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[Federal Register: September 1, 2004 (Volume 69, Number 169)]
[Proposed Rules]
[Page 53386-53397]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se04-29] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 395 [Docket No. FMCSA-2004-18940]
RIN-2126-AA89 Electronic On-Board Recorders for Hours-of-Service Compliance AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Advance notice of proposed rulemaking; request for comments. ----------------------------------------------------------------------- SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
requests comments on potential amendments to its regulations concerning
the use of on-board recording devices to document compliance with the
Federal hours-of-service rules. Because our current regulations do not
reflect the considerable advances in the technology used in current-
generation recording devices (also known as electronic on-board
recorders, or EOBRs), we seek information concerning issues that should
be considered in the development of improved performance specifications
for these recording devices. Our purpose is to ensure that any future
requirements would be appropriate as well as reflect state-of-the-art
communication and information management technologies. DATES: Comments must be received on or before November 30, 2004. ADDRESSES: You may submit comments, identified by DOT DMS Docket Number
FMCSA-2004-17286, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
Agency Web Site: http://dms.dot.gov. Follow the
instructions for submitting comments on the DOT electronic docket 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. Instructions: All submissions must include the agency name and
docket number for this notice. 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 and/or 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 may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's complete Privacy Act Statement in the
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also
available at http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Office of Bus
and Truck Standards and Operations, (202) 366-4009, Federal Motor
Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC
20590-0001. Office hours are 7:45 a.m. to 4:15 p.m., e.s.t., Monday
through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Legal Basis for the Rulemaking The Motor Carrier Act of 1935 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" (49
U.S.C. 31502(b)). This advance notice of proposed rulemaking (ANPRM) deals with
"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. FMCSA has allowed the use of automatic
on-board recording devices to track drivers' hours of service since
1988 (49 CFR 395.15). The recorders authorized by Sec. 395.15 are
mostly mechanical in design. Rapid developments in electronic
technology have made them increasingly obsolete. This ANPRM therefore
addresses the possibility of allowing motor carriers to use modern
EOBRs to document drivers' compliance with the hours-of-service
requirements. In order to meet the requirements of the 1935 Act, EOBRs
must reliably and accurately perform the functions for which they are
designed. The ANPRM seeks information on a wide variety of questions
related to that issue. The Motor Carrier Safety Act of 1984 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)). This ANPRM is concerned primarily with section 31136(a)(2) and (3).
The hours-of-service regulations are [[Page 53387]] 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." EOBRs that are properly designed, maintained, and used would
enable motor carriers to track their drivers' on-duty and driving hours
very accurately, thus permitting them to better prevent regulatory
violations or excessive driver fatigue, but also allowing them to
schedule vehicle and driver operations more efficiently. Driver
compliance with the hours-of-service rules would help to ensure that
"the physical condition of [commercial motor vehicle drivers] is
adequate to enable them to operate the vehicles safely." In short,
FMCSA is attempting to evaluate the suitability of EOBRs to demonstrate
compliance with and enforcement of the hours-of-service regulations,
which in turn have major implications for the welfare of drivers and
the safe operation of commercial motor vehicles (CMVs). In addition, Sec. 408 of the ICC Termination Act of 1995 (Public
Law 104-88, 109 Stat. 803, at 958) required the agency to issue an
ANPRM "dealing with a variety of fatigue-related issues pertaining to
commercial motor vehicle safety (including * * * automated and tamper-
proof recording devices * * *) not later than March 1, 1996." The
ANPRM 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). FMCSA decided not to adopt EOBR regulations in 2003 but noted
that it planned "to continue research on EOBRs and other technologies,
seeking to stimulate innovation in this promising area" (68 FR 22488). On July 16, 2004, the United States Court of Appeals for the
District of Columbia Circuit vacated the 2003 final rule (Public
Citizen et al. v. FMCSA, No. 03-1165) for reasons unrelated to EOBRs.
In dicta, however, the court said that Sec. 408 of the ICC Termination
Act "required the agency, at a minimum, to collect and analyze data on
the costs and benefits of requiring EOBRs" [slip opinion, at 19]. This
ANPRM, which has been under development for some time, is an effort to
do just that. Background Ensuring safe driving of commercial motor vehicles is at the heart
of the Federal hours-of-service regulations (49 CFR Part 395). The
hours-of-service regulations apply to drivers of commercial motor
vehicles, as defined in 49 CFR 390.5. One of the most important goals
of the rules is to ensure that commercial vehicle operators do not
drive for long periods without opportunities to obtain restorative
sleep. Adequate sleep is an important contributor to human health. From
the standpoint of highway safety, adequate sleep is necessary to ensure
that a person is alert behind the wheel and able to respond
appropriately to changes in the driving environment. Therefore, the
hours-of-service rules prohibit CMV drivers from driving or being
directed to drive more than a specified amount of time between
mandatory off-duty periods. The regulations also prohibit driving after a specific amount of
cumulative on-duty time on both a daily and multiday basis. On-duty
time is time spent driving and performing other duties at a motor
carrier's direction. Under Sec. 395.8, all motor carriers and drivers
must keep records to track on-duty and off-duty time. FMCSA uses these
records to carry out safety oversight activities, as do State agencies
enforcing compatible State laws and regulations. Under an exception at
Sec. 395.1(e), a motor carrier whose drivers operate within a 100 air-
mile radius of the normal work-reporting location may use "time
records," or time cards, to satisfy the hours-of-service recordkeeping
requirement. The methods of recording and documenting hours of service 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. In 1952, the ICC revised the format in Ex Parte No. MC-
40, which reduced the number of drivers' duty status categories from 15
to 4 (17 FR 4422 at 4488, May 15, 1952). This latter revision added the
familiar graph-grid recording format to the driver's log. In 1982, the
document's name changed to "Driver's Record of Duty Status (RODS)"
and additional minor changes were made (47 FR 53389, Nov. 26, 1982).
Other additional minor revisions were made in subsequent years. Current Regulations and Guidance on Automatic On-Board Recording
Devices Motor carriers began to look to automated methods of recording
drivers' duty status records in the mid-1980s as a way to save drivers
time and improve the efficiency of their compliance-assurance
procedures. In April 1985 (50 FR 15269, Apr. 17, 1985), the Federal
Highway Administration (FHWA), the predecessor agency to FMCSA within
the U.S. Department of Transportation (DOT),\1\ granted a waiver to
Frito-Lay, Inc. to allow it to use on-board computers in lieu of
requiring drivers to complete handwritten RODS. Nine other motor
carriers were subsequently granted waivers.
--------------------------------------------------------------------------- \1\ 1On December 9, 1999, the President signed the Motor Carrier
Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159, 113
Stat. 1748). The statute established the Federal Motor Carrier
Safety Administration within DOT. On January 4, 2000, the Secretary
redelegated to FMCSA the motor carrier and driver authority
previously delegated to FHWA (65 FR 220).
