a more 
targeted approach of mandating EOBR use for only those carriers with 
deficient safety management controls, as demonstrated by repeated 
patterns of hours-of-service violations.'' 72 FR 2341. The final rule, 
similarly, does not require all carriers to install and use EOBRs, but, 
consistent with the NPRM, targets only those carriers with substantial 
HOS noncompliance and associated deficient safety management controls. 
This final rule makes one significant change to the remedial directive 
provisions in the proposed rule, concerning the HOS noncompliance 
threshold triggering a remedial directive for a motor carrier. The NPRM 
proposed a so-called ``2 x 10'' approach as the ``trigger'' for a 
remedial directive. That approach would have required a final 
determination of one or more ``pattern violations'' of any regulation 
in proposed new Appendix C to part 385 (``Appendix C regulations'') 
during a CR, followed by the discovery of one or more pattern 
violations of any Appendix C regulation during a CR completed within 2 
years after the closing date of the CR that produced the first 
determination. We explained in the NPRM that a pattern violation would 
be ``a violation rate equal to or greater than 10 percent of the number 
of records reviewed. For example, 25 violations out of 100 records 
reviewed would be a 25 percent violation rate and therefore a pattern 
violation. This trigger, if adopted, would result in the issuance of 
approximately 465 remedial directives to install EOBRs annually.'' 72 
FR 2364. The Agency justified mandating EOBRs on this subpopulation of 
carriers, given that these carriers' ``severe'' HOS compliance 
deficiencies ``pose a disproportionate risk to public safety.'' Id.
    After reconsidering the alternatives discussed in the NPRM (72 FR 
2374) including the proposed ``2 x 10'' remedial directives trigger, 
and based on comments received, the Agency adopts the considerably more 
stringent ``1 x 10'' requirement. As discussed in more detail below, we 
agree with the numerous commenters, including government agencies, 
carriers, industry associations, and safety groups, that the proposed 2 
x 10 trigger would not mandate EOBR use by enough carriers, given the 
total population. Under the requirement adopted today, carriers with a 
10 percent violation rate of any HOS Appendix C regulations in any 
single CR will be subject to a remedial directive. Approximately 5,419 
carriers and 104,428 power units on average will be subject to this 
directive per year. This represents a substantial increase in the 
number of remediated carriers compared to the 2 x 10 proposal, as 
further explained in the RIA and section 8, below. The crash rate for 
such carriers is more than double the industry average, (although the 
crash rate is slightly lower for the entire 1 x 10 group than it was 
for the 2 x 10 group because of the larger pool of carriers subject to 
the remedial directive). However, FMCSA anticipates the 1 x 10 approach 
finalized today will result in greatly increased HOS compliance, and 
therefore safety, in a cost-effective manner.
    The Agency is revising the new 49 CFR 385.803 definitions and 
acronyms section and other affected rule text to replace the term 
``pattern'' violation with the term ``threshold rate'' violation. 
Concern was raised that use of the term ``pattern violation'' in the 
final rule might lead to confusion with other ``patterns'' of 
violations in the FMCSRs and the Agency's enforcement structure. In 
addition, the Agency believes the term ``pattern'' is more aptly 
applied to the proposed 2 x 10 trigger, which required a finding of 
serious HOS violations in multiple CRs. Under the final rule, the 
finding of a 10 percent violation rate for an Appendix C regulation in 
a single CR will serve as the trigger for issuance of a remedial 
directive.
    Two factors that were not operative in the NPRM analysis influenced 
the final rule. First, section 4114 of SAFETEA-LU was codified in the 
FMCSRs on July 5, 2007, approximately 6 months after the EOBR NPRM was 
published (72 FR 36762 (preamble) and 36788 (regulatory text) amending 
49 CFR 385.7(c), (d), (f), and (g)). Prior to the enactment of section 
4114, although motor carriers were required under 49 CFR 390.15 to 
record intrastate accidents on their accident registers, FMCSA did not 
take intrastate accidents or safety violations into account when 
determining motor carriers' safety ratings. Under section 4114, FMCSA 
must now utilize interstate motor carriers' accident and safety 
inspection data from intrastate operations (and from operations in 
Mexico or Canada if the carrier also has U.S. operations) in 
determining carriers' safety fitness under 49 U.S.C. 31144. This 
includes safety inspection data on HOS violations while operating in 
intrastate commerce. As a result of this larger universe of violations 
under

[[Page 17216]]

consideration in the safety fitness determination process, the number 
of carriers subject to the 1 x 10 remedial directive is now slightly 
higher than it would have been prior to enactment of section 4114.
    Second, after issuance of the NPRM, DOT made an important change to 
its evaluation of safety benefits for all safety rules. This policy has 
caused the Agency to revisit the cost benefit analyses for all rules 
being developed, including the EOBR rule. Specifically, on February 5, 
2008, DOT issued a memorandum to its modal agencies instructing them to 
estimate the economic value of preventing a human fatality at $5.8 
million. See ``Economic Value of a Statistical Life in Departmental 
Analyses'' (available at http://ostpxweb.dot.gov/policy/reports/080205.htm). FMCSA also published a notice in the Federal Register 
describing this policy change (73 FR 35194, June 20, 2008). The 
previous value of a statistical life (VSL), which was used in the RIA 
for the EOBR NPRM, was $3.0 million. Given that the VSL nearly doubled, 
the net benefits of this rule, as well as those of other FMCSA rules 
under development, were recalculated using the new figures. This 
recalculation resulted in a reappraisal of all appropriate alternatives 
by the Agency, taking into account Agency analyses concerning safety 
impacts, enforcement resources, and data and comments received.
    We fundamentally disagree with OOIDA's comment that this rule 
mandates EOBRs merely for those carriers who keep records. In addition 
to other HOS violations, failure to maintain and preserve records of 
duty status in accordance with part 395 and falsification of records 
are among the 24 separate violations in new Appendix C that will 
trigger a remedial directive if violated at the threshold rate of 10 
percent or greater. Other issues related to supporting documents are 
discussed under the heading ``Incentives,'' section 7, below. Also, the 
revised trigger applies to the same carriers as proposed in the NPRM, 
namely those that fail to meet their part 395 compliance obligations. 
But we anticipate the final rule will result in the issuance of a 
significantly larger number of remedial directives because directives 
can be triggered after a single compliance review in which the motor 
carrier is found to meet or exceed the violation rate threshold, rather 
than after a second CR that would take place as much as 24 months after 
the initial set of threshold violations are found.
    As previously mentioned, some carriers objected to having EOBRs 
imposed based on the actions of HOS-noncompliant drivers who might no 
longer be employed at the motor carrier affected. FMCSA disagrees with 
this position. A key to addressing the issue of non-compliant drivers 
is for motor carriers to exercise proper management controls. These 
controls should include, for example, a process for conducting adequate 
background checks prior to employing a new driver and ensuring that new 
drivers are adequately trained. Likewise, if a carrier has adequate 
management controls over driving operations, HOS violations at a rate 
greater than 10 percent should not occur in the first place. To ensure 
consistent oversight, FMCSA and its State enforcement partners must 
conduct compliance reviews based on the drivers employed during the 
review period in question. Subsequent adjustments in a non-compliant 
driver's employment status or a motor carrier's pool of employees 
should not influence the remedial directive determination.
    At this time, the Agency elects not to require EOBRs for all new 
entrants or hazardous material (hazmat) carriers because these 
regulatory options are beyond the compliance-based scope of the current 
rulemaking proceeding. The Agency acknowledges the concerns of 
commenters, and plans to consider these options in preparation for a 
new rulemaking examining the expansion the EOBR mandate.
    The remedial directive element of this final rule treats hazmat 
carriers, along with passenger carriers, differently from other 
carriers, consistent with our authority to determine safety fitness of 
carriers under 49 U.S.C. 31144 (c)(2)-(3) and 49 CFR part 385. As 
discussed in our NPRM (72 FR 2376) and set forth in this final rule, 
passenger and hazmat carriers will have only 45 days to install EOBRs 
after receiving a remedial directive under Sec.  385.807(b)(1). As with 
the current regulations under part 385, the shorter period reflects the 
relatively higher risk to the traveling public (passenger carriers) and 
to safety and security (hazmat) of these carriers' operations. Non-
hazmat property carriers will have 60 days to comply under Sec.  
385.807(b)(2). Both provisions are adopted as proposed.
    As to applicability of the rule to new entrant carriers, CRs are 
not normally conducted on new entrant carriers, which are subject to a 
safety audit within the 18-month duration of the new entrant program. 
However, enforcement personnel have the discretion to follow up on a 
poor safety audit by conducting a separate CR. Therefore, new entrants, 
like other carriers that must comply with part 395, can be subject to a 
remedial directive under a scenario where the audit leads to a CR.
    We disagree with the characterization of a remedial directive to 
install EOBRs company-wide as a ``punishment'' for the innocent drivers 
who had no violations. The directive is intended to correct a 
demonstrated deficiency in the motor carrier's safety management 
controls and is therefore remedial, not punitive, in nature. This rule 
does not revise or impose any new civil penalties, including penalties 
for HOS violations. Moreover, drivers required to use EOBRs will 
actually benefit from a technology that allows for automation of a 
manual task that would otherwise burden the driver. As noted elsewhere, 
this rule also does not ``target'' any specific industry sector or 
particular size of motor carrier operation; instead, it focuses on 
carriers with substantial HOS compliance issues.
    We respectfully disagree that this final rule on EOBRs will have no 
impact on HOS enforcement, since the rule improves the means of 
detecting HOS violations within a problem motor carrier population and 
thus enhances HOS enforcement.
3.2 Trigger for Remedial Directive
    J.B. Hunt stated that, although the idea of mandating the least 
compliant and least safe carriers to use an EOBR appears to be a 
logical approach, there are problems with this method. It relies on the 
premise that all of the ``least compliant'' carriers have undergone, or 
soon will undergo, a CR. They disagreed with this premise, noted many 
carriers are unrated, and asserted the NPRM approach assumes the Agency 
is uncovering the least safe carriers through its log book sampling. 
However, according to J.B. Hunt, the Agency is merely selecting from a 
group of drivers, not carriers, who have had past compliance problems.
    NTSB objected to using CRs to trigger remedial directives because 
so few CRs are done relative to the number of carriers and because 
carriers may be rated Satisfactory despite long and consistent 
histories of violations. Advocates and Public Citizen also cited the 
limited number of CRs conducted each year, which they said meant that 
the ``pattern of violations'' cannot be meaningful. Siemens agreed with 
this position.
    Advocates added that carriers are selected for CRs using data from 
SafeStat, which is deficient in several ways, as noted by the DOT 
Office of the Inspector General (OIG) and the Government Accountability 
Office (GAO). Advocates contend that relying

[[Page 17217]]

on CR data results in severe underestimation of HOS violations. 
Advocates cite OIG's 2006 conclusion that without the critical data, 
FMCSA cannot accurately identify the high-risk motor carriers for CRs 
and enforcement actions (see ``Significant Improvements in Motor 
Carrier Safety Program Since 1999 Act But Loopholes For Repeat 
Violators Need Closing,'' FMCSA Report Number MH-2006-046, issued April 
21, 2006). They also noted small carriers are not included in SafeStat, 
yet may be at high risk of safety violations. Advocates also assert 
that the 2 x 10 criterion further reduces the pool of potential 
carriers subject to mandatory use of EOBRs.
    A safety consultant stated CRs are an inadequate basis for 
identifying non-compliant carriers. Most carriers are not rated. Safety 
inspectors miss violations because of the volume of CRs they need to 
conduct. He also objected to the distinction between intentional and 
non-intentional errors in logs. He noted ``DOT's own HOS study in 
2004'' suggested as many as 70 percent of long-haul carriers may have 
utilized false logs; his experience as auditor indicates that the 
figure may be accurate.
    J.B. Hunt argued the methodology for selecting drivers in a CR does 
not reflect the overall compliance of the carrier. Rather, it indicates 
noncompliance among the particular drivers selected (from a population 
previously identified as having problems): It does not ensure that the 
least safe and compliant companies are required to install EOBR units. 
The NPRM states, ``The overall safety posture of the motor carrier is 
not being measured during the CR.'' J.B. Hunt is concerned this means 
the desired safety impact of EOBR installations will not be maximized.
    Maryland SHA asked that roadside inspection data be used to augment 
data obtained through a CR. If a carrier fails a CR, a second CR should 
not be needed before the remedial directive is imposed. Advocates 
supported this position. An individual supported using inspection data, 
suggesting FMCSA should set a threshold ratio for HOS violations found 
during inspections as the trigger. One individual recommended applying 
the requirement to carriers that are over 75 percent on SafeStat. J.B. 
Hunt recommended targeting at least carriers in categories A and B in 
SafeStat or some other reasonable measure that would impact a larger 
population.
    OOIDA also stated until FMCSA completes its revision of SafeStat 
and issues a supporting document final rule, it will be nearly 
impossible for OOIDA to comment on the impact. OOIDA believes the 
public should have another chance to comment on the trigger when the 
new scoring system is in place. In OOIDA's view, the Initial Regulatory 
Flexibility Analysis (IRFA) must also be revised at that time.
    Response: Consistent with our NPRM, the Agency will use CR results 
to determine whether to issue remedial directives to carriers, 
requiring them to utilize EOBRs. The CR, typically conducted at the 
carrier's place of business, focuses on carrier management control as a 
metric for determining carrier safety fitness under 49 U.S.C. 31144. 72 
FR 2373. As stated in part 385, noncompliance with critical 
regulations, which include all 24 HOS violations in the new Appendix C 
to part 385, ``are quantitatively linked to inadequate safety 
management controls and usually higher than average accident rates. 
FMCSA has used noncompliance with acute regulations and patterns of 
noncompliance with critical regulations since 1989 to determine motor 
carriers' adherence to the Safety fitness standard in Sec.  385.5'' 
Part 385, App. B II(e). The rationale for using HOS violations under 
new Appendix C is consistent with the current safety fitness 
determination process and logically related to current part 385.
    FMCSA believes the CR is the best assessment method to determine 
which carriers should be required to install EOBRs, since, rather than 
focusing on single violations, FMCSA is looking for threshold rates of 
noncompliance. The new definition of threshold rate violation at Sec.  
385.803, applicable to remedial directives, is entirely consistent with 
our current rules governing safety fitness determinations in part 385. 
The current regulations also require ``more than one violation'' for a 
``pattern of noncompliance,'' and, where a number of documents are 
reviewed, a finding of violations in 10 percent or more documents 
reviewed. Part 385 App. B II(g). Obtaining this large sampling of 
records can be best accomplished during a CR at the carrier's place of 
business. Such an overview of carrier management and operational safety 
oversight is not possible during a roadside inspection, as the review 
is confined to a single CMV and its driver (or team of drivers), at a 
single point in time. Indeed, CRs are designed to provide a sweeping 
assessment of carrier operations and safety management controls, and 
the assessments conducted, based on the Safety Fitness Rating 
Methodology (SFRM), form the basis for carrier safety ratings. Given 
the serious nature of the remedial directive and its potential to place 
a financial burden on the carrier, we believe such a directive should 
be issued only after a broad operational examination and extensive 
record review inherent to the CR process. 72 FR 2373.
    A number of commenters criticized the use of CR results as the 
trigger for a remedial directive. Many contended the use of the CR was 
inappropriate because the SafeStat algorithm used as part of the 
process of selecting carriers for CRs does not reliably predict high-
risk carriers. These commenters believe other data, such as that 
received from roadside inspections, should be more fully utilized to 
determine which carriers receive CRs at the outset. In fact, SafeStat 
does incorporate motor carriers' roadside inspection outcomes, accident 
involvement, CR results, and enforcement history.
    We cannot agree with J.B. Hunt's assertion that our basic 
methodology for selecting carriers for CRs is flawed. The SafeStat 
program continues to be upgraded to address issues raised by the GAO 
and the OIG. According to OIG, ``FMCSA has made improvements in the 
data relied upon in SafeStat.'' (See letter from Calvin L. Scovel III, 
Inspector General, Department of Transportation, to the Honorable 
Thomas E. Petri, U.S. House of Representatives, June 19, 2007. http://www.oig.dot.gov/item.jsp?id=2072.) Moreover, a 2007 report from GAO, 
while suggesting improvements, nonetheless noted that SafeStat does a 
better job of identifying motor carriers that pose high crash risks 
than does a random selection. (See ``Motor Carrier Safety: A 
Statistical Approach Will Better Identify Commercial Carriers That Pose 
High Crash Risks Than Does the Current Federal Approach, U.S. 
Government Accountability Office,'' June 2007, http://www.gao.gov/new.items/d07585.pdf.) FMCSA likewise disagrees with the Advocates' 
comment that SafeStat does not include small motor carriers. To the 
contrary, SafeStat does not exclude carriers based on size, and the 
system currently reflects data on even 1- and 2-truck operators.
    As noted in our NPRM, we considered and rejected using only 
roadside inspection data for the remedial directives trigger because 
roadside inspections fail to measure carrier operations as 
comprehensively as CRs. Nevertheless, we acknowledge that far more 
roadside inspections are conducted compared to CRs, and they are a key 
and voluminous source of HOS compliance data. We will continue to use 
this valuable roadside data indirectly in the remedial directives 
selection process to inform SafeStat

[[Page 17218]]

selection rankings (72 FR at 2373 n. 5). Some commenters urged the 
Agency to use the Driver Safety Evaluation Area (SEA) component of 
SafeStat, which is based on roadside data, for a remedial directives 
trigger. The Driver SEA, however, combines both HOS and non-HOS 
violations, rendering its current use infeasible for a remedial 
directives trigger based exclusively on HOS violations. The Agency is 
actively exploring additional ways to tap into the enormous wealth of 
roadside data through its Comprehensive Safety Analysis (CSA) 2010 
initiative.\2\ In summary, CR findings will be the only direct basis to 
trigger a remedial directive under today's final rule. However, the 
follow-on rulemaking, discussed earlier, will explore this and other 
methodologies for determining whether a motor carrier would be required 
to install and use EOBRs.
---------------------------------------------------------------------------

    \2\ The goal of CSA 2010 is to develop and implement more 
effective and efficient ways for FMCSA, its State partners and 
industry to reduce commercial motor vehicle crashes, fatalities, and 
injuries. CSA 2010 will help FMCSA and its State partners contact 
more carriers and drivers, use improved data to better identify high 
risk carriers and drivers and apply a wider range of interventions 
to correct high risk behavior. See http://www.fmcsa.dot.gov/safety-security/csa2010/home.htm.
---------------------------------------------------------------------------

3.3 Implementation of Remedial Directives
    Maryland State Police commented the remedial directives concept 
will work only if there are follow-up actions for failure to comply 
with a directive. Report on Board stated the remedial directive would 
have no impact on problem drivers because police would not know which 
carriers are required to use an EOBR.
    Others described the challenges of measuring impacts. For instance, 
Boyle Transportation contended, any benefits gained could not be 
extrapolated to the population at large because only bad carriers would 
be included. Public Citizen declared the number of carriers affected by 
the EOBR requirement is too small a sample to make statistically 
significant statements about the effectiveness of the number of devices 
installed. Maryland SHA stated imposing the requirement should affect 
the carrier's safety fitness determination. They noted carriers' 
ratings are affected by crashes for which they are not at fault.
    J.B. Hunt, AMSA, and two individuals supported the two-year period 
for which a remedial directive would be required. These commenters 
generally did not provide detailed rationales for their support; 
however, generally, they deemed the two-year period adequate to enable 
carriers to come into compliance. AMSA also added that this period 
would allow for carriers to adopt management controls and corrective 
action. Advocates opposed the two-year period, since once the period 
expired carriers could remove the devices; consequently, carriers will 
view EOBR not as an asset, but as a punishment.
    Maryland SHA and Advocates stated the 60-day period (with a 
possible 60-day extension) to require EOBR installation once a remedial 
directive has been issued is too long. Carriers could continue unsafe 
practices during this period. Werner and an individual commenter 
thought the 60-day period was too short. Werner stated for all but the 
smallest carriers, the 60-day period would be used to locate a vendor, 
negotiate contracts, obtain delivery, route all trucks to the terminal 
for installation, and train the drivers. Some of these factors are 
beyond the carrier's control. Flexibility is needed to give more than 
60 days if the carrier is making a good faith effort to comply.
    Response: In response to the Maryland State Police's assertion that 
follow-up action is needed to enforce remedial directives, proof of 
compliance will be required (e.g., receipts), and FMCSA will 
disseminate information to enforcement personnel nationwide identifying 
which carriers are required to use EOBRs. Carriers who do not comply 
with a remedial directive will be ordered out of service. We believe 
the prospect of such an order will ensure compliance for carriers 
subject to a remedial directive.
    We appreciate that issuance of a remedial directive requiring 
installation of EOBRs for an entire fleet of CMVs within 60 days may 
place a serious burden on certain carriers. Consequently, we appreciate 
Werner's concern that some factors, such as picking a vendor, are 
sometimes beyond a carrier's control, and, therefore, flexibility is 
needed where a carrier is making a good faith effort to comply. We note 
that, as proposed, today's rule allows FMCSA to extend the period 
during which carriers subject to a remedial directive may operate 
without EOBRs for up to an additional 60 days where the Agency 
determines a carrier is making a good faith effort to comply with a 
remedial directive. As a result, while the Agency expects compliance 
within 60 days, some carriers may have up to 120 days, at the Agency's 
discretion. Passenger and hazmat carriers, however, are limited to a 
single, non-extendable 45-day period.
    We disagree with ATA's suggestion to provide a warning opportunity 
to allow for compliance improvements prior to issuing a remedial 
directive. Such improvements, in practice, are difficult to assess. For 
instance, would simply hiring a new safety officer be sufficient? Or 
would merely hiring a consultant for a short time period to conduct a 
``quick fix'' assessment of the situation be adequate? And how quickly 
would improvement need to be initiated and implemented, and for how 
long would it need to be sustained? These questions illustrate some of 
the challenges to the Agency of verifying if such mitigation measures 
are adopted and, if so, measuring their effectiveness at addressing the 
underlying safety concerns. Discovery of HOS threshold rate violations 
indicates a carrier has serious management control issues which need to 
be addressed promptly and decisively. If the Agency has made an 
erroneous finding, that finding can be challenged under the 
administrative review process proposed in the NPRM and finalized today.
    Because the 1 x 10 approach requires the finding of an HOS Appendix 
C threshold rate violation in only a single CR, the proposed notice of 
potential remedial directive applicability (NPRDA) is no longer 
necessary and thus is not included in this final rule. The 
administrative review procedures apply only upon issuance of a remedial 
directive. Otherwise, the administrative review process proposed in the 
NPRM is adopted without change in today's final rule.
    If a motor carrier believes the Agency committed an error in 
issuing a notice of remedial directive and proposed unfitness 
determination, the carrier may request administrative review under 
Sec.  385.817. Challenges to the notice of remedial directive and 
proposed unfitness determination should be brought within 15 days of 
the date of the notice of remedial directive. This timeframe will allow 
FMCSA to issue a written decision before the prohibitions in Sec.  
385.819 go into effect. The filing of a request for administrative 
review under Sec.  385.817 within 15 days of the notice of remedial 
directive will stay the finality of the proposed unfitness 
determination until the Agency rules on the request. Failure to 
petition the Agency within the 15-day period may prevent FMCSA from 
ruling on the request before the prohibitions go into effect. The 
carrier may still file a request for administrative review within 90 
days of the date of issuance of the notice of remedial directive and 
proposed unfitness determination, although if such request is not filed 
within the first 15 days, the Agency may not necessarily issue a final 
determination before the prohibitions go into effect. Challenges to

[[Page 17219]]

issuance of the remedial directive and proposed unfitness determination 
are limited to findings of error relating to the CR immediately 
preceding the notice of remedial directive.
    The final rule does not affect current procedures under Sec.  
385.15 for administrative review of proposed and final safety ratings 
issued in accordance with Sec.  385.11. The Agency is adopting non-
substantive revisions to Sec.  385.15(a), however, solely to correct 
two typographical errors.
    A motor carrier subject to a remedial directive will not be 
permitted to request a change to the remedial directive or proposed 
determination of unfitness based upon corrective actions. In contrast 
to Sec.  385.17, under which the Agency considers corrective actions 
taken in reviewing a carrier's request for a safety rating change, the 
only ``corrective action'' the Agency will take into account in 
conditionally rescinding a proposed unfitness determination under 
subpart J will be the carrier's installation of Sec.  395.16-compliant 
EOBRs and satisfaction of the other conditions of the remedial 
directive. The Agency takes this position due to the severity of the 
violations upon which the remedial directive is based, the need for 
certainty in remediation of the motor carrier's proven safety 
management deficiencies, the challenges of ongoing monitoring of 
corrective action, the likely added deterrent effect, and the Agency's 
desire to promote use of EOBRs in the motor carrier industry generally.
    The Agency may, nevertheless, consider a carrier's installation and 
use of EOBRs as relevant information that could, under certain 
circumstances, contribute to an improvement of a carrier's safety 
rating under Sec.  385.17(d). An upgraded safety rating based upon 
corrective action under Sec.  385.17 will have no effect, however, on 
an otherwise applicable remedial directive or proposed unfitness 
determination. As noted above, a carrier may be found unfit based on 
either failing to meet the safety rating component of the safety 
fitness standard under Sec. Sec.  385.5(a) and 385.9, or under Sec.  
385.5(b), by failing to install, use or maintain an EOBR, when subject 
to a remedial directive under Sec.  385.807.
    Appeal rights and administrative review, and the relationship 
between the modified fitness determination rule in Sec.  385.5 and the 
existing SFRM in Appendix B to part 385, were discussed at length in 
the NPRM. See 72 FR 2376-2378. Except for the elimination of the notice 
of potential remedial directive applicability, caused by the shift from 
a 2 x 10 to 1 x 10 trigger, the administrative review procedures in the 
final rule are unchanged from those in the proposed rule. The 
relationship between the safety fitness determination and the SFRM 
likewise is not modified by any changes made between the proposed and 
final rules.
    The Agency adds a new paragraph (e) to Sec.  385.13 to clarify that 
motor carriers receiving a final determination of unfit or a final 
unsatisfactory safety rating will receive notice that their motor 
carrier registration under 49 U.S.C. 13902 is being revoked.

4 Transition From an AOBRD to EOBR System

    Several commenters, including a motor carrier and two system 
providers, addressed potential challenges for motor carriers currently 
using AOBRDs and other automated HOS monitoring systems. They were 
concerned with how the compliance dates would affect their use of 
current AOBRD systems and expressed concern that the proposed EOBR 
regulation would prevent transferring proprietary systems to new trucks 
manufactured after the proposed compliance date.
    Commenters predicted the period of transitioning could adversely 
affect fleets' adoption of the new devices. For this reason, a provider 
suggested the phase-in period should be fleet-based rather than 
vehicle-based, and that ``breaks'' should be offered to early adopters 
of EOBRs.
    Response: It is not the Agency's intention to make AOBRDs obsolete 
or to require compliant motor carriers to replace their current systems 
of maintaining RODS. Only motor carriers that are subject to a remedial 
directive will be required to install, use, and maintain EOBRs--and 
those EOBRs will need to comply with the new performance requirements. 
Any carrier that voluntarily installs an EOBR after the compliance date 
must use a device that meets FMCSA's new requirements. Therefore, the 
Agency does not consider it appropriate or practical to institute a 
``fleet based'' compliance schedule for motor carriers that currently 
use AOBRDs and are not subject to a remedial directive. The Agency does 
not wish to penalize HOS-compliant motor carriers by setting an 
arbitrary phase-out date for AOBRDs.
    FMCSA is aware of many current systems with capabilities and 
features that exceed those required for AOBRDs and likely meet most if 
not all of the new EOBR requirements. Additionally, AOBRDs and EOBRs 
record the same key information and use the same duty-status codes, so 
FMCSA does not believe drivers or motor carriers will require a long 
transition period. In any event, FMCSA will monitor developments 
related to EOBR system availability associated with the implementation 
of this rule.

