# Electronic Logging Devices and Hours of Service Supporting Documents

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2014-05827

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** March 28, 2014
- **Citation:** 79 FR 17656

## Text

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 386, 390, and 395
[Docket No. FMCSA-2010-0167]
RIN 2126-AB20
Electronic Logging Devices and Hours of Service Supporting Documents

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Supplemental notice of proposed rulemaking; request for comments.

SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) proposes amendments to the Federal Motor Carrier Safety Regulations (FMCSRs) to establish: Minimum performance and design standards for hours-of-service (HOS) electronic logging devices (ELDs); requirements for the mandatory use of these devices by drivers currently required to prepare HOS records of duty status (RODS); requirements concerning HOS supporting documents; and measures to address concerns about harassment resulting from the mandatory use of ELDs. This rulemaking supplements the Agency's February 1, 2011, Notice of Proposed Rulemaking (NPRM) and addresses issues raised by the U.S. Court of Appeals for the Seventh Circuit in its 2011 decision vacating the Agency's April 5, 2010, final rule concerning ELDs as well as subsequent statutory developments. The proposed requirements for ELDs would improve compliance with the HOS rules.

DATES:

Comments must be received on or before May 27, 2014. Comments sent to the Office of Management and Budget (OMB) on the collection of information must be received by OMB on or before May 27, 2014. Before publishing a final rule, FMCSA will submit to the Office of the Federal Register publications listed in the rule for approval of the publications' incorporation by reference.

ADDRESSES:

You may submit comments identified by Docket Number FMCSA-2010-0167 using any of the following methods:

•
Federal eRulemaking Portal:

http://www.regulations.gov
. Follow the online instructions for submitting comments.

•
Mail:
Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.

•
Hand Delivery or Courier:
West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

•
Fax:
202-493-2251.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
SUPPLEMENTARY INFORMATION
section for instructions on submitting comments, including collection of information comments for the Office of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT:

Ms. Deborah M. Freund, Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 or by telephone at 202-366-5370.

SUPPLEMENTARY INFORMATION:

This supplemental notice of proposed rulemaking (SNPRM) is organized as follows:

I. Executive Summary

II. Public Participation and Request for Comments

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

D. Comments on the Collection of Information

III. Abbreviations and Acronyms

IV. Legal Basis for the Rulemaking

A. Motor Carrier Act of 1935

B. Motor Carrier Safety Act of 1984

C. Truck and Bus Safety and Regulatory Reform Act

D. Hazardous Materials Transportation Authorization Act of 1994

E. MAP-21

V. Background

A. ELDs: Discussion of the 2010 Final Rule and the 2011 NPRM

B. History of the Supporting Documents Rule

C. Concurrent Activities

D. Table Summary

VI. ELD Performance and Design Specifications

A. Terminology

B. ELD Function

C. ELD Regulatory Compliance

VII. Proposed ELD Mandate

VIII. Proposed Compliance Date

A. Effective and Compliance Dates for a Final Rule

B. 2-Year Transition Period

C. Cost Associated With Replacing AOBRDs

IX. Proposed Supporting Document Provisions

A. Applicability

B. Categories

C. Data Elements

D. Number

E. Submission to Motor Carrier

F. HOS Enforcement Proceedings

G. Carriers Using Paper Logs

H. Self-Compliance Systems

X. Ensuring Against Driver Harassment

A. Drivers' Access to Own Records

B. Explicit Prohibition on Harassment

C. Complaint Procedures

D. Enhanced Penalties To Deter Harassment

E. Mute Function

F. Edit Rights

G. Tracking of Vehicle Location

H. FMCSRs Enforcement Proceedings

I. Summary

XI. MAP-21 Coercion Language

XII. Section-by-Section Analysis

A. Part 385—Safety Fitness Procedures

B. Part 386—Rules of Practice for Motor Carrier, Intermodal Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials Proceedings

C. Part 390—Federal Motor Carrier Safety Regulations: General

D. Part 395—Hours of Service of Drivers

XIII. Regulatory Analyses

A. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review) and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act of 1995

D. Executive Order 12988 (Civil Justice Reform)

E. Executive Order 13045 (Protection of Children)

F. Executive Order 12630 (Taking of Private Property)

G. Executive Order 13132 (Federalism)

H. Executive Order 12372 (Intergovernmental Review)

I. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments

J. Paperwork Reduction Act

K. National Environmental Policy Act and Clean Air Act

L. Executive Order 12898 (Environmental Justice)

M. Executive Order 13211 (Energy Effects)

N. National Technology Transfer and Advancement Act

O. E-Government Act of 2002

I. Executive Summary

This SNPRM would improve commercial motor vehicle (CMV) safety and reduce the overall paperwork burden for both motor carriers and drivers by increasing the use of ELDs within the motor carrier industry, which would in turn improve compliance with the applicable HOS rules. Specifically, this SNPRM proposes: (1) Requiring new technical specifications for ELDs that address statutory requirements; (2) mandating ELDs for drivers currently using RODS; (3) clarifying supporting document requirements so that motor carriers and drivers can comply efficiently with HOS regulations, and so that motor carriers can make the best use of ELDs and related support systems as their primary means of recording HOS information and ensuring HOS

compliance; and (4) proposing both procedural and technical provisions aimed at ensuring that ELDs are not used to harass vehicle operators.

In August 2011, however, the United States Court of Appeals for the Seventh Circuit vacated the April 2010 final rule, including the device performance standards. See
Owner-Operator Indep. Drivers Ass'n
v.
Fed. Motor Carrier Safety Admin.,
656 F.3d 580 (7th Cir. 2011) available in the docket for this rulemaking. Thus, FMCSA expands the 2011 NPRM significantly. The regulatory text proposed in today's SNPRM supersedes that published in the February 2011 NPRM.

All of the previous rulemaking notices, as well as notices announcing certain Motor Carrier Safety Advisory Committee (MCSAC) meetings and public listening sessions, referred to the devices and support systems used to record electronically HOS RODS as “electronic on-board recorders (EOBRs).” Beginning with this SNPRM, the term “electronic logging device (ELD)” is substituted for the term “EOBR” in order to be consistent with the term used in MAP-21. To the extent applicable, a reference to an ELD includes a related motor carrier or vendor central support system—if one is used—to manage or store ELD data.

This rulemaking is based on authority in a number of statutes, including the Motor Carrier Act of 1935, the Motor Carrier Safety Act of 1984, the Truck and Bus Safety and Regulatory Reform Act of 1988, the Hazardous Materials Transportation Authorization Act of 1994 (HMTAA), and MAP-21.

This SNPRM follows the NPRM published February 1, 2011 (76 FR 5537). The original NPRM had three components that: (1) Required ELDs to be used by motor carriers and drivers required to prepare handwritten RODS; (2) required motor carriers to develop and maintain systematic HOS oversight of their drivers; and (3) simplified supporting document requirements so motor carriers could achieve paperwork efficiencies from ELDs and their support systems as their primary means of recording HOS information and ensuring HOS compliance. This SNPRM modifies that earlier proposal based on docket comments and other new information received by the Agency. Because the Agency's 2010 final rule providing technical specifications for ELDs was vacated, this SNPRM also proposes new technical specifications for ELDs and addresses the issue of ELDs being used by motor carriers to harass drivers. The SNPRM supersedes the February 1, 2011, NPRM.

This rulemaking examines four options:

• Option 1: ELDs are mandated for all CMV operations subject to 49 CFR part 395.

• Option 2: ELDs are mandated for all CMV operations where the driver is required to complete RODS under 49 CFR 395.8.

• Option 3: ELDs are mandated for all CMV operations subject to 49 CFR part 395, and the ELD is required to include or be able to be connected to a printer and print RODS.

• Option 4: ELDs are mandated for all CMV operations where the driver is required to complete RODS under 49 CFR 395.8, and the ELD is required to include or be able to be connected to a printer and print RODS.

The following table lists the breakdown of regulated entities under FMCSA's regulations:

Table 1—Regulated Entities

For-hire
general freight

For-hire
specialized freight

For-hire

passenger
1

Private
property

Private
passenger

Total

Carriers
176,000
139,000
8,000
203,000
6,000
532,000

Percent of Carriers
33%
26%
2%
38%
1%
100%

Drivers
1,727,000
891,000
216,000
1,442,000
40,000
4,316,000

Percent of Drivers
40%
21%
5%
33%
1%
100%

Total CMVs
1,717,000
1,003,000
183,000
1,433,000
24,000
4,360,000

Percent of CMVs
39%
23%
4%
33%
1%
100%

Herfindahl-Hirschman Index
53
5
406
6
15
10

10-Firm Concentration
18.0%

38.0%

Single-Truck For-Hire Carriers
93,000
65,000

Source: FMCSA, Motor Carrier Management Information System (MCMIS) registration data as of December 14, 2012.

FMCSA evaluated
1

another option for the NPRM prepared in 2011, which would have required ELD use by hazardous materials and passenger carriers that did not use RODS, in addition to all RODS users. This was not the preferred option then and it was not part of this evaluation. The marginal net benefits of including those groups in the rule were negative. When these carrier populations were added to RODS users, estimated net benefits, although they were positive, were 8.5 percent lower than the net benefits calculated using the RODS-only population. Hazardous material carriers and passenger carriers tend to have above average safety records. This may be because they are subject to many other safety regulations, and are overseen by FMCSA and other Federal agencies. However, neither group will gain paperwork savings from eliminating paper RODS, as costs exceeded benefits for these two groups.

1
Includes 2,000 carriers with only taxi/limousine services operating in interstate commerce.

FMCSA gathered cost information from publicly available marketing material and through communication with fleet management systems (FMS) vendors. Although the prices of some models have not significantly declined in recent years, manufacturers have been introducing less expensive FMS in-cab units and support systems with fewer features (for example, they do not include real time tracking and routing), as well as in-cab units that resemble a stand-alone ELD. The Agency bases its calculations in this RIA on the Mobile Computing Platform (MCP) 50 produced by Qualcomm, which is the largest manufacturer (by market share) of FMS in North America.
2

While this analysis is not an endorsement of Qualcomm's products, the Agency believes that its

large market share makes the MCP 50 FMS an appropriate example of current state-of-the-art, widely available devices with ELD functionality. FMCSA also examined cost information from several other vendors, and found that the MCP 50, when all installation, service, and hardware costs are considered, falls roughly into the middle of the price range of FMSs with ELD capabilities: $495 per CMV on an annualized basis where the range is from $165 to $832 per CMV on an annualized basis. The Agency also carefully considered the VDO RoadLog ELD produced by the Continental Corporation, which, through its VDO subsidiary, has a 90 percent share of the electronic tachograph market in the European Union (EU) and more than 5 million electronic tachographs or ELD devices in use worldwide.
3

Continental has recently begun offering the RoadLog ELD in the North American market, and the Agency believes that the overall capacity and market share of this corporation may allow it to influence the U.S. ELD market. As discussed below, the Agency has found that basing costs on the MCP 50, the VDO RoadLog, or several other devices, all lead to positive net benefits of this rulemaking. Although carrier preferences and device availability prevent FMCSA from more precisely estimating costs, it is confident that they will be lower than the rule's benefits.

