[Federal Register: January 18, 2007 (Volume 72, Number 11)]
[Proposed Rules]
[Page 2339-2394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja07-31]
[[Page 2339]]
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Part II
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Part 350, et al.
Electronic On-Board Recorders for Hours-of-Service Compliance; Proposed
Rule
[[Page 2340]]
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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: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes to amend 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 the date 2 years following the effective date
of a final rule. On-board hours-of-service recording devices meeting
FMCSA's current requirements and voluntarily installed in CMVs
manufactured before the implementation date of a final rule may
continue to be used for the remainder of the service life of those
CMVs. Under the proposal, motor carriers that have demonstrated a
history of serious noncompliance with the hours-of-service (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, 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 automatic on-board recording devices
(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 propose changes to the safety fitness standard
that would require this group of carriers to install, use, and maintain
EOBRs in order to meet the new standard. Finally, FMCSA would encourage
industrywide use of EOBRs by providing the following incentives for
motor carriers to voluntarily use EOBRs in their CMVs: Revising the
Agency's compliance review procedures to permit examination of a random
sample of drivers' records of duty status; providing partial relief
from HOS supporting documents requirements, if certain conditions are
satisfied; and other potential incentives made possible by the inherent
safety and driver health benefits of EOBR technology.
DATES: Comments must be received by April 18, 2007.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-2004-18940 by any of the following methods:
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the Agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (RIN-2126-AA89). Note that all comments received will be
posted without change to http://dms.dot.gov, including any personal
information provided. Please see the Privacy Act heading for further
information.
Docket: For access to the docket to read background documents
including those referenced in this document, or to read comments
received, go to http://dms.dot.gov at any time or to Room PL-401 on the
plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Privacy Act: Anyone is able to search the electronic form of 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 DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
Comments received after the comment closing date will be included
in the docket and the Agency will consider late comments to the extent
practicable. FMCSA may, however, issue a final rule at any time after
the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations, (202) 366-4009, Federal Motor Carrier Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION: This rulemaking notice is organized as
follows:
I. Legal Basis for the Rulemaking
II. Background
III. Executive Summary
IV. Discussion of Comments to the ANPRM
A. Overview of Comments
B. Key Research Factors
C. Comments on the Requested Subjects
1. Synchronization of Recorder to a Vehicle Operating Parameter
2. Amendment of Records
3. Duty Status Categories When the CMV Is Not Moving
4. Ensuring Drivers Are Properly Identified
5. Reporting and Presentation (Display) Formats
6. Audit Trail/Event Log
7. Ability To Interface with Third-Party Software for Compliance
Verification
8. Verification of Proper Operation
9. Testing and Certification Procedures
10. EOBR Maintenance and Repair
11. Development of ``Basic'' EOBRs To Promote Increased Carrier
Acceptance
12. Definitions--Basic Requirements
13. Potential Benefits and Costs
14. Incentives To Promote EOBR Use
15. Miscellaneous Questions
V. Agency Proposal
A. Technology
B. Remedies
C. Incentives
VI. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
Regulatory Flexibility Act
Unfunded Mandates Reform Act
Executive Order 13132 (Federalism)
Executive Order 12372 (Intergovernmental Review)
Paperwork Reduction Act
National Environmental Policy Act
E.O. 13211 (Energy Supply, Distribution or Use)
E.O. 12898 (Environmental Justice)
E.O. 13045 (Protection of Children)
E.O. 12988 (Civil Justice Reform)
E.O. 12630 (Taking of Private Property)
National Technology Transfer and Advancment Act
Privacy Impact Assessment
I. Legal Basis for the Rulemaking
The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August
9, 1935,
[[Page 2341]]
now codified at 49 U.S.C. 31502(b)) (the 1935 Act) provides that
``[t]he 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 notice of proposed rulemaking (NPRM) 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. The NPRM would allow motor carriers to
use EOBRs to document drivers' compliance with the HOS requirements;
require some noncompliant carriers to install, use, and maintain EOBRs
for this purpose; and update 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 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 the 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 would enable motor carriers to track
their drivers' on-duty driving hours accurately, thus preventing
regulatory violations or excessive driver fatigue, and to schedule
vehicle and driver operations more efficiently. Driver compliance with
the HOS rules helps ensure that ``the physical condition of [commercial
motor vehicle drivers] 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, and thus improve driver safety and
welfare, FMCSA proposes to require EOBR use by motor carriers with the
most serious HOS compliance deficiencies (``pattern violations''), as
described elsewhere in this NPRM. The Agency considered whether this
proposal would impact driver health under 49 U.S.C. 31136(a)(3) and
(a)(4). Since the proposal could increase compliance with the HOS
regulations, including driving and off-duty time, it would not have a
deleterious effect on the physical condition of drivers. (See the
discussion regarding health impacts at section 13.3.) The requirements
in 49 U.S.C. 31136(a)(1) concerning safe motor vehicle maintenance,
equipment, and loading are not germane to this proposed rule, as EOBRs
influence driver operational safety rather than vehicular and
mechanical safety. Consequently, the Agency has not explicitly assessed
the proposed rule against that requirement. However, to the limited
extent 49 U.S.C. 31136(a)(1) pertains specifically to driver safety,
the Agency has taken this statutory requirement into account throughout
the proposal.
In addition, section 408 of the ICC Termination Act of 1995 (Pub.
L. 104-88, 109 Stat. 803, at 958) (ICCTA) required 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 * * *) no later than March 1, 1996.'' The original ANPRM under
section 408 of ICCTA was published on November 5, 1996 (61 FR 57252),
the NPRM on May 2, 2000 (65 FR 25540), and the final rule on April 28,
2003 (68 FR 22456). As discussed further later in this preamble, 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,
at 22488, Apr. 28, 2003).
Section 113(a) of the Hazardous Materials Transportation
Authorization Act of 1994 (Pub. L. 103-311, August 26, 1994, 108 Stat.
1673, at 1676) (HMTAA) requires the Secretary to prescribe regulations
to improve--(A) compliance by commercial motor vehicle drivers and
motor carriers with hours-of-service requirements; and (B) the
effectiveness and efficiency of Federal and State enforcement officers
reviewing such compliance. HMTAA section 113(b) states that such
regulations must allow for a motor carrier's use of a ``written or
electronic document[s] 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 EOBR proposals set forth
performance standards, incentives measures, and remedial requirements
for use of devices that generate such electronic documents and address
the HMTAA mandate.
Section 9104 of the Truck and Bus Safety and Regulatory Reform Act
(Pub. L. 100-690, November 18, 1988, 102 Stat. 4181, at 4529) 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 hours of service regulations,'' and
requires the Agency to ensure that 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) (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))
Based on the statutory framework reviewed previously, FMCSA thus
has statutory authority to adopt an industrywide requirement that all
motor carriers subject to HOS requirements under 49 CFR Part 395
install and use EOBR-based systems. The Agency elects not to exercise
the full extent of its authority at this time, however, and instead
proposes 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. In this NPRM, the
Agency proposes criteria for identifying carriers with patterns of HOS
violations. We also propose changes to the safety fitness standard that
would require this group of carriers to install, use, and maintain
EOBRs in order to meet the new standard.
The determination of a carrier's safety fitness is well within the
Secretary's authority. Section 215 of the 1984 Act
[[Page 2342]]
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)) That procedure must include ``[s]pecific 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, August 10,
2005, 119 Stat. 1144) (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 prohibit from operating in interstate commerce and
intrastate operations affecting interstate commerce owners or operators
of CMVs that FMCSA has determined do not meet the safety fitness
requirement to operate in interstate commerce, until the Secretary
determines that such owner or operator is fit.
II. Background
The Federal HOS regulations (49 CFR Part 395) limit the number of
hours a commercial motor vehicle driver may drive and be on duty each
day, and during each 7- or 8-day period. The rules are needed to
prevent commercial vehicle operators from driving for long periods
without opportunities to obtain adequate sleep. Sufficient sleep is
necessary to ensure that a driver is alert behind the wheel and able to
respond appropriately to changes in the driving environment. Under
Sec. 395.8, all motor carriers and drivers (except private motor
carriers of passengers [non-business]) must keep records to track on-
duty and off-duty time. FMCSA and State agencies use these records to
carry out safety oversight activities.
As FMCSA discussed in its September 2004 ANPRM on EOBRs (69 FR
53386, Sept. 1, 2004), the methods of recording and documenting HOS
have been modified several times over the years. The Interstate
Commerce Commission (ICC) first established a requirement for a
Driver's Daily Log in 1940. This requirement was later revised to add
the familiar graph-grid recording format to the driver's log, which
became known as ``Driver's Record of Duty Status (RODS).''
In the mid-1980s, motor carriers began to look to automated methods
of recording drivers' duty status as a way of saving drivers time and
improving the efficiency of their compliance-assurance procedures. On
April 17, 1985 (50 FR 15269), the Federal Highway Administration
(FHWA), the predecessor Agency to FMCSA within the U.S. Department of
Transportation (DOT), granted a waiver to Frito-Lay, Inc. to allow it
to use on-board computers rather than requiring its drivers to complete
handwritten RODS (the driver logbook, or ``logs''). Nine other motor
carriers were subsequently granted waivers.
In 1986, the Insurance Institute for Highway Safety (IIHS)
petitioned FHWA to require the installation and use of automatic on-
board recordkeeping systems. Although the petition was denied, FHWA
determined that regulations were needed to allow motor carriers to use
AOBRDs without having to seek waivers. After providing the public with
notice and opportunity to comment, FHWA issued a final rule on
September 30, 1988 (53 FR 38666), which revised part 395 of the FMCSRs
to allow, but not require, motor carriers to equip CMVs with AOBRDs
instead of requiring drivers to complete handwritten RODS (49 CFR
395.15). An AOBRD was defined under Sec. 395.2 as:
* * an electric, electronic, electromechanical, or mechanical
device capable of recording driver's duty status information
accurately and automatically as required by Sec. 395.15. The device
must be integrally synchronized with specific operations of the
commercial motor vehicle in which it is installed. At a minimum, the
device must record engine use, road speed, miles driven, the date,
and time of day.
Performance requirements for AOBRDs are straightforward. The AOBRD
and its support systems must be certified by the manufacturer as
evidence that they ``have been sufficiently tested to meet the
requirements of Sec. 395.15'' and Appendix A to Part 395 ``under the
conditions in which they would be used.'' The design must permit duty
status to be updated only when the vehicle is at rest, unless the
driver is registering the crossing of a State boundary. The AOBRD and
support systems must be resistant to tampering ``to the maximum extent
practicable.'' The AOBRD must provide a visual or audible warning to
the driver if it ceases to function, and any sensor failures and edited
data must be identified in the RODS printed from the device. Finally,
the AOBRD must be maintained and recalibrated according to the
manufacturer's specifications; drivers must be adequately trained in
the proper operation of the device; and the motor carrier must maintain
a second (backup) copy of electronic HOS files in a separate location.
At the time Sec. 395.15 was issued, the technology to allow on-
board recorders to communicate data wirelessly between the CMV and the
motor carrier's base of operations did not exist on a widespread
commercial basis. Today's technologies allow for real-time transmission
of a vehicle's location and other operational information. FMCSA calls
these current-generation recording devices EOBRs. By exploiting the
power of these technologies, a motor carrier can improve not only its
scheduling of vehicles and drivers but also its asset management and
customer service. In fact, some system providers offer applications for
real-time HOS monitoring that build upon the time- and location-
tracking functions included in the providers' hardware and software
products. Because of these developments in technology and
communications, the current, narrowly crafted on-board recorder
regulations require revision.
On August 3, 1995, the IIHS, Advocates for Highway and Auto Safety
(Advocates), and several other highway safety and advocacy
organizations petitioned FHWA to require on-board recorders in CMVs.
The petitioners believed that mandated use of these devices would
improve HOS compliance, thereby reducing the number of fatigued drivers
and fatigue-related crashes. Subsequently, FMCSA included in its May 2,
2000, NPRM (65 FR 25540) on HOS a proposal to require EOBRs on
commercial motor vehicles used in long-haul and regional operations. In
its report ``Top Ten Management Issues'' (Report Number PT-2001-017,
January 18, 2001) the DOT Office of Inspector General summarized the
NPRM regarding EOBR use as follows:
Driver HOS violations and falsified driver logs continue to pose
significant safety
[[Page 2343]]
concerns. Research has shown that fatigue is a major factor in
commercial vehicle crashes. During roadside safety inspections, the
most frequent violation cited for removing a driver from operation
is exceeding allowed hours of service. Use of electronic recorders
and other technologies to manage the HOS requirements has
significant safety value. FMCSA's [May 2, 2000] proposed rulemaking
would revise the hours of service by reducing the driving time
allowed within a 24-hour period and by phasing in, over a period of
years, the use of on-board electronic recorders to document drivers'
hours of service. The Congress prohibited the Department from
adopting a final rule during FY 2001. FMCSA management should use
this time to consider all of the comments received and revise the
proposed rule as appropriate.
When FMCSA published its final HOS rule in April 2003, however, the
proposal for mandatory use of EOBRs for CMVs used in long-haul and
regional operations was withdrawn (68 FR 22456, Apr. 28, 2003). FMCSA
concluded there were insufficient economic and safety data, coupled
with a lack of support from the transportation community at large, to
justify an EOBR requirement at that time. The Agency based these
conclusions on the following:
(1) Neither the costs nor the benefits of EOBR systems were
adequately ascertainable, and the benefits were easier to assume than
to accurately estimate.
(2) The EOBR proposal was drafted as a performance standard, but
enforcement officials generally preferred the concept of a design
standard to facilitate data accessibility.
(3) There was considerable opposition to the proposal to phase in
the EOBR requirement, starting with large long-haul motor carriers--
those having more than 50 power units. Large carriers argued that
mandated EOBR use was irrational because small carriers generally have
higher crash rates. Major operators also complained that the phase-in
schedule would force them to pay high initial prices for EOBRs, while
carriers allowed to defer the requirement would benefit from the lower
costs associated with increased demand, competition, and economies of
scale.
(4) There was considerable concern about the potential use of EOBR
data for purposes other than HOS compliance.
On July 16, 2004, the United States Court of Appeals for the
District of Columbia Circuit vacated the 2003 final rule, for reasons
unrelated to EOBRs. See Public Citizen, et al. v. FMCSA, 374 F.3d 1209
(D.C. Cir. 2004). In dicta, however, the court stated that section 408
of the ICCTA ``required the Agency, at a minimum, to collect and
analyze data on the costs and benefits of requiring EOBRs.'' (Id. at
1221)
On September 1, 2004, FMCSA published an ANPRM requesting comments
on a wide range of issues related to the design, use, applicability,
costs, and benefits of EOBRs (69 FR 53386). FMCSA also conducted
research into the current use, design, and costs of EOBRs and other
communications systems being deployed by trucking companies, to provide
additional information on which to base an approach to incorporating
EOBR requirements in the FMCSRs. This proposed rule is based,
therefore, both on the comments received to the ANPRM and on
independent research the Agency conducted. The four research studies
cited in the ANPRM are available in the docket at entries 2, 3, 6, and
7. FMCSA sponsored three additional studies: ``Recommendations
Regarding the Use of Electronic On-Board Recorders (EOBRs) for
Reporting Hours of Service (HOS),'' prepared by staff of the John A.
Volpe National Transportation Systems Center, U.S. Department of
Transportation Research and Innovative Technology Administration,
Cambridge, Massachusetts (``Volpe Center Study''); ``Technical Review
and Assessment: Recommendations Regarding the Use of Electronic On-
Board Recorders (EOBRs) for Reporting Hours of Service (HOS),''
prepared by Dr. Kate A. Remley, Electromagnetics Division, National
Institute of Standards and Technology, Boulder, Colorado; and the 2005
update of ``On-Board Recorders: Literature and Technology Review,''
prepared by Cambridge Systematics (Cambridge, Massachusetts). These
studies are also in the docket.
Three of FMCSA's sister agencies within DOT-FHWA, the National
Highway Traffic Safety Administration (NHTSA), and the Federal Railroad
Administration--conducted a peer review of the Volpe Center Study in
accordance with Office of Management and Budget peer review
requirements. The reviewers evaluated the research with respect to
scientific and technical merit, adequacy, and overall quality. A
summary report of the peer review panel's evaluation and FMCSA's
response to the evaluation are available in the Agency's EOBR Peer
Review docket (FMCSA-2006-25548) of the DOT Docket Management System.
III. Executive Summary
FMCSA proposes a comprehensive rule intended to improve CMV safety,
increase use of EOBRs within the motor carrier industry, and to improve
HOS compliance. The approach has three components: (1) A new
performance-oriented standard for EOBR technology; (2) use of EOBRs to
remediate regulatory noncompliance; and (3) incentives to promote EOBR
use. FMCSA believes this approach strikes an appropriate balance
between promoting highway safety and minimizing cost and operational
burdens on motor carriers that demonstrate strong and consistent
compliance with the HOS regulations.
EOBR Performance Requirements. In developing the proposed
requirements for EOBRs, FMCSA focused its attention on seven research
factors listed in the ANPRM: (1) Ability to identify the individual
driver; (2) Tamper resistance; (3) Ability to produce records for
audit; (4) Ability of roadside enforcement personnel to access the HOS
information quickly and easily; (5) Level of protection afforded other
personal, operational, or proprietary information; (6) Cost; and (7)
Driver acceptability. FMCSA proposes that the EOBR record basic
information needed to track duty status, including the identity of the
driver, duty status, date and time, location of the CMV, distance
traveled, and other items that the driver would enter (such as truck
numbers and shipping document numbers). The EOBR would be required to
identify the driver, although FMCSA does not propose mandating a
specific identification method. This approach would allow carriers to
use existing identification systems or implement newer technologies as
they become feasible.
While many of the proposed requirements, such as that for tamper
resistance, parallel the requirements for AOBRDs, others would extend
the AOBRD requirements based on our expectation that the EOBR will have
a high degree of reliability. The EOBR would not need to be integrally
synchronized to the engine or other vehicle equipment. An EOBR must,
however, have GPS or other location tracking systems that record
location of the CMV at least once a minute. EOBRs could still use
sources internal to the vehicle to record distance traveled and time.
EOBRs must perform a power-on self-test on demand and must also warn
the driver if the device ceased to function. Maintenance,
recalibration, and self-certification requirements would be similar to
those for AOBRDs.
EOBRs would need to produce parallel data streams of original and
modified entries to provide an audit trail for data. FMCSA proposes
several options for information transfer and display; EOBRs could
produce the driver's HOS chart in a graph-grid
[[Page 2344]]
format in either electronic or printed form. Data transfer could be
either hardwired or wireless.
EOBR Use Requirements. FMCSA is proposing to require EOBR use only
for those carriers found to have HOS violation rates of 10 percent or
more of the records reviewed during each of two compliance reviews
(CRs), when the two reviews are conducted within a 2-year period. These
carriers would be issued a remedial directive requiring that they
install EOBRs in all of their CMVs and use the devices for HOS
recordkeeping for a period of 2 years. This approach focuses on
carriers with a history of serious HOS violations.
EOBR Incentives. FMCSA would encourage all motor carriers to
install and use EOBRs. Some carriers are reluctant to take this step,
out of concerns that EOBRs' accuracy and the accessibility of the
electronic records they generate would cause safety investigators to
examine all of the carrier's HOS records and make minor violations
easier to identify. We believe these concerns are warranted. To avoid
putting EOBR-using carriers at a disadvantage during CRs, and to
provide an incentive for EOBR use, under this proposed rule FMCSA would
evaluate HOS compliance differently during CRs of carriers using EOBRs
voluntarily than during CRs of other carriers. If a carrier voluntarily
using EOBRs is found to have HOS violations in 10 percent or more of
the records reviewed in the initial analysis, which focuses on drivers
expected to have compliance problems,\1\ FMCSA would conduct a second
review, of a random sample made up of records of duty status for the
carrier's other drivers, and use the results of the second sample in
determining the carrier's safety rating. FMCSA would assess civil
penalties on the carrier in the Notice of Claim phase for all HOS
violations discovered, regardless of the safety rating assigned. (If
the initial, focused sample did not disclose a 10 percent or greater
violation rate, then under current regulations the violations found
would not affect the carrier's safety rating in any case.) We believe
this approach would remove a disincentive to EOBR use while maintaining
the Agency's focus on safety. This incentive would not be available to
motor carriers operating under a remedial directive to install, use,
and maintain EOBRs.
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\1\ FMCSA's routine compliance review procedures call for FMCSA
or State safety investigators to focus their sample of HOS records
on the RODS of drivers involved in interstate recordable accidents,
drivers placed out of service for hours-of-service violations during
roadside inspections, drivers discovered to have poor driving
records through Commercial Driver's License Information System
checks, recently hired drivers, and drivers having a high
probability of excessive driving.
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Under this proposed rule, FMCSA also would provide partial relief
from HOS supporting documents requirements for motor carriers that
voluntarily use EOBRs, provided certain conditions are satisfied. EOBRs
meeting the proposed requirements produce regular time and CMV location
position histories sufficient to verify adequately a driver's on-duty
driving activities. Motor carriers voluntarily maintaining the time and
location data produced by such devices would need to maintain only
those additional supporting documents as are necessary to verify on-
duty not-driving activities and off-duty status.
FMCSA is also requesting comment on other incentives for EOBR
adoption. We are interested in identifying other regulatory relief that
a motor carrier's EOBR use might justify, including relief from
specific HOS requirements or limitations consistent with the safety and
driver health benefits of EOBR technology.
Other Issues. In response to the ANPRM, some carriers and drivers
expressed a reluctance to use EOBRs because of other uses that could be
made of the data the devices produce. Drivers objected to the devices
as an invasion of privacy and as a source of information that could be
used against them for non-HOS-related issues, such as speeding.
Carriers were concerned that the data could be used in post-crash
litigation. Both asked that FMCSA limit access to the data for the
purpose of HOS compliance-related enforcement.
This NPRM does not propose to require EOBRs to record engine speed,
although we are aware that other data could be used to derive that
information. We recognize the industry's concerns in this area, and are
not proposing that EOBRs display, or make readily available to
enforcement officials, information other than what is necessary to
determine compliance with the HOS regulations.
IV. Discussion of Comments to the ANPRM
A. Overview of Comments
FMCSA received 307 comments in response to the ANRPM. Nearly half
(148) were from drivers or driver trainers. There were 35 comments from
private citizens, not all of whom indicated whether they were drivers.
FMCSA also received comments from 70 carriers, 35 of which were owner-
operators. Fourteen trucking associations submitted comments, as did
three passenger carrier associations. Also commenting were six advocacy
organizations and eight associations representing companies such as
utilities, ready-mixed concrete suppliers, and solid waste management
firms. Finally, 15 vendors of EOBRs or similar products, 3 individual
non-trucking firms, one union, and one law enforcement agency submitted
comments.
In addition, 172 of the commenters to FMCSA's May 2, 2000, NPRM on
hours of service of drivers (65 FR 25540) included comments on the
issue of an EOBR requirement. Of these commenters, 48--including the
National Transportation Safety Board (NTSB), advocacy organizations, 8
carriers, and 34 drivers--supported such a requirement, while 124 were
opposed. The latter group included construction industry associations
and carriers, trucking associations, an express carrier, and 88
drivers.
The potential imposition of an EOBR requirement drew diverse
comments. Some motor carriers requested that FMCSA exempt them from any
EOBR requirement because of the nature of their activities. By
contrast, other carriers thought any requirement to use EOBRs should be
applied evenly across the industry to maintain a level playing field.
The Canadian Trucking Alliance (CTA) stated that it ``has adopted a
policy position, which has been communicated to Canadian governments at
both the Federal and provincial levels, that calls for the mandatory
use of EOBRs for the operators of all commercial vehicles, where a
commercial driver's license is required to operate the vehicle and a
logbook must be completed by the driver under the current rules.''
Advocacy organizations recommended an across-the-board mandate, viewing
full compliance with the HOS regulations as vital to roadway safety.
They believe EOBRs are necessary to improve both motor carriers'
compliance with the HOS regulations and FMCSA's ability to enforce
them.
Many drivers contended that mandating EOBR use would constitute an
unwarranted (and possibly unconstitutional) invasion of privacy. Some
expressed concerns about trucking companies using EOBRs to maximize
driving time under the HOS regulations at the expense of driver health
and safety. The Truckload Carriers Association (TCA) cited protections
afforded to consumer credit reports by the Fair Credit Reporting Act
and the protections of medical information required by the Health
Insurance Portability and Accountability Act of 1996.
[[Page 2345]]
Motor carriers and trucking industry associations also expressed
concerns with a potential mandate. Many motor carriers, especially
smaller companies, echoed drivers' concerns regarding the potential
financial burden of installing and maintaining EOBRs. On the other
hand, several medium and large carriers noted they currently use
vehicle tracking and wireless communication systems. They asked FMCSA
to consider those systems as equivalent to EOBRs, similar to the
exemption granted to Werner Enterprises (Werner) (69 FR 56474, Sept.
21, 2004) to allow use of a system based upon global positioning system
(GPS) technology. Motor carriers using these and similar systems
asserted that the costs of installing and maintaining EOBRs would be
counterbalanced by savings from operating efficiencies and reduced
paperwork.
Drivers generally expressed concerns about the EOBRs. They objected
to the potential purchase and maintenance costs, and questioned the
potential for improved accuracy of EOBR-generated RODS over paper RODS,
because AOBRDs (and EOBRs) cannot automatically distinguish between
``off-duty'' and ``on-duty not-driving'' status requiring manual input
from the driver. Other commenters questioned the prospect of potential
cost savings from automated recordkeeping, the potential for improving
motor carrier HOS compliance and FMCSA's oversight activities, and the
relationship between HOS compliance and highway crashes. Both drivers
and motor carriers expressed concern about the potential for ``scope
creep''--the potential use of EOBRs to collect data unrelated to HOS
compliance for use in enforcement and litigation actions likewise
unrelated to HOS.
B. Key Research Factors
As noted under EOBR Performance Requirements, the ANPRM
specifically requested comments on the seven key research factors
initially discussed in the April 2003 HOS final rule and in the
Executive Summary of this preamble.
Commenters suggested a number of additional research factors. For
example, the Specialized Carriers and Rigging Association (SCRA) and
the Owner-Operator Independent Drivers Association (OOIDA) stated that
FMCSA needs to gather data to establish whether a correlation exists
between the use of EOBRs (both Sec. 395.15-compliant devices and other
systems, such as that used by Werner) and improved truck safety.
The American Trucking Associations (ATA) recommended FMCSA consider
maintenance and inspection of systems; performance certification and
compliance of new systems; product assurance and validation;
interoperability; and existing or future system evolution. ATA also
encouraged FMCSA to expand the list by fostering an open stakeholder
dialogue beyond the docket submission period.
Advocates supported the Agency's research criteria with the
exception of driver acceptance, contending this ``cannot be used as a
barometer for the mandatory adoption of this important safety
technology'' because drivers face pressure to accept schedules that
cannot be met without violating speed limits and the HOS regulations.
Advocates suggested adding three other criteria: High levels of crash
damage resistance; the capability to track real-time geographic
location to ensure compliance with CMV weights-and-dimensions laws and
hazardous materials routing regulations; and interoperability of all
EOBR data and data retrieval ``in accordance with the protocols that
have been issued by the Intelligent Transportation Systems consensus
positions of the ITS America Committee and constitute a baseline for
interoperability in the U.S. Department of Transportation.''
IIHS commented on FMCSA's methods of gathering information rather
than on its choice of research criteria. IIHS thought FMCSA should
conduct a field operational test of EOBR devices and conduct formal
surveys to gather data on EOBR benefits, costs, and use in HOS
enforcement.
Motor carriers also suggested additional research factors. J.B.
Hunt suggested ease of use, restrictions on use while a vehicle is in
motion (for solo operations only), driver distraction, and device
durability. Schneider recommended comparing the effectiveness of EOBRs,
paper RODS, and existing compliance programs in reducing motor carrier
crash rates. FedEx cited the ability of a device to produce documents
for review at roadside as a key technical requirement, and called on
FMCSA to assess categories of motor carrier operations for which an
EOBR mandate would be appropriate.
One equipment vendor suggested researching EOBR physical durability
and system architecture, including two-way communications and GPS
capabilities.
A number of commenters stated that FMCSA needs to gather additional
information through discussions with stakeholders. They believe this
would provide a better means of exchanging information with the Agency
than responding to a rulemaking docket. Only IIHS suggested FMCSA has
enough information to craft a ``workable'' EOBR mandate. Other
commenters urged FMCSA to move deliberately and obtain more information
from motor carriers, law enforcement personnel, and drivers.
With respect to EOBR performance standards, ATA recommended a
facilitated dialogue among motor carriers, FMCSA, and enforcement
personnel as the most effective way to develop standards serving the
interests of all. Such a process could decrease ambiguities in
interpretation between and among manufacturers and service providers,
increase EOBRs' usefulness to trucking companies, and improve the
efficiency of the HOS records auditing process.
Schneider said the ``continued instability'' of the Federal HOS
regulations and the interrelationships between the HOS regulations and
HOS records make it difficult to answer the questions posed in the
ANPRM. Schneider and other commenters suggested FMCSA move forward
deliberately, promulgate tentative minimum functional specifications,
request comments regarding the costs and benefits of compliant EOBRs,
and consider a general EOBR mandate only after performing a more
precise and comprehensive benefit-cost analysis. Overnite
Transportation stressed the need for additional input from the motor
carrier industry and the law enforcement community.
Werner asserted that many motor carriers have reviewed its system
and expressed an interest in implementing a similar system, but are
unwilling to move forward given the open status of the EOBR rulemaking.
Werner recommended that FMCSA assure motor carriers that their systems
(including ones similar to the Werner paperless logging system) would
still be considered acceptable alternatives to EOBRs should new rules
be implemented.
Many commenters (chiefly individuals) expressed concerns about
other HOS compliance and motor carrier safety matters. These included
excessive and unpaid delays at loading and unloading docks contributing
to driver fatigue and unsafe driving, the relationship between the HOS
regulations and driver pay, unsafe driving behavior by non-CMV drivers
contributing to highway crashes, inadequate training of new drivers,
anti-idling rules, and lack of legal truck parking.
[[Page 2346]]
Agency Response
FMCSA agrees with many of the commenters' recommendations, which
are reflected in several elements of the proposed rule. For example, we
are proposing a performance standard concerning geographic location
tracking of the CMV as well as providing for interoperability between
EOBRs and support systems and compliance-assurance systems, as
recommended by Advocates and other commenters. We conferred with FHWA
concerning Advocates' recommendation on interoperability of EOBR data
and data retrieval. FHWA is not aware of any ``ITS America consensus
protocols'' in existence. We intend to develop the EOBR performance
specifications in accordance with ITS America's ``ITS/CVO [Intelligent
Transportation Systems Commercial Vehicle Operations] Interoperability
Guiding Principles'' and DOT's Commercial Vehicle Information Systems
Network [CVISN] Architecture.
In response to a recommendation by ATA, Schneider, Overnite, and
others, we are providing a longer than normal public comment period for
this proposal to allow commenters ample time to develop their responses
and ensure careful consideration of a cross-section of opinion. The
Agency believes this deliberate approach, encompassing extensive
analysis of public comment and the available research, is essential to
provide the foundation for the ``workable'' rule to which IIHS
referred.
In response to Werner Enterprise's comment, we would continue to
allow Werner to operate under the exemption granted on September 21,
2004 (69 FR 56474) for vehicles manufactured prior to 2 years after the
effective date of an EOBR final rule. EOBRs installed in vehicles
manufactured after that date would be required to comply with
requirements under an EOBR final rule.
