[Federal Register Volume 75, Number 176 (Monday, September 13, 2010)]
[Rules and Regulations]
[Pages 55488-55491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22736]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385 and 395

[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; Technical amendments and response to petitions for 
reconsideration.

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SUMMARY: FMCSA amends its April 5, 2010, final rule that established 
new performance standards for electronic on-board recorders (EOBRs) 
installed in commercial motor vehicles (CMVs). In response to petitions 
for reconsideration from Qualcomm Incorporated, XATA Corporation, and a 
group of industry stakeholders, FMCSA amends requirements relating to 
the temperature range in which EOBRs must be able to operate, and the 
connector type specified for the Universal Serial Bus (USB) interface.

DATES: The amendments in this final rule become effective September 13, 
2010.

ADDRESSES: Public Access to the Docket: You may view, print, and 
download this final rule and all related documents and background 
material on-line at http://www.regulations.gov, using the Docket ID 
Number FMCSA-2004-18940. These documents can also be examined and 
copied for a fee at the U.S. Department of Transportation, Docket 
Operations, West Building-Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations (MC-PSV), Federal Motor Carrier Safety Administration, 1200 
New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-4325.

SUPPLEMENTARY INFORMATION: 

Legal Basis

    The legal basis of the April 2010 final rule is also applicable to 
this final rule. See 75 FR 17208-17252, April 5, 2010.

Background

    The FMCSA was notified about two technical errors in the April 5, 
2010, ``Electronic On-board Recorders for Hours of Service Compliance'' 
final rule. (75 FR 17208). The FMCSA also received several petitions 
for reconsideration of the final rule that are discussed further in 
this final rule.

Technical Corrections

    (1) The first sentence in Sec.  385.807(a) currently reads 
``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.'' The 
regulatory citation should read ``Sec.  385.805,'' not ``Sec.  
385.805(a)''
    (2) Section 385.815(e) currently reads ``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.'' The effective date 
referenced should be June 4, 2012, as is stated elsewhere in the final 
rule.

Petitions for Reconsideration

    FMCSA received petitions for reconsideration, timely filed, from 
Qualcomm Incorporated (Qualcomm), XATA Corporation (XATA), and a group 
of industry stakeholders, including the American Trucking Associations' 
Technology & Maintenance Council (TMC) EOBR Task Force \1\ 
(Stakeholders). Qualcomm and Stakeholders requested that FMCSA 
reconsider the final rule's requirements for (1) the temperature range 
in which EOBRs must be able to operate, and (2) the connector type 
specified for the USB interface. XATA's petition covered the same 
matters as those of Qualcomm and Stakeholders, but further requested 
that FMCSA (1) clarify certain reportable events in the diagnostic 
table, and (2) consider offering an additional alternative for the data 
transfer between an EOBR and a roadside safety official's portable 
computer. FMCSA met with the stakeholders on June 2, 2010 (a list of 
the attendees and a summary of the meeting has been placed in the 
docket) in response to their request for an opportunity to present 
their concerns in person.
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    \1\ Companies and organizations submitting the petition included 
Qualcomm Enterprise Services, PeopleNet, XATA Corporation, 
Continental Corporation, American Trucking Associations, American 
Bus Association, Commercial Vehicle Safety Alliance, National 
Private Truck Council, and United Motorcoach Association.
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    A discussion of each of the petitioner's issues, followed by the 
Agency's assessment and decision, follows.

Operating Temperature Range

    On January 18, 2007 (72 FR 2340), FMCSA published a notice of 
proposed rulemaking (NPRM) that proposed to amend the Federal Motor 
Carrier Safety Regulations to incorporate new performance standards for 
EOBRs. Among other things, the NPRM proposed to require an EOBR to be 
able to operate in temperatures ranging from -20 [deg]F to 120 [deg]F 
(-29 [deg]C to 49 [deg]C) (72 FR 2340, at 2393).
    In comments to the docket, International Truck and Engine 
Corporation stated ``Typical industry standards for commercial vehicles 
(See Society of Automotive Engineers (SAE) recommended practice J1455, 
``Surface Vehicle Recommended Practice: Recommended Environmental 
Practices for Electronic Equipment Design in Heavy-Duty Vehicle 
Applications'') exceed the minimum requirements stated for operating 
temperature. Interior spaces are rated from-40 degrees C to +85 degrees 
C. International notes that under the minimum temperature specification 
there will be occasions where the EOBR may not operate until the 
vehicle interior is heated (or cooled) to the operating temperature 
given.'' Qualcomm stated ``We recommend that environmental requirements 
defer to industry standards for comparable equipment and not be 
specified in this regulation. Specifically, SAE standard J1455--
Recommended Environmental Practices for Electronic Equipment Design in 
Heavy-Duty Vehicle Applications should be referenced.'' TMC offered a 
similar comment in a Technical Policy Advisory submitted to the docket: 
``The environmental factors should be based on industry standards for 
similar types of equipment.''
    In the April 2010 final rule, FMCSA revised the EOBR operating 
temperature range to -40 [deg]C to 85 [deg]C (-40 [deg]F to 185 
[deg]F). (75 FR 17208, at 17232). In doing so, the Agency referred to 
the detailed discussion in Section 5.2 of the SAE standard, which 
addresses temperature ranges in the forward interior of the vehicle, an 
area that includes the floor, instrument panel, and headliner. The 
instrument panel, discussed in Section 5.2.1, ``includes the top of the 
dashboard