5 Privacy

    Numerous commenters expressed concerns about non-HOS uses of the 
data being collected by EOBRs. Some commenters suggested the rule have 
more restrictions on access to and use of the data. Some of these 
commenters (primarily carriers or carrier associations) said the rule 
should prohibit law enforcement from using the data for any purposes 
other than enforcing HOS rules, such as issuing speeding tickets. They 
also said agencies not involved in enforcing HOS should be denied 
access to EOBR data unless they obtain the consent of the carrier or 
driver. Werner Enterprises said the rule should clarify how long law 
enforcement agencies may retain EOBR data and whether the agencies may 
disclose the data to other parties. ATA, the Canadian Trucking 
Alliance, and AMSA suggested carriers are unlikely to voluntarily adopt 
EOBRs unless there are restrictions on the use of data for purposes 
other than enforcing HOS rules. ATA recommended statutory protections 
be provided to carriers pertaining to the control, ownership, and 
admissibility/discoverability of data generated and derived from EOBRs, 
and to assure the privacy rights of drivers.
    Some commenters expressed concern competitors would gain access to 
data recorded by EOBRs. One of them was also concerned shippers or 
receivers would start demanding real-time monitoring of shipments as 
part of any contract. Another commenter was concerned employers would 
use the data recorded by EOBRs to push drivers to drive when it may not 
be safe to do so.
    Some parties raised the concern that data recorded by an EOBR could 
be used in post-accident litigation. One commenter favored using EOBR 
data to investigate accidents involving tractor-trailers, including 
vehicle speed, braking, and steering for the last 30-60 seconds of 
vehicle travel. The Maryland SHA said only the following entities 
should have access to EOBR data for investigating tractor-trailers 
accidents: The Secretary of the U.S. Department of Transportation, 
FMCSA, the enforcement agency that investigates the crash, the carrier, 
and the driver or the driver's personal representative.
    Several commenters contended EOBRs would violate the privacy of 
drivers. Some of these commenters said

[[Page 17220]]

the proposed EOBR requirement would be unconstitutional in that use of 
EOBRs would violate the Fourth Amendment's prohibition against searches 
absent a warrant or probable cause. Company drivers employed by 
carriers with high HOS violation rates would find themselves subject to 
EOBR monitoring because of the actions of others, which would not 
satisfy a requirement of probable cause.
    OOIDA provided extensive comments asserting that required use of 
EOBRs would constitute an unconstitutional invasion of privacy as 
drivers have a legitimate expectation of privacy when they sleep, eat, 
and conduct personal business in their truck while not driving. OOIDA 
said despite FMCSA's assurances to the contrary, EOBRs would capture, 
store, and make available a variety of personal and proprietary 
information on drivers and carriers (e.g., routes, customer locations, 
etc.) not captured or not accessible through paper logs. The proposed 
rule would require EOBRs to capture the location and time of a truck in 
motion every minute. This information would be electronically 
transferable and capable of being stored for later retrieval. Because a 
driver can operate a truck for personal conveyance, the EOBR would 
record where the driver spends his private time. OOIDA asserted the 
contemplated use of EOBRs fails to meet the legal requirements for a 
warrantless search. Such constant electronic surveillance would amount 
to a search of the driver as defined by the Fourth Amendment. 
Therefore, the use of EOBRs implicates core privacy interests, 
including the right to privacy in personal information and in 
associations. OOIDA further asserted it is impossible to understand the 
full impact of the proposed EOBR rule on privacy without knowing more 
about the pending rulemaking on HOS supporting documents.
    OOIDA said the data captured by EOBRs is at far greater risk for 
dissemination and misuse than data recorded by log books. It said any 
data created by an EOBR that are collected by the government for 
investigation or enforcement or any other reason would be subject to 
requests under the Freedom of Information Act (FOIA) and could be 
available by request to anyone, including the general public. OOIDA 
said the U.S. Department of Transportation's Research and Innovative 
Technology Administration (RITA) Volpe Center's report 
(``Recommendations Regarding the Use of Electronic On-Board Recorders 
(EOBRs) for Reporting Hours of Service,'' September 26, 2005, available 
at http://www.regulations.gov, ID FMCSA-2004-18940-0351) agreed with 
this conclusion. A commenter said because data collected by Federal 
agencies are subject to FOIA, carriers should not have to report GPS 
location data. ATA asked FMCSA to work with the trucking industry to 
seek enactment of Federal statutory protections of EOBR data. ATA said 
Federal law should support and clarify that motor carriers are the 
owners of the data recorded by EOBRs and thus they should have 
exclusive control over the data.
    Response: This final rule does not change the Agency's treatment of 
HOS records concerning access, use and retention. FMCSA's predecessor 
agencies have had the authority to review drivers' and motor carriers' 
documents since 1937, when the first HOS regulations were promulgated 
(3 MCC 665, Dec. 29, 1937; 3 FR 7, Jan. 4, 1938). From the Motor 
Carrier Act of 1935 onward, Congress has recognized the Federal 
Government's interest in providing a higher level of safety oversight 
to CMV drivers. CMV driver licensing, driver's physical qualifications, 
training, and performance of driving and other safety sensitive duties 
are subject to Federal regulation. The Federal Government also requires 
records to document the results of various types of assessments (such 
as assessment of physical qualifications and controlled substances and 
alcohol testing) and compliance with regulations concerning CMV 
operations (such as RODS to document HOS).
    The HOS information recorded on EOBRs will be examined by Federal 
and State enforcement personnel when they conduct compliance reviews or 
roadside inspections. Motor carriers will not be required to upload 
this HOS information into Federal or State information system 
accessible to the public. Furthermore, enforcement agencies will 
request and retain copies of HOS information to document violations and 
will not disclose private personal or proprietary information.
    The final rule maintains current uses of HOS data to determine 
compliance with the HOS regulations. While we recognize the important 
privacy concerns raised by carriers and drivers, we believe this final 
rule carefully fulfills the Agency's need for accurate compliance data 
without creating any undue intrusion upon a CMV driver's privacy. The 
only information FMCSA is requiring EOBRs to collect is that 
information necessary to determine driver and motor carrier compliance 
with the HOS regulations. Consequently, FMCSA did not propose in the 
NPRM, nor will it require in the final rule, that EOBRs record data on 
vehicle speed, braking action, steering function, or other vehicle 
performance parameters necessary for accident reconstruction. Regarding 
the concern over potential use of EOBR data in post-crash litigation, 
this rule does not affect the rights of private litigants to seek 
discovery. Similarly, existing provisions governing FMCSA disclosure of 
motor carrier and driver information under FOIA are not affected by 
this rulemaking.
    The Agency understands some drivers view their off-duty time and 
related information pertaining to their CMV's location as being 
sensitive information. Although the Agency does not find a legitimate 
expectation of privacy in the public location of a commercial motor 
vehicle, it will require automatic recording of CMV location 
information only to the level of precision (State, county, and 
Populated Place) shown in the Geographic Names Information System 
(GNIS) maintained by the United States Geological Survey. FMCSA is also 
declining to require locational tracking more frequently than once 
every 60 minutes while the truck is in motion. The main reason 
enforcement personnel would need to determine a history of a CMV's 
location would be to verify the driver's HOS compliance. This can 
normally be accomplished by reference to the name of the nearest city, 
town, or village, without the precise geographic coordinates necessary 
to identify, for example, a particular restaurant where a driver 
stopped for a meal. This is the requirement today with AOBRDs, and it 
also will be required under new Sec.  395.16(f)(4). Except in the 
context of an investigation of a crash or a complaint of alleged FMCSR 
violations (when the Agency might inquire into off-duty time to learn 
if a driver was working for another motor carrier or performing other 
work during an alleged off-duty period), FMCSA generally does not 
inquire into a driver's off-duty activities. The Agency's interest in 
records of duty status that identify the date, time, and location at 
each change of duty status is based on its need to reconstruct the 
sequence of events for trips to determine compliance with the HOS 
regulations, including whether the driver was provided an off-duty 
period that could be used to obtain restorative sleep. If during this 
enforcement process FMCSA found evidence of vehicle activity during a 
claimed off-duty period, we would inquire further to establish the 
veracity of the RODS.
    Briefly described are new provisions previously proposed in the 
January 2007

[[Page 17221]]

NPRM regarding default status for EOBRs and audit trails. FMCSA will 
require the ``default'' status for an EOBR be on-duty not driving 
(ODND) when the vehicle is stationary (not moving and the engine is 
off) for 5 minutes or more. When the CMV is stationary and the driver 
is in a duty status other than the ODND default setting, the driver 
would need to enter the duty status manually on the EOBR. The 
performance requirements of Sec.  395.16 add a provision for 
automatically recording the location of the CMV. The Agency believes 
this requirement strikes an appropriate balance between improving the 
accuracy and reliability of ODND status information and off-duty 
information without intruding unnecessarily upon the privacy of the 
driver. Drivers would still be required to record the location of each 
change of duty status, as currently required under Sec. Sec.  395.8 and 
395.15. Finally, as stated in the NPRM (72 FR 2352), the Agency 
recognizes the need for a verifiable EOBR audit trail--a detailed set 
of records to verify time and physical location data for a particular 
CMV--must be counterbalanced by privacy considerations. See also the 
discussion on FMCSA's Privacy Impact Assessment under preamble section 
V. Rulemaking Analyses and Notices.
    We disagree with two assertions made by OOIDA based on the premise 
that ``any EOBR data collected by the Federal Government is subject to 
FOIA and may be available to any entity or the general public.'' 
OOIDA's statement is an overly simplistic interpretation of our 
responsibilities under FOIA and DOT regulations. See 49 CFR part 7. The 
Volpe Center statement relied upon by OOIDA is not the official legal 
opinion of FMCSA. The Agency rejects OOIDA's interpretation based on 
the two scenarios raised.
    First, FMCSA rejects the OOIDA argument that EOBRs will allow a 
competitor to obtain access to information that would be deemed 
proprietary, such as carrier routes. If the information was indeed 
proprietary, the information would be exempt from FOIA disclosure under 
5 U.S.C. 552(b)(4). Given that the Agency is only requiring EOBRs to 
collect locational data at each change of duty status and at intervals 
of no greater than 60 minutes while the CMV is in motion, and given 
that the locational data need only identify the nearest city, town, or 
village, the information gathered is not likely to be precise enough to 
allow routes or customers to be determined. It is also likely that 
competitors could, to some extent, discern motor carriers' routes by 
other means. No commenter has provided information demonstrating 
competitive harm--a showing mandated by FOIA--would occur from 
disclosure of EOBR data as proposed in the NPRM. In the absence of such 
a showing, the Agency has determined today's final rule, in conjunction 
with existing legal authorities, properly balances the need to 
safeguard proprietary information against the need to enforce safety 
statutes and regulations.
    Second, OOIDA alleges that FOIA could be used to obtain personal 
information, including truck location. As a preliminary matter, the 
Agency does not agree that the location of a CMV in a public place 
qualifies as ``personal information.'' Moreover, with respect to 
genuinely personal identifying information, FOIA's exception for 
personnel, medical and similar information at 5 U.S.C. 552(b)(6) 
severely restricts the Agency from disclosing such information. In 
response to past FOIA requests for driver RODS from a carrier, the 
Agency has redacted all information that would reveal the identity of 
an individual driver. The Agency need not, and will not, disclose the 
name of a driver when the sec. 552(b)(6) exemption allows the Agency to 
disclose the HOS records in a redacted form. The Agency has also denied 
FOIA requests seeking individual driving records in the Agency's 
possession. OOIDA's characterization does not accurately reflect 
applicable judicial standards for the disclosure or withholding of 
private personal information.
    We also disagree with OOIDA's claim that required use of EOBRs 
amounts to an illegal search under the Fourth Amendment. It is well-
established that the collection and inspection of documents and 
information pursuant to regulatory guidelines do not violate the Fourth 
Amendment. The data that compliant EOBRs will gather are comparable in 
most respects to the data already required on RODS. Further, there is 
no reasonable expectation of privacy in the location of a CMV, which 
can be monitored by the naked eye. The installation and use of the EOBR 
will also be known to the driver, and thus any expectation of privacy 
that might exist in the location of the CMV is significantly 
diminished.

6 Performance-Oriented Standards for EOBR Technology

6.1 Use of Detailed Design Specifications
    A number of commenters disagreed with FMCSA's approach of using 
performance oriented standards in the NPRM, and advocated using 
detailed design specifications instead. Three asked for prescriptive 
guidance on how EOBRs must record HOS for drivers who work for multiple 
carriers or who drive multiple CMVs. CMV manufacturer ITEC stressed the 
need for interoperability between EOBRs and the equipment used by law 
enforcement officials, including both hardware connections and software 
compatibility. Siemens criticized the proposed performance-based 
approach, advocating instead a ``single technical solution'' to account 
for HOS for drivers who operate more than one CMV during any given day. 
Siemens believes, based upon its experience with international 
requirements for HOS monitoring, that an EOBR system's technical 
concept should be ``tailored for the specific needs and goals of the 
region in which they are being considered.''
    Several other commenters, including XATA, SC&RA, and ATA expressed 
concerns with FMCSA's approach. They seek specific, uniform, and 
consistent EOBR requirements related to EOBR utility, reliability, 
tamper-resistance, accuracy, durability, and effectiveness. Because 
electronic equipment technologies and industry consensus standards and 
recommended practices evolve over time, they questioned whether FMCSA's 
regulation would provide sufficiently clear direction to suppliers and 
users of EOBR systems. ATA asserted motor carriers would not adopt 
EOBRs until their ``compliance'' was assured. Until that point, ATA 
believed motor carriers would not be able to accurately assess 
potential benefits and costs of EOBRs, and the potential for improving 
EOBR technology would be constrained. ATA recommended FMCSA publish an 
SNRPM to revise its proposed performance specifications.
    Siemens and PeopleNet expressed concern about a need for design 
specifications to promote implementation of EOBR data integrity 
requirements. Siemens focused on EOBR data integrity through 
operational and legal chains of custody. Although it did not elaborate 
on its reasoning, Siemens contended neither AOBRDs nor the proposed 
EOBRs would protect data from falsification and called on FMCSA to 
standardize file formats, download protocols, and user interfaces. 
Siemens also recommended FMCSA reference a ``defined'' [published] 
security standard such as the Common Criteria to define the level of 
tamper resistance.
    Response: As the commenters point out, information technology 
standards evolve over time; performance standards allow EOBR suppliers 
to implement

[[Page 17222]]

solutions that will improve users' ability to enter, review, and use 
data efficiently and effectively without constraining innovation or 
improvements.
    Responding to comments concerning prescriptive requirements to 
ensure data integrity during transfers, Appendix A to part 395 
addresses requirements for hardware, software, and communications 
related to transfer of data from an EOBR to a safety official's 
portable computer. As will be discussed later in this section, FMCSA 
has substantially revised these requirements in response to the 
comments on the NPRM.
    Responding to Siemens'comments about the necessity for a ``single 
technical solution'' for all EOBR applications, FMCSA disagrees. A full 
set of design specifications for hardware, software, and communications 
methods would impose unnecessary restrictions on the design of EOBRs 
and support systems, limit the ability to adopt emerging technologies, 
and constrain motor carriers with different operational characteristics 
from implementing EOBR applications. However, the data element 
dictionary will serve as a guide to developers of EOBR and support 
systems to foster the use of compatible data structures for the benefit 
of both motor carriers and safety oversight agencies.
    Responding to comments concerning cross-referencing European Union 
(EU) standards, FMCSA notes that the EU Council regulation No. 2135/98 
requires a ``driver card'' for recording and transferring HOS data. It 
does not include provisions for wireless data transfer. In contrast, 
many North American suppliers of AOBRD systems currently provide 
wireless data transfer capabilities between a CMV and the motor 
carrier's information management systems via satellite or cellular 
transmission. FMCSA does not agree that data transfer methods requiring 
the use of physically removable media should be mandated, because 
wireless data transfer (1) provides motor carriers considerably more 
flexibility to implement HOS and other motor carrier operational 
oversight systems, and (2) does not have an adverse effect on the 
quality and integrity of the HOS data.
    With respect to data integrity, although FMCSA is not requiring 
specific information technology structures, the Agency expects motor 
carriers and their EOBR system providers to use appropriate methods and 
procedures in the development, testing, and operation of HOS 
information systems to ensure data and information integrity. However, 
after reviewing the ``Common Criteria'' cited by Siemens, ``Common 
Criteria for Information Technology Security Evaluation,'' the Agency 
understands that these requirements were developed primarily for use 
with national security and defense communities and would go far beyond 
what is necessary for monitoring HOS compliance.
6.2 Information and Display Requirements
6.2.1 Information Content Requirements
    Several commenters objected to the proposed requirement for EOBRs 
to record information currently required by the HOS regulations, 
including shipping information, motor carrier name and USDOT Number, 
and a time and location entry at each change of duty status. One 
supplier contended an EOBR would need a ``full keyboard'' to enter this 
information. Seven commenters objected to the proposed requirement to 
include State line crossing information, questioning its relevance to 
HOS compliance assurance.
    Werner asked for clarification of the ``24-hour start time,'' 
because it believes the 24-hour period of the underlying HOS regulation 
is affected by the ``split break'' and would vary. Although it noted 
the ATA Technology and Maintenance Council's (TMC) Technical Policy 
Advisory (TPA) (collectively, TMC TPA) recommended the use of the four 
codes (i.e., OFF, SB, D, and ON), Werner asked for flexibility to allow 
use of other duty status codes. Conversely, Siemens held the four codes 
should be unique to avoid inconsistencies. ITEC asked if there was a 
potential inconsistency between the diagnostic event codes and the code 
words in Table 3, EOBR Diagnostic Event Codes.
    ITEC and a motor carrier asked for flexibility in coding of 
latitude and longitude values to allow software users to operate 
outside of North America. Werner stated its system calculates the name 
of the nearest city or town from latitude/longitude coordinates.
    Response: As noted earlier, this rulemaking updates and revises the 
requirements for use of technological methods to record HOS. It does 
not change the underlying HOS regulations. With the exception of the 
requirement to record CMV location hourly while the CMV is in motion, 
it does not change the basic requirements for documenting HOS-related 
information (such as motor carrier identification).
    FMCSA disagrees that an EOBR would need a ``full''--presumably a 
full-sized--keyboard. Some of the earliest AOBRDs did not have full 
keyboards, leading to the requirement in Sec.  395.15(d)(2) for a 
listing of location codes. Many contemporary devices have full 
keyboards (although the dimensions are considerably smaller than those 
used with desktop computers). Others use partial keypads or touch-
sensitive screens. Information such as the carrier name, USDOT Number, 
and shipping document references can also be entered automatically 
through centralized or administrative applications. These entries 
continue to be necessary to identify the motor carrier, CMV, and other 
information related to the transportation. EOBRs must accommodate 
recordkeeping for drivers who operate multiple CMVs, as AOBRDs are 
required to do.
    FMCSA agrees that display of State line crossing information is not 
necessary for HOS compliance assurance purposes and has removed the 
requirement from the rule. Collection of State line crossing 
information for fuel tax reporting purposes will continue to be 
optional, as in the current AOBRD rule.
    Responding to Werner's question about the start time for a 24-hour 
period, this regulation has not changed. Both Sec. Sec.  395.8(d) and 
395.15(c)(10) of the current rules allow the motor carrier to select 
the 24-hour period starting time.
    Responding to comments on duty status coding, the identifiers will 
remain ``driving'' or ``D,'' ``on-duty, not driving'' or ``ON,'' ``off-
duty'' or ``OFF,'' and ``sleeper berth'' or ``SB.'' This maintains 
consistency with current regulation and for the transition from AOBRDs 
to EOBRs. Also, a driver could enter explanations concerning duty 
status activities (such as a period of ON time spent loading a trailer 
or performing maintenance on a power unit) in the Remarks section.
    In response to ITEC's question about event codes, the labels for 
the event codes are 6 characters, but the codes themselves would be 2 
characters (bytes) in length.
    In response to the questions about latitude and longitude codes, 
the proposed rule was written with North American users in mind. FMCSA 
recognizes some CMVs may travel outside North America, and other 
nations might want to adapt the FMCSR requirement. In the interests of 
international harmonization, the final rule makes a nominal revision to 
the data dictionary to accommodate a field for east/west latitude (``E/
W'') and north/south longitude (``N/S''). EOBR and system suppliers may 
set these fields to default to ``N'' and ``E'' entries.
    As to the use of an algorithm to identify the nearest city, town, 
or

[[Page 17223]]

village, Question 3 of the Regulatory Guidance to Sec.  395.15 allows 
this. FMCSA intends to allow EOBR systems to use this method as well. 
The Regulatory Guidance is added as Sec.  395.16 (f)(4). However, the 
Agency has not accepted and will not accept only latitude-longitude 
codes as location records because they do not provide a safety official 
with a way to quickly determine a geographic location on a standard map 
or road atlas. (See Sec. Sec.  395.15(d) and 395.16(f)(2).) Although 
the provision for location codes in Sec.  395.16(f)(5) is specific to 
the United States, EOBR and system suppliers may augment their 
location-tracking capabilities to include locations outside the United 
States.
6.2.2 Driver Acknowledgement of HOS Limits Alerts Sec.  395.16(o)(4))
    Qualcomm and the TMC TPA oppose the proposal to require a driver to 
acknowledge warnings of HOS limits. The TMC TPA recommends the EOBR 
include configurable alert capabilities so a driver could receive 
several alerts before reaching the regulatory limits of HOS. Qualcomm 
stated it was unclear what would be required if the driver failed to 
acknowledge warnings. Werner was concerned about a conflict between the 
reporting time for position histories and the ability to record a 30-
minute warning. In contrast, Maryland SHA stated the warning should be 
recorded in the EOBR and made part of the driver's record.
    Response: The proposed ``response'' provision would have required 
the driver to interact with the EOBR while the CMV is in motion, and it 
is not part of the final rule. FMCSA does not believe it is appropriate 
to require the driver to interact with the EOBR while the vehicle is in 
motion. However, the requirement for the minimum, 30-minute alert 
remains in the final rule.
6.3 Duty Status Category When Vehicle Is Not Moving (Sec.  395.16(d))
6.3.1 EOBR Must Default to On-Duty/Not-Driving When Vehicle Is 
Stationary for 15 Minutes or More
    Werner and the Maryland State Police agreed with the proposed 15-
minute default to on-duty/not-driving (ODND). In contrast, Qualcomm and 
Siemens asserted the 15-minute period was too long and that the 
determination of driving/non-driving time should be more flexible and 
should also reflect motor carriers' operational practices in recording 
driving time. Siemens recommended switching to ODND whenever a CMV 
stops, contending that the interpretation of stops should be part of 
the compliance software, rather than the data record.
    Commenters suggested two distance thresholds for an EOBR to record 
a CMV in motion as ``D.'' Werner suggested a 2-mile threshold, while 
Qualcomm and the TMC TPA recommended a 1-mile threshold. For changing a 
default status from D to ODND, Werner recommended if a vehicle moves 
less than 1 mile, a 5-minute stop would reset the movement threshold. 
The ``driving stop'' situation should alert the driver of duty status 
change and allow the driver to override the default. For example, the 
duty status would remain D if the CMV were stopped in traffic or when 
the driver operated auxiliary vehicle functions while seated at the 
driving controls.
    Response: FMCSA agrees that a 15-minute period is too long. Section 
395.16(d) has been revised to require that an EOBR automatically record 
driving time, and the EOBR's entry must change to on-duty not driving 
when the CMV is stationary for 5 minutes or more. The driver must then 
enter the proper duty status. If the CMV is being used as a personal 
conveyance, the driver must affirmatively enter an annotation before 
the CMV begins to move.
    FMCSA agrees with the TMC TPA's interpretation concerning the entry 
of the time of a duty status change: it must be done when the change 
takes place.
6.3.2 Recording and Confirmation of On-Duty Not Driving and Driving 
Status
    Several commenters, including Werner, Qualcomm, ATA, the MTA, and 
the authors of the TMC TPA asked FMCSA to clarify how to record duty 
status information when the CMV is in motion, but the driver is not in 
a ``driving'' status. These situations include a maintenance technician 
repositioning a CMV in a motor carrier's yard and a driver using a CMV 
as a personal conveyance. Commenters also cited the draft TMC TPA's 
treatment of situations where a driver fails to log on to the EOBR, 
prompting the driver and continuing to record driving time if the 
driver ignores the prompt, and allowing a driver to confirm previous 
driving time, and generating a system error if a driver ignores 
prompts.
    Response: As is the case with AOBRDs, the driver would need to 
select and enter the proper duty status and make the appropriate entry 
in the ``Remarks'' section of the record. This rule does not change the 
way FMCSA defines ODND activities. In response to the questions 
concerning use of a CMV as a personal conveyance, FMCSA has revised 
Sec. Sec.  395.16(d)(1) and 395.16(h)(3). If a CMV is being used as a 
personal conveyance, the driver must affirmatively enter an annotation 
before the CMV begins to move.
6.3.3 Other Comments on Duty Status Defaults
    IBT, OOIDA, TCA and 23 other commenters stated that the need for 
manual entry of non-driving status creates the same potential for 
violations of the HOS rules as the present system. For many drivers, 
ODND time may account for a substantial proportion of their work 
schedules. Because drivers may receive less pay for hours ODND than for 
driving time--or no pay at all--they have an economic incentive to 
under-report the number of those hours. OOIDA contends if drivers were 
compensated for this time most deficiencies in drivers' recording their 
ODND time would disappear.
    Response: FMCSA is not aware of any devices currently available 
that would enable automatic recording of all categories of duty status, 
nor did any commenters suggest that such devices are available. Given 
concerns about personal privacy in general, we do not believe proposing 
the use of personal activity monitors for HOS compliance purposes would 
be appropriate. Despite the need to require the driver to manually 
enter some kinds of information, FMCSA believes the automatic recording 
of CMV location information will assist the Agency in investigating 
potential violations of part 395.
    As to drivers' compensation for ODND time, driver compensation is 
not within FMCSA's jurisdiction.
6.4 Malfunction Alert System
    Several commenters opposed the proposed requirement for an EOBR to 
provide an audible and visual signal when it ceases to function 
properly (Sec.  395.16(o)(6)). KonaWare, Qualcomm, TMC, Werner, and 
FedEx believe the requirement for a failure-alert system would add to 
the costs of an EOBR. Qualcomm expressed concern that driver alerts for 
minor interruptions in device operation, such as loss of mobile 
communications network coverage for very short periods of time should 
not be required while the CMV is being driven. Instead, Qualcomm 
believes they should be indicated only when the vehicle is stopped or 
if they affect required data capture, requiring the driver to enter 
remarks or amend a record.
    The TMC TPA and Qualcomm recommended FMCSA allow the driver to fill 
in missing data for non-critical sensor failure. The data would be 
``annotated'' as driver-added information, and a record of the sensor