2
Qualcomm Incorporated 2012 Annual Report, Securities and Exchange Commission Form 10K, (
investor.qualcomm.com/annuals.cfm
.) The Qualcomm Enterprise Services (QES, recently renamed Omnitracs) reported revenues of $371 million in fiscal year 2012. Omnitracs currently estimates its active installed base of FMS, which include those with an ELD function, to be 350,000 in North America, most of which are operated in the US (
http://www.qualcomm.com/solutions/transportation-logistics
). FMCSA estimates that about 955,000 CMVs currently use FMS in the US, including those with an ELD function, which indicates that Qualcomm's US market share is as high as 37 percent.

3

http://www.RoadLog.vdo.com/generator/www/us/en/vdo/RoadLog/about_vdo/about_vdo_en.html
. May 9, 2012.

The Agency requests comments on its analysis of the ELD and FMS markets, and, in particular, how prices and availability of units affect motor carriers differently with respect to fleet size. This analysis also evaluates the costs and benefits of improvements in motor carrier compliance with the underlying HOS rules through the use of ELDs. To evaluate compliance costs, the Agency has updated its assessment of the baseline level of non-compliance with the HOS rules to account for changes in factors such as inflation, changes in the HOS violation rate that preceded the mandate for ELD use, and the vehicle miles traveled by CMVs. To evaluate safety benefits, the Agency examined several types of analysis and has used its judgment to select a conservative result for the number of crashes and fatalities avoided by ELD use. The costs and benefits are detailed in the RIA associated with this rulemaking and the methods by which they were derived are also discussed. The major elements that contribute to the overall net benefits are shown below in Table 1. This table summarizes the figures for the Agency's preferred option, Option 2, which also has the highest net benefits.

Table 2—Cost and Benefit Summary

Cost element

Annualized total value
($2011
millions)

Notes

New ELDs
955.7
For all long haul (LH) and short haul (SH) drivers that use RODS, to pay for new devices and FMS upgrades.

Automatic On-Board Recording Device (AOBRD) Replacement Costs
8.7
Carriers that purchased AOBRDs for their CMVs and can be predicted to still have them in 2018 would have to replace them with ELDs.

Equipment for Inspectors
2.0
Quick Response Code (QR) scanners to read ELD output. These would be heavily used, and we assume they will be replaced three times during the 10 year period for which we are estimating costs.

Inspector Training
1.7
Costs include travel to training sites, as well as training time, for all inspectors in the first year and for the new officers every year after.

CMV Driver Training
6.7
Costs of training new drivers in 2016, and new drivers each year thereafter.

Compliance
604.0
Extra drivers and CMVs needed to ensure that no driver exceeds HOS limits.

Benefit element
Annualized total value ($2011 millions)
Notes

Paperwork Savings (Total of three parts below)
1,637.7

(1) Driver Time
1,261.4
Reflects time saved as drivers no longer have to fill out and submit paper RODS.

(2) Clerical Time
278.8
Reflects time saved as office staff no longer have to process paper RODS.

(3) Paper Costs
97.6
Purchases of paper logbooks are no longer necessary.

Safety (Crash Reductions)
394.8
Although the predicted number of crash reductions is lower for SH than LH drivers, both should exhibit less fatigued driving if HOS compliance increases. Complete HOS compliance is not assumed.

This SNPRM also proposes changes to the HOS supporting document requirements. The Agency has attempted to clarify its supporting document requirements, recognizing that ELD records serve as the most robust form of documentation for on-duty driving periods. FMCSA neither increases nor decreases the burden associated with supporting documents. These proposed changes are expected to improve the quality and usefulness of the supporting documents retained, and would consequently increase the effectiveness and efficiency of the Agency's review of motor carriers' HOS records during on-site compliance reviews, thereby increasing its ability to detect HOS rules violations. The Agency is currently unable to evaluate the impact the proposed changes to supporting documents requirements would have on crash reductions. Tables 3 and 4 summarize the analysis. The figures presented are annualized using 7 percent and 3 percent discount rates.

Table 3—Annualized Costs and Benefits
[$2011 millions, 7 percent discount rate]

Option 1
Option 2
Option 3
Option 4

New ELD Costs
$1,270.0
$955.7
$1,722.6
$1,311.1

AOBRD Replacement Costs
8.7
8.7
8.7
8.7

HOS Compliance Costs
726.6
604.0
726.6
604.0

Enforcement Training Costs
1.7
1.7
1.7
1.7

Enforcement Equipment Costs
2.0
2.0
0.0
0.0

Driver Training
8.5
6.7
8.5
6.7

Total Costs
2,017.4
1,578.7
2,468.0
1,932.1

Paperwork Savings
1,637.7
1,637.7
1,637.7
1,637.7

Safety Benefits
474.8
394.8
474.8
394.8

Total Benefits
2,112.5
2,032.5
2,112.5
2,032.5

Net Benefits
95.1
453.8
−355.5
100.4

Table 4—Annualized Costs and Benefits
[$2011 Millions, 3 percent discount rate]

Option 1
Option 2
Option 3
Option 4

ELD Costs
$1,260.7
$949.5
$1,707.4
$1,300.3

AOBRD Replacement Costs
8.0
8.0
8.0
8.0

HOS Compliance Costs
726.6
604.1
726.6
604.1

Enforcement Training Costs
1.6
1.6
1.6
1.6

Enforcement Equipment Costs
2.0
2.0
0.0
0.0

Driver Training
7.5
5.9
7.5
5.9

Total Costs
2,006.4
1,571.1
2,451.1
1,919.9

Paperwork Savings
1,670.2
1,670.2
1,670.2
1,670.2

Safety Benefits
474.8
394.8
474.8
394.8

Total Benefits
2,145.0
2,065.0
2,145.0
2,065.0

Net Benefits
138.6
493.9
−306.1
145.1

The estimated benefits of ELDs do not differ greatly among the options, and the paperwork savings are identical for all four options. The Agency estimates zero paperwork burden from operations exempt from RODS, so ELDs can only reduce the paperwork burden of RODs users, which are included in all four options. Safety benefits are higher when all regulated CMV operations are included in the ELD mandate (Options 1 and 3), but the marginal costs (ELD costs plus compliance costs) of including these operations are about 5
1/2
times higher than the marginal benefits. These options would add short-haul drivers who do not use RODS, have better HOS compliance, and much lower crash risk from HOS non-compliance. For the short-haul non-RODS subgroup, FMCSA's analysis indicates that ELDs are not a cost-effective solution to their HOS non-compliance problem. This result is consistent with that of past ELD analyses. The requirement for printers with each ELD would increase ELD costs by about 40 percent. This is the first time that FMCSA has explored requiring a printer, and it seeks comment on the feasibility and accuracy of the benefit and cost estimates associated with this requirement. Only Option 2, which would require ELDs similar to those currently being manufactured for paper RODS users, provides positive net benefits. Net benefits for Options 1, 2, and 4 are positive with a 3 percent discount rate, but the net benefits for Option 2 are still much higher than those of other options—about 11 times higher than the net benefits of the next best alternative, Option 4. Non-monetized benefits of the various options are also substantial. The number of crashes avoided ranges from 1,425 to 1,714, and this rule could save between 20 and 24 lives per year. Review of Trucks Involved in Fatal Accidents (TIFA) data from 2005-2009 supports this analysis: Variables indicating that the driver of the CMV was drowsy, sleepy, asleep, or fatigued are coded for crashes that caused an average of 85 deaths per year in that period (
http://www.umtri.umich.edu/our-results/publications/trucks-involved-fatal-accidents-factbook-2008-linda-jarossi-anne-matteson
). An average of nine crashes per year in TIFA was associated with fatigued drivers exceeding drive time limits. Additional factors were at play in most of these events, but the removal of some substantial fraction of fatigued driving should provide some benefit. Estimated crash reductions due to the proposed rule are summarized in Table 5.

Table 5—Estimated Reductions in Crashes

Option 1
Option 2
Option 3
Option 4

Crashes Avoided
1,714
1,425
1,714
1,425

Injuries Avoided
522
434
522
434

Lives Saved
24
20
24
20

II. Public Participation and Request for Comments

After the publication of the 2011 NPRM, Congress enacted MAP-21; the Act that mandated that the Agency require the use of ELDs by interstate CMV drivers required to keep RODS. In addition, the Agency gained information as part of its outreach efforts. Because the proposed regulatory text in today's SNPRM supersedes that proposed in the 2011 NPRM, and because of the significance of the changes, FMCSA encourages stakeholders and members of the public—including those who submitted comments previously—to participate in this rulemaking by submitting comments and related materials on the complete proposal. FMCSA will address comments submitted in response to the February 2011 NPRM (76 FR 5537) as part of a final rule, to the extent such comments are relevant given the intervening events since publication of that document and today's SNPRM.

A. Submitting Comments

If you submit a comment, please include the docket number for this SNPRM (Docket No. FMCSA-2010-0167), indicate the specific section of this document to which each section applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to
http://www.regulations.gov
, put the docket number, FMCSA-2010-0167, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
1/2
by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
http://www.regulations.gov
. Insert the docket number, FMCSA-2010-1067, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

C. Privacy Act

All comments received will be posted without change to
http://www.regulations.gov
and will include any personal information you provide. Anyone may search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Federal Register
(FR) notice published on January 17, 2008 (73 FR 3316) or you may visit
http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf
.

D. Comments on the Collection of Information

If you have comments on the collection of information discussed in this SNPRM, you must also send those comments to the Office of Information and Regulatory Affairs at OMB. To ensure that your comments are received on time, the preferred methods of submission are by email to
oira_submissions@omb.eop.gov
(include docket number “FMCSA-2010-0167” and “Attention: Desk Officer for FMCSA, DOT” in the subject line of the email) or fax at 202-395-6566. An alternative, though slower, method is by U.S. Mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, FMCSA, DOT.

III. Abbreviations and Acronyms

Automatic On-Board Recording Device
AOBRD.

Behavior Analysis Safety Improvement Categories
BASICs.

Commercial Driver's License
CDL.

Commercial Motor Vehicle
CMV.

Compliance, Safety, Accountability
CSA.

Department of Transportation
DOT.

Electronic Control Module
ECM.

Electronic Logging Device
ELD.

Electronic On-Board Recorder
EOBR.

Extensible Markup Language
XML.

Federal Motor Carrier Safety Administration
FMCSA.

Federal Motor Carrier Safety Regulations
FMCSRs.

Fleet Management System
FMS.