--------------------------------------------------------------------------- In 1986, the Insurance Institute for Highway Safety (IIHS)
petitioned FHWA to require the installation and use of automatic on-
board recordkeeping systems. The petition was denied, and IIHS
petitioned for reconsideration in February 1987. In July 1987 (52 FR 26289, Jul. 13, 1987), FHWA published an
advance notice of proposed rulemaking concerning on-board recording
devices. FHWA followed with a notice of proposed rulemaking in March
1988 (53 FR 8228, Mar. 14, 1988) and a final rule in September of the
same year (53 FR 38666, Sep. 30, 1988). The rule revised part 395 of
the Federal Motor Carrier Safety Regulations by allowing motor carriers
the flexibility to equip CMVs with an automatic on-board recording
device (AOBRD) in lieu of requiring drivers to complete handwritten
RODS. The term automatic on-board recording device was defined under
Sec. 395.2 as: * * * an electric, electronic, electromechanical, or mechanical
device capable of recording driver's [sic] 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. The regulations at 49 CFR 395.15 cover a motor carrier's authority
to require use of the devices; information requirements; the duty
status and additional information that must be recorded; and the manner
of recording change of duty status location. Entries must be made only
by the driver. Drivers are required to note any failures in the
performance of the device and to reconstruct records of their duty on
blank RODS forms. For the benefit of both drivers and safety officials,
especially law enforcement officers, an instruction sheet describing
the operation of the automatic on-board recording device must be
present in the vehicle. Requirements for submission to the motor carrier of the RODS
generated by automatic on-board recording devices are similar to those
for handwritten RODS, except that the driver is not required to sign
the record. Submission [[Page 53388]] of the record(s) constitutes certification that all entries made are
true and correct. Performance requirements for AOBRDs (at 49 CFR 395.15(i)) are
straightforward. The manufacturer must certify that the design of the
device "has been sufficiently tested to meet the requirements of this
section and under the conditions it will be used." Sec. 395.15(i)(1)
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 tamperproof "to the
maximum extent practicable." The AOBRD must provide a visual and/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 hours-of-service files in
a separate location. In part because on-board recorder technology was so new and such a
significant departure from paper RODS when the final rule was developed
16 years ago, the rule included at Sec. 395.15(j) a provision to
rescind a motor carrier's authority to use an AOBRD. Under this
provision, the agency may order any motor carrier or driver to revert
to using paper hours-of-service records if it determines that the
carrier poses certain safety management control issues. Although the 1988 final rule addressed the possibility that some
tachographs \2\ could conceivably comply with the provisions of Sec.
395.15 (53 FR 38666, at 38669, "This new definition is sufficiently
broad to include computers and tachographs."), FHWA subsequently
determined that conventional mechanical tachographs do not comply with
these requirements. The agency explained its decision in a letter of
September 23, 1991, to Abbott Tachograph. A copy of this letter is in
the docket, along with copies of all reports, memoranda of
understanding, and letters referenced in this document.
--------------------------------------------------------------------------- \2\ The Dictionary of Mechanical Engineering defines a
tachograph as an ``electronic device that records vehicle usage
relative to time.'' (Naylor, G.H. F., Dictionary of Mechanical
Engineering, 4th edition. Society of Automotive Engineers, Inc.,
Warrendale, Pennsylvania)
--------------------------------------------------------------------------- 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. Thanks to emerging technologies used in these
devices, the narrowly crafted on-board recorder regulation now needs to
be revised. Various communications technologies, many of which include
vehicle tracking using global positioning system (GPS)-based
technologies, allow real-time transmission of a vehicle's location and
other operational information. We call these current-generation
recording EOBRs. By taking advantage 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 hours-of-service monitoring
that build upon the time- and location-tracking functions included in
the providers' hardware and software products. To bridge the gap between the current regulations and state-of-the-
art technology, FMCSA has relied upon interpretations, regulatory
guidance, pilot demonstration programs, and, most recently, exemptions
concerning the use of on-board recorders. Interpretations and Regulatory Guidance A comprehensive update of regulatory guidance published on April 4,
1997 (65 FR 16369, at 16426) included two interpretations concerning
AOBRDs. The first clarified that backup electronic records are not
required if a paper record of duty status document is printed. The
second underscored the prohibition against a driver's using an AOBRD to
amend his or her duty status during a trip. We recently added an interpretation concerning the use of
algorithms in AOBRDs to identify the location of a change of duty
status relative to the nearest city, town, or village. Added to the
Motor Carrier Regulatory Guidance and Interpretation System (MCREGIS)
in March 2003, this interpretation specifies that algorithms must be
sufficiently accurate to ensure, through the on-board recorder's
integral connection to the vehicle's systems, correlation between the
driving time and distance traveled. Also, the location description for
the duty status change must be sufficiently precise to enable
enforcement personnel to quickly determine the CMV's geographic
location on a standard map or road atlas. This regulatory
interpretation is available on FMCSA's Web site at http://www.fmcsa.dot.gov/rulesregs/fmcsr/fmcsrguide.htm
. GPS Technologies: Notice of Interpretation and Request for
Participation On April 6, 1998, FHWA published a notice of interpretation on GPS
technology (63 FR 16697). The notice also announced a voluntary program
whereby motor carriers using GPS and related safety management computer
systems could enter into an agreement with the agency to use the
systems in lieu of handwritten RODS or a conventional AOBRD. This
program was offered as a pilot demonstration project consistent with
the President's initiatives on reinventing government and regulatory
reform. The project's intent was to demonstrate whether use of this
technology by the motor carrier industry could improve compliance with
the hours-of-service requirements while increasing operational
efficiency and reducing paperwork burden. In June 1998, Werner
Enterprises, Inc. (Werner) entered into a Memorandum of Understanding
(MOU) with the agency to test the use of its system under such a pilot
project. At the time we entered into the MOU with Werner, certain features
of GPS technology, wireless communications, and related computer
systems were not readily adaptable to the provisions of Sec. 395.15.
However, the GPS-based systems that Werner proposed to pilot had other
capabilities that would satisfy or go beyond these requirements. Table
1 of the notice of interpretation (63 FR 16697, at 16698, Apr. 6, 1998)
describes these capabilities in relation to specific provisions of
Sec. 395.15. One notable difference was that, rather than being
integrally linked to the vehicle to record driving time, the GPS system
software employed algorithms that set on-duty and off-duty times using
preprogrammed assumptions. In a 1999 letter to FHWA, a safety advocacy organization stated
that, based on information received from drivers, Werner's system did
not appear to provide an accurate accounting of drivers' duty status
under certain conditions, such as prolonged low speeds in traffic
congestion. After an in-depth assessment, we concluded that under
certain conditions the Werner system indeed failed to provide an
accurate reporting of duty status or times. The agency required Werner
to modify its GPS tracking and recording systems to ensure accurate
documentation of drivers' duty status as mandated by 49 CFR Part 395. In March 2002, FMCSA revised its MOU with Werner to address
recording methods and the use of algorithms in the recording and
reporting processes. [[Page 53389]] The changes included eliminating certain default duty status entries as
well as revising the method of recording CMV speed and, more important,
distance traveled. According to item 13 of the revised MOU: Both Werner and the FMCSA acknowledge that the FMCSA does not
find the current Werner GPS-based (point-to-point) methodology of
recording mileage acceptable. Werner's GPS methodology consistently
understates the distance traveled. Werner agrees to identify and
implement an accurate means of determining distance traveled, within
120 days of the signing of this agreement. In effect, the revised MOU required Werner to obtain engine data
through the tractor's electronic communications network in order to
provide an "integral synchronization" with the vehicle's operation. In December 2003 (68 FR 69117, Dec. 11, 2003), FMCSA published a
notice of intent to grant an exemption to Werner Enterprises, Inc.,
thereby allowing the carrier to use GPS technology and complementary
computer software programs to monitor and record its drivers' hours of
service. The terms and conditions for the proposed exemption were the
same as those of the revised MOU for the Werner pilot demonstration
project, with a few exceptions. The need to rely on an exemption to
allow Werner's use of these advanced technologies for RODS purposes
underscores the importance of aligning EOBR performance specifications
with state-of-the-art technologies. The comment period for this notice of intent ended on January 12,
2004. Comments may be viewed at http://dms.dot.gov, Docket number 15818. Proposal To Mandate On-Board Recording Devices Both the 1988 final rule and the 1998 notice of interpretation
allowed the use of automated recording systems as an alternative to
handwritten RODS. However, the prospect of a mandatory use requirement
for these systems has provoked concern and debate. On February 5, 1990, FHWA received from the National Transportation
Safety Board (NTSB) Safety Recommendation H-90-28: "Require automatic/
tamper-proof on-board recording devices such as tachographs or
computerized logs to identify commercial truck drivers who exceed
hours-of-service regulations." The NTSB classified this safety
recommendation "Closed--Unacceptable Action" on July 7, 1998. While
conceding that FHWA's "deliberately paced research and symposium
approach may yield useful information," the NTSB found "no indication
of aggressive research and prompt action to develop and require
advanced technical solutions to address the intent of Safety
Recommendation H-90-28." On August 3, 1995, IIHS, Advocates for Highway and Auto Safety, and
several other highway safety and advocacy organizations petitioned FHWA
to require on-board recorders in CMVs. The petitioners believed the
mandated use of these devices would improve hours-of-service
compliance, thereby reducing the number of fatigued drivers and
fatigue-related crashes. The DOT Office of Inspector General also referred to FHWA's
proposed requirement for EOBRs in its report, Top Ten Management Issues
(Report Number PT-2001-017, January 18, 2001, available at http://www.oig.dot.gov/control_numbers.php
). The Office of Inspector General report stated: Driver hours-of-service violations and falsified driver logs
continue to pose significant safety 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 hours-of-service requirements has significant safety
value. FMCSA's April 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. In the final rule published in April 2003, however, the proposal
for mandatory use of EOBRs was withdrawn (68 FR 22456, at 22488-22489,
Apr. 28, 2003). We concluded that insufficient economic and safety
data, coupled with a lack of support from the transportation community
at large, did not justify an EOBR requirement at that time. We 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 in order 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 this
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 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 hours-of-service compliance. The final rule on drivers' hours of service did contain assurances
that research related to EOBRs and other technologies would continue.