[[Page 17224]]

failure would be included in the log data. ATA said more specificity 
was needed on driver reporting, carrier correction, and sensor 
failures.
    Response: FMCSA continues to believe it is necessary to require the 
malfunction alert system required for EOBRS in Sec.  395.16 remain 
essentially the same as that currently required for AOBRDs in Sec.  
395.15(i)(4). FMCSA agrees with the commenters that certain types of 
brief interruptions in operation should not be considered an ``EOBR 
device failure.'' In particular, the Agency acknowledges location 
information can be momentarily lost due to signal blockages, such as 
from bridges or geographic features. The Agency revises Sec.  395.16(o) 
to clarify subsystem and sensor failure alert.
6.5 Synchronization of EOBR to Vehicle (Sec.  395.16(e) and (g))
    Most commenters strongly disagreed with the proposal to allow EOBRs 
without integral synchronization with the vehicle. Vendor commenters 
XATA, Qualcomm, Tripmaster, Siemens, and PeopleNet, motor carriers 
Boyle Transportation, Fil-Mor Express, and J.B. Hunt, safety advocacy 
groups IIHS and Advocates, and CVSA and TMC provided extensive comments 
opposing the Agency's proposal to allow the use of EOBRs that are not 
synchronized with the CMV. Various commenters addressed both the need 
for integral synchronization and the inability of GPS technologies to 
provide driving time and CMV travel-distance information with 
sufficient accuracy.
    XATA commented that a duty status other than D is difficult to 
automate, so the D status must be as accurate as possible. A connection 
to the engine makes it possible to automatically enter the vehicle 
identification, so only the driver's identification must be entered 
manually. XATA suggested entering both items of identification manually 
increases opportunities for falsification and difficulty of auditing.
    Tripmaster was concerned non-synchronized EOBRs could not be 
designed to prevent tampering and manipulation. Tripmaster recommended 
synchronization include obtaining power from the vehicle, obtaining 
distance from vehicle-based sensors or networks, and ensuring the 
device could not be deactivated without visible signs of tampering. 
Tripmaster also believed FMCSA could generate more realistic 
performance standards for synchronized than for non-synchronized EOBRs. 
Tripmaster and the TMC TPA noted the inherent inaccuracies of GPS-based 
distance measurement (citing a University of Oregon study that found 
GPS-based distance accuracy to range from 75 percent to 94 percent of 
actual distance traveled). Tripmaster added that non-synchronized 
devices could provide location data from the driver carrying the device 
on his/her person, well beyond what is required to verify the accuracy 
of the RODS and that auditing the electronic RODS records for non-
synchronized EOBRs would be problematic, particularly if there would be 
no supporting documents to verify driving time.
    IIHS and Advocates stated FMCSA failed to provide evidence the non-
synchronized EOBRs can provide secure and accurate records, be made 
tamper-resistant, or ensure records will be related to a unique truck, 
driver, and carrier. Advocates was particularly concerned FMCSA's 
proposed approach would eliminate the Agency's ability to assess the 
design and operational integrity of EOBRs.
    With respect to use of GPS technologies substituting for integral 
synchronization, Qualcomm, ITEC, and other commenters cited problems 
associated with losing the GPS signal. GPS technology suffers from 
``canyon effect'' in urban areas, where tall buildings and tunnels can 
block the communications pathways to the GPS satellites, and even 
relying on GPS signals for distance traveled on a minute-by-minute 
basis may not achieve the accuracy FMCSA desired in the NPRM. 
Furthermore, the straight line point-to-point distances computed 
between recording intervals is less than actual travel distances over 
curved segments of highway. For this reason, Boyle Transportation 
favored a requirement for EOBRs to have GPS capability and to be 
synchronized to the engine, to improve both tamper-resistance and the 
ability to calibrate the device.
    A number of commenters stated non-synchronized systems would be 
vulnerable to tampering and manipulation. Tripmaster, J.B. Hunt, and 
PeopleNet noted non-tethered devices can be turned on and off or 
removed from the vehicle and left behind, leading to falsification of 
travel distance and duty status information. J.B. Hunt, Tripmaster, 
PeopleNet and the TMC TPA noted physically blocking a GPS receiver's 
antenna (such as by covering it with aluminum foil) was completely 
effective in blocking the signal, and the signal could be corrupted by 
a noisy radio frequency (RF) transmitter. Siemens added that 
unsynchronized EOBRs would be useless for enforcement if used by 
drivers willing to cheat because their data integrity would be no 
better than with manual RODS. Additionally, safety officials would not 
have an enhanced tool to detect falsification; and, if EOBRs were to be 
mandated only in the context of a remedial action, this flaw would be 
magnified. Siemens added that there is no way to prevent interruption 
of signal availability (for example, in tunnels or when the driver 
turns it off purposefully).
    Only a few commenters supported the proposal to allow non-
integrally- synchronized EOBRs. Verigo described its PDA-based 
electronic logbook and questioned the justification for a more complex 
system. Xora supported non-integrally synchronized EOBRs on the basis 
of their lower costs and potential wider adoption. ATA stated it would 
support unsynchronized EOBRs only if: (1) Effective controls could be 
developed to prevent or minimize system weakness, especially deliberate 
blockage or loss of data; or (2) sufficiently severe penalties could 
deter these violations. CVSA believed untethered EOBRs might be 
possible in the future.
    Response: After considering the comments on this issue, FMCSA 
decided to require EOBRs to be integrally synchronized with the CMV in 
which it is installed. This parallels the current requirement for 
AOBRDs in Sec.  395.15. The definition of an ``integrally 
synchronized'' device in the final rule is as proposed in the January 
2007 NPRM. The current definition of AOBRD in Sec.  395.2 calls for the 
device to be ``integrally synchronized with specific operations of the 
commercial motor vehicle in which it is installed.'' It implicitly 
defines synchronization through a performance-based requirement: ``At a 
minimum, the device must record engine use, road speed, miles driven, 
the date, and time of day.'' The final rule is explicit in its 
definition: an integrally-synchronized AOBRD or EOBR must receive and 
record the engine use status for the purpose of deriving on-duty 
driving status from a source or sources internal to the CMV.
    The NPRM based the proposed use of non-synchronized devices upon 
the assumed accuracy of those devices to measure the distance traveled 
by a CMV. After reviewing the comments that questioned those 
assumptions, FMCSA decided it would be prudent to conduct a limited 
field test of several of these devices. The Agency entered into an 
interagency agreement with the Volpe Center to perform this work. The 
results of this effort are documented in the report, ``Evaluation of 
the Accuracy and Reliability of GPS-Based Methods for Measuring Vehicle 
Driving

[[Page 17225]]

Distance,'' which has been placed in the docket for this rulemaking.
    The study assessed the performance of commercial off-the-shelf GPS 
receivers using various types of antennas and antenna mount 
configurations and waypoint time intervals (that is, time intervals 
during the trips) of 10, 30, 60, and 120 seconds. The vehicles' 
odometers were calibrated on a certified course and the GPS-derived 
measurements were compared to those corrected odometer readings. The 
accuracy for vehicle driving distance measurements made within this 
study ranged from 1.9 percent to 10.6 percent less than actual baseline 
driving distance. In light of this significant level of inaccuracy, 
FMCSA concluded that the integral synchronization requirement should 
remain.
6.6 Accuracy and Frequency of Data Recorded by EOBRs
6.6.1 Rounding
    ATA and Werner stated the rule should not place a motor carrier 
that elects to use EOBRs at a disadvantage over those that do not. One 
specific issue was that of ``rounding'' information recorded on paper 
RODS to the nearest 15 minutes. ATA offered an example of a driver 
beginning to drive at 6:55 a.m. after a 10-hour off-duty period. If the 
driver used a paper RODS the time would be entered as ``7:00 a.m.,'' 
and the driver would be in compliance with the HOS regulations. 
However, if ``6:55 a.m.'' appeared on the RODS the driver would be in 
violation.
    Response: In the situation these commenters describe, there is an 
inherent advantage for the use of handwritten RODS. The 15-minute grid 
on the RODS allows for flexibility in estimating start and stop times 
(i.e., changes in duty status). Question 1 of the Regulatory Guidance 
for Sec.  395.8 [available through http://www.fmcsa.dot.gov] states 
that short periods of time (less than 15 minutes) are to be noted in 
the Remarks section of the RODS. By contrast, a driver using an EOBR 
(or an AOBRD) could be cited for any time period over or under the 
prescribed requirements. However, FMCSA believes such small differences 
are not likely under most circumstances to warrant enforcement action, 
particularly when they are few and isolated.
6.6.2 Location Information, General
    Two commenters addressed the precision of location information. 
KonaWare recommended a location precision only to the level of the 
nearest city, with latitude-longitude data included in the detailed 
record to complement it. Qualcomm questioned the meaning of the phrase, 
``correspond to Census Bureau 2000 Gazetteer County Subdivision data,'' 
and whether that referenced source is the most current.
    FedEx stated the Census Bureau 2000 Gazetteer ``County 
Subdivision'' data did not correspond to actual city names that would 
make sense to a person viewing the location. FedEx held the 
requirements in Sec.  395.15(d)(1) give a person enough information to 
determine the location of status changes (i.e., city, town, or village, 
with State abbreviation).
    Response: FMCSA proposed to include latitude and longitude in the 
Data Elements Dictionary. The Agency proposed ``nearest populated 
place'' per Federal Information Processing Standard Publication 55 
(FIPS 55) because ``city'' has a specific meaning under some States' 
laws: in some jurisdictions, there are many populated places in FIPS 55 
that are not ``cities.'' In response to Qualcomm's question, the County 
Subdivision information is contained in FIPS 55. The FIPS 55 data set 
has been integrated into the U.S. Geological Survey's Geographic Names 
Information System (GNIS), and all references to that source in the 
final rule will reflect this change.
6.6.3 Frequency of Recording Location Information (Sec.  395.16(f))
    Many commenters believed the proposed 1 minute update interval was 
excessive and unwarranted. PeopleNet, XATA, Boyle Transportation, 
FedEx, and several others were concerned the size of the resulting 
dataset would lead to significantly higher onboard data storage and 
data transfer costs. Qualcomm, ATA, and others indicated such a 
frequent recording interval should not be required when the CMV's 
motion and mileage are determined through a synchronized, tamper-
resistant interface with vehicle sensors.
    The TMC TPA stated minute-by-minute location history should be 
required only for purposes of auditing GPS-based mileage accuracy of a 
non-synchronized EOBR. Also, XATA contended that the requirement for 
location recording frequency should take into consideration whether or 
not EOBR synchronization would be required.
    ITEC recommended a recording interval of no less than every 5 
minutes, citing reduced onboard storage, as well as data transmission 
and costs, both from CMV office and CMV roadside inspector's computers. 
PeopleNet suggested a 5- or 15-minute interval might be sufficient so 
long as accurate mileage information were recorded from the CMV's 
electronic control module (ECM). FedEx recommended a 75-minute interval 
for sending data to the host (back office) and a 15-minute location 
record. CVSA supported the 1-minute interval and plus or minus 1 
percent accuracy. DriverTech also supported the 1-minute interval.
    Some commenters, including ATA, Tripmaster, and J.B. Hunt, 
recommended FMCSA retain the current requirement to record the CMV 
location only at each change of duty status. Werner cited its practice 
of receiving hourly updates of CMV position.
    Response: FMCSA acknowledges the commenters' concerns about the 
proposed 1-minute recording interval. The final rule requires location 
and time to be recorded at an interval of no greater than 60 minutes 
while the vehicle is in motion. The reason for selecting an appropriate 
location-recording interval is to ensure travel distance and the 
associated driving time are recorded and reported at a level of 
accuracy appropriate to ensure HOS compliance. Based on the information 
provided by commenters and the Agency's decision to continue to require 
that on-board recorders be integrally synchronized, the Agency believes 
the new requirement achieves an appropriate balance between accuracy 
and affordability.
    As discussed in the NPRM and in the preamble of this final rule, 
the Agency expects the addition of the requirement to automatically 
record location information will significantly improve the accuracy of 
driving time information.
6.6.4 Clock Drift
    Qualcomm recommended several revisions to the proposed 
requirements, including a requirement for the clock drift tolerance for 
systems with or without mobile communications to not exceed 3 minutes 
at any time. These systems should be calibrated at least every 3 
months. For systems without mobile communications, vehicle system 
clocks should be calibrated at least 3 times per year against an 
external trusted source. Motor carriers should maintain records of all 
clock recalibrations, including the degree of adjustment.
    ATA stated the clock accuracy requirement should be realistic and 
the regulation needs to address how clock accuracy is managed. ATA 
cited the TMC TPA and its discussion of the Technology and Maintenance 
Council's Recommended Practice 1219(T) (TMC

[[Page 17226]]

RP 1219(T)). TMC RP 1219(T) recommends that clock drift be checked 
periodically. EOBRs with mobile communications and/or GPS may 
recalibrate, or use calibrated network or GPS time, on a continuous 
basis. Clock resets and recalibration adjustments should be made only 
by a trained technician. Adjustments that exceed the allowable 
threshold should be entered into the EOBR's maintenance record.
    Werner asserted a requirement for clock accuracy would provide no 
significant benefit to the system. Werner cited questions raised in the 
TMC TPA, particularly the proposed 2 second per day time drift. Siemens 
stated the clock requirement is achievable, but will require a periodic 
synchronization with a trusted time reference. Tripmaster recommended 
FMCSA consider a requirement for clock time drift of less than 1 minute 
per month and that it be checked every 3 months.
    The TMC TPA also provided specific recommendations for 
recalibration of EOBR clocks: (1) Clock drift should not exceed 1 
minute with calibration required at least every 3 months; (2) clocks 
determined to drift more than an average of 1 minute per month must be 
repaired or replaced; (3) EOBRs with mobile communications and/or GPS 
should recalibrate or use calibrated network or GPS time on a 
continuous basis; (4) clock resets and recalibration adjustments 
(exceeding the allowable threshold) should be maintained with carrier 
records and should be made only by a trained technician.
    Response: Section 395.16(e)(2) of the proposed rule addressed date 
and time information that could not be altered by a motor carrier or a 
driver. FMCSA is not specifying a maximum daily time drift in the final 
rule. However, Sec.  395.16(e)(4) provides that the time deviation must 
not exceed 10 minutes from Coordinated Universal Time (UTC) at any 
time.
6.6.5 Distance-Traveled Accuracy (Sec.  395.16(g))
    Several commenters expressed concern with the NPRM's proposal for 
accuracy of CMV distance travel: non-synchronized EOBRs, which obtain 
distance-traveled information from a source external to the CMV, must 
be accurate within 1 percent of actual distance traveled over a 24-hour 
period. Most comments centered on the difference between the proposed 
requirement in the NPRM for EOBRs and industry consensus standards for 
odometers. Qualcomm, ITEC, Xora, Tripmaster, and Siemens expressed 
concern that the NPRM's provisions did not align with the state-of-the-
practice. They cited SAE J1226, ``Surface Vehicle Recommended Practice: 
Electronic Speedometer Specification--On Road.'' Section 5.1 of that 
document, Overall Design Variation, states the overall odometer 
accuracy ``shall be within minus 4 percent to plus 4 percent for each 
actual unit of distance of travel over the operating range of the 
instrument. The design limits should not, however, be construed as 
absolute under all operating conditions.'' Thus, according to Qualcomm, 
the best-case scenario for a non-synchronized EOBR would be a plus or 
minus 5 percent error in the mileage calculation. In short, for systems 
capturing mileage from the vehicle ECM odometer, Qualcomm recommended 
the odometer should be maintained consistent with the vehicle 
manufacturer's specification for odometer recalibration.
    Qualcomm and other commenters recommended FMCSA reference SAE J1708 
(``Serial Data Communications Between Microcomputer Systems in Heavy-
Duty Vehicle Applications'') for communications with the vehicle data 
bus. Qualcomm also stated the requirements of Sec.  395.16 should 
address conditions where location history data are incomplete due to 
limitations in obtaining satellite fixes and should specify when a 
driver should record HOS information in a paper RODS. ATA and Werner 
offered similar concerns. ATA stated odometer accuracy is outside the 
control of the EOBR supplier and excessive calibration requirements 
would be operationally problematic and costly.
    ITEC and several other commenters noted, although recording to 
within 1 percent of the odometer is reasonable, the overall accuracy 
for distance data should be 5 percent because an absolute accuracy of 
plus or minus 1 percent of the actual distance may not always be 
achievable. A key reason is that the rolling radius of the vehicle's 
drive axle tires changes with ambient temperature, inflation pressure, 
load, and tire wear, and these changes can exceed 1 percent. An 
odometer is calibrated using the tire manufacturer's recommended 
revolutions per mile, and the vehicle owner must maintain this rolling 
radius when the vehicle's tires change from replacement, recapping, or 
regrooving.
    Response: In Sec.  395.16(g)(3), the Agency requires the distance-
traveled information recorded by the EOBR should not be less accurate 
than the information obtained from the CMV's odometer.
    Because FMCSA will allow only integrally synchronized EOBRs, the 
proposed rule text concerning distance-traveled information from a 
source external to the CMV, is not included in the final rule.
    Responding to the request to formally reference SAE J1708, we do 
not believe this is necessary because it is one of several engineering 
consensus standards that address on-vehicle communications networks 
that can provide engine use status. The Agency does not wish to 
preclude the use of other standards, existing or in development.
    Concerning commenters' references to SAE J1226, FMCSA notes that 
this Recommended Practice also refers users to SAE J862, ``Factors 
Affecting Accuracy of Mechanically Driven Automotive Speedometer-
Odometers.'' Among other things, this document describes nine factors 
that can affect odometer readings, four of which relate to tires.
6.7 Review and Amendment of Records by Drivers (Sec.  395.16(h))
6.7.1 Driver Amendments of EOBR RODS.
    Qualcomm recommended the regulations be more flexible to allow 
driver annotations of the records, to the same degree it is possible 
with paper RODS, to include annotating yard moves to reposition CMVs, 
as well as noting driving time in stop-and-go traffic. Qualcomm also 
asserted that driving status information automatically generated should 
not be subject to alteration, but a driver should be able to ``claim'' 
driving time if he or she neglected to log-on. Qualcomm recommended 
drivers should also be allowed to review and accept or reject any 
administrative amendments, and administrative staff be required to 
reconcile and assign all driving (vehicle movement) periods with 
drivers. Both drivers and administrative personnel should be able to 
annotate and reconcile manual data entries such as tractor and trailer 
numbers.
    Werner sought clarification of the term ``annotation,'' arguing the 
driver should be able to amend non-driving status periods at any time 
and should be able to request authorized administrative personnel to 
amend driving time entries, but disagreed that correction of 
typographical errors should generate an audit trail. The system should 
keep a digital record or other evidence showing any amendments made 
after the driving records were approved by the driver and identifying 
the amendments by time, date, personnel involved, and the reason for 
the amendment. Werner objected to limiting the driver to making 
corrections to the RODS only before the first driving period of the day 
or following the last

[[Page 17227]]

period of the day, because it would place an unnecessary burden on the 
driver and force a driver who has made an error to drive the rest of 
the day with incorrect records. According to Werner, driver acceptance 
of the technology is critical to its use in the industry, and every 
reasonable effort should be made to keep the systems forgiving and 
driver friendly. DriverTech stated allowances need to be made for 
legitimate truck moves.
    DriverTech stated there needs to be a reasonableness factor to 
correct honest mistakes and suggested a limit of one duty status 
correction per 24 hours. The TMC TPA stated that the data capture and 
data integrity requirements proposed in the NPRM needed better 
definition and improved usability. For example, they recommended that 
for the most common cases, the driver and administrative records 
amendment process needs to be more thoroughly defined and practical to 
ensure drivers submit complete and accurate electronic logs. The 
process of making and reviewing amendments made by administrative 
personnel needs to address more specific situations. TMC RP 1219(T)), 
currently under development by the ATA Technology and Maintenance 
Council S. 12 Onboard Vehicle Electronics Study Group, outlines a 
recommended process that it believes better ensures data accuracy and 
accountability. Automated recording of duty status changes and 
effective recording of overrides need more specificity to address yard 
moves and stopped-in-traffic scenarios. RP 1219(T) recommended 
amendments be limited to eight specific items.
    Response: In Sec.  395.16(h)(3), FMCSA selected the term 
``annotate'' rather than ``amend.'' Annotating a record implies adding 
information, generally for the purpose of clarifying it. Amending a 
record implies changing it. An EOBR must automatically record driving 
time (Sec.  395.16(d)(1)) so there should be no need for a driver to 
request designated administrative personnel to amend a driving record. 
Section 395.16(h)(3) has been revised to include use of a CMV as a 
personal conveyance. It requires the driver to annotate the 
corresponding driving time entry to reflect such use.
    As discussed earlier, Sec.  395.16(d)(1) requires the EOBR to 
automatically record driving time. Altering driving time records is 
prohibited. However, remarks may be added to annotate the record. 
Section 395.16(h)(3) has been revised to address this.
6.7.2 Other Comments on Driver Interaction With EOBRs
    Several commenters offered recommendations about driver interaction 
with EOBRs. Several commenters offered recommendations about driver 
interaction with EOBRs. For example, when team drivers use a CMV 
equipped with an EOBR, they suggested the non-driving team member be 
allowed to make entries in the EOBR while the CMV is moving. Others 
suggested a method for the driver to override pre-programmed duty 
status change thresholds (such as between driving and on duty). Still 
others recommended FMCSA consider adding distance and time thresholds 
for ``yard moves'' and for ``non-allocated driving time.''
    Werner stated there had been little consideration or analysis of 
driver acceptance. The ideal system should take into account the need 
for driver training and the differing levels of technical 
sophistication.
    Response: This rule does not alter the treatment of the duty status 
of team drivers. The final rule allows annotations of the EOBR's 
electronic RODS. Whether an annotation is characterized as an 
``override'' or by another term, the annotation must add information to 
the HOS record--it must not overwrite or delete information. Because of 
the enormous variations in motor carriers' individual policies and 
practices, FMCSA does not believe it would be appropriate to establish 
a single uniform threshold for non-allocated driving time.
    Today's rule, like the 1988 AOBRD rule, is performance-based and 
anticipates developers of EOBRs will work with their motor carrier 
clients to ensure the devices are appropriately designed and 
configured. Motor carriers must ensure drivers are trained to use the 
new EOBRs properly.
6.8 Safety Officials' Access to HOS Information
6.8.1 EOBR Must Be Capable of Producing Duty Status Records for the 
Current Day and the Previous 7 Days (Sec.  395.16(k))
    Werner asked if an EOBR needed to retain 7 days of RODS in the 
device itself, or if the information could be stored on a server. 
Werner also asked for clarification on provisions for safeguarding and 
retention of transferred data to portable computers used by roadside 
inspection officials.
    Response: RODS data need not be stored on the EOBR. Section 
395.16(k)(1) allows use of ``information stored in and retrievable from 
the EOBR or motor carrier support system records.'' As is the case in 
the current AOBRD rule, Sec.  395.15(b)(4), HOS data must consist of 
information ``stored in and retrievable from'' the device. As for 
enforcement officials' duties regarding safeguarding and retention of 
information is concerned, the HOS information they obtain from (or via) 
EOBRs must be handled and safeguarded in the same way as other records 
obtained during the conduct of enforcement activities. (See preamble 
section IV. Discussion of Comments to the NPRM; 5. Privacy, Agency 
response.)
6.8.2 EOBR Must Be Able To Produce, Upon Demand, a Driver's HOS Chart 
Using a Graph-Grid Format in Either Electronic or Printed Form (Sec.  
395.16(i) and (n))
    CVSA supported the use of a graph-grid format. However, numerous 
commenters, including Qualcomm, Tripmaster, the TMC TPA, Werner, and 
ATA questioned the need for the EOBR device itself to produce the 
graph-grid format.
    Qualcomm, Tripmaster, and ATA believed the display requirements 
should be limited to specific information (such as driver information 
and the sequence of changes of duty status) in the vehicle, and other 
data should be made available by electronic data transfer or reports 
from a motor carrier's office system. Werner, XATA, and the TMC TPA 
suggested, other than placing HOS information in a familiar format, 
there is no real reason for an EOBR to display data in a graph-grid 
format they believe computers used by roadside safety personnel should 
be able to handle this task. The Maryland SHA offered a similar 
comment. Conversely, ITEC stated it did not believe the data format 
provided in Appendix A, Table 1, could be used to produce a graph-grid.
    Qualcomm and ATA noted many legacy systems and devices could 
potentially meet proposed EOBR requirements, save two: the proposed 
display requirements and the viewable-outside-the-cab requirement. The 
latter is a concern because many new devices are dashboard-mounted. 
Because the format specification does not address requirements for 
display size, character resolution, scrolling, and navigation, they 
question how usable the display would be.
    A motor carrier questioned whether EOBRs could produce the required 
HOS information, and another contended FMCSA did not offer a 
standardized method for retrieving EOBR recorded data because not all 
agencies will have