C. Comments on the Requested Subjects
The Agency also requested comments on 15 subjects, denoted as A
through O in the ANPRM. The comments to those subjects are addressed
below.
1. Synchronization of Recorder to a Vehicle Operating Parameter
Commenters disagreed about whether it is necessary to synchronize
an EOBR to the CMV to capture data necessary to establish a driver's
``on-duty, driving'' status. Seven of the 10 equipment and systems
providers commenting on this topic believe that EOBRs should be
integrally synchronized to the CMV, either directly to the engine
control module (ECM) or via the vehicle's electronic network (databus).
Several stated that their products also support CMV location tracking
via GPS or other means.
XATA, an EOBR vendor, asserted that integral synchronization is not
only more cost-effective than GPS and other technologies but provides
EOBR manufacturers a standard interface method to ensure accurate
tracking of vehicle motion and other operational data. Tripmaster
stated ``electronic engine control modules (ECM) are calibrated during
the manufacturing process with the proper odometer pulse per mile
value,'' and that EOBRs connected to the ECM ``are in effect self-
calibrated.'' Tripmaster supported GPS as an alternative distance
measurement, rather than as the primary source of such measurement.
PeopleNet supported synchronization with the databus, using ECM data to
determine travel distance and GPS to confirm location. Qualcomm
recommended that ``integrally synchronized'' refer to an EOBR system in
which at least one component is directly connected to the engine of the
CMV in which it is installed, to enable the EOBR to collect and record
CMV functions as they occur. Siemens stated its experience in other
countries is that most falsifications are based on a tampered speed
signal. It recommended tracking CMV speed through vehicle sensors
combined with a GPS speed signal. Darby Corporate Solutions believes an
EOBR should record only vehicle information, not duty status, which it
contended should be recorded by a separate device. Karta Technologies
described how its vehicle-tracking product could incorporate an EOBR
function.
In contrast, three commenters, LinksPoint, Nextel, and CPS,
supported a GPS-only system without integral synchronization to the
CMV. LinksPoint asserted that a combination of driver-reported status
and GPS-sensed data (such as vehicle motion) would permit an economical
``semi-automated'' and ``minimally compliant device'' approach to HOS
recording, and believes current mobile computing technology would allow
for error checking to improve data accuracy and protect against fraud.
CPS contended the databus standards are ``out-of-date and rely on input
from engine sensors that may be inaccurate and need regular
calibration,'' whereas a GPS-only system would be self-contained,
stand-alone, and tamper resistant. Nextel advocated integrated GPS
technology as more accurate and providing near-real-time reporting.
Motor carriers generally supported retaining a requirement for
integral synchronization of the EOBR with the CMV. Greyhound, J.B.
Hunt, Maverick, and Schneider contended that synchronization is
essential, but also noted EOBRs depend upon human input to record duty
status accurately. J.B. Hunt supported concurrent use of GPS-enabled
location tracking and recording. Schneider believes synchronization of
EOBRs with vehicle electronics ``would require significant filtering to
avoid data overload and misleading results.'' Schneider suggested FMCSA
request comments on the new European Union (EU) digital tachograph,
specifically concerning how it records CMV movement. Schneider stated
it is concerned FMCSA may be considering use of handheld GPS devices, a
technology it does not consider appropriate. ATA generally supported
development of reliable data parameters and standards. However, ATA did
not support revising the current regulations, as it believes the
problems cited in the ANPRM pertain to systems that do not comply with
these rules.
The Santa Clara Valley Transportation Authority, a public agency
not subject to the FMCSRs for most of its operations, opposed
continuing the synchronization requirement. The transportation
authority uses automated vehicle location and GPS capabilities and has
incorporated HOS rules into the Santa Clara bus schedules.
Advocacy organizations supported maintaining the synchronization
requirement. IIHS asserted the most important capability is the
accurate recording of driving time, a feature most of today's systems
provide. Citing FMCSA's past studies, Advocates and Public Citizen
opposed GPS-only systems and supported a combination of GPS technology
and recording of on-board vehicle operating parameters.
Law enforcement interests also supported the notion of an EOBR
providing a combination of location tracking and vehicle data. The
Commercial Vehicle Safety Alliance (CVSA) cited a need for redundancy
to minimize errors and falsification. The California Highway Patrol
(CHP) thought synchronization among multiple data sources and the EOBR
is vital to overcome the shortcomings of any one system.
One commenter stated that an EOBR should record only data, should
not be programmed to ``make assumptions'' as to duty status, and should
record GPS data continuously. Another commenter said an EOBR should
record data from the vehicle databus in real time. The International
Foodservice Distributor Association opposed any rule requiring
[[Page 2347]]
use of GPS and engine data to track HOS compliance.
Agency Response
The purpose of an AOBRD or EOBR is to accurately record a driver's
sequence of duty statuses, the time the driver is engaged in a given
duty status category, and the sequence of dates, times, and locations
that make up a trip. Historically, the only information available from
a source not directly controlled by the driver was the driving time and
distance, both of which were obtained from a source on the vehicle.
Change-of-duty status locations had to be entered manually. In the 20
years since AOBRDs were first used, communications and logistics
management technologies have evolved to enable a more fundamental item
of information--vehicle location--to be tracked and recorded. The
precision and accuracy of this recording has come to rival that of
distance-and-time records from the CMV.
FMCSA believes it is appropriate to offer an alternative,
performance-oriented approach that allows motor carriers and EOBR
developers to take advantage of emerging technologies. Specifically,
FMCSA now believes that an EOBR does not necessarily have to be
``integrally synchronized'' with the CMV to provide an accurate record
of driving time, equivalent to that of an electronic odometer or the
time function contained in an ECM. The Agency is proposing to allow two
ways to record distance traveled and time: (1) Via sources internal to
the vehicle (i.e., the ECM with an internal clock/calendar) to derive
distance traveled, or (2) via sources external to the vehicle (i.e.,
location-reference systems--GPS, terrestrial, or a combination of both)
recording location of the CMV once per minute and using a synchronized
clock/calendar to derive distance traveled (``electronic
breadcrumbs''). This approach has the potential advantages of removing
a restrictive design requirement, providing an opportunity for
innovation, and allowing use of less expensive hardware (e.g., GPS-
enabled cell phones), without making existing synchronized devices
obsolete.
Regardless of the communications modes (wireless or terrestrial)
and the method used to synchronize the time and CMV-operation
information into an electronic RODS, FMCSA would require the records
from EOBRs to record duty status information accurately. The difference
proposed between actual distance traveled and distance computed via
location-tracking methods over a 24-hour period would be 1
percent. EOBR developers would need to test their devices thoroughly to
ensure they meet or exceed these tolerances.
2. Amendment of Records
2.1 Should FMCSA Revise Its Definition of ``Amend'' in the Regulatory
Guidance for Sec. 395.15 To Include or Exclude Certain Specific
Activities?
Nearly all commenters who addressed this question supported a
regulatory provision to allow drivers to amend or annotate in some way
the duty status records captured by an EOBR. However, commenters did
not, for the most part, directly address the question of whether FMCSA
should revise its definition of ``amend'' in the Regulatory Guidance.
Several stated that drivers should have the opportunity to amend on-
duty not-driving, off-duty, and sleeper-berth status entries to ensure
they are accurate, while others opposed allowing drivers to amend any
driving time entries. A few opposed any provisions for drivers to amend
or annotate EOBR records.
All motor carriers addressing this issue said FMCSA should allow
drivers to make amendments or add remarks in some circumstances,
although three opposed allowing amendment of on-duty driving time. J.B.
Hunt recommended against allowing amendments of driving time entries,
but supported allowing drivers to add information in a Remarks section.
J.B. Hunt suggested employee drivers might request their company to
correct driving time errors, while independent owner-operators might
make these requests through a ``compliance consortium'' similar to
those used to manage random drug and alcohol audits. Maverick
Transportation recommended allowing drivers to amend records and enter
explanatory remarks. Roehl Transport recommended prohibiting
modification of a record ``if the truck is moving.'' Greyhound Lines'
support for allowing amendments was based upon its contention that an
EOBR cannot distinguish between a vehicle idling in traffic (on-duty/
driving) and idling at a terminal (on-duty not-driving or off-duty).
Greyhound also pointed to the need to correct errors when a new driver
takes over a vehicle but the previous driver has forgotten to log off.
Werner Enterprises noted its current system explicitly measures only
driving time, with all other duty status entries requiring driver
input. Based upon its experience in training thousands of drivers,
Werner contended that prohibiting corrections of nondriving-time errors
would render the records meaningless.
The International Brotherhood of Teamsters (IBT) stated that FMCSA
should allow drivers to amend any electronic record and add
informational remarks to note traffic conditions and indicate on-duty
not-driving or off-duty status.
CHP suggested FMCSA continue to prohibit amendments of any
permanently recorded entry or data parameter, but allow comments
regarding entry omissions and inadvertent errors as ``corrections'' in
line with the current regulatory guidance for 49 CFR 395.8, Question 8.
CVSA supported this position.
Advocates stated that FMCSA should allow drivers to make separate
annotations in certain circumstances, but should not allow alteration
of any data captured by an EOBR. It opposed the idea of allowing
drivers to use the Remarks section to provide details of on-duty not-
driving activities, reasoning that certain drivers would misrepresent
some on-duty not-driving time as off-duty time. Advocates noted FMCSA
did not include in the ANPRM any discussion of how to accurately verify
work and rest time periods that an EOBR could not capture.
Most of the vendors commenting on this issue supported allowing
drivers to make amendments or annotations to the duty status recorded
by an EOBR. For example, PeopleNet stated that without a process to
allow drivers to amend records, motor carrier personnel would have to
be available around the clock to respond to drivers' requests for
annotations. It recommended requiring that drivers enter remarks
describing the reason for the amendment, requiring the amendment to be
visible to safety officials and motor carrier back-office staff, and
prohibiting drivers from making amendments after the RODS has been
certified. Siemens and CPS opposed any alteration or annotation of EOBR
data. According to CPS, a system should provide function keys to allow
the driver to record events. Other vendors commented that drivers'
annotations or entries in the Remarks section would provide adequate
documentation of non-driving time activities, trips of short duration,
circumstances when a CMV may be stopped in traffic upstream of a crash,
use of a CMV as a personal conveyance, and other situations. However,
Siemens believes permitting any modification of recorded data would
encourage falsifications.
[[Page 2348]]
2.2 Should Drivers Be Allowed To Amend the Duty Status Record if the
System Maintains Both the Original and Amended Records?
As with their responses to the previous question, most of the
commenters addressing this issue thought drivers should be allowed to
amend the duty status record if the EOBR maintains both the original
and amended records. However, several commenters opposed allowing
drivers this privilege, while others raised questions without taking a
stance.
Four of the five motor carrier commenters took an affirmative
position. Schneider believes such a provision would be necessary for an
EOBR system to be workable, particularly in instances of EOBR
malfunction or misreadings. J.B. Hunt favored allowing drivers to add
on-duty not-driving time, requiring them to request company approval to
reduce prior on-duty time entries, but not allowing amendments of
driving time. Roehl Transport believes drivers should not be allowed to
amend their HOS records while in transit, contending that only a
supervisory motor carrier official should be allowed to amend a
driver's RODS. As noted under its response to the previous question,
Greyhound supported allowing drivers to amend records. Greyhound
suggested that drivers would have to review their electronic logs from
fixed locations and carriers would have to provide a network of
computer workstations.
One owner-operator saw no need to allow drivers to amend records,
contending that EOBRs should prompt for an entry at each change in
vehicle status. Another supported the idea of allowing amendments by
drivers.
CHP and CVSA both recommended FMCSA consider a requirement for a
permanent record of both original and amended entries. They
acknowledged, however, that this could complicate enforcement because
it would leave open the question of which version is accurate.
Advocates supported allowing a driver to enter addenda to an EOBR
record, but opposed the idea of EOBRs recording ``a separate version of
the RODS that has been manipulated by the driver.'' With regard to non-
driving time, it had no objection to a driver's using a ``supplementary
electronic logbook'' to enter non-driving work time and non-driving
rest or end-of-duty-tour time. However, Advocates stressed this
supplementary logbook should be matched against engine and GPS data for
verification of compliance with the HOS rules.
IBT recommended allowing drivers to amend the duty status record if
the EOBR maintains both the original and amended record. However, like
CHP and CVSA, IBT was concerned this approach could complicate
compliance assurance processes.
All but one of the vendors addressing this issue expressed
qualified support for allowing drivers to amend the RODS generated by
an EOBR. XATA said EOBRs could be designed to keep an original and
amended copy of records or a single copy with an audit trail of the
changes. Nevertheless, XATA recommended FMCSA limit drivers' amendment
of records. LinksPoint echoed XATA's comments, adding that its system
could flag instances when entered or amended data do not match a
vehicle's GPS travel history. Tripmaster described an EOBR using GPS
data to record location, vehicle movement to determine the duty status
of the driver (on-duty/driving or on-duty not-driving), driver input to
distinguish on-duty from off-duty status, and an internal time clock to
record the time of each change in status. Provided such a system were
in place, Tripmaster supported allowing a driver to alter ``clock in''
and ``clock out'' time to correct legitimate errors. PeopleNet
suggested FMCSA require drivers to enter remarks describing the reason
for any change and to make any amendments visible to law enforcement
through in-cab and back-office reporting. It also reminded FMCSA that
drivers must enter hours worked for a non-motor-carrier entity as on-
duty time. Qualcomm said that drivers should be able to correct non-
driving duty status as long as an audit trail is maintained, but only
before a driver certifies the correctness of the daily log. In
contrast, CPS contended drivers should not be allowed to amend the duty
status record.
2.3 Should the Agency Maintain the Blanket Prohibition Against Drivers'
Amending RODS Generated by an AOBRD?
As their comments to the previous questions indicated, most
carriers supported allowing drivers to amend or annotate non-driving
duty status records.
The few drivers who responded to this question were divided. One
said that no one should be able to change the data recorded by an EOBR,
and that drivers would soon become familiar with EOBRs and no longer
need to amend their entries. Another asserted FMCSA should remove the
blanket prohibition, but did not explain his position. A third driver
commented that allowing drivers to check HOS records leads to improved
efficiency. One opposed allowing EOBR users to erase or change any data
from EOBR memory, but proposed to allow amendments using preset entries
from menus.
IBT contended a blanket prohibition against amending records would
lead to inaccurate records, which would be contrary to the goal of
mandating EOBR use.
Public Citizen, Advocates, and CVSA urged FMCSA to maintain its
blanket prohibition against drivers amending records. Public Citizen
stated that allowing manual entry of duty status and revision of
records would effectively undermine the purpose of an automated
recorder. It believes EOBRs should be designed to eliminate any need to
amend records or enter duty status manually.
CHP recommended against allowing drivers to amend records, but
proposed allowing annotation of the records with comments. CHP believed
the motor carrier should make the decision on whether its drivers may
amend EOBR records.
Most of the equipment providers favored allowing drivers to make
amendments. XATA would allow a driver to amend a RODS to revise off-
duty time to on-duty. It stated that many edits are not critical
because motor carriers using EOBRs audit and edit the RODS to ensure
accuracy. XATA said owner-operators would have to use a service
provider to process the data or purchase supporting software to edit
and record changes. LinksPoint also recommended FMCSA remove the
blanket prohibition on driver amendments, because it has required
device providers to develop complex and expensive systems and
discouraged carriers from adopting tracking technology. Tripmaster and
Qualcomm asked FMCSA to reconsider the prohibition. Qualcomm pointed
out that since there is no way to automatically detect non-driving duty
status, there would be no net safety benefit to imposing severe
restrictions on drivers' correcting their RODS. PeopleNet said that
this requirement would require motor carriers to have safety managers
on call around the clock to revise records at a driver's request.
Nextel recommended FMCSA prohibit EOBRs that allow edits to be
entered via the device. Nextel's system, based on a wireless handset,
would allow authorized management to make edits in the main office
system and transmit the edited record back to the handset in near-real-
time. As it noted in its responses to the other questions, CPS
[[Page 2349]]
strongly believes that FMCSA should maintain the prohibition.
Agency Response to Comments Concerning the Amendment of Records
Some of the comments suggest there may be confusion regarding the
terms ``edit,'' ``amend,'' and ``annotate.'' FMCSA does not intend to
allow edits or amendments that would erase duty status records, delete
an on-duty-driving entry, or allow software-generated defaults to be
used to mask on-duty driving or on-duty not-driving (ODND) time.
One EOBR systems provider, PeopleNet, contacted FMCSA in 2002
requesting guidance on interpreting Sec. 395.15(h)(2): ``The driver
must review and verify that all entries are accurate prior to
submission to the employing motor carrier.'' The vendor was concerned
that any alteration of data would be prohibited under Sec.
395.15(i)(3) and suggested a ``ship's log'' approach, in which the
driver would make a corrective entry and note the date, time, and
location of the entry correction and the reason it was being made.
These corrections would be flagged, and the original record would not
be modified. FMCSA agrees with this approach because the original
record would be retained and the annotation would be clearly delineated
as such. This is consistent with Question 2 of the Regulatory Guidance
for Sec. 395.15, which states, ``No. 395.15(i)(3) requires automatic
on-board recording devices, to the maximum extent possible, be
tamperproof and preclude the alteration of information collected
concerning a driver's hours of service. If drivers, who use automatic
on-board recording devices, were allowed to amend their record of duty
status while in transit, legitimate amendments could not be
distinguished from falsifications * * *.''
For an AOBRD designed and operated in compliance with Sec. 395.15,
or an EOBR designed and operated to comply with proposed Sec. 395.16,
FMCSA would retain the prohibition against any revision of on-duty
driving records. Treatment of the electronic RODS reflecting non-
driving duty status entries is discussed under the section concerning
duty status categories.
In response to CHP's comment, we note that the Agency's Regulatory
Guidance to Sec. 395.15 describes a procedure whereby the driver would
submit a revised RODS page marked ``Corrected Copy,'' and the motor
carrier would retain both the original and corrected RODS pages. This
would be similar to the ``ship's log'' approach.
In response to Advocates' concern about verification of work and
rest time periods, FMCSA refers to its Supplemental Notice of Proposed
Rulemaking (SNPRM) on supporting documents (69 FR 63997, Nov. 3, 2004).
In that document, FMCSA proposed to (1) add definitions for the terms
``supporting document,'' ``employee,'' and ``driver'' to Sec. 395.2,
and provide examples of supporting documents; (2) add new Sec. 395.10
entitled ``Systematic verification and record retention''; (3) modify
the record retention requirements in Sec. Sec. 390.29 and 390.31; and
(4) clarify the motor carrier's responsibility to monitor drivers'
compliance with the HOS regulations and verify the accuracy of drivers'
RODS. Among other things, the SNPRM would explicitly require the motor
carrier to have a self-monitoring system to verify the accuracy of the
driver's entries for times and locations for each working day on each
trip as well as the accuracy of mileage for each trip. The Agency
anticipates publishing a final rule on supporting documents in the near
future.
FMCSA agrees with the commenters that to facilitate motor carrier
review of EOBR records, it will be necessary to clearly mark any
revisions of duty status entries as amendments. FMCSA would continue to
prohibit any amendment of on-duty driving status. Any annotation,
including an entry in the Remarks section, would need to carry the date
and time the entry was made. This is particularly important to flag
annotations made after the period of time described by the duty status
entry. FMCSA agrees with Advocates' comment about recording non-driving
duty status information, except that we believe this information would
be more appropriately included in the Remarks section of an EOBR record
than in a ``supplemental electronic logbook.'' In response to
Greyhound, we note that drivers have many options available to review
their records without using carrier-specific workstations sited at
fixed locations. AOBRDs and other on-board devices commonly record data
locally--that is, on the device itself. If a motor carrier adopted an
operational model that required drivers to log in to a central
computer, use of contemporary database software, communications, and
security protocols allows communication via any workstation with access
to the Internet.
FMCSA agrees with Greyhound's concern about the need to correct
errors when a new driver takes over the vehicle after the previous
driver has forgotten to log off. We are therefore proposing to require
a revision to the performance specification at Sec. 395.15 to allow
drivers to amend a record immediately before and after a trip or work
period. Drivers would be permitted to annotate a record (such as by
adding remarks), so long as the entry is time stamped and indicates who
made it. The driver could make such an annotation only before
submitting the day's record to the motor carrier.
3. Duty Status Categories When the CMV Is Not Moving
If a Driver Is Away From a Parked CMV But Has Not Entered a Change in
Duty Status Immediately Upon Stopping the Vehicle, How Might the Driver
Correct the Entry?
Some commenters contended an EOBR should automatically switch to
ODND status either immediately after or shortly after a driver stops
the vehicle. Others said that EOBRs should prompt drivers to enter a
change of duty status when the driver stops the vehicle. A few asserted
that a CMV should not start until the driver's duty status is up-to-
date. As to correcting an erroneous record, some commenters believe the
driver should get management's approval first, while others said
drivers should be able to make the correction.
One owner-operator suggested the EOBR should set the duty status to
ODND within a predetermined amount of time after stopping the vehicle,
and neither the driver nor the carrier should be able to change that
entry. Another suggested an EOBR system should include an alarm linked
to the parking brake to remind the driver to record a duty change.
J.B. Hunt echoed the comment recommending the EOBR default to ODND
after a specified time. An employee driver wishing to correct the
record would be required to get management's approval. In contrast,
Schneider did not think an EOBR should default to ODND if a driver
fails to enter a change of duty status; instead, the driver should be
given 30 minutes to correct the record retroactively.
Roehl Transport suggested allowing drivers to correct specific duty
status errors, adding that the original and revised records should both
be retained and the motor carrier should note and approve them. Roehl
believes, however, that drivers should not be allowed to change driving
time. Another motor carrier, referencing the ``driver's own
handwriting'' provision of the current regulation, remarked it would
not be practical to have printers attached to EOBRs in long-haul or
medium-haul operations, and suggested drivers be allowed to make duty
status changes
[[Page 2350]]
electronically provided the EOBR maintains an audit trail.
IBT believes this question illustrates that EOBRs would still
require driver input for duty status changes. IBT said this continued
reliance on driver input would not achieve the goal of eliminating
fraudulent logbook entries, the primary purpose of using an EOBR.
CHP said EOBRs could be designed to alert drivers if they
inadvertently omitted a manual duty status change. It also suggested
EOBRs could be designed to prevent vehicle engine start-up unless all
EOBR entries are current and permanently recorded. CHP would limit the
time for correcting entries to the time of the last recorded change of
duty status and require drivers to explain the oversight. CVSA
expressed similar views.
Advocates opposed allowing an EOBR to default to ODND, preferring a
``standby'' mode with no data entry. Public Citizen also asserted ``the
Agency must favor recorders that can accurately record non-driving duty
status, rather than allow drivers to amend records.'' As an example, it
cited EOBRs that signal when driver input is needed, contending this
would reduce the need for later revisions.
According to XATA, most EOBRs currently in use allow the motor
carrier to select a default duty status to be entered if a driver steps
away from a parked CMV without entering a change in duty status. The
EOBR could prompt the driver for input when he returns for information
on his status after the vehicle is parked. LinksPoint's comment was
similar: Although the system would rely on driver input, it would still
eliminate the ability of a driver to drive while another status is
chosen.
Qualcomm stated that the default duty status when a vehicle is not
moving should be ODND. It asserted that, under certain circumstances,
drivers should be able to make changes to any records of non-driving
status directly on the EOBR; the changes should be allowed only before
certification of a daily log; and the EOBR should maintain an audit
trail of the original and edited data accessible to both the motor
carrier and enforcement officials. Siemens recommended EOBRs
automatically switch to ODND after a preset interval when the CMV is
parked. In Siemens' experience, drivers quickly learn how to switch
their duty status to off-duty or sleeper berth when necessary.
Agency Response
Many commenters' statements reflect the current state-of-the-
practice of HOS monitoring, while some would expand the requirements to
have the EOBR prompt the driver to enter information when it is
apparent his or her duty status is changing (e.g., when the vehicle is
parked). FMCSA agrees with the latter approach, as reflected in this
proposed rule. Based on the comments as well as on extensive research
findings, FMCSA recognizes that EOBRs can accurately measure driving
time only when a CMV is moving.
FMCSA proposes that the ``default'' status for an EOBR be ODND when
the vehicle is stationary (not moving and the engine is off) for 15
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 proposed performance requirements of Sec. 395.16 add a
provision for automatically recording the location of the CMV. The
Agency believes this proposed requirement strikes an appropriate
balance to improve the accuracy and reliability of ODND and off-duty
information without intruding unnecessarily upon the privacy of the
driver.
Drivers would still be required to record the location of duty
status at each change of duty status, as currently required under
Sec. Sec. 395.8 and 395.15. FMCSA does not propose to specify the
process (e.g., entering data via a keyboard or drop-down menus) for
accomplishing this but would leave the implementation to the EOBR
manufacturers.
4. Ensuring Drivers Are Properly Identified
Many commenters discussed how drivers could be properly identified.
Some favored using a password or PIN number for identification, while
others believe these methods would not adequately protect drivers
against fraud and falsification. Technologies advocated by commenters
include smart cards and biometrics, although some were concerned that
biometric technology would be too expensive or unreliable.
The National Private Truck Council (NPTC) maintained that before
requiring EOBRs, FMCSA must ensure the devices will accurately identify
drivers and be resistant to tampering.
Advocates strongly recommended implementation of systems of codes
or computer activation: ``No system of passwords or smart cards alone
would deter and prevent attempts at unauthorized access and operation
of a vehicle. Only unique bio-identifying driver characteristics can
provide sufficient corroboration of identity for authorized access.''
Public Citizen also supported use of biometric technology such as
fingerprint readers, and stated the driver should be required to log
into such a system before the CMV could be started.
CVSA said driver data must follow a driver from vehicle to vehicle
as well as be auditable and verifiable at roadside. It stressed the
value of redundancy, suggesting that various methods of driver
identification and verification could be used in combination.
ABF Freight System, Inc., a less than truckload (LTL) carrier, uses
a slip-seat operation, in which drivers are not assigned to specific
power units. This approach is common among LTL carriers. ABF currently
uses a handset-type device providing time and location data in its city
pick-up and delivery operations and asks FMCSA to consider approving
such portable EOBRs, which could be assigned to specific drivers
instead of vehicles. A towing company also suggested a driver-oriented
approach, noting its drivers use two or three different vehicles per
shift. U.S. Telecom Association offered a similar comment.
IBT and J.B. Hunt were among several commenters noting the need for
the HOS record to follow drivers who operate several CMVs daily, work
for more than one motor carrier, or operate as team drivers. J.B. Hunt
asserted that use of smart cards would be impractical in an industry
with high driver turnover. Both commenters asserted that issuing
drivers a standardized Federal identification card, such as the
Transportation Workers Identification Credential (TWIC) under
consideration by the Department of Homeland Security, would allow them
to carry their data from motor carrier to motor carrier. This would
also address the needs of drivers who work part-time at multiple
carriers. Of course, EOBR manufacturers would need to ensure their
devices accept the standardized card and identification protocols.
J.B. Hunt said that, barring use of a standardized card, PIN
numbers would be the next-best method of identification. Wireless
communications systems could validate the identity of the driver
against dispatch information. J.B. Hunt stated that biometric
identification systems likely will be cost-prohibitive until they are
generally accepted in markets unrelated to transportation. Schneider
also commented that biometric technology would provide the greatest
level of assurance about the driver's identity but noted it is
significantly more expensive than passwords or smart cards. A private
citizen also favored use of
[[Page 2351]]
biometrics for identification and as an antitheft device.
United Motorcoach Association (UMA) claimed there would be no way
to ensure the integrity of EOBR data, including driver identification.
UMA cited the lack of a national standard biometric identifier for the
commercial driver's license. It also contended that smart cards would
need to rely on driver identity verification at a much higher level
than has been implemented to date. Greyhound also emphasized the
criticality of properly identifying the driver. While supporting
biometric identifiers in principle, it was concerned about high costs.
In addition, Greyhound opposed a system that would preclude a vehicle
from operating unless the driver were identified, as it would hinder
maintenance operations.
CHP suggested using several methods of data transfer and driver
identification, singly or in combination, including smart cards, PIN
numbers, and associated communications systems. CHP described a card
capable of recording all pertinent data about the driver that would be
inserted and removed from a reader installed in each vehicle. It also
described a hypothetical EOBR system using wireless communication
methods to transfer data and ``biological positive driver
identification.''
Vendors suggested various methods to identify drivers: Passwords or
PINs, smart cards, and biometric technology. Scanware commented on the
difficulties of designing EOBRs to handle team-driving situations.
Agency Response
FMCSA recognizes the diversity of motor carrier operations and
acknowledges commenters' concerns about the potential costs of advanced
driver identification methods such as biometric identifiers and smart
cards. Various approaches to identification currently exist, while
others are being developed, and carriers may have different needs and
standards regarding an acceptable level of risk. Rather than limiting
carriers' ability to adopt technically advanced systems or imposing
duplicative requirements on carriers desiring more secure systems,
FMCSA proposes to adopt a general requirement that driver
identification be part of the EOBR record, without prescribing a
specific approach. An EOBR would require the driver to enter self-
identifying information (e.g., user ID and password, PIN numbers) or to
provide other identifying information (e.g., smart card, biometrics)
when he or she logs on to the EOBR system.
In response to commenters who suggested that FMCSA require use of
the Department of Homeland Security's proposed TWIC to identify the CMV
driver and possibly serve as a portable data record, FMCSA does not
presently anticipate using TWIC for EOBR HOS data storage. There are
several reasons for this. While the amount of memory required has yet
to be specified, it is expected to be less than what would be needed
for an EOBR application. Furthermore, FMCSA acknowledges several
commenters' concerns about driver and motor carrier privacy; some
information contained on the TWIC would not be relevant to an HOS
record.
5. Reporting and Presentation (Display) Formats
5.1 Visual Record
Most comments on reporting formats focused on visual displays
available to drivers and roadside enforcement. Commenters favored
standardized visual displays because they would make EOBRs easier for
both drivers and law enforcement officers to learn to use.
Commenters generally supported a potential requirement for a
``standardized'' EOBR display showing the driver's current duty status
and also highlighting when noncompliance occurred. Commenters also
favored providing methods for enforcement officials to download
archived HOS data records. PeopleNet stated, ``EOBR manufacturers,
carriers, and law enforcement should work together to develop a user-
friendly reporting standards for all parties using or reviewing
EOBRs.'' CVSA asserted that ``* * * standardized screen-based digital
displays should be readily accessible from inside or outside the
vehicle, and should provide summary and complete information upon
demand.''
Agency Response
There may be a fine line between allowing flexibility in complying
with a performance specification and requiring safety officials to be
proficient in understanding many types of displays. The fundamental
need is to provide a clear record of the sequence and progression of
duty status.
Although the majority of the proposed provisions are performance
based, FMCSA must consider the needs of people who will review duty
status records and who are accustomed to working with the traditional
graph-grid format. Both to address drivers' concerns and allay concerns
that EOBRs could be difficult to monitor, FMCSA proposes a visual
output file providing a graph-grid format. FMCSA recognizes this
requirement could be difficult to apply to some EOBR devices because of
the limited size or character density of the displays. We intend to
provide as much flexibility as possible to EOBR manufacturers by
recognizing alternative methods to enable display of the information.