Geographic Names Information System
GNIS.

Global Positioning System
GPS.

Hazardous Materials
HM.

Hours of Service
HOS.

Mobile Computing Platform 50
MCP50.

Motor Carrier Management Information System
MCMIS.

Motor Carrier Safety Advisory Committee
MCSAC.

Motor Carrier Safety Assistance Program
MCSAP.

National Highway Traffic Safety Administration
NHTSA.

National Transportation Safety Board
NTSB.

North American Free Trade Agreement
NAFTA.

North American Industrial Classification System
NAICS.

Notice of Proposed Rulemaking
NPRM.

Office of Management and Budget
OMB.

On-Duty Not Driving
ODND.

Personally Identifiable Information
PII.

Quick Response
QR.

Record of Duty Status
RODS.

Regulatory Impact Analysis
RIA.

Supplemental Notice of Proposed Rulemaking
SNPRM.

Universal Serial Bus
USB.

Vehicle Identification Number
VIN.

IV. Legal Basis for the Rulemaking

FMCSA's authority for this rulemaking is derived from several statutes.

A. Motor Carrier Act of 1935

The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August 9, 1935), as amended, (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” (49 U.S.C. 31502(b)). Among other things, by requiring the use of ELDs, this SNPRM would require safety equipment that would increase compliance with the HOS regulations and address the “safety of operation” of motor carriers subject to this statute. The SNPRM would do this by ensuring an automatic recording of driving time and a more accurate record of a driver's work hours.

B. Motor Carrier Safety Act of 1984

The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832, October 30, 1984), as amended, (the 1984 Act) provides authority to the Secretary of Transportation (Secretary) to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to prescribe minimum safety standards for CMVs to ensure that—(1) CMVs are maintained, equipped, loaded, and operated safely; (2) responsibilities imposed on CMV drivers do not impair their ability to operate the vehicles safely; (3) drivers' physical condition is adequate to operate the vehicles safely; (4) the operation of CMVs does not have a deleterious effect on drivers' physical condition; and (5) CMV drivers are not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a CMV in violation of regulations promulgated under 49 U.S.C. 31136 or under chapter 51 or chapter 313 of 49 U.S.C. (49 U.S.C. 31136(a). 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)). ELDs that are properly designed, used, and maintained would enable drivers, motor carriers, and authorized safety officials to more effectively and accurately track on-duty driving hours, thus preventing both inadvertent and deliberate HOS violations. Driver compliance with the HOS rules helps ensure that drivers are provided time to obtain restorative rest and thus that “the physical condition of [CMV drivers] is adequate to enable them to operate the vehicles safely” (49 U.S.C. 31136(a)(3)). Indeed, the Agency considered whether this proposal would impact driver health under 49 U.S.C. 31136(a)(3) and (a)(4), asdiscussed in the Draft Environmental Assessment, available in the docket for this rulemaking.

By ensuring an electronic RODS is tamper-resistant, this rulemaking would protect against coercion of drivers, (49 U.S.C. 31136(a)(5)). The ELD would decrease the likelihood that driving time, which would be captured automatically by the device, could be concealed and that other duty status information entered by the driver could be inappropriately changed after it is entered. Thus, motor carriers would have limited opportunity to force drivers to violate the HOS rules without leaving an electronic trail that would point to the original and revised records. This SNPRM also expressly proposes to prohibit motor carriers from coercing drivers to falsely certify their ELD records. FMCSA intends to further address the issue of driver coercion in a separate rulemaking.

Because the proposal would increase compliance with the HOS regulations, it would have a positive effect on the physical condition of drivers and help to ensure that CMVs are operated safely (49 U.S.C. 31136(a)(1)). Other requirements in 49 U.S.C. 31136(a)(1) concerning safe motor vehicle maintenance, equipment, and loading are not germane to this SNPRM because ELDs and the SNPRM's related provisions influence driver operational safety rather than vehicular and mechanical safety.

C. Truck and Bus Safety and Regulatory Reform Act

Section 9104 of the Truck and Bus Safety and Regulatory Reform Act (Pub. L. 100-690, 102 Stat. 4181, 4529, November 18, 1988) anticipated the Secretary's promulgating a regulation about the use of monitoring devices on CMVs to increase compliance with HOS regulations. The statute, as amended, requires the Agency to ensure that any such device is not used to “harass a vehicle operator” (49 U.S.C. 31137(a)(2)). This SNPRM would protect drivers from being harassed by motor carriers to violate safety regulations and would limit a motor carriers' ability to interrupt a driver's sleeper berth period. In so doing, the SNPRM also furthers the provisions of 49 U.S.C. 31136(a), protecting driver's health. The provisions addressing harassment proposed in this SNPRM are discussed in more detail under Part X.

D. Hazardous Materials Transportation Authorization Act of 1994

Section 113 of the Hazardous Materials Transportation Authorization Act of 1994, Public Law 103-311, 108 Stat. 1673, 16776-1677, August 26, 1994, (HMTAA) requires the Secretary to prescribe regulations to improve compliance by CMV drivers and motor carriers with HOS requirements and the effectiveness and efficiency of Federal and State enforcement officers reviewing such compliance. Specifically, the Act addresses requirements for supporting documents. The cost of such regulations must be reasonable to drivers and motor carriers. Section 113 of HMTAA describes what elements must be covered in regulation, including a requirement that the regulations specify the “number, type, and frequency of supporting documents that must be retained by the motor carrier” and a minimum retention period of at least 6 months.

Section 113 also requires that regulations “authorize, on a case-by-case basis, self-compliance systems” whereby a motor carrier or a group of motor carriers could propose an alternative system that would ensure compliance with the HOS regulations.

The statute defines “supporting document,” in part, as “any document . . . generated or received by a motor carrier or commercial motor vehicle driver in the normal course of business. . . .” This SNPRM does not propose to require generation of new supporting documents outside the normal course of the motor carrier's business. The SNPRM addresses supporting documents that a motor carrier would need to maintain consistent with the statutory requirements. The provisions addressing supporting documents are discussed in more detail under Part IX.

E. MAP-21

Section 32301(b) of the Commercial Motor Vehicle Safety Enhancement Act, enacted as part of MAP-21 (Pub. L. 112-141, 126 Stat. 405, 786-788 (July 6, 2012)), mandated that the Secretary adopt regulations requiring that CMVs involved in interstate commerce, operated by drivers who are required to

keep RODS, be equipped with ELDs.
4

The statute sets out provisions that the regulations must address, including device performance and design standards and certification requirements. In adopting regulations, the Agency must consider how the need for supporting documents might be reduced, to the extent data is captured on an ELD, without diminishing HOS enforcement. The statute also addresses privacy protection and use of data. Like the Truck and Bus Safety and Regulatory Reform Act, the amendments in MAP-21 section 32301(b) require the regulations to “ensur[e] that an electronic logging device is not used to harass a vehicle operator.” Finally, as noted above, MAP-21 amended the 1984 Act to add new 49 U.S.C. 31136(a)(5), requiring that FMCSA regulations address coercion of drivers as discussed above.

4
In today's SNPRM, the term “electronic logging device (ELD)” is substituted for the term “electronic on-board recorder (EOBR),” which was used in the April 2010 final rule and February 2011 NPRM, in order to be consistent with the term used in MAP-21. In this SNPRM, we use the term ELD both generically and specifically. Generically, we use it to describe what has in the past been called an ELD, an EOBR, or a fleet management system (FMS). In referring to the proposed regulation, we use the term specifically to mean a device or technology that complies with proposed subpart B of part 395.

V. Background

A. ELDs: Discussion of the 2010 Final Rule and the 2011 NPRM

1. April 2010 Rule

On April 5, 2010, the Agency issued a final rule (April 2010 rule) that addressed the limited, remedial use of electronic on-board recorders or EOBRs—now termed “ELDs”—for motor carriers with significant HOS violations (75 FR 17208).
5

The rule also contained new performance standards for all ELDs installed in CMVs manufactured on or after June 4, 2012. These standards reflected the significant advances in recording and communications technologies that had occurred since the introduction of the first AOBRDs under a waiver program in 1985 and the publication of 49 CFR 395.15 in 1988 (53 FR 38666). FMCSA would have required ELDs:

5
All the documents related to the April 2010 rule can be found in docket FMCSA-2004-18940.

• To be integrally synchronized to the engine.

• To provide the same basic information as is required on an AOBRD, including the identity of the driver, the USDOT number, and the CMV's identification.

• To record the distance traveled and the driver's duty status.

• To automatically record the date, time, and location of the CMV at each change of duty status and at intervals of no greater than 60 minutes while the CMV was in motion.

• To ensure the security and integrity of the recorded data by conforming to specific information processing standards.

• To meet certain communications interface requirements for hardwired and wireless transfer of information.

• To allow drivers to annotate the ELD record while requiring the ELD or its support system to maintain the original recorded information and track the annotations.

• To be resistant to tampering by protecting both input and output. It would have identified any amendments or annotations of the record, including who made them and when.

• To provide a digital file in a specified format for use by enforcement officials that could be read using non-proprietary software. This would have included the ability to generate a graph-grid on an enforcement official's computer, rather than on the ELD itself.

• To provide certain self-tests and self-monitoring. It would have identified sensor failures and edited or annotated data. The ELD would also have provided a notification 30 minutes before the driver reached the daily on duty and driving limits.

Remedial directive.
If a motor carrier were found, during a single compliance review, to have a 10-percent violation rate for any HOS regulation listed in rescinded appendix C of 49 CFR part 385, the 2010 rule would have required motor carriers to install, use, and maintain ELDs on all of the motor carrier's CMVs for a period of 2 years. By focusing on the most severe violations and the most chronic violators, the Agency sought to achieve the greatest safety benefit by adopting a mandatory installation trigger designed to single out motor carriers that demonstrated poor compliance with the HOS regulations.

Incentives to promote the voluntary use of ELDs.
In order to increase the number of motor carriers using ELDs in place of paper RODS, the April 2010 rule would have provided incentives for voluntary adoption. The incentives would have included eliminating the requirement to maintain supporting documents related to driving time. Instead, the ELD would record and make available that information. Additionally, if a compliance review of a motor carrier who voluntarily used ELDs showed a 10 percent or higher violation rate based on the initial focused sample, the 2010 rule would have provided that FMCSA assess a random sample of the motor carrier's overall HOS records. The HOS part of the safety rating would have been based on this random review. Given that the use of ELDs would be required for most drivers currently required to prepare RODS, today's SNPRM does not propose any incentives for ELD use.