This ongoing research would include evaluation of ways to encourage or
provide incentives for their use. Key research factors would include: (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 hours-
of-service information quickly and easily;
(5) Level of protection afforded other personal, operational, or
proprietary information;
(6) Cost; and
(7) Driver acceptability. FMCSA requests comments on these research factors. In your view,
are we considering the appropriate criteria for our research into
EOBRs? Since publishing the final rule, we have concluded that we need
additional, up-to-date information relating to the costs and benefits
of using EOBRs. As a safety agency, we have a responsibility to
evaluate the potential costs and benefits associated with requiring the
use of these devices, even if we ultimately decide that voluntary use
or incentives are better alternatives. In today's notice, we are
requesting comments on the costs and benefits of a requirement to use
EOBRs, including the relative costs and benefits of an industrywide
requirement versus a more limited mandate on certain industry sectors,
such as long-haul carriers. We are specifically interested in factors
such as hardware acquisition (including modules for CMVs, equipment for
communications between the CMV and the home terminal, vehicle-location-
reference systems, and use of satellite transponder channels); training
of drivers and back-office personnel; equipment installation,
maintenance, repair, and replacement; [[Page 53390]] and preservation of both electronic records and backup paper RODS, if
necessary. In addition, we are interested in information relating to
potential reductions in personnel costs derived from reduced checking
and storage of RODS. Although we recognize that precise estimates might
not be possible from motor carriers that have not adopted EOBR or
related technologies, we would like to know their best estimates based
on conversations they may have had with potential equipment or service
vendors. With reference to hours-of-service violations, we are especially
interested in hearing from motor carriers using EOBRs (or AOBRDs)
instead of paper RODS. Any information such carriers could supply
concerning their violation and out-of-service rates would be valuable
for purposes of comparison with those rates at carriers not using EOBRs
or AOBRDs. As important, we are requesting comments on the need to revise the
general EOBR performance requirements, as provided in Sec. 395.15. In
addition, we request information and comments concerning potential
revisions to Sec. 395.15 for the purpose of developing a
comprehensive, performance-based specification for EOBRs that would
ensure maintenance of data integrity throughout all recording,
transmission, storage, retrieval, and display processes. Our objective
is to assess recording methods to improve hours-of-service compliance
and oversight through the use of automated--including electronic--duty
status records. This complements FMCSA's ongoing research into the
potential of various technologies to assure that drivers are fit and
alert behind the wheel. Potential Contents of an EOBR Specification This advance notice of proposed rulemaking begins a process leading
to clearer points of reference for EOBR system developers and users. We
recognize the need to consider the ways that motor carriers' use of
EOBRs could affect how they maintain documents on their operations. We
also will consider how our compliance-assurance procedures, and those
used by State and local enforcement officials, would need to change. Clarification of Terminology Today's notice requests comments on potential new definitions for a
performance-based specification for on-board recording devices. As
noted previously, since most if not all of the current generation of
on-board recorders collect, store, and display data electronically, we
will call those devices EOBRs. However, many recording devices
developed before the introduction of electronically controlled engines
in the early 1990s may collect some data via mechanical sensors,
transform the mechanical signal to an electrical one, and transmit the
signal electronically. For the purpose of this rulemaking, we will use the generic term
"EOBR." This would encompass any new devices as well as the AOBRDs
that comply with the current definition at Sec. 395.2 and operational
requirements at Sec. 395.15. However, we use the term "AOBRD" by
itself to refer to the earlier-generation devices designed to comply
with the current requirements. Core Issues Electronic systems, although relatively costly to design and
maintain compared with paper-based systems, have the capacity to
eliminate a substantial amount of time-consuming manual data entry and
review. We recognize the many challenges in gathering and recording
data that is both accurate and sufficient in scope and detail to
determine motor carriers' and CMV drivers' compliance with the hours-
of-service regulations. One such challenge is verification of non-
driving duty status information. As noted previously, this rulemaking is but one element of FMCSA's
multipronged research effort concerning EOBRs. For example, Sec.
395.15 should establish specific guidelines for ensuring accuracy,
integrity, and security of data in the recording and storage of driving
time information. Development of such guidelines could potentially
entail: (1) A requirement for a means to identify system defaults
impacting the accuracy and completeness of driving time records; (2)
ready methods to pinpoint tampering (either during the recording
process or after the fact) associated with capture and recording of
driving time; and (3) a requirement for a means to ensure reliable
identification of the particular driver whose driving time is being
captured and recorded, including distinguishing between team drivers. Another core issue concerns the requirement in the current
regulation for a device that is integrally synchronized with specific
operations of the CMV in which it is installed. The intent is that the
device provide "ground truth" for on-duty-driving. The on-board
recorder must identify who drove the CMV and for how long. It must
facilitate accurate entry of other duty status categories. Further, it
must be designed to prevent duty status activity and time entries from
being modified after the fact, while allowing drivers to enter
explanatory information in the Remarks section. FMCSA recently conducted a study published as On-Board Recorders:
Literature and Technology Review (Report No. FMCSA-RT-02-040, July
2002). Through interviews with technology vendors and engine
manufacturers, we learned that a number of products on the market
provide some or all of the functions required under Sec. 395.15.
Nevertheless, few vendors actively market these features or have
developed products specifically to provide the hours-of-service
recordkeeping function. The study attributed this fact both to lack of
market demand and to vendors' uncertainty regarding the Federal
requirements. Interviews conducted with FMCSA staff as part of the
study revealed concerns about: Technology limitations--particularly regarding the ability
of a single system to capture all data perceived as important; The need to clearly define current performance
requirements, and whether the requirements are well understood by the
motor carrier industry; and The extent to which the enforcement community is prepared
to rely on on-board devices for determining hours-of-service
compliance. A second study, Hours of Service (HOS) Research and Analysis
Modules (January 2003), addressed in greater detail the potential for
developing performance specifications for EOBRs. The five research
modules cover data record structure and data security, engine control
module and transmission control module use, georeferenced data, paper
backup systems, and high-level architectures. To increase our understanding of how on-board recorders might be
more efficiently designed and used, FMCSA requests comments on the
issues discussed below. We also will appreciate your responses to the
questions included on some of the issues. Issue sections are designated
A through O, and questions within sections are numbered. Please
reference these letter and number keys in your responses. A. Synchronization of Recorder to a Vehicle Operation Parameter As noted previously, ensuring safe driving of commercial motor
vehicles is at the heart of the hours-of-service regulations. An EOBR
must be able to capture the data necessary to establish when a driver's
duty status is "on duty, [[Page 53391]] driving." The earliest AOBRDs captured this data using sensors--such
as the speedometer or odometer circuit, or the tail shaft (output or
drive shaft from an engine)--that reflected changes in vehicle motion.