5.2 Data Interchange Standards for Hardwired and Wireless
Communications
Some commenters asserted that the RS-232--the serial communication
standard required in Sec. 395.15(b)(3)--is outdated. Siemens, IBT, and
others noted that data communications technologies, formats, and
protocols are evolving rapidly. Several commenters favored an open
standard. For example, the Minnesota Trucking Association recommended
development of ``an open-architecture system that will allow
transmittal of data between motor carrier, driver, law enforcement and
various other accountable entities.'' Some commenters suggested
avoiding the issue of data interchange with outside entities by
requiring HOS records to be uploaded to centralized file servers for
query via the Internet or downloaded to the CMV for a safety official's
review.
Agency Response
There is a need to set forth performance standards to support two
types of communications: EOBR-to-motor-carrier and EOBR-to-roadside-
enforcement-official support systems. FMCSA proposes an ASCII, comma-
delimited, flat-file format for the EOBR data output record, and
multiple industry-standard hardwired and wireless communications
protocols. The technical specifications for the data files would be
provided in a new Appendix A to Part 395.
6. Audit Trail/Event Log
Commenters generally agreed on the necessity for maintaining an
audit trail. Some commenters recommended using location data (GPS or
other) to compare against the EOBR data, but others thought this would
be cost-prohibitive. A few suggested a requirement for a ``smart chip''
in a driver's ID card or license as one way to provide an auditable
record that would verify the identity of the driver operating the CMV.
Some commenters raised concerns about tradeoffs between allowing use of
lower cost communications modes and adequately monitoring the systems
and the data and information they contain.
[[Page 2352]]
PeopleNet and Qualcomm recommended the audit trail be maintained at
a central office rather than onboard the vehicle.
In response to the ANPRM question about the system providing a
gateway for electronic or satellite polling of CMVs in operation, four
commenters opposed such polling while one carrier inquired what the
interval between pollings would be.
Commenters supported continuing the requirement to use a RODS if an
EOBR is not functioning. One commenter suggested a maximum time limit
of 14 days.
Agency Response
FMCSA proposes a general requirement for auditability based upon
the text of Section F of the ANPRM preamble (69 FR 53386 at 53392,
Sept. 1, 2004):
An audit trail must reflect the driver's activities while on
duty and tie them to the specific CMV(s) the driver operated. Its
design must balance privacy considerations with the need for a
verifiable record. The audit trail should automatically record a
number of events, including (1) Any authorized or unauthorized
modifications to the duty status records, such as duty status
category, dates, times, or locations, and (2) any ``down'' period
(e.g., one caused by the onset of device malfunction). In addition,
the system should provide a gateway for electronic or satellite
polling of CMVs in operation, or for reviewing electronic records
already downloaded into a central system. This capability would
permit reviewers to obtain a detailed set of records to verify time
and location data for a particular CMV. The presentation should
include audit trail markers to alert safety officials, and personnel
in the motor carrier's safety department, to records that have been
modified. The markers would be analogous to margin notes and use
highlighted code.
FMCSA would continue to focus on a performance-based regulation,
while providing guidance to develop workable and verifiable record
generation and recordkeeping systems. Regardless of the communications
modalities (satellite or terrestrial) and the method used to
synchronize the time and CMV-operation information into an electronic
RODS, we would require EOBR records to record duty status information
accurately and to maintain the integrity of that information.
This NPRM includes a requirement that EOBR records--both original
entries and any revisions--be viewable. The viewable record would
encompass any modifications from the original entries, the identities
of people who entered and amended data, and the date and time the
original entries and any amendments were made.
As discussed earlier in this document, FMCSA proposes requiring
drivers to enter identifying information but will not specify the use
of a particular technology (such as removable smart cards or biometric
identifiers).
With regard to a ``gateway'' for satellite polling of CMVs in
operation, FMCSA would require that the HOS information be available
immediately upon request by a roadside safety official. Under FMCSA's
standard operating procedures, those records would also need to be made
available upon request by a safety official performing a CR, safety
audit, or safety investigation. We propose to require the system
records to be as accurate as those from systems that are integrally
synchronized with the CMV's operations. Specifically, EOBR data for CMV
location would need to provide an auditable record of the vehicle's
location within +/-1 percent distance accuracy on a daily basis.
7. Ability To Interface With Third-Party Software for Compliance
Verification
Several commenters noted the potential benefits and limitations of
using third-party systems. Although third-party systems could provide
an extra layer of compliance verification, the variety of systems on
the market and their limited current usage by small motor carriers
could present obstacles. These commenters recommended FMCSA adopt a
standard method and format for data transfer, such as Extensible Markup
Language (XML).
Most vendor commenters said that third-party compliance
verification software would not be necessary for EOBR systems,
particularly if vehicle location information were derived from GPS
data. Qualcomm noted, ``Currently available third-party compliance
tools audit the driver's RODS [paper record] by using supporting
document information * * * such as fuel and toll receipts and miles
driven.'' Motor carriers reported mixed experience with third-party
software. Two respondents have developed their own systems for
compliance verification; others cited lack of an available interface
with current auditing software and concerns about the accuracy of
``point-to-point'' software. Qualcomm urged FMCSA to establish
performance standards for EOBR-collected data. CVSA recommended the
Agency develop a self-certification program for third-party vendors.
Several commenters, in contrast to their responses to the previous
question, indicated carriers have used third-party software for HOS
review and auditing or have experience with dispatch and routing
software packages. One industry group expressed concerns about costs to
small motor carriers.
Agency Response
In keeping with our performance-based approach to this rulemaking,
FMCSA proposes that EOBRs be required to provide output data in a file
format described in an appendix to the proposed regulation (new
Appendix A to Part 395). We will not propose a requirement for
compatibility with specific third-party software.
8. Verification of Proper Operation
Many commenters supported a requirement for EOBRs to perform self-
tests and internal monitoring and to notify drivers, dispatchers, and
roadside enforcement officials of device failures. IBT stated that a
system ``must maintain a record of and report out all malfunctions,
calibrations, and be capable of performing self-tests on demand.'' CPS
considered this feature unnecessary.
Several commenters asserted that drivers should be able to verify
EOBR operation and suggested various methods. ATA pointed out that
drivers, supervisors, or safety officials could require different
levels of verification. Qualcomm suggested that determination of system
failure should not be restricted to on-board data. In contrast, Roehl
suggested the EOBR should generate an electronic audit on demand, with
past records made available by the motor carrier. Siemens suggested
that an EOBR be required to display the results of its last calibration
check. PeopleNet said an EOBR should provide a current duty status
summary, as well as a summary of the last certified 7, 8, or 14 days'
worth of records.
Agency Response
FMCSA believes that having a current picture of the operational
status of an EOBR will increase the confidence of drivers, motor
carriers, and safety officials that the device is performing properly.
Therefore, the NPRM includes a requirement for EOBR self-tests and
recording of successful and unsuccessful results. The CMV driver or
motor carrier official would be required to initiate a power-on self-
test at the request of a motor carrier safety official. FMCSA also
would require motor carriers to obtain and retain records of EOBR
initial calibration, as well as any recalibrations necessary after EOBR
repair or after any CMV repair that could affect the recording of
distance traveled. We would anticipate conducting detailed audits of
EOBR or
[[Page 2353]]
support system performance during CRs rather than at roadside.
FMCSA intends to require motor carriers subject to an EOBR remedial
directive to accomplish timely repair or replacement of a
malfunctioning EOBR, without placing the driver in an untenable
position. Consistent with FMCSA's proposed requirement for the CMV
driver to submit records no more than 13 days after completion, and the
continuing requirement that the driver have a supply of blank paper
RODS forms to record duty status and related information for the
duration of the current trip, we would require a malfunctioning EOBR to
be repaired or replaced within 14 calendar days. Drivers would be
required to keep handwritten RODS until the EOBR is repaired or
replaced. Carriers using EOBRs voluntarily would likewise be required
to maintain paper RODS during any period an EOBR is malfunctioning, but
would not be subject to the 14-day time limit within which to
accomplish repair or replacement of the EOBR.
9. Testing and Certification Procedures
Most commenters, except manufacturers, favored certification by
FMCSA. Most manufacturers believe FMCSA should continue to allow
manufacturers to self-certify their EOBRs and support systems. The few
comments on maintaining a list of certified products generally opposed
such a list because of concerns it could discourage the introduction of
new products. Generally, the EU database specification received low
marks from commenters.
Siemens said, ``There is a basic difference in the attitude of
transport companies towards on-board-computers (OBC) used for fleet
management and EOBRs designed to record personal activities of drivers
as basis for enforcement officers to verify compliance with hours of
duty regulation: OBCs are likely to be treated carefully whereas EOBRs
are more likely to be subject to tampering.'' Nextel advised FMCSA to
consider a requirement for hardware and software to be designed and
tested in accordance with existing protocols.
9.1 Who Should Perform Certification Tests?
Many commenters favored having FMCSA establish criteria, with
testing conducted by FMCSA in conjunction with CVSA, NHTSA, or other
parties. Others preferred manufacturer self-certification. CVSA stated,
``Governmental or third-party verification and certification of EOBRs
presents proprietary concerns, add costs, and provides limited value
added.''
Advocates preferred a Federal role: ``Without either direct Federal
certification or Federal criteria for accepting certification
affidavits, the Federal government has no way of securing threshold
manufacturer compliance.'' Tripmaster favored FMCSA certification,
provided the appropriate staffing and funding resources were available.
A motor carrier also stated FMCSA should be responsible for
certification. A driver contended that any third-party involvement
could lead to fraud.
Several commenters recommended that independent laboratories
conduct testing for manufacturers, noting the extensive use of third-
party assurance systems in other settings. Others expressed no
preference for the type of entity performing the testing, but
emphasized it must be done before an EOBR enters the marketplace. ATA
pointed out that the appropriate entity to conduct the test ``is
dependent upon what is required to be certified.''
9.2 Should FMCSA Continue To Allow Manufacturer Self-Certification?
Some commenters opposed continuing the status quo, citing drivers'
heavy reliance on the devices and the burden on carriers associated
with determining which systems comply with the regulations. As
Tripmaster explained, ``The current system of self-certification is
open to interpretation and dishonesty and pushes the responsibility of
determining a system's compliance on to roadside inspectors, auditors,
and carriers.'' J.B. Hunt added that carriers ``should not be placed in
a `buyers beware'' situation when making such a large investment.''
PeopleNet stated it self-certifies but works closely with FMCSA to
ensure regulatory compliance. Some commenters would favor self-
certification if FMCSA imposed requirements on manufacturers and either
verified the manufacturer's compliance or conducted spot checks. ATA
asked whether FMCSA had concerns based on the experience of other self-
certification programs.
Other commenters favored continuing self-certification. They
believe this would keep the process manageable and that manufacturers
are in the best position to develop compliance tests.
9.3 Should FMCSA Develop a List of Approved Devices?
Many commenters favored this concept, especially if patterned after
NHTSA's Conforming Products List. EOBR manufacturers would benefit by
being able to supply customers with a certification number to prove
compliance, and carriers could be held accountable for using
nonconforming products. A motor carrier suggested developing two lists,
one for CMVs equipped with an ECM and the other for CMVs without
electronics. However, a few commenters thought FMCSA should not be
relied upon to provide a list of certified devices because of the costs
and the likely delay.
9.4 Should FMCSA Adopt the EU Electronic Tachograph Design
Specification?
Most commenters stated that adopting the EU design specifications
would be too complex and costly. These commenters argued instead for
performance requirements in tandem with market-driven flexibility in
EOBR design and delivery. A few commenters asserted adopting the design
specifications would not be prohibitively costly, but offered no
rationale for that conclusion. ATA recognized the fundamental
differences between the EU design-oriented standard and a performance-
based standard, noting that the former would add significant text to
the FMCSRs. J.B. Hunt suggested FMCSA consider methods to ``improve
uniformity and portability of carrier support technology, including
calibration and diagnostics. This would permit carriers to operate a
mixed fleet of EOBR units without being required to have redundant
proprietary diagnostic and calibration equipment and thus should
increase competition in the EOBR market and reduce costs.'' It believes
specific aspects of the EU regulations, among them calibration,
diagnostics, and testing, could provide guidance to FMCSA in developing
its EOBR regulations. IBT believes FMCSA should discontinue reliance on
performance standards and establish detailed specifications similar to
the EU specifications.
Agency Response
FMCSA proposes to continue the requirement for manufacturers to
self-certify AOBRDs and EOBRs. The alternative would be to have an
independent entity certify each EOBR as well as any support systems.
Based on the Agency's experience in developing procedures for device
self-certification (``Guidelines for Development of Functional
Specifications for Performance-Based Brake Testers Used to Inspect
Commercial Motor Vehicles'' [65 FR 48799, Aug. 9, 2000]), as well as
our knowledge of the challenges faced by the European Union in
developing
[[Page 2354]]
and implementing its type-certification program for the new digital
tachograph, we believe this alternative would be far too costly,
burdensome, and time-consuming for FMCSA.
FMCSA and its predecessor agencies have the benefit of
approximately 20 years' experience with AOBRDs and alternative methods
for recording and reporting HOS information. Although FMCSA receives
notice of deficiencies with certain AOBRDs, we address these on a case-
by-case basis and reach satisfactory resolution with the device
manufacturers.
We believe prospective EOBR users would be motivated to demand that
the devices record duty status information accurately. Many EOBR
manufacturers contact FMCSA for assistance in understanding the HOS
regulations. Some have requested, and received, formal regulatory
guidance concerning new features to ensure compliance while reducing
the need to enter information into the devices--for example, the use of
location-description algorithms in place of a location code sheet.
Drivers, carriers, stakeholders, and citizens are quick to inform FMCSA
about any motor carrier's attempts to obtain an economic advantage
through collection of fraudulent HOS records. We take these complaints
very seriously and address them through timely CRs.
In sum, FMCSA considers it appropriate to continue its requirement
for AOBRD/EOBR self-certification. This NPRM proposes the EOBR
performance criteria that manufacturers would follow. We would continue
to require manufacturers to perform tests to ensure their EOBRs and
support systems comply with these criteria.
We propose this approach for three reasons. First, it makes the
EOBR manufacturer--which has the most knowledge about its hardware and
software design--responsible for compliance with the Agency's
performance criteria. Second, it responds to the overall excellent
history of AOBRD/EOBR compliance with FMCSA requirements. Third, it
allows FMCSA to devote its compliance-assurance resources to those rare
situations in which motor carriers or drivers misuse EOBRs or the
records they generate. Based on our 20-year history of working with
AOBRD/EOBR manufacturers and motor carriers using these devices, we
believe a more complex, comprehensive, and costly certification program
could be marginally more effective, but at a disproportionately higher
cost.
Finally, we would not maintain a list of devices self-certified by
manufacturers as complying with the Agency's requirements. Although
such a list could potentially be useful for informational purposes, it
also would need to be continually updated to reflect accurately the
latest makes and models of EOBR devices and systems. The creation and
upkeep of such a list would lie outside the Agency's expertise and
require the expenditure of significant resources.
10. EOBR Maintenance and Repair
Because several questions under this heading were similar, they are
summarized for brevity. Most commenters responding to the first two
questions, concerning automatic capture of malfunction event data in
EOBR memory, asserted that all, or nearly all, malfunction events could
be captured in EOBR memory. IBT supported making malfunction data
accessible to enforcement personnel. Most commenters thought EOBRs
should have minimal maintenance requirements.
10.1 Are Current Maintenance and Calibration Regulations Adequate?
The United Motorcoach Association was concerned EOBR repair
requirements could disrupt passenger service. Tripmaster stated the
current regulations concerning EOBR/AOBRD maintenance and calibration
are sufficient because they require maintenance and calibration
according to manufacturer's specifications, adding that EOBR
maintenance should be performed in the same manner as any other safety
system on a CMV. Other commenters agreed, asserting that the
manufacturer should be responsible for EOBR compliance. Some supported
a requirement for work to be performed by an approved source, but there
were differences of opinion as to whether repair stations should be
certified by FMCSA, the manufacturer, or both. PeopleNet recommended
that certified vendors and carriers continue to have the ability to
repair units independently of Agency oversight. Advocates said that
FMCSA and NHTSA need to monitor EOBR repair facilities ``to ensure that
repairs are being done properly and to detect any fraudulent
manipulation of EOBR recordation capabilities and the accuracy of
captured data. Such oversight can be based on a system of self-
certification coupled with Agency random inspections of facilities * *
*.''
Commenters disagreed on the need for recalibration. Siemens pointed
out that certain changes in vehicle parameters, such as different tire
sizes, motors, or gearboxes, could require EOBR recalibration. CPS
maintained that solid-state electronic devices would not need
recalibration.
10.2 Documentation for Installation, Repair, and Recalibration
Most commenters agreed installation, repair, and recalibration
activities should be documented, and that FMCSA should have access to
those facilities and documents. However, opinions differed on who
should maintain the records. Several commenters believe the
documentation should be maintained by the technician performing the
work, while others consider the motor carrier responsible. TCA was
concerned about calibration and performance standards for EOBRs; who
would be responsible for EOBR calibration; and whether the driver or
the motor carrier would be cited if an EOBR were found to be out of
calibration.
Agency Response
The comments suggest that the current requirements for maintenance
and recalibration of the devices in accordance with the manufacturer's
specifications are producing the desired outcomes. As noted in the
Agency response to comments on testing and certification procedures, we
generally do not interact directly with EOBR manufacturers or system
providers unless potential noncompliance situations are brought to
FMCSA's attention. Additionally, Agency resources would not permit
development of a comprehensive oversight program on EOBR repair
facilities, nor does FMCSA have the legislative authority to undertake
such a program.
In response to commenters' assertions that nearly all malfunctions
could be captured in EOBR memory, FMCSA notes that although a sudden
loss of power might not be recordable as an ``event,'' the data on the
EOBR record should be self-explanatory.
In response to comments on maintenance and recalibration records,
FMCSA would treat those records much like other vehicle repair and
maintenance records. The motor carrier would be responsible for
maintaining its EOBRs. In answer to TCA's comment, the imposition of a
penalty or fine would depend upon the specific circumstances of the
violation.
Finally, as noted in the Agency response to comments on
verification of proper operation, FMCSA proposes to require that
malfunctioning EOBRs used by carriers subject to the proposed Remedies
provisions be repaired or replaced within 14 days. During the time an
EOBR is not functioning and a
[[Page 2355]]
spare device is not available, the Agency would continue to require
preparation of a paper RODS. The latter requirement would also apply to
carriers using EOBRs voluntarily.
Therefore, FMCSA proposes to apply the provisions of the current
AOBRD regulation, both by requiring EOBRs to record malfunction events
and by requiring recalibration and repair. We would clarify that the
motor carrier is responsible for producing maintenance records (whether
prepared by the motor carrier or a third party) upon demand. See
proposed Sec. Sec. 385.511(c) and 395.16(p).
11. Development of ``Basic'' EOBRs To Promote Increased Carrier
Acceptance
Commenters were divided over whether FMCSA should develop
specifications for a single type of EOBR or a family of EOBRs ranging
from minimally compliant to more sophisticated devices. Commenters
favoring a single standard, among them CPS, argued that a provision
allowing the use of ``basic'' EOBRs by certain categories of carriers
could provide these carriers with a competitive advantage. Others
supported a more inclusive approach under which FMCSA would issue FMCSR
specifications for a minimally compliant EOBR yet allow or encourage
use of devices with more advanced capabilities, such as GPS and
wireless communications.
Opinions on potential requirements for minimally compliant EOBRs
generally focused less on recommended specifications than on what
features to exclude. Three vendors, PeopleNet, Nextel, and LinksPoint,
recommended that a ``basic'' EOBR not be integrated to receive data
from the CMV's engine or other systems. PeopleNet added that a basic
EOBR of this description would be appropriate for CMVs not placing ECM
data on their electronic networks. Nextel and LinksPoint supported
running an HOS records application on a handheld computer or cellular
handset.
Some commenters opposed potential requirements for location-
tracking and wireless communications capabilities. Tripmaster favored
specifications for EOBRs to perform ``the sole function of automating
HOS recording and reporting.'' The company contended a requirement for
two-way communications would be unwarranted because of gaps in
coverage, coupled with Tripmaster's perception that local and regional
fleets may have little need for such communications. In contrast,
PeopleNet favored systems that capture location information, allow the
driver to select duty status and enter information in a Remarks
section, calculate HOS, and wirelessly transfer the driver's HOS back
to a server.
Qualcomm contended the regulatory standards for EOBRs should be no
stricter than those for paper records in terms of driver
identification, ability to correct records, and data accuracy. Qualcomm
recommended that EOBR records be made accessible to the dispatcher to
ensure data integrity, prevent tampering, and permit safety management
oversight. The company also recommended that the EOBR notify the driver
and dispatcher of any potential HOS violation. It viewed a minimally
compliant EOBR as possibly combining several pieces of equipment (e.g.,
a black box synchronized to the engine plus a GPS-enabled phone). The
synchronized system would use engine on/off to record the beginning and
end of driving time. Qualcomm reasoned that carriers and drivers would
be more open to the electronic recording of HOS if they could simply
add an application to their existing mobile communications system, and
cited one of its products as an example.
XATA and Siemens recommended that the FMCSRs require a ``basic''
EOBR, with the Agency providing incentives for motor carriers electing
to add features. As examples, carriers using GPS-enabled EOBRs would
not be required to carry location codebooks, while carriers using EOBR
systems with wireless communications capability might be exempted from
requiring drivers to carry their RODS for the prior 7 days, since the
data could be downloaded from the motor carrier's home base. Siemens
suggested that EOBRs minimize manual inputs. It recommended that a
``basic'' EOBR record location of duty status changes as longitude and
latitude coordinates using a simple GPS module. Siemens held that the
coordinates would provide sufficient information for enforcement
officials without requiring translation to named places (cities, towns,
or villages) by the EOBR.
TACS recommended that a ``basic'' EOBR system record the identity
of the driver, time of day, direction of travel, vehicle location,
speed, and driver inputs regarding duty status.
SCRA stressed the need for EOBR stakeholders to work together to
develop acceptable minimum standards and uniform format. SCRA and ATA
advocated flexibility and interoperability, cautioning against
proprietary systems with potentially higher costs. OOIDA was also
concerned about EOBR costs, particularly if EOBRs have uses or
capabilities beyond what is needed for HOS compliance assurance. ATA
favored uniform minimum performance standards: A ``basic'' EOBR should
not require GPS or wireless technologies, but FMCSA should consider
offering incentives for their adoption.
IIHS favored a relatively simple system providing features for
driver identification and accurate recording of driving time and other
duty status categories, but without additional vehicle performance
monitoring functions. In addition to its recommendation to add several
items to the ``key research factors,'' Advocates stressed the need for
interoperability of data acquisition and retrieval in accordance with
ITS protocols, as well as the need to include geographic position
information as a component of EOBR data. Similarly, Public Citizen
stated that a minimally compliant EOBR must record CMV engine status
and location data.
Werner Enterprises contended FMCSA should focus its requirements on
the recording of data and information required for the RODS, and not
extend them beyond what is needed for HOS compliance assurance. FedEx
agreed that an EOBR requirement should address only the basic and
specific requirements of the HOS rules. Overnite favored technology to
allow automatic data capture when a CMV passes through a weigh station.
Roehl supported a requirement for a minimally compliant EOBR to deliver
the electronic equivalent of an accurate RODS, at a cost small motor
carriers could afford.
Schneider referred FMCSA to the European digital tachograph
specification. At the same time, Schneider noted its considerable
investment in communications and operations management technology, and
asserted that functional specifications must be compatible with
existing technologies or ``reasonable extensions'' of existing
technologies.
J.B. Hunt called for minimal EOBR requirements to balance safety
outcomes and implementation costs. It considers the following features
necessary: Synchronization with the vehicle, with noneditable drive
time; connectivity for roadside officers; GPS for position locations;
and self-diagnostics. J.B. Hunt, Schneider, and other commenters
opposed the notion of different requirements for larger and smaller
motor carriers.
CVSA recommended that EOBR requirements be phased in over several
years to minimize impacts to both the motor carrier industry and safety
officials. CHP contended performance
[[Page 2356]]
requirements compatible with a range of devices (minimally compliant to
state-of-the-practice) could be difficult to devise. It suggested
retaining manual records during a phase-in, while recognizing that this
could be costly. Finally, CHP stated that requiring EOBRs only on new
CMVs would help mitigate cost concerns.
11.1 Performance-Based Specifications vs. Detailed Functional
Specifications
Commenters generally favored performance-based over design
specifications. Some noted FMCSA could set performance standards for
most features yet achieve a measure of uniformity by requiring
standardized reporting or display formats. Overnite recommended FMCSA
concentrate on performance specifications and a standard format for
EOBR readout capabilities. ATA asserted FMCSA could set performance
requirements through minor revisions to Sec. 395.15 and recommended
the Agency do so before requiring EOBR use. TCA also supported
performance standards, adding that they should be subject to notice-
and-comment rulemaking.
IIHS, in addition to its comment (mentioned previously under Key
Research Factors) that FMCSA has enough information to craft a workable
mandate, stated that FMCSA is not required to design a system and has
not explained why a performance-based system would be problematic for
enforcement. It recommended FMCSA incorporate a design component into
the overall system requirements and specify a uniform method of
accessing the data and a uniform output record.
Qualcomm and PeopleNet reasoned that design specifications, as
opposed to performance standards, would limit innovation, reduce
competition among suppliers, and hinder motor carriers' adoption of new
features. Qualcomm stated that FMCSA could achieve uniformity via
standardized reporting or display formats of RODS, and recommended that
determination of system failure be based on a performance standard.
Finally, a motor carrier stressed the need to establish standards to
ensure interoperability.
Agency Response
As noted in the section titled Reporting and Presentation (Display)
Formats, the fundamental need is to provide a clear record of the
sequence and progression of duty status. FMCSA's review of the docket
comments, as well as the March 2005 Volpe Center study findings,
suggest it would be appropriate to propose a single set of new
performance requirements for EOBRs rather than several sets of
requirements for devices with varying degrees of sophistication and
complexity. These proposed performance requirements reflect what FMCSA
believes the EOBR development community can currently provide to the
marketplace at an affordable cost.
At the same time, FMCSA recognizes that many motor carriers have
used, and will continue to use, AOBRDs that meet the definition at
Sec. 395.2 and comply with the performance requirements of Sec.
395.15. FMCSA proposes to allow motor carriers to continue to use these
devices in CMVs manufactured before the implementation date of this
rule. FMCSA encourages motor carriers to adopt newer versions of on-
board recording devices, but at a pace that avoids causing hardship
either to carriers or to device providers. FMCSA proposes to allow
AOBRDs voluntarily installed in CMVs manufactured up to 2 years after
the effective date of a final rule to be used for the remainder of the
service life of the CMVs in which they are installed.
As noted in the Agency response under Key Research Factors, FMCSA
would continue to allow Werner to operate under the exemption granted
on September 21, 2004 (69 FR 56474) for vehicles manufactured prior to
2 years after the effective date of an EOBR final rule. Vehicles
manufactured after that date would be required to comply with the new
requirements for EOBRs. Because the Agency is not proposing to require
integral synchronization of the EOBR with the CMV engine, Werner's
system would likely meet the proposed requirements either in full or
with minor modifications.
In proposing under Sec. 395.16 a single set of performance-based
EOBR specifications, as opposed to different specifications for EOBRs
with varying levels of functionality and using different communications
methods, FMCSA is focusing the proposed rule on the accuracy of records
of duty status rather than on the methods used to collect, store, and
report the data.
FMCSA's preference is to allow flexibility in how HOS data are
collected and information is derived, so long as the data accurately
reflect the driver's sequence of duty status periods and the CMV's
location at each change of duty status. Emerging technologies may well
allow this information to be collected in ways not envisioned today, or
improve the efficiency, accuracy, and cost-effectiveness of gathering
and recording data.
In response to commenters who urged that the scope of the current
requirement be revised, FMCSA notes that the data recorded on these
systems, and the information derived from that data, relate to
compliance with the HOS regulations. The data requirements are
therefore limited, and the technological challenges to collecting,
recording, and retaining the data on the EOBR and support systems are
generally well known to, and met by, many manufacturers. With the
exception of an advocacy organization's suggestion to use EOBRs for
crash reconstruction, commenters did not recommend expanding the scope
of EOBR data collection.
In response to IIHS's comment concerning uniformity of data output
formats, FMCSA proposes to require a specified data output file format
to promote improved data interchange between EOBRs and portable
microcomputers used by roadside enforcement officials. This is
discussed in depth under Agency Proposal.
12. Definitions--Basic Requirements
Most comments on the issue of definitions concerned the ability of
GPS-based products to meet the requirements of the EOBR regulations.
AOBRD
CHP, Tripmaster, Nextel, and ATA agreed with the definition.
PeopleNet pointed out that older CMVs (those manufactured before the
advent of electronically controlled engines) would require costlier
AOBRDs because the earlier engines do not broadcast engine use, road
speed, or miles driven over the CMV's electronic network. Qualcomm
contended that the key requirement should center around the ability of
an AOBRD to detect the movement of a CMV and use that information to
capture driving time.
EOBR
Several commenters agreed with the definition. However, Advocates
would support only a performance specification requiring GPS. CHP and
CVSA recommended adding an explicit requirement that EOBRs record
drivers' duty status and HOS information. They also recommended a
requirement for information attributable to a single driver. In
contrast, the American Moving and Storage Association and Darby
Corporate Solutions pointed out that an EOBR cannot identify a specific
driver or distinguish whether a driver is off duty or on duty, and they
believe the definition should more accurately reflect these
limitations. IIHS suggested FMCSA consider adopting the EU electronic
tachograph regulation.
Qualcomm offered several suggestions for the definition. In its
view, the
[[Page 2357]]
definition should encompass the EOBR's ability to continuously monitor
and record CMV functions and to notify the driver and dispatcher of
malfunctions. Qualcomm believes the definition also should reflect that
an EOBR has several components, but should not include a requirement to
record engine status and road speed. One commenter thought FMCSA should
expand the definition to allow an in-cab system of computers, scanners,
and printers.
Various commenters asserted the definition should include
references to date and time, engine on/off status, location, distance
traveled, and road speed data.
Agency Response
FMCSA has carefully examined the need for EOBRs to capture
operating or ``road speed'' data. Ensuring that drivers operate their
CMVs within the posted speed limits, while important, is outside the
scope of this rulemaking. EOBRs (and AOBRDs) are intended to ensure
accurate information about duty status time, rather than the speed at
which a CMV is operated. Furthermore, ``driving time'' means all time
spent at the driving controls of a commercial motor vehicle in
operation. Drivers' duty status includes all the time the driver is at
the controls of the CMV, regardless of whether the CMV is moving or is
paused in heavy, slow-moving traffic. Therefore, FMCSA is not proposing
that EOBRs record road speed.
13. Potential Benefits and Costs
Only a few commenters based their responses on tangible experience
using EOBRs and support systems. Although some motor carriers noted
benefits from the use of the devices, others considered them too costly
or questioned EOBRs' ability to capture the operations typical of their
industry sector.
13.1 Safety, Operational, and Compliance Benefits Experienced by Motor
Carriers With Actual Use of AOBRDs or EOBRs
Werner Enterprises, which has piloted a GPS technology approach for
HOS monitoring, noted evidence of safety improvements as measured by
driver out-of-service rates related to HOS compliance. Its driver out-
of-service rate is 1.2 percent, far lower than the national average of
6.8 percent. United Natural Foods noted both compliance and operational
improvements since it began using EOBRs in the CMVs based at some of
its facilities.