2. February 2011 NPRM

On February 1, 2011, FMCSA proposed to expand the electronic logging requirements to a much broader population of motor carriers (76 FR 5537). Subject to a limited exception for drivers who would need to keep RODS on an infrequent basis, all motor carriers currently required to document their drivers' HOS with RODS would have been required to use ELDs meeting the requirements of the April 2010 rule on CMVs manufactured on or after June 1, 2012. Furthermore, within 3 years of the rule's effective date, motor carriers would have been required to install and use ELDs meeting these technical requirements on CMVs operated by drivers required to keep RODS, subject to a limited exception, regardless of the date of the CMV's manufacture.

The 2011 NPRM did not alter the ELD technical specifications contained in the April 2010 rule. FMCSA also proposed to address in regulation the requirement that motor carriers—both RODS and timecard users—systematically monitor their drivers' compliance with the HOS requirements. While this requirement is not novel (see
In the Matter of Stricklin Trucking Co., Inc., Order on Reconsideration
(March 20, 2012)
6

), the proposed rule would have added a specific requirement to part 395 that motor carriers have in place an HOS management system. The Agency proposed to clarify the supporting documents requirements for motor carriers using ELDs by requiring retention of categories of documents and eliminating the need to maintain supporting documents to verify driving time.

6
Available in Docket FMCSA-2011-0127,
http://www.regulations.gov
(Document No. FMCSA-2011-0127-0013).

3. March 2011 Extension of Comment Period

FMCSA received two requests for extensions of the comment period. The Agency granted these requests and extended the comment period in a notice published on March 10, 2011 (76 FR 13121).

4. April 2011 Notice Requesting Additional Comment on Harassment

In June 2010, the Owner-Operator Independent Drivers Association (OOIDA) filed a petition in the United States Court of Appeals for the Seventh Circuit seeking review of the April 2010 rule (
Owner-Operator Indep. Drivers Ass'n
v.
Fed. Motor Carrier Safety Admin.,
656 F.3d 580 (7th Cir. 2011)), in the docket for this rulemaking. OOIDA raised several concerns, including the potential use of ELDs by motor carriers to harass drivers. Oral arguments were held on February 7, 2011, shortly after publication of the February 2011 NPRM. Due to the concurrent litigation on the 2010 final rule, FMCSA supplemented the request for public comments on the 2011 NPRM by publishing a notice on April 13, 2011, seeking comments on the topic of harassment (76 FR 20611).

5. August 2011 Seventh Circuit Decision

On August 26, 2011, the Seventh Circuit vacated the entire April 2010 rule. The court held that, contrary to a statutory requirement, the Agency failed to address the issue of driver harassment.
7

7
656 F.3d 580, 589. At the time of the court's decision, 49 U.S.C. 31137(a) read as follows: “Use of Monitoring Devices.—If the Secretary of Transportation prescribes 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 of the Secretary, the regulation shall ensure that the devices are not used to harass vehicle operators. However, the devices may be used to monitor productivity of the operators.” MAP-21 revised section 31137 and no longer expressly refers to “productivity.” However, FMCSA believes that, as long as an action by a motor carrier does not constitute harassment that would be prohibited under this rulemaking, a carrier may legitimately use the devices to improve productivity or for other appropriate business practices.

6. February 2012 Notice of Intent To Publish an SNPRM

On February 13, 2012, FMCSA announced its intent to move forward with an SNPRM on ELDs to propose technical standards, address driver harassment issues, and propose revised requirements on HOS supporting documents (77 FR 7562). Additionally, the Agency stated it would hold public listening sessions and task the MCSAC to make recommendations related to the proposed rulemaking. FMCSA has initiated a survey of drivers, as well as motor carriers, concerning the potential for the use of electronic logging to result in harassment (Notice published May 28, 2013, (78 FR 32001).

7. May 2012 Withdrawal of the April 2010 Rule

On May 14, 2012, FMCSA published a final rule (77 FR 28448) to rescind both the April 5, 2010, final rule (75 FR 17208) and subsequent corrections and modifications to the technical specifications (September 13, 2010, 75 FR 55488), in response to the Seventh Circuit's decision.

8. Results of the Vacatur; Subsequent Developments

As a result of the Seventh Circuit's vacatur, the technical specifications that were one of the bases of the 2011 NPRM were rescinded. Because the requirements for AOBRDs were not affected by the Seventh Circuit's decision, motor carriers relying on electronic devices to monitor HOS compliance are currently governed by the Agency's rules regarding the use of AOBRDs in 49 CFR 395.15, originally published in 1988. There are no new standards currently in effect to replace these dated technical specifications. Furthermore, because the entire rule was vacated, FMCSA was unable to grant relief from supporting document requirements to motor carriers voluntarily using ELDs.
8

8
The Agency's June 2010 guidance, “Policy on the Retention of Supporting Documents and the Use of Electronic Mobile Communication/Tracking Technology,” which granted certain motor carriers limited relief from the requirement to maintain certain supporting documents, was not affected by the Seventh Circuit decision.

In response to the vacatur of the 2010 final rule, recommendations from the MCSAC, and the enactment of MAP-21, FMCSA now proposes new technical standards for ELDs. The Agency also proposes new requirements for supporting documents and ways to ensure that ELDs are not used to harass vehicle operators.

9. MCSAC Meetings

Technical specifications.
In response to industry and enforcement concern over the technical implementation of the April 2010 final rule, FMCSA held a public meeting on May 31, 2011, and later engaged the MCSAC to assist in developing technical specifications for ELDs. The scope of this task was limited because of the planned June 2012 implementation date for the April 2010 final rule.

At the June 20-22, 2011, MCSAC meeting, FMCSA announced task 11-04, titled “Electronic On-Board Recorders Communications Protocols, Security, Interfaces, and Display of Hours-of-Service Data During Driver/Vehicle Inspections and Safety Investigations.” FMCSA tasked the MCSAC to clarify “the functionality of Part 395 communications standards relating to [ELD] data files.” The MCSAC was asked to make recommendations to FMCSA concerning data communication and display technologies with input from stakeholders, including law enforcement, the motor carrier industry, FMCSA information technology/security experts, and technical product manufacturers. A MCSAC Technical Subcommittee was formed to advise the committee at large. The subcommittee met numerous times in late 2011. The MCSAC also held public meetings on August 30-31 and December 5-6, 2011, to discuss the subcommittee's recommendations (76 FR 62496, Oct. 7, 2011).

The Seventh Circuit's August 2011 decision to vacate the April 2010 final rule changed the nature of the MCSAC's report. Instead of presenting comments and recommended changes to the April 2010 final rule regulatory text, the report proposed a new regulation using vacated § 395.16 as the template. The report was delivered to the FMCSA Administrator on December 16, 2011.

Harassment.
On February 7-8, 2012, the MCSAC considered task 12-01, “Measures To Ensure Electronic On-Board Recorders Are Not Used To Harass Commercial Motor Vehicle Operators.” FMCSA tasked the MCSAC to consider a long list of questions concerning the topic of potential harassment as it could stem from the use of ELDs.

Among other issues, the committee asked what constitutes driver harassment and whether electronic HOS recording would change the nature of driver harassment. The MCSAC considered whether ELDs would make drivers vulnerable to harassment or if they might make drivers less susceptible to harassment. The MCSAC asked what types of harassment drivers experience currently, how frequently, and to what extent this harassment happens. The MCSAC also considered the experience motor carriers and drivers have had with carriers currently using ELDs in terms of their effect on driver harassment. The report on harassment was delivered to the FMCSA Administrator on February 8, 2012. The harassment provisions in today's SNPRM respond to many of the MCSAC recommendations in that report.

These meetings, like all MCSAC meetings, were open to the public, and had a public comment component at the end of every day's session. Additional information about both of these tasks and the MCSAC recommendations can

be found at
http://mcsac.fmcsa.dot.gov/meeting.htm
.

10. Public Listening Sessions on Harassment

FMCSA held two public listening sessions focusing on the issue of harassment, subsequent to the Seventh Circuit decision. The first session was in Louisville, Kentucky, on March 23, 2012, at the Mid-America Truck Show; and the second session was in Bellevue, Washington, on April 26, 2012, at the Commercial Vehicle Safety Alliance (CVSA) Workshop. Transcripts of both sessions are available in the docket for this rulemaking, and the Web casts are archived and available at
http://www.tvworldwide.com/events/dot/120323/
and
http://www.tvworldwide.com/events/dot/120426/
, respectively (last accessed May 30, 2013).

11. Regulation Room

DOT enhanced effective public involvement regarding the NPRM by using the Cornell eRulemaking Initiative called “Regulation Room.” Regulation Room is not an official DOT Web site; therefore, a summary of discussions introduced in Regulation Room was prepared collaboratively on the site and submitted to DOT as a public comment to the docket. Regulation Room commenters were informed that they could also submit individual comments to the rulemaking docket.
9

Although the comment period has closed, the comments submitted to Regulation Room, as well as the discussion summary, are publicly available through the Regulation Room Web site,
http://regulationroom.org/eobr
(last accessed March 6, 2013).

9
Because FMCSA has completed this effort, comments to this SNPRM will not be sought to Regulation Room.

12. Comments to the 2011 NPRM

FMSCA will address comments submitted in response to the February 2011 NPRM (76 FR 5537) as part of a final rule to the extent such comments are relevant, given the significant intervening events that have occurred since publication of that document and today's SNPRM. Because the proposed regulatory text in today's SNPRM supersedes that in the 2011 NPRM and because of the significance of the changes, FMCSA invites comments on the complete proposal.

B. History of the Supporting Documents Rule

A supporting document is a paper or electronic document that a motor carrier generates or receives in the normal course of business that motor carriers or enforcement officials can use in verifying drivers' HOS compliance.
10

10
This section briefly summarizes the history of supporting document requirements. For an extensive discussion of the history of the supporting documents requirements, please refer to the February 1, 2011, NPRM (76 FR 5541).

A fundamental principle of the FMCSRs, stated in 49 CFR 390.11, is that a motor carrier has the duty to require its drivers to comply with the FMCSRs, including the HOS requirements. Current Federal HOS regulations (49 CFR Part 395) limit the number of hours a CMV driver may drive and work. With certain exceptions,
11

motor carriers and drivers are required by 49 CFR 395.8 to use RODS to track driving, on-duty not driving (ODND), sleeper berth, and off duty time. FMCSA and State enforcement personnel use these RODS, in combination with supporting documents and other information, to ensure compliance with the HOS rules. Motor carriers have historically required their drivers—as a condition of employment, for reimbursement, and other business purposes—to provide to the motor carriers supporting documents, such as fuel receipts, toll receipts, bills of lading, and repair invoices. Motor carriers can compare these documents to drivers' entries on the paper RODS to verify the accuracy of the RODS. The FMCSRs require motor carriers to retain all supporting documents, generated in the ordinary course of business, as well as the paper and electronic RODS, for a period of 6 months from the date of receipt (49 CFR 395.8(k)(1)).