This data was combined with data from an internal clock to derive
driving time. Advances in engine electronics allowed the data to be
collected directly from the engine, presenting an opportunity to use
the J1708 databus \3\ to transmit it to an EOBR. One manufacturer,
Delphi Corporation, asked FMCSA if this method complied with the
Federal Motor Carrier Safety Regulations. In a December 2003 letter to
Delphi Corporation, we affirmed that it would.
--------------------------------------------------------------------------- \3\ SAE standard, Serial Data Communications Between
Microprocessor Systems in Heavy-Duty Vehicle Applications. Copyright
1993, Society of Automotive Engineers, Inc.
--------------------------------------------------------------------------- Some systems that track vehicle location using GPS technologies
collect and record vehicle-position data only, inferring duty status
based on software algorithms. As discussed earlier under GPS
Technologies: Notice of Interpretation and Request for Participation,
FMCSA became aware of at least one system that, in certain limited
instances, did not provide accurate driving status information because
of a combination of long polling intervals and preset system defaults.
Thus, even though location data may be transmitted and recorded
accurately, a motor carrier's or system operator's assumptions
concerning changes in vehicle location between polling intervals, or
data collection cycles (instances when vehicle location information is
captured, along with the date and time), could result in incorrect duty
status recordings. This would be particularly true if a driver failed
to make entries in his or her on-board system to indicate that driving
had begun. For example, a CMV moving slowly in a traffic stream through
a construction zone might be traveling at less than a presumed driving
speed, so that the duty status might be recorded as "on-duty, not
driving." Although drivers would presumably have an opportunity to
correct their entries, they might not do so consistently. We request comments concerning the need for synchronization and
possible alternatives to the current regulatory language. B. Amendment of Records As noted earlier, the current regulatory guidance for Sec. 395.15
(available on FMCSA's Web site at http://www.fmcsa.dot.gov/rulesregs/fmcsr/fmcsrguide.htm
) covers three issues: maintenance of a second electronic copy of files, amendment of a completed record by the
driver, and use of algorithms to identify the location of the driver's
change in duty status. The agency's current guidance on the second
issue is as follows: Question 2: May a driver who uses an automatic on-board
recording device amend his/her record of duty status during a trip? Guidance: No. Section 395.15(i)(3) requires [that] 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. Records of duty status maintained
and generated by an automatic on-board recording device may only be
amended by a supervisory motor carrier official to accurately
reflect the driver's activity. Such supervisory motor carrier
official must include an explanation of the mistake in the remarks
section of either the original or amended record of duty status. The
motor carrier must retain both the original and amended record of
duty status. We are reevaluating this guidance in the light of current EOBR
capabilities. The guidance reflects two assumptions: that amendments
would likely be made to change information already entered; and that
the time the revision is made (and the times and duty status being
revised) would be erased from the EOBR's memory. The second assumption
does not account for the EOBR's ability (an ability probably shared by
many AOBRDs) to maintain an internal audit log.\4\ If the EOBR can
accurately record the date and time of an entry, it could be programmed
to prompt the driver to enter duty status or comments at any time the
vehicle is stopped, the driver leaves the vehicle (if the vehicle has a
door sensor), or the ignition is turned on or off. The EOBR also could
prompt the driver to enter the time the work shift began and whether it
included off-duty periods. We believe question 2 of the regulatory
guidance may need to be revised to allow the driver to amend the duty
status record, provided the system maintains both the original and
amended records.
--------------------------------------------------------------------------- \4\ The hardware-based data download requirement of 49 CFR Sec.
395.15(b)(3) supports that assessment. See the discussion of this
requirement later in this document.
--------------------------------------------------------------------------- From a software perspective, this might be achieved through use of
parallel data streams. One data stream would record the operation of
the CMV using data and information contained in and extracted from
other systems and devices on the vehicle. Examples include engine use
information derived from engine control module (ECM) time and throttle
position data; vehicle speed data, derived from throttle position and
engine-on data; data on miles driven, from the odometer reading and
time; and date and time data, from either the ECM clock or the internal
clock on the recording unit. A second, overlying data stream would
include the four categories of driver's duty status, along with remarks
and other information used in the duty status reporting. FMCSA requests comments on this issue. We would particularly
appreciate responses to the following questions: (1) Should FMCSA revise its definition of "amend" in the
regulatory guidance for Sec. 395.15 to include or exclude certain
specific activities? For example, should a driver be able to annotate
the Remarks section to provide details of an activity being performed
while he or she is in an on-duty-not-driving status? Should a driver be
able to revise a record to change the amount of on-duty driving time
recorded over a very short period (for example, while dropping a
trailer at the home terminal)? Should a driver be able to revise a
record to change the amount of driving time if he or she exits a
vehicle while it is stopped in traffic upstream of a crash? (2) Should drivers be allowed to amend the duty status record if
the system maintains both the original and amended records? (3) Should the agency maintain the blanket prohibition against
drivers' amending a RODS generated by an AOBRD? C. Duty Status Categories When the CMV Is Not Moving A significant number of hours-of-service violations are related to
the on-duty-not-driving status, which onboard recorders are not
designed to capture automatically (that is, without a driver's input).
We understand that at least one commercial system defaults to an on-
duty-not-driving status when the CMV is stopped. The previously
mentioned Werner system also was modified to default the driver's duty
status to "on-duty not driving" when the vehicle is stationary and
the driver has not made an entry. We request comments on this issue, and would particularly
appreciate responses to the following question: 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, other than by printing a hard copy of the
day's RODS and making a handwritten entry? [[Page 53392]] D. Ensuring That Drivers Are Properly Identified Establishing and enforcing appropriate use and documentation
requirements could improve linkage of operational data to the specific
driver's activities. A fundamental requirement would be to ensure that
duty status data accurately identifies the driver. Many information
technology applications use personal identification numbers and/or
smart cards. In some situations where the need for identification and
verification is critical for security reasons, some types of biometric
identifiers are being used and others are being explored. FMCSA
requests comments on this issue. E. Reporting and Presentation (Display) Formats A standardized reporting format is important for ensuring a clear
and unambiguous duty status record. This helps establish the sequence
and timing of events and facilitates verification of regulatory
compliance. Although State roadside enforcement officials conducting
vehicle and driver inspections generally review only a single driver's
(or a pair of team drivers') records at a time, these safety personnel
work under time constraints and often-stressful conditions. We have
received numerous reports of State enforcement officials who purposely
avoid reviewing EOBR and electronic records because they are unfamiliar
with their appearance and unsure they can review them accurately and
efficiently. Reviews of driver records by motor carrier safety officials
responsible for assuring fleet compliance, as well as those conducted
by enforcement officials at a carrier's business office, differ from
those conducted by roadside inspectors. During onsite reviews, safety
or enforcement officials consider both individual and collective
driving records in order to determine whether patterns of noncompliance
may exist. The intent of Sec. 395.15 is to require that an electronically
produced record of duty status contain the same information as a
handwritten record. The 13 items required by regulation for AOBRD-
generated duty status records (Sec. 395.15(c) and (d)) are identical
to those required for manually produced RODS (Sec. 395.8 (b), (c), and
(d)), with two exceptions. Section 395.15 does not include a
requirement for a driver's certification and signature, nor does it
explicitly provide for a Remarks section. The driver's signature is
unnecessary because, under Sec. 395.15(h)(3), submission of the record
certifies that all entries made are true and correct. A Remarks section
is not mandatory because there is no practical means for the driver to
enter miscellaneous comments or information into an on-board recorder. FMCSA is interested in developing a performance-oriented reporting
standard that would serve officials conducting roadside inspections and
compliance reviews. Since motor carriers and the traveling public would
benefit from the prevention of regulatory violations, this reporting
standard should help motor carriers facilitate their own internal
review activities. Your comments on the following two issues would
assist us in developing such a standard: (1) Visual record--Although Sec. 395.15(i)(5) does not specify
details of how information is displayed on the screen of an AOBRD,
Sec. 395.15(b)(3) requires information support systems-- separate from
the on-board device--to comply with the requirements of Sec. 395.8(d),
including the use of a graph grid. We request comments on potential
performance-oriented specifications for the display on the EOBR as well
as for support systems that would provide a clear visual record while
affording greater flexibility to those who design and use EOBRs.