[[Page 55489]]

and the near vertical section carrying the instruments and steering 
wheel.'' The applicable design guidelines for this area, shown in Table 
5 of the SAE standard, include a nominal temperature range of -40 
[deg]C to 85 [deg]C (-40 [deg]F to 185 [deg]F), and a top surface 
temperature of -40 [deg]C to 115 [deg]C (-40 [deg]F to 240 [deg]F).\2\
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    \2\ The SAE standard notes that components on the top surface of 
the instrument panel experience a greater heat buildup when closed 
vehicles are parked in the bright sun. Heat radiated, incident 
sunlight, and re-radiated energy from the windshield can cause the 
temperature to build up to 115 [deg]C (240 [deg]F) in this region.
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    In the April 2010 final rule, the Agency adopted the nominal 
temperature range of -40 [deg]C to 85 [deg]C (-40 [deg]F to 185 [deg]F) 
based on the SAE standard. Qualcomm, Stakeholders, and XATA all 
addressed the operating temperature range in their petitions for 
reconsideration. Qualcomm's description of its concern was 
representative. Qualcomm stated the final rule's EOBR temperature 
operating range, -40 [deg]C to 85 [deg]C, (40 [deg]F to 185 [deg]F), is 
beyond the range of the leading commercially-available systems today. 
Qualcomm noted that off-the-shelf telematics and on-board recorder 
systems are typically designed for -20 [deg]C to 60 [deg]C (-4 [deg]F 
to 140 [deg]F), and that it would require significant added technical 
features and costs in such devices to meet the requirements of the new 
regulation. Qualcomm also stated that it has been providing on-board 
computer systems to trucking companies operating throughout the United 
States and Canada for over 20 years, and that its units have not 
experienced any significant degradation in performance due to extreme 
weather conditions. Qualcomm added that its devices typically support a 
temperature operating range of -30 [deg]C to 70 [deg]C, (-22 [deg]F to 
158 [deg]F), although some components of wireless communications 
systems are specified to operate in a -20 [deg]C to 60 [deg]C (-4 
[deg]F to 140 [deg]F) range. During the June 2, 2010 meeting, the 
industry participants elaborated on the technical rationale for their 
statements and recommendation. Among other things, they noted that the 
operating temperature range is particularly important for the proper 
operation of displays, batteries, and the hardware components to 
support the Institute of Electrical and Electronics Engineers (IEEE) 
802.11 wireless communications requirement.

Agency's Assessment and Decision

    The -40 [deg]C to 85 [deg]C (-40 [deg]F to 185 [deg]F) operating 
temperature range requirement established in the April 2010 final rule 
was adopted based upon the Agency's review of the SAE standard 
referenced above. However, it is not the Agency's intention to require 
an EOBR to be so rugged that it is operable at extreme temperatures 
that will not realistically be seen in a truck's normal operating 
environment. As noted earlier, the Agency believes that drivers will be 
heating or cooling the cab to more reasonable temperatures prior to 
driving.
    The petitioners note that there will be significant additional 
costs and transitional time delays associated with the production of 
EOBRs that are compliant with the operating temperature range specified 
in the April 2010 final rule. The Agency does not believe that the cost 
increases and time delays associated with producing EOBRs that comply 
with the temperature range specified in the April 2010 rule are 
commensurate with any potential benefits that might be derived from 
operability of EOBRs at these extreme temperatures.
    For these reasons, FMCSA amends Appendix A of Sec.  395.16 to 
delete the requirement for a specific operating temperature range.