11
These exceptions are set forth in 49 CFR 390.3(f) and 395.1.

Although the FMCSRs have always required a “remarks” section to augment the duty status information contained in the RODS document, it was not until January 1983 that the use of supporting documents was explicitly required (47 FR 53383, Nov. 26, 1982). The rule did not define the term “supporting documents,” and questions arose concerning what motor carriers were expected to retain. To resolve several questions, regulatory guidance was published in 1993 and 1997 (November 17, 1993, 58 FR 60734; April 4, 1997, 62 FR 16370, 16425).

In 1994, Congress directed that 49 CFR Part 395 be amended to improve driver and motor carrier compliance with the HOS regulations (section 113 of the HMTAA, Pub. Law 103-311, sec. 113, 108 Stat. 1673, 1676-1677 (August 26, 1994)). Congress defined supporting documents in a manner nearly identical to the Agency's regulatory guidance: “For purposes of this section, a supporting document is any document that is generated or received by a motor carrier or commercial motor vehicle driver in the normal course of business that could be used, as produced or with additional identifying information, to verify the accuracy of a driver's record of duty status.” (Id.)

In response to section 113(a) of HMTAA, the Federal Highway Administration (FHWA), FMCSA's predecessor agency, published an NPRM on supporting documents on April 20, 1998 (63 FR 19457). The FMCSA included further proposals on supporting documents in its proposed rule on HOS published May 2, 2000 (65 FR 25540). On November 3, 2004, FMCSA published an SNPRM proposing language to clarify the duties of motor carriers and drivers with respect to supporting documents and requesting further comments on the issue (69 FR 63997). However, the Agency discovered a long-standing error that had caused it to significantly underestimate the information collection burden attributable to the 2004 SNPRM, and FMCSA therefore withdrew the SNPRM on October 25, 2007 (72 FR 60614).

On January 15, 2010, the American Trucking Associations (ATA) filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 10-1009). ATA petitioned the court to direct FMCSA to issue an NPRM on supporting documents in conformance with section 113 of HMTAA within 60 days after the issuance of the writ and a final rule within 6 months after the issuance of the NPRM. The court granted the petition for writ of mandamus on September 30, 2010, ordering FMCSA to issue an NPRM on the supporting document regulations by December 30, 2010.

FMCSA issued guidance on HOS supporting documents and use of electronic mobile communications/tracking technology on June 10, 2010 (75 FR 32984). In addition to removing certain documents from the list of supporting documents a motor carrier must maintain, that guidance confirmed the Agency's interpretation that motor carriers are liable for the actions of their employees if they have, or should have, the means by which to detect HOS violations.

The April 2010 final rule had provided relief to motor carriers using ELDs on a voluntary basis from the requirement to maintain supporting documents to verify driving time. Those motor carriers would have needed to maintain only those additional

supporting documents necessary to verify ODND activities and off duty status (75 FR 17208, at 17212, 17233, and 17234, April 5, 2010). However, as discussed above, the April 2010 rule is no longer in effect.

C. Concurrent Activities

1. Safety Study

FMCSA is engaging in another action, “Evaluating the Potential Safety Benefits of Electronic Onboard Recorders.” The study is an effort to further quantify the safety benefits of ELDs.

2. Coordination With the U.S. Department of Labor

FMCSA has worked with the U.S. Department of Labor to clarify and reinforce the procedures of both agencies, specifically concerning harassment. The Department of Labor administers the whistleblower law enacted as part of the Surface Transportation Assistance Act (49 U.S.C. 31105). Although FMCSA and the U.S. Department of Labor have previously consulted on particular cases or referred drivers to the appropriate agency based on the nature of the concern, the agencies have been in communication concerning their respective authorities and complaint procedures. Several elements in this SNPRM, including the proposed requirement that all drivers have improved access to their HOS compliance records, should provide drivers with better documentation of situations that they believe constitute harassment and would help their case in the event they file complaints with either Department of Labor or FMCSA.

D. Table Summary

Timeline of Regulatory and Judicial Actions Related To This SNPRM

Title
Type of action, RIN
Citation, date
Synopsis

Electronic On-Board Recorders for Hours-of-Service Compliance
Final rule, 2126-AA89
75 FR 17208, Apr. 5, 2010
Established new performance standards for EOBRs, required EOBRs to be installed in CMVs for motor carriers that have demonstrated serious noncompliance; set incentives for voluntary usage of EOBRs.

Policy on the Retention of Supporting Documents and the Use of Electronic Mobile Communication/ Tracking Technology in Assessing Motor Carriers' and Commercial Motor Vehicle Drivers' Compliance With the Hours of Service Regulations
Notice of Regulatory Guidance and Policy Change.
75 FR 32984, June 10, 2010
Provided notice to the motor carrier industry and the public of regulatory guidance and policy changes regarding the retention of supporting documents and the use of electronic mobile communication/tracking technology in assessing motor carriers' and commercial motor vehicle drivers' compliance with the hours of service regulations.

Electronic On-Board Recorders for Hours-of-Service Compliance
Final rule; Technical amendments, response to petitions for reconsideration, 2126-AA89
75 FR 55488, Sept. 13, 2010
Amended requirements for the temperature range in which EOBRs must be able to operate, and the connector type specified for the Universal Serial Bus (USB) interface.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents
NPRM, 2126-AB20
76 FR 5537, Feb. 1, 2011
Required all motor carriers currently required to maintain RODS for HOS recordkeeping to use EOBRs instead; relied on the technical specifications from the April 2010 final rule, and reduced requirements to retain supporting documents.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents
NPRM; extension of comment period, 2126-AB20
76 FR 13121, Mar. 10, 2011
Extended the public comment period for the NPRM from April 4, 2011, to May 23, 2011.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents
Notice; request for additional public comment, 2126-AB20
76 FR 20611, Apr. 13, 2011
Expanded the opportunity for the public to comment on the issue of ensuring that EOBRs are not used to harass CMV drivers.

Motor Carrier Safety Advisory Committee (MCSAC) Series of Public Subcommittee Meetings
Notice of meeting, related to 2126-AA89
76 FR 38268, June 29, 2011
Announced series of subcommittee meetings on task 11-04, concerning technical specifications for an EOBR as related to the April 2010 final rule.

Owner-Operator Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin.
Judicial Decision, United States Court of Appeals, Seventh Circuit, related to 2126-AA89

Owner-Operator Indep. Drivers Ass'n
v.
Fed. Motor Carrier Safety Admin.,
656 F.3d. 580 (7th Cir. 2011), Aug. 26, 2011

Vacated the April 2010 final rule.

MCSAC: Public Meeting Medical Review Board: Joint Public Meeting With MCSAC
Notice of meeting, related to 2126-AB20
77 FR 3546, Jan. 24, 2012
Announced meeting on task 12-01, concerning issues relating to the prevention of harassment of truck and bus drivers through EOBRs.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents
Notice of intent, 2126-AB20
77 FR 7562, Feb. 13, 2012
Announced FMCSA's intent to go forward with an SNPRM; two public listening sessions; an initial engagement of the MCSAC in this subject matter; a survey of drivers concerning potential for harassment; and a survey for motor carriers and vendors concerning potential for harassment.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents
Notice of public listening session, 2126-AB20
77 FR 12231, Feb. 29, 2012
Announced public listening session held in Louisville, Kentucky on March 23, 2012.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents
Notice of public listening session, 2126-AB20
77 FR 19589, Apr. 2, 2012
Announced public listening session held in Bellevue, Washington on April 26, 2012.

Electronic On-Board Recorders for Hours-of-Service Compliance; Removal of Final Rule Vacated by Court
Final rule, 2126-AB45
77 FR 28448, May 14, 2012
Responded to a decision of the Court of Appeals for the Seventh Circuit that vacated the April 2010 final rule.

VI. ELD Performance and Design Specifications

Today's SNPRM proposes new technical standards, replacing those in the vacated April 2010 final rule. It also responds to the specific ELD technical requirements in MAP-21;
see
49 U.S.C. 31137. Although MAP-21 requires that an ELD “accurately record commercial driver [HOS],” there is no current technology that can automatically differentiate between a driver's ODND status versus off duty or sleeper berth status. An ELD, however, would reduce HOS record falsification, especially for driving time, which would be recorded automatically. ELDs facilitate considerably more accurate recording of non-driving activities through the requirement to provide time, location, engine hours, and odometer reading “snapshots” at each change of duty status.

The ELD record, in combination with a driver's supporting documents, is expected to provide a far more accurate record than paper RODS. The detailed performance and design requirements for ELDs proposed in this SNPRM would ensure that providers would be able to develop compliant devices and systems and that motor carriers could better understand which products are compliant and make informed decisions before acquiring them. The requirements would also provide drivers with effective recordkeeping systems, which would provide them control over and access to their records. The technical specifications would also address statutory requirements pertaining to prevention of harassment, protection of driver privacy, compliance certification procedures, and resistance to tampering. Furthermore, they would establish methods for providing authorized safety officials with drivers' ELD data when required.
See
49 U.S.C. 31137(a)-(f).

For a 2-year period after the compliance date (4 years after the publication of a final rule) for these technical specifications, AOBRDs as described in current § 395.15, installed before that date, could continue to be used in lieu of ELDs to comply with HOS regulations. At that point, all AOBRD-users would be required to update or replace their devices and systems to bring them into conformance with the new 49 CFR Part 395, subpart B requirements. For more about the transition period proposed for this SNPRM, see Part VIII.

A. Terminology

For the reader's convenience, this section describes terms that are used in today's SNPRM.

1. AOBRD

An AOBRD is a device that meets the requirements of 49 CFR 395.15. As described below, a minimally compliant device would need to be replaced. However, many technologies exist today that currently meet or exceed parts of the standards of this proposed regulation, and could be easily and cheaply made to fit the requirements for an ELD. The Agency refers to these as ELD-like devices. The definition of AOBRDs is set out in 49 CFR 395.2; and Table 6, below, shows a comparison of the different kinds of logging devices.

2. ELD

An ELD is a recording-only technology, used to track the time a CMV is operating. An ELD is integrally connected to the CMV's engine, uses location information, and is tamper-resistant. An ELD automatically tracks CMV movement, but allows for annotations by both the driver and the motor carrier's agent to explain or correct records. An ELD is not necessarily a physical device; it is a technology platform, and may be portable or implemented within a device not permanently installed on a CMV. The definition of ELD is in a proposed amendment to 49 CFR 395.2; and Table 6, below, shows a comparison of the different kinds of logging devices.

3. ELD Data

FMCSA uses the term “ELD data” to mean each data element captured by an ELD that is compliant with the requirements contained in proposed subpart B of part 395. These data would be available to authorized safety officials during roadside inspections and as part of on-site or other reviews.

4. eRODS Software System

eRODS is the software system that FMCSA is currently developing in conjunction with its State partners. During an inspection, the eRODS software system would receive, analyze, and display ELD data in a way that can be efficiently used by authorized safety officials.