Comments from the law enforcement community would be especially
helpful. (2) Data interchange standards--Section 395.15(b)(3) states that
EOBR support systems should meet the information interchange
requirements of ``American National Standard Code for Information
Interchange EIARS-232/CCITT V.24 port.'' This refers to the RS-232
serial communications standard \5\ that was state-of-the-practice in
the 1980s. Although some devices continue to use this interface, it has
been supplanted in many applications. Furthermore, as a hardware
communications standard, it does not address data formatting or
content. We request suggestions concerning current and emerging data
interchange standards for hardwired and wireless communications that
would ensure the integrity of both data content and data formats. Your
comments on other issues related to recording, reporting, and
presentation (display) formats also would be helpful.
--------------------------------------------------------------------------- \5\ RS-232C is a long-established standard ("C" is the current
version) that describes the physical interface and protocol for
relatively low speed serial data communication between computers and
related devices. It was defined by an industry trade group, the
Electronic Industries Association (EIA), originally for
teletypewriter devices. (Source: http://searchnetworking.techtarget.com) --------------------------------------------------------------------------- F. Audit Trail In connection with the necessity for tamper resistance in an EOBR,
we are carefully considering the process of recording and identifying
information in the form of an audit trail or event log. An important
design feature would be user-friendly interface(s) to support not only
motor carriers' internal reviews, but also reviews by FMCSA safety
officials and roadside inspections by our State partners under the
Motor Carrier Safety Assistance Program. The information from an EOBR--
including audit trail data--may need to be made available at a motor
carrier's place of business on demand (as during a compliance review). 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 "for example, 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 requests comments on this issue. G. Ability To Interface With Third-Party Software for Compliance
Verification It has been suggested that EOBR systems should be capable of
interfacing with third-party auditing software packages, such as those
used to verify point-to-point roadway distances. Others have suggested
that hours-of-service compliance be verified instead through direct
access to driver and motor carrier routing and scheduling data. Those
favoring the latter method believe it could be most useful in the
context of a compliance review, where safety officials must request the
motor carrier's direct assistance and cooperation to access the
carrier's systems. A special set of interfaces, [[Page 53393]]
including views of specific information relevant to compliance, might
be needed to enable safety officials to review the information they
require. We request responses to the following questions, as well as
comments on other concerns related to the use of third-party software
for compliance verification: (1) What experience have motor carriers and roadside enforcement
officials had using third-party software for compliance verification? (2) What experience have motor carriers had using third-party
software for purposes of scheduling, hours-of-service compliance
review, and auditing? (3) What experience have motor carriers had assisting FMCSA with
extensive reviews of records of duty status that are maintained only in
electronic form? Would third-party software have helped or hindered the
process? H. Verification of Proper Operation Some electronic devices and systems on vehicles (such as antilock
brake systems on cars and trucks) perform a power-on self-test. It
might be possible to develop such a preprogrammed in-service test
protocol for EOBRs that could be performed by safety officials at
roadside. A test of this type might provide a limited amount of "go/
no-go information" such as whether the communications line between
the vehicle and the recorder is intact, whether the clock has been
reset, and the status of other specific system elements. FMCSA requests responses to the following questions, as well as
comments on other issues related to verification of proper operation: (1) What experience have roadside enforcement officials had using
third-party software for compliance verification? (2) How would a driver, a supervisor reviewing records, or a safety
official verify that a recorder and the systems to which it is linked
are operating properly? (3) How would a roadside safety official or FMCSA compliance
official perform that verification? (4) Should a device be able to produce the results of its original
and/or most recent acceptance or certification tests? (5) Could a device be configured to produce an "electronic audit"
on demand? (6) How would audits be performed on disabled or inoperable units? (7) How long should a driver be allowed to operate a CMV while the
EOBR is not functioning, provided the driver is maintaining paper RODS? (8) How would downtime, repair, and recalibration be documented? (9) Should a unit be marked with its calibration data/record? If
so, how should the unit be marked? I. Testing and Certification Procedures We are considering whether there is a need for the agency to
establish detailed functional specifications for EOBRs, rather than
continuing to rely upon the current generic performance standards under
Sec. 395.15(i). In addition, we are considering whether the current
process of manufacturers' self-certification should be continued. The
functional specifications would include standard performance criteria
and compliance test procedures. If manufacturers (or independent third
parties) were to perform tests according to FMCSA's compliance testing
procedures, the agency could then offer to certify certain devices or possibly designs for devices
as complying with the functional specifications. Parties performing the certification would need to
obtain a device (or a sufficiently advanced prototype) to test. This raises two issues: the propriety of FMCSA's rejecting a
device, and the circumstances under which enforcement action should be
taken. If, during initial testing, the device were found not to meet the
requirements of a published functional specification, FMCSA could
unquestionably reject it. If, on the other hand, FMCSA certified an
EOBR (and/or software) to which the manufacturer later made design
changes, and the manufacturer's modifications diverged from one or more
of the agency's functional specifications, the EOBR and/or software
would no longer comply with our requirements. In such a case, immediate
enforcement action against motor carriers found to be using the
modified EOBR (or software) might not be appropriate. FMCSA might
instead publish a Federal Register notice describing the noncompliance
situation, and giving motor carriers an opportunity to check and
recalibrate the affected EOBRs (or to otherwise ensure the devices
operate within specified parameters). Any motor carriers that failed to
comply with the terms of the Federal Register notice could then be
subject to enforcement action, whether by FMCSA alone or in concert
with other Federal agencies. One possible approach might be a public
interest exclusion (PIE) similar to that used in 49 CFR part 40,
subpart R. The purpose of a PIE is to protect the public interest from
serious noncompliance with the requirements. The European Union (EU) Type Specification for Electronic
Tachographs, European Union Directive 2135/98,\6\ provides an extensive
and complex design specification for the hardware, software, and data
storage and auditing functions of an electronic on-board recorder.
While some characteristics of the design specification, particularly
the basic recording and data storage requirements, may lend themselves
to adaptation, the software design and recording media requirements
were developed to respond to the EU's desire for an integrated system
for on-vehicle recorders and recordkeeping systems and, as such, are
highly prescriptive and complex. In addition, although the type
specification for these devices was finalized in 1998, the date for
mandatory installation of the electronic tachographs in new commercial
vehicles, originally set for August 2002, has repeatedly been revised.
It currently is set for August 2005.