[[Page 17228]]

the proper equipment to access a driver's logs.
    A few commenters offered alternatives, such as using an integrated 
printer with the EOBR rather than a mobile display. One asked how an 
alternative display format would be approved.
    The Maryland SHA stated the requirement that the data be displayed 
in ``either electronic or printed form'' presents problems. If the EOBR 
provides the HOS information in electronic format only, the officer 
will have no substantive evidence or paper copy for court purposes, 
which will hamper adjudication processes. Maryland SHA urged FMCSA to 
assess how these changes will impact roadside enforcement activities, 
as not all enforcement officers have laptop computers from which to 
receive or review HOS data retrieved from an EOBR.
    Response: The provision at Sec.  395.16(i)(2) would allow 
electronic transmission of an EOBR-generated RODS for display on 
another device, such as a PDA or portable computer used by a safety 
official at a roadside inspection. FMCSA amends paragraph (i)(2) and 
subsection (n) to clarify the requirement for the EOBR to enable RODS 
data to be transferred to an enforcement official's PDA or portable 
computer. The Agency also revises the rule text to remove the proposed 
design requirement to display the graph-grid on the EOBR device.
    The Agency also clarifies that data transfer methods discussed in 
the NPRM and adopted in this final rule are meant to facilitate a one-
way transfer of data from the EOBR to the enforcement official's 
computer and not the reverse. Several commenters appeared to interpret 
this provision as a requirement for EOBRs to be able to interact with 
each other, and for any EOBRs to be able to interact with any office 
support systems. FMCSA leaves the decisions on whether to provide this 
level of interoperability to EOBR system providers. Rather, the 
proposed specifications were developed based on the assumption the 
Agency would provide the software capable of: (1) Initiating the data 
transfer, (2) transforming the EOBR-generated standard flat file into 
the desired graphical output on enforcement officials' electronic 
equipment (i.e., computer, PDA, etc.), and (3) determining whether the 
RODS information was in compliance with 49 CFR part 395.
    EOBR system suppliers and motor carriers would not need to 
determine how to achieve interoperability with enforcement officials' 
various types of equipment and software. Under the Motor Carrier Safety 
Assistance Program (MCSAP), enforcement officials operate FMCSA-
approved hardware with inspection software compatible with FMCSA 
systems to conduct roadside inspections. The proposed data format and 
transmission protocols have been tested to work with enforcement 
officials' tools. This was the rationale for proposing the EOBR make 
data available in a flat file format, the simplest of formats (as 
opposed to requiring a specific hierarchical or relational database 
form), and for setting forth specific communications protocols.
    The same would apply to information generated by the motor 
carrier's office systems. The safety investigator uses FMCSA-approved 
equipment and FMCSA-issued software to conduct the compliance review at 
the motor carrier's place of business. Systems capable of producing the 
flat file delineated in Appendix A to part 395, Table 2, would be fully 
compatible with the compliance review software, and they would meet 
Agency requirements under the new Sec.  395.16(i).
    Responding to the SHA, FMCSA will require EOBRs display the 
driver's duty status sequence, as is currently required for AOBRDs. The 
Agency will also require drivers' HOS records be made available in 
digital form to inspection officials.
6.8.3 EOBR Must Be Able To Produce Upon Demand a Digital File of the 
Driver's HOS (Sec.  395.16(i)(2))
    The TMC TPA stated security of digital EOBR data needs to be 
considered, citing security threats external to the EOBR in the data 
transfer process. Xora supported an EOBR that could obtain HOS 
information from a centralized server, and one that could be physically 
handed to roadside inspection officials. Werner asked FMCSA to define 
``immediately'' in the context of an inspection. It noted a driver will 
need the opportunity to verify the recently created logs for accuracy. 
If the system maintains the log data off the truck for some or all of 
the period being checked, a reasonable delay may be incurred in sending 
the data to the truck in some form.
    Response: Motor carriers and their EOBR system providers must use 
appropriate methods and procedures in the development, testing, and 
operation of HOS information systems to ensure data and information 
integrity. Rather than specifying testing and assessment procedures, 
the Agency again focuses on performance requirements for the EOBR user. 
Under new Sec.  395.16(o)(2), the EOBR and associated support systems 
must not permit alteration or erasure of the original information 
collected concerning the driver's hours of service, or alteration of 
the source data streams used to provide that information, and under 
Sec.  395.16(p)(1), the motor carrier must not permit or require 
alteration or erasure of the original information collected concerning 
the driver's hours of service, the source data streams used to provide 
that information, or information contained in its EOBR support systems 
that use the original information and source data streams.
    As to defining ``immediately,'' FMCSA requires CMV drivers to 
maintain their EOBR records current to the last change in duty status 
and encourages safety officials to exercise reasonable discretion in 
allowing the drivers sufficient time to access the HOS records from the 
EOBR, or from the motor carrier's support system.
6.8.4 Information Must Be Accessible to Safety Assurance Officials 
Without Requiring Them To Enter In or Upon the CMV (Sec.  395.16(i)(4))
    CVSA supported the requirement that information displayed on the 
EOBR be accessible to safety assurance officials without requiring the 
officials to enter in or upon the CMV. However, one driver stated 
moving the EOBR in and out of the truck would lead to electronic 
problems. He suggested using a cable to connect it to a computer.
    Response: FMCSA agrees with CVSA. The final rule will retain the 
proposed requirement that information displayed on the EOBR be made 
accessible to safety assurance officials without requiring them to 
enter in or upon the CMV. It will not be necessary to physically remove 
an EOBR from its mounting in a CMV cab. The enforcement official will 
provide a cable to the driver to plug into the EOBR, or request the 
driver initiate a wireless transfer of the RODS data to the officer's 
portable computer.
6.8.5 Electronic Records Must Be Transferable to Portable Computers in 
the Specified Format (Sec.  395.16(i)(6))
    A number of commenters provided comments related to the need for 
safety officials to obtain digital records from EOBRs to conduct 
roadside inspections. CVSA held EOBRs should use standardized data 
formats and have a standardized interface for law enforcement so that 
training, compliance evaluation, and monitoring are effective and 
simplified. CVSA stated it would be better to equip

[[Page 17229]]

inspectors to print the record, which they will need as evidence.
    Regarding security encryption, data security, and how these 
interact with enforcement roadside computers, the SHA commented that 
not all MCSAP agencies' safety inspection officials have laptop 
computers in their patrol vehicles and or wireless platform 
capabilities from the patrol vehicle.
    Ohio PUC stressed the need for technological solutions to improve 
inspection officials' ability to read and interpret electronic HOS 
records. The MTA and OOIDA also stressed the need for training these 
officials in the use of EOBRs and interpretation of HOS data.
    CVSA stated electronic records must adhere to common, uniform, and 
strict standards so inspection officials can read the data on laptops 
or handheld computers. However, CVSA had concerns with the possibility 
of these files introducing a virus or otherwise damaging the inspection 
official's operating system or software.
    Qualcomm stated the use of XML or other file formats should be 
considered for Internet file transfers. It is also recommended the 
specifications be deferred to an industry standards approach to address 
any ongoing changes in security, technology, or data requirements, 
rather than by including them in a regulation. The TMC TPA offered a 
similar comment related to insulating a regulation from technological 
change. The document advocated a hardwired connection between the EOBR 
and the vehicle data bus and a network neutral wireless connection to 
obtain data via the Internet from a secure server. ITEC stated it 
assumed that, because it was not discussed, FMCSA did not intend to 
require that EOBR data be downloaded onto portable media. Werner 
questioned the cost of being able to download data.
    Ohio PUC stated the rule must have verifiable provisions to ensure 
EOBRs are standardized with a uniform format that all carriers must use 
to display information. These must be easily read by roadside 
inspection personnel and designed to include a standard means of 
allowing enforcement personnel to download information from the 
devices.
    Response: FMCSA agrees with commenters that it will be critical for 
roadside inspection officials to be prepared to interact with the new 
EOBRs. The Agency has set the compliance date to provide sufficient 
time for this transition. As discussed above, the final rule specifies 
the use of standardized file formats and communications interfaces to 
support the needs of safety officials operating in the field.
6.8.6 Communications information interchange methods (Sec.  395.16(i))
    Qualcomm, TMC, ITEC, Tripmaster, and ATA opposed the wireless 
information interchange standards cited in the proposed rule because 
they would be likely to become outdated. The TMC TPA stated the 
wireless methods are prone to connection management, interoperability, 
and security issues, as well as changes in technical standards.
    Qualcomm recommended FMCSA use TMC RP 1219(T) for technical 
requirements. In addition, they recommended citing SAE J1708, ``Serial 
Data Communications Between Microcomputer Systems in Heavy-Duty Vehicle 
Applications,'' in reference to wired communications links using the 
vehicle data bus. They also recommended FMCSA consider referencing SAE 
J1939, ``Recommended Practice for a Serial Control and Communications 
Vehicle Network.'' Qualcomm also asked FMCSA to consider submitting a 
standards request to the Society of Automotive Engineers subcommittees 
for J1939 and J1708 to address tamper-resistance technical 
specifications for capturing information from electronic control 
modules transmitting over the vehicle data bus.
    Qualcomm and the TMC TPA recommended two methods for information 
reporting they believed would be technology neutral for EOBR devices 
and are expected to have significant longevity in availability. They 
recommended use of the vehicle data bus for a wired data transfer from 
the EOBR to a roadside inspection device (because this approach is 
similar to that used for on-board diagnostic (OBD) emissions 
inspections); and use of the Internet for wireless data transfers from 
the EOBR (device and/or support system) with the roadside inspection 
system (device and/or host support system). Although they noted 
additional security standards would be required to ensure proper 
authentication between devices and data transfer security, they 
recommended these be addressed through industry standards rather than 
by regulation.
    Qualcomm and the TMC TPA both believe use of Universal Serial Bus 
(USB) or a serial port would not be appropriate for a wired data 
transfer. They cited problems with pin configurations and software 
driver requirements, as well as the long-term viability of wired USB, 
because wireless USB standards are under development. On the other 
hand, they appear to favor use of the Internet for wireless data 
transfers from the EOBR (and/or its support system) to the roadside 
inspection system (device and/or host support system). Many EOBR 
systems maintain near real-time communications with secure centralized 
support systems, and they believe virtually all safety officials 
conducting roadside inspections can use network connectivity to 
retrieve this information from a support system (or directly) with 
Internet file transfers. Qualcomm believed the Internet file data 
transfer approach will be able to accommodate changes in wireless 
communications standards and has high probability of still working 
flawlessly over a 10-year or longer time frame.
    Qualcomm held use of Wireless Local Area Network (WLAN) and 
Wireless Personal Area Network (WPAN) technologies for peer-to-peer 
wireless connections are not appropriate in EOBRs and law enforcement 
systems because they have significant security vulnerabilities and are 
prone to connection management issues.
    Qualcomm also supported wired transfer via the CMV's data bus. 
Qualcomm, Tripmaster, and ATA referenced TMC RP 1210(B) (Serial 
Communications Application Program Interface). For wireless, they 
referenced RP 1216 (the vehicle-to-office data communications 
standard). Qualcomm stated the latter standard brings efficiencies to 
the industry because it puts aside any proprietary communications 
protocols and allows for wireless communications (via radio frequency, 
infrared, satellite, cellular, or WLAN) between a trucking company's 
office and its fleet.
    ITEC recommended dropping the Bluetooth wireless standard, which is 
not interoperable with IEEE 802.11 and RS-232 (which is out-of-date), 
and adding IEEE 802.11p. ITEC-supported USB 2.0.
    CVSA suggested that, while FMCSA may not want to specify the 
communications technologies because they change so rapidly, the more 
important aspects related to the data are security, content, and 
timeliness of the information availability. Werner stated any wireless 
access should be adequately protected.
    KonaWare stated FMCSA should not specify data transfer technology. 
If data transfer is needed, submission of data to law enforcement 
within 48 to 72 hours should be acceptable.
    Siemens expressed concern about costs for wireless data extraction. 
Although they noted FMCSA included these costs in its estimate of 
operating costs as a necessary item for mobile phone solutions and 
fleet management systems, they were concerned these

[[Page 17230]]

costs were not addressed for minimally compliant, tethered EOBR 
solutions that could use other methods to transfer data for backup 
purposes. Siemens was concerned owner-operators, small carriers, and 
carriers operating within limited geographic areas would not benefit 
from wireless data extraction of HOS data.
    PeopleNet stated the records should be available in wireless or 
wired format, but not both. FedEx stated the protocols and application 
interfaces needed to perform the data download are not defined. A great 
deal of definition would be required to successfully implement a 
roadside exchange as suggested in the NPRM, and changing technology 
could make several of the suggested physical transport layers obsolete. 
FedEx suggested wireless as a transport layer (802.11g and Bluetooth), 
but stated the pairing methodology between EOBR and roadside device 
must be defined. It also stressed the need for the Agency to define a 
method for authentication between the EOBR and roadside device, an 
especially important concern if the Agency contemplated using wireless 
technology.
    Response: The final rule requires the use of wired (direct physical 
connection) and wireless communications (WiFi and cellular, as 
described in more detail below) of the electronic RODS data record. For 
a wired transfer, the roadside enforcement official will provide a 
cable to the driver to be inserted into the EOBR's USB data port.
    FMCSA is revising the requirements for the content of the data file 
that would be downloaded from an EOBR to an enforcement official's 
portable computer to remove the name of the driver and co-driver in the 
records downloaded at roadside. The driver and co-driver will be 
identified by employee identification number(s) in that downloaded 
record. Enforcement officials may verify the identity of the driver 
(and co-driver) from documents such as a driver's license and would 
enter that information into their portable computers to generate 
inspection reports and violation documents. This change is being made 
because the combination of a name and other information in a 
transmitted record places the record in the category of personally 
identifiable information (PII). PII must be encrypted, and encryption 
adds considerably to the complexity of software design, implementation, 
and maintenance. These factors would increase the costs to EOBR 
suppliers, motor carriers, and FMCSA. FMCSA stresses this change 
affects only those records downloaded at roadside. All other records 
maintained in EOBRs and support systems must include the driver's and 
co-driver's names. This includes records requested by safety assurance 
officials at a motor carrier's place of business.
    The primary goal of the EOBR device itself is to collect and 
safeguard data. There are numerous industry consensus standards and 
recommended practices in this field, and FMCSA believes developers of 
EOBRs and EOBR support systems are in the best position to select and 
use those standards and practices to ensure their motor carrier 
customers are able to maintain the confidentiality, integrity, and 
availability of HOS data and information.
    To ensure a reliable means of data exchange between each EOBR 
device and a roadside safety official's portable computer, the 
following hardware interface specifications are required:
    1. Each EOBR device must implement a single USB compliant interface 
featuring a Type-B connector.
    2. USB interface must comply with USB V1.1 and V2.0 USB signaling 
standards.
    3. The USB interface must implement the Mass Storage class (08h) 
for [software] driverless operation.
    FMCSA will not allow the use of portable storage devices, e.g., 
thumb drives, for the transfer of the electronic RODS because they are 
not capable of meeting the necessary authentication requirements.
6.9 Identification of the Driver (Sec.  395.16(j))
6.9.1 FMCSA's Approach of Not Specifying Identification Method
    CVSA supported the idea of providing flexibility regarding how 
drivers are identified. However, CVSA said FMCSA should specify a 
minimum performance requirement including standardized and explicit 
test procedures and expectations. ITEC approved of the decision to 
allow motor carriers to choose among competing technologies for driver 
identification. The company said driver identification technologies 
would be a key cost factor in the implementation of EOBRs.
    Several commenters, including IBT, OOIDA, and AMSA, disagreed with 
FMCSA's approach, contending the rule should be more specific regarding 
the identification of drivers. IBT was concerned unscrupulous drivers' 
use of false identification could undermine efforts to improve HOS 
compliance. Qualcomm, Siemens, and the TMC TPA said the rule should 
have security requirements that address detailed policies and 
procedures for driver identity management. They also requested the 
requirements cover the use of third parties for EOBR security 
administration and audit.
    One commenter recommended using employee ID numbers to identify 
drivers, while another proposed using an identification code made up of 
the driver's license number and the abbreviation of the issuing State.
    Response: FMCSA agrees the identification of the driver of a CMV is 
key to implementation of this rule. However, imposing a set of 
standards to assign and manage driver and employee identification 
numbers is unnecessary to effectuate this rulemaking and is more 
appropriately addressed through motor carriers' internal processes.
    This final rule requires the driver's name as part of the EOBR's 
record maintained by the motor carrier. However, it will not require 
the driver's name to be part of the information transmitted from the 
EOBR or a support system during the course of a roadside inspection 
because the combination of a name and the other information is 
considered personally identifiable information and is subject to 
stringent and complex encryption requirements. As discussed earlier, 
enforcement officials will verify the identity of the driver (and co-
driver) from documents such as a driver's license.
    FMCSA's interest is that each driver used by a motor carrier is 
uniquely identified for purposes of recordkeeping and the motor carrier 
ensures that drivers enter duty status information accurately. How 
individual drivers are identified--by name, by employee number, or by 
another code--is left to a motor carrier's discretion. However, we very 
strongly discourage a motor carrier from using a Social Security number 
or driver's license number because of the potential for persons to 
obtain access to information that is not relevant to HOS compliance 
assurance. It is a motor carrier's responsibility to select and 
implement information security policies--including issuing and updating 
identification and information system access codes--appropriate to its 
own operations.
    Responding to Qualcomm's question concerning recording the hours of 
drivers who use more than one vehicle, an EOBR support system must 
account for this, as today's AOBRDs are required to do. Although not 
explicitly required in the regulation, error-checking procedures in the 
support system also should flag a driver who is shown as operating 
multiple CMVs on the same day, during the same period of time. AOBRDs 
have been required to identify

[[Page 17231]]

which driver of a team is operating the CMV at any given time--and 
EOBRs must do the same. Each driver must be assigned a unique 
identifier.
6.10 Maintenance and Repair (Sec.  395.16(p))
6.10.1 Motor Carrier Must Ensure EOBRs Are Calibrated, Maintained, and 
Recalibrated
    Werner said the requirement for motor carriers to ensure EOBRs are 
calibrated, maintained, and recalibrated should not be imposed without 
serious cost/benefit analysis. The carrier said this requirement could 
be a substantial burden for many carriers who have trucks that are not 
home-based at a terminal.
    Qualcomm and TMC said the requirements for motor carriers should 
also address security management and administration of EOBR systems. 
They also said the rule should provide criteria for when third-party 
services must be used if carriers do not have appropriate resources for 
security management.
    Maverick Transportation asked FMCSA to clarify how often EOBRs 
would need to be recalibrated and how long a carrier would need to 
retain calibration, maintenance, and recalibration records.
    Response: Section 395.15(i)(8) the of current regulations requires 
that AOBRDs be maintained and recalibrated in accordance with the 
manufacturer's recommendations. Considering the range of approaches 
(now and in the future), it would not be realistic for FMCSA to specify 
maintenance intervals for EOBRs. The text of the rule adopted here 
parallels the proposed regulation but adds a requirement for 
calibration. This initial calibration would be done at the time of 
initial installation, if the characteristics of the device require it. 
Concerning security management and administration, those are 
information technology matters, and any third-party performing this 
work for a motor carrier would do so as the carrier's agent and under 
the carrier's direction. Retention of EOBR maintenance and calibration 
records is addressed in the general inspection, repair, and maintenance 
requirements of current Sec.  396.3, because an EOBR, like an AOBRD, is 
an ``additional part or accessory which may affect safety of 
operations.'' These records must be maintained for 1 year or 6 months 
after a CMV leaves the motor carrier's control.
6.11 Testing and Certification Procedures
6.11.1 Manufacturer Self-Certification (Sec.  395.16(q))
    Qualcomm expressed support for the provision allowing EOBR 
manufacturers to self-certify their products. The company said the 
self-certification approach is consistent with the requirements in 
Sec.  395.15 and should be continued. Maverick Transportation agreed 
with manufacturer self-certification, but asserted EOBR manufacturers 
should face penalties if their products are later found to be non-
compliant.
    Conversely, several motor carrier and EOBR manufacturer commenters 
believed FMCSA's proposed requirement for AOBRD and EOBR manufacturers 
to self-certify their devices did not provide a sufficient level of 
assurance to convince carriers to voluntarily use EOBRs. These 
commenters indicated carriers would be more willing to invest in EOBRs 
if FMCSA or an independent testing entity evaluated and certified 
devices as conforming products. J.B. Hunt stated that, because most of 
today's EOBR manufacturers are small businesses, they probably would 
not have the financial resources to properly indemnify the carrier if 
FMCSA were to find the devices noncompliant. Werner made similar 
comments, noting the contracts offered by EOBR vendors would likely 
restrict a carrier's right to recover from the vendor if the system 
were found to be non-compliant.
    CVSA recommended FMCSA and the National Highway Traffic Safety 
Administration create a more rigorous, third-party certification 
program for EOBRs. It also recommended the establishment of an advisory 
board to create and maintain a list of approved EOBRs. This advisory 
board could operate similarly to those groups that are involved with 
speed-measuring instruments and breath alcohol testing devices.
    Qualcomm and ATA offered the alternative of ``strong self-
certification.'' An international standard, ISO/IEC 17050, would be 
used as a basis for requiring manufacturers to document their 
conformance with a standard. An EOBR manufacturer's declaration of 
conformity would be subject to standardized documentation requirements 
and audits. They noted this approach would require a government or 
industry entity to audit supporting materials for conformity 
declarations and to maintain a registry of conforming products. ATA 
stated such an authority does not currently exist. Tempering its 
support of third-party certification, ATA cautioned that FMCSA should 
balance the potential benefits of third-party certification against the 
potential for increased cost of EOBR devices and possible delays in the 
introduction of new devices and technology due to the need to 
satisfactorily complete a certification process.
    Response: The Agency is aware that a working group of the ATA's 
Technology and Maintenance Council S. 12 Onboard Vehicle Electronics 
Study Group is currently preparing a draft recommended engineering 
practice, TMC RP 1219(T), ``Guidelines for Electronic On-Board 
Recorders.'' Several commenters included this document as an attachment 
to their comments. Although the final rule does not establish a formal 
FMCSA oversight process for EOBR testing and certification, it is 
possible that more widespread use of EOBRs may bring compliance 
concerns to light. Therefore, FMCSA will monitor motor carriers' 
compliance with EOBR and support system requirements as part of its 
safety oversight programs.
6.11.2 Other Comments on Testing and Certification Procedures
    The Ohio PUC asked that the rule provide for periodic certification 
of the reliability and integrity of EOBRs, with specific penalties for 
failure to comply; and it maintained widespread violations could occur 
without such provisions. The MTA suggested the rule require EOBR 
manufacturers to warranty performance of their products for at least 5 
years.
    Response: FMCSA takes seriously penalties related to false records 
but does not believe it would be appropriate to set a prescriptive 
requirement for ``recertifying'' EOBRs according to a fixed schedule. 
The self-certification process will remain part of the FMCSRs. FMCSA 
does not have the authority to impose a requirement for a warranty 
period or warranty terms.
6.12 Other Comments on Proposed EOBR Standards
    Several commenters believe the NPRM did not adequately address a 
requirement to make EOBRs ``tamper-proof.'' Siemens said FMCSA should 
require EOBRs to be tested and certified against a defined security 
standard by independent laboratories. Advocates criticized FMCSA for 
proposing no specific controls for ensuring that EOBRs are tamper-
proof, contending the Agency ``must set minimum requirements for what 
constitutes tamper-proof or tamper-resistant EOBRs

[[Page 17232]]

and their key components.'' Advocates called upon FMCSA to ensure that 
EOBRs are both tamper-proof and designed to indicate any attempts at 
tampering. CVSA suggested FMCSA review the EU Information Technology 
Security Evaluation process with regard to EOBRs. A team driver who had 
used an EOBR said her motor carrier had altered the hours recorded by 
the device, and FMCSA must ensure against improper alteration of data 
by drivers, carriers, or law enforcement personnel. Two commenters said 
the burden of making EOBRs tamper-proof should rest on the shoulders of 
the manufacturers and FMCSA, and that all aspects of tampering should 
be resolved before installation.
    Response: The September 2005 report prepared by the Volpe Center: 
``Recommendations Regarding the Use of Electronic On-Board Recorders 
(EOBRs) for Reporting Hours of Service,'' addresses a range of methods 
to prevent, to the greatest extent practicable, tampering with the 
physical EOBR device, as well as the electronic records it holds. The 
revised text of Sec.  395.16(p)(1) prohibits the motor carrier from 
permitting or requiring alteration or erasure of original information 
or the source data streams used to provide it. This covers both 
physical and electronic alterations and erasures.
    FMCSA reviewed the EU type-specification for electronic tachographs 
early in this rulemaking process. The type-specification is highly 
design-prescriptive for both the hardware and software elements of the 
electronic tachograph and support systems. By contrast, FMCSA 
regulatory policy expresses a strong preference for performance-based 
regulations. Furthermore, because the EU directive for the electronic 
tachograph is based upon a compliance-assurance model that is 
dramatically different from that of FMCSA, FMCSA continues to believe 
adopting it would be inappropriate. And, as discussed above, the final 
rule will continue to require manufacturer self-certification of EOBRs 
and their support systems.
6.12.1 Environmental Specifications
    For operating temperature, Qualcomm and ITEC said the typical 
industry standards for device functionality while installed in 
commercial vehicles (-40 to 85 [deg]C) exceed the rule's requirements 
for the temperature range at which EOBRs must be able to operate (-20 
to 120 [deg]F (-29 to 49 [deg]C)). Both commenters suggested the rule 
defer to industry standards for environmental performance, specifically 
SAE standard J1455, ``Recommended Environmental Practices for 
Electronic Equipment Design in Heavy-Duty Vehicle Applications.'' TMC 
offered a similar comment.
    NTSB stated the NPRM failed to address damage-resistance and data-
survivability, and asked for performance standards for these issues.
    Response: FMCSA agrees with Qualcomm, ITEC, and TMC and in the 
final rule revises the environmental operating ranges (temperature, 
etc.) for EOBRs. In response to NTSB, FMCSA considers it appropriate to 
require EOBRs to comply with the same generally-accepted industry 
consensus standards for durability and reliability as other electronic 
components used in trucks and buses, but not to go beyond these 
standards in terms of crash- or fire- survivability.
6.12.2 Reconstruction of RODS After EOBR Failure
    Werner and the Maryland State Police questioned the requirement 
that a driver reconstruct RODS for the past 7 days in the event of an 
EOBR failure. The two commenters doubted that drivers would be able to 
do this unless the data had been printed out, transmitted to the 
carrier, or backed up in some other way.
    Response: Records must be available for the current day and the 
past 7 days so safety officials can review them during roadside 
inspections. This is not a new requirement; it currently applies to 
both paper RODS and AOBRDs (Sec. Sec.  395.8(k), 395.15(b)(2)). The 7 
days' worth of records can include those records already transmitted to 
the motor carrier.
6.12.3 Requirement To Carry EOBR Instructions and Blank RODS (Sec.  
395.16(l))
    ITEC said the rule should be clarified to allow a motor carrier to 
maintain the EOBR instruction sheet and blank RODS forms either 
separately or together. Qualcomm expressed support for the requirement 
that CMVs carry instructional material. TMC TPA suggested FMCSA be more 
specific about the content of the instruction sheet to assure greater 
consistency and usability.
    Response: The requirement in the final rule is identical to the 
current one for AOBRDS (Sec.  395.15). It does not specify that the 
instructions and blank RODS forms be bound in a single document, only 
that the driver have both of them on board the CMV.