5. FMS

A Fleet Management System (FMS) is an asset tracking and business optimization solution which may also accomplish the ELD functionality. Some of these technologies may have functions such as real-time asset monitoring for fleet efficiency, but these capabilities would not be required by this regulation. FMCSA emphasizes that it does not prohibit the integration of ELD functions into other electronic platforms, such as an FMS, already used on CMVs. FMCSA requires only the use of ELDs.

6. Comparison of AOBRD, EOBR, and ELD Specifications

Table 6, below, shows how AOBRDs, as regulated in 49 CFR 395.15, compare to the specifications for EOBRs, published in the 2010 Final Rule, and the ELDs proposed
in this SNPRM.

Table 6—Comparison of Specifications

Feature/function
1988 AOBRD rule
2010 EOBR final rule
2013 ELD SNPRM

Integral Synchronization
Integral synchronization required, but term not defined in the FMCSRs
Integral synchronization required, defined to specify signal source internal to the CMV

Integral synchronization with the CMV engine,* to automatically capture engine power status, vehicle motion status, miles driven, engine hours.
* For MY 2000 and later, interfacing with engine ECM.

Recording Location Information
Required at each change of duty status. Manual or automated
Require automated entry at each change of duty status and at 60-minute intervals while CMV in motion
Require automated entry at each change of duty status, at 60-minute intervals while CMV is in motion, at engine-on and engine-off instances, and at beginning and end of personal use and yard moves.

Graph Grid Display
Not required—“time and sequence of duty status changes”
Not required on EOBR, digital file to generate graph grid on enforcement official's portable computer
An ELD must be able to present a graph grid of driver's daily duty status changes either on a display unit or on a printout.

HOS Driver Advisory Messages
Not addressed
Requires notification at least 30 minutes before driver reaches 24-hour and 7/8 day driving and on-duty limits

HOS limits notification
not
required.
“Unassigned driving time/miles” warning provided upon login.

Device “Default” Duty Status
Not addressed
On-duty not driving when the vehicle is stationary (not moving and the engine is off) 5 minutes or more

On-duty driving, when CMV has not been in-motion for 5 consecutive minutes, and driver has not responded to an ELD prompt within 1 minute.
No other non-driver-initiated status change is allowed.

Clock Time Drift
Not addressed
Absolute deviation from the time base coordinated to UTC shall not exceed 10 minutes at any time
ELD time must be synchronized to UTC, absolute deviation must not exceed 10 minutes at any point in time.

Communications Methods
Not addressed—focused on interface between AOBRD support systems and printers

Wired:
USB 2.0 implementing Mass Storage Class 08H for driverless operation

Wireless:
IEEE 802.11g, CMRS

Primary:
Wireless Webservices or Bluetooth 2.1 or Email (SMTP) or Compliant Printout.

Backup Wired/Proximity:
USB 2.0 * and (Scannable QR codes, or TransferJet *)

* Except for “printout alternative.”

Resistance to Tampering
AOBRD and support systems, must be, to the maximum extent practical, tamperproof
Must not permit alteration or erasure of the original information collected concerning the driver's hours of service, or alteration of the source data streams used to provide that information
An ELD must not permit alteration or erasure of the original information collected concerning the driver's ELD records or alteration of the source data streams used to provide that information. An ELD must support data integrity check functions.

Identification of Sensor Failures and Edited Data
Must identify sensor failures and edited data
The device/system must identify sensor failures and edited and annotated data when downloaded or reproduced in printed form
An ELD must have the capability to monitor its compliance (engine connectivity, timing, positioning, etc.) for detectable malfunctions and data inconsistencies. The ELD must record these occurrences.

B. ELD Function

1. Performance and Design Standards

FMCSA created these proposed technical specifications to be performance-based, so as to accommodate evolving technology and standards, allow for more cost-effective adoption of the technical specifications, and afford ELD providers flexibility to offer compliant products that are innovative and meet the needs of drivers and motor carriers. However, FMCSA does propose specific standard data formats and outputs that ELD providers would need to use to transfer, initialize, or upload data between systems or to authorized safety officials.

FMCSA has placed these performance and design standards into the appendix to proposed subpart B of part 395. This SNPRM also would incorporate by reference a number of established technical standards for sub-functions of an ELD, all of which are readily available at little to no cost. The use of these industry standards would reduce the cost of producing ELDs that meet the technical standards of a final rule. However, FMCSA emphasizes that there are no industry standards for ELDs.

Functional requirements regarding the communications between a vehicle's engine electronic control module (ECM) and the ELD are included in today's SNPRM. The technical requirements proposed in today's SNPRM would be considerably expanded from those in the vacated April 2010 final rule, and provide detail on processes, including security and tamper resistance.

2. Recording

In order to minimize compliance costs, today's SNPRM positions the ELD as a recording-only technology with the ability to transfer data to authorized safety officials. This rulemaking would not require the ELD to analyze or review driver's RODS data for any purpose, including compliance. It would not require the ELD to provide a warning for a driver who may be reaching HOS violation limits or to address other compliance concerns, although motor carriers and ELD providers are not prohibited from using or building an ELD that does so.

The following data elements would be automatically recorded within the ELD dataset and transferred to authorized safety officials when requested: date, time, CMV location, engine hours, vehicle miles, driver or authenticated user identification data, vehicle identification data, and motor carrier identification data.

CMV location information.
For an ELD, location measurement would be used primarily to automatically populate CMV position at duty status changes and at intervening intervals.

FMCSA proposes that location information remain a part of the technical specifications for an ELD. Without accurate and verifiable CMV location information, a driver's RODS would not be complete. Furthermore, some of the tamper-resistance measures proposed in the SNPRM would use location information in consistency-check algorithms. FMCSA also believes that intermediate location recordings while the CMV is in motion are important to include in the dataset for verification purposes. With this SNPRM, FMCSA also proposes the precision and availability requirements associated with the automatic positioning services to be used as part of an ELD.

FMCSA no longer proposes requiring the ELDs' dataset exchanged with authorized safety officials to include “place name.” Instead, latitude and longitude coordinates would be recorded and transmitted to those officials' portable computers. There the eRODS software would resolve the coordinates into a named place and, as necessary, the distance and direction offset from the named place. An ELD would still need to be able to present location information in understandable terms to the driver and motor carriers to allow them to review and certify records. ELDs that print a graph-grid for authorized safety officials would also require understandable location information. Because latitude and longitude information would not be adequately descriptive for them, FMCSA retains the requirement for ELDs to report geo-location information. The Agency also proposes the incorporation by reference of the American National Standards Institute (ANSI) INCITS 446-2008 document, which includes the “USGS GNIS, where Feature Class = Populated Place” list.

Relying on a performance and design standard, FMCSA would not require the use of the satellite-based global positioning system (GPS) for positioning services. Location codes may be obtained from satellite or land-based sources, or a combination of sources. This SNPRM would require the monitoring of engine hours and odometer readings in addition to automatic recording of location information. Interruptions to GPS or other location services would not prevent CMV movement from being detected by the ELD.

Today's SNPRM proposes revised, more detailed technical specifications for standard location information presentation, using geo-location combined with a nearby reference point, distance, and direction from that reference.

Driver or authenticated user identification data.
HOS regulations require unique identification of the driver on the ELD, which implies the inclusion of personally identifiable information (PII). The Agency determined that name and use of a partial driver's license number does not lower the security requirements the Agency must establish for handling of the data. However, use of a partial driver's license number complicates the process due to the States' varying methods for assigning drivers' license numbers. Therefore, the Agency determined that including the entire driver's license number and driver's license issuing State would be necessary to ensure a unique identification of each driver and to attain a sufficient level of tamper resistance for the ELDs by preventing the potential creation of multiple aliases for a single driver within a motor carrier.

When the ELD records the required dataset.
Today's SNPRM proposes to require the ELD to record the dataset, including geographic information as described above, at 60-minute intervals when the vehicle is in motion, at the time of any duty status change the driver inputs, and when a CMV's engine is powered up or shut down. Further, if a motor carrier has allowed drivers to use a CMV for personal conveyance or yard moves, a driver's indication of the start and end of such occurrences will also record a dataset; these are not indicated as separate duty statuses.

The ELD would record the account logged into the ELD at the time of the recording, including a standard identifier when a driver may not be authenticated.

Because FMCSA will continue to allow use of paper RODS in certain operations and temporarily during ELD malfunctions, retaining the same four duty status categories used for paper RODS is necessary: driving, ODND, off duty, and sleeper berth. However, there are situations where it is necessary to annotate or otherwise flag periods where the CMV is moving as a status other than “on-duty driving,” including various covered exceptions under 49 CFR 395.1. FMCSA proposes to add a requirement for the ELD to provide the capability for a driver to indicate the beginning and end of two specific categories, namely, personal use of a CMV and yard moves, as allowed by the motor carrier, where the CMV may be in motion but a driver is not necessarily in a “driving” duty status. This would record the necessary information in a consistent manner for the use of drivers, motor carriers, and authorized safety officials.

Personal conveyance.
If a CMV is used for personal conveyance, and the driver uses the ELD to electronically indicate the beginning of the event, the ELD would not record that time as on-duty driving. Today's SNPRM provides for selection of a special driving category when a CMV is being driven but the time is not recorded as on-duty driving. FMCSA does not define a specific threshold of distance or time traveled for a driver to be able to use the personal use provision. FMCSA emphasizes that ELDs are HOS-recording technologies. Authorized motor carrier safety personnel and authorized safety officials would use the ELD data to further explore and determine whether the indicated special category was appropriately used by the driver.

Integral synchronization.
FMCSA would require integral synchronization for engine information to be shared with the ELD. For example, FMCSA proposes that distance traveled be measured by the odometer indication electronically available on the vehicle databus, the engine control module, or other electronic device, when allowed, which would indicate the total distance traveled from a source internal to the CMV. Today's SNPRM describes the underlying requirements associated with engine synchronization in recording the HOS logs of a driver. The proposal provides sufficient flexibility to accommodate engines on older CMVs. However, FMCSA would like to hear more details from the public on the complexity of compliance with a CMV manufactured on or before 2000.

3. Resistance to Tampering

MAP-21 defines “tamper resistant” as “resistant to allowing any individual to cause an [ELD] to record the incorrect date, time, and location for changes to on-duty driving status . . . or to subsequently alter the record created by that device” (49 U.S.C. 31137(f)(2)). FMCSA interprets “tamper” in this context as a deliberate action that results in erroneous data or unauthorized changes to ELD data. Tampering could result in the alteration of hardware, software, or stored data. Because of the variety of potential hardware and software solutions and the lack of any published standards that are followed by ELD-like system providers, FMCSA has chosen to focus on establishing requirements that would address many of the known types of tampering. FMCSA would also require additional data elements that would be

used to identify attempts to falsify or tamper with ELD data.