EOBR vendors XATA and PeopleNet noted that their customers see
improved HOS compliance as one of the benefits of using their products,
but XATA noted ``it has been difficult for fleets to justify technology
based on HOS compliance alone.'' Siemens asserted that European motor
carriers' experience with HOS recording has led not only to acceptance
of conventional tachographs but also to improved designs for ``reduced
possibilities of cheating the system.'' According to Tripmaster, its
customers' drivers saved 15 to 30 minutes per day and believed the
safety and compliance assurance benefits justified the EOBRs' cost.
The International Food Distributors Association (IFDA) stated that
its members' experience with AOBRDs varied. Some found the devices to
be excellent and consistent tools, while others reported greater than
anticipated AOBRD failure rates. The National Ready Mixed Concrete
Association noted its members already employ ``sophisticated electronic
fleet monitoring equipment.'' Moreover, as most of its members operate
under the 100-air-mile-radius provision and use timecards rather than
RODS, they would be unlikely to realize any new compliance benefits
from EOBRs.
OOIDA questioned the safety history of Werner during the first 4
years of the carrier's GPS Technologies Pilot Program. OOIDA's analysis
of crash statistics (crashes per power unit per year) for the period
1998-2002 for Werner and several other large truckload motor carriers
indicated an increase in Werner's crashes relative to its peers. OOIDA
wondered whether this diminished safety performance was related to the
use of the HOS recording devices.
Public Citizen cited several reports, some written under FHWA and
FMCSA sponsorship and included in the docket, suggesting benefits of
EOBRs related to improved safety and HOS compliance.
13.2 Driver HOS Violation Rates, Out-Of-Service Rates, and Crash
Experience of Motor Carriers Using AOBRDs or EOBRs
J.B. Hunt reported that its use of an electronic monitoring system
(which does not use AOBRDs) has helped the carrier achieve a driver
out-of-service rate well below the national average. In contrast,
another carrier that tested EOBR technology saw no noticeable
improvement in safety outcomes. One driver for a carrier using
electronic RODS has noted a decline in crashes and out-of-service
orders. A Werner driver thought the EOBR system works well, keeping
drivers in compliance and preventing dispatchers from asking drivers to
exceed HOS limits. An owner-operator driving for Werner found the EOBR
system ``an excellent way of logging,'' noting its integration with the
vehicle logistics system already in place.
CVSA and CHP cited a lack of data linking EOBRs and safety
outcomes. CVSA requested that FMCSA consider a pilot program to monitor
EOBR-equipped and non-EOBR-equipped vehicles to assess differences in
compliance and safety performance.
OOIDA contended research has failed to show a statistically
significant improvement in crash reductions as an outcome of EOBR use.
OOIDA also cited the 2002 Cambridge Systematics study sponsored by
FMCSA, which noted the inability of EOBRs to automatically capture non-
driving duty statuses.
In contrast, Public Citizen cited positive CMV crash rate data from
Germany. In 1975, the year mechanical tachographs were first mandated,
the injury crash rate for CMVs was one crash per 790,000 km traveled.
Ten years later, the injury crash rate for CMVs had dropped 54 percent,
while the injury crash rate for passenger cars fell only 22 percent.
These changes were viewed as notable, even when one considers that
mechanical tachographs are ``highly susceptible to tampering.''
Siemens asserted EOBR-equivalent technology has been widely
accepted in Europe and is perceived as effective for promoting road
safety. Tripmaster also noted its customers had experienced safety
improvements; one tank carrier reduced its overall crash rates nearly
50 percent the first year it used an EOBR system. Qualcomm reported
that carriers using its system were able to monitor driving behavior
and quickly take remedial action, in some cases reducing liability
insurance costs.
Agency Response
FMCSA recognizes that comprehensive research data regarding the
safety benefits of EOBR deployment are sparse. However, many EOBR
vendors and carriers, as noted earlier, filed comments asserting that
deployment of EOBRs resulted in greater HOS compliance in addition to
other benefits (e.g., economic efficiency and security benefits). These
comments are generally consistent with case studies and other anecdotal
information from both the United States and abroad showing improved HOS
compliance with EOBR deployment. As was extensively analyzed in the
regulatory impact analysis for the 2003 and 2005 HOS final rules,
increased compliance with HOS regulations correlates with reduced CMV
driver fatigue, thereby reducing the incidence of CMV-involved crashes.
[[Page 2358]]
FMCSA considered the potential for EOBRs to reduce or eliminate
specific types of HOS violations, such as exceeding daily driving time
limits, exceeding daily duty limits, exceeding weekly duty limits,
false logs, ``no log'' violations, form and manner log violations, and
non-current logs. We believe that carriers using EOBRs under an FMCSA
remedial directive would significantly reduce, and in some cases
virtually eliminate, several types of HOS violations including driving
time violations, form and manner violations, and false-log violations.
Requiring EOBR use by carriers with recurring HOS violations could also
reduce at least a portion of these carriers' ``no log'' and non-
current-log violations. As discussed in the 2003 and 2005 HOS final
rules, these reductions in HOS violations would yield safety benefits
for CMV drivers and the traveling public.
The Agency sponsored a 2004 study entitled ``Hazardous Materials
Safety and Security Technology Field Operational Test'' \2\ (HM FOT),
which examined the effectiveness of technological system solutions to
enhance safety, security, and operational efficiency. This study found
that deploying particular types of technology, including EOBR-related
technology, potentially leads to significant gains in operational
efficiency by reducing vehicle miles traveled. By eliminating
unnecessary exposure to CMV highway traffic, this increased operational
efficiency would improve safety and security.
---------------------------------------------------------------------------
\2\ Hazardous Materials Safety and Security Technology Field
Operational Test Final Report, November 11, 2004, http://www.fmcsadot.gov/Safety-Security/hazmat/fot/index.htm
.
---------------------------------------------------------------------------
In developing the Regulatory Impact Analysis (RIA) for this NPRM,
the Agency considered data submitted by several vendors and carriers
commenting on the ANPRM. However, because the Agency was unable to
independently verify the analyses conducted by these commenters, we did
not use this information directly in our economic analysis.
In the case of the HM FOT, we did consider the potential efficiency
gains from deployment of EOBR-related technology, and used this
information when considering tertiary (non-safety) benefits of
installation of EOBRs on CMVs. Given the limited scope of the study,
however, we evaluated only the findings related to efficiency benefits.
Additionally, because this was the only study available to us that
quantified estimates of the efficiency benefits of EOBR technology,
FMCSA undertook a sensitivity analysis in which we varied the level of
these potential efficiency benefits to examine the effects on our
benefit-cost analysis results.
Based on a review of 2003 and 2004 HOS compliance rate information
from the Agency's Motor Carrier Management Information System (MCMIS),
FMCSA concludes that mandated EOBR deployment has the potential to
significantly reduce or practically eliminate several of the specific
HOS violations noted previously, resulting in a 50 percent reduction in
HOS-related violations for carriers using the devices. This is
supported by a qualitative analysis by FMCSA enforcement personnel of
HOS violations likely to be eliminated as a result of implementing
EOBRs for HOS compliance. The assumption of a 50 percent reduction in
HOS violations is further supported by an FMCSA case-study analysis of
a motor carrier in the Southeast that implemented EOBRs for HOS
compliance and experienced a 79 percent reduction over a 3-year period.
We used the 50 percent-reduction assumption in the benefits
analysis of the RIA for this proposed rule. However, because of a lack
of comprehensive data on EOBR safety benefits and the qualitative
nature of the assumption, FMCSA subjected it to a sensitivity analysis
similar to that performed on the estimated efficiency benefits in the
HM FOT. In the RIA sensitivity analysis, we varied the assumption
concerning the effects of EOBR deployment on compliance rates. That
analysis is contained in the RIA, available in the docket.
13.3 Cost Savings From Paperwork Reduction, Reviewing RODS, and Other
Efficiencies
carrier customers enjoy significant improvements in operational
efficiency when they add communications and logistics modules to a
basic EOBR system. Their customers see improvements in communicating
timely information to drivers, automating fuel tax data collection,
reviewing odometer readings and engine usage, and performing billing
and payroll functions. PeopleNet said its customers attain a return on
investment of 100 percent or more, often within the first year, and an
aggregate savings in driver and back-office administrative staff time
ranging from 10-15 minutes per driver per month. CPS said that
automation of recording and reporting industrywide ``can be provided
without any increase to current costs.''
Other commenters, including advocacy organizations, contended that
EOBRs would reduce compliance costs and generally pointed to improved
carrier operational efficiency. Public Citizen noted many carriers
already use electronic scheduling and tracking systems, ``making the
additional HOS tracking function a relatively simple matter.'' They
cited studies of EOBR use and discussed the positive responses of
drivers, unions, and carriers in Europe to EOBRs used there. IIHS cited
several FMCSA studies that discussed potential benefits of EOBR use.
However, Public Citizen criticized FMCSA's failure to mention driver
health in its ANPRM discussion of the benefits of EOBRs.
CVSA noted EOBRs ``can do little to reduce this risk [of HOS
violations to highway safety] without rigorous monitoring by both law
enforcement and the industry itself.'' CVSA predicted larger carriers
would tend to gain the greatest productivity benefits from EOBR use.
Motor carriers and industry associations expressed greater
skepticism regarding the benefits of EOBRs. As IFDA noted in its
response to the previous question concerning safety, operational, and
compliance benefits experienced by motor carriers, its members reported
mixed experiences. Yellow Freight was concerned that a transition to a
new system could adversely affect its current high level of HOS
compliance. Schneider believes the current cost of EOBRs cannot be
justified and noted its crash rate already compares favorably to the
crash rates of motor carriers using EOBRs. Werner cautioned that a
basic EOBR system might not achieve the same level of benefits as its
own comprehensive system. Greyhound expected that paper backup
documents would still be required for EOBRs, and thus disagreed with
FMCSA's estimates of time savings associated with EOBR use.
ATA, MFCA, and the American Bus Association (ABA) stated their
members that have experimented with EOBRs have seen little or no
savings in administrative costs. ATA indicated that motor carriers are
currently using EOBRs for maintenance and fleet management, not HOS
recording, and are deriving benefits from those applications. ABA
reported that its EOBR-using members have had to invest extra resources
into double-checking EOBR records and backup RODS. UMA predicted
carriers would continue to maintain paper RODS, in tandem with EOBR
records.
OOIDA conjectured that drivers' other tasks would absorb any time
savings
[[Page 2359]]
from completing electronic records and that reconstructing RODS from a
malfunctioning EOBR would take a significant amount of time. Citing a
1998 UMTRI study (Campbell and Smith, ``Electronic Recorder Study:
Final Report,'' 1998, page 37; see docket entry FMCSA-2004-18940-7),
OOIDA stated there is no evidence EOBRs are cost-effective in small
fleets, and motor carriers would not derive benefits from any savings
in drivers' time if they pay drivers by the mile. Several other
commenters offered similar viewpoints.
Specialized carrier services were especially skeptical about EOBR
benefits. Petroleum Marketers Association of America stated that
because its members are already subject to close regulation, EOBRs are
unlikely to improve their compliance and would offer no additional
benefits. The North Carolina Forestry Association asserted that RODS
falsification is ``not the norm by any means,'' and doubted EOBRs would
improve HOS compliance. The Colorado Ready Mixed Concrete Association
stated EOBRs would have few benefits for its members because most are
currently exempt from RODS under the 100-air-mile radius exemption, are
already using advanced technology, and are committed to HOS compliance.
U.S. Telecom Association (USTA) said that because telecom drivers
have no motivation to violate the hours-of-service regulations, EOBRs
would not benefit this industry sector. USTA noted that utility service
vehicle drivers are allowed to exceed HOS in situations of a declared
emergency.
IBT was skeptical of any productivity benefits from EOBR use. It
echoed several other commenters in pointing to the need for a driver to
interact with an EOBR and to resort to paper RODS should the device
malfunction.
Agency Response
Several studies have documented the efficiency benefits of EOBR-
related technologies, including time savings from logbook
recordkeeping. Most notably, the previously mentioned HM FOT discussed
efficiency benefits in the form of vehicle routing changes. The 1998
UMTRI Study, also mentioned earlier, noted that ``Electronic HOS
records obviously offer administrative efficiencies through ease of
access to and management of these records.'' This study found that
carrier respondents to a survey cited ``vehicle operating cost
management'' as the most frequent reason carriers install EOBRs on
their vehicles. Additionally, numerous commenters to the ANPRM docket
pointed to benefits from paperwork savings. Therefore, FMCSA believes
it is plausible to anticipate that carriers would experience cost
savings from reduced paperwork as well as other gains in operational
efficiency. The potential savings would of course vary depending on the
operational characteristics of the carrier and other factors. As
discussed in the Incentives section below, FMCSA seeks comment on
whether paperwork savings and operational efficiencies from EOBR use
also reduce driver fatigue or otherwise mitigate crash risk
sufficiently to justify affording motor carriers that use EOBRs relief
from some of the HOS rules.
In the RIA for this proposal, FMCSA estimated average cost savings
to affected carriers based on reduced paperwork burden associated with
EOBR deployment. Our estimates for time savings were conservative. For
instance, it was assumed that time savings would equal 6.5 minutes
saved per day per driver, much lower than reported in several studies
as well as by commenters to the ANPRM. In contrast to OOIDA, the Agency
believes that, for small carriers whose drivers are paid by the mile,
this reduced paperwork burden would indirectly benefit the carrier by
increasing net income. The time savings would have a small tendency to
increase the supply of drivers at any given rate of pay, or to reduce
the pay needed to realize any given level of supply. See section 3.3 of
the RIA for a general discussion.
We also used conservative estimates for cost savings from paper
reduction and paper storage. A third conservative assumption
incorporated into the RIA by the Agency was that EOBR deployment would
not produce back-office savings, even though some carriers would in
fact reap such savings. Details of the assumptions and cost savings
analyses are available in the RIA.
In response to Public Citizen's comment that the Agency's ANPRM
failed to analyze the benefits of EOBR use for CMV driver health, it is
important to note that we did conduct such analysis for the current
notice. Specifically, FMCSA analyzed the NPRM to ensure its conformance
with the requirements of 49 U.S.C. 31136(a):
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.
Our review revealed little scientific documentation regarding the
health effects on commercial motor vehicle operators of monitoring
driving time. Overall, however, since we expect the proposal to
increase compliance with the HOS regulations, thereby reducing fatigue,
it would not have a deleterious effect on the physical condition of
drivers. On the other hand, there is substantial literature regarding
the health effects of electronic monitoring of workers, as well as on
the general health effects of operating commercial motor vehicles.
A review of the available literature suggests that monitoring an
employee is likely to increase stress levels in certain cases. Those
cases appear to be limited to people who must work harder to meet
quantitative performance expectations as a result of being monitored.
This may not apply to commercial motor vehicle operators, who would be
monitored to ensure compliance with safety regulations. However, some
functions of EOBRs may enable fleet managers to monitor the performance
of their drivers as well as their compliance with hours-of-service
regulations and could therefore have similar effects to the studies
described here. A November 2005 report by ICF Consulting, ``Literature
Review of Non-Safety Health Effects of Electronic On-Board Recorders,''
describes the range of available literature. This study, which we
relied upon to assess the potential direct health effects of monitoring
drivers' duty status with EOBRs, is available in the docket. As noted
in Appendix A of the RIA for this NPRM, the literature search found no
material regarding the relationship between driver health and the use
of driving time recorders, ``or indeed between driver health and any
form of monitoring of truck drivers.'' There were, however, a few
articles on the health effects--particularly stress-induced effects--of
being electronically monitored at work.
13.4 Training for Drivers, Dispatchers, and Other Motor Carrier
Employees
United Natural Foods, an EOBR user, estimated that training
required to use EOBR and EOBR-generated records was 3 hours per driver
and 3 days for office staff at $900 per day plus expenses; Maverick,
which also uses EOBRs, estimated 4 to 5 hours or an average of $150 per
person. Two motor carriers not currently using EOBRs, Schneider and
Ralph Meyers Trucking, estimated training costs of $1,500,000
(Schneider based its estimate on the costs of retraining staff to
comply with the April
[[Page 2360]]
2003 HOS final rule; the company believes the rulemaking would increase
ongoing training costs by $130,000) and $165 per hour (Ralph Meyers
Trucking's estimate for the cost of training, maintenance, and
support).
ATA estimated 2\1/2\ to 3 hours per driver for EOBR training, plus
additional training on completing paper RODS if they were required as
backup documents. UMA estimated total costs of $6.4 million for
motorcoach carriers, assuming a fleet size of 40,000 vehicles. Smaller
companies needing to upgrade their back-office computer systems could
see additional costs. ATA and the Minnesota Trucking Association (MnTA)
both pointed out that field enforcement officers would also require
training on EOBRs. MnTA was concerned that creating a new EOBR audit
system would ``further remove the focus of the industry and FMCSA from
promoting safe driving.''
PeopleNet estimated their ``train-the-trainer'' modules would take
2 days. Qualcomm provided detailed estimates of training time for
drivers (30-60 minutes online, 1 classroom hour, and 1 hour for hands-
on exercises), dispatchers (30-60 minutes online, 2.5 classroom hours,
and 1 hour for hands-on exercises), and information technology staff
(30-60 minutes online and 4-6 classroom hours). XATA estimated 2.5-3
hours training for drivers and 3-4 days for back-office staff. CPS and
Siemens said training would be ``minimal,'' although Siemens advised
that dispatchers may need ``some hours'' of software training.
Tripmaster estimated 1 hour for driver training and 16 hours or more
for supervisor training.
Agency Response
FMCSA received an abundance of information regarding training costs
associated with EOBR deployment, from both vendors and carriers. We
incorporated driver and back-office worker training costs into the RIA
for the NPRM. (We did not calculate costs for training drivers to
prepare backup paper RODS if the EOBR malfunctions, as training in
record of duty status preparation is already required under Sec.
380.503, Entry-level driver training requirements.) We estimated high,
median, and low equipment purchase and installation costs, depending
upon which types of units are most likely to be purchased and installed
as a result of this rule. For instance, the factor most affecting per-
unit EOBR purchase and installation costs was whether or not the unit
would be integrally synchronized with the truck engine; integral
synchronization correlates with a high cost estimate. In this way we
could account for the entire range of EOBR deployment costs likely to
result from the rule.
Next, we calculated driver and back-office worker training costs
corresponding with the type of unit to be installed (high, median, or
low estimate); this information was supplied by vendors or carriers in
comments submitted to the docket or gathered from production
information in manufacturers' sales or marketing packets. In the case
of the high estimate (integrally synchronized units), driver training
was assumed to take 3 hours per driver, while back-office worker
training was assumed to require 12 hours per employee. For the median
cost estimate, FMCSA assumed 1 hour of driver training would be
required, while 10 hours would be required for back-office staff.
Finally, for the low cost estimate, FMCSA assumed only 30 minutes
of driver training would be required, with 2 hours required to train
back-office staff. Again, these estimates were based either on comments
filed to the docket by equipment vendors or carriers or on EOBR
information provided by vendors or manufacturers. Evaluating training
costs in this way enabled us to test the sensitivity of these cost
assumptions on the cost-benefit analysis results.
13.5 Typical Cost of a Minimally Compliant EOBR
Commenters' estimates are shown in the following table:
Table 1.--EOBR Cost Estimates
------------------------------------------------------------------------
Total cost to
Association commenter Cost for units and industry sector
back-office support (estimate)
------------------------------------------------------------------------
United Motorcoach $1,500-$3,000 per $60,000-$120,000 for
Association. unit. units.
American Bus Association.... $1,500-$3,000 per $120 million for
unit, $10,000- units, $280 million
$80,000 computer for system
costs. upgrades.
National Propane Gas $1,000 per unit, $35,000,000 for
Association. $15,000 per office units, $52,500,000
unit. for back offices.
Colorado Ready Mixed $1,000-$3,000 per
Concrete Association. unit..
American Trucking $1,000-$2,000 per
Associations. unit, not including
back office and
communications..
Truckload Carriers $1,000-$3,000 per
Association. unit, more for
retrofit on older
trucks..
National Solid Wastes $500 for new trucks, Up to $333 million
Management Association. $3,000 for old. for retrofit
(private sector).
Up to $75 million
for retrofit
(public sector).
------------------------------------------------------------------------
Cost for units and back-office support
------------------------------------------------------------------------
Carrier:
United Natural Foods $4,100 per unit, $150 installation per
(using XATA's system). unit.
Windy City............... $700 per unit, $20-$40 monthly fee.
Golden Plains Trucking, $4,000 per unit.
Ralph Meyers Trucking.
Schneider National....... Total cost to business $14-$15 million
including installation (for 13,000
tractors).
Vendor:
XATA..................... Current: $1,000-$2,000 per unit.
TACS..................... $1,000-$3,000 based on sophistication,
$30-$500 for driver identification,
$3,000 and up for management software.
Siemens.................. $300 per unit (original in vehicle), $450-
$700 per unit (after-market
installation).
Karta Technologies....... $500 per unit (purchase), $20-$25 per
unit per month (leased).
PeopleNet................ $1,000-$1,500 per unit.
Tripmaster............... $1,200 per unit (basic), $2,000-$3,500
per unit (advanced).
[[Page 2361]]
Qualcomm................. $500 per unit (minimal phone and black
box technology), $8 per unit per month
for web-based back office (not including
wireless costs).
GPS-based systems:
Scanware................. $3,000 per unit, not including data
acquisition and auditing. If ruggedized,
$6,000-$7,000.
LinksPoint............... $3,200 per unit (incl. computer, GPS
receiver and software).
CPS...................... $2-$3 per day per unit.
Vendor:
Karta Technologies....... $40 per vehicle per month.
PeopleNet................ $20 per vehicle per month; up to $55
including communication costs (Back-
office costs negligible, system is Web-
based.).
Tripmaster............... $10 per vehicle per month (or $20,000 to
purchase software for carrier's use).
Scanware................. $1 per driver per month (assuming
carriers provide software and hardware
support).
CPS...................... ``Minimal or nil'' because the units
should be compatible with existing
systems.
------------------------------------------------------------------------
A few commenters provided estimates of EOBR operating costs. ATA
estimated $60 to $75 per unit/month for communications, depending on
the frequency of contacts with satellite or other centers;
recalibration at $45 per ``event'' plus technician travel and CMV
downtime; and additional costs for record storage and retrieval. United
Natural Foods, a Xora client, estimated start-up costs of $4,100 per
truck and $20,000 for software upgrade and technical support.
Operational costs run $24 unit/month for satellite tracking and
communications. Schneider estimated its operating costs for RODS would
go up from $1.1 to $5.8 million per year, for a net annual increase of
$4.7 million. CT Transportation Services and Ralph Meyers Trucking each
estimated training, maintenance, and support at $165 per hour. First-
year costs were estimated at $175,000 and annual operations costs at
$25,000.
Agency Response
In developing the cost analysis for the RIA, FMCSA considered the
docket comments, conducted its own research regarding which type of
unit would be minimally compliant with the proposed rule, and then
developed ``low estimate'' cost figures for this minimally compliant
device. We defined a minimally compliant device as one not integrally
synchronized to the ECM but capable of recording the truck's location
at least as often as required by the performance standards outlined in
this NPRM. For the purposes of developing this ``low'' cost estimate,
FMCSA considered certain cell-phone-based products without engine
synchronization to be a reasonable proxy for a minimally compliant
device. As detailed in the RIA, we used the costs associated with
installing and operating that device to develop the ``low'' cost
estimate.
13.6 Typical Cost To Incorporate EOBR Capabilities Into On-Board
Computer and Communications Systems
XATA estimated that installing its units in existing trucks would
cost $1,000 to $2,000 per vehicle, not including communications
support. Qualcomm estimated a monthly cost of $8 per CMV to add an HOS
application to a current Qualcomm subscription. Depending upon the
system and features selected, a Qualcomm subscription costs $20 to $65
per vehicle per month. Older Qualcomm in-cab units might require
upgrades ranging from $80 to $400.
For its fleet of 13,000 power units, Schneider estimated equipment
and system licensing and installation costs of $1 million; $2.8 million
for installation labor, mileage, routing, and downtime; $2 million for
enhancing fleet management software; and $5 million for increased
satellite data communications. ATA estimated EOBR unit costs of $3,500,
including communications and GPS. Other commenters expressed concerns
about costs but did not provide quantitative estimates.
ATA and four other motor carrier association commenters listed a
variety of potential cost items, including development and execution of
training programs for drivers, office, and information technology
staff; communications costs (airtime); enhancements to computer system
capabilities; EOBR inspection, maintenance, calibration, repair, and
recordkeeping; CMV downtime; and future equipment and system upgrades
and replacements, including costs for replacing existing systems to
comply with new regulatory requirements. ATA stated that EOBR
performance criteria would generate lower priced solutions, and advised
FMCSA to carefully consider costs for replacements and upgraded
devices.
Many commenters addressed broader concerns about potential EOBR
costs. ATA, TCA, the Tri-State Truckers Association, and the Kansas
Motor Carriers Association questioned whether carriers could sustain
economic viability in the face of EOBR costs added to the costs of
current regulation. They also contended an EOBR mandate would
exacerbate the CMV driver shortage. In addition, these commenters
recommended that an EOBR mandate be partly offset by eliminating the
requirement to maintain paper RODS.
TCA, PMAA, the North Carolina Forestry Association, and the Kansas
Motor Carriers Association asserted that small carriers would bear an
undue burden if required to install EOBRs. Gases and Welding
Distributors Association stated EOBR costs are high relative to the
limitations of EOBR technology. SCRA pointed to increasing costs of
training, computer upgrades, replacement, maintenance, inspection, and
equipment calibration. USTA calculated that if EOBRs cost $3,000 each,
the organization's four largest members would incur a total cost of $75
million.
TCA drew an analogy between the costs of complying with the rules
on controlled substances abuse and alcohol abuse prevention as revised
in the early 1990s and the proposed EOBR regulations, asserting that
complying with a mandate costs twice as much as operating under a
voluntary regime. MnTA contended that Minnesota law enforcement
agencies have difficulty interfacing with various State and FMCSA
databases. SCRA called attention to the need for proper training for
law enforcement officials.
Individual drivers and owner-operators also expressed concerns
about what they considered to be the significant potential costs of
EOBRs. OOIDA contended the potential costs of EOBRs and related
accessories, communications equipment, and back-office systems would
``dwarf [EOBRs']
[[Page 2362]]
de minimus, if any, contribution to public safety.'' IBT thought any
time savings would be more than consumed by training time. In addition,
IBT contended EOBRs are unreliable and thus would produce few benefits.
Many drivers and owner-operators painted a grim economic picture for
small motor carriers required to comply with any new regulation
mandating EOBR use, raising concerns about the impact of such a rule
upon the current driver shortage and questioning the potential cost
savings and safety benefits. One in this group predicted any carrier
with fewer than 20 vehicles would go out of business.
Some drivers offered a more optimistic view. A few said EOBR cost
estimates were not as high as they had feared, and they could foresee
possible safety and operational benefits. One driver predicted costs
would go down if the devices were manufactured in bulk; however,
another was concerned costs would remain high without adequate
competition among vendors.
Advocacy organizations also were more optimistic. IIHS asserted
cost is not a significant factor. It cited two studies showing that
affordable EOBRs are available and that prices would drop even further
if EOBRs were mandated.
Vendors, too, were generally optimistic about their ability to
provide low-cost solutions to carriers. They suggested several
potential areas for cost savings in system hardware and software. For
example, Nextel expected costs for its potential EOBR product to be
negligible because their solution is based on cell phones. PeopleNet
stated it currently offers an EOBR/HOS product, and aftermarket
installation takes 1.5 hours or less. IBM recommended an industrywide
mandate to lower costs through economies of scale. Qualcomm asserted
that minimizing EOBR cost would be key to motor carriers' acceptance of
an EOBR requirement. The company recommended that road speed not be
recorded because retrieving such data at frequent intervals is not
otherwise necessary and would increase the EOBR memory requirements.
Qualcomm maintained that recording malfunction events, third-party
documentation on installation, repair, and calibration, and smart cards
would add costs and be unduly burdensome.
The Santa Clara Valley Transportation Authority said that its buses
already have a GPS/Automatic Vehicle Location system providing location
updates at 2-minute intervals, and that any requirement to synchronize
this system with the engine would be very costly. Santa Clara noted
that its current HOS compliance system is working well overall, and
that installing EOBRs would involve high costs without significant
benefits.
Agency Response
It is difficult to estimate all of the initial and ongoing EOBR
costs reliably. Costs to the motor carrier would vary depending both on
the system currently installed and the prospective new system. Rather
than addressing these variables, many commenters focused on the
potential costs of an industrywide mandate to install EOBRs. FMCSA has
estimated the effects and concluded that the cost of universal EOBR
installation would not justify the benefits at this time. Therefore,
the NPRM focuses on the highest risk carriers, a targeted approach that
allows FMCSA to concentrate its resources (and EOBR use) on the most
serious violators of the HOS regulations. In the RIA, FMCSA made the
assumption that all carriers subject to an EOBR mandate would be
installing these units and supporting equipment and software for the
first time. This is a conservative estimate intended to ensure we do
not underestimate the costs associated with this rulemaking. The Agency
believes the population of high-risk carriers, which appears to be less
than 1 percent of the overall carrier population, is the group least
likely to have EOBRs at present. These are the carriers most likely to
be affected by the rule. Because they represent such a small percentage
of the total carrier population, costs are unlikely to be large
overall.
14. Incentives To Promote EOBR Use
Commenters were generally in favor of incentives to promote EOBR
use. Federal tax relief was the most common incentive mentioned. Motor
carriers including J.B. Hunt, Maverick Transportation, Roehl Transport,
and Schneider suggested that Federal tax relief would serve as an
incentive to promote EOBR installation. Motor carrier associations, an
EOBR manufacturer, and an individual driver made the same point.
Four EOBR vendors recommended specific design specifications they
believe would make EOBRs more appealing to motor carriers. For example,
LinksPoint suggested FMCSA allow systems that do not need to be
integrated with the vehicle and could be used with current mobile
computing and GPS technologies. Qualcomm recommended EOBR
specifications that allow the rounding of driving time to the nearest
15-minute increment. Otherwise, Qualcomm reasoned, drivers using EOBRs
could be at a disadvantage, in terms of HOS compliance, compared with
drivers using paper RODS. For example, if a driver drove 11 hours and 7
minutes using an EOBR without a rounding feature, the driver would have
an HOS violation identified. However, in Qualcomm's view, most drivers
using paper logs would round down the time to 11 hours. Allowing EOBRs
to be programmed to ignore intervals of 15 minutes or less would serve
as an incentive by leveling the playing field between EOBR-using
carriers and those using paper records of duty status.
Vendors also suggested regulatory incentives that FMCSA could offer
to encourage EOBR use. For example, Qualcomm specifically recommended
that FMCSA relieve motor carriers using EOBRs from the requirement to
maintain supporting documents other than the information collected by
the EOBR that supports the automated RODS recordkeeping.
Many commenters suggested that one of the most significant
deterrents to voluntary EOBR installation was the fear of post-crash
litigation based upon the extensive operational data EOBRs are capable
of producing. They recommended limiting the data elements EOBRs would
be required to produce and restricting access to the data as incentives
for voluntary installation. For example, ATA recommended that future
EOBR regulations specify that EOBR data accessed by government
officials would be restricted to information required to enforce the
HOS regulations, and that access to the data be restricted to the motor
carrier and its agents, FMCSA officials, authorized State enforcement
personnel, and representatives of the NTSB for purposes of post-crash
investigations. The ATA also suggested that an FMCSA commitment to work
with the industry to seek enactment of statutory protections for data
beyond that required under part 395 would significantly alleviate a
major impediment to acceptance of EOBRs.
