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

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.

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:

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Web site: http://dms.dot.gov.

Follow the instructions for submitting comments on the DOT electronic site.

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Fax:

1-202-493-2251.

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Mail:

Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.

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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.

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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,

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

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 § 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 § 395.2 as:

* * an electric, electronic, electromechanical, or mechanical device capable of recording driver's duty status information accurately and automatically as required by § 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 § 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 § 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

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

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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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.

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.

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 § 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.

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

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 § 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.

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

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 § 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 § 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 § 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 § 395.15, or an EOBR designed and operated to comply with proposed § 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 § 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 § 395.2, and provide examples of supporting documents; (2) add new § 395.10 entitled “Systematic verification and record retention”; (3) modify the record retention requirements in §§ 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 § 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

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 § 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 §§ 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

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 § 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.

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

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

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

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 §§ 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

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 § 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 § 395.2 and comply with the performance requirements of § 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 § 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

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.

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

PeopleNet, @Road, Tripmaster, and Qualcomm stated that their motor 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

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

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 § 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

Association commenter

Cost for units and back-office support

Total cost to industry sector (estimate)

United Motorcoach Association

$1,500-$3,000 per unit

$60,000-$120,000 for units.

American Bus Association

$1,500-$3,000 per unit, $10,000-$80,000 computer costs

$120 million for units, $280 million for system upgrades.

National Propane Gas Association

$1,000 per unit, $15,000 per office unit

$35,000,000 for units, $52,500,000 for back offices.

Colorado Ready Mixed Concrete Association

$1,000-$3,000 per unit.

American Trucking Associations

$1,000-$2,000 per unit, not including back office and communications.

Truckload Carriers Association

$1,000-$3,000 per unit, more for retrofit on older trucks.

National Solid Wastes Management Association

$500 for new trucks, $3,000 for old

Up to $333 million for retrofit (private sector).

Up to $75 million for retrofit (public sector).

Cost for units and back-office support

Carrier:

United Natural Foods (using XATA's system)

$4,100 per unit, $150 installation per unit.

Windy City

$700 per unit, $20-$40 monthly fee.

Golden Plains Trucking, Ralph Meyers Trucking

$4,000 per unit.

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).

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']

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

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