USB Connector

    In the 2007 NPRM, FMCSA proposed to require that EOBRs be capable 
of transferring records of duty status (RODS) using either the USB 2.0 
or the RS-232 wired communication standards, as well as IEEE 802.11g or 
Bluetooth wireless communication standards. The NPRM did not specify 
the type of USB connector.
    Most of the comments received expressed a preference for wireless 
standards, rather than wired. Of those that addressed wired standards, 
the main concern was that the RS-232 standard was outdated. No 
commenters addressed the type of USB connector.
    Based upon the best information available to the Agency at the 
time, the final rule requires (1) a single USB compliant interface 
featuring a Type B connector, and (2) that the USB interface must (a) 
comply with USB V1.1 and V2.0 USB signaling standards, and (b) 
implement the Mass Storage class (08h) for software driverless 
operation.
    All petitioners requested that FMCSA reconsider the requirement for 
a Type B connector. They noted that, although many EOBRs and related 
devices on the market support USB, these devices generally use a Type A 
connector. Very few, if any, EOBRs in the marketplace today would meet 
the final rule's requirement, and there would be significant added 
costs to retrofit current units, or to replace them with new devices 
that are Type B connector compliant. The petitioners noted that if the 
regulation were to be amended to permit the use of Type A connectors, 
existing devices would be immediately compliant with this provision.

Agency's Assessment and Decision

    FMCSA amends Appendix A, Paragraph 2.2, to delete the requirement 
for a Type B connector, and replaces it with a requirement for a Type A 
connector. Although the Type B connector has sometimes been used to 
connect portable and handheld computing devices to printers, the Type A 
connector is much more appropriate for a computer-to-computer (or EOBR-
to-computer) communications interface.

Fault Codes

    XATA requests that FMCSA more clearly define the frequency, 
duration, and availability for capture of five EOBR Diagnostic Event 
Codes listed in Table 3 of Appendix A. Those codes are Low Voltage 
(LOWVLT), Battery Low (BATLOW), Communications Error (COMERR), Display 
Error (DYPERR), and Keyboard Error (KEYERR). The first two of these 
diagnostic events could occur when a vehicle is being started during 
cold weather, but would be resolved when the vehicle is warmed up. The 
third diagnostic events could occur when a CMV is operating in areas 
with limited cellular carrier coverage. [XATA notes that truckload 
motor carriers operate on irregular routes and in areas of the country 
where cellular communications coverage is sparse, and asks FMCSA to 
clarify how frequently gaps in coverage would have to occur to trigger 
an EOBR error report. [XATA is also concerned that the fourth and fifth 
diagnostic events, associated with malfunctions of the EOBR display and 
the keyboard or input device, are not sufficiently defined in the final 
rule to indicate what conditions needed to be reported.]]

Agency's Assessment and Decision

    FMCSA agrees with XATA that there is a need to clarify thresholds 
and frequencies for the diagnostic events that would trigger fault 
codes for these various conditions. The Agency is aware that CMVs are 
equipped with sensors to detect these diagnostic events, and that 
setting or adjusting the reporting thresholds would be accomplished 
though software revisions. In contrast, the resolution of the 
petitioners' questions concerning the operating temperature range and 
the USB connector must be implemented through the EOBR hardware. 
Hardware

[[Page 55490]]

changes (operating temperature range and USB connecter) take 
considerably more lead time to address than the software changes that 
are the subject of XATA's request. Therefore, the Agency has determined 
that it would be more appropriate to consider the fault-code reporting 
thresholds during the implementation period prior to the June 4, 2012 
compliance date of the final rule. Prior to the compliance date the 
Agency will make a determination if it is necessary to have a separate 
rulemaking or other regulatory action to address this matter.

Additional Data Transfer Options

    XATA recommended that FMCSA consider adding an additional option 
for EOBR data transfer that would use the internet or internet-enabled 
technology. XATA's main concern is that this method would provide a 
longer-term solution than the wired and wireless methods specified in 
the final rule. Although this requested option would not take the place 
of the data transfer requirements specified in the April 2010 final 
rule, it could provide an alternative method, although it would require 
safety officials to be trained and provided the appropriate 
communications hardware to take advantage of it.

Agency's Assessment and Decision

    FMSCA acknowledges the importance of using communications and data-
transfer methods that are robust and have long-term implementability. 
The Agency is aware that some providers of EOBRs and support services 
currently use internet (Web) based storage and archiving of Hours of 
Service records. Unlike the fault-codes question, the resolution of 
this matter relates to the availability of communications hardware and 
software for roadside safety officials, rather than for the EOBR 
itself. The Agency will make a determination if it is necessary to have 
a separate rulemaking or other regulatory action to address this matter 
prior to the June 4, 2012 compliance date of the final rule.
    FMCSA has notified Qualcomm Incorporated, XATA Corporation, and the 
group of industry stakeholders of the disposition of their respective 
petitions. Copies of these letters have been placed in the docket.