Agency Response
FMCSA finds merit in vendor comments that appealing design
specifications would serve as incentives to EOBR installation. Toward
that end, the performance specifications proposed in this rulemaking
address many of the design proposals recommended by commenters. For
example, as recommended by LinksPoint, the proposed EOBR performance
specifications do not require ``integral synchronization'' to the
vehicle engine and thus allow for both innovation and potentially
reduced costs.
[[Page 2363]]
FMCSA does not agree, however, with Qualcomm's suggestion to
establish specifications that allow for rounding of driving time to the
nearest 15-minute increment. The current regulations concerning paper
records of duty status do not provide for rounding, and FMCSA's
question-and-answer guidance indicates that periods of less than 15
minutes may be identified by drawing a line to the Remarks section of
the RODS and entering the amount of time, such as 7 minutes.
FMCSA sees some merit in Qualcomm's comment that motor carriers
using EOBRs should not have to maintain supporting documents other than
those produced by the EOBR. This NPRM proposes adopting a new 49 CFR
395.11 to provide partial relief from the current supporting document
requirements under 49 CFR 395.8(k) for motor carriers that install a
device compliant with proposed Sec. 395.16. EOBRs meeting the
requirements of Sec. 395.16 produce regular time and CMV location
position histories sufficient to verify adequately a driver's on-duty
driving activities. However, additional supporting documentation, such
as driver payroll records, is still necessary to verify on-duty not-
driving activities. Therefore, the proposed Sec. 395.11 does not
provide a blanket exemption from supporting document requirements for
carriers using EOBRs compliant with Sec. 395.16. Rather, it would
limit the volume of required supporting documents to those necessary to
verify on-duty not-driving time and off-duty status. FMCSA issued a
supplemental notice of proposed rulemaking concerning HOS supporting
documents on November 3, 2004 (69 FR 63997) and expects to publish the
final rule in the near future. The Agency will consider public comments
to today's NPRM in determining whether adjustments to the supporting
documents exemption procedures may be necessary.
We recognize commenters' concerns regarding legal protection and
access to EOBR data, and believe the performance specifications and
regulations proposed in this rulemaking help to mitigate these
concerns. For example, the proposed EOBR performance specifications do
not require that non-HOS data, such as vehicle speed, be recorded.
While FMCSA agrees that statutory protections against access to data
from EOBRs beyond what is required to determine HOS compliance would
further acceptance of the devices, legislative efforts toward that goal
are outside the scope of this proposed rule. FMCSA seeks comment,
however, on data access protections that could be provided under
current statutes.
15. Miscellaneous Questions
As many responses to the questions in this section are similar to
those discussed earlier, we will summarize them here. Commenters
generally consider EOBRs highly reliable, with equipment vendors
estimating them to have a useful life of 7 to 10 years or longer. Motor
carriers agreed.
Agency Response
FMCSA's analysis of the data and further consultation with
equipment vendors suggest a more conservative estimate for the useful
life of EOBRs than that provided in equipment vendors' comments to the
ANPRM. Vendors we consulted estimated the devices to have a useful life
of 3 to 5 years, if technological obsolescence is factored in. Please
see the RIA, available in the docket, for further discussion.
15.1 Should FMCSA Propose To Require That Motor Carriers in General, or
Only Certain Types of Motor Carrier Operations, Use EOBRs?
Mandate EOBRs for some motor carriers. The National Private Truck
Council and two other commenters said that any requirement to use EOBRs
should apply only to long-haul trucking companies, reasoning that the
cost of installing and using EOBRs would not be justified for local
distribution operators.
Several commenters stated FMCSA should exempt motor carriers
operating under the 100-air-mile-radius exemption. The Colorado Ready
Mixed Concrete Association noted that the 100-air-mile-radius exemption
is based on the recognition that short-haul operators are at reduced
risk of excessive driving time and resulting driver fatigue; requiring
these carriers to use EOBRs would be tantamount to rescinding the
exemption. The Highway Safety Committee of the International
Association of the Chiefs of Police suggested that if FMCSA requires
EOBRs for interstate carriers, it should avoid penalizing States that
choose not to require EOBRs for intrastate carriers using the 100-air-
mile-radius exemption.
The Motor Freight Carriers Association (MFCA) and several LTL
carriers said that FMCSA should exempt the LTL sector because its
systems for managing driver fatigue and ensuring compliance with the
HOS rules already make it one of the safest segments of the trucking
industry. They asserted that LTL carriers locate their facilities and
dispatch their drivers in ways that ``virtually eliminate'' HOS
violations. Yellow Roadway Corporation added that its drivers are in
personal contact with supervisory personnel at the beginning and end of
the workday, and the company uses software to flag any dispatch that
would cause an HOS violation. ATC Leasing Company, a provider of
driveaway services, noted that its drivers operate a given CMV only
once and would therefore need to use portable EOBRs. The company
believes that, in general, the marketplace demand for portable EOBRs
would be low, resulting in high per-device costs.
Several commenters asked for operational-based exemptions from any
future EOBR requirement for particular types of short-haul operations.
These included the National Solid Wastes Management Association (100-
air-mile-radius exemption or solid waste collection trucks); PMAA
(short-haul drivers delivering gasoline); NRMCA and its Colorado State
association (ready-mixed concrete industry); NPGA (local propane
delivery operations); the National Rural Electric Cooperative
Association (utility service vehicles in general); and the USTA
(utility service vehicles, particularly those operating under the 100-
air-mile-radius exemption); and the National Ground Water Association
(well drillers whose CMVs travel less than 5,000 miles annually). ATA
recommended FMCSA assess whether drivers and operations not currently
required to keep RODS (100-air-mile-radius drivers, drivers in the
State of Hawaii, and certain drivers in agricultural operations) should
be exempted from an EOBR requirement.
Motor carriers of passengers and their industry associations
asserted that FMCSA should not require EOBR use by carriers in this
industry segment, in part because of its already strong record of
safety and HOS compliance. The United Motorcoach Association added that
95 percent of such companies registered with FMCSA meet the Small
Business Administration's definition of a small business. Greyhound
Lines noted that its drivers have considerably different work patterns
from those of truck drivers and operate on fixed, published schedules
that are designed to comply with HOS requirements. The National School
Transportation Association (NSTA) argued against an EOBR requirement
for its members because only about 1 percent of school bus operations
are interstate activity trips subject to the FMCSRs. Similarly, the
Santa Clara Valley Transportation Authority argued that FMCSA should
not require EOBRs for local public transit agencies using the 100 air-
mile-radius exemption.
[[Page 2364]]
One commenter argued that EOBRs must remain voluntary for owner-
operators but did not provide supporting rationale. Two commenters,
citing the potential financial impact on small businesses that operate
CMVs, requested FMCSA consider limiting the requirement for EOBRs to
those carriers operating CMVs requiring a commercial driver's license.
Five of the seven carriers commenting on this issue said that lack
of a broad EOBR mandate would create an uneven playing field, while
noting that their own potential costs to add EOBRs could be
considerable. ATA pointed out that motor carriers exempt from a
requirement to use EOBRs would derive a competitive advantage because
they could more readily attract independent contractors (which
presumably would also be exempt). The few drivers favoring a universal
EOBR requirement also expressed concerns about competition. EOBR
vendors XATA, PeopleNet, and Qualcomm made a similar point. Another
EOBR vendor stated that homeland security considerations should be the
sole reason to exempt a carrier from an EOBR requirement. CHP said that
FMCSA could apply an EOBR requirement only to particular segments of
the trucking industry, but expressed concerns about economic equity.
Mandate EOBRs for all motor carriers. Public Citizen and Advocates
supported mandatory EOBR use for all CMVs over which FMCSA has
jurisdiction. They contended FMCSA should require States to mandate
EOBRs for intrastate CMVs as a condition of a State's receiving Motor
Carrier Safety Assistance Program funds. Advocates added that NHTSA
should issue a complementary regulation requiring EOBRs on all newly
manufactured vehicles subject to the prohibition on making safety
equipment inoperative (49 U.S.C. 30122). CTA recommended requiring
EOBRs in commercial motor vehicles for which the driver is required to
hold a CDL.
J. B. Hunt commented that if FMCSA determines EOBRs would provide
an enhanced level of compliance and improved safety outcomes, the
Agency should mandate EOBR use in all operations subject to the HOS
regulations, including 100-air-mile-radius operations. Schneider
expressed a similar view, asserting it would be irrational to exempt
small carriers that typically have less sophisticated compliance
programs and higher crash rates than large carriers. One carrier
predicted that political considerations would lead to a universal EOBR
mandate.
Mandate EOBRs only for motor carriers with poor safety or
compliance records. Seven commenters suggested that if FMCSA chooses to
mandate EOBRs for any motor carriers, it should do so only for carriers
or industry segments that have shown poor compliance with HOS
regulations. Three in this group--a motor carrier, a trade association,
and an owner-operator--noted that such an approach would relieve
carriers already in compliance with the HOS rules of the financial
burden of purchasing and installing EOBRs. United Motorcoach
Association stated that it ``would endorse the mandatory implementation
of EOBRs only for chronic offenders.'' CVSA suggested that EOBRs could
be used as ``punishment'' for carriers that show continued violations
of HOS rules or are found to have falsified their RODS. The Motor
Freight Carriers Association and the Yellow Roadway Corporation
encouraged FMCSA to adopt a rule requiring individual companies or
industry sectors to demonstrate a proven record of HOS compliance and
to subject carriers not meeting that compliance rate to ``more
strenuous requirements, including the possible imposition of recording
devices.''
Agency Response
FMCSA agrees that focusing first on motor carriers with significant
HOS compliance problems is a sound approach. The Agency believes this
is the strategy most likely to improve the safety of the motoring
public on the highways in the near term and to make the best use of
resources, both those of enforcement agencies and of the motor carrier
industry. We are therefore proposing procedures for issuance of
remedial directives requiring EOBR installation, maintenance, and use
by only those motor carriers with serious and repeated HOS
noncompliance. By focusing on this narrow carrier population, we would
increase highway safety while minimizing the cost to the motor carrier
industry, giving the Agency maximum return on the investment of its
enforcement resources.
As discussed in the Remedies section of this preamble, FMCSA
examined a variety of possible parameters that might be used to
establish subpopulations of poor-HOS-compliance carriers to which an
EOBR mandate might apply. Agency CR results indicate that a substantial
number of motor carriers do not routinely violate the HOS rules, and
thus (based on the RIA for the proposal) the benefits of an
industrywide EOBR mandate do not outweigh the costs. In focusing first
on the most severe violations and the most chronic violators, we are
proposing a mandatory-installation ``trigger'' designed to single out
motor carriers that have a demonstrated history of poor hours-of-
service compliance. The trigger for a notice of remedial directive and
proposed unfitness determination would be a ``final determination'' of
one or more ``pattern violations'' of any regulation in proposed new
Appendix C to Part 385 (``Appendix C regulations''), 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. A pattern violation of
Appendix C regulations is 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. Based on data concerning HOS violation
from CRs conducted between June 2001 and June 2005, this trigger, if
adopted, would result in the issuance of approximately 465 remedial
directives to install EOBRs annually.\3\ The Agency believes this
relatively small carrier population, with its severe and recurring HOS
compliance deficiencies, poses a disproportionate risk to public
safety. Therefore, mandatory EOBR installation and use by this narrow
subset of carriers is an appropriate and resource-effective means of
promoting motor carrier safety.
---------------------------------------------------------------------------
\3\ FMCSA considered, but is not proposing to adopt, CVSA's
suggestion that EOBR installation be required as a ``punishment''
for part 395 violations. The current civil and criminal penalties
authorized under 49 U.S.C. 521 for violations of the FMCSRs would
remain unchanged under the proposed rule.
---------------------------------------------------------------------------
FMCSA recognizes that there may be other factors that bear
consideration in determining the potential application of an EOBR
requirement, such as risks to passengers or to the general public from
a release of hazardous materials. The Agency requests public comment on
whether EOBRs should be required of passenger carriers and carriers
transporting hazardous materials in quantities requiring placarding.
15.2 Other Comments
IIHS recommended that FMCSA conduct a field operational test of
EOBR devices and conduct formal surveys to gather data on EOBR
benefits, costs, and use in HOS enforcement.
ATA and IIHS asked how FMCSA would determine that EOBRs would
achieve the intended results. ATA believes the Agency should provide
evidence that EOBR use will reduce
[[Page 2365]]
fatigue-related crashes and thereby improve truck safety, arguing that
any correlation between electronic recording and crash reduction is
merely speculative unless documented. ATA added that a study of motor
carriers' experiences with automated recording devices could be useful
in determining whether they contribute to safer driving performance and
crash prevention.
Agency Response
In response to IIHS's recommendation for a field operational test
of EOBRs and surveys to gather data on EOBR benefits, costs, and use in
HOS enforcement, FMCSA conducted such a survey and published the
results in 1998 (the UMTRI study, docket entry number 7). The study
results were limited because of a very low (12 percent) response rate.
Another field operational test, the FMCSA-sponsored HM FOT discussed
previously in section 13.2, found that use of EOBR-related technology
led to potential increases in operational efficiency, which could
benefit safety indirectly.
However, as also noted in section 13.2, there is little research
data linking EOBR deployment directly to safety benefits. A study such
as ATA suggested, in which data on many potential contributors to
driving safety would be tracked and analyzed statistically, could
certainly shed useful light on the relative contributions of factors
such as CMV driver selection, in-service training, motor carrier
oversight, and use of HOS recording devices. Such a study would likely
be extremely challenging to design, given that: (1) Highway CMV-
involved crashes are statistically rare events, so that several years'
worth of data might be needed before a statistically valid comparison
could be drawn; (2) motor carriers may make changes to several of these
areas concurrently; (3) the ``before'' data might not have been
maintained in a way that allows for direct comparison with the
``after'' data; and (4) participants' awareness of and involvement in
an active study could influence their data (i.e., a ``Hawthorne
effect'').
As noted previously, in the absence of comprehensive research data
in this area, the Agency infers from motor carriers' comments to the
ANPRM, case studies, and anecdotal information that EOBR installation
and use correlates with increased HOS compliance and reduced driver
fatigue. This in turn could reduce the incidence of crashes involving
CMVs.
The HOS compliance of motor carriers subject to remedial directives
under the proposed rule could improve even more as a result of EOBR
installation and use. These are motor carriers that FMCSA has
determined to have hours-of-service violations in 10 percent or more of
the records of duty status examined during two or more CRs within a 2-
year period. Such carriers have already demonstrated repeated
noncompliance with the HOS regulations after being afforded an
opportunity to improve. The Agency's existing compliance oversight
processes would already have singled out these carriers for FMCSA's
attention because violations found during roadside inspections, crash
involvement, or both, placed them statistically well outside the norm
at the time of the second CR. The Agency would also have provided
recommendations to these carriers to guide them toward improving their
safety performance and regulatory compliance. These carriers would be
offered a choice: Install a tool--the EOBR--to enable the carrier to
gather and use more accurate data than are contained in a paper RODS
and provide more specific information on areas of noncompliance the
carrier must address, or cease operations. As discussed in detail in
section 13.2, HOS compliance rate information in the MCMIS, an FMCSA
case-study analysis of a particular carrier, and analysis by Agency
enforcement personnel support an inference that compliance with an EOBR
remedial directive could reduce a carrier's HOS-related violations by
50 percent.
V. Agency Proposal
As noted in the Executive Summary and the discussion of public
comments, FMCSA proposes a comprehensive rule to increase EOBR use
within the motor carrier industry. The proposed regulation has three
elements: (1) Performance-oriented standards for EOBR technology; (2)
the mandatory use of EOBRs by certain motor carriers in a safety
remediation context; and (3) incentives to promote voluntary EOBR use.
FMCSA believes this approach strikes an appropriate balance between
promoting highway safety and minimizing cost and operational burdens on
motor carriers demonstrating strong and consistent compliance with the
HOS regulations. We seek public comment on these proposals, discussed
in what follows.
A. Technology
FMCSA proposes a new set of performance-based standards for EOBRs
that reflect the significant advances in recording and communications
technologies since introduction of the first AOBRDs in 1985.
In developing this proposal, we also considered findings related to
the seven key research factors discussed in FMCSA's April 2003 HOS
final rule and the September 2004 ANPRM on EOBRs. Equally important, as
noted previously, we considered several additional factors recommended
by commenters to the ANPRM, including interoperability with other
commercial motor vehicle intelligent transportation system (ITS)
applications and the use of standardized file formats. The latter
criteria are directly related to the factors discussed in the preamble
of the April 2003 HOS final rule. Following is a discussion of the
seven research factors with consideration of interoperability and
standardized file formats.
Factor 1: Ability To Identify the Individual Driver
FMCSA proposes to correct an apparent gap in the existing AOBRD
regulation. The current rule includes no explicit requirement for
driver identification beyond requiring the driver's signature on hard
copies of the record of duty status (Sec. 395.15(b)(5)). Commenters
suggested a broad range of identification methods--PINs, removable
smart cards, assignment of EOBR handsets to individual drivers, and
biometric systems. FMCSA's proposed approach takes into consideration
the operational realities of EOBR use, including potential cost or
operational burdens upon drivers and motor carriers.
The NPRM includes a proposal for a requirement for driver
identification, without prescribing a specific method. Motor carriers
could use either data entry approaches, such as PINs or user ID and
passwords, or methods such as smart cards that carry identifying
information or biometrics. This proposed approach would allow motor
carriers to use identification systems they may already employ in their
fleet management systems, allow adoption without regulatory change of
newer and possibly more secure technologies as they become feasible,
and accommodate future use of credentials currently being developed for
transportation workers.
Additionally, the EOBR would be required to display the driver's
name or employee ID number, if applicable, on all EOBR records
associated with that driver. This requirement would also apply when the
driver serves as a co-driver.
Factor 2: Resistance to Tampering
The broad term ``resistance to tampering'' denotes that the EOBR
and its support systems cannot be manipulated to produce inaccurate
[[Page 2366]]
information. The intent is to prevent tampering both at the input stage
(for example, a driver enters a keystroke sequence and presses a reset
button to erase the last 2 hours of data) and the output stage (for
example, a motor carrier's central file server uses an algorithm to
replace all driving time over the 11-hour limit with an ``off-duty''
status entry). Thus it encompasses EOBR certification and testing;
self-diagnosis of failures in hardware, software, and communications;
and in-service maintenance and calibration.
Because myriad possible methods exist to meet data integrity and
auditability requirements, FMCSA proposes a performance-oriented,
outcome-based regulation. The EOBR and associated support systems must
be tamper resistant to the maximum extent practicable. They 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.
A RODS, whether in paper or electronic form, provides a record of
the sequence of duty status events--date and time they began, date and
time they ended, and location of each change of duty status. Although
the 1988 final rule on AOBRDs (53 FR 38666, Sept. 30, 1988) offered one
approach to generating an electronic record, it was limited by the
recording and communications technologies that were state-of-the-
practice at that time. Date, time, and driving status information had
to be obtained from on-vehicle sources. Most of the requirements
promulgated by the 1988 rule, found under Sec. 395.15, are logical
candidates for a proposed EOBR regulation. These include requirements
concerning driver interaction with the AOBRD, tamper resistance,
ability to record duty status for each driver in a multiple-driver
operation, and ability to identify sensor failures and edited data.
However, several of the Sec. 395.15 requirements warrant revision.
Rather than amending Sec. 395.15, the NPRM proposes a new Sec.
395.16. The proposed performance specifications in Sec. 395.16 reflect
the need for and expectation of a high degree of reliability in 21st
century electronic devices and the data and information they record.
For example, language concerning the device's ability to ``identify
sensor failures and edited data when reproduced in printed form'' (as
currently set forth in Sec. 395.15(i)(7)) would be revised in proposed
Sec. 395.16(i)(2)-(5) to include electronic as well as paper output
records. Table 2 compares the similarities and differences between the
Sec. 395.15 and Sec. 395.16 requirements.
Table 2.--Comparison of Sec. Sec. 395.15 and 395.16 Requirements
[The twelve items listed below are contained in ``Notice of
interpretation; request for participation in pilot demonstration
project,'' published by FHWA on April 6, 1998 (63 FR 16697 at 16698).]
------------------------------------------------------------------------
49 CFR Sec. 395.15 Proposed Sec. 395.16
------------------------------------------------------------------------
1 Sec. 395.15(a)(1) permits use of The EOBR does not have to be
``Automatic on-board recording integrally synchronized to the
device'' (OBR) as defined at 49 CFR engine or other vehicle
395.2: capable of recording driver's equipment. The EOBR does have
duty status accurately and to use GPS or other location
automatically * * * must be integrally tracking systems that record
synchronized with specific CMV location at least once a
functions * * * must record engine minute; EOBRs could still use
use, road speed, miles driven (axle sources internal to the
revolutions), date and time of day vehicle to record distance
(internal clock). traveled and time. Requirement
to record road speed is
removed.
2 Sec. 395.15(b)(3) Support systems: Sec. 395.16(i)(6) Support
Must provide information about on- systems: Must provide
board sensor failures and identify information about on-board
edited data. sensor failures and identify
edited data. Support systems
must provide a file in the
format specified in Appendix A
of 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.
3 Sec. 395.15(f) Reconstruction of Same requirement. See Sec.
records of duty status: Drivers must 395.16(k)(2).
note any failure of automatic OBRs and
reconstruct records of duty status
(RODS) for current day and past 7 days
* * * must prepare handwritten RODs
until device is operational.
4 Sec. 395.15(h)(1) Submission of RODS: Sec. 395.16(m)(1): Driver must
Driver must submit, electronically or submit electronically, to the
by mail, to motor carrier, each RODS employing motor carrier, each
within 13 days following completion of record of the driver's duty
each RODS. status. (2) For motor carriers
not subject to the remedies
provisions of part 385 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 of this chapter, each
record must be submitted
within 3 days of its
completion.
5 Sec. 395.15(h)(2): Driver must review Same requirement. See Sec.
and verify all entries are accurate 395.16(m)(4).
before submission to motor carrier.
6 Sec. 395.15(h)(3): Submission of RODS Same requirement. See Sec.
certifies all entries are true and 395.16(m)(5).
correct.
7 Sec. 395.15(i)(1): Motor carrier must Sec. 395.16(q)(2): The exterior
obtain manufacturer's certificate that faceplate of the EOBR must be
the design of OBR meets requirements. 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 of this part.
8 Sec. 395.15(i)(2): Duty status may be Sec. 395.16 (o)(1): The EOBR
updated only when CMV is at rest, must permit the driver to
except when registering time crossing enter information into the
State boundary. EOBR only when the commercial
motor vehicle is at rest.
9 Sec. 395.15(i)(3): OBR and support Sec. 395.16(o)(2) The EOBR and
systems must be, to the maximum extent associated support systems
practicable, tamperproof. must be, to the maximum extent
practicable, tamperproof and
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.
10 Sec. 395.15(i)(4): OBR must warn Sec. 395.16(o)(6) The EOBR must
driver visually and/or audibly the warn the driver via an audible
device has ceased to function. and visible signal that the
device has ceased to function.
[[Page 2367]]
11 Sec. 395.15(i)(7): OBR and support Sec. 395.16(o)(9) The EOBR
systems must identify sensor failures device/system must identify
and edited data. sensor failures and edited and
annotated data when
downloaded.
12 Sec. 395.15(i)(8): OBR must be Same requirement. See Sec.
maintained and recalibrated in 395.16(p)(1) specifications.
accordance with the manufacturer's
specifications.
------------------------------------------------------------------------
Integral synchronization. The matter of integral synchronization is
probably the most critical element of this rulemaking action, in the
context of regulatory obstacles to the voluntary use of on-board
recorders. Recent research and assessments indicate that devices
providing frequent reports of location and time information, obtained
from signals not under the direct control of the driver or carrier,
have the ability to provide a record of equivalent or greater accuracy
than data from an internal CMV data source. Therefore, although the
requirement for integral synchronization with the CMV was fundamental
to the definition of AOBRD in Sec. 395.2, it would not apply to EOBRs.
The proposed regulation would instead require accurate and frequent
reporting of the CMV's physical location, whether through a device
installed on the CMV or one worn (as a cellular telephone might be) by
the driver.
Unlike a conventional AOBRD (i.e., one meeting, but not going
beyond, the definition in Sec. 395.2), the EOBR specified in proposed
Sec. 395.16 would be required to autonomously record the CMV's
physical location at intervals no greater than once per minute. The
EOBR could use GPS, terrestrial, inertial guidance, or a combination of
methods to accomplish this. For a GPS-enabled EOBR or a cellular
telephone, gaps in coverage can be expected to be brief--generally on
the order of minutes. The EOBR record of distance traveled must be
accurate to within 1 percent of actual distance traveled by the CMV
within a 24-hour period. Furthermore, regardless of the communications
mode--wireless or terrestrial--and the method used to synchronize the
time and CMV-operation information into an electronic RODS, FMCSA would
require the EOBR records to maintain and display duty status
information (including distance traveled per day +/-1 percent)
accurately and to maintain the integrity of that information.
This change serves two purposes. It frees EOBR developers from the
necessity of connecting to the CMV, and it opens the door to more
accurate recording of non-driving duty status categories. The proposed
regulation would not prohibit the use of internal (on-CMV) sources to
record CMV distance traveled and time. An EOBR may still use sources
internal to the vehicle, such as an ECM with internal clock/calendar,
to derive distance traveled.
Self-tests and self-monitoring. Several commenters supported
FMCSA's consideration of a requirement for EOBRs to perform self-tests
and self-monitoring, with the driver and dispatcher receiving
notification of test failures. Many commenters also indicated that
verification by a roadside safety official or FMCSA compliance officer
would be a very simple process. Taking these concerns into account,
FMCSA proposes that EOBRs be capable of performing a power-on self-test
upon demand. The display screen must provide an audible and/or visual
signal as to its functional status. The EOBR would also be required to
warn the driver by visual and audible means that it has ceased to
function, and to record a code corresponding to the reason for
cessation and the date and time of that event.
FMCSA proposes maintenance and recalibration requirements similar
to those currently provided for AOBRDs under Sec. 395.15(i)(8): ``The
on-board recording device is maintained and recalibrated in accordance
with the manufacturer's specifications.'' We propose to broaden this
requirement only slightly by requiring that the EOBR record malfunction
events and that the motor carrier retain EOBR recalibration and repair
records.
Although today's electronic devices are generally highly reliable,
they do occasionally malfunction. As with many electronic devices,
losing access to an EOBR can present a range of operational and
recordkeeping challenges for drivers and motor carriers. While
commenters agreed that the driver should be allowed until the ``next
reasonable opportunity'' to repair or replace a defective EOBR, they
defined a ``reasonable'' period as anywhere from 13 to 90 days. FMCSA
must strike a balance between requiring timely repair or replacement of
an EOBR and imposing requirements that could place a driver in an
unworkable position. Therefore, we propose to require that drivers keep
handwritten RODS until the EOBR is replaced or repaired. In addition,
motor carriers using EOBRs under the proposed ``Remedies'' provision
(see discussion below) would be required to repair or replace a
malfunctioning EOBR within 14 days. We believe this would not place an
unreasonable burden on motor carriers or drivers.
EOBR certification. At issue is how motor carriers and FMCSA would
ensure EOBRs meet the specifications set forth in regulation. The basic
choices are self-certification by manufacturers--the status quo--or
independent certification by FMCSA or a third party.
Commenters were divided between the alternatives of continuing to
allow self-certification and a move to testing and certification by
FMCSA, possibly in conjunction with NHTSA, CVSA, and other agencies or
organizations. Many commenters, particularly motor carriers, supported
the idea of a list of ``approved'' devices, while recommending against
the type-certification process used by the European Union for the new
electronic tachographs (the EU standard is highly design specific and
prescriptive, and several commenters believe it would be too complex
and costly to implement).
FMCSA proposes to continue allowing manufacturers to self-certify
EOBRs (as they have with AOBRDs), to provide assurance to their motor
carrier clients that the EOBR and support systems have been
sufficiently tested, under representative conditions, to meet the
requirements of the FMCSRs. EOBR manufacturers would be required to
ensure their devices and support systems meet or exceed the set of
performance criteria presented in proposed new Sec. 395.16 and
Appendix A of this NPRM. Under this self-certification program, the
EOBR manufacturer would certify the device conforms with certain pass/
fail criteria including:
Accuracy of recording of CMV distance traveled
Frequency of recording location position
[[Page 2368]]
Output display requirements
Data interface requirements for hardwired and wireless
transfer
Data file format requirements
Power-on self-test
Ambient temperature functional limits
Vibration and shock requirements
Operator safety requirements
FMCSA believes this approach would provide improved guidance to
EOBR manufacturers regarding the Agency's expectations for device
performance. It would address motor carriers' and safety compliance
officials' concerns about whether an EOBR had indeed been tested for
regulatory compliance, and whether it passed the tests.
Factor 3: Ability To Produce Records for Audit
FMCSA acknowledges drivers' and motor carriers' comments that the
current blanket prohibition against amending AOBRD records places
unnecessary operational obstacles to wider adoption of electronic HOS
recording devices. The proposed regulation would allow drivers to amend
a non-driving record immediately before and after a trip or workday.
This would provide operational flexibility to drivers to correct duty
status errors arising because the driver forgot to log out of the
system. The limitation would prevent attempts at amendments to
``update'' the EOBR record in anticipation of a roadside inspection.
FMCSA recognizes this proposal significantly changes the status quo and
places responsibility on EOBR designers to safeguard against fraudulent
entries.
FMCSA agrees with commenters that some type of audit trail is
useful and necessary. Although various elements of Sec. 395.15 speak
indirectly to auditability of AOBRD records, we believe the requirement
needs to be strengthened. Therefore, we propose to require ``parallel
data streams'' (sequences of original and modified data entries) to
clearly indicate the content of original records, any revisions and
amendments to the records, the identities of people who entered and
revised or amended data, and when the original entries and amendments
were made.
Recording interval: In order to specify an appropriate interval for
an EOBR to record information, we must consider the way the information
is to be used, not simply the capabilities of the various technologies
to sense and record it.
Historically, CMV drivers have been required to record information
on the RODS graph-grid in 15-minute increments and to note shorter
periods (less than 15 minutes) in the ``Remarks'' section of the
document. A series of rounding errors--deliberate or otherwise--could
easily result in errors of several hours of duty time over the course
of a long trip. Drivers have been required to record location only when
there is a change in duty status. This has the effect of increasing the
complexity and time needed for a motor carrier or enforcement official
reviewing the records to reconstruct a trip to determine compliance,
particularly if the supporting documents are incomplete or missing.
The current definition of AOBRD at 49 CFR 395.2 states: ``The
device must be integrally synchronized with specific operations of the
commercial motor vehicle in which it is installed. At a minimum, the
device must record engine use, road speed, miles driven * * *.'' When
the regulation was published, it was necessary to include this
requirement because integral synchronization and engine information
were essential to enable verification of when a driver was in an on-
duty driving status. Since that time, advances in object-location
technologies and communication of location information are such that it
may no longer be necessary to require integral synchronization.
However, in order to ensure that time and travel distance
information is recorded accurately, the vehicle location information
must be recorded at frequent intervals. The longer the recording
interval, the less accurate the travel distance information, simply
because the location will be computed as a straight line between
points. On June 10, 1998, Werner Enterprises entered into a Memorandum
of Understanding (MOU) with the agency to use GPS technology and
related safety management computer systems as an alternative to
handwritten driver RODS. Over the course of the pilot demonstration
project, FMCSA conducted onsite reviews and investigated a complaint.