--------------------------------------------------------------------------- \6\ Council Regulation (EC) No. 2135/98 of 24 September 1998
amending Regulation (EEC) No. 3821/85 on recording equipment in road
transport and Directive 88/599/EEC concerning the application of
Regulations (EEC) No. 3820/84 and (EEC) No. 3821/85. This regulation
is available on the Internet at http://europa.eu.int/eur-lex/en/lif/reg/en_register_07204020.html
, where it is identified by the number 31998R2135.
--------------------------------------------------------------------------- Furthermore, the EU enforcement community expressed a number of
concerns about perceived differences, incompatibilities, and
inconsistencies between the current manual-tachograph regulation and
the proposed electronic-tachograph regulation. There have also been
concerns about the published requirements for data downloading and the
utility of the devices for roadside enforcement. See D. M. Freund,
Working Paper, On-board automated recording for commercial motor
vehicle drivers' hours-of-service compliance: the European experience,
August 2001. We request responses to the following questions concerning testing
and certification procedures. We also welcome any other comments
relevant to this issue. (1) Who could perform certification tests? Should they be done by
FMCSA, by another Federal agency, or by an independent third party
according to procedures and documentation requirements set forth in
regulation? (2) Should FMCSA continue to allow manufacturers of these devices
to self-certify them? Why, or why not? (3) Should FMCSA develop a list of approved devices, similar to the
Conforming Products List maintained by [[Page 53394]] the National Highway Traffic Safety Administration?
--------------------------------------------------------------------------- \7\ The National Highway Traffic Safety Administration maintains
its Conforming Products List under the designation NTI-131. See 69
FR 42237 (July 14, 2004) for the most recent amendment.
--------------------------------------------------------------------------- (4) As noted above, FMCSA is aware of the European Union's detailed
design specification that is part of Regulation 2135/98 for electronic
tachographs. At this time, we believe the extraordinarily detailed
database specification in the Appendix to Regulation 2135/98 would be
too complex and costly, both for motor carriers and their EOBR
suppliers to implement and for FMCSA to review. What are your views on
this matter? J. EOBR Maintenance and Repair The current regulation (Sec. 395.15(i)(4)) requires the AOBRD to
provide the driver with an audible and/or visible warning when it
ceases to function. However, the types or degree of malfunction (such
as loss of power source, loss of linkage to sensors, loss of ability to
record, loss of ability to display) are not specified. While the
requirement at Sec. 395.15(i)(7) for the on-board recording device/
system to identify "sensor failures and edited data when reproduced in
printed form" [emphasis added] does address the question of data
integrity, it nevertheless omits any requirement that such data be
identified in an electronic record (i.e., one that is not printed). We request responses to the following questions related to EOBR
maintenance and repair: (1) Is it feasible to design the EOBR to record the malfunction
event (including its nature, date, and time) automatically `` that is,
within the EOBR's memory? (2) Are there circumstances that could prevent automatic capturing
of this information? Please describe them. In such cases, should the
driver record the malfunction event on a paper RODS? (3) Section 395.15(i)(8) of the current regulations addresses
maintenance and calibration of AOBRDs. It states that these devices
"must be maintained and recalibrated in accordance with the
manufacturer's specifications." Is this requirement sufficient? Should
the agency consider requiring that repair and recalibration be
performed only by an approved source? Who should certify repair
stations, and how could this be done? (4) The current regulations do not address EOBR maintenance
records. Motor carriers' CMV maintenance records must document
installation, malfunction, failure, repair, and recalibration. Since
the initial manufacturer places an identification and certification
plate on the device, should installation, repair, and recalibration
activities be documented by the approved source (see question 3), the
motor carrier, or both? Should entities authorized to perform repair
and maintenance be required to comply with FMCSA requests for access to
their facilities and to documents concerning their work performed for
motor carrier clients? (5) Although the current regulations do not address how long a CMV
equipped with an EOBR could continue to be operated after the device
failed, they do require drivers to reconstruct the RODS for the current
day and the past 7 days (less any days for which drivers have records),
and to continue to prepare a handwritten record of all subsequent duty
status until the device is again operational (Sec. 395.15(f)). Should
FMCSA require repair or replacement of an EOBR within a specific number
of days? (6) Manufacturers and suppliers: What types of periodic maintenance
and calibration do AOBRDs and EOBRs require? How often do they require
such maintenance, and what is the typical direct cost? (7) Manufacturers and suppliers: What is the typical lifespan of an
AOBRD? What is the typical lifespan of an EOBR? Is there any salvage
value to either device? K. Development of "Basic" EOBRs To Promote Increased Carrier
Acceptance Motor carriers and drivers expend a significant amount of time,
effort, and money to complete, file, review, and store paper RODS.
According to the most recent FMCSA estimate, it takes 6.5 minutes for a
CMV driver to complete a RODS and an additional 3 minutes for a motor
carrier to review it. Because more than 4.2 million CMV drivers must
complete and file their RODS, drivers spend more than 110 million hours
each year completing these records. Motor carriers must devote another
51 million hours annually to reviewing and storing the records. The
agency estimates the cost of completing, filing, reviewing, and
maintaining these records at $63.3 million annually. Many commercially available on-board recorders and support systems
offer drivers and motor carriers the opportunity to better plan their
schedules and routes, monitor the performance of their vehicles, and
use this information to improve safety and operational productivity. However, many of these advanced systems may come with a high price
tag, perhaps too high for most small motor carriers and independent
drivers. For this reason, we are interested in exploring the
development of a performance-based specification for a minimally
compliant EOBR. A minimally compliant device would provide the
electronic-data equivalent of an accurate RODS yet be more affordable
for small motor carriers and independent drivers. We request comments on the concept of such a performance
specification. L. Definitions--Basic Requirements FMCSA requests comments on the following possible definitions of
terms, including proposed basic requirements: (1) AOBRD means an automatic on-board recording device as defined
in 49 CFR 395.2. (2) EOBR means an electronic on-board recorder used to record a CMV
driver's hours of service in order to provide documentation to
determine compliance with 49 CFR Part 395. An EOBR has features
providing additional functions beyond those of an AOBRD. It must
provide a means to record and store the date and time of each data
entry, the status of the engine (on/off), and the location of the CMV.