Rulemaking Analyses and Notices

Administrative Procedure Act

    If an agency determines that the prior notice and opportunity for 
public comment on a rule normally required by the Administrative 
Procedure Act are impracticable, unnecessary, or contrary to the public 
interest (the so-called ``good cause'' finding), it may publish the 
rule without providing such notice and opportunity for comment. (See 5 
U.S.C. 553 (b).) The amendments made by this final rule make changes to 
correct inadvertent errors and to respond to petitions for 
reconsideration. For these reasons, FMCSA finds good cause that notice 
and public comment are unnecessary. Further, the Agency finds good 
cause under 5 U.S.C. 553 (d) (3) to make the amendments effective upon 
publication.

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

    FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or within 
the meaning of Department of Transportation regulatory policies and 
procedures. The Office of Management and Budget (OMB) did not review 
this document. We expect the final rule will have minimal costs; 
therefore, a full regulatory evaluation is unnecessary.

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). This rule will not have a 
SEISNOSE.

Unfunded Mandates Reform Act of 1995

    This rulemaking does not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et 
seq.), that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $140.8 
million or more in any 1 year.

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 13045 (Protection of Children)

    FMCSA analyzed this action under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. We 
determined that this rulemaking does not concern an environmental risk 
to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rulemaking will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    FMCSA analyzed this rule in accordance with the principles and 
criteria contained in Executive Order 13132. We determined that this 
rulemaking does not create a substantial direct effect on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this action.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal Agency must consider the impact of paperwork and other 
information collection burdens imposed on the public. FMCSA has 
determined that no new information collection requirements are 
associated with the technical amendments to this final rule.

National Environmental Policy Act

    FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined under our environmental procedures Order 5610.1 the National 
Environmental Policy Act Implementing Procedures and Policy for 
Considering Environmental Impacts, published March 1, 2004 (69 FR 
9680), that this action does not have any effect on the quality of the 
environment. Therefore, this final rule is categorically excluded from 
further analysis and documentation in an environmental assessment or 
environmental impact statement under FMCSA Order 5610.1, paragraph 6.x 
of Appendix 2. The CE under paragraph 6.x relates to regulations 
implementing procedures for the issuance, amendment, revision

[[Page 55491]]

and rescission of Federal motor carrier regulations (e.g., the 
establishment of procedural rules that would provide general guidance 
on how the agency manages its notice-and-comment rulemaking 
proceedings, including the handling of petitions for rulemakings, 
waivers, exemptions, and reconsiderations, and how it manages 
delegations of authority to carry out certain rulemaking functions.). A 
Categorical Exclusion Determination is available for inspection or 
copying in the Regulations.gov website listed under ADDRESSES.
    FMCSA also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it has no effect on the environment.

Executive Order 13211 (Energy Effects)

    FMCSA analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We determined that it is not a ``significant 
energy action'' under that Executive Order because it is not 
economically significant and is not likely to have an adverse effect on 
the supply, distribution, or use of energy.

List of Subjects

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.

0
In consideration of the foregoing, FMCSA amends title 49, Code of 
Federal Regulations, chapter III, as follows:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 continues 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
2. In Sec.  385.807, revise paragraph (a) to read as follows:


Sec.  385.807  Notice and issuance of remedial directive.

    (a) Following the close of the compliance review described in Sec.  
385.805, 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.
* * * * *

0
3. In Sec.  385.815, revise paragraph (e) to read as follows:


Sec.  385.815  Exemption for AOBRD users.

* * * * *
    (e) The exemption granted under this section shall not apply to 
CMVs manufactured on or after June 4, 2012.

PART 395--HOURS OF SERVICE OF DRIVERS

0
4. The authority citation for part 395 continues to read as follows:

    Authority:  49 U.S.C. 31133, 31136, 31151, and 31502; and 49 CFR 
1.73.


0
5. In Appendix A to part 395:
0
a. Revise paragraph 2.2, and
0
b. Remove and reserve paragraph 3.1.5.1 to read as follows:

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

* * * * *
    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 A connector. The USB 
interface must implement the Mass Storage class (08h) for driverless 
operation.
* * * * *
    3.1.5.1 [Reserved.]
* * * * *

    Issued on: September 7, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-22736 Filed 9-10-10; 8:45 am]
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