FMCSA acknowledges that there is a possibility that someone might tamper with ELD systems out of curiosity or to avoid or subvert operational or safety oversight. Like the NPRM, this SNPRM would explicitly prohibit motor carriers and drivers from disabling, deactivating, damaging, jamming, or otherwise blocking or degrading a signal transmission or reception, or otherwise tampering with an AOBRD or ELD so that the device would not accurately record the duty status of a driver (§ 395.8(e)(2)).

FMCSA has increased its tamper resistance performance and design specifications in this SNPRM and would require that all ELDs have standard security features, which include recording data that would help indicate tampering. Motor carrier safety oversight personnel and authorized safety officials would be able to use these indicators to review potential inconsistencies, assess their sources, and estimate their effects. However, complete tamper-proofing is neither possible nor practical. The SNPRM would balance tamper-resistance with the cost-effectiveness of available solutions. If ELDs were required to implement military-level security standards, such requirements would likely increase their complexity and cost, and adversely impact their ease of use.

Each captured record would include a code derived from the data itself at the time of recording that eRODS software would use to determine the authenticity of the information. Additionally, the combination of the vehicle mileage, time record, and location coordinates would increase the difficulty of fabricating data and make it more likely to produce inconsistent data that would be evident to authorized safety officials reviewing the ELD records. In addition to instituting strict account management requirements to ensure every driver has only one ELD profile within a motor carrier, FMCSA would also require the capture of data during CMV movement when no driver has logged into an ELD, to provide authorized safety officials with a complete picture of vehicle movement. Finally, the increased number of data elements from the engine would make creating false data a difficult and time-consuming process, even if someone could find a way to introduce such data into an ELD. None of these controls should dissuade ELD providers from adding additional, appropriate hardware and software controls against tampering.

4. Damaged, Outdated, or Malfunctioning ELDs

FMCSA understands that any devices, systems, or enabling technologies might occasionally fail. This SNPRM contains provisions that would allow drivers to continue to operate a CMV in the event of an ELD failure. Drivers would be required to use paper RODS temporarily while the ELD is inoperative. The driver would be required to give the motor carrier written notice of the failure either electronically, for example, by email, or by some other written means, within 24 hours. Owner-operators who lease on with a motor carrier are generally considered employees under the FMCSRs; thus, they would be required to notify that motor carrier. However, owner-operators who operated independently would need to satisfy requirements applicable to both a motor carrier and driver. One option for these owner-operators would be to record a malfunction by documenting it on a paper log used during the period that their ELD was not functioning. Unless the records were already available, the driver would have to reconstruct the RODS for the current 24-hour period and the previous 7 days. Until the ELD was brought back into compliance, the driver would have to continue to manually prepare RODS.

FMCSA has added more details on failure detection to this SNPRM. In a new table of ELD compliance malfunctions and data diagnostic event codes, FMCSA outlines the proposed listing of malfunction types (Table 4 in the appendix to subpart B of part 395). Proposed new table 4 would require data diagnostics self-testing by ELDs. Table 4 expands the categories of data diagnostic consistency checks and establishes consistency with the compliance malfunction detection strategy outlined in this rule. These malfunctions cover many of the detectable and actionable error types. However, the table is structured in terms of “compliance malfunctions,” which refer to more generalized performance compliance elements of this rule across different types of ELD implementation possibilities.

The SNPRM would require the motor carrier to repair the ELD within 8 days of discovering its condition. However, the SNPRM provides a procedure whereby a motor carrier may request an extension of time from FMCSA to repair, replace, or service an ELD. Unless an extension is granted, if a driver is inspected for HOS compliance during a malfunction, the driver would receive a citation for the malfunctioning ELD, and the driver would have to provide the authorized safety official with manually prepared RODS for further assessment with respect to HOS regulations.

C. ELD Regulatory Compliance

1. Certification Process

Compliance test procedures.
The SNPRM would still propose to require ELDs to be certified by the provider, but FMCSA will develop a standard set of compliance test procedures that providers may use in their certification processes. FMCSA anticipates that industry standards for testing and certification of ELDs may emerge and evolve after the publication of the SNPRM, and such standards may use or build upon the compliance test procedures FMCSA establishes.

ELD providers would not be required to follow FMCSA's compliance test procedures to certify compliance of their product. Their ELDs, however, would need to meet or exceed the performance requirements proposed in the appendix to subpart B of part 395. FMCSA may subject registered ELDs to FMCSA's compliance test procedures to independently verify their compliance.

FMCSA stresses that it does not have regulatory authority over system providers. FMCSA is not proposing mandating blanket testing and certification criteria, because allowing ELD providers flexibility to meet or exceed the performance requirements of these criteria is consistent with other DOT regulations and would be as effective as existing DOT regulations. FMCSA will continue to monitor the testing and certification activities and may issue guidance on test standards at a future date.

Registration and Web site.
This SNPRM would require certified ELDs to be registered with FMCSA, and would require motor carriers to use only those ELDs listed on FMCSA's Web site. FMCSA expects this process to inform motor carriers of all available options through a single resource. FMCSA anticipates ELD providers will be able to meet industry demands in advance of the rule's compliance date. However, FMCSA seeks comment and information about providers' ability to meet industry demand.

Third-party certification.
This SNPRM is not proposing that certification be completed by a third party. While the certification process would not prohibit the use of a third-party testing service, the ELD provider would be the responsible certifying entity. Although not proposed in this SNPRM, FMCSA is seeking information on, and may consider using, a third-party

certification process whereby all ELDs would have to be independently tested, validated, certified, and stamped for listing by, for example, a nationally recognized testing laboratory. The Agency believes that such a requirement would increase costs to the motor carrier industry, but in the absence of robust standards for testing and validation for ELD-like systems in the marketplace today, the Agency was unable to clearly quantify such costs and project their potential impact on the rule's implementation. FMCSA believes that such a process may emerge by market demand even in the absence of a regulation, and this SNPRM does not prohibit such third-party certification. FMCSA requests public comment on industry's preference on a potential third-party certification requirement.

Original equipment manufacturers.
FMCSA recognizes that, in some cases, ELDs will be made available by the original equipment manufacturers on new CMVs. Many original equipment manufacturers have announced that they are installing, or have plans to install, multifunctional terminals in the instrument panel of some models of CMVs. This would offer a more “application ready” interface for motor carriers, allowing them to use a variety of productivity, safety, and telematics applications. However, the fact that original equipment manufacturers offer those terminals—and the ability of CMV operators to take delivery of CMVs with those terminals installed—does not imply that original equipment manufacturers are subject to ELD regulations, nor that the terminals, by themselves, comply with the definition of ELDs.

This SNPRM would not regulate original equipment manufacturers; that responsibility has been delegated to NHTSA (49 U.S.C. 30111; 49 CFR 1.95(a)). FMCSA may not regulate “the manufacture of commercial motor vehicles for any purpose” under the safety regulation provisions of 49 U.S.C. chapter 311 (49 U.S.C. 31147(b)). The proposed regulations do not distinguish between original equipment manufacturers that install in-cab computer terminals that have ELD capacity and aftermarket providers of ELDs. ELDs installed at the time of vehicle manufacture are currently supplied by ELD providers. Regardless of the manufacturer or integrator of an ELD, a motor carrier may only use an ELD that has been certified and registered with FMCSA.

2. User Requirements

Data entry when the CMV is moving.
The current AOBRD regulation allows minimal keystroke sequences to be used while the CMV is in motion. This was done to allow drivers to note State-line crossings because AOBRD data is used for fuel tax reporting purposes. Improved geographic-location technology renders this unnecessary. Today's SNPRM would eliminate the ability of a driver to enter information into an ELD while the vehicle is in motion. An ELD must not allow a driver to access it unless the CMV is stopped.

Editing and annotating RODS.
FMCSA would take the “ship's log” approach to records. Once a record has been created using the ELD, it must not be erased and driving-time records must not be changed. However, editing a record does not erase the original data captured by the ELD, and records may be edited or annotated to correct inaccuracies or errors. Driving time may not be changed.

As proposed by this SNPRM, both the driver and the motor carrier would need to ensure that the ELD records are accurate. A driver may edit, enter missing information, or annotate the record. The motor carrier may propose changes to the driver. The driver would need to confirm or reject any change, edit the record, then re-certify the record, in order for the motor carrier's proposed change to take effect. This would preserve the driver's responsibility for the driver's records.

Entering false information.
The 2011 NPRM prohibited entering false information in the ELD, subject to the same penalties as the current regulations apply to instances of falsifying RODS. This SNPRM proposes to retain and expand upon this prohibition.

Although some individuals will attempt to enter false or inaccurate information on ODND time, the possibility of some cheating does not negate the anticipated overall effectiveness of this SNPRM. The Agency is not aware of any reliable sensing technologies that can automatically differentiate between the various non-driving statuses without an unacceptable loss of privacy. ELDs, however, would dramatically reduce HOS record falsification for driving time, which would be recorded automatically, and thus would decrease the level of falsification among HOS records as a whole.

3. Enforcement Procedure and Transmitting Data

ELD data would need to be transferred to authorized safety officials at a motor carrier's facility or as part of a roadside inspection or review. Today's SNPRM would provide flexibility by allowing various options for the transfer of data, while ensuring a driver's privacy would be protected. Based on States' capabilities, FMCSA proposes alternatives for compliance with the use of primary and backup transfer mechanisms.

ELDs would need to incorporate a standardized, single-step, driver interface for the transfer of data to an authorized safety official at roadside. Under this proposal, the enforcement officer would be able to read the ELD data without entering the CMV. The uniform process for the transfer of data would allow standardized review of ELD data by authorized safety officials using eRODS software.

FMCSA currently requires AOBRDs to display the time and sequence of duty status entries, and today's SNPRM proposes the same requirement for ELDs. This SNPRM would require an ELD to provide graph-grids for the current 24-hour period and the previous 7 days, either on a display or on a printout.

FMCSA considered the option to require all ELDs to produce printouts and includes the cost-benefit analysis for this option in the RIA that supports this SNPRM. Such a broad mandate would be comparatively costly to the industry. FMCSA is, therefore, proposing to allow printing as an acceptable form of compliance for ELDs during roadside inspections, but would not require all ELDs to provide print-outs. FMCSA also considered regulating details of a compliant ELD screen specification, but decided that this approach would both increase the cost of ELDs and limit innovative solutions, without markedly increasing benefits. In this SNPRM, FMCSA more generally refers to the functional information presentation requirements instead of listing specific screen requirements.