FMCSA's reviews confirmed that the inability of Werner's original
electronic logging system to accurately measure distance traveled and
average speed was caused not by any limitations of GPS positioning but
rather by the infrequent updates of vehicle position being recorded by
the system. In March 2002, Werner and FMCSA entered into a revised MOU
to amend the terms of the June 1998 agreement. FMCSA granted Werner a
2-year exemption in September 2004 to allow the carrier to continue to
use its system. The Agency renewed the exemption for another 2-year
period in September 2006 (71 FR 52846, Sept. 7, 2006). The terms and
conditions of the exemption are described in that notice at FMCSA
Docket No. 2003-15818.
The key concern is that travel distance--and the associated driving
time--be recorded and reported at a level of accuracy appropriate to
ensure HOS compliance. Specifically, it is critical that the device not
``undercount'' distance (or the associated travel time) because that
could mask HOS violations. By the same token, an ``overcount'' of
distance traveled could suggest HOS violations where none exist. FMCSA
proposes to require that the difference between actual distance
traveled and distance per day (i.e., a 24-hour period) computed via
location-tracking methods be +/-1 percent, with a 1-minute interval for
the EOBR to record location data. FMCSA believes this will keep the
technology affordable for motor carriers while still providing an
appropriate level of accuracy for location-based verification of RODS.
FMCSA requests comments on the technical requirements and
associated costs of recording CMV location across a range of time
intervals (1, 3, and 5 minutes) and accuracies (1, 3, and 5 percent).
The Agency stresses that it is not the intent of the NPRM to
require the EOBR to transmit location information from the device (or
the CMV in which it is used) to a tracking system maintained by a motor
carrier or another party working on a motor carrier's behalf. We
recognize that although there are no operational costs to receive
satellite-generated location information (such as from the GPS array),
transmitting that information from the EOBR to another location would
entail costs. Because FMCSA does not propose to require the EOBR to
transmit information at specific intervals to the motor carrier or
anyone else, the location update intervals would not increase the cost
of the EOBR or affect how it is used. The update intervals are simply a
matter of programming or menu selection for the device.
FMCSA requests comments on the question of transmitting location
information from the EOBR to the motor carrier.
Factor 4: Ability of Roadside Enforcement Personnel To Access the HOS
Information Quickly and Easily
Data presentation (display) format. The presentation requirements
for HOS data on an AOBRD are fundamentally different from those for
paper RODS: AOBRDs do not require the familiar graph-grid output
format, and devices
[[Page 2369]]
lacking electronic displays have no output presentation. This presents
a challenge to roadside safety officials. Most commenters supported a
standardized, simple EOBR display format showing the current driver-
related status and highlighting any noncompliance.
The data file format for an output display must facilitate review
by roadside safety officials using handheld computers. The current
regulation requires only a hardware interface between the AOBRD and the
motor carrier's back-office system. Some commenters believe the current
hardware standard (RS-232) for serial communications is outdated.
Others maintained that manufacturers should develop data interchange
standards. Still others pointed to the wide range of standard data
interchange methods available (e.g., USB) but emphasized the importance
of having standardized data formats and communications protocols.
FMCSA's proposed performance-based approach to standards for EOBRs
would provide several options for information transfer and display.
EOBRs would be required to produce upon demand a driver's HOS chart
using a graph-grid format in either electronic or printed form and a
digital file in a flat file using a specified format. The graph grid
and digital file must show the time and sequence of duty status changes
including the driver's starting time at the beginning of each day.
The option for providing the RODS data via a flat file would serve
two purposes. It would allow the use of smaller and less costly
electronic displays on the EOBR itself and also permit the data to be
transferred to a safety official's laptop computer, PDA, or similar
device.
With respect to options for hardwired and wireless data transfer
methods, the Agency's intent is to allow only a one-way transfer--the
enforcement official's computer would not transfer data to the EOBR. In
addition, the use of a standard file format for EOBR data transfer
could permit an extra layer of motor carrier compliance verification
through automated screening of the records. A standard file format
could also reduce the cost of EOBRs and support systems, particularly
for small motor carriers using desktop-computer-based back-office
recordkeeping systems. The reduction in support system costs would flow
from the ``few to many'' relationship between the back-office systems
and EOBRs; according to some industry estimates, there are more than
400,000 EOBRs and ``EOBR-ready'' devices in use today. This same
equation holds for the motor carrier safety compliance assurance
community--there are perhaps 10,000 laptops and handheld computers in
use by FMCSA and State commercial vehicle safety officials today.
In addition to requiring the graph-grid and flat file output of the
full record on a 24-hour basis, the proposed rule requires duty status
summary information similar to that currently required under Sec.
395.15(i)(5). This information would immediately indicate to the
enforcement official whether a more detailed review of the records
might be appropriate.
Reportedly, many safety enforcement officials are apprehensive
about entering the cab of a commercial motor vehicle to check HOS
records on an AOBRD. They perceive their physical presence in the
driver's workspace as being potentially unsafe. To address this
concern, FMCSA proposes to require that information displayed and
stored on the EOBR be made accessible to authorized Federal, State, or
local enforcement officials for review without the official's having to
enter the CMV. This proposed requirement could be met in a variety of
ways--by using various hardwired and wireless communications methods;
by copying the EOBR information to removable media and handing the
media to the official; or by simply handing the EOBR to the official.
Factor 5: Level of Protection Afforded Other Personal, Operational, or
Proprietary Information
The existing information collection requirements for paper RODS and
AOBRDs, as well as those proposed for EOBRs, are intended to produce an
accurate HOS record. The record must accurately disclose the amount of
time the driver spends in each of the four duty status categories, the
date, and the location of each change of duty status. The information
is recorded and reviewed by FMCSA and its government Agency partners to
determine compliance with the HOS requirements of part 395. Location
information is limited to city and State, the level of detail required
to enable reconstruction of the sequence of events for compliance-
assurance purposes. The level of detail that would be required for EOBR
records is the same as for paper RODS.
As discussed under Factor 1, driver identification requirements
would be geared to verification of the driver's identity on an HOS
record. This rulemaking would not require disclosure of a driver's
proprietary information.
Other uses for data. Drivers and motor carriers opposing an EOBR
mandate also expressed concerns about the potential for ``scope
creep''--collection by EOBRs of data for use in enforcement and
litigation actions unrelated to hours-of-service compliance. It is
FMCSA's intent that the data recorded on EOBRs and support systems, and
the information derived from those data, relate solely to compliance
with the HOS regulations. The data requirements are therefore limited,
and the technological challenges of collecting, recording, and
retaining the data on the EOBR and support systems are generally well
known and are met by many manufacturers. As discussed in the Agency's
response to comments about the development of a ``basic'' EOBR to
promote increased carrier acceptance, one reason for proposing to
eliminate the requirement for recording road speed is that Sec. 392.6,
Schedules to conform with speed limits, addresses road speed in a
broader safety context. Notwithstanding these deliberate measures to
narrow the scope of today's rule, FMCSA reserves the right to adopt
enforcement policies and practices to take advantage of continuing
technological advances. Any future proposals to use EOBRs or other
electronic monitoring for enforcement, compliance, or other Agency
purposes will be evaluated on their merits.
We recognize industry concerns regarding the potential use of
electronic monitoring data in litigation. For the Agency to withhold
such data in response to a Freedom of Information Act request, a court
order, or another legal process, however, would require statutory
amendments. FMCSA emphasizes that, under the proposal, the vast
majority of motor carriers would have full discretion as to whether to
use EOBRs that comply with proposed Sec. 395.16 (or AOBRDs compliant
with Sec. 395.15) or to continue using paper RODS. Only those motor
carriers with significant and recurring HOS noncompliance would be
required to install and use EOBRs.
Data security of EOBRs. The September 2005 Volpe Center report,
Recommendations Regarding the Use Of Electronic On-Board Recorders
(EOBRs) for Reporting Hours Of Service (HOS) and the July 2005 National
Institute of Standards and Technology (NIST) report, Technical Review
and Assessment: Recommendations Regarding the Use of Electronic On-
Board Recorders (EOBRs) for Reporting Hours of Service (HOS), address
data security in terms of physical security for portable storage media
devices and data security for the RODS information.
[[Page 2370]]
As discussed in the NIST report, although data stored on the
portable media are not encrypted, they are written in binary code. This
non-text format renders the data unintelligible to a person attempting
to view or edit the log file using a personal computer with a text
editor. This approach offers an improved level of data tampering
protection. If text files are used, they can be made ``read only'' to
prevent alteration except by authorized personnel. This would allow
drivers to review their logs, but not to alter them.
Finally, NIST noted that although encryption provides a high level
of privacy and security, the technologies involved can be complex and
costly to administer. NIST's assessment is that data security, rather
than privacy of personal information, is probably the principal
concern. Thus, data encryption may provide a higher level of security
than that required for RODS applications. FMCSA agrees with this
assessment and therefore is not proposing use of encryption for EOBR
data for wired data transfers between EOBRs and roadside enforcement
computers, or between motor carrier back-office systems and safety
enforcement computers during CRs.
However, for wireless data transfers between EOBRs and roadside
enforcement computers via Bluetooth or Institute of Electrical and
Electronics Engineers, Inc. (IEEE) 802.11g ``Wi-Fi'' standards, FMCSA
plans to specify a standard for data security and encryption. We have
not identified an optimal standard, and request comments on which
existing industry standards for data security and encryption should be
required to cost-effectively prevent the hacking of both EOBRs and
roadside enforcement computers. Such attacks would include unauthorized
access to data and device functions as well as denial of service.
EOBRs and privacy. This NPRM does not change the treatment of HOS
records with respect to privacy matters. 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 than to drivers of other motor vehicles. CMV
driver licensing, assessment of physical qualifications, training, and
performance of driving and other safety-sensitive duties are subject to
Federal regulation. The regulations also require records to document
the results of various types of assessments (such as a driver's
physical qualifications) and compliance with regulations concerning CMV
operations (such as a RODS to document HOS).
FMCSA's commitment to promoting highway safety and preventing
crashes involving CMVs is compatible with requiring records to
determine the number of hours CMV drivers drive, are on duty, are off
duty, or are using a sleeper berth, and the location of changes in duty
status. 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 afforded an
off-duty period and had the opportunity 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.
Finally, as stated in the September 2004 ANPRM (69 FR 53386, at
53392, Sept. 1, 2004) and reiterated under Audit Trail/Event Log in
this NPRM preamble, the Agency recognizes 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. See also the discussion on
FMCSA's Privacy Impact Assessment later in this preamble.
Factor 6: Cost
The ANPRM requested public comments on development of requirements
for a ``basic'' EOBR to promote increased motor carrier acceptance of
the technology. At issue was whether the Agency should propose
requirements for ``minimally compliant'' EOBRs that would provide the
electronic-data equivalent of an accurate RODS yet be more affordable
for small motor carriers and independent drivers (69 FR 53386, at
53394); propose a performance-based specification in the spirit of
Sec. 395.15; or propose a detailed design specification similar to the
European Union 2135/98 requirement for electronic tachographs and their
support systems.
FMCSA proposes a single set of performance-based specifications for
EOBRs under a new Sec. 395.16. This has the advantage of being simpler
and more straightforward for motor carriers to use, for manufacturers
and system providers to develop, and for safety officials to enforce.
It would promote the use of advanced technologies as they become more
affordable and appropriate for motor carrier applications.
Several of the proposed performance requirements discussed
earlier--such as the removal of the ``integral synchronization''
requirement and substitution of a requirement for accuracy of
information on distance traveled by the CMV, the requirement for flat-
file output, and the provision to allow communications via several
alternative hardwired and wireless methods--have in common the
potential to decrease the cost of EOBRs. The proposed elimination of
the integral synchronization requirement opens the door to using a
large variety of commercial off-the-shelf telecommunications devices as
the EOBR, for a significant reduction in EOBR hardware costs. Another
potential change in performance requirements would be the elimination
of any requirement for the EOBR to accept keyboard input for State
border crossing information. This AOBRD requirement, which facilitated
motor carriers' compliance with fuel tax reporting procedures,
reflected a design feature common to 1980s-era recorders. FMCSA does
not propose to remove from Sec. 395.15 the requirements for integral
synchronization, for recording of State border crossing information,
and for the capability to transfer data to a ``back-office'' system.
Under this NPRM, motor carriers now using AOBRDs compliant with
Sec. 395.15 would not be required to invest in Sec. 395.16-compliant
EOBRs. These carriers could continue to use the AOBRDs for the life of
the CMVs in which they are installed. Any devices used for recording
HOS installed or used in CMVs manufactured on or after 2 years
following the effective date of an EOBR final rule would be required to
comply with the new requirements.
Factor 7: Driver Acceptability
Drivers' comments to the ANPRM docket (as well as to the dockets of
the 2000 NPRM on hours of service, the 2003 HOS final rule, and the
2005 HOS NPRM and final rule) reflect mixed feelings about EOBRs. Some
drivers appreciate that use of these devices can significantly reduce
the time and effort
[[Page 2371]]
of preparing and filing paper RODS. They also value the accurate and
timely duty status information an EOBR provides the motor carrier,
which removes an incentive for a dispatcher to ask a driver to drive
longer or take less off-duty time than the regulations require. Other
drivers view the prospect of using an EOBR as an unwanted and
unwarranted intrusion. These drivers value their independence and self-
reliance, and resent the notion of oversight by their supervisors or
Government authorities.
In August 1995, FHWA conducted a survey of truck and motorcoach
drivers to gauge potential acceptance of commercial vehicle operations
(CVO) user services (User Acceptance of Commercial Vehicle Operations
Services, Task B Final Report, Penn and Schoen Associates, Inc., August
8, 1995). On the whole, commercial vehicle drivers were receptive to
and supportive of the use of CVO technologies and user services on the
road and in their vehicles. Technologies garnering the most support
were seen by survey respondents as having the potential to ``make my
work easier,'' be ``useful for me,'' and ``* * * work [in my vehicle]/I
would rely on it.'' See page 9 of the report.
At the same time, drivers expressed concern that certain of the
technologies would constitute an invasion of driver privacy by either
the government or the driver's company. Another concern was that the
systems would rely too much on computers and diminish the role of human
judgment. Drivers were wary of services that might overpromise, leaving
them dependent on unproven technology. They wanted systems that would
be consistently reliable, workable, and useful yet pose no threat to
the driver, his vehicles, his privacy, or his livelihood.
On the whole, drivers tended to evaluate the commercial vehicle
operations services from the perspective of personal experience rather
than focusing on the industry as a whole. For example, independent
owner-operators, who have historically been more skeptical of
technology and wary of intrusion by either the government or trucking
companies, reacted more negatively toward the technologies than did
other drivers.
A second study, required by Congress under the Fiscal Year 1995
U.S. Department of Transportation Appropriations Act, assessed
technological, economic, and institutional factors requiring
consideration if smart-card applications were to be implemented. The
study found that smart-card applications were feasible for driver's
licenses, operations- and maintenance-oriented vehicle cards, and
electronic toll collection, but not for international border crossing
(telecommunications protocols were already in place) and drivers'
records of duty status. The researchers noted the lack of a requirement
for motor carriers to automate the RODS, and believed ``any proposed
regulation specifying the use of smart cards would almost certainly
encounter fierce opposition.'' (Smart Cards in Commercial Vehicle
Operations [Report FHWA-MC-97-022, Dec. 1996], page 51).
It is clear that any type of technological innovation must be
introduced in a forthright way. Users must be aware of the technology
and understand the HOS regulations with which they must comply. Users
must be provided appropriate training, and the technology should not
distract them from their primary tasks. For most motor carriers, the
decision to use EOBRs (or AOBRDs) would continue to be voluntary under
the proposed rules. Motor carriers operating in compliance with the HOS
regulations may continue to choose between paper or automated RODS
systems, according to what works best for them and their drivers. Only
those motor carriers demonstrating recurrent, significant noncompliance
with the HOS regulations would be required to use EOBRs. However, all
drivers used by those carriers would be required to operate vehicles
equipped with EOBRs.
FMCSA believes the EOBR remedial provisions must, to be effective,
apply to carriers using owner-operators and to the owner-operators'
equipment. We recognize that a carrier leasing equipment from owner-
operators could argue that those CMVs are outside the scope of the
remedial provisions because ownership remains in control of the lessor,
and the carrier has no control over whether the owner-operator installs
the equipment. However, 49 CFR 376.12(c)(1) requires a motor carrier
using leased equipment to assume ``exclusive possession, control, and
use of the equipment'' for the duration of the lease. Therefore, FMCSA
proposes that the remedial directive apply to all vehicles used by the
carrier to perform transportation services on the carrier's behalf. If
a motor carrier is issued an EOBR remedial directive, then it must
install (or have installed) EOBRs in all vehicles it uses. Owner-
operator vehicles leased to such a remediated carrier would be required
to have EOBRs installed even if the owner-operator holds separate
operating authority. Before leasing to a particular carrier, an owner-
operator should ask the carrier whether it is operating under an EOBR
remedial directive.
As discussed elsewhere in this notice, FMCSA proposes to encourage
motor carriers, and owner-operators leased to motor carriers, to
consider using EOBRs by offering incentives in the form of an
alternative process of reviewing HOS records. In addition, the
performance specifications under proposed Sec. 395.16 include a number
of enhancements that take advantage of the significant advances in
monitoring, recording, and communications technologies since the Sec.
395.15 requirements were developed. These features should improve the
usefulness of EOBRs to drivers.
We are proposing that an EOBR be required to 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.
EOBRs would also be required to provide an audible and visible signal
to the driver at least 30 minutes in advance of reaching the 60/70-hour
limits for on-duty time. The visual signal must be visible to the
driver when seated in the normal driving position. 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.
FMCSA acknowledges there is room to improve the accuracy of
recording non-driving duty status categories. Comments to the docket by
several EOBR manufacturers suggested methods for noting on-duty not-
driving status. Generally, these required a driver to annotate the
record or to select a different duty status if on-duty not-driving was
not appropriate. FMCSA proposes that EOBRs be required to select on-
duty not-driving as the default status when the vehicle is not moving
for a certain period of time. The EOBR would also advise the driver via
audible and visible means to enter a new duty status when the
transmission is placed in park, the parking brake is engaged, or the
ignition is turned off. The driver would still need to enter the duty
status on the EOBR manually if his or her duty status differed from the
on-duty not-driving default setting. We believe this requirement would
reduce direct driver interaction with the EOBR, as recommended in
comments provided by the IBT and advocacy organizations. Although some
commenters recommended FMCSA mandate EOBRs that would record duty
status categories accurately without driver-EOBR interaction, FMCSA is
not aware of any such devices in the commercial marketplace at this
time. We request
[[Page 2372]]
public comment on the availability of such devices in the near future.
This NPRM also includes a provision requiring an EOBR to provide
for the driver's review of each day's record before submitting it to
the motor carrier. As noted previously, the driver would be allowed at
that time to make annotations and amendments to the electronic RODS,
but not to amend driving-status information. The EOBR must be designed
so that if a driver or any other person annotates a record in the
device or a support system for the device, the annotation does not
overwrite the original contents of the record. This would preserve the
auditability of EOBR records.
B. Remedies
FMCSA, based on its safety research, believes that motor carriers
whose drivers routinely exceed HOS limits or falsify their HOS records
have an increased probability of involvement in fatigue-related crashes
and therefore present a disproportionately high risk to highway safety.
Based on the Agency's analysis of its Motor Carrier Management
Information System (MCMIS) data from CRs conducted since 1995 on motor
carriers operating in interstate commerce, carriers to which a remedial
directive would apply under this proposal have crash rates that are 87
percent higher than average.
FMCSA selects motor carriers to undergo CRs based in part on data
generated during roadside inspections. FMCSA and enforcement personnel
in States receiving Motor Carrier Safety Assistance Program funds under
49 U.S.C. 31102 enforce motor carrier HOS rules through roadside
inspections and CRs. Unlike CRs, which usually are conducted at a
carrier's principal place of business, roadside inspections are
performed at a fixed or mobile roadside facility. Inspectors may
perform any of six categories, or levels, of inspection. Level I, II,
and III inspections include examination of the driver's HOS compliance,
commercial driver's license, medical certification, and hazardous
materials (HM) requirements. Level I and II inspections include
additional factors such as examination of parts and accessories
necessary for safe operation, motor carrier operating authority and
financial responsibility, and applicable HM inspection items. These
roadside inspections are intended to assess the compliance of a
company's motor vehicles and drivers with FMCSA safety, economic, and
hazardous materials regulations. Where certain serious violations are
discovered, the driver or vehicle may be placed out of service.
In prioritizing among carriers for CRs, FMCSA investigators
consider a number of factors, including whether the carrier has crash
involvement, the carrier's vehicle and driver out-of-service rates,
Safety Status (SafeStat) information system results, the date and
result of the previous CR, non-frivolous complaints the Agency has
received concerning the carrier, and whether the carrier is seeking an
upgrade to its existing safety rating. During CRs, FMCSA or State
safety investigators examine in detail the motor carrier's compliance
with all applicable safety regulations.
In examining HOS records during CRs, safety investigators look at
samples of drivers' RODS, checking for violations, accuracy, and
completeness. It is worthwhile to note that FMCSA's method of selecting
records during the course of a CR has withstood a judicial challenge.
American Trucking Ass'ns v. Department of Transportation, 166 F. 3d 374
(D.C. Cir. 1999). In its decision, the court recognized the distinctive
character of HOS regulations and held that the Agency had acted
rationally in assigning two points within its Safety Fitness Rating
Methodology (SFRM) scheme--a double weighting--for a pattern of HOS
violations. The court stressed the importance of controlling driver
fatigue and the fact that the HOS regulations are the only ones dealing
with driver fatigue. These same patterns of HOS violations are the
focus of the EOBR remedial directives proposed in this NPRM.
During that portion of the CR involving HOS records review, safety
investigators use uniform sampling standards including the number of
drivers to be reviewed, the minimum number of RODS to be checked, and
other factors designed to focus the investigation on areas where there
has been probable noncompliance. The number of drivers whose RODS are
checked varies depending on the size of the carrier (e.g., 0-5 drivers,
all drivers' logs; 6-10 drivers, 5 drivers' logs; 16-50 drivers, 7
drivers' logs; etc.). The minimum number of RODS reviewed for part 395
violations also depends on the carrier's driver population (e.g., 1-5
drivers, 30 x number of drivers; 6-15 drivers,150 RODS reviewed; 6-15
drivers, 210 RODS reviewed). Investigators generally look at RODS for
the 6-month period prior to the CR.
The investigator prepares a CR report for the motor carrier
documenting the sample size used, the number of records reviewed, and
the number of violations discovered under part 395. If the violation
rate for any ``critical'' part 395 regulation (see 49 CFR Part 385 App.
B Sec. VII) is equal to or greater than 10 percent, this pattern of
noncompliance will potentially affect the carrier's safety rating.
Traditionally, the Agency has relied on two of its regulatory
powers to deter HOS violations and obtain motor carrier compliance: (i)
The issuance of civil penalties under 49 U.S.C. 521(b) followed by
enforcement proceedings under 49 CFR Part 386; and (ii) the issuance of
proposed or final ``unsatisfactory'' or ``conditional'' safety ratings
under 49 CFR Part 385. Motor carrier records examined during Agency
CRs, however, indicate that some motor carriers routinely violate the
HOS regulations despite the Agency's use of these enforcement and
compliance tools. Incidents of log falsification continue to be a
significant concern, and civil penalties in particular have come to be
viewed by some carriers--particularly those with significant and
repeated HOS violations--less as a deterrent than simply as a cost of
doing business. FMCSA therefore concludes that additional regulatory
measures are needed to improve HOS compliance of certain motor
carriers.\4\
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\4\ In addition to drawing upon the expertise of FMCSA
enforcement and compliance personnel, the Agency solicited and
received input from State enforcement officials regarding mandatory
EOBR installation for carriers with poor HOS compliance.
Representatives from the Nebraska and Washington State Patrols and
the Connecticut Department of Motor Vehicles served as members of
the Agency's EOBR rulemaking team.
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Proposed Trigger for Remedial Directives
FMCSA proposes that the trigger for an EOBR notice of remedial
directive and proposed unfitness determination be the ``final
determination'' of one or more pattern violations of any Appendix C
regulation, followed by the discovery of one or more pattern violations
of any Appendix C regulation during a CR completed in the 2-year period
subsequent to the closing date of the CR that resulted in the first
final determination. A ``pattern violation,'' for purposes of the
remedial directive, is defined with respect to Appendix C regulations
as a violation rate equal to or greater than 10 percent of the records
reviewed. For example, 25 violations out of 100 records reviewed would
represent a 25 percent violation rate and therefore constitute a
pattern violation.
If the motor carrier failed to install and use the EOBRs, it would
be prohibited from operating in interstate commerce and intrastate
operations affecting interstate commerce. Further, if the motor carrier
were a for-hire carrier, it would have its registration revoked.
[[Page 2373]]
The mandatory EOBR installation period would be for 2 years
following issuance of the remedial directive. The two CRs need not be
consecutive, so long as they occur within the relevant 2-year period.
For the purpose of the remedial directive, FMCSA would focus only on
part 395 HOS violations where noncompliance relates to management and/
or operational controls. These are indicative of breakdowns in a motor
carrier's safety management controls and considered relevant to the
proposed remedial provisions. All violation calculations would be based
on, and all proposed remedial directives would apply to, motor carriers
rather than to individual drivers.
The proposed EOBR remedial directive would be reserved for carriers
whose safety management controls are seriously deficient. FMCSA bases
its EOBR proposal on the Agency's authority under 49 U.S.C. 31144 to
determine motor carrier safety fitness. This invocation of the Agency's
safety fitness authority is in keeping with FMCSA's Comprehensive
Safety Analysis 2010 (CSA 2010), a reform initiative launched in 2004.
The ultimate goal of CSA 2010 is development of an optimal operational
model that will allow FMCSA to focus its limited resources on improving
poor safety performers. For more information about CSA 2010, visit
http://www.[fxsp0]fmsca.[fxsp0]dot.[fxsp0]gov/safety-security/safety-
initiatives/csa2010listening.[fxsp0]htm.
This proposal thus focuses on HOS violations where noncompliance
relates to management and/or operational controls. Violations of only
those regulations listed in proposed new Appendix C to Part 385 will be
counted toward issuance of a remedial directive and proposed unfitness
determination or a notice of potential remedial directive applicability
(NPRDA). The Appendix C regulations consist of all the part 395
regulations that currently appear in Part 385 Appendix B, section VII.
These 24 provisions, which also are classified as ``critical''
regulations under the current rules, are the HOS violations that FMCSA
has determined reflect deficiencies in safety management or operational
controls. (See Part 385, App. B, II(c); 62 FR 60035 at 60044, Nov. 6,
1997.) They are therefore well suited to use as part of the EOBR
remedial directives trigger. In order to allow maximum flexibility for
the work of the CSA 2010 initiative noted previously, however, the
Agency is proposing to duplicate and house these 24 regulations in a
separate Appendix C. FMCSA intends this approach to permit a
significant future revision of the Agency's acute and critical
regulatory scheme, if such a change is deemed appropriate, without
necessitating an additional rulemaking change to the EOBR remedial
directives provisions.
In addition, rather than focusing on single violations, FMCSA is
looking for patterns of noncompliance. The focus on these violations as
a basis for EOBR remedial directives is consistent with the current
safety fitness determination process and logically related to the
structure of current part 385. This management and control aspect is an
appropriate focus for the EOBR remedial program because patterns of
noncompliance with these types of regulations are linked to inadequate
safety management controls and higher than average crash rates. As
stated in Part 385, App. B II(e), ``FMCSA has used patterns of
noncompliance with safety management-related regulations since 1989 to
determine motor carriers' adherence to the Safety fitness standard in
Sec. 385.5.''
Where a number of documents are reviewed, as with the HOS component
of the CR, a pattern of noncompliance can be established when at least
10 percent of the documents examined reflect a violation of any
regulation listed in Appendix C to Part 385. FMCSA believes that motor
carriers with effective safety management controls should be able to
maintain a noncompliance rate of less than 10 percent for the Appendix
C regulations.
FMCSA emphasizes that issuance of a remedial directive would not
preclude the Agency from also imposing appropriate civil penalties on
the carrier for HOS violations, just as all motor carriers would
continue to be subject to civil penalties for HOS violations that do
not rise to the level of a ``pattern.'' Likewise, the Agency's civil
penalty policy under section 222 of the Motor Carrier Safety
Improvement Act of 1999 (Pub. L. 105-159, 113 Stat. 1748) (MCSIA) would
remain in effect for all carriers. Under this policy, as explained in
``Section 222 of the Motor Carrier Safety Improvement Act of 1999;
Clarification of Agency Policy Statement'' (69 FR 77828, Dec. 28,
2004), the Agency imposes a maximum civil penalty on motor carriers
committing three violations of the same regulatory part within 6 years.
In proposing a shorter, 2-year period during which discovery of one or
more pattern violations by the carrier would trigger a remedial
directive, FMCSA intends to supplement, rather than negate, the
Agency's civil penalty policy under MCSIA section 222.
The proposed remedial directives are predicated on pattern
violations of Appendix C regulations discovered during CRs by FMCSA or
State safety investigators. FMCSA considered, but rejected, approaches
for a remedial directives trigger based on roadside inspections or
other non-CR procedures. Far more roadside inspections than CRs are
performed, and these inspections generate a significant volume of HOS
compliance data. However, certain of the Agency's algorithms using
these data, such as the Driver Safety Evaluation Area (SEA) component
of SafeStat scores, incorporate both HOS and some non-HOS violations,
such as commercial driver's license violations. In addition, roadside
inspections are designed to determine the safety status of a driver or
vehicle at a given point in time, not to provide, on the basis of a
single examination, a broad assessment of a motor carrier's general
operations and safety management controls.
CRs, by contrast, are indeed intended to provide a broad assessment
of a motor carrier's general operations and safety management controls.
They are ordinarily conducted at a motor carrier's place of business,
involve larger samples of records, examine multiple vehicles and
drivers' RODS, and typically produce a series of violation findings.
Motor carrier safety ratings, as calculated under the SFRM, are based
largely on CR data. Given the potential for an EOBR remedial directive
to place a serious financial burden on a motor carrier, we believe such
a directive should be issued only on the basis of the broad scope of
operational examination and extensive record review inherent to the CR
process. Although the Agency will continue to compile and use non-CR
data as in the past and may consider cumulative roadside data in the
future, FMCSA is proposing to use only CR-based violations as direct
grounds for issuance of EOBR remedial directives.\5\
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\5\ The Agency would continue to capture and make use of this
valuable roadside input indirectly by using SafeStart results as a
basis for selecting carriers for CRs.
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Additionally, the Agency proposes not to issue a remedial directive
until after the motor carrier has committed a pattern violation of an
Appendix C regulation twice within a 2-year period. FMCSA considered
the option of imposing the EOBR remedial directive after a single 10
percent violation but rejected this alternative because the Agency
believes public safety is best served by placing its focus on repeat
violators of Appendix C regulations. The vast majority of motor
carriers strive to comply with the HOS regulations. The selected, ``2 x
10'' approach would allow the Agency to strengthen its safety oversight
yet avoid
[[Page 2374]]
penalizing carriers that demonstrate overall compliance with the HOS
rules.
As noted earlier, FMCSA is aware of the potential financial burden
the EOBR remedy may place on some motor carriers. By requiring a second
``strike,'' we intend to afford carriers fair warning and an
opportunity to adopt new or additional safety management steps, if that
is their choice, to improve their HOS compliance and possibly avoid
receiving a remedial directive. The two-strike approach is also
intended to work in tandem with the proposed EOBR incentives by
encouraging carriers to install EOBRs voluntarily following the first
final determination that a pattern violation of an Appendix C
regulation has occurred.