The EOBR also must calculate and display the distance traveled and the
road speed. Definitions of these data elements follow. (3) Date and time: The date and time must be obtained via a signal
that cannot be altered by a motor carrier or driver. The signal may be
obtained from a source that is internal or external to the CMV. (4) Engine on/off: The signal indicating whether the engine is on
or off must be taken from the ECM on those engines so equipped. On
vehicles not equipped with an ECM (i.e., those manufactured before the
late 1980s), the signal must be taken from the tail shaft. The engine
status must be monitored and recorded at intervals of 1 second or less,
as well as when an engine on/off event occurs. (5) Location: The physical location of a CMV. At a minimum, the
location must be recorded at each change of duty status. The location
description for the duty status change must be sufficiently precise to
enable enforcement personnel to quickly determine the vehicle's
geographic location on a standard map or road atlas. The location data
must be entered by the driver or via signal(s) received from an
independent source external to the vehicle. FMCSA seeks comment on how
frequently such an external signal determines the vehicle location
entry, and whether specific events such as ignition shutoff should
automatically trigger a signal. [[Page 53395]] (6) Distance traveled: Miles traveled that day for each driver
operating the CMV. The EOBR must derive the distance traveled from a
source internal to the vehicle (for example, tail shaft data recorded
on the ECM). (7) Road speed: Must be derived using distance-traveled data from a
source internal to the CMV (usually the ECM). The data must be
monitored and recorded at intervals of 1 second or less. An AOBRD or
EOBR is deemed to be integrally synchronized when it receives and
records the engine and date/time information from a source or sources
internal to the CMV. M. Potential Benefits and Costs Benefits. In general, motor carriers could be expected to derive
both safety compliance and operational productivity benefits from
EOBRs. Fundamentally, the use of EOBRs could improve hours-of-service
compliance, potentially increasing highway safety. This could be
accomplished in several ways. First, because these devices document
driving hours more accurately and precisely than can paper RODS, they
could help deter excessive hours behind the wheel. Second, EOBR data
can be made more readily available to motor carriers to improve their
efficiency of assigning drivers to particular runs, and to ensure those
drivers' compliance throughout the trip. Third, the presence of EOBRs
would serve as a tangible reminder to both motor carriers and drivers
that compliance with the hours-of-service regulations is taken
seriously. Last, increased use of the devices could set a positive
example for the industry, and counteract the proclivity of some
carriers to compete on the basis of noncompliance with the hours-of-
service regulations. Another potential benefit of EOBR use would be to improve motor
carriers' operational productivity. Use of these devices, especially in
conjunction with appropriate automated review and monitoring software,
could provide for more accurate documentation of vehicle and driver
operations in a form that is amenable to automated review. FMCSA
estimates that these automatic on-board recording devices reduce
substantially, by as much as 90 percent, the time involved in
preparing, filing and storing paper. Additionally, on-board recording
devices could be integrated with other operations or logistics
management systems. They also may be installed as an accessory to some
vehicle productivity and safety monitoring systems, as well as take
advantage of interfaces with real-time communications systems. Costs. On the other hand, there may be a number of concerns and
potential limitations regarding the adaptability of state-of-the-art
EOBRs to hours-of-service compliance assurance. Currently available
devices cannot discriminate among the myriad activities that constitute
on-duty-not-driving, nor can they differentiate on-duty-not-driving and
off-duty activities. Further, many motor carriers have expressed substantial concerns
about costs and benefits of current on-board recorders. EOBRs can be
costly both to purchase and to operate. Estimates of installed costs
per unit range from $500, for hardware supplied to an original
equipment manufacturer for installation in a new vehicle, to $3,000 for
installation of a retrofit unit in an in-service CMV. The cost,
particularly at the lower end of the scale, does not include back-
office systems for data tracking, verification, and information
management, or training for drivers and others. In the 1990s, FHWA engaged the University of Michigan
Transportation Research Institute to study the applicability of on-
board recorders to motor carrier operations. Motor carrier fleet
response rates for this study were very low, possibly because of early
adverse industry commentary on the study. The study, completed in late
1998, found that: (1) Large fleets were far likelier to use on-board
recorders, and (2) mandatory on-board recorder use was overwhelmingly
viewed as requiring extremely high expenditures for minimal operational
benefits. Significantly, FMCSA data indicate that 90 percent of motor
carriers operate fewer than nine trucks or buses. The degree of benefit provided by an EOBR depends upon whether and
how it is used. Motor carriers will not benefit merely from installing
an EOBR; they must use and act upon the EOBR data. If a motor carrier
has not made the fundamental commitment to operate safely and fails to
review and act upon the EOBR data, the potential safety influence of
the device will be limited. FMCSA requests responses to the following questions concerning
benefits and costs: (1) What have been the safety, operational, and compliance benefits
experienced by motor carriers with actual use of AOBRDs or EOBRs? (2) What have been the driver hours-of-service violation rates,
out-of-service rates, and crash experience of motor carriers using
AOBRDs or EOBRs? (3) What cost savings have motor carriers using AOBRDs or EOBRs
experienced as a result of paperwork reduction, reduced time in
reviewing RODs, and other efficiencies? (4) In general, how is training on EOBR use presented to drivers,
dispatchers, and other motor carrier employees? How many hours of
training are typically required for drivers? Please estimate the direct
costs of this training. How many hours of training are typically
required for dispatchers and other back-office staff? Please estimate
the direct costs of this training. (5) What would be the typical cost of a typical EOBR that is
minimally compliant with the current regulations? Would there be
differences in the cost for a device installed at the time of the
vehicle's manufacture and the cost of an aftermarket product? Please
describe. (6) What do manufacturers of on-board computer and communications
systems typically charge motor carriers to incorporate in their systems
EOBR capabilities satisfying the requirements of Sec. 395.15? Please
also include estimates of the costs of back-office systems. N. Incentives To Promote EOBR Use FMCSA believes EOBRs have the potential to improve motor carriers'
compliance with the hours-of-service regulations, and to provide for
more efficient, effective, and economical documentation and review of
drivers' records of duty status. FMCSA requests comments on what other
incentives could help to promote the use of EOBRs. O. Miscellaneous Questions We also request responses to the following questions: (1) Should FMCSA propose requiring that motor carriers in general,
or only certain types of motor carrier operations, use EOBRs? (2) How reliable are current-generation EOBRs? (3) What is the minimum information FMCSA should require an
automatic or electronic on-board recorder to capture automatically,
without any input from the driver or external sources? (4) What information should drivers be required to enter into the
on-board recorder, and how could that information be verified? (5) For EOBRs that receive location information or raw latitude and
longitude information via electronic signals from GPS technologies or a
similar system, what minimum level of accuracy should FMCSA require
with regard to the likely distance between the indicated and actual
location of the CMV? (6) What types of technology should be used to verify, to the
greatest extent practicable, the identity of the person [[Page 53396]] who is operating the vehicle when the EOBR is recording the time as
driving time? (7) Should FMCSA require that if a memory storage device such as a
smart card is used, the on-board system also must store information
about the driver's identity and provide information concerning the
times the storage device was entered and removed, what information was
accessed, and by whom? (8) Should the use of a particular file transfer protocol (XML or
other) be considered for data capture? Should any such requirement
specify use of an open-source protocol? (9) What regulatory changes could FMCSA initiate to encourage
greater usage of EOBRs in the trucking and motorcoach industries? For
example, should we reduce our record retention requirement for motor
carriers that use EOBRs? (10) Manufacturers and suppliers: Approximately how many AOBRDs and
EOBRs are currently in use? Describe the general characteristics of
motor carriers (size, commodities transported, and geographical scope
of operations) that use devices with limited functionality and of those
using devices with comprehensive functionality. (11) Manufacturers and suppliers: What types of data would it be
inappropriate for an EOBR to record? That is, should any data be off-
limits? (12) Manufacturers and suppliers: When AOBRDs and EOBRs are
manufactured or repaired, are solvents or other substances used that
could have environmental or driver health consequences if they are not
disposed of properly? Do the devices contain components or materials
(including hazardous materials) that could generate adverse
environmental or driver health consequences if not disposed of
properly? (13) How are EOBRs typically disposed of? Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures FMCSA believes that this rulemaking is a significant regulatory
action within the meaning of E.O. 12866, and is significant within the
meaning of the U.S. Department of Transportation's regulatory policies
and procedures (DOT Order 2100.5, May 22, 1980; 44 FR 11034, February
26, 1979) because of significant public interest in issues related to
motor carrier compliance with the Federal hours-of-service regulations.