7. Incentives To Promote EOBR Use

    FMCSA is adopting as proposed two incentives for motor carriers 
that voluntarily install and use EOBRs compliant with section 395.16. 
First, after the traditional targeted review of their drivers' HOS 
compliance, FMCSA will conduct random reviews of such carriers' drivers 
for purposes of determining these carriers' safety ratings. Second, 
such carriers will be granted relief from the supporting documents 
requirements for purposes of recording on-duty driving time. FMCSA 
requested comment on these two incentives, as well as on possible 
additional incentives, including granting flexibility in the HOS rules 
themselves.
7.1 Random Review for Motor Carriers Voluntarily Using EOBRs
    Numerous commenters, including Report on Board, Werner, Maverick, 
SCRA, and IIHS, said random review of a motor carriers HOS compliance, 
as opposed to a focused review, would not provide enough incentive to 
make voluntary installation of EOBRs attractive. Both IIHS and Report 
on Board held only a mandate requiring EOBRs will work. Report on Board 
commented that carriers believe they are competitively disadvantaged by 
using EOBRs. Because focused sampling would continue, with violations 
imposed based on that sampling, it felt that there would be little 
reason for carriers to voluntarily adopt EOBRs.
    SCRA stated there were no statistical data provided on safety 
enhancement or cost benefits to support this element of the proposed 
rule, arguing that application of technology should provide tangible 
cost benefits and easily recognizable advantages for all required to 
comply.
    Several commenters objected to the incentive because they believed 
it would place some carriers at an unfair disadvantage. OOIDA stated 
FMCSA is proposing to lessen scrutiny of carriers that adopt EOBRs 
while increasing scrutiny of other carriers, most of whom will be 
small. OOIDA also stated the proposal is inconsistent with CSA 2010 
since that initiative relies heavily on focused review of problem 
drivers based on roadside data. ``Without any proof that EOBRs improve 
HOS compliance or the safe operation of commercial motor vehicles, 
FMCSA cannot justify the creation of such a dichotomous enforcement 
strategy.'' One carrier was also concerned the proposal places small 
carriers at a disadvantage because they cannot afford EOBRs, and they 
will be given the same scrutiny as those mandated to use EOBRs.
    While Maverick supported the random sampling incentive, Advocates 
stated the implication is that the

[[Page 17233]]

outcome of EOBR use is not improved oversight and enforcement of safety 
management controls. Advocates asserted the proposal would lead to 
``more extensive HOS violations and lack of enforcement.''
    Response: One objective of CSA 2010 is to leverage the capabilities 
of existing technologies to make compliance and enforcement efforts 
more effective and efficient. FMCSA believes policies that encourage 
the adoption of EOBRs are consistent with CSA 2010. (See the earlier 
discussion of CSA 2010 and roadside data in preamble section IV. 
Discussion of Comments to the NPRM; 3.2 Trigger for remedial directive. 
The motor carrier industry previously expressed concern that FMCSA's 
current HOS sampling techniques during compliance reviews are not 
random across all areas of a carrier's operation. Rather, the 
compliance review procedures direct the safety investigators to focus 
on known problem areas and drivers first. If the number of violations 
discovered using the existing policy of focused sampling exceeds 10 
percent of the records reviewed, a less than satisfactory safety 
fitness rating is proposed. Thus, industry members argue, a motor 
carrier's overall safety fitness rating can be adversely affected based 
only on a focused review of known problem drivers or areas of a motor 
carrier's operation without consideration of a motor carrier's overall 
HOS compliance status or violation rate.
    FMCSA does not agree that motor carriers under the proposed 
incentive will be subject to less-thorough reviews. Under the incentive 
proposed and adopted today, all motor carriers taking advantage of this 
incentive, and all owner-operators leased to such carriers, will be 
subject to the same level of initial review as under current 
procedures, which focus first on drivers involved in crashes and those 
with known HOS violations. Violations resulting from this initial 
focused sample will continue to be considered for compliance 
improvement and enforcement purposes. However, under the incentive, a 
CR that revealed a proposed 10 percent or higher violation rate based 
on the initial focused sample will be expanded through random sampling 
to look at a broader segment of the motor carrier's overall operation. 
Only the HOS violations resulting from this expanded review will be 
used to determine a carrier's safety rating.
    This incentive is justified on several grounds. The HOS portion of 
CRs on motor carriers using EOBRs can be done far more efficiently than 
traditional reviews of logbooks and supporting documents, thus allowing 
motor carriers--as well as FMCSA reviewers--to do more thorough and 
comprehensive checks of HOS records for accuracy and possible 
falsification. The Agency expects EOBR use to lower voluntary-adopter-
carriers' rates of serious HOS violations, which, as noted above, are 
related to higher than average crash rates. As a result, safety will be 
promoted. Because civil penalties will still be imposed and SafeStat 
scores will still be affected if violations are discovered during the 
targeted review, carriers will continue to be motivated to correct HOS 
compliance problems. See 72 FR 2378-2379. FMCSA emphasizes that the 
Agency will continue to bring civil penalty enforcement cases against 
both drivers and carriers for HOS violations discovered during the 
initial focused HOS review, even though that analysis will not be used 
for purposes of determining the carrier's safety rating.
7.2 Partial Relief From Supporting Documentation (Sec.  395.11)
    Several commenters, including Maverick, SC&RA, TCA, J.B. Hunt, and 
AMSA, generally supported the incentive providing relief from the 
requirement to maintain supporting documents relating to driving time. 
Commenters, including Maverick and SC&RA, stated EOBRs will capture 
much of the same information as supporting documents. Continuing to 
require supporting documents becomes a disincentive for using EOBRs.
    AMSA stated retaining and reconciling such corroborating documents 
is a financial, storage, and organizational burden on carriers, and 
relief from these burdens might provide the desired incentive for a 
carrier to consider adopting EOBRs. ATA stated that managing supporting 
documents takes 258 million hours a year; the potential costs could be 
billions of dollars. FedEx noted the NPRM claimed the EOBRs would 
reduce compliance costs and increase productivity, but if the 
supporting document requirements are not dropped, those claims were 
overstated or wrong. If regulators require or allow technology to 
replace paperwork for HOS, FedEx commented the Agency should replace 
all paperwork for that requirement. Otherwise, it is an indication that 
either the technology is not ready for implementation or the technical 
specifications should be revisited.
    MTA, Boyle, NPTC, ATA, and FedEx sought elimination of the 
supporting documents requirement for those with EOBRs. NPTC stated 
companies that use EOBRs to supervise driver operations and have 
effective management systems should not be required to undertake the 
additional administrative task of collecting and maintaining supporting 
documents to verify the non-driving portion of a driver's hours. If a 
company is found to be significantly non-compliant in its HOS 
management, NPTC asserts FMCSA could use its enforcement authority to 
impose additional and more stringent supporting document requirements 
on that carrier and its drivers.
    In contrast, J.B. Hunt said supporting documents cannot be 
eliminated, but carriers should not have to retain documents that show 
only time and location. If the document does not have any objective 
information that discloses the driver's non-driving activities, it 
would not be of value in an EOBR world. Additionally J.B. Hunt states 
that, in most over-the-road operations, driving time is the most 
important contributor to driver fatigue. For example, loading and 
unloading times can be significant, but supporting documents are of 
little value in determining the duration of on-duty activity. Siemens 
stated law enforcement is unlikely to accept reduced supporting 
documents over the long term, and inadequate performance standards lead 
States and law enforcement to ignore EOBRs.
    One owner/operator said this proposed relief was an unfair 
advantage to motor carriers who could afford EOBRs.
    Response: FMCSA agrees compliant EOBRs produce regular time and CMV 
location position histories sufficient to adequately verify a driver's 
on-duty driving activities. Under this final rule, motor carriers 
voluntarily maintaining the time and location data produced by EOBRs 
would need to maintain only those additional supporting documents that 
are necessary to verify ODND activities and off-duty status.
    It is not in the best interest of public safety to provide relief 
from supporting document requirements necessary to verify ODND status. 
Providing such relief could make verification and enforcement of ODND 
activities extremely difficult, if not impossible in some cases. For 
privacy reasons, the requirements for compliant EOBRs stop short of the 
electronic, video or other driver monitoring measures that would be 
necessary to verify individuals' on-duty not driving time and 
activities through use of automated recorders.
    FMCSA disagrees with FedEx that failure to eliminate all supporting 
document requirements is an indication that EOBR technology is not yet 
ready for implementation. FMCSA considers the ability to relieve 
supporting

[[Page 17234]]

document requirements related to on-duty and driving time significant 
in itself. Blanket relief from all supporting document requirements was 
not proposed in the NPRM and is not included as part of this final 
rule.
7.2.1 EOBRs and the Supporting Documents Rule
    Several commenters raised the relationship of this rule with the 
supporting documents rule. ATA stated FMCSA should complete the 
supporting document rule as soon as possible. FedEx said the rule 
should be coordinated with the EOBR rule, OOIDA and CVSA asserted until 
the supporting document rule is complete, the public does not have 
enough information to evaluate the incentives.
    FMCSA published the supporting documents Supplemental Notice of 
Proposed Rulemaking on November 3, 2004 (69 FR 63997), and proposed 
requirements for the collection and use of documents to verify the 
accuracy of driver records of duty status. It proposed language to 
clarify the duties of motor carriers and drivers with respect to 
supporting documents and requested further comments on the issue. FMCSA 
withdrew this rulemaking action on October 25, 2007 (72 FR 60614) based 
on issues with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520) analysis supporting this action. After the paperwork analysis 
that accurately identifies the information collection burden associated 
with the existing supporting documents requirements is complete, the 
Agency intends to initiate a new rulemaking action. This will ensure 
the new rulemaking proposal is based on an accurate and comprehensive 
understanding of the existing information collection inventory.
    FMCSA does not wish to delay the benefits of this rulemaking 
pending completion of the supporting documents rule. Therefore, this 
rulemaking provides for relief from the existing supporting document 
requirements related to on-duty driving activities for motor carriers 
that voluntarily install EOBRs.
7.3 Suggestions for Other Incentives
    MTA recommended any violations occurring when the truck is being 
used as a personal conveyance should be assigned only to the driver, 
not the carrier. It suggested carriers should not be subject to 
violations for speeding based on GPS data, and also that RODS 
violations should be weighted as other categories are, not at twice the 
value.
    ATA suggested including positive credits or points for carriers in 
the SafeStat selection criteria as applied to the safety management and 
Driver SEAs. ATA also suggested FMCSA offer relief from the 2-point 
assessment in the safety rating methodology for a pattern of HOS 
violations. It also recommended the use of random sampling in 
conducting compliance reviews. In the event these incentives cannot be 
achieved through provisions in regulations, FMCSA should provide motor 
carriers the ability to test and apply these incentives through pilot 
programs and an expedited exemption process.
    ATA, TCA, J.B. Hunt, Fil-Mor Express, AMSA, and two individuals 
recommended tax incentives. Two individuals also recommended tax 
breaks. TCA stated log auditing for EOBR logs should be done only at 
roadside inspections, not by the carriers. DriverTech stated the fleets 
and EOBR manufacturers should be exempt from lawsuits on product and 
usage liability.
    CTA recommended FMCSA consider allowing minor variances in driving, 
on-duty and off-duty time, up to a specified limit. CTA did not see 
this as an incentive to encourage EOBR use by compliant carriers; 
rather, it considered it to be a reasonable enforcement approach to 
avoid unwarranted penalties. Other commenters made similar suggestions.
    J.B. Hunt suggested a number of incentives. It recommended 
providing EOBR carriers with a credit on their Inspection Selection 
System score to allow their drivers to more frequently bypass 
inspection stations. J.B. Hunt said this may help gain much needed 
driver acceptance. Only carriers with a good history of well maintained 
equipment (Equipment Safety Evaluation Area (SEA) value or Out-of-
Service rates less than a certain score) should qualify for this 
incentive.
    J.B. Hunt said the Agency should make a commitment in the final 
rule to work cooperatively with other agencies and governmental 
entities in an effort to exempt EOBR units from the Federal Excise Tax 
(FET) for original equipment manufacturer installations and equipment 
retrofitting and to provide for an accelerated depreciation or 
expensing option for tax purposes. It recommended ensuring EOBR 
carriers are able to gain the benefit of the ``Intra-City Multiple 
Stop'' rule by permitting the driver to show very short movements 
(totaling less than 1 percent of daily miles traveled) combined with 
other driving in the same city. This should also apply to consolidating 
ODND time as currently permitted when logging on paper.
    AMSA stated, without sufficient incentives, HHG carriers would find 
it too expensive to install EOBRs and implement the supporting systems.
    An individual suggested original equipment manufacturer-installed 
EOBRs should come with the option to switch providers.
    Response: FMCSA believes the majority of other incentive ideas 
offered, including tax incentives, are outside the scope of this 
rulemaking. FMCSA does not believe it is in the best interest of public 
safety to count threshold rates of HOS violations the same as other 
violations in our safety fitness rating methodology, as suggested by 
the Minnesota Trucking Association and the ATA. To do so would 
effectively allow motor carriers to continue in operation with a 
Satisfactory safety fitness rating and 100 percent HOS noncompliance as 
long as deficiencies were not documented in other areas of the motor 
carrier's operation. Also, FMCSA did not propose, and will not require, 
EOBRs to collect vehicle speed data.

8. Economic Analysis and Other Rulemaking Analyses and Notices

8.1 Economic Costs
8.1.1 Viability of EOBR Market Without a Broad Mandate
    Three commenters, Report on Board, Siemens, and CVSA, stated a 
broader mandate would lead to lower device costs. Report on Board 
claims it did not see a viable market for its own product without an 
industry-wide mandate. Siemens reported its device would cost 20 
percent more under a long-haul mandate compared to what it would cost 
under an industry-wide mandate and mentioned that component costs 
should fall over time. However, IIHS pointed out there is already a 
market for these devices, and questions of unit-cost and availability 
are no longer relevant.
    Response: FMCSA assumes that the price of EOBRs under an industry-
wide mandate should be considered from a long-run equilibrium 
perspective--i.e., assuming manufacturers have had enough time to enter 
the industry and expand capacity to meet demand. Under those 
conditions, prices should be driven to where they allow efficient 
manufacturers to cover their production costs and provide an adequate 
profit.
    The production of more units may allow manufacturers to take 
advantage of economies of scale (whereby fixed costs are spread over 
more units) and produce EOBRs at lower per-unit cost. The degree to 
which economies of scale would reduce costs is uncertain, however. 
Current and would-be EOBR manufacturers would, for the most part,

[[Page 17235]]

already be able to take advantage of considerable economies of scope 
\3\ because they (1) Currently produce similar products, (2) already 
possess the necessary technical expertise, organizational 
infrastructure, distribution networks, and some of the necessary 
manufacturing equipment, and (3) have access to variable inputs 
(materials and labor). Independent of the number of EOBRs produced, 
firms would not necessarily need to make outlays for many of these 
fixed inputs. Similarly, though manufacturers might be expected to 
achieve manufacturing cost savings through ``learning by doing'' (that 
is, finding more efficient manufacturing methods as cumulative output 
increases), it is not clear to what extent learning effects have 
already been exhausted in the course of manufacturing very similar 
devices. Finally, uncertainty about the number of new manufacturers 
entering the expanded market makes it impossible to estimate the number 
of units per manufacturer, which is a key variable in determining both 
scale and learning effects.
---------------------------------------------------------------------------

    \3\ Economies of scope: Per-unit or average total cost of 
production decreases as a result of increasing the number of 
different goods produced.
---------------------------------------------------------------------------

    FMCSA agrees that the cost of EOBRs' electronic components--EOBRs 
generally borrow components from existing technology--should trend 
down, assuming that plentiful supplies of electronic parts continue. 
However, and given the circumstances noted above, FMCSA does not have 
sufficient data at this time that would allow it to estimate the 
effects of greater production volumes on EOBR costs, and hence on EOBR 
prices. In the face of substantial uncertainty over the extent of any 
reduction in EOBR prices as a result of greater sales volumes, FMCSA 
has assumed that the market price for EOBRs would remain unchanged 
regardless of the breadth of the mandate, for the purposes of this 
rule. The data and price projections will be explored further in the 
follow-on rulemaking, discussed earlier.
    The Agency agrees with IIHS that availability should not be a 
consideration and that EOBR prices are not prohibitive. Report on 
Board's claim that it did not see a viable market without FMCSA's 
delivering captive customers is not supported by current market 
conditions: Not only are numerous manufacturers already engaged in this 
business, but the market for these devices could extend beyond U.S. 
borders. In both the NPRM and this final rule, the Agency examined a 
variety of devices, including the lowest cost device submitted for 
consideration. The analysis for the final rule is premised on the use 
of only a low cost device.
8.1.2 Alternative Device Cost Estimates
    Report on Board, Siemens, NPGA, and TCA offered estimates of EOBR 
device costs ranging from $300 to $3,000. Siemens stated the low cost 
device considered in the NPRM would not be practicable due to its low 
operational life, and offered a $300 price estimate for its own 
minimally compliant device, which it claims has a ten-year operational 
life with periodic maintenance and upgrades; the annualized cost of 
this device would be $69.
    Response: Since the NPRM was published, FMCSA has actively 
monitored EOBR technology (both devices with and without extra fleet 
management applications) currently being sold in North America. It 
conducted its analysis in that NPRM using a range of devices priced 
from $100 to $2000, a range into which most of the devices subsequently 
described by commenters fall. The Agency categorically rejects the 
assertion motor carriers will need to spend $3000 for a device that 
meets the performance standards of this rule. FMCSA agrees the cost-
savings of the low cost device originally considered was severely 
curtailed by its assumed short operational life. Since publishing the 
NPRM, the Agency has become aware of other compliant low cost EOBRs, 
and has focused its analysis on one of them, while carefully 
considering all of the costs particular to this device.
8.1.3 Comments on Associated Costs
    Eight commenters mentioned costs associated with EOBRs in addition 
to the individual device costs. AMSA, SC&RA, Werner, the Maryland State 
Police, TCA, and ATA stated driver and other employee training expenses 
would be significant. Werner, AMSA, the Maryland State Police, and ATA 
mentioned installation costs. FedEx, SC&RA, ATA, TCA, and NPGA stated 
the Agency should consider administrative costs for such expenditures 
as computer software and hardware, data extraction, and administrative 
staff; NPGA further stated computing equipment to process EOBR data 
could cost as much as $15,000 per carrier, and such expense would be 
disproportionately large for its members, who, on average, have 9 or 
fewer trucks. AMSA, SC&RA, Maryland State Police, and ATA commented 
inspection, maintenance, and repair costs should be factored in. AMSA, 
SC&RA, and ATA stated airtime costs for data extraction should be 
accounted for, while Siemens stated a single annual operating cost 
figure it has estimated for its low-cost device includes all airtime 
costs.
    Werner and ATA pointed to device calibration as possibly resulting 
in significant cost. Werner stated calibration requirements may impose 
significant costs on the carrier if calibration cannot be easily done 
by existing staff and asked how often calibration will or should be 
required. This could represent a substantial burden for many carriers 
that have trucks that are not based at a terminal. ATA also listed 
driver technical demands, external report generation, and the costs for 
some fleets of moving from existing systems to new systems as 
potentially adding costs.
    Response: With the exception of calibration costs, which FMCSA does 
not believe to be significant, the Agency included all of the costs 
referenced by commenters. In any event, commenters for the most part 
did not offer any alternative cost figures for the Agency to consider. 
Regarding repair, maintenance, and upgrade costs, the Agency currently 
bases its estimates on a device that is leased from its manufacturer 
and does not have these costs associated with it. Cost and benefit 
estimates now explicitly account for current use of AOBRDs, devices 
that would meet the requirements of this rule, and fleet management 
systems that can be upgraded to EOBR functionality.
    The Agency does not believe NPGA's assertion that office computer 
equipment for processing EOBR data ``could be as much as $15,000'' is 
reasonable, particularly for its members, who, on average, have nine or 
fewer trucks. The Agency has made every attempt not to understate any 
costs, although all cost estimates are constrained by the criterion 
that EOBR systems meet the minimum requirements of this rule. In 
addition, hypothetically large cost figures are not germane, because 
carriers incur excessive costs at their own choosing, not because the 
rule requires them to do so. Costs of office equipment have been 
eliminated in this analysis because the EOBR provider hosts all records 
on a secure Web site and includes the price of this service in its 
monthly fee.
    Every device is configured differently, and not all devices share 
the same costs. The complexity and cost of installation, for example, 
can vary widely by device, and the costs of even similarly configured 
devices can differ greatly. FMCSA presented the costs particular to

[[Page 17236]]

the three devices it considered; it could not present costs as if these 
had been any other devices. Likewise, the current analysis focuses on 
the actual costs of implementing the low cost device presented. As in 
the NPRM, costs particular to that device are explicitly accounted for. 
The goal of the cost analysis is to demonstrate how the performance 
standards of this rule may be met with minimal cost, not to estimate 
the costs of every possible device.
8.1.4 Costs of Training Law Enforcement
    The Maryland SHA and ATA stated the cost of training enforcement 
officers to review electronic logs should be included. The Maryland SHA 
added State enforcement officials would also be asked to provide 
``inspection services for verification of electronic-on-board-recorder 
installation and operation,'' although enforcement personnel are 
neither trained electronics installers nor mechanics. The Maryland SHA 
also stated not all enforcement personnel have laptop computers in 
their patrol vehicles, and those that do may not have wireless 
connectivity; it would be impossible to check electronic logs under 
these circumstances. Additionally enforcement personnel should not be 
asked to perform this function as staffing reserves are already 
strained with more important duties--e.g., roadside inspections, 
homeland security activities, etc. Maryland SHA stated FMCSA should 
fully assess the effects on enforcement. No funding is being provided 
to enforce the new provisions.
    Response: The Agency has carefully considered the costs to State 
enforcement staff. The Agency has already increased its cost estimates 
after recognizing that training in reviewing electronic records will 
always represent an additional cost, and will never simply replace the 
current training in paper RODS. In response to the Maryland SHA's 
concerns, the Agency has estimated costs of inspecting EOBR devices, 
and the costs of equipment purchases and upgrades for accessing and 
reviewing electronic records.
8.2 Paperwork Savings
    Six entities commented on paperwork benefits and driver's time use. 
PMAA stated the time saved from not filling out logs is not 
significant. However, the Maryland SHA agrees that EOBRs will save 
time, and SC&RA stated automation should reduce administrative burden. 
Report on Board estimated annual per truck paperwork burden costs 
$2,029. Public Citizen commented electronic records are more easily 
collected and analyzed, and such information could be used to more 
accurately track and monetize time wasted at loading docks, which would 
benefit drivers paid by the mile or trip. Verigo, a manufacturer of 
manual electronic logs that lack the automatic recording features 
required of AOBRDs and EOBRs, stated FMCSA is relatively silent on the 
issue of HOS auditing and management reporting.
    Response: Paperwork savings figure prominently into this rule's 
analysis, and have been carefully considered. The paperwork burden 
associated with RODS includes the time spent filling them out, 
reviewing them, and filing them. FMCSA's estimate of the paperwork 
burden of filling out RODS is 6.5 minutes per day per driver, and 3 
minutes per day per driver for review and filing. Trucking companies 
may not recognize all the benefits of paperwork savings if they pay 
drivers by the mile or trip and do not compensate drivers for time 
spent filling out logs. Costs directly borne by drivers are as 
important as costs borne by motor carriers, and, as other commenters 
have pointed out and the RIA shows, the time saving to drivers can be 
significant. The Agency also agrees with Public Citizen that insofar as 
EOBRs accurately capture total on-duty time, drivers may benefit when 
wasted time, such as excessive time spent at loading docks, is 
documented. Nevertheless, this potential benefit is not included in the 
RIA because the Agency cannot predict if this added recording of on 
duty time will translate into driver compensation, and if so, whether 
this would be a transfer from motor carriers or paid for via higher 
prices charged to shippers.
8.3 Regulatory Flexibility Act Analysis (Small Entities)
    Forty commenters, including 15 carriers and 13 drivers, expressed 
opinions on the impact on small entities. PMAA stated the cost would be 
a heavy burden for small companies. TCA stated with high fuel costs and 
expected tighter emission controls increasing the costs of new trucks, 
the cost of EOBRs is one more burden the majority of these carriers 
cannot afford. The Maryland State Police said mandating EOBRs could be 
economically disastrous for some carriers. OOIDA said the burden would 
be disproportionately borne by small entities, which do not have the 
purchasing power of larger carriers or the large number of revenue 
producing drivers across whom to spread EOBR costs; non-safety economic 
advantages of EOBRs also come at a cost and typically are only useful 
to those managing large fleets. OOIDA also stated small carriers are 
more likely to be selected for reviews, although until SafeStat is 
revised, it is difficult to be certain on that point; larger carriers 
are more sophisticated about disguising noncompliance.
    OOIDA also commented the most burdensome cost to small-business 
carriers will be the loss of drivers who are unwilling to drive for an 
EOBR-mandated motor carrier. As posited by OOIDA, for example, the cost 
of the initial installation of an EOBR into an existing truck has been 
estimated to be between $1,000 and $3,000. Either the motor carriers 
will face that cost for each truck, or the owner-operator will bear 
that cost. That cost may be prohibitive for a small-business, and 
owner-operators who face such a cost will quickly look for work for 
another carrier. Under either scenario, a motor carrier facing the 
mandate will go out of business.
    Response: All carriers are harmed, but especially small carriers, 
by companies that gain a competitive advantage by violating safety 
regulations. Although the majority of carriers are small businesses, 
most will not be subject to the remedial directive. Any competitive 
advantage gained by a small carrier by violating HOS will likely come 
at the expense of carriers with similar characteristics--size, 
geography, market share.
    Regarding comments concerning costs, costs for the most part are 
proportional to the number of power units a carrier would need to 
outfit. Carriers would incur an annual net expense of less than $100 
per power unit, less than 0.1 percent of annual revenue per power unit. 
Furthermore, even these modest costs are avoidable as long as carriers 
comply with the HOS rules.
8.4 Comments on Driver Health Considerations
    Three commenters criticized the Agency for failing to adequately 
consider driver health impacts in this rule. IBT stated carriers will 
use EOBRs to pressure drivers to increase productivity, which would 
increase their stress levels and adversely impact their health, and 
OOIDA stated the stress of being monitored alone is enough to harm 
driver health. Advocates, however, stated FMCSA's concern about the 
stress of using EOBRs distorted the research results of several 
studies, and the Agency had ignored potential health impacts of using 
EOBRs and improving compliance. Advocates contended the Agency's 
regulatory analysis ignored ``evidence of adverse

[[Page 17237]]

health impacts from the very long working hours associated with HOS 
violations.'' Furthermore, by not proposing to mandate EOBR use, 
Advocates held the Agency was not helping ``to ameliorate the adverse 
health impacts of exceptionally long working and driving hours 
triggered by the Agency's final rules in 2003 and in 2005.''
    Response: The Agency has addressed both positive and negative 
health impacts in Appendix A to the EA for this rule, which has been 
placed in the docket. The Agency carefully reviewed research on the 
potentially negative impacts of electronic monitoring and concluded 
that the use of EOBRs required in today's final rule will not result in 
negative impacts on driver health for two reasons: First, because 
monitoring of HOS compliance is an existing, not a new, requirement; 
and second, because the Agency is requiring EOBRs to monitor safety, 
not workplace productivity.
    The Agency has also not been able to statistically quantify 
significant health benefits from improved HOS compliance, although at 
least some benefits are anticipated to result, for at least some 
drivers. Cost and benefit estimates of the HOS regulations are included 
in the analysis for that separate rulemaking 72 FR 71247 (Dec. 17, 
2007). In addition, the underlying HOS regulations are the subject of a 
separate rulemaking action 72 FR 71247 (Dec. 17, 2007).

V. Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and DOT 
policies and procedures, FMCSA must determine whether a regulatory 
action is ``significant,'' and therefore subject to Office of 
Management and Budget (OMB) review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal government or communities.
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency.
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof.
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    FMCSA has determined this rule will have an annual effect of $100 
million or more, and is, therefore, an economically significant 
regulatory action within the meaning of the Executive Order and under 
the regulatory policies and procedures of DOT because of the level of 
public interest in rulemakings related to hours-of-service (HOS) 
compliance. The Agency has therefore conducted an RIA of the costs and 
benefits of this rule. The RIA is summarized below. The full analysis 
is available in the docket.
    After reconsidering the discussion in the NPRM, and based on 
comments received, FMCSA examined two regulatory options for the final 
rule--the 2 x 10 remedial directive proposed in the NPRM, and the 
considerably broader and more stringent 1 x 10 remedial directive. We 
understand the concerns of ATA and J.B. Hunt, among others, who believe 
the proposal did not cover enough carriers. While FMCSA acknowledges 
the safety concerns of those that support an industry-wide EOBR 
mandate, the Agency cannot extend the EOBR mandate in that manner in 
this final rule because the scope of the current rulemaking proceeding 
is limited to a compliance-based regulatory approach, implemented 
through a remedial directive. However, the number of motor carriers 
that will be required to install, use and maintain EOBRs is 
significantly greater under this final rule--using the 1 x 10 trigger--
than under the 2 x 10 trigger that was proposed in the NPRM. The RIA 
examines the costs and benefits of two regulatory options, the 2 x 10 
and the 1 x 10 remedial directives.
    Cost information was gathered from publicly available marketing 
materials and contact with EOBR vendors. The RIA focuses on the least 
expensive device determined to be compliant with the rule.\4\ We do not 
expect all carriers to use this specific device, only that it 
represents a device at the low end of the cost range of an EOBR that 
the Agency believes would be compliant with the provisions of the final 
rule.
---------------------------------------------------------------------------

    \4\ The least expensive device that satisfies the requirements 
of the rule was found to be the RouteTracker sold by Turnpike 
Global. Cost data are based on the use of this device with the 
Sprint network.
---------------------------------------------------------------------------

    For many carriers, this rule would not require new equipment. Some 
carriers already use AOBRDs, AOBRDs with enhanced functionality, or 
onboard systems with EOBR functionality, which the rule will allow them 
to continue using provided certain conditions are met. These carriers 
are excluded from cost and benefit calculations when appropriate. Other 
carriers employ Fleet Management Systems (FMS) that are capable of 
fulfilling this rule's requirements with the activation of available 
hardware or software functions. Estimates of costs are lower for 
carriers that already have partial or complete EOBR functionality.
    Costs were estimated on an annualized basis over a ten-year 
horizon. Costs and benefits that accrue throughout the year are 
presented at their present value at the beginning of the year. Training 
time costs for drivers, administrative staff, and State enforcement 
personnel were estimated. The analysis estimates the cost to carriers 
of coming into compliance with HOS and corresponding safety benefits as 
induced through EOBR use. Cost savings on paper log purchase, use, and 
processing are also assessed.
    Safety benefits of EOBR use are assessed by estimating reductions 
in HOS violations and resulting reductions in fatigue-related crashes. 
Other non-safety health effects (positive and negative) for drivers, as 
a result of the potential decreased driving time based on increased 
pressure on drivers to comply with the HOS regulations, are considered 
but not quantified in this analysis.
    The estimates of the total net benefits are presented below: Of the 
two regulatory options, the 1 x 10 remedial directive yields higher 
total net benefit.