The Agency also considered, but rejected, a proposal to raise the
threshold pattern violation rate for Appendix C regulations to 20
percent. A statistical analysis of motor carriers that would have been
affected, over the 3-year period 2003-2005, by a ``2 x 20'' compared
with a ``2 x 10'' trigger scheme showed that the former approach would
have resulted in approximately 55 percent fewer EOBR remedial
directives (577 versus 1,288). As previously noted, MCMIS data indicate
that carriers to which a remedial directive would apply under the ``2 x
10'' proposal have a significantly higher crash rate than the average
crash rate for interstate carriers that have had a CR since 1995. The
Agency believes that significantly lowering the EOBR remedial
installation rate among such carriers by adoption of a higher, ``2 x
20,'' threshold would represent an unwarranted missed opportunity to
improve motor carrier safety.
Finally, the Agency considered and rejected the option of requiring
three 10 percent pattern violations. We determined this protracted
trigger, in combination with a 2-year window, would not result in
sufficient numbers of EOBR installations to effectively address the
problem of recurring noncompliance. Projections of the anticipated
findings of pattern violations of Appendix C regulations do not support
the use of a 3-year or longer window.\6\ As noted previously, the 2-
year period is significantly shorter than the 6-year period that the
Agency uses for its civil penalty policy under section 222 of MCSIA.
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\6\ Of 2,457 poor Driver Inspection Indicator motor carriers
(those in the poorest 25 percent) that underwent two or more CRs
during 1999-2005, 2,386 had their two CRs within a 24-month period.
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By establishing a 2-year period within which the two CR-based
pattern violations must occur, the Agency would create a window wide
enough for FMCSA or State enforcement officials to perform at least two
CRs, at current CR rates, on over 90 percent of carriers with indicia
of poor driver safety. At the same time, a potential 2-year interim
between the Agency's initial findings and its issuance of remedial
directives would be short enough to preserve the directives' efficacy
in remedying repeated noncompliance. The proposed 2-year window for
Appendix C violations under the EOBR remedial installation provision
should, in addition to its advantages as a compliance improvement
strategy, impose lower recordkeeping and related administrative costs
on motor carriers than the comparable ``multi-strike,'' 6-year period
applied in the civil penalty context under section 222 of MCSIA.
The proposed 2-year window would be measured from the closing date
of the first CR in which one or more pattern violations of any Appendix
C regulation were discovered. If there is a final determination of any
pattern violation of an Appendix C regulation, and if, within 2 years
following the first CR, the carrier has any subsequent CRs in which one
or more pattern violations of any Appendix C regulations are
discovered, the carrier would be subject to issuance of a remedial
directive and proposed unfitness determination.
A ``final determination,'' for purposes of part 385 subpart F,
would include: (1) An adjudication under new part 385 subpart F
upholding an NPRDA or remedial directive and proposed unfitness
determination; (2) the expiration of the period for filing a request
for administrative review of an NPRDA or remedial directive and
proposed unfitness determination under subpart F; or (3) the entry of a
settlement agreement stipulating that the carrier is subject to
mandatory EOBR installation, use, and maintenance requirements.
Following the first CR in which any pattern violation of an
Appendix C regulation is discovered, the Agency would issue the carrier
full and fair notice that a repeat of that finding during the
subsequent 2 years will result in the issuance of an EOBR remedial
directive. (49 CFR 385.507) The NPRDA would afford carriers desiring to
avoid a mandatory installation directive an opportunity to improve
their HOS compliance practices. It would explain the future
circumstances that would trigger issuance of a remedial directive and
describe generally the CR findings that prompted the issuance of the
NPRDA.
Installation, Use, and Maintenance of Mandatory EOBRs
Under FMCSA's proposal, motor carriers subject to a remedial
directive would be required to install Sec. 395.16-compliant devices
in all of their CMVs. These carriers would be required to use the EOBRs
to record their drivers' HOS, review the EOBR records for HOS
compliance, and take appropriate actions with respect to drivers found
in violation. They also would be required to submit documentation
demonstrating their continued use of the EOBRs for these purposes.
Failure or refusal to use EOBRs in this manner during the required
period or to document such use would subject the motor carrier to an
immediate out-of-service order. Carriers also would be required to
maintain the devices in good working order and to repair or replace any
malfunctioning devices within 14 calendar days. During any time an EOBR
is not functioning, and a spare device is not available, the Agency
would require preparation of a paper RODS. Failure to maintain the
devices properly could likewise subject the carrier to an immediate
out-of-service order applicable to some or all of its vehicles and
operations.
Following the same schedule currently applicable to the issuance of
proposed and final safety ratings, motor carriers potentially subject
to remedial directives would have 60 days (45 days for motor carriers
transporting passengers or placardable quantities of hazardous
materials) after the date of the notice of remedial directive to
install Sec. 395.16-compliant EOBRs in their CMVs and to submit proof
of installation to FMCSA. The 45/60-day period would commence upon
FMCSA's issuance of an NPRDA or a notice of remedial directive and
proposed unfitness determination following the CR. During this period
the carrier could seek administrative review of the CR findings under
new proposed Sec. 385.517, but no reviews based on corrective action
(comparable to current Sec. 385.17) would be permitted.
The proposal would require a motor carrier subject to a remedial
directive to verify EOBR installation in all of the carrier's CMVs
within the 45/60-day period discussed previously. Verification could be
accomplished either through a visual and operational inspection of the
carrier's CMVs by FMCSA or State enforcement personnel or by submission
of required documentation to FMCSA. The documentation would consist of
receipts for device purchases and installation work, if available,
digital or
[[Page 2375]]
other photographic evidence of the installed devices, and documentation
linking the EOBR serial number with the vehicle identification number
of the CMV into which the device has been installed. If no receipt was
submitted for an installed device or the installation work, the carrier
would be required to 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.
Either FMCSA or State enforcement personnel would perform
inspections to assess whether the EOBRs were properly installed and are
operating correctly. Carriers issued remedial directives could request
these inspections instead of submitting the above documentation. The
proposed rule would revise 49 CFR Part 350 to add a new requirement
that States receiving Motor Carrier Safety Assistance Program funds
under 49 U.S.C. 31102 provide such inspection services.
FMCSA proposes that those carriers directed to install EOBRs in
their CMVs be required to use and maintain the devices in their
vehicles for 2 years. The Agency believes this period would allow
affected drivers and motor carrier employees to become familiar with
the devices and enable the carrier to begin realizing improved HOS
compliance. The Agency also believes that, for carriers wishing to
remove the devices and return to use of paper RODS as soon as possible,
a 2-year installation period is not unduly harsh. The Agency requests
comment on the appropriate duration of mandatory EOBR installation,
use, and maintenance under the proposed remedial directives.
Scope
The remedial directives provisions of the proposed rule would apply
to all carriers subject to the requirements of part 395, as specified
in section 395.1 The regulations listed in Appendix C incorporate all
applicable revisions to the hours-of-service rules published in the
Federal Register on August 25, 2005 (70 FR 49978). All revisions to the
critical part 395 regulations (those listed in Part 385, App. B,
section VII) that were effected in the August 25, 2005, final rule are
included in the proposed Appendix C to Part 385. Thus, pattern
violations of any Appendix C regulations arising from violations of the
new sleeper berth, short-haul, or other revised HOS provisions could
result in issuance of an NPRDA or remedial directive and proposed
unfitness determination through citation of the appropriate regulation
in Appendix C.
Limited Exemption for AOBRD Users
If a motor carrier currently using monitoring devices that are not
compliant with new Sec. 395.16 is issued an EOBR remedial directive,
the motor carrier generally would be required to install, use, and
maintain devices meeting the Sec. 395.16 requirements. If a carrier
with AOBRDs installed in its CMVs demonstrated a pattern of Appendix C
regulatory violations sufficient to result in a remedial directive, the
carrier's use of the older generation devices would demonstrably have
failed to remedy its safety management deficiencies. The Agency
therefore starts from the position that the same remedial directive
should be issued to an AOBRD-using carrier as to one with no devices
installed, and the carrier would be required to install EOBRs compliant
with proposed new Sec. 395.16.
In addition, one goal of this proposed rulemaking is to encourage
migration, over time, toward use of the newer generation devices. These
devices would be designed to meet performance standards that FMCSA
concludes are more appropriate for HOS monitoring than the standards
adopted under Sec. 395.15 in 1988. Further, the increased uniformity
of performance gained by phasing out the older devices would likely
make enforcement and carrier personnel more familiar with the
monitoring devices. This should improve compliance and enforcement
efficiencies.
Notwithstanding these considerations, FMCSA appreciates that some
carriers have made a significant investment in monitoring devices that
are compliant with current regulations. Indeed, FMCSA in the past has
encouraged carriers to install and use these devices. Moreover, the
cause of the carrier's persistent HOS noncompliance may be unrelated to
the additional features that devices compliant with Sec. 395.16 offer
over the Sec. 395.15-compliant AOBRDs. The problem could be more
managerial than technical, and use of newer devices might not be the
answer.
FMCSA therefore proposes to suspend enforcement of otherwise
applicable remedial directives, under certain conditions and at FMCSA's
discretion, where motor carriers had installed devices compliant with
Sec. 395.15 (or pursuant to waiver of part of all of Sec. 395.15) at
the time of the CR immediately preceding the remedial directive. Motor
carriers seeking this non-enforcement would be required to apply to
FMCSA in writing and to demonstrate that the carrier and its employees
understand how to use the AOBRDs and the information derived from them.
The carrier's HOS compliance would be subject to strict FMCSA
oversight, and the Agency could reinstate the remedial directive at any
time if additional significant HOS noncompliance were discovered. This
proposed exemption would not apply to vehicles manufactured more than 2
years after the effective date of the proposed rule.
Revised Safety Fitness Determinations Under Part 385
Section 4009 of TEA-21 amended 49 U.S.C. 31144 to require the
Secretary of Transportation to maintain, by regulation, a procedure
under 49 U.S.C. 31144(b) for determining the safety fitness of an owner
or operator of CMVs.\7\ The Agency implemented this requirement in its
Safety Fitness Procedures final rule, published on August 22, 2000 (65
FR 50919). This rule provided that the Agency will use an
``unsatisfactory'' rating assigned under the SFRM in part 385 as a
determination of ``unfitness.''
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\7\ Prior to the 1998 TEA-21 amendment, 49 U.S.C. 31144 applied
to ``owners and operators of commercial motor vehicles, including
persons seeking new or additional operating authority as motor
carriers.'' As amended, the section now refers to these entities as
``owner[s] or operator[s]'' of commercial motor vehicles, but not as
``motor carriers.'' Although the congressional committee reports
provide no explanation of this change, FMCS believes the change was
made to eliminate an anomaly. Under 49 U.S.C. chapter 311, the term
``motor carrier'' appeared only in section 31144; it was not
included in the section 31132 definitions. The Motor Carrier Safety
Act of 1984, from which chapter 311 was derived, used the
jurisdictional term ``commercial motor vehicle.'' ``Motor carrier''
and ``motor private carrier'' were defined separately in those
provisions of title 49 of the United States Code administered by the
Interstate Commerce Commission; the definition are now codified at
49 U.S.C. 13102. The FMCSRs have long treated owners and operators
of CMVs as ``motor carriers'' (see 49 CFR 390.5). The regulatory
text of 49 CFR Part 385 uses the term ``motor carrier'' as
equivalent to ``owners and operators'' specified by amended section
31144.
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This NPRM would amend the safety fitness standard at 49 CFR 385.5
and make necessary modifications to the safety fitness determination
procedures.\8\ The amended fitness standard would provide an additional
requirement that CMV owners and operators must meet, independent of
their achieving a ``satisfactory'' or ``conditional'' safety rating, in
order to demonstrate safety fitness. The Agency's three-part safety
rating scheme, as set
[[Page 2376]]
forth in the SFRM, would remain unchanged.
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\8\ Current regulations contemplate such revisions to the
fitness determinations, and the SFRM ``has the capability to
incorporate regulatory changes as they occur.'' Part 385 App. B VI
(a).
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Under the SFRM, the Agency assigns points to motor carriers within
six distinct analytical categories, or ``factors,'' based on the number
of regulatory violations and level of compliance with other criteria,
as determined in a CR. The ratings for the six factors are then entered
into a rating table that establishes the motor carrier's overall safety
rating of ``satisfactory,'' ``conditional,'' or ``unsatisfactory.''
Currently, a carrier must maintain either a ``satisfactory'' or
``conditional'' safety rating to continue operating in interstate
commerce and intrastate operations affecting interstate commerce. A
carrier issued a proposed ``unsatisfactory'' (or ``conditional'')
rating may challenge the rating through an administrative review under
Sec. 385.15; or the carrier may seek to have the proposed rating
changed based upon corrective action under Sec. 385.17. Unless a
proposed ``unsatisfactory'' rating is changed under Sec. 385.15 or
Sec. 385.17, however, the carrier is prohibited from operating a CMV
on the 61st day (or the 46th day for carriers transporting passengers
or placardable quantities of hazardous materials) after the date FMCSA
issued the proposed ``unsatisfactory'' safety rating. (49 CFR
385.13(a)) Pursuant to section 4104 of SAFETEA-LU, the Agency will
revoke the registration of a motor carrier prohibited from operating in
interstate commerce, and in intrastate operations affecting interstate
commerce, for failure to comply with the safety fitness requirements of
49 U.S.C. 31144. (49 U.S.C. 13905(e))
Nothing in this proposal would change any of the above requirements
or procedures. The current procedures for calculation of motor carrier
safety ratings, including the three-tier SFRM, would remain unchanged.
Motor carriers would continue to be assigned ``satisfactory,''
``conditional,'' or ``unsatisfactory'' safety ratings under Sec. Sec.
385.7, 385.9, and the SFRM set forth in Appendix B of Part 385, and
carriers rated ``unsatisfactory'' would continue to be prohibited from
operating a CMV and engaging in contracts with Federal agencies as
provided in Sec. 385.13. FMCSA would continue to issue notifications
of safety ratings under Sec. 385.11 \9\ and to perform administrative
reviews under Sec. 385.15 and corrective-action reviews under Sec.
385.17.
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\9\ The proposed rule would amend the section heading of Sec.
385.11 to clarify that the notices issued pursuant to that section
relate only to a motor carrier's ``safety rating'' under Sec.
385.5(a) and not to the Agency's ``safety fitness determination''
regarding the carrier, which encompasses both Sec. 385.5(a) and
(b).
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However, as previously noted, FMCSA is proposing to revise the
safety fitness standard in Sec. 385.5. If a carrier were operating
under an EOBR remedial directive, an overall safety rating of
``satisfactory'' or ``conditional'' under the SFRM, while still
necessary to meet the safety fitness standard, would no longer be
sufficient. A second condition would also have to be met--that the
carrier be in compliance with all applicable requirements of part 385
subpart F, Remedial Directives. Of course, in the absence of a notice
of remedial directive and proposed determination of unfitness under
subpart F, the Agency's notice of proposed or final safety rating would
function, as it currently does under Sec. 385.11, as the notice of
safety fitness determination.
Following a CR resulting in findings that potentially subject the
motor carrier to a remedial directive, the carrier would be issued a
written notice of remedial directive based upon the pattern of
violations of Appendix C regulations. The notice of remedial directive
would require the carrier to install EOBRs in all of its CMVs, provide
proof of installation within 60 days after issuance of the notice of
remedial directive (45 days for hazmat and passenger carriers), and
provide such other periodic reports as the FMCSA Enforcement Division
determines are appropriate. The notice of remedial directive would
explain how the carrier could challenge the directive and the time
limits within which challenges could be filed.
The proposed unfitness determination would advise the motor carrier
that if it failed or refused to install Sec. 395.16-compliant EOBRs
and to provide proof of installation as required under the remedial
directive, FMCSA would deem the carrier unfit on the 60th day (45th day
for hazmat and passenger carriers) after issuance of the notice, and
the carrier would be prohibited from operating in interstate commerce,
and in intrastate operations affecting interstate commerce, on the 61st
(or 46th) day. It would also advise the carrier that, if it was subject
to the registration requirements under 49 U.S.C. 13901, its
registration would be revoked on the 61st (or 46th) day for failure or
refusal to comply with the remedial directive.
If the carrier installed the EOBRs in all of its CMVs and supplied
FMCSA with timely and necessary proof of installation, then the
proposed ``unfitness'' determination would be conditionally rescinded,
provided the carrier met all other terms and conditions of the remedial
directive. The directive would remain in effect for a period of 2 years
following the date of issuance. If a carrier failed or refused to use
EOBRs for HOS compliance during the required period, or failed to
document such use sufficiently, the proposed unfitness determination
would be reinstated, and the carrier would be subject to an immediate
out-of-service order. A carrier could lift the prohibition on its
operations at any time by providing proof that the devices had been
installed and complying with the other terms and conditions of the
remedial directive.
Appeal Rights and Administrative Review
If a motor carrier believed the Agency had committed an error in
issuing either an NPRDA or a notice of remedial directive and proposed
unfitness determination, the carrier could request an administrative
review under Sec. 385.517. Challenges to the NPRDA or notice of
remedial directive and proposed unfitness determination should be
brought within 15 days of the date of the NPRDA or notice of remedial
directive. This timeframe would allow FMCSA to issue a written decision
before the prohibitions in Sec. 385.519 go into effect. The filing of
a request for administrative review under Sec. 385.517 within 15 days
of the notice of remedial directive would stay the finality of the
proposed unfitness determination until the Agency had ruled 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. However, within 90 days of the date of issuance of the
NPRDA or notice of remedial directive and proposed unfitness
determination, the carrier may still file a request for administrative
review, although if such request is not filed within the first 15 days
the Agency would not necessarily issue a final determination before the
prohibitions go into effect. Challenges to issuance of the remedial
directive and proposed unfitness determination would be limited to
findings of error relating to the CR immediately preceding the notice
of remedial directive.
The proposed rule would 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 proposing non-
substantive revisions to Sec. 385.15(a), however, solely to correct
two typographical errors.
A motor carrier subject to a remedial directive would not be
permitted to request a change to the remedial
[[Page 2377]]
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 would take
into account in conditionally rescinding a proposed unfitness
determination under subpart F would be the carrier's installation of
Sec. 395.16-compliant EOBRs and satisfaction of the other conditions
of the remedial directive. The Agency may, nevertheless, consider a
carrier's installation and use of EOBRs as ``relevant information''
that could 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 would have no effect, however, on an
otherwise applicable NPRDA, remedial directive, or proposed unfitness
determination. A safety rating upgraded to ``conditional'' would be
necessary, but not sufficient, to meet the safety fitness standard in
proposed Sec. 385.5.
Continuing EOBR Use, Maintenance, and Documentation Requirements
Motor carriers would have up to 60 days (45 days for hazmat and
passenger carriers) following issuance of the notice of remedial
directive to install EOBRs compliant with Sec. 395.16. Once a motor
carrier had installed the devices, the carrier would be required to
maintain the devices in good working order, to document its drivers'
use of the devices for recording hours of service, and to review the
EOBR records of its drivers for HOS compliance. This documentation
requirement would be satisfied by the carrier's ability to present,
upon demand, electronic RODS in the format prescribed in proposed new
Appendix A to Part 395. If, following receipt of an EOBR remedial
directive, a carrier were discovered to be operating without a
functioning Sec. 395.16-compliant device in one or more of its CMVs,
the carrier would be subject to an immediate out-of-service order until
it installed the devices.
Example Remedial Directives Scenarios
FMCSA offers the following four scenarios as examples of how the
proposed remedial directive procedures would operate:
Scenario 1
During a 2007 CR on a motor carrier of non-hazmat property (not a
hazmat or passenger carrier) \10\ an FMCSA safety investigator finds 25
out of 150 logbooks examined reflect a violation of Sec. 395.3(a)(2)
(requiring or permitting driving after the end of the 14th hour after
coming on duty), i.e., a pattern violation of an Appendix C regulation.
FMCSA issues an NPRDA warning the carrier that it will be subject to an
EOBR remedial directive if another CR within 2 years again finds a
pattern violation of any Appendix C regulation. The motor carrier does
not challenge the issuance of the NPRDA. A subsequent CR of the carrier
in 2008 discloses a 14 percent violation rate for Sec. 395.8(e) (false
logs), another pattern violation of an Appendix C regulation. The
carrier is issued a notice of remedial directive to install EOBRs
within 60 days and provide proof of installation. Simultaneously, the
carrier is issued a proposed unfitness determination. The carrier fails
or refuses to install the device(s), or fails to provide proof, and is
ordered to cease interstate operations, and intrastate operations
affecting interstate commerce, on the 61st day after issuance of the
notice of remedial directive and proposed unfitness determination.
Moreover, because the carrier is required to be registered under 49
U.S.C. 13901, its registration is revoked on the 61st day.
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\10\ All four scenarios assume the motor carrier is not a
carrier of passengers or hazardous materials. Thus, 60-day periods,
rather than 45-days periods, would apply under Sec. Sec. 385.11,
385.13, 385.15 and 385.17.
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Scenario 2
As in Scenario 1, a CR in 2007 discloses a pattern violation of an
Appendix C regulation. Because, under Part 385 Appendix B Sec. II (h),
that same HOS violation also constitutes a ``pattern of noncompliance
with a critical regulation relative to Part 395,'' it is assessed two
points (and an ``unsatisfactory'' Factor Rating) under the Operational
Factor of the SFRM, just as it would be under the current rule. The
carrier thus receives an overall safety rating of ``conditional'' and
is issued an NPRDA, as in Scenario 1. However, in this scenario the
carrier requests an administrative review of both the NPRDA, under
Sec. 385.517, and the ``conditional'' safety rating under Sec.
385.15. The carrier prevails on its challenge in the administrative
review under Sec. 385.15 but loses its challenge under Sec. 385.517.
The Agency changes the carrier's overall safety rating to satisfactory.
However, the NPRDA has not been rescinded and becomes a final
determination. In 2008, FMCSA conducts a second CR, which also finds a
pattern violation of an Appendix C regulation. The Agency issues the
carrier a notice of remedial directive and proposed unfitness
determination based upon the prior final determination under Sec.
385.517.
Scenario 3
A CR in 2007 finds a 10 percent or greater violation rate for an
Appendix C regulation (which is also a critical HOS violation), plus
multiple violations of other FMCSRs, resulting in a proposed overall
safety rating of ``unsatisfactory.'' As in scenarios 1 and 2, FMCSA
also issues the carrier an NPRDA. The carrier takes immediate steps to
improve its safety management practices and within 15 days requests a
safety rating change under Sec. 385.17. The carrier does not challenge
the NPRDA, however. A second CR within 60 days of the first finds
improved regulatory compliance, including no HOS violations, and FMCSA
upgrades the carrier's safety rating to ``conditional.'' A third CR in
2008, however, again finds a 10 percent or greater violation rate for
an Appendix C regulation. The carrier is issued a notice of remedial
directive, ordering installation of EOBRs within 60 days in all of the
carrier's CMVs, and a proposed determination of unfitness. The carrier
installs the devices and provides FMCSA with sufficient proof of
installation. The proposed determination of unfitness is conditionally
rescinded, and the carrier continues to operate in interstate (and
intrastate) commerce.
Scenario 4
As in Scenario 3, a CR in 2007 discloses a 10 percent or greater
violation rate of an Appendix C regulation, plus such other FMCSR
violations that the carrier is assigned a proposed overall safety
rating of ``unsatisfactory'' under Sec. 385.11. The carrier again is
issued an NPRDA in accordance with Sec. 385.507(a). The carrier
immediately initiates safety management improvements and, in accordance
with Sec. 385.17, within 15 days from the date of the notice of
proposed safety rating requests a change to its safety rating based on
corrective action. The Agency begins another CR 43 days after the date
of the notice of proposed safety rating, which shows improvements in
non-HOS areas but again discloses a 10 percent or greater violation
rate for an Appendix C regulation. Based upon the motor carrier's
improvements in the other safety areas, FMCSA upgrades the overall
safety rating to ``conditional'' and the carrier continues in
operation. At the same time, because of the HOS violations discovered
in the second CR, the Agency issues a notice of remedial directive and
proposed determination of
[[Page 2378]]
unfitness. The carrier fails to install EOBRs within 60 days following
the second CR, and it also fails to seek administrative review of the
remedial directive in accordance with Sec. 385.517. The carrier is
therefore placed out of service on the 61st day.
C. Incentives
Background
FMCSA recognizes that many motor carriers are deterred from
voluntary installation of EOBRs because they believe this would place
them at a competitive disadvantage to carriers not using EOBRs. Motor
carriers believe there is an ``uneven playing field'' in which those
with EOBRs are held to a higher level of compliance. Qualcomm described
this perceived inequity in its docket comments: ``Qualcomm contends
that in general the industry's reluctance to employ technology to
verify compliance is not based in being adverse to use of technology,
but in being adverse to compliance enforcement not being conducted on a
level playing field.''
We believe this concern may have some merit. Because of the
extensive supporting documentation EOBRs are capable of producing, even
minor violations of the HOS regulations can be more easily detected if
the carrier uses EOBRs. In fact, these violations are often identified
in automated reports that motor carriers can set up as part of their
EOBR monitoring systems. This suggests EOBRs do what they are intended
to (and would accomplish under the remedial provisions discussed
previously)--make it more difficult to exceed the HOS limitations of
the FMCSRs.
The inability to conceal even minor HOS violations can increase the
chances of receiving a less than satisfactory safety fitness rating in
the event of a CR--which in turn could hinder the carrier's ability to
compete. Among other things, a less than satisfactory safety rating
prevents the carrier from maintaining self-insurance and may prevent it
from maintaining contracts with major shippers. Civil penalties under
49 U.S.C. 521(b)(2) may also be imposed for violations discovered, even
when the safety rating is unaffected.
FMCSA believes these fears of receiving an adverse safety fitness
rating as a consequence of EOBR use may be compounded by motor carrier
industry concerns with Agency policies and procedures for assigning
safety fitness ratings. These concerns are long-standing. In
particular, many motor carriers believe the Agency's HOS sampling
techniques during CRs should be random across all areas of a carrier's
operation. Instead, FMCSA's procedures for CRs direct safety
investigators to focus first on known problem areas and drivers. FMCSA
takes this approach because it is in the interest of public safety to
focus the Agency's limited resources on drivers most likely to be in
violation of the regulations. If the number of HOS violations
discovered using FMCSA's focused sampling policy equals or exceeds 10
percent of the records reviewed, the motor carrier is automatically
assigned a proposed ``conditional'' safety fitness rating. Thus, a
carrier's overall safety fitness rating can be adversely affected by
FMCSA's reviewing only operational areas already identified as
problematic.
ATA unsuccessfully challenged the Agency's HOS review techniques in
1997, arguing that the Agency's CR procedures ``[l]ack standards for
ensuring that only statistically reliable samples of driver logs and
other carrier records are relied upon in safety CRs. This deficiency
would result in a safe carrier receiving an unwarranted adverse safety
rating and having to bear the heavy burdens that accompany such a
rating.'' [American Trucking Ass'ns, Inc. v. U.S. Dept. of Transp., 166
F.3d 374 (D.C. Cir. 1999)]. FMCSA's predecessor Agency, FHWA,
successfully defended the existing rating and sampling techniques
against this challenge by citing the safety benefits of focusing Agency
resources on the drivers and vehicles most likely to be in regulatory
violation. In its final rule, ``Safety Fitness Procedure; Safety
Ratings,'' FHWA had clarified the purpose of a CR: ``The overall safety
posture of the motor carrier is not being measured during the CR,
rather the adequacy of the carrier's safety management controls is
being assessed pursuant to 49 CFR part 385.'' (62 FR 60035 at 60039,
Nov. 6, 1997)
Despite these reassurances, many in the motor carrier industry
believe there nevertheless exists a public perception, with resulting
consequences, that the safety fitness rating measures a carrier's
overall safety posture, as opposed to the efficacy of its safety
management controls. We believe some motor carriers may be more willing
to voluntarily install EOBRs if, under certain conditions, FMCSA
offered the carrier incentives to make this safety commitment.
Proposed Incentives
1. As indicated previously, FMCSA conducts focused sampling of
carrier HOS records during CRs and believes this approach is in the
best interest of public safety. FMCSA's routine CR procedures call for
FMCSA or State safety investigators to focus their sample of HOS
records on the RODS of drivers involved in interstate recordable
crashes, drivers placed out of service for hours-of-service violations
during roadside inspections, drivers discovered to have poor driving
records through Commercial Driver's License Information System checks,
recently hired drivers, and drivers having a high probability of
excessive driving. This procedure makes efficient use of staff
resources and helps ensure the CR report clearly identifies known
problem areas for corrective action and attention by motor carrier
management. We intend to continue this protocol as a standard operating
procedure for motor carriers using traditional paper RODS.
However, when motor carriers voluntarily install EOBRs, the HOS
portion of a CR can be much more efficient and less resource intensive
than the review of a carrier using traditional paper RODS and
supporting documents. In fact, the efficiency of the review of EOBR
records for 11-, 14-, and 70-hour HOS violations can often be improved
by use of the motor carrier's ``exception reports,'' which allows more
time to review records for accuracy and falsification. FMCSA therefore
proposes an alternative approach to CRs and the issuance of safety
fitness ratings that would be employed in limited instances as an
incentive, strictly and solely for motor carriers that voluntarily
install, use and maintain EOBRs meeting the requirements of proposed
Sec. 395.16, and for owner-operators leased to such carriers. This
proposed approach to HOS records review during CRs would not be
available to carriers using AOBRDs compliant with Sec. 395.15.
Under the Agency's proposed approach, the first course of action
would be to conduct the HOS portion of the CR using standard, focused
sampling policies and procedures and taking into account known
violations of critical part 395 regulations. If the focused sample of
HOS records resulted in a 10 percent or greater violation rate, then a
separate random sample of HOS records would be selected for review
based upon the minimum sample size recommended in FMCSA's Field
Operations Training Manual. The results of both samples, focused and
random, would be cited on the CR report, but only the random sample
results would be used to assign the carrier a safety fitness rating
under part 385. This incentive would not be available to motor carriers
and owner-operators that have been issued a remedial directive to
install, use, and maintain EOBRs.
[[Page 2379]]
FMCSA believes this random review incentive for motor carriers
voluntarily using EOBRs would mitigate industry concerns that currently
tend to discourage EOBR use. FMCSA believes that, over time, widespread
use of EOBRs will improve HOS compliance and reduce fatigue-related
crashes. This incentive, which will foster broader EOBR use within the
industry, is thus in keeping the Agency's mission of promoting motor
carrier safety. At the same time, by continuing to require safety
investigators to perform a focused sample of HOS records as the first
step in a CR, FMCSA would meet its initial responsibility to detect and
respond to known violations. The random review incentive would apply
only to carriers voluntarily installing and using EOBRs, not to
individual drivers.
FMCSA emphasizes that the Agency would continue to bring civil
penalty enforcement cases against both drivers and carriers for HOS
violations discovered during the initial logbook analysis, even though
that analysis will not be used for purposes of determining the
carrier's safety rating. The responsibility for assuring HOS compliance
lies with both the carrier and the driver, and FMCSA would therefore
continue to bring enforcement cases against both carriers and drivers
for violations discovered during the initial focused sample analysis.
These findings would be entered into the Agency's SafeStat system and
would increase the probability of additional CRs for the carrier. FMCSA
believes the adverse financial consequences, the negative SafeStat
data, and the increased likelihood of undergoing additional compliance
reviews would continue to give the carrier an incentive to correct any
HOS problems cited on the CR report.