The Office of Management and Budget has reviewed this advance notice of
proposed rulemaking under E.O. 12866. We would appreciate responses
from the public to our questions on the potential costs and benefits of
this rulemaking. This will help us better determine the level of
significance of any subsequent rule regarding EOBR performance
specifications and use. Regulatory Flexibility Act To meet the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), FMCSA will evaluate the effects of this rulemaking
action on small entities and make a preliminary determination that a
regulation arising from this proceeding would have a significant
economic impact on a substantial number of small entities. Although this document does not make any specific proposal, we
believe it could lead to a proposed rule with a significant potential
impact on small motor carriers. FMCSA requests small entities to
comment on the questions asked in this advance notice (specifically,
questions related to the costs and benefits of compliance) so that we
may accurately determine the economic impacts any proposal would have
on small entities. In addition, we request small entities to comment on
other issues that are of particular concern to them, such as the
timeframe for implementation. This will help us to minimize any such
impacts. Executive Order 13132 (Federalism) FMCSA has analyzed this ANPRM in accordance with the principles and
criteria in Executive Order 13132 (Federalism). We have determined that
this ANPRM does not have a substantial direct effect on States, nor
would it limit the policymaking discretion of the States. Nothing in
this document preempts any State law or regulation. Should FMCSA decide
to issue a notice of proposed rulemaking dealing with electronic on-
board recorders, the agency would evaluate any federalism implications
of the proposal. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program. Paperwork Reduction Act Under the Office of Management and Budget (OMB) regulations, at 5
CFR part 1320, Controlling Paperwork Burdens on the Public (1995),
FMCSA is required to estimate the burden that new regulations would
impose in the course of generating, maintaining, retaining, disclosing,
or providing information to or for the agency. We believe that
rulemaking action in response to information submitted to the docket
could effect changes that would substantially reduce the collection of
information requirements that are currently approved. On March 4, 2002, OMB approved the agency's request to renew or
revise the information collection (IC) for the Driver's Record of Duty
Status. This approval includes the driver's record of duty status under
49 CFR 395.8 and the time card alternative under 49 CFR 395.1(e). OMB
assigned control number 2126-0001 to this information collection. FMCSA
estimated the annual burden of this information collection to be
161,364,492 hours, at a cost to the public of $63.7 million. In anticipation of a regulatory action making certain motor
carriers of passengers subject to the requirements of part 395 (among
other regulations), FMCSA submitted a request to OMB to revise this
information collection. OMB approved this revision on December 20,
2002, with an expiration date of December 31, 2005. The revised
estimated annual time burden was 162,200,492 hours, and the revised
annual cost was estimated at $64 million. OMB approved FMCSA's most
recent request to revise this information collection on April 29, 2003,
and it will expire on April 30, 2006. The latest revised estimated
annual time burden is 160,376,492 hours, with an estimated annual cost
of $63.3 million. This revision was due to the agency's implementation
of a final rule, entitled "Hours of Service of Drivers: Driver Rest
and Sleep for Safe Operations," that resulted in an estimated 48,000
fewer drivers being subject to the drivers' requirements covered by
this information collection. In addition, the title of this IC has been
changed from Driver's Record of Duty Status to Hours-of-Service of
Drivers Regulations. This change was proposed in the NPRM, and no
comments regarding the name change were received. If this advance notice of proposed rulemaking leads to a rule that
increases motor carriers' use of EOBRs, the annual time burden should
decrease because the time required to create each record is
considerably lower for electronic records than for paper records. Background of Past OMB Approvals OMB Control Number: 2126-0001. [[Page 53397]] Title: [Old]: Driver's Record of Duty Status (RODS). [New]: Hours-
of-Service of Drivers Regulations. As indicated earlier in the "Legal Basis" section, both the Motor
Carrier Act of 1935 and the Motor Carrier Safety Act of 1984 allow the
Secretary of Transportation (Secretary) to promulgate regulations that
establish maximum hours of service of drivers employed by motor
carriers. The Secretary has adopted regulations that require
information to be recorded in a specified manner. FMCSA regulations
allow motor carriers to make electronic records produced through the
use of automatic on-board recording devices, in lieu of keeping paper
records. FMCSA estimates that these automatic on-board recording
devices reduce substantially, by as much as 90 percent, the time
involved in preparing, filing and storing paper. FMCSA believes that
the use of automatic on-board recorders continues to be uncommon and is
unlikely to grow significantly under the current regulations. The RODS must be maintained with all supporting documents for a
period of 6 months from the date of the record. FMCSA believes the
recordkeeping requirements are necessary for motor carriers and drivers
to properly monitor compliance with the hours-of-service regulations.
They also are necessary for Federal, State and local officials who are
charged with monitoring and enforcing hours-of-service regulations. The
hours-of-service regulations were promulgated to promote the safe
operation of CMVs, and we believe this recordkeeping requirement is not
duplicative of information that would otherwise be reasonably
accessible to FMCSA. FMCSA estimates there are 6,410,430 commercial motor vehicle
drivers who are subject to the hours-of-service regulations. However,
not all of these drivers are necessarily subject to the RODS paperwork
requirement. For instance, FMCSA estimates that 25 percent of Local
Delivery drivers are eligible to use the 100-air-mile-radius exception
in Sec. 395.1(e) in lieu of preparing paper RODS as required under
Sec. 395.8. This group of drivers is unlikely to use EOBRs since their
recordkeeping requirements can be met with time cards. Therefore, we
assume here that the remaining 75 percent of Local Delivery drivers who
are subject to the hours-of-service regulations would be potential
users of automated on-board recorders. Below is a breakdown of the
total number of CMV drivers subject to the hours-of-service regulations
and, for the purposes of this ANPRM, the estimated percentage of
drivers within each category who would be potential users of automated
on-board recorders: Long-Haul Drivers: 366,304 (100 percent are assumed to be potential
EOBR users). Regional Drivers: 834,363 (100 percent are assumed to be potential
EOBR users). Local Delivery Drivers: 3,997,023 (75 percent, or 2,997,767, are
assumed to be potential EOBR users). Local, Services Drivers: 1,190,740 (zero percent are assumed to be
potential EOBR users). Long-Haul Commercial Van Drivers: 22,000 (100 percent are assumed
to be potential EOBR users). Multiplying the above estimates of drivers in each group by the
estimated percentages constituting potential EOBR users yields a total
of 4,220,434 CMV drivers. This is FMCSA's estimate of the number of CMV
drivers subject to the RODS paperwork requirement and, for the purposes
of this ANPRM, the number we assume would be potential EOBR users.
(More information on the above driver estimates is available at 67 FR
1396 (Jan. 10, 2002) under Docket number FMCSA-2001-9688.) FMCSA
welcomes comments and alternative estimates regarding the number of
applicable CMV drivers discussed above. Recordkeepers/Respondents: Approximately 4,220,434 CMV drivers. Average Burden per Response: 6.5 minutes for drivers to prepare the
daily record of duty status; 3 minutes for motor carriers to review and
file records of duty status and all supporting documents. Estimated Total Annual Burden: The estimated total annual burden is
160,376,492 hours. Collection of Information Frequency: RODS: Every day of the year.
Two or more days off duty may be kept on one record. Supporting
documents: Collection must occur during every workday. Estimated Annual Hour Burden for the Information Collection:
Interested parties are invited to send comments regarding any aspect of
these information collection requirements, including but not limited to
(1) Whether the collection of information is necessary for the
performance of FMCSA functions, including whether the information has
practical utility; (2) the accuracy of the estimated burden; (3) ways
to enhance the quality, utility, and clarity of the collected
information; and (4) ways to minimize the collection burden without
reducing the quality of the information collected. If you submit comments to the Office of Management and Budget
concerning the information collection requirements of this document,
your comments will be most useful if received at OMB by November 30,
2004. You must mail, hand deliver, or fax your comments to: Attention:
Desk Officer for the Department of Transportation, Docket Library,
Office of Information and Regulatory Affairs, Office of Management and
Budget, Room 10102, 725 17th Street, NW., Washington, DC 20503; fax:
(202) 395-6566. 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.
Accordingly, FMCSA has prepared a Preliminary Environmental Assessment
(PEA) for this advance notice of proposed rulemaking. The PEA is
available in the docket. We invite all interested parties to submit
public comments on this PEA. List of Subjects in 49 CFR Part 395 Global positioning systems, Highway safety, Highways and roads,
Intelligent Transportation Systems, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements. Issued on: August 27, 2004.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 04-19907 Filed 8-27-04; 1:30 pm]
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