[[Page 17238]]



                                            Total Annual Net Benefits
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                              Regulatory option 1: 1 x  Regulatory option 2: 2 x
                                                                10 remedial directive     10 remedial directive
----------------------------------------------------------------------------------------------------------------
Total Costs.................................................                    ($139)                     ($14)
Total Benefits..............................................                      182                        22
                                                             ---------------------------------------------------
    Net Benefits............................................                       43                         8
----------------------------------------------------------------------------------------------------------------

    Additionally, the overall crash rates of both the 1 x 10 remedial 
directive motor carriers and the 2 x 10 remedial directive motor 
carriers are considerably higher than the crash rates of the general 
motor carrier population. Using data from MCMIS and compliance review 
databases, crash rates were computed by dividing total crashes by each 
carrier's number of power units. The Agency compared crash rates 
between the general motor carrier population and 1 x 10 remedial 
directive motor carriers as well as between the general motor carrier 
population and 2 x 10 remedial directive motor carriers. The 1 x 10 
remedial directive motor carriers were found to have a 40 percent 
higher crash rate than that of other carriers that have undergone 
compliance reviews, and 2 x 10 remedial directive motor carriers had a 
90 percent higher crash rate than that of other carriers that have 
undergone compliance reviews. The final rule's application of a 
remedial directive to the 1 x 10 remedial directive motor carriers 
makes the best use of Agency resources and provides considerably higher 
net benefits to society.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C. 
601 et seq.), requires agencies to consider the impact of regulations 
on small businesses, small non-profit organizations, and small 
governmental jurisdictions, unless the Agency determines that a rule is 
not expected to have a significant economic impact on a substantial 
number of small entities (SEISNOSE). The remedial directive aspect of 
this rule will be applicable to about 2,800 motor carriers in the first 
year and 5,700 motor carriers each year thereafter. The Agency 
estimates that the total net cost of this rule will be less than $100 
per power unit per year, compared to revenues of over $100,000 per 
power unit per year. Based on the number of carriers affected and the 
overall cost impact to these carriers, the Agency does not expect this 
rule to have a SEISNOSE. The Agency has prepared a small business 
impact analysis for this rule that discusses its estimates of small 
business impacts. This analysis has been placed in the docket.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. The FMCSA determined that this rule will affect the OMB 
Control Number 2126-0001, ``Hours of Service of Drivers Regulation, 
Supporting Documents,'' information collection request (ICR), approved 
at 184,380,000 burden hours through December 31, 2011. The PRA requires 
agencies to provide a specific, objectively supported estimate of 
burden hours that will be imposed by the information collection. See 5 
CFR 1320.8. The requirement triggering the paperwork burden imposed by 
FMCSA's records of duty status requirement is set forth at 49 CFR 
395.8.
    The FMCSA estimated that the remedial provisions of this final 
rule, requiring the installation, use, and maintenance of EOBRs by 
motor carriers with a threshold rate of serious HOS violations, would 
affect approximately 5,700 motor carriers that employ 129,000 drivers 
annually. The use of EOBRs will reduce the annual burden hours for 
FMCSA's information collection OMB Control Number 2126-0001 by 
3,110,000 hours. The FMCSA's revised estimate of the annual burden of 
the IC is 181,270,000 hours (184,380,000-3,110,000).
    A supporting statement reflecting this assessment will be submitted 
to OMB together with this final rule.

Privacy Impact Assessment

    Section 522(a)(5) of the Transportation, Treasury, Independent 
Agencies, and General Government Appropriations Act, 2005, (Pub. L. 
108-447, div. H, 118 Stat. 2809, 3268) requires the Department of 
Transportation and certain other Federal agencies to conduct a privacy 
impact assessment (PIA) of each proposed rule that will affect the 
privacy of individuals. The Agency conducted a PIA for the NPRM, and we 
have augmented the PIA for this final rule and placed the revised 
version in the docket. Although the Agency determined that the same 
personally identifiable information (PII) for CMV drivers currently 
collected as part of the RODS and supporting documents requirements 
would continue to be collected under this rulemaking, it recognized the 
significance of the decision to require, even in limited circumstances, 
that PII previously kept in paper copy now be kept electronically. 
Privacy was a significant consideration in FMCSA's development of this 
proposal. As stated earlier, we recognize that the need for a 
verifiable EOBR audit trail--a detailed set of records to verify time 
and physical location data for a particular CMV--must be 
counterbalanced by privacy considerations. The Agency considered, but 
rejected, certain alternative technologies to monitor drivers' HOS 
(including in-cab video cameras and bio-monitors) as too invasive of 
personal privacy. All CMV drivers subject to 49 CFR part 395 must have 
their HOS accounted for to ensure they have adequate opportunities for 
rest. This final rule would not change the Agency's policies, 
practices, or regulations regarding its own collection and storage of 
HOS records of individual drivers whose RODS are reviewed. The expanded 
review procedures under the random review incentive, however, would 
enlarge the population of drivers whose RODS are reviewed for those 
carriers. It would also change the technology by which compliance is to 
be documented, in a way that facilitates both the sharing of 
information and its capacity to be data processed.
    As before, the HOS information recorded on EOBRs would be 
accessible to Federal and State enforcement personnel only when 
compliance assurance activities are conducted at the facilities of 
motor carriers subject to the RODS requirement or when the CMVs of 
those carriers are inspected at roadside. Motor carriers would not be 
required to upload this information into Federal or

[[Page 17239]]

State information systems accessible to the public. This would aid data 
security and ensure that general EOBR data collection does not result 
in a new or revised Privacy Act System of Records for FMCSA. (Evidence 
of violation of any FMCSA requirements uncovered during either of these 
activities is transferred to a DOT/FMCSA Privacy Act record system.) 
Data accuracy concerning drivers' RODS should improve as a result of 
the new performance standards for EOBRs, allowing drivers to make EOBR 
entries to identify any errors or inconsistencies in the data, and 
mandating EOBR use by motor carriers with a history of serious HOS 
noncompliance.
    What would change, and change significantly, is the capacity of 
this data to be processed and converted to more usable information for 
the purpose of determining drivers' and motor carriers' compliance with 
the HOS regulations. Although no CMV operator would be required to 
upload this data to a Federal or State database accessible to the 
public, the electronic formulation of the data would make it easier for 
a CMV operator to keep track of the activities of its drivers. 
Similarly, Federal and State law enforcement and safety authorities, 
including FMCSA, would be better able to do the same. As shown in other 
contexts, the increased accessibility, accuracy, and reliability of 
geospatial location information has made electronically generated and 
preserved data attractive to a variety of audiences. On balance, we 
must compel use of these devices in those situations described in this 
rule. The entire privacy impact assessment is available in the docket 
for this rule.

Unfunded Mandates Reform Act

    This rule would not result in the net expenditure by State, local 
and Tribal governments, in the aggregate, or by the private sector, of 
$141,300,000 or more in any one year, nor would it affect small 
governments. Therefore, no actions are deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132 (Federalism)

    This rulemaking would not preempt or modify any provision of State 
law, impose substantial direct unreimbursed compliance costs on any 
State, or diminish the power of any State to enforce its own laws. 
Accordingly, this rulemaking does not have Federalism implications 
warranting the application of Executive Order 13132.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
rule.

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321 et seq., as amended) requires Federal agencies to consider the 
consequences of, and prepare a detailed statement on, all major Federal 
actions significantly affecting the quality of the human environment. 
In accordance with its procedures for implementing NEPA (FMCSA Order 
5610.1, Chapter 2.D.4(c) and Appendix 3), FMCSA prepared an EA to 
review the potential impacts of this rulemaking. The EA findings are 
summarized below. The full EA is in the docket.
    Implementation of this action would alter to some extent the 
operation of CMVs. However, the rule will not require any new 
construction or change significantly the number of CMVs in operation. 
FMCSA found, therefore, that noise, hazardous materials, endangered 
species, cultural resources protected under the National Historic 
Preservation Act, wetlands, and resources protected under Section 4(f) 
of the Department of Transportation Act would not be impacted by the 
rule.
    The EA also examined impacts on air quality and public safety. We 
anticipate that drivers of CMVs operated by carriers that have been 
issued an EOBR remedial directive will now take the full off-duty 
periods required by the HOS rules. During off-duty periods, drivers 
frequently leave the CMV parked in ``idle,'' which increases engine 
emissions on a per-mile basis. Hence, drivers for remediated carriers 
will cause a modest overall increase in engine emissions by virtue of 
additional drivers coming into compliance with the HOS regulations. 
Because the number of trucks likely to be required to install EOBRs is 
relatively small (139,000 out of 4.2 million total CMVs), FMCSA 
determined that the increase in air toxics would be negligible. 
Moreover, because drivers for carriers brought into HOS compliance will 
experience less fatigue and be less likely to have fatigue-related 
crashes, there will be a counterbalancing increase in public safety.
    FMCSA concludes that the rule changes will have a negligible impact 
on the environment. The provisions under the action do not, 
individually or collectively, pose any significant environmental 
impact. Therefore, this rule change will not require an environmental 
impact statement. Consequently, FMCSA issues a Finding of No 
Significant Impact (FONSI) in the EA for this final rule.

Executive Order 13211 (Energy Supply, Distribution or Use)

    FMCSA determined that the rule will not significantly affect energy 
supply, distribution, or use. No Statement of Energy Effects is 
therefore required.

Executive Order 12898 (Environmental Justice)

    FMCSA considered the effects of this final rule in accordance with 
Executive Order 12898 and DOT Order 5610.2 on addressing Environmental 
Justice for Minority Populations and Low-Income Populations, published 
April 15, 1997 (62 FR 18377) and determined that there are no 
environmental justice issues associated with this rule or any 
collective environmental impact resulting from its promulgation. 
Environmental justice issues would be raised if there were 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations. None of the regulatory options considered in 
this rulemaking will result in high and adverse environmental impacts.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires 
agencies issuing ``economically significant'' rules, if the regulation 
also concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. Although the rule is economically significant, it will 
improve safety; the rule also would not have a disproportionate affect 
on children. Therefore, FMCSA has determined that an analysis of the 
impacts on children is not required.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have

[[Page 17240]]

taking implications under E. O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) requires Federal agencies proposing to adopt Government technical 
standards to consider whether voluntary consensus standards are 
available. If the Agency chooses to adopt its own standards in place of 
existing voluntary consensus standards, it must explain its decision in 
a separate statement to OMB.
    FMCSA determined there are no voluntary national consensus 
standards for the design of EOBRs as complete units. However, there are 
many voluntary consensus standards concerning communications and 
information interchange methods that could be referenced as part of 
comprehensive performance-based requirements for EOBRs to ensure their 
reliable and consistent utilization by motor carriers and motor carrier 
safety compliance assurance officials. For example, the digital 
character set would reference the ASCII (American Standard Code for 
Information Interchange) character set specifications, the most widely 
used form of which is ANSI X3.4-1986. This is described in the 
``American National Standard for Information Systems--Coded Character 
Sets--7-Bit American National Standard Code for Information Interchange 
(7-Bit ASCII) (ANSI document  ANSI INCITS 4-1986 (R2007)) 
published by the American National Standards Institute (ANSI). The 
standard is available by contacting the American National Standards 
Institute, 11 West 42nd Street, New York, New York 10036, or by 
visiting the ANSI Web site at http://webstore.ansi.org. In another 
example, the Agency would reference the 802.11g-2003 standard as 
defined in the 802.11-2007 base standard for wireless communication 
published by IEEE (Institute of Electrical and Electronics Engineers).
    We did review and evaluate the European Commission Council 
Regulations 3821/85 (analog tachograph) and 2135/98 (digital 
tachograph). These are not voluntary standards, but rather are design-
specific type-certification programs. We concluded these standards lack 
several features and functions (such as CMV location tracking and the 
ability for the driver to enter remarks) that FMCSA has included in its 
performance-based final rule, and require other features (such as an 
integrated license document on the driver's data card) that are not 
appropriate for U.S. operational practices.

List of Subjects

49 CFR Part 350

    Grant programs--transportation, Highway safety, Motor carriers, 
Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 385

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping.

49 CFR Part 395

    Highway safety, Incorporation by reference, Motor carriers, 
Reporting and recordkeeping.

49 CFR Part 396

    Highways and roads, Motor carriers, Motor vehicle equipment, Motor 
vehicle safety.

0
For the reasons stated in the preamble, FMCSA amends 49 CFR chapter III 
as set forth below:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

0
1. The authority citation for part 350 is revised to read as follows:

    Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.


0
2. Amend Sec.  350.201 by revising the introductory text and adding a 
new paragraph (z) to read as follows:


Sec.  350.201  What conditions must a State meet to qualify for Basic 
Program Funds?

    Each State must meet the following 26 conditions:
* * * * *
    (z) Enforce requirements relating to FMCSA remedial directives 
issued in accordance with 49 CFR part 385, subpart J, including 
providing inspection services for verification of electronic on-board 
recorder installation and operation as provided in Sec.  385.811(b).

PART 385--SAFETY FITNESS PROCEDURES

0
3. Revise the authority citation for part 385 to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec. 
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350, Pub. L. 
107-87; and 49 CFR 1.73.


0
4. Amend Sec.  385.1 by revising paragraph (a) to read as follows:


Sec.  385.1  Purpose and scope.

    (a) This part establishes FMCSA's procedures to determine the 
safety fitness of motor carriers, to assign safety ratings, to direct 
motor carriers to take remedial action when required, and to prohibit 
motor carriers determined to be unfit from operating a CMV.
* * * * *

0
5. Amend Sec.  385.3 by adding a definition for the term ``safety 
fitness determination'' in alphabetical order, by removing the existing 
definition for the term ``safety ratings,'' and by adding a new 
definition for the term ``safety rating or rating'' to read as follows:


Sec.  385.3  Definitions and acronyms.

* * * * *
    Safety fitness determination means the final determination by FMCSA 
that a motor carrier meets the safety fitness standard under Sec.  
385.5.
    Safety rating or rating means a rating of ``Satisfactory,'' 
``Conditional'' or ``Unsatisfactory,'' which the FMCSA assigns to a 
motor carrier using the factors prescribed in Sec.  385.7, as computed 
under the Safety Fitness Rating Methodology (SFRM) set forth in 
Appendix B to this part and based on the carrier's demonstration of 
adequate safety management controls under Sec.  385.5(a). A safety 
rating of ``Satisfactory'' or ``Conditional'' is necessary, but not 
sufficient, to meet the overall safety fitness standard under Sec.  
385.5.
    (1) Satisfactory safety rating means that a motor carrier has in 
place and functioning safety management controls adequate to meet that 
portion of the safety fitness standard prescribed in Sec.  385.5(a). 
Safety management controls are adequate for this purpose if they are 
appropriate for the size and type of operation of the particular motor 
carrier.
    (2) Conditional safety rating means a motor carrier does not have 
adequate safety management controls in place to ensure compliance with 
that portion of the safety fitness standard prescribed in Sec.  
385.5(a), which could result in occurrences listed in Sec.  385.5(a)(1) 
through (a)(11).
    (3) Unsatisfactory safety rating means a motor carrier does not 
have adequate safety management controls in place to ensure compliance 
with that portion of the safety fitness standard prescribed in Sec.  
385.5(a), and this has resulted in occurrences listed in Sec.  
385.5(a)(1) through (a)(11).
    (4) Unrated carrier means that the FMCSA has not assigned a safety 
rating to the motor carrier.

[[Page 17241]]


0
6. Revise Sec.  385.5 to read as follows:


Sec.  385.5  Safety fitness standard.

    A motor carrier must meet the safety fitness standard set forth in 
this section. Intrastate motor carriers subject to the hazardous 
materials safety permit requirements of subpart E of this part must 
meet the equivalent State requirements. To meet the safety fitness 
standard, the motor carrier must demonstrate the following:
    (a) It has adequate safety management controls in place, which 
function effectively to ensure acceptable compliance with applicable 
safety requirements to reduce the risk associated with:
    (1) Commercial driver's license standard violations (part 383 of 
this chapter),
    (2) Inadequate levels of financial responsibility (part 387 of this 
chapter),
    (3) The use of unqualified drivers (part 391 of this chapter),
    (4) Improper use and driving of motor vehicles (part 392 of this 
chapter),
    (5) Unsafe vehicles operating on the highways (part 393 of this 
chapter),
    (6) Failure to maintain accident registers and copies of accident 
reports (part 390 of this chapter),
    (7) The use of fatigued drivers (part 395 of this chapter),
    (8) Inadequate inspection, repair, and maintenance of vehicles 
(part 396 of this chapter),
    (9) Transportation of hazardous materials, driving and parking rule 
violations (part 397 of this chapter),
    (10) Violation of hazardous materials regulations (parts 170 
through 177 of this title), and
    (11) Motor vehicle accidents, as defined in Sec.  390.5 of this 
chapter, and hazardous materials incidents.
    (b) The motor carrier has complied with all requirements contained 
in any remedial directive issued under subpart J of this part.

0
7. Amend Sec.  385.9 by revising paragraph (a) to read as follows:


Sec.  385.9  Determination of a safety rating.

    (a) Following a compliance review of a motor carrier operation, 
FMCSA, using the factors prescribed in Sec.  385.7 as computed under 
the Safety Fitness Rating Methodology set forth in Appendix B to this 
part, shall determine whether the present operations of the motor 
carrier are consistent with that portion of the safety fitness standard 
set forth in Sec.  385.5(a), and assign a safety rating accordingly.
* * * * *

0
8. Amend Sec.  385.11 by revising the section heading and adding 
paragraph (g) to read as follows:


Sec.  385.11   Notification of safety rating and safety fitness 
determination.

* * * * *
    (g) If a motor carrier is subject to a remedial directive and 
proposed determination of unfitness under subpart J of this part, the 
notice of remedial directive will constitute the notice of safety 
fitness determination. If FMCSA has not issued a notice of remedial 
directive and proposed determination of unfitness under subpart J of 
this part, a notice of a proposed or final safety rating will 
constitute the notice of safety fitness determination.
0
9. Amend Sec.  385.13 by adding paragraph (e) as follows:


Sec.  385.13  Unsatisfactory rated motor carriers; prohibition on 
transportation; ineligibility for Federal contracts.

* * * * *
    (e) Revocation of operating authority. If a proposed 
``unsatisfactory'' safety rating or a proposed determination of 
unfitness becomes final, the FMCSA will, following notice, issue an 
order revoking the operating authority of the owner or operator. For 
purposes of this section, the term ``operating authority'' means the 
registration required under 49 U.S.C. 13902 and Sec.  392.9a of this 
subchapter. Any motor carrier that operates CMVs after revocation of 
its operating authority will be subject to the penalty provisions 
listed in 49 U.S.C. 14901.

0
10. Amend Sec.  385.15 by revising paragraph (a) to read as follows:


Sec.  385.15  Administrative review.

    (a) A motor carrier may request the FMCSA to conduct an 
administrative review if it believes FMCSA has committed an error in 
assigning its proposed safety rating in accordance with Sec.  385.11(c) 
or its final safety rating in accordance with Sec.  385.11(b).
* * * * *

0
11. Amend Sec.  385.17 by adding paragraphs (k) and (l) to read as 
follows:


Sec.  385.17   Change to safety rating based upon corrective actions.

* * * * *
    (k) An upgraded safety rating based upon corrective action under 
this section will have no effect on an otherwise applicable notice of 
remedial directive, or proposed determination of unfitness issued in 
accordance with subpart J of this part.
    (l) A motor carrier may not request a rescission of a determination 
of unfitness issued under subpart J of this part based on corrective 
action.

0
12. Amend Sec.  385.19 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  385.19  Safety fitness information.

    (a) Final safety ratings, remedial directives, and safety fitness 
determinations will be made available to other Federal and State 
agencies in writing, telephonically, or by remote computer access.
    (b) The final safety rating, any applicable remedial directive(s), 
and the safety fitness determination pertaining to a motor carrier will 
be made available to the public upon request. Any person requesting 
information under this paragraph must provide FMCSA with the motor 
carrier's name, principal office address, and, if known, the USDOT 
Number or the Interstate Commerce Commission MC (ICCMC) docket number 
if any.
* * * * *

0
13. Amend Sec.  385.407 by revising paragraph (a) to read as follows:


Sec.  385.407  What conditions must a motor carrier satisfy for FMCSA 
to issue a safety permit?

    (a) Motor carrier safety performance. (1) The motor carrier:
    (i) Must be in compliance with any remedial directive issued under 
subpart J of this part, and
    (ii) Must have a ``Satisfactory'' safety rating assigned by either 
FMCSA, under the Safety Fitness Procedures of this part, or the State 
in which the motor carrier has its principal place of business, if the 
State has adopted and implemented safety fitness procedures that are 
equivalent to the procedures in subpart A of this part.
    (2) FMCSA will not issue a safety permit to a motor carrier that:
    (i) Does not certify that it has a satisfactory security program as 
required in Sec.  385.407(b);
    (ii) Has a crash rate in the top 30 percent of the national average 
as indicated in FMCSA Motor Carrier Management Information System 
(MCMIS); or
    (iii) Has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average as indicated 
in the MCMIS.
* * * * *

0
14. Amend part 385 by adding a new subpart J consisting of new 
Sec. Sec.  385.801 through 385.819 to read as follows:
Subpart J--Remedial Directives
Sec.
385.801 Purpose and scope.
385.803 Definitions and acronyms.
385.805 Events triggering issuance of remedial directive and 
proposed determination of unfitness.
385.807 Notice and issuance of remedial directive.
385.809 [Reserved]

[[Page 17242]]

385.811 Proof of compliance with remedial directive.
385.813 Issuance and conditional rescission of proposed unfitness 
determination.
385.815 Exemption for AOBRD users.
385.817 Administrative review.
385.819 Effective of failure to comply with remedial directive.

Subpart J--Remedial Directives


Sec.  385.801  Purpose and scope.

    (a) This subpart establishes procedures for FMCSA's issuance of 
notices of remedial directives and proposed determinations of 
unfitness.
    (b) This subpart establishes the circumstances under which FMCSA 
will direct motor carriers (including owner-operators leased to motor 
carriers, regardless of whether the owner-operator has separate 
operating authority under part 365), in accordance with Sec.  385.1(a), 
to install electronic on-board recorders (EOBRs) in their commercial 
motor vehicles as a remedy for threshold rate violations, as defined by 
Sec.  385.803, of the part 395 hours-of-service regulations listed in 
Appendix C to this part.
    (c) This subpart establishes the procedures by which motor carriers 
may challenge FMCSA's issuance of proposed determinations of unfitness 
and remedial directives.
    (d) The provisions of this subpart apply to all motor carriers 
subject to the requirements of part 395 of this chapter.


Sec.  385.803  Definitions and acronyms.

    (a) The definitions in subpart A of this part and part 390 of this 
chapter apply to this subpart, except where otherwise specifically 
noted.
    (b) As used in this subpart, the following terms have the meaning 
specified:
    Appendix C regulation means any of the regulations listed in 
Appendix C to Part 385 of this chapter.
    Appendix C violation means a violation of any of the regulations 
listed in Appendix C to part 385 of this chapter.
    Electronic on-board recording device (EOBR) means an electronic 
device that is capable of recording a driver's duty hours of service 
and duty status accurately and automatically and that meets the 
requirements of Sec.  395.16 of this chapter.
    Final determination for purposes of part 385, subpart J means:
    (1) An adjudication under this subpart upholding a notice of 
remedial directive and proposed unfitness determination;
    (2) The expiration of the period for filing a request for 
administrative review of remedial directive and proposed unfitness 
determination under this subpart; or
    (3) The entry of a settlement agreement stipulating that the 
carrier is subject to mandatory EOBR installation, use, and maintenance 
requirements.
    Motor carrier includes owner-operators leased to carriers subject 
to a remedial directive, regardless of whether the owner-operator has 
separate operating authority under part 365 of this chapter.
    Proposed determination of unfitness or proposed unfitness 
determination means a determination by FMCSA that a motor carrier will 
not meet the safety fitness standard under Sec.  385.5 on a specified 
future date unless the carrier takes the actions necessary to comply 
with the terms of a remedial directive issued under this subpart.
    Remedial directive means a mandatory instruction from FMCSA to take 
one or more specified action(s) as a condition of demonstrating safety 
fitness under 49 U.S.C. 31144(b).
    Threshold rate violation for the purposes of this subpart means a 
violation rate for any Appendix C regulation equal to or greater than 
10 percent of the number of records reviewed.


Sec.  385.805  Events triggering issuance of remedial directive and 
proposed determination of unfitness.

    A motor carrier subject to 49 CFR part 395 will be subject to a 
remedial directive and proposed unfitness determination in accordance 
with this subpart for threshold rate violations of any Appendix C 
regulation or regulations that have been documented during a compliance 
review. A remedial directive and proposed unfitness determination will 
be issued if a compliance review conducted on the motor carrier 
resulted in a final determination of one or more threshold rate 
violations of any Appendix C regulation are discovered.


Sec.  385.807  Notice and issuance of remedial directive.

    (a) Following the close of the compliance review described in Sec.  
385.805(a), FMCSA will issue the motor carrier a written notice of 
remedial directive and proposed determination of unfitness. FMCSA will 
issue the notice and proposed determination as soon as practicable, but 
not later than 30 days after the close of the review.
    (b) The remedial directive will state that the motor carrier is 
required to install and maintain EOBRs compliant with Sec.  395.16 of 
this chapter in all of the motor carrier's CMVs and to use the EOBRS to 
record its drivers' hours of service pursuant to Sec.  395.16. The 
motor carrier shall provide proof of the installation to FMCSA in 
accordance with Sec.  385.811 within the following time periods:
    (1) Motor carriers transporting hazardous materials in quantities 
requiring placarding, and motor carriers transporting passengers in a 
CMV, must install EOBRs and provide proof of the installation by the 
45th day after the date of the notice of remedial directive.
    (2) All other motor carriers must install EOBRs and provide proof 
of installation by the 60th day after the date of FMCSA's notice of 
remedial directive. If FMCSA determines the motor carrier is making a 
good-faith effort to comply with the terms of the remedial directive, 
FMCSA may allow the motor carrier to operate for up to 60 additional 
days.
    (3) A motor carrier may challenge the notice of remedial directive 
and proposed determination of unfitness in accordance with Sec.  
385.817.