FMCSA seeks public comment on this issue. We are particularly
interested in commenters' views on whether the proposed approach would
provide motor carriers with incentives to voluntarily install EOBRs.
2. As an additional incentive to promote the installation and use
of EOBRs by motor carriers, the Agency is proposing a new 49 CFR 395.11
to provide partial relief, for carriers that voluntarily install a
device compliant with Sec. 395.16, from the supporting documents
requirements under 49 CFR 395.8(k). EOBRs meeting the requirements of
Sec. 395.16 produce regular time and CMV location position histories
sufficient to verify adequately a driver's on-duty driving activities.
Motor carriers voluntarily maintaining the time and location data
produced by Sec. 395.16-compliant EOBRs would need to maintain only
such additional supporting documents as are necessary to verify on-duty
not-driving activities and off-duty status. The proposed Sec. 395.11
would not provide a blanket exemption from all supporting documents
requirements because, even for carriers using EOBRs, some additional
supporting documentation (e.g., driver payroll records, fuel receipts)
is still necessary to verify on-duty not-driving activities and off-
duty status. The proposed incentive would, however, significantly
reduce the volume of required supporting documents for those carriers
voluntarily installing EOBRs. This incentive would not be available to
motor carriers subject to remedial directives to install, use, and
maintain EOBRs under part 385 subpart F.
FMCSA seeks comment on this proposal as well. The Agency issued a
supplemental notice of proposed rulemaking concerning HOS supporting
documents on November 3, 2004 (69 FR 63997) and anticipates publication
of the final rule in the near future. Under that rule, motor carriers
may, in accordance with the exemption procedures in part 381, seek
FMCSA approval to meet the Sec. 395.8(k) requirements by using
electronic systems that incorporate GPS or other electronic location-
referencing and tracking technology. As noted in the section titled
Incentives To Promote EOBR Use, the Agency will consider public
comments to today's NPRM in determining whether adjustments to the
supporting documents exemption procedures may be necessary. FMCSA
requests public comment on this proposed incentive and the random
sample incentive discussed above.
3. The Agency is interested in identifying other incentives under
which carriers could be relieved of regulatory burdens made unnecessary
by the direct or indirect safety benefits that EOBR technology
provides. Such incentives could therefore raise the productivity of
both carriers and drivers safely and without impairing driver health.
We therefore solicit comments and suggestions about other possible
incentives in addition to the two identified. Because of the Agency's
limited experience with the benefits of EOBR technology, we request any
evidence demonstrating that voluntary use of EOBRs could mitigate
safety risks associated with extended driving or on-duty time, such
that carriers using EOBRs might be afforded added scheduling
flexibility under the HOS rules. The Agency seeks information, for
example, on whether the time savings that drivers are likely to achieve
from EOBR use (see section 13.3 above), or other safety and driver
health benefits inherent in EOBR technology, would provide a sufficient
basis for the Agency to allow drivers using the devices to extend their
14-hour driving window under 49 CFR 395.3(a)(2). Would using an EOBR
reduce driver fatigue so that relief could be afforded under the
sleeper berth provisions in 49 CFR 395.1(g)(1)? Likewise, would a motor
carrier's voluntary use of EOBRs provide sufficient assurance of
compliance with HOS regulations that FMCSA could safely forgo review of
particular segments of the carrier's operations during a compliance
review? We encourage both industry and safety groups to provide
recommendations that will enable FMCSA to craft a rule that takes full
advantage of EOBR technology in the safety program.
VI. 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 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 that, although this proposed rule would not
have an annual effect of $100 million or more, it is a 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 compliance.
We have therefore conducted a Regulatory Impact Analysis (RIA) of the
costs and benefits of this NPRM. The
[[Page 2380]]
RIA is summarized below. The full analysis is available in the docket.
The RIA examined three options, which differ based solely on the
number and type of regulated entities that would be subject to
mandatory EOBRs. Under the first option, the entire interstate trucking
population would be required to use EOBRs, including those vehicles and
drivers involved in short-haul (SH) and long-haul (LH) operations
subject to HOS regulation. The second option was all LH trucks and
drivers operating in interstate commerce. The third option was to
mandate EOBR use for a relatively small population of companies and
drivers with a recurrent HOS compliance problem, the ``2 x 10''
entities described under the Remedies section of this proposal. Owner-
operators leased to other motor carriers are covered under the leasing
carrier.
Based on a review of CR data, FMCSA estimated that approximately
465 motor carriers would be affected by the third option each year.
After the first year, therefore, FMCSA estimates that at any given time
about 930 carriers would be using EOBRs the Agency had required them to
install. We estimate these carriers to have approximately 16,000 power
units and 17,500 drivers.
FMCSA gathered cost information from EOBR vendors. Because there
was significant variation in costs among vendors, the analysis included
costs for high, median, and low-cost EOBR devices. The annualized costs
of purchasing, installing, and operating an EOBR were estimated to
range from $534 to $989 per power unit. We estimated costs on an
annualized basis on a 10-year horizon, with replacement of EOBR units
at the end of their useful life (3 or 5 years, depending on the
device). Training time costs for drivers, back-office staff, and State
enforcement personnel were estimated across a range--from a half-hour
to 3 hours for drivers and 2 to 12 hours for back-office staff. We
estimated State inspectors would receive 8 hours of training. We also
estimated offsetting cost savings on paper log purchase, use,
processing, and storage.
In estimating net benefits, we also considered the cost to carriers
of achieving compliance with the HOS as a result of EOBR use. In
section 6.4 of the full RIA, the results of the benefit-cost analysis
are shown with these costs both included and excluded.
We assessed safety benefits of EOBR use by estimating reductions in
HOS violations and resulting reductions in fatigue-related crashes.
Other, non-safety health benefits for drivers, as a result of decreased
driving time, were not quantified in this analysis. Possible negative
health effects of being monitored were also discussed but not
quantified. The impacts of incentives offered to increase EOBR use were
not quantified.
The estimates of the total net benefits for each of the three
options are presented in Table 3.
Table 3.--Annualized Net Benefits
[Millions]
----------------------------------------------------------------------------------------------------------------
Option 3:
Option 1: LH Option 2: LH recurring
and SH only noncompliant LH
----------------------------------------------------------------------------------------------------------------
High Cost Estimate............................................. ($3,690) ($930) ($7.53)
Median Cost Estimate........................................... (2,142) (355) (1.66)
Low Cost Estimate.............................................. (1,846) (264) 0.61
----------------------------------------------------------------------------------------------------------------
In sum, options 1 and 2 show negative net benefits for all three of the
cost estimates, though the magnitudes of the negative net benefits vary
with the cost assumptions. For Option 3, cost estimates for the EOBR
devices determine whether there are net benefits or net costs: Net
benefits are positive under the low cost estimate (which encompasses
compliant, yet not integrally synchronized, devices) but negative under
the high and median cost estimates (which correlate with integrally
synchronized units).
Regulatory Flexibility Act
This rulemaking has been drafted in accordance with the Regulatory
Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. Sec. Sec. 601-612). FMCSA
conducted an Initial Regulatory Flexibility Act (IRFA) analysis of the
impacts on small entities to determine whether the proposed rule would
have a significant economic impact on a substantial number of small
entities. A brief summary of this Initial Regulatory Flexibility
Analysis is provided below. The full IRFA is provided in the docket.
At present, it is unclear whether this proposal would have a
significant impact on substantial numbers of small entities. The
proposed requirements would apply only to the relatively small number
of motor carriers with significant HOS noncompliance--an estimated
total of between 465 and 930 carriers per year, a majority of which are
considered small. Although the cost impacts are generally quite small
as a percentage of typical carrier revenues, they could vary
substantially across affected carriers, ranging from 0.45 to 0.07
percent of annual revenues depending on the carrier's revenue per CMV.
Firms with higher revenues-per-truck would experience a proportionately
lower cost impact. Further, these carriers would experience
compensatory time savings, or administrative efficiencies, as a result
of using EOBR records in place of paper RODS. The level of increased
administrative efficiencies would vary with the number of CMVs the
carrier operates.
Unfunded Mandates Reform Act
This rule would not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$128.1 million or more (as adjusted for inflation) 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.
[[Page 2381]]
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. FMCSA determined that
this NPRM would affect a currently approved information collection for
OMB Control Number 2126-0001, titled ``Hours of Service of Drivers
Regulation.'' OMB approved this information collection on November 3,
2005, at a revised total of 153,103,292 burden hours, with an
expiration date of November 30, 2008. 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
paperwork burden imposed by FMCSA's records of duty status (RODS)
requirement is set forth at 49 CFR 395.8.
FMCSA estimated that the remedial provisions of this NPRM,
requiring the installation, use, and maintenance of EOBRs by motor
carriers with a pattern of severe HOS violations, would affect
approximately 930 motor carriers with about 17,500 drivers annually.
These drivers' total annual burden hours for meeting the RODS
requirement at Sec. 395.8 is estimated at 455,000 (17,500 CMV drivers
x 26 hours per year to complete the RODS). The time required by EOBR-
using motor carriers to review the RODS would likewise be reduced
compared with that required for review of paper RODS. The total burden
hours for carriers to review the RODS for 17,500 EOBR-using drivers was
estimated at 210,000 annual burden hours. The combined reduction in
burden hours for carrier and driver is 665,000 burden hours.
Under the 2005 HOS final rule, the total annual burden hours for
carriers and drivers using traditional paper RODS is 104,754,884 burden
hours for drivers' completion of RODS and 48,348,408 burden hours for
carriers to review the RODS, for a combined total of 153,103,292 burden
hours. Subtracting from that total the 665,000-burden-hour reduction
achieved by carriers using EOBRs under this proposed rule, we derived
an estimated total of 152,438,292 burden hours for compliance with the
RODS requirement by all motor carriers--both those operating under the
remedial provisions of this NPRM and those using traditional paper
RODS.
Note that the above estimates of paperwork burden do not take into
account potential paperwork savings associated with voluntary use of
EOBRs by motor carriers. Drivers employed by, and owner-operators
leased to, such carriers would have a reduced paperwork burden to meet
the RODS requirement at Sec. 395.8, and the motor carrier's time-and-
cost burden associated with reviewing and maintaining the RODS and
supporting documents would be similarly reduced. Under proposed Sec.
395.11, carriers maintaining time and location data produced by Sec.
395.16-compliant EOBRs need only maintain such supporting documents as
are necessary to verify on-duty not-driving and off-duty status to
fully meet the supporting documents requirements in Sec. 395.8(k).
Depending on the number of CMVs these carriers operate, their paperwork
savings could be substantial. However, because it is difficult to
quantify the number of motor carriers that would voluntarily use EOBRs,
the Agency did not estimate these potential paperwork savings.
A supporting statement reflecting this assessment will be submitted
to OMB together with this NPRM.
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 a draft
Environmental Assessment (EA) to review the potential impacts of this
proposed rulemaking. The draft EA findings are summarized below. The
full EA is in the docket.
Implementation of this proposed action would alter to some extent
the operation of CMVs. However, the proposal, if implemented, would 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) 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 would 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
would cause a modest overall increase in engine emissions by virtue of
coming into compliance with the HOS regulations. Because the number of
trucks likely to be required to install EOBRs is relatively small
(7,600 out of 1.51 million total CMVs), FMCSA determined that the
increase in air toxics would be negligible. Moreover, because drivers
for carriers brought into HOS compliance would experience less fatigue
and be less likely to have fatigue-related crashes, there would be a
counterbalancing increase in public safety.
FMCSA concludes that the rule changes would have a negligible
impact on the environment, and therefore would not require an
environmental impact statement. The provisions under the proposed
action do not, individually or collectively, pose any significant
environmental impact.
E.O. 13211 (Energy Supply, Distribution or Use)
FMCSA determined that the proposed rule would not significantly
affect energy supply, distribution, or use. No Statement of Energy
Effects is therefore required.
E.O. 12898 (Environmental Justice)
FMCSA evaluated the environmental effects of this proposed action
and alternatives in accordance with Executive Order 12898 and
determined that there are no environmental justice issues associated
with the proposal. The proposed rule would have notable consequences
only for trucking firms that have repeatedly demonstrated noncompliance
with the HOS regulations. It would not create any adverse health or
environmental effects.
E.O. 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. As discussed previously, this proposed rule is not
economically significant. Therefore, no analysis of the impacts on
children is required.
E.O. 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,
[[Page 2382]]
eliminate ambiguity, and reduce burden.
E.O. 12630 (Taking of Private Property)
This rule would not effect a taking of private property or
otherwise have 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 Document
Information Systems--Coded Character Sets--7-Bit American National
Standard Code for Information Interchange (7-Bit ASCII) (ANSI document
ANSI INCITS 4-1986 (R2002)) published by ANSI (American
National Standards Institute). In another example, the Agency would
reference the 802.11 family of standards 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 desires to include
in its proposed performance-based regulation, 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.
Privacy Impact Assessment
Section 522(a)(5) of the FY 2005 Consolidated Appropriations Act,
Title V, General Provisions (Pub. L. 108-447, 118 Stat. 2809 at 3268)
requires Federal agencies to conduct a privacy impact assessment (PIA)
of proposed rules that will affect the privacy of individuals. The
Agency conducted a PIA for this NPRM. We determined that the same
personally identifiable information for CMV drivers currently collected
as part of the RODS and supporting documents requirements would
continue to be collected under this rulemaking.
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 biomonitors) as too invasive of
personal privacy.
All CMV drivers subject to 49 CFR Part 395 must have their hours of
service accounted for to ensure that drivers have adequate
opportunities for rest. This NPRM would not change the treatment of HOS
with respect to privacy matters, change which drivers and motor
carriers are required to comply with the RODS requirement, or change
the sharing of information. 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 stopped for purposes of conducting roadside
inspections. Motor carriers would not be required to upload this
information into any Federal or State information system accessible
either to the public or to motor carrier safety enforcement agencies.
This would preserve data security and ensure that EOBR data collection
does not result in a new or revised Privacy Act System of Records for
FMCSA. Data accuracy concerning drivers' RODS should improve as a
result of the proposals to establish new performance standards for
EOBRs; to allow drivers to make EOBR entries to identify any errors or
inconsistencies in the data; and to mandate EOBR use by motor carriers
with a history of serious noncompliance with the HOS rules.
In summary, the NPRM would neither enlarge the scope of personally
identifiable information collected nor change the sharing of that
information.
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, Motor carriers, Reporting and recordkeeping.
49 CFR Part 396
Highways and roads, Motor carriers, Motor vehicle equipment, Motor
vehicle safety.
For the reasons set forth above, FMCSA is proposing to amend 49 CFR
parts 350, 385, 395, and 396 as follows:
PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM
1. The authority citation for part 350 continues to read as
follows:
Authority: 49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.
2. Amend Sec. 350.201 by revising the introductory text and adding
paragraph (w) 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 conditions:
* * * * *
(w) Enforce requirements relating to FMCSA remedial directives
issued in accordance with 49 CFR Part 385, Subpart F, including
providing inspection services for verification of electronic on-board
recorder installation and operation as provided in Sec. 385.511(b).
PART 385--SAFETY FITNESS PROCEDURES
3. The authority citation for part 385 is revised 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.
[[Page 2383]]
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.
* * * * *
5. Amend Sec. 385.3 by adding a definition for safety fitness
determination in alphabetical order, and by revising the existing
definition for safety 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 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 FMCSA has not assigned a safety
rating to the motor carrier.
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; and
(b) The motor carrier has complied with all requirements contained
in any remedial directive issued under subpart F of this part.
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 of 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.
* * * * *
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 F 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 F of
this part, a notice of a proposed or final safety rating will
constitute the notice of safety fitness determination.
9. Amend Sec. 385.15 by revising paragraph (a) to read as follows:
Sec. 385.15 Administrative review.
(a) A motor carrier may request 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).
* * * * *
10. 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
potential remedial directive applicability, remedial directive, or
proposed determination of unfitness issued in accordance with subpart F
of this part.
(l) A motor carrier may not request a rescission of a determination
of unfitness issued under subpart F of this part based on corrective
action.
11. 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 ICCMC docket number if applicable.
* * * * *
[[Page 2384]]
12. 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 F 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 the 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.
* * * * *
13. Add subpart F to part 385 to read as follows:
Subpart F--Remedial Directives
Sec.
385.501 Purpose and scope.
385.503 Definitions and acronyms.
385.505 Events triggering issuance of remedial directive and
proposed determination of unfitness.
385.507 Notice of potential remedial directive applicability.
385.509 Issuance of remedial directive.
385.511 Proof of compliance with remedial directive.
385.513 Issuance and conditional rescission of proposed unfitness
determination.
385.515 Exemption for AOBRD users.
385.517 Administrative review.
385.519 Effect of failure to comply with remedial directive.
Subpart F--Remedial Directives
Sec. 385.501 Purpose and scope.
(a) This subpart establishes procedures for FMCSA's issuance of
notices of potential remedial directive applicability, 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 recurring violations 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 notices of proposed remedial
directive applicability, 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. 385.503 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 F means:
(1) An adjudication under this subpart upholding a notice of
potential remedial directive applicability (NPRDA) or remedial
directive and proposed unfitness determination;
(2) The expiration of the period for filing a request for
administrative review of an NPRDA or 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.
Notice of potential remedial directive applicability (NPRDA) means
a notice, following a compliance review of a motor carrier, that this
subpart applies to the motor carrier and that violations or other
findings during the compliance review may contribute to the future
issuance of a remedial directive under this subpart. The NPRDA will
explain the future circumstances that would trigger issuance of a
remedial directive and will describe generally the compliance review
findings that prompted issuance of the NPRDA.
Pattern 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.
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).
Sec. 385.505 Events triggering issuance of remedial directive and
proposed determination of unfitness.
(a) 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 pattern violations of any Appendix C regulation
or regulations that occur within a 2-year period. 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 pattern violations of any Appendix C regulation and, in
a subsequent compliance review completed within the 2-year period
following the closing date of the first review, one or more pattern
violations of any Appendix C regulation(s) are discovered.
(b) The two compliance reviews under paragraph (a) of this section
need not be conducted consecutively for a remedial directive and
proposed unfitness determination to be issued.
Sec. 385.507 Notice of potential remedial directive applicability.
(a) Following the first of the two compliance reviews described in
Sec. 385.505(a), FMCSA will provide the motor carrier a written notice
of potential remedial directive applicability (NPRDA).
(b) The NPRDA will contain the following information:
(1) Notification of the applicability of this subpart.
(2) Notification that violations discovered during the compliance
review may cause the future issuance of a remedial directive under this
subpart.
[[Page 2385]]
(3) The circumstances under which future violations would trigger
issuance of a remedial directive.
(4) A brief statement of the compliance review findings that
prompted issuance of the NPRDA.
(5) The manner in which a motor carrier may challenge the issuance
of an NPRDA in accordance with Sec. 385.517.
(6) Any other matters as FMCSA may deem appropriate.
(c) FMCSA will notify the carrier in writing of the rescission of
an NPRDA.
Sec. 385.509 Issuance of remedial directive.
(a) Following the close of the second of the two compliance reviews
described in Sec. 385.505(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 EOBRs compliant with Sec. 395.16 of this chapter
in all of the motor carrier's CMVs and to provide proof of the
installation to FMCSA in accordance with Sec. 385.511 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 following 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.
Sec. 385.511 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
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. 385.519.
Sec. 385.513 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.
13901, 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. 385.511.
(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. 385.515 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, or to motor carriers that had been issued
a waiver allowing the carrier to use devices not fully compliant with
Sec. 395.15.
(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 Sec. 395.16-compliant devices.
(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
[[Page 2386]]
manufactured on or after the date 2 years from the effective date of
this rule.
Sec. 385.517 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
an NPRDA under Sec. 385.507 or a notice of remedial directive and
proposed unfitness determination under Sec. 385.509. 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 NPRDA or 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,
400 Seventh Street, SW., Washington, DC 20590. The 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. 385.519(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 following the date of the NPRDA under Sec.
385.507 or the notice of remedial directive and proposed determination
of unfitness under Sec. 385.509.
(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 potential remedial directive applicability, 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.
(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. 385.519 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. 385.511, 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. 385.513
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. 385.519(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. 385.511,
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. 385.517(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 CMVs in violation of
this section will be subject to the penalty provisions listed in 49
U.S.C. 521(b).
14. Amend Appendix B by revising introductory paragraphs (b), (c),
and (d) and section VI Conclusion, 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
[[Page 2387]]
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 F.
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.
* * * * *
15. Add Appendix C to read as follows:
Appendix C to Part 385--Regulations Pertaining To Remedial Directives
in Part 385 Subpart F
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 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
16. The authority citation for part 395 continues 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.
17. Section 395.2 is amended to add the following definitions in
alphabetical order:
Sec. 395.2 Definitions.
* * * * *
ASCII (American Standard Code for Information Interchange) is a
character set and a character encoding system based on the Roman
alphabet as used in modern English and other Western European
languages. ASCII is commonly used by computers and other communication
equipment. The specifications for the ASCII standard (the most widely
used form of which is ANSI X3.4-1986) are described in the document
Information Systems--Coded Character Sets--7-Bit American National
Standard Code for Information Interchange (7-Bit ASCII) (ANSI document
ANSI INCITS 4-1986 (R2002)), published by the American
National Standards Institute (ANSI).
* * * * *
Bluetooth is a short-range wireless data communications standard
typically used to exchange information between electronic devices such
as personal digital assistants (PDAs), mobile phones, and portable
laptop computers.
[[Page 2388]]
The technical specifications for the Bluetooth standard are described
in the document Bluetooth Specification Version 2.0 + EDR [vol. 0],
available from the Bluetooth Special Interest Group (SIG).
CD-RW (Compact Disc--ReWriteable) 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.
* * * * *
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. The 802.11 standard
includes three amendments to the original standard, 802.11a, 802.11b,
and 802.11g. The technical specifications for 802.11a, 802.11b, and
802.11g are published by the Institute of Electrical and Electronics
Engineers (IEEE).
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.
* * * * *
Integrally synchronized refers to an AOBRD or EOBR that receives
and records the engine use status for the purpose of deriving on-duty-
driving status from a source or sources internal to the CMV.
* * * * *
RS-232 is a standard for serial binary data interconnection. The
technical specifications for the RS-232 standard are described in the
document Interface Between Data Terminal Equipment and Data Circuit-
Terminating Equipment Employing Serial Binary Data Interchange (ANSI/
TIA-232-F-1997 (R2002)), September 1, 1997, published by the
Telecommunications Industry Association (TIA).
* * * * *
USB (Universal Serial Bus) is a serial bus interface standard for
connecting electronic devices. The technical and physical
specifications for USB are described in the document Universal Serial
Bus Revision 2.0 specification, published by the USB Implementers Forum
(USBIF), an industry standards group of leading companies from the
computer and electronics industries.
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.
* * * * *
XML (Extensible Markup Language) is text format used for including
information about the conceptual structure of a piece of text. The
primary purpose of XML is to facilitate the sharing of data across
different computer systems. The technical specifications for XML are
described in the document Extensible Markup Language (XML) 1.0 (Third
Edition), published by the World Wide Web Consortium (W3C).
18. Amend Sec. 395.8 to revise 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).
* * * * *
(e) Failure to complete the record of duty activities of this
section, 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.
* * * * *
19. Add Sec. 395.11 to read as follows:
Sec. 395.11 Supporting documents for EOBR-created RODS.
Time and location data produced by an EOBR meeting the requirements
of Sec. 395.16 are sufficient to verify on-duty driving time. Motor
carriers maintaining 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 to fully
meet the requirements of Sec. 395.8(k). This section does not apply to
motor carriers and owner-operators that have been issued a remedial
directive to install, use, and maintain EOBRs.
20. Amend Sec. 395.13 to revise paragraph (b)(2) and to add
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. 385.511(d) of
this chapter.
* * * * *
21. Amend Sec. 395.15 to revise paragraph (a) to read as follows:
Sec. 395.15 Automatic on-board recording devices.
(a) Applicability. This section applies to automatic on-board
recording devices (AOBRDs) used to record the driver's hours of service
as specified by part 395. For commercial motor vehicles manufactured
prior to [INSERT DATE 2 YEARS AFTER PUBLICATION OF FINAL RULE],
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.
* * * * *
22. Add Sec. 395.16 to read as follows:
Sec. 395.16 Electronic on-board recording devices.
(a) Applicability. This section applies to electronic on-board
recording devices (EOBRs) used to record the driver's hours of service
as specified by part 395. For commercial motor vehicles manufactured
after [INSERT DATE 2 YEARS AFTER PUBLICATION OF FINAL RULE], 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.
(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 user IDs and passwords, PIN
numbers, smart cards, or biometrics).
(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.).
[[Page 2389]]
(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'', or other identifiable code or
character.
(2) ``Sleeper berth,'' or ``SB'' or other identifiable code or
character, to be used only if sleeper berth is used.
(3) ``Driving,'' or ``D'' or other identifiable code or character.
(4) ``On-duty not-driving'' or ``ON'' or other identifiable code or
character.
(d) Duty status defaults.
(1) An EOBR must automatically record driving time.
(2) When the CMV is stationary for 15 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 reported on the EOBR output record as
specified under paragraph (f) of this section and displayed at each
change of duty status.
(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 must not drift more
than 2 seconds per day. The absolute deviation from the time base
coordinated to UTC 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 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) When the CMV is in motion, location and time must be recorded
at intervals no greater than 1 minute. This recorded information must
be capable of being made available in an output file format as
specified in Appendix A of 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 use location codes derived from satellite or
terrestrial sources, or a combination of these. The location codes must
correspond, at a minimum, to the Census Bureau 2000 Gazetteer ``County
Subdivision'' data.
(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) If the EOBR obtains distance-traveled information from a source
internal to the CMV, the information must be accurate to the distance
traveled as measured by the CMV's odometer.
(4) If the EOBR obtains distance-traveled information from a source
external to the CMV, the information recorded must be accurate to
within 1 percent of actual distance traveled over a 24-hour
period 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
may do so only immediately prior to the first driving period of the day
and immediately following the last driving period of the day. The
driver must electronically confirm his or her intention to make any
annotations.
(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
chart using a graph-grid format in either electronic or printed form in
the manner described in Sec. 395.8 and a digital file in the format
described in Appendix A of this part. The chart must show the time and
sequence of duty status changes including the driver's starting time at
the beginning of each day.
(3) This information may be used in conjunction with handwritten or
printed records of duty status for the previous 7 days.
(4) The information displayed on the device 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 of 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, other computer-
generated records, or any combination of these. Electronic records must
be transferable to portable computers used by roadside safety assurance
officials and must provide files in the format specified in Appendix A
of this part. The communication information interchange methods must
comply with the requirements of RS 232, USB 2.0, IEEE 802.11(g), and
Bluetooth.
(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 of 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.
(j) Driver identification. For the driver to log into the EOBR, the
EOBR must require the driver to enter information (such as user IDs and
passwords, PIN numbers) 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.
[[Page 2390]]
(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 computer-generated records,
or any combination of these.
(2) If an EOBR fails, the driver must do the following:
(i) Note the failure of the EOBR.
(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.
(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 F 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 F 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 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) Acknowledgement of an advisory message or signal concerning
HOS limits.
(11) Override of an automated duty status change to driving if
using the vehicle for personal conveyance or for yard movement.
(12) Date and time of crossing a State line (for purposes of fuel-
tax reporting).
(o) Performance of recorders. A motor carrier that uses EOBRs for
recording drivers' records of duty status instead of the handwritten
record must ensure the EOBR meets the following requirements in order
to address all hours-of-service requirements in effect as of October
24, 2005:
(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, to the maximum
extent practicable, be tamper resistant. The EOBR 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 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 of 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.
(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 ensure that the EOBR is calibrated,
maintained, and recalibrated in accordance with the manufacturer's
specifications; the motor carrier must retain records of these
activities.
(2) 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.
(3) 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.
(4) The motor carrier must review the EOBR records of its drivers
for compliance with part 395.
(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 of 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
[[Page 2391]]
evidence that the device has been tested and certified as meeting the
performance requirements of Sec. 395.16 and Appendix A of this part.
23. Add Appendix A to 49 CFR Part 395 to read as follows:
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 Database Concept
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. 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] TP18JA07.000
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
Data element definition Type Length Valid values & notes
----------------------------------------------------------------------------------------------------------------
Driver Identification Data:
Driver First Name............. First name of the A................... 35
driver.
Driver Last Name.............. Last name, family A................... 35
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 U.S.
DOT regulations.
Co-Driver Data:
Co-Driver First Name.......... First name of the co- A................... 35
driver.
Co-Driver Last Name........... Last name, family A................... 35
name or surname of
the co-driver.
Co-Driver ID.................. Numeric A................... 40
identification
number assigned to a
driver by the motor
carrier.
[[Page 2392]]
Company Identification Data:
Carrier USDOT Number.......... USDOT number of the N................... 8
motor carrier
assigned by FMCSA.
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................... 8 UTC (universal time)
event occurred. (Date).............. recommended.
Format: YYYYMMDD.
Event Time.................... The time when an N................... 6 UTC (universal time)
event occurred. (Time).............. 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.................... Nearest populated N................... 5 Unique within a FIPS
place from the state code. Lookup
FIPS55 list of codes list derived from
for populated FIPS55.
places. (Census
Bureau 2000
Gazetteer ``County
Subdivision'').
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
other compliant miles traveled
means such as while driving,
vehicle location etc., can be
system, etc.). computed.
Event Update Status Code...... A status of an event, A................... 1 C=Current;
either Current (the H=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................... 8 UTC (universal time)
event record was (Date).............. recommended.
last updated or Format: YYYYMMDD.
edited.
Event Update Time............. Then time when an N................... 6 UTC (universal time)
event record was (Time).............. recommended.
last updated or Format: HHMMSS
edited. (hours, 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
recent record update for record update
or edit. or edit.
----------------------------------------------------------------------------------------------------------------
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).
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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............... NO--GPS............. no GPS data............ No GPS sensor information
available.
External Sensor Issue............... NOLTLN.............. no latitude longitude.. No latitude and longitude
from positioning sensor.
External Sensor Issue............... NOTSYC.............. no time synchronization Unable to synchronize 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 mismatch. ECM identification/serial
number mismatch (with
preprogrammed
information).
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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 EOBRs must be capable of transferring RODS using one of the
following wired standards:
2.2.1 Universal Serial Bus 2.0
2.2.2 RS-232.
2.3 EOBRs must be capable of transferring RODS using one of the
following wireless standards:
2.3.1 Institute of Electrical and Electronics Engineers (IEEE) 802.11g
2.3.2 Bluetooth
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 (within 300 meters) 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 1 minute. 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 Census Bureau 2000 Gazetteer
``County Subdivision'' data.
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 1
percent accurate to an odometer calibrated per 24-hour period.
3.1.2.4 If the EOBR obtains distance-traveled information from a
source external to the CMV, the information recorded must be
accurate to within 1 percent of actual distance traveled
per 24-hour period as measured by a calibrated 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.
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 -20 degrees F to 120 degrees F.
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.
4. Example of Grid Generated From EOBR Data
4.1 The following picture shows an acceptable format for grid
versions of logs generated by EOBR data.
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[GRAPHIC] [TIFF OMITTED] TP18JA07.001
PART 396--INSPECTION, REPAIR AND MAINTENANCE
24. 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.
25. Amend Sec. 396.9 to revise 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.
385.511(d) of this chapter. An ``Out of Service Vehicle'' sticker shall
be used to mark vehicles ``out of service.''
* * * * *
Issued on: January 5, 2007.
John H. Hill,
Administrator.
[FR Doc. 07-56 Filed 1-11-07; 8:45 am]
BILLING CODE 4910-EX-P