Sec.  385.809  [Reserved]


Sec.  385.811  Proof of compliance with remedial directive.

    (a) Motor carriers subject to a remedial directive to install EOBRs 
under this section must provide proof of EOBR installation by one of 
the following:
    (1) Submitting all of the carrier's CMVs for visual and functional 
inspection by FMCSA or qualified State enforcement personnel.
    (2) Transmitting to the FMCSA service center for the geographic 
area where the carrier maintains its principal place of business all of 
the following documentation:
    (i) Receipts for all necessary EOBR purchases.
    (ii) Receipts for the installation work.
    (iii) Digital or other photographic evidence depicting the 
installed devices in the carrier's CMVs.
    (iv) Documentation of the EOBR serial number for the specific 
device corresponding to each CMV in which the device has been 
installed.
    (3) If no receipt is submitted for an installed device or the 
installation work in accordance with paragraph (a)(2) of this section, 
the carrier must submit a written statement explaining who installed 
the devices, how many devices were installed, the manufacturer and 
model numbers of the devices installed, and the vehicle identification 
numbers of the CMVs in which the devices were installed.
    (b) Visual and functional EOBR inspections may be performed at any

[[Page 17243]]

FMCSA roadside inspection station or at the roadside inspection or 
weigh station facility of any State that receives Motor Carrier Safety 
Assistance Program funds under 49 U.S.C. 31102 and that provides such 
inspection services. The carrier may also request such inspections be 
performed at its principal place of business.
    (c) Motor carriers issued remedial directives pursuant to this 
section must install in all of their CMVs EOBRs meeting the standards 
set forth in 49 CFR 395.16. Such motor carriers must maintain and use 
the EOBRs to verify compliance with part 395 for a period of 2 years 
following the issuance of the remedial directive. In addition to any 
other requirements imposed by the FMCSRs, during the period of time the 
carrier is subject to a remedial directive the carrier must maintain 
all records and reports generated by the EOBRs and, upon demand, 
produce those records to FMCSA personnel.
    (d) Malfunctioning devices. Motor carriers subject to remedial 
directives shall maintain EOBRs installed in their CMVs in good working 
order. Such carriers must cause any malfunctioning EOBR to be repaired 
or replaced within 14 days from the date the carrier becomes aware of 
the malfunction. During this repair or replacement period, carriers 
subject to a remedial directive under this part must prepare a paper 
record of duty status pursuant to Sec.  395.8 of this chapter as a 
temporary replacement for the non-functioning EOBR unit. All other 
provisions of the remedial directive will continue to apply during the 
repair and replacement period. Failure to comply with the terms of this 
paragraph may subject the affected CMV and/or driver to an out-of-
service order pursuant to Sec.  396.9(c) and Sec.  395.13 of this 
chapter, respectively. Repeated violations of this paragraph may 
subject the motor carrier to the provisions of Sec.  385.819.


Sec.  385.813  Issuance and conditional rescission of proposed 
unfitness determination.

    (a) Simultaneously with the notice of remedial directive, FMCSA 
will issue a proposed unfitness determination. The proposed unfitness 
determination will explain that, if the motor carrier fails to comply 
with the terms of the remedial directive, the carrier will be unfit 
under the fitness standard in Sec.  385.5, prohibited from engaging in 
interstate operations and intrastate operations affecting interstate 
commerce, and, in the case of a carrier registered under 49 U.S.C. 
13902, have its registration revoked.
    (b) FMCSA will conditionally rescind the proposed determination of 
unfitness upon the motor carrier's submission of sufficient proof of 
EOBR installation in accordance with Sec.  385.811.
    (c) During the period the remedial directive is in effect, FMCSA 
may reinstate the proposed unfitness determination and immediately 
prohibit the motor carrier from operating in interstate commerce and 
intrastate operations affecting interstate commerce if the motor 
carrier violates the provisions of the remedial directive.


Sec.  385.815  Exemption for AOBRD users.

    (a) Upon written request by the motor carrier, FMCSA will grant an 
exception from the requirements of remedial directives under this 
section to motor carriers that already had installed in all commercial 
motor vehicles, at the time of the compliance review immediately 
preceding the issuance of the notice of remedial directive, AOBRDs 
compliant with 49 CFR 395.15 of this chapter.
    (b) The carrier will be permitted to continue using the previously 
installed devices if the carrier can satisfactorily demonstrate to 
FMCSA that the carrier and its employees understand how to use the 
AOBRDs and the information derived from them.
    (c) The carrier must either use and maintain the AOBRDs currently 
in its CMVs or install new devices compliance with Sec.  395.16 of this 
chapter.
    (d) Although FMCSA may suspend enforcement for noncompliance with 
the remedial directive, the directive will remain in effect; and the 
hours-of-service compliance of any motor carrier so exempted, will be 
subject to ongoing FMCSA oversight.
    (e) The exemption granted under this section shall not apply to 
CMVs manufactured on or after the date 2 years from the effective date 
of this rule.


Sec.  385.817  Administrative review.

    (a) A motor carrier may request FMCSA to conduct an administrative 
review if the carrier believes FMCSA has committed an error in issuing 
a notice of remedial directive under Sec.  385.807 and proposed 
unfitness determination under Sec.  385.813. Administrative reviews of 
notices of remedial directive and proposed unfitness determinations are 
limited to findings in the compliance review immediately preceding the 
notice.
    (b) The motor carrier's request must explain the error it believes 
FMCSA committed in issuing the notice of remedial directive and 
proposed unfitness determination. The motor carrier must include a list 
of all factual and procedural issues in dispute and any information or 
documents that support its argument.
    (c) The motor carrier must submit its request in writing to the 
Assistant Administrator, Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590. The motor carrier 
must submit on the same day a copy of the request to FMCSA counsel in 
the FMCSA service center for the geographic area where the carrier 
maintains its principal place of business.
    (1) If a motor carrier has received a notice of remedial directive 
and proposed unfitness determination, the carrier should submit its 
request in writing within 15 days from the date of the notice. This 
timeframe will allow FMCSA to issue a written decision before the 
prohibitions outlined in Sec.  385.819(a) take effect. If the carrier 
submits its request for administrative review within 15 days of the 
issuance of the notice of remedial directive and proposed unfitness 
determination, FMCSA will stay the finality of the proposed unfitness 
determination until the Agency has ruled on the carrier's request. 
Failure to submit the request within this 15-day period may prevent 
FMCSA from ruling on the request before the prohibitions take effect.
    (2) A motor carrier must make a request for an administrative 
review within 90 days after the date of the notice of remedial 
directive and proposed determination of unfitness under Sec.  385.807.
    (d) FMCSA may request the motor carrier to submit additional data 
or attend a conference to discuss the request for review. If the motor 
carrier does not provide the information requested, or does not attend 
the conference, FMCSA may dismiss its request for review.
    (e) FMCSA will notify the motor carrier in writing of its decision 
following the administrative review. FMCSA will complete its review:
    (1) Within 30 days after receiving a request from a hazardous 
materials or passenger motor carrier that has received a proposed 
unfitness determination;
    (2) Within 45 days after receiving a request from any other motor 
carrier that has received a proposed unfitness determination;
    (3) With respect to requests for administrative review of notices 
of remedial directive, as soon as practicable but not later than 60 
days after receiving the request.
    (f) The decision regarding a proposed unfitness determination 
constitutes final Agency action.

[[Page 17244]]

    (g) The provisions of this section will not affect procedures for 
administrative review of proposed or final safety ratings in accordance 
with Sec.  385.15 or for requests for changes to safety ratings based 
upon corrective action in accordance with Sec.  385.17.


Sec.  385.819  Effect of failure to comply with remedial directive.

    (a) A motor carrier that fails or refuses to comply with the terms 
of a remedial directive issued under this subpart, including a failure 
or refusal to provide proof of EOBR installation in accordance with 
Sec.  385.811, does not meet the safety fitness standard set forth in 
Sec.  385.5(b). With respect to such carriers, the proposed 
determination of unfitness issued in accordance with Sec.  385.813 
becomes final, and the motor carrier is prohibited from operating, as 
follows:
    (1) Motor carriers transporting hazardous materials in quantities 
requiring placarding and motor carriers transporting passengers in a 
CMV are prohibited from operating CMVs in interstate commerce and in 
operations that affect interstate commerce beginning on the 46th day 
after the date of FMCSA's notice of remedial directive and proposed 
unfitness determination. A motor carrier subject to the registration 
requirements of 49 U.S.C. 13901 will have its registration revoked on 
the 46th day after the date of FMCSA's notice of remedial directive and 
proposed unfitness determination.
    (2) All other motor carriers are prohibited from operating a CMV in 
interstate commerce and in operations that affect interstate commerce 
beginning on the 61st day after the date of FMCSA's notice of remedial 
directive and proposed unfitness determination. A motor carrier subject 
to the registration requirements of 49 U.S.C. 13901 will have its 
registration revoked on the 61st day after the date of FMCSA's notice 
of remedial directive and proposed unfitness determination. If FMCSA 
determines the motor carrier is making a good-faith effort to satisfy 
the terms of the remedial directive, FMCSA may allow the motor carrier 
to operate for up to 60 additional days.
    (b) If a proposed unfitness determination becomes a final 
determination, FMCSA will issue an order prohibiting the motor carrier 
from operating in interstate commerce. If the motor carrier is required 
to register under 49 U.S.C. 13901, FMCSA will revoke the motor 
carrier's registration on the dates specified in Sec.  385.819(a)(1) 
and (a)(2).
    (c) If FMCSA has prohibited a motor carrier from operating in 
interstate commerce under paragraph (a) of this section and, if 
applicable, revoked the carrier's registration, and the motor carrier 
subsequently complies with the terms and conditions of the remedial 
directive and provides proof of EOBR installation under Sec.  385.811, 
the carrier may request FMCSA to lift the prohibition on operations at 
any time after the prohibition becomes effective. The request should be 
submitted in writing in accordance with Sec.  385.817(c).
    (d) A Federal Agency must not use for CMV transportation a motor 
carrier that FMCSA has determined is unfit.
    (e) Penalties. If a proposed unfitness determination becomes a 
final determination, FMCSA will issue an order prohibiting the motor 
carrier from operating in interstate commerce and any intrastate 
operations that affect interstate commerce and, if applicable, revoking 
its registration. Any motor carrier that operates a CMV in violation of 
this section will be subject to the penalty provisions listed in 49 
U.S.C. 521(b).

0
15. Amend Appendix B to part 385 by revising paragraphs (b), (c), and 
(d) and section VI, paragraph (a), to read as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *
    (b) As directed, FMCSA promulgated a safety fitness regulation, 
entitled ``Safety Fitness Procedures,'' which established a 
procedure to determine the safety fitness of motor carriers through 
the assignment of safety ratings and established a ``safety fitness 
standard'' that a motor carrier must meet to obtain a 
``Satisfactory'' safety rating. FMCSA later amended the safety 
fitness standard to add a distinct requirement that motor carriers 
also be in compliance with applicable remedial directives.
    (c) To meet the safety fitness standard, a motor carrier must 
meet two requirements. First, the carrier must demonstrate to FMCSA 
it has adequate safety management controls in place that function 
effectively to ensure acceptable compliance with the applicable 
safety requirements. (See Sec.  385.5(a)). A ``safety fitness rating 
methodology'' (SFRM) developed by FMCSA uses data from compliance 
reviews (CRs) and roadside inspections to rate motor carriers. 
Second, a motor carrier must also be in compliance with any 
applicable remedial directives issued in accordance with subpart J. 
This second requirement is set forth in Sec.  385.5(b).
    (d) The safety rating process developed by FMCSA is used to:
    1. Evaluate the first component of the safety fitness standard, 
under Sec.  385.5(a), and assign one of three safety ratings 
(Satisfactory, Conditional, or Unsatisfactory) to motor carriers 
operating in interstate commerce. This process conforms to Sec.  
385.5(a), Safety fitness standard, and Sec.  385.7, Factors to be 
considered in determining a safety rating.
    2. Identify motor carriers needing improvement in their 
compliance with the Federal Motor Carrier Safety Regulations 
(FMCSRs) and applicable Hazardous Materials Regulations (HMRs). 
These are carriers rated Unsatisfactory or Conditional.
* * * * *

VI. Conclusion

    (a) FMCSA believes this ``safety fitness rating methodology'' is 
a reasonable approach to assignment of a safety rating, as required 
by the safety fitness regulations (Sec.  385.9), that most closely 
reflects the motor carrier's current level of compliance with the 
safety fitness standard in Sec.  385.5(a). This methodology has the 
capability to incorporate regulatory changes as they occur.
* * * * *


0
16. Add Appendix C to part 385 to read as follows:

Appendix C to Part 385--Regulations Pertaining to Remedial Directives 
in Part 385, Subpart J

    Sec.  395.1(h)(1)(i) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 15 hours (Driving 
in Alaska).
    Sec.  395.1(h)(1)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been 
on duty 20 hours (Driving in Alaska).
    Sec.  395.1(h)(1)(iii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 70 hours in 7 consecutive days (Driving in 
Alaska).
    Sec.  395.1(h)(1)(iv) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 80 hours in 8 consecutive days (Driving in 
Alaska).
    Sec.  395.1(h)(2)(i) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive more than 15 hours 
(Driving in Alaska).
    Sec.  395.1(h)(2)(ii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been 
on duty 20 hours (Driving in Alaska).
    Sec.  395.1(h)(2)(iii) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 70 hours in 7 consecutive days (Driving in 
Alaska).
    Sec.  395.1(h)(2)(iv) Requiring or permitting a passenger-
carrying commercial motor vehicle driver to drive after having been 
on duty more than 80 hours in 8 consecutive days (Driving in 
Alaska).
    Sec.  395.1(o) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after having been on duty 
16 consecutive hours.
    Sec.  395.3(a)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive more than 11 hours.
    Sec.  395.3(a)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after the end of the 14th 
hour after coming on duty.
    Sec.  395.3(b)(1) Requiring or permitting a property-carrying 
commercial motor vehicle

[[Page 17245]]

driver to drive after having been on duty more than 60 hours in 7 
consecutive days.
    Sec.  395.3(b)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 70 hours in 8 consecutive days.
    Sec.  395.3(c)(1) Requiring or permitting a property-carrying 
commercial motor vehicle driver to restart a period of 7 consecutive 
days without taking an off-duty period of 34 or more consecutive 
hours.
    Sec.  395.3(c)(2) Requiring or permitting a property-carrying 
commercial motor vehicle driver to restart a period of 8 consecutive 
days without taking an off-duty period of 34 or more consecutive 
hours.
    Sec.  395.5(a)(1) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive more than 10 hours.
    Sec.  395.5(a)(2) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive after having been on duty 
15 hours.
    Sec.  395.5(b)(1) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 60 hours in 7 consecutive days.
    Sec.  395.5(b)(2) Requiring or permitting a passenger-carrying 
commercial motor vehicle driver to drive after having been on duty 
more than 70 hours in 8 consecutive days.
    Sec.  395.8(a) Failing to require driver to make a record of 
duty status.
    Sec.  395.8(e) False reports of records of duty status.
    Sec.  395.8(i) Failing to require driver to forward within 13 
days of completion, the original of the record of duty status.
    Sec.  395.8(k)(1) Failing to preserve driver's record of duty 
status for 6 months.
    Sec.  395.8(k)(1) Failing to preserve driver's records of duty 
status supporting documents for 6 months.

PART 395--HOURS OF SERVICE OF DRIVERS

0
17. The authority citation for part 395 is revised to read as follows:

    Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 
31504, and Sec.  204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 
701 note); Sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; Sec. 
217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.

0
18. Amend Sec.  395.2 by adding the following definitions in 
alphabetical order:


Sec.  395.2  Definitions.

* * * * *
    CD-RW (Compact Disc--Re-Writeable) means an optical disc digital 
storage format that allows digital data to be erased and rewritten many 
times. The technical and physical specifications for CD-RW are 
described in the document Orange Book Part III: CD-RW, published by 
Royal Philips Electronics.
    CMRS (Commercial Mobile Radio Services) An FCC designation for any 
carrier or licensee whose wireless network is connected to the public 
switched telephone network and/or is operated for profit. Another 
common term for these entities is cellular telephony providers.
* * * * *
    802.11 is a set of communications and product compatibility 
standards for wireless local area networks (WLAN). The 802.11 standards 
are also known as WiFi by marketing convention.
    Electronic on-board recording device (EOBR) means an electronic 
device that is capable of recording a driver's hours of service and 
duty status accurately and automatically and that meets the 
requirements of Sec.  395.16. The device must be integrally 
synchronized with specific operations of the commercial motor vehicle 
in which it is installed. The EOBR must record, at minimum, the 
information listed in Sec.  395.16(b).
* * * * *
    Integrally synchronized refers to an AOBRD or EOBR that receives 
and records the engine use status and distance traveled for the purpose 
of deriving on-duty driving status from a source or sources internal to 
the CMV.
* * * * *
    USB (Universal Serial Bus) is a serial bus interface standard for 
connecting electronic devices.
    UTC (Coordinated Universal Time) is the international civil time 
standard, determined by using highly precise atomic clocks. It is the 
basis for civil standard time in the United States and its territories. 
UTC time refers to time kept on the Greenwich meridian (longitude 
zero), which is 5 hours ahead of Eastern Standard Time. UTC times are 
expressed in terms of a 24-hour clock. Standard time within any U.S. 
time zone is offset from UTC by a given number of hours determined by 
the time zone's distance from the Greenwich meridian.
* * * * *
0
19. Amend Sec.  395.8 by revising paragraphs (a)(2) and (e) to read as 
follows:


Sec.  395.8  Driver's record of duty status.

    (a) * * *
    (2) Every driver operating a commercial motor vehicle equipped with 
either an automatic on-board recording device meeting the requirements 
of Sec.  395.15 or an electronic on-board recorder meeting the 
requirements of Sec.  395.16 must record his or her duty status using 
the device installed in the vehicle. The requirements of this section 
shall not apply, except for paragraphs (e) and (k)(1) and (2) of this 
section.
* * * * *
    (e) Failure to complete the record of duty activities of either 
this section, Sec.  395.15 or Sec.  395.16, failure to preserve a 
record of such duty activities, or making false reports in connection 
with such duty activities shall make the driver and/or the carrier 
liable to prosecution.
* * * * *

0
20. Add Sec.  395.11 to read as follows:


Sec.  395.11  Supporting documents for drivers using EOBRs.

    (a) Motor carriers maintaining date, time and location data 
produced by a Sec.  395.16-compliant EOBR need only maintain additional 
supporting documents (e.g., driver payroll records, fuel receipts) that 
provide the ability to verify on-duty not driving activities and off-
duty status according to the requirements of Sec.  395.8(k).
    (b) This section does not apply to motor carriers and owner-
operators that have been issued a remedial directive to install, use, 
and maintain EOBRs.

0
21. Amend Sec.  395.13 by revising paragraph (b)(2) and by adding 
paragraph (b)(4) to read as follows:


Sec.  395.13  Drivers declared out of service.

* * * * *
    (b) * * *
    (2) Every driver required to maintain a record of duty status under 
Sec.  395.8 must have a record of duty status current on the day of 
examination and for the prior 7 consecutive days.
* * * * *
    (4) No driver shall drive a CMV in violation of Sec.  385.811(d) of 
this chapter.
* * * * *

0
22. Amend Sec.  395.15 by adding introductory text to paragraph (a), 
and revising paragraph (a)(1) to read as follows:


Sec.  395.15  Automatic on-board recording devices.

    (a) Applicability and authority to use. This section applies to 
automatic on-board recording devices (AOBRDs) used to record drivers' 
hours of service as specified by part 395.
    (1) A motor carrier may require a driver to use an AOBRD to record 
the driver's hours of service in lieu of complying with the 
requirements of Sec.  395.8 of this part. For commercial motor vehicles 
manufactured prior to June 4, 2012, manufacturers or motor carriers may 
install an electronic device to record hours of service if the device 
meets the requirements of either this section or Sec.  395.16.
* * * * *


0
23. Add Sec.  395.16 to read as follows:

[[Page 17246]]

Sec.  395.16  Electronic on-board recording devices.

    (a) Applicability and authority to use. This section applies to 
electronic on-board recording devices (EOBRs) used to record the 
driver's hours of service as specified by part 395. Motor carriers 
subject to a remedial directive to install, use and maintain EOBRs, 
issued in accordance with 49 CFR part 385, subpart J, must comply with 
this section.
    (1) A motor carrier may require a driver to use an EOBR to record 
the driver's hours of service in lieu of complying with the 
requirements of Sec.  395.8 of this part. For commercial motor vehicles 
manufactured after June 4, 2012, any electronic device installed in a 
CMV by a manufacturer or motor carrier to record hours of service must 
meet the requirements of this section.
    (2) Every driver required by a motor carrier to use an EOBR shall 
use such device to record the driver's hours of service.
    (b) Information to be recorded. An EOBR must record the following 
information:
    (1) Name of driver and any co-driver(s), and corresponding driver 
identification information (such as a user ID and password). However, 
the name of the driver and any co-driver is not required to be 
transmitted as part of the downloaded file during a roadside 
inspection.
    (2) Duty status.
    (3) Date and time.
    (4) Location of CMV.
    (5) Distance traveled.
    (6) Name and USDOT Number of motor carrier.
    (7) 24-hour period starting time (e.g., midnight, 9 a.m., noon, 3 
p.m.).
    (8) The multiday basis (7 or 8 days) used by the motor carrier to 
compute cumulative duty hours and driving time.
    (9) Hours in each duty status for the 24-hour period, and total 
hours.
    (10) Truck or tractor and trailer number.
    (11) Shipping document number(s), or name of shipper and commodity.
    (c) Duty status categories. An EOBR must use the following duty 
statuses:
    (1) ``Off duty'' or ``OFF''.
    (2) ``Sleeper berth'' or ``SB'', to be used only if sleeper berth 
is used.
    (3) ``Driving'' or ``D''.
    (4) ``On-duty not driving'' or ``ON''.
    (d) Duty status defaults.
    (1) An EOBR must automatically record driving time. If the CMV is 
being used as a personal conveyance, the driver must affirmatively 
enter an annotation before the CMV begins to move.
    (2) When the CMV is stationary for 5 minutes or more, the EOBR must 
default to on-duty not driving, and the driver must enter the proper 
duty status.
    (3) An EOBR must record the results of power-on self-tests and 
diagnostic error codes.
    (e) Date and time.
    (1) The date and time must be recorded on the EOBR output record as 
specified under paragraph (i) of this section at each change of duty 
status, and at intervals of no greater than 60 minutes when the CMV is 
in motion. The date and time must be displayed on the EOBR's visual 
output device.
    (2) The date and time must be obtained, transmitted, and recorded 
in such a way that it cannot be altered by a motor carrier, driver, or 
third party.
    (3) The driver's duty status record must be prepared, maintained, 
and submitted using the time standard in effect at the driver's home 
terminal, for a 24-hour period beginning with the time specified by the 
motor carrier for that driver's home terminal.
    (4) The time must be coordinated to UTC and the absolute deviation 
shall not exceed 10 minutes at any time.
    (f) Location.
    (1) Information used to determine the location of the CMV must be 
derived from a source not subject to alteration by the motor carrier or 
driver.
    (2) The location description for the duty status change, and for 
intervening intervals while the CMV is in motion, must be sufficiently 
precise to enable Federal, State, and local enforcement personnel to 
quickly determine the vehicle's geographic location on a standard map 
or road atlas. The term ``sufficiently precise,'' for purposes of this 
paragraph means the nearest city, town or village.
    (3) When the CMV is in motion, location and time must be recorded 
at intervals no greater than 60 minutes. This recorded information must 
be capable of being made available in an output file format as 
specified in Appendix A to this part, but does not need to be displayed 
on the EOBR's visual output device.
    (4) For each change of duty status (e.g., the place and time of 
reporting for work, starting to drive, on-duty not driving, and where 
released from work), the name of the nearest city, town, or village, 
with State abbreviation, must be recorded.
    (5) The EOBR must record location names using codes derived from 
satellite or terrestrial sources, or a combination of these. The 
location codes must correspond, at a minimum, to ANSI INCITS 446-2008, 
``American National Standard for Information Technology--Identifying 
Attributes for Named Physical and Cultural Geographic Features (Except 
Roads and Highways) of the United States, Its Territories, Outlying 
Areas, and Freely Associated Areas and the Waters of the Same to the 
Limit of the Twelve-Mile Statutory Zone (10/28/2008),'' where ``GNIS 
Feature Class'' = ``Populated Place'' (incorporated by reference, see 
Sec.  395.18). (For further information, see also the Geographic Names 
Information System (GNIS) at http://geonames.usgs.gov/domestic/index.html).
    (g) Distance traveled.
    (1) Distance traveled must use units of miles or kilometers driving 
during each on-duty driving period and total for each 24-hour period 
for each driver operating the CMV.
    (2) If the EOBR records units of distance in kilometers, it must 
provide a means to display the equivalent distance in miles.
    (3) Distance traveled information obtained from a source internal 
to the CMV must be accurate to the distance traveled as measured by the 
CMV's odometer.
    (h) Review of information by driver.
    (1) The EOBR must allow for the driver's review of each day's 
record before the driver submits the record to the motor carrier.
    (2) The driver must review the information contained in the EOBR 
record and affirmatively note the review before submitting the record 
to the motor carrier.
    (3) The driver may annotate only non-driving-status periods and the 
use of a CMV as a personal conveyance as described in paragraph (d)(1) 
of this section. The driver must electronically confirm his or her 
intention to make any annotations. The annotation must not overwrite 
the original record.
    (4) If the driver makes a written entry on a hardcopy output of an 
EOBR relating to his or her duty status, the entries must be legible 
and in the driver's own handwriting.
    (i) Information reporting requirements.
    (1) An EOBR must make it possible for authorized Federal, State, or 
local officials to immediately check the status of a driver's hours of 
service.
    (2) An EOBR must produce, upon demand, a driver's hours-of-service 
record in either electronic or printed form. It must also produce a 
digital file in the format described in Appendix A to this part. The 
record must show the time and sequence of duty status changes including 
the driver's starting time at the beginning of each day. As an 
alternative, the EOBR must be able to provide a driver's hours-of-
service

[[Page 17247]]

record as described in paragraph (i)(6) of this section.
    (3) This information may be used in conjunction with handwritten or 
printed records of duty status for the previous 7 days.
    (4) Hours-of-service information must be made accessible to 
authorized Federal, State, or local safety assurance officials for 
their review without requiring the official to enter in or upon the 
CMV. The output record must conform to the file format specified in 
Appendix A to this part.
    (5) The driver must have in his or her possession records of duty 
status for the previous 7 consecutive days available for inspection 
while on duty. These records must consist of information stored in and 
retrievable from the EOBR, handwritten records, records available from 
motor carriers' support systems, other printed records, or any 
combination of these. Electronic records must be capable of one-way 
transfer through wired and wireless methods to portable computers used 
by roadside safety assurance officials and must provide files in the 
format specified in Appendix A to this part. Wired communication 
information interchange methods must comply with the ``Universal Serial 
Bus Specification (Revision 2.0) incorporated by reference, see Sec.  
395.18) and additional specifications in Appendix A, paragraph 2.2 to 
this part. Wireless communication information interchange methods must 
comply with the requirements of the 802.11g-2003 standard as defined in 
the 802.11-2007 base standard ``IEEE Standard for Information 
Technology--Telecommunications and information exchange between 
systems--Local and metropolitan area networks--Specific requirements: 
Part 11: Wireless LAN Medium Access Control (MAC) and Physical Layer 
(PHY) Specifications'' (IEEE Std. 802.11-2007) (incorporated by 
reference, see Sec.  395.18), or CMRS.
    (6) Support systems used in conjunction with EOBRs at a driver's 
home terminal or the motor carrier's principal place of business must 
be capable of providing authorized Federal, State, or local officials 
with summaries of an individual driver's hours of service records, 
including the information specified in Sec.  395.8(d). The support 
systems must also provide information concerning on-board system sensor 
failures and identification of amended and edited data. Support systems 
must provide a file in the format specified in Appendix A to this part. 
The system must also be able to produce a copy of files on portable 
storage media (CD-RW, USB 2.0 drive) upon request of authorized safety 
assurance officials. The support system may be maintained by a third-
party service provider on behalf of the motor carrier.
    (j) Driver identification. For the driver to log into the EOBR, the 
EOBR must require the driver to enter information (such as a user ID 
and password) that identifies the driver or to provide other 
information (such as smart cards, biometrics) that identifies the 
driver.
    (k) Availability of records of duty status.
    (1) An EOBR must be capable of producing duty status records for 
the current day and the previous 7 days from either the information 
stored in and retrievable from the EOBR or motor carrier support system 
records, or any combination of these.
    (2) If an EOBR fails, the driver must do the following:
    (i) Note the failure of the EOBR and inform the motor carrier 
within 2 days.
    (ii) Reconstruct the record of duty status for the current day and 
the previous 7 days, less any days for which the driver has records.
    (iii) Continue to prepare a handwritten record of all subsequent 
duty status until the device is again operational.
    (iv) A brief (less than 5 minute) loss of connectivity between the 
EOBR and a location-tracking system or the motor carriers' support 
system is not considered an EOBR failure for the purpose of this 
section.
    (l) On-board information. Each commercial motor vehicle must have 
onboard the commercial motor vehicle an information packet containing 
the following items:
    (1) An instruction sheet describing how data may be stored and 
retrieved from the EOBR.
    (2) A supply of blank driver's records of duty status graph-grids 
sufficient to record the driver's duty status and other related 
information for the duration of the current trip.
    (m) Submission of driver's record of duty status.
    (1) The driver must submit electronically, to the employing motor 
carrier, each record of the driver's duty status.
    (2) For motor carriers not subject to the remedies provisions of 
part 385 subpart J of this chapter, each record must be submitted 
within 13 days of its completion.
    (3) For motor carriers subject to the remedies provisions of part 
385 subpart J of this chapter, each record must be submitted within 3 
days of its completion.
    (4) The driver must review and verify that all entries are accurate 
prior to submission to the employing motor carrier.
    (5) The submission of the record of duty status certifies that all 
entries made by the driver are true and correct.
    (n) EOBR display requirements. An EOBR must have the capability of 
displaying all of the following information:
    (1) The driver's name and EOBR login ID number on all EOBR records 
associated with that driver, including records in which the driver 
serves as a co-driver.
    (2) The driver's total hours of driving during each driving period 
and the current duty day.
    (3) The total hours on duty for the current duty day.
    (4) Total miles or kilometers of driving during each driving period 
and the current duty day.
    (5) Total hours on duty and driving time for the prior 7-
consecutive-day period, including the current duty day.
    (6) Total hours on duty and driving time for the prior 8-
consecutive-day period, including the current duty day.
    (7) The sequence of duty status for each day, and the time of day 
and location for each change of duty status, for each driver using the 
device.
    (8) EOBR serial number or other identification, and identification 
number(s) of vehicle(s) operated that day.
    (9) Remarks, including fueling, waypoints, loading and unloading 
times, unusual situations, or violations.
    (10) Driver's override of an automated duty status change to 
driving if using the vehicle for personal conveyance or for yard 
movement.
    (11) The EOBR may record other data as the motor carrier deems 
appropriate, including the date and time of crossing a State line for 
purposes of fuel-tax reporting.
    (o) Performance of recorders. A motor carrier that uses an EOBR for 
recording a driver's records of duty status instead of the handwritten 
record must ensure the EOBR meets the following requirements:
    (1) The EOBR must permit the driver to enter information into the 
EOBR only when the commercial motor vehicle is at rest.
    (2) The EOBR and associated support systems must not permit 
alteration or erasure of the original information collected concerning 
the driver's hours of service, or alteration of the source data streams 
used to provide that information.
    (3) The EOBR must be able to perform a power-on self-test, as well 
as a self-test at any point upon request of an authorized safety 
assurance official. The

[[Page 17248]]

EOBR must provide an audible and visible signal as to its functional 
status. It must record the outcome of the self-test and its functional 
status as a diagnostic event record in conformance with Appendix A to 
this part.
    (4) The EOBR must provide an audible and visible signal to the 
driver at least 30 minutes in advance of reaching the driving time 
limit and the on-duty limit for the 24-hour period.
    (5) The EOBR must be able to track total weekly on-duty and driving 
hours over a 7- or 8-day consecutive period. The EOBR must be able to 
warn a driver at least 30 minutes in advance of reaching the weekly 
duty-/driving-hour limitation.
    (6) The EOBR must warn the driver via an audible and visible signal 
that the device has ceased to function. ``Ceasing to function'' for the 
purpose of this paragraph does not include brief losses of 
communications signals during such time as, but not limited to, when 
the vehicle is traveling through a tunnel.
    (7) The EOBR must record a code corresponding to the reason it has 
ceased to function and the date and time of that event.
    (8) The audible signal must be capable of being heard and discerned 
by the driver when seated in the normal driving position, whether the 
CMV is in motion or parked with the engine operating. The visual signal 
must be visible to the driver when the driver is seated in the normal 
driving position.
    (9) The EOBR must be capable of recording separately each driver's 
duty status when there is a multiple-driver operation.
    (10) The EOBR device/system must identify sensor failures and 
edited and annotated data when downloaded or reproduced in printed 
form.
    (11) The EOBR device/system must identify annotations made to all 
records, the date and time the annotations were made, and the identity 
of the person making them.
    (12) If a driver or any other person annotates a record in an EOBR 
or an EOBR support system, the annotation must not overwrite the 
original contents of the record.
    (p) Motor Carrier Requirements.
    (1) The motor carrier must not alter or erase, or permit or require 
alteration or erasure of, the original information collected concerning 
the driver's hours of service, the source data streams used to provide 
that information, or information contained in its EOBR support systems 
that use the original information and source data streams.
    (2) The motor carrier must ensure the EOBR is calibrated, 
maintained, and recalibrated in accordance with the manufacturer's 
specifications; the motor carrier must retain records of these 
activities.
    (3) The motor carrier's drivers and other personnel reviewing and 
using EOBRs and the information derived from them must be adequately 
trained regarding the proper operation of the device.
    (4) The motor carrier must maintain a second copy (back-up copy) of 
the electronic hours-of-service files, by month, on a physical device 
different from that on which the original data are stored.
    (5) The motor carrier must review the EOBR records of its drivers 
for compliance with part 395.
    (6) If the motor carrier receives or discovers information 
concerning the failure of an EOBR, the carrier must document the 
failure in the hours-of-service record for that driver.
    (q) Manufacturer's self-certification.
    (1) The EOBR and EOBR support systems must be certified by the 
manufacturer as evidence that they have been sufficiently tested to 
meet the requirements of Sec.  395.16 and Appendix A to this part under 
the conditions in which they would be used.
    (2) The exterior faceplate of the EOBR must be marked by the 
manufacturer with the text ``USDOT-EOBR'' as evidence that the device 
has been tested and certified as meeting the performance requirements 
of Sec.  395.16 and Appendix A to this part.

0
24. Add Sec.  395.18 to read as follows:


Sec.  395.18  Matter incorporated by reference.

    (a) Incorporation by reference. Certain materials are incorporated 
by reference in part 395, with the approval of the Director of the 
Federal Register under 5 U.S.C. 552(a), and 1 CFR part 51. For 
materials subject to change, only the specific version approved by the 
Director of the Office of the Federal Register and specified in the 
regulation is incorporated. To enforce any edition other than that 
specified in this section, the Federal Motor Carrier Safety 
Administration must publish notice of change in the Federal Register 
and the material must be available to the public. All of the approved 
material is available for inspection at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html. Also, it is 
available for inspection at the Federal Motor Carrier Safety 
Administration, Office of Bus and Truck Standards and Operations (MC-
PS), 1200 New Jersey Ave., SE., Washington, DC 20590-00001, (202) 366-
4325, and is available from the sources listed in paragraphs (b) and 
(c) of this section.
    (b) Institute of Electrical and Electronic Engineers (IEEE). 3 Park 
Avenue, New York, New York 10016-5997. Web page is http://www.ieee.org/web/publications/home; telephone is (800) 678-4333.
    (1) ``IEEE Standard for Information Technology--Telecommunications 
and information exchange between systems--Local and metropolitan area 
networks--Specific requirements: Part 11: Wireless LAN Medium Access 
Control (MAC) and Physical Layer (PHY) Specifications,'' IEEE Computer 
Society, Sponsored by the LAN/MAN Standards Committee: June 12, 2007 
(IEEE Std. 802.11-2007). Incorporation by reference approved for Sec.  
395.16(i); and Appendix A to part 395, paragraph 2.3.
    (2) [Reserved]
    (c) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 153rd 
Drive, Beaverton, Oregon 97006. Web page is http://www.usb.org; 
telephone is (503) 619-0426.
    (1) ``Universal Serial Bus Specification,'' Compaq, Hewlett-
Packard, Intel, Lucent, Microsoft, NEC, Philips; April 27, 2000 
(Revision 2.0). Incorporation by reference approved for Sec.  395.16(i) 
and Appendix A to part 395, paragraph 2.2.
    (2) [Reserved]
    (d) American National Standards Institute (ANSI). 11 West 42nd 
Street, New York, New York 10036. Web page is http://webstore.ansi.org; 
telephone is (212) 642-4900.
    (1) ``ANSI INCITS 446-2008, American National Standard for 
Information Technology--Identifying Attributes for Named Physical and 
Cultural Geographic Features (Except Roads and Highways) of the United 
States, Its Territories, Outlying Areas, and Freely Associated Areas 
and the Waters of the Same to the Limit of the Twelve-Mile Statutory 
Zone (10/28/2008),'' (ANSI INCITS 446-2008). Incorporation by reference 
approved for Sec.  395.16(f); Appendix A to part 395, paragraph 1.3, 
Table 2; and Appendix A to part 395, paragraph 3.1.1.3. (For further 
information, see also the Geographic Names Information System (GNIS) at 
http://geonames.usgs.gov/domestic/index.html.
    (2) [Reserved]

0
25. Add Appendix A to 49 CFR part 395 to read as follows:

[[Page 17249]]

Appendix A to Part 395--Electronic On-Board Recorder Performance 
Specifications

1. Data Elements Dictionary for Electronic On-Board Recorders 
(EOBRs)

    1.1 To facilitate the electronic transfer of records to roadside 
inspection personnel and compliance review personnel, and provide 
the ability of various third-party and proprietary EOBR devices to 
be interoperable, a consistent electronic file format and record 
layout for the electronic RODS data to be recorded are necessary. 
This EOBR data elements dictionary provides a standardized and 
consistent format for EOBR output data.

EOBR Data File Format

    1.2 Regardless of the particular electronic file type (such as 
ASCII or XML) ultimately used for recording the electronic RODS 
produced by an EOBR, RODS data must be recorded according to a 
``flat file'' database model format. A flat file is a simple 
database in which all information is stored in a plain text format 
with one database ``record'' per line. Each of these data records is 
divided into ``fields'' using delimiters (as in a comma-separate-
values data file) or based on fixed column positions. Table 1 below 
presents the general concept of a flat data file consisting of data 
``fields'' (columns) and data ``records'' (rows).
[GRAPHIC] [TIFF OMITTED] TR05AP10.000

    1.3 The data elements dictionary describes the data fields 
component of the above framework. Individual data records must be 
generated and recorded whenever there is a change in driver duty 
status, an EOBR diagnostic event (such as power-on/off, self test, 
etc.), or when one or more data fields of an existing data record 
are later amended. In the last case, the corrected record must be 
recorded and noted as ``current'' in the ``Event Status Code'' data 
field, with the original record maintained in its unedited form and 
noted as ``historical'' in the ``Event Status Code'' data field. The 
EOBR Data Elements Dictionary is described in Table 2. The event 
codes are listed in Table 3.

                                     Table 2--EOBR Data Elements Dictionary
----------------------------------------------------------------------------------------------------------------
                                         Data element                                         Valid values and
           Data element                   definition              Type           Length            notes
----------------------------------------------------------------------------------------------------------------
                                           Driver Identification Data
----------------------------------------------------------------------------------------------------------------
Driver First Name.................  First name of the      A.................          35   See Note 1.
                                     driver.
Driver Last Name..................  Last name, family      A.................          35  See Note 1.
                                     name, or surname of
                                     the driver.
Driver PIN/ID.....................  Numeric                A.................          40  .....................
                                     identification
                                     number assigned to a
                                     driver by the motor
                                     carrier.
----------------------------------------------------------------------------------------------------------------
                                           Vehicle Identification Data
----------------------------------------------------------------------------------------------------------------
Tractor Number....................  Motor carrier          A.................          10  .....................
                                     assigned
                                     identification
                                     number for tractor
                                     unit.
Trailer Number....................  Motor carrier          A.................          10  .....................
                                     assigned
                                     identification
                                     number for trailer.
Tractor VIN Number................  Unique vehicle ID      A.................          17  .....................
                                     number assigned by
                                     manufacturer
                                     according to US DOT
                                     regulations.
----------------------------------------------------------------------------------------------------------------
                                                 Co-Driver Data
----------------------------------------------------------------------------------------------------------------
Co-Driver First Name..............  First name of the co-  A.................          35   See Note 1.
                                     driver.
Co-Driver Last Name...............  Last name, family      A.................          35   See Note 1.
                                     name or surname of
                                     the co-driver.
Co-Driver ID......................  Numeric                A.................          40  .....................
                                     identification
                                     number assigned to a
                                     driver by the motor
                                     carrier.
----------------------------------------------------------------------------------------------------------------
                                           Company Identification Data
----------------------------------------------------------------------------------------------------------------
Carrier USDOT Number..............  USDOT Number of the    N.................           8  .....................
                                     motor carrier
                                     assigned by FMCSA.

[[Page 17250]]

 
Carrier Name......................  Name or trade name of  A.................         120  .....................
                                     the motor carrier
                                     company appearing on
                                     the Form MCS-150.
----------------------------------------------------------------------------------------------------------------
                                                  Shipment Data
----------------------------------------------------------------------------------------------------------------
Shipping Document Number..........  Shipping document      A.................          40  .....................
                                     number.
----------------------------------------------------------------------------------------------------------------
                                                   Event Data
----------------------------------------------------------------------------------------------------------------
Event Sequence ID.................  A serial identifier    N.................           4  0001 through 9999.
                                     for an event that is
                                     unique to a
                                     particular vehicle
                                     and a particular day.
Event Status Code.................  Character codes for    A.................           3  OFF = Off Duty
                                     the four driver duty                                  SB = Sleeper Berth
                                     status change                                         D = On Duty Driving
                                     events, State border                                  ON = On Duty Not
                                     crossing event, and                                    Driving
                                     diagnostic events.                                    DG = Diagnostic.
Event Date........................  The date when an       N (Date)..........           8  UTC (universal time)
                                     event occurred.                                        recommended. Format:
                                                                                            YYYYMMDD.
Event Time........................  The time when an       N (Time)..........           6  UTC (universal time)
                                     event occurred.                                        recommended. Format:
                                                                                            HHMMSS (hours,
                                                                                            minutes, seconds).
Event Latitude....................  Latitude of a          N.................         2,6  Decimal format:
                                     location where an                                      XX.XXXXXX.
                                     event occurred.
Event Longitude...................  Longitude of a         N.................         3,6  Decimal format:
                                     location where an                                      XXX.XXXXXX.
                                     event occurred.
Place Name........................  The location codes     N.................           5  Unique within a FIPS
                                     must correspond, at                                    state code. Lookup
                                     a minimum, to ANSI                                     list derived from
                                     INCITS 446-2008,                                       GNIS.
                                     ``American National
                                     Standard for
                                     Information
                                     Technology--Identify
                                     ing Attributes for
                                     Named Physical and
                                     Cultural Geographic
                                     Features (Except
                                     Roads and Highways)
                                     of the United
                                     States, Its
                                     Territories,
                                     Outlying Areas, and
                                     Freely Associated
                                     Areas and the Waters
                                     of the Same to the
                                     Limit of the Twelve-
                                     Mile Statutory Zone
                                     (10/28/2008),''
                                     where ``GNIS Feature
                                     Class'' =
                                     ``Populated Place''
                                     (incorporated by
                                     reference, see Sec.
                                      395.18). (For
                                     further information,
                                     see also the
                                     Geographic Names
                                     Information System
                                     (GNIS) at http://geonames.usgs.gov/domestic/index.html.
Place Distance Miles..............  Distance in miles to   N.................           4  .....................
                                     nearest populated
                                     place from the
                                     location where an
                                     event occurred.
Total Vehicle Miles...............  Total vehicle miles    N.................           7  With total vehicle
                                     (as noted on vehicle                                   mileage recorded at
                                     odometer or as                                         the time of each
                                     measured by any                                        event, vehicle miles
                                     other compliant                                        traveled while
                                     means such as                                          driving, etc., can
                                     vehicle location                                       be computed.
                                     system, etc.).
Event Update Status Code..........  A status of an event,  A.................           1  C = Current, H =
                                     either Current (the                                    Historical.
                                     most up-to-date
                                     update or edit) or
                                     Historical (the
                                     original record if
                                     the record has
                                     subsequently been
                                     updated or edited).
Diagnostic Event Code.............  For diagnostic events  A.................           2  (See Table 3).
                                     (events where the
                                     ``Event Status
                                     Code'' is noted as
                                     ``DG''), records the
                                     type of diagnostic
                                     performed (e.g.,
                                     power-on, self test,
                                     power-off, etc.).
Event Error Code..................  Error code associated  A.................           2  (See Table 3).
                                     with an event.
Event Update Date.................  The date when an       N (Date)..........           8  UTC (universal time)
                                     event record was                                       recommended. Format:
                                     last updated or                                        YYYYMMDD.
                                     edited.
Event Update Time.................  Then time when an      N (Time)..........           6  UTC (universal time)
                                     event record was                                       recommended. Format:
                                     last updated or                                        HHMMSS (hours,
                                     edited.                                                minutes, seconds).
Event Update Person ID............  An identifier of the   A.................          40  .....................
                                     person who last
                                     updated or edited a
                                     record.
Event Update Text.................  A textual note         A.................          60  Brief narrative
                                     related to the most                                    regarding reason for
                                     recent record update                                   record update or
                                     or edit.                                               edit.
----------------------------------------------------------------------------------------------------------------


    Note 1: This element must not be included in the records 
downloaded from an EOBR or support system at roadside.


[[Page 17251]]



                                      Table 3--EOBR Diagnostic Event Codes
----------------------------------------------------------------------------------------------------------------
            Code class                         Code               Brief description         Full description
----------------------------------------------------------------------------------------------------------------
General System Diagnostic.........  PWR--ON...................  Power on.............  EOBR initial power-on.
General System Diagnostic.........  PWROFF....................  Power off............  EOBR power-off.
General System Diagnostic.........  TESTOK....................  test okay............  EOBR self test
                                                                                        successful.
General System Diagnostic.........  SERVIC....................  Service..............  EOBR Malfunction (return
                                                                                        unit to factory for
                                                                                        servicing).
General System Diagnostic.........  MEMERR....................  memory error.........  System memory error.
General System Diagnostic.........  LOWVLT....................  Low voltage..........  Low system supply
                                                                                        voltage.
General System Diagnostic.........  BATLOW....................  battery low..........  Internal system battery
                                                                                        backup low.
General System Diagnostic.........  CLKERR....................  clock error..........  EOBR system clock error
                                                                                        (clock not set or
                                                                                        defective).
General System Diagnostic.........  BYPASS....................  Bypass...............  EOBR system bypassed
                                                                                        (RODS data not
                                                                                        collected).
Data Storage Diagnostic...........  INTFUL....................  internal memory full.  Internal storage memory
                                                                                        full (requires download
                                                                                        or transfer to external
                                                                                        storage).
Data Storage Diagnostic...........  DATACC....................  Data accepted........  System accepted driver
                                                                                        data entry.
Data Storage Diagnostic...........  EXTFUL....................  external memory full.  External memory full
                                                                                        (smartcard or other
                                                                                        external data storage
                                                                                        device full).
Data Storage Diagnostic...........  EXTERR....................  external data access   Access external storage
                                                                 error.                 device failed.
Data Storage Diagnostic...........  DLOADY....................  download yes.........  EOBR data download
                                                                                        successful.
Data Storage Diagnostic...........  DLOADN....................  download no..........  Data download rejected
                                                                                        (unauthorized request/
                                                                                        wrong Password).
Driver Identification Issue.......  NODRID....................  no driver ID.........  No driver information in
                                                                                        system and vehicle is in
                                                                                        motion.
Driver Identification Issue.......  PINERR....................  PIN error............  Driver PIN/identification
                                                                                        number invalid.
Driver Identification Issue.......  DRIDRD....................  Driver ID read.......  Driver information
                                                                                        successfully read from
                                                                                        external storage device
                                                                                        (transferred to EOBR).
Peripheral Device Issue...........  DPYERR....................  display error........  EOBR display malfunction.
Peripheral Device Issue...........  KEYERR....................  keyboard error.......  EOBR keyboard/input
                                                                                        device malfunction.
External Sensor Issue.............  NOLTLN....................  no latitude longitude  No latitude and longitude
                                                                                        from positioning sensor.
External Sensor Issue.............  NOTSYC....................  no time                Unable to synchronize
                                                                 synchronization.       with external time
                                                                                        reference input.
External Sensor Issue.............  COMERR....................  communications error.  Unable to communicate
                                                                                        with external data link
                                                                                        (to home office or
                                                                                        wireless service
                                                                                        provider).
External Sensor Issue.............  NO--ECM...................  no ECM data..........  No sensory information
                                                                                        received from vehicle's
                                                                                        Engine Control Module
                                                                                        (ECM).
External Sensor Issue.............  ECM--ID...................  ECM ID number          ECM identification/serial
                                                                 mismatch.              number mismatch (with
                                                                                        preprogrammed
                                                                                        information).
----------------------------------------------------------------------------------------------------------------

2. Communications Standards for the Transmittal of Data Files From 
Electronic On-Board Recorders (EOBRs)

    2.1 EOBRs must produce and store RODS in accordance with the 
file format specified in this Appendix and must be capable of a one-
way transfer of these records through wired and wireless methods to 
authorized safety officials upon request.
    2.2 Wired. EOBRs must be capable of transferring RODS using the 
``Universal Serial Bus Specification (Revision 2.0) (incorporated by 
reference, see Sec.  395.18). Each EOBR device must implement a 
single USB compliant interface featuring a Type B connector. The USB 
interface must implement the Mass Storage class (08h) for driverless 
operation.
    2.3 Wireless. EOBRs must be capable of transferring RODS using 
one of the following wireless standards:
    2.3.1 802.11g-2003 standard as defined in the 802.11-2007 base 
standard for wireless communication ``IEEE Standard for Information 
Technology--Telecommunications and information exchange between 
systems--Local and metropolitan area networks--Specific 
requirements: Part 11: Wireless LAN Medium Access Control (MAC) and 
Physical Layer (PHY) Specifications'' (IEEE Std. 802.11-2007) 
(incorporated by reference, see Sec.  395.18).
    2.3.2 Commercial Mobile Radio Services (e.g., cellular).

3. Certification of EOBRs To Assess Conformity With FMCSA Standards

    3.1 The following outcome-based performance requirements must be 
included in the self-certification testing conducted by EOBR 
manufacturers:
    3.1.1 Location
    3.1.1.1 The location description for the duty status change must 
be sufficiently precise to enable enforcement personnel to quickly 
determine the vehicle's geographic location at each change of duty 
status on a standard map or road atlas.
    3.1.1.2 When the CMV is in motion, location and time must be 
recorded at intervals of no greater than 60 minutes. This recorded 
information must be available for an audit of EOBR data, but is not 
required to be displayed on the EOBR's visual output device.
    3.1.1.3 Location codes derived from satellite or terrestrial 
sources, or a combination thereof must be used. The location codes 
must correspond, at minimum, to the GNIS maintained by the United 
States Geological Survey.
    3.1.2 Distance traveled
    3.1.2.1 Distance traveled may use units of miles or kilometers 
driving during each on-duty driving period and total for each 24-
hour period for each driver operating the CMV.
    3.1.2.2 If the EOBR records units of distance in kilometers, it 
must provide a means to display the equivalent distance in English 
units.
    3.1.2.3 If the EOBR obtains distance-traveled information from a 
source internal to the CMV, the information must be accurate to the 
CMV's odometer.
    3.1.3 Date and time
    3.1.3.1 The date and time must be reported on the EOBR output 
record and display for each change of duty status and at such 
additional entries as specified under ``Location.''
    3.1.3.2 The date and time must be obtained, transmitted, and 
recorded in such a way that it cannot be altered by a motor carrier 
or driver.

[[Page 17252]]

    3.1.3.3 The time must be coordinated to the Universal Time Clock 
(UTC) and must not drift more than 60 seconds per month.
    3.1.4 File format and communication protocols: The EOBR must 
produce and transfer a RODS file in the format and communication 
methods specified in sections 1.0 and 2.0 of this Appendix.
    3.1.5 Environment
    3.1.5.1 Temperature--The EOBR must be able to operate in 
temperatures ranging from -40 degrees C to 85 degrees C.
    3.1.5.2 Vibration and shock--The EOBR must meet industry 
standards for vibration stability and for preventing electrical 
shocks to device operators.
    3.2 The EOBR and EOBR support systems must be certified by the 
manufacturer as evidence that their design has been sufficiently 
tested to meet the requirements of Sec.  395.16 under the conditions 
in which they would be used.
    3.3 The exterior faceplate of EOBRs must be marked by the 
manufacturer with the text `USDOT-EOBR' as evidence that the device 
has been tested and certified as meeting the performance 
requirements of Sec.  395.16.

PART 396--INSPECTION, REPAIR AND MAINTENANCE

0
26. The authority citation for part 396 continues to read as follows:

    Authority: 49 U.S.C. 31133, 31136, and 31502; and 49 CFR 1.73.

0
27. Amend Sec.  396.9 by revising the section heading, the heading of 
paragraph (c), and paragraph (c)(1) to read as follows:


Sec.  396.9  Inspection of motor vehicles in operation.

* * * * *
    (c) Motor vehicles declared ``out of service.'' (1) Authorized 
personnel shall declare and mark ``out of service'' any motor vehicle 
which by reason of its mechanical condition or loading would likely 
cause an accident or a breakdown. Authorized personnel may declare and 
mark ``out of service'' any motor vehicle not in compliance with Sec.  
385.811(d). An ``Out of Service Vehicle'' sticker shall be used to mark 
vehicles ``out of service.''
* * * * *

    Issued on: March 19, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-6747 Filed 4-2-10; 8:45 am]
BILLING CODE 4910-EX-P