4. ELD Specifications To Protect Privacy

The primary Federal statute addressing protection of an individual's PII is the Privacy Act of 1974, as amended (5 U.S.C. 552a). This Act applies to information maintained in a “system of records”—a group of any records under control of the Agency from which information may be retrieved by an individual's name or by some identifying number, symbol, or other identifying particular assigned to an individual. MAP-21 requires that FMCSA “include such measures as [FMCSA] determines are necessary to protect the privacy of each individual whose personal data is contained in an [ELD].” See 49 U.S.C. 31137(d)(2). FMCSA would limit the collection of PII to the driver's name, driver's license

number, location, the co-driver's name, and names of other users of the ELD. Additionally, information provided in driver annotations may contain PII.

To protect the privacy of drivers using ELDs, FMCSA would require a variety of controls. Both drivers and motor carrier support personnel would have to possess proper user authentication credentials (e.g., username and password) to access ELD data. For location information, FMCSA would also limit the detail of captured coordinates to two decimal places and require accuracy only to a radius of approximately 1 mile. Furthermore, when a driver indicates personal use of a CMV on the ELD, recording accuracy for position information would be further reduced to a single decimal place, resulting in an accuracy equivalent to a radius of approximately 10 miles. Finally, as explained in the data transfer section, FMCSA would require data transferred to authorized safety officials to be encrypted or, in the case of a display or print-out, physically protected, reducing the likelihood of the unauthorized capture of ELD data. This requirement addresses the protection of personal data consistent with requirements of MAP-21, 49 U.S.C. 31137(e)(2).

In support of its safety mission, FMCSA has been delegated broad authority to prescribe recordkeeping and reporting requirements (49 U.S.C. 31133(a)(8); 49 CFR 1.87(f)). However, in MAP-21, Congress restricted the way ELD data might be used. Specifically, the statute provides that the Agency “may utilize information contained in an electronic logging device only to enforce. . . motor carrier safety and related regulations, including record-of-duty status regulations” (49 U.S.C. 31137(e)(1)). Furthermore, appropriate measures must be instituted “to ensure any information collected by electronic logging devices is used by enforcement personnel only for the purpose of determining compliance with hours of service requirements” (49 U.S.C. 31137(e)(3)). As explained in the accompanying conference committee report, Congress intended that such data “be used only to enforce federal regulations” (H. Rep. No. 112-557, at 607 (2012)).

FMCSA reads these ELD data-use restrictions in the context of the regulatory structure and longstanding HOS enforcement practices in existence at the time MAP-21 was adopted, and the Agency does not infer from the provisions any congressional intent to diminish the Agency's previous enforcement capabilities. MAP-21 effectively directs the Agency to substitute the paper RODS requirement with a requirement that the same motor carriers use ELDs. While the primary purpose of drivers' RODS has always been the enforcement of the HOS rules, authorized safety officials use drivers' logs also for additional evidentiary purposes. However, the Agency's HOS regulations apply only to drivers operating in interstate commerce, and the Agency has often relied on drivers' logs to demonstrate interstate commerce as an element of FMCSA jurisdiction. Logs are also used to identify the driver, a function specifically required by 49 U.S.C. 31137(b)(2)(D) and inherent in enforcement of HOS requirements. Once established for purposes of determining compliance with the HOS requirements, such a legally essential predicate fact becomes the law in the case. The established fact may then supply an element of proof of non-HOS violations. FMCSA believes this is a reasonable interpretation of sec. 31137(e), given the Agency's historical multipurpose use of the logbook, which Congress intends to displace through mandatory ELD use, and in light of the reference to the enforcement of “related regulations” in sec. 31137(e)(1).

Although MAP-21 restricts the manner in which FMCSA may use ELD data, the Agency also believes that such data could be employed in future research efforts relating to HOS compliance and highway safety, as this research may ultimately improve compliance with HOS requirements. Although this option is available to the Agency, consistent with current practice, such data would not be retained absent a violation. For more information concerning how FMCSA would use ELD data, please see the Privacy Impact Assessment associated with this rulemaking. In the event that FMCSA elects to retain such data in connection with a future research effort, the Agency would give the public advance notice of its decision.

5. ELD Specifications To Protect Against Harassment

In prescribing regulations on the use of ELDs, the Agency is required by statute to ensure that ELDs are “not used to harass a vehicle operator” (49 U.S.C. 31137(a)(2)). The Agency proposes both procedural and technical provisions to protect drivers of CMVs from harassment resulting from information generated by ELDs. As voiced during public listening sessions and stated in previous comment submissions, drivers' primary harassment-related complaints focused on pressures from motor carriers to break the HOS rules. Not every type of complaint suggested a technical solution. However, 49 CFR 392.3 prohibits a motor carrier from requiring the driver to drive while ill or fatigued. Proposed § 390.36 prohibits harassment of drivers through the use of data available through an ELD or related technology. Furthermore, in the technical specifications in this SNPRM, the Agency proposes to include several technical requirements aimed, among other things, at protecting the driver from harassment.

The Agency anticipates that some motor carriers would use technology or devices that include both an ELD function and communications function. To protect a driver using such a device from unwelcome communications during rest periods, the proposed rule would require that, if a driver indicates sleeper berth status, the device must either allow the driver to mute or turn down the volume on the communication feature or turn off this feature, or that the device do one of these things automatically.

To protect the driver's data, the rule proposes to require that any changes made by a motor carrier would require the driver's approval. Furthermore, the rule proposes to ensure that a driver has a right to access the driver's ELD data during the period a carrier must keep such records without requesting the data from the motor carrier if those records are on the ELD or can be retrieved through the ELD.
12

12
If a driver's records were not available through the ELD, a motor carrier would need to provide the driver with access to and copies of the driver's records, on request.

In developing these proposed technical performance requirements, the Agency has taken into account drivers' privacy interests. As explained above, FMCSA would not require vehicle location information to be recorded at the level of precision that could identify street addresses. Further, detailed location information would be required to be recorded only at discrete instances, such as when a driver changes duty status or at 60-minute intervals when the vehicle is in motion. FMCSA believes these privacy protection features also would help ensure that driver harassment does not arise from the use of ELDs.

6. Interoperability

Interoperability refers to the ability of an ELD to share data with ELDs from other systems and providers. FMCSA clarifies that it is proposing technical requirements to facilitate interoperability, principally through the requirement for standardized data

output formats. FMCSA offers alternative communication interfaces to provide for the transfer of standardized ELD output data to authorized safety officials. This would allow different hardware implementations of ELDs in the market place, so long as the software produces the required data in a specific and consistent format. FMCSA understands that some carriers use more than one provider for HOS and FMS applications, and flexibility provided in the SNPRM would allow ELD providers to use standardized data formats and outputs as necessary to accommodate specific motor carrier needs.

It is FMCSA's belief that output standardization would facilitate voluntary solutions for interoperability for those motor carriers who would need such functions. FMCSA considered requiring full interoperability, but does not propose it in this SNPRM, instead focusing on a minimal compliance standard that includes standardized outputs. FMCSA does not propose full interoperability in this SNPRM because FMCSA believes that there could be additional cost to some vendors by having the government mandate a universal input standard which might create some unevenness among vendors by selecting a certain data format. Additionally, the benefits of such a standard would only be realized by carriers who utilize multiple devices from different vendors.

Though FMCSA is not proposing it, FMCSA would like to know more about the cost and benefits of full interoperability, and request information from the public concerning this topic:

1. Should FMCSA require that every ELD have the capability to import data produced by other makes and brands of ELDs?

2. To what extent would these additional required capabilities for full interoperability increase the cost of the ELDs and the support systems?

3. While full interoperability could lower the cost of switching between ELDs for some motor carriers, are there a large number of motor carriers who operate or plan to operate with ELDs from more than one vendor? How would full interoperability compare to the proposed level of standardized output? If carriers wanted to operate ELDs from more than one vendor, would this be a barrier? Would this issue be impacted by the market-share of the ELD manufacturer?

4. Would motor carriers and individual drivers have broad-based use or need for such capability? Is there a better way to structure standardized output to lower cost or encourage flexibility without requiring full interoperability?

VII. Proposed ELD Mandate

Consistent with the requirements of MAP-21, 49 U.S.C. 31137, FMCSA proposes that interstate motor carriers install ELDs in all CMVs operated by drivers who are now required to prepare paper RODS, subject to a limited exception for drivers who are rarely required to keep RODS. If a driver is required to use an ELD, the motor carrier must not require or allow the driver to operate a CMV in interstate commerce without using the device. Drivers engaged in operations that do not require the preparation of RODS may use ELDs to document their compliance with the HOS rules, but are not required to do so. Furthermore, under today's proposal, drivers currently allowed to use timecards could continue to do so under the provisions of 49 CFR 395.1(e).

Drivers who need to use RODS infrequently or intermittently would be allowed to continue using paper RODS, provided they are not required to use RODS more than 8 days in any 30-day period. This proposed provision would accommodate drivers working for motor carriers that keep timecards under 49 CFR 395.1(e)(1) and (2) and who may occasionally operate beyond the parameters of those provisions (for example, by operating outside the specified 100- or 150-air-mile radius). The new threshold of not more than 8 days in any 30-day period would replace the threshold of 2 days out of any 7-day period that was proposed in the February 2011 NPRM in order to provide additional flexibility for this population. The Agency seeks comment on the proposed 8 out of 30-day threshold, how it would impact various segments of the industry, the potential cost savings resulting from this limited exception, and whether a shorter or longer duration would result in a more appropriate balance between the needs of enforcement and carrier flexibility. An eight-day period is the time-frame for current hours-of-service record-keeping requirements. Currently drivers are required to keep the previous seven days' records and the present day's records. Using eight days as the threshold for RODS usage to switch into ELD use keeps this time-frame consistent.

FMCSA evaluated whether ELD usage required by this threshold could reasonably achieve positive net benefits, and concluded that some ELDs fulfill this condition. In addition, vendors have indicated that may produce additional low-cost ELDs that are closer to the minimally compliant device specifications. See section 6.5 (page 72) of the accompanying RIA for a more detailed discussion.

As with the HOS record-retention provision of § 395.8(k), the period would move with the calendar. For example, a driver who operates beyond the short-haul radius for 8 days in the previous 30-day period would need to use an ELD on the sixth day and any subsequent day when the driver exceeded the short-haul exemption. The 30-day period restarts each day, looking back at the previous 30 days. This is a similar concept to the requirements of 60 hours in 7-day or 70 hours in 8-day limits for on duty time under the HOS regulations.

It is estimated that this proposal would generate benefits that exceed the costs of installing ELDs and the costs associated with increased levels of compliance with the HOS rules. The proposal addresses the segment of the motor carrier industry with the highest safety and HOS compliance gaps. It also acknowledges the operational distinctions between drivers allowed to use timecards under 49 CFR 395.1(e)(1) and (2) exclusively, and the other drivers who would be required to use ELDs. More information concerning the estimated costs and benefits is available in the RIA associated with this rulemaking.

In the 2011 NPRM, the Agency raised a number of issues concerning the scope of the ELD mandate, and today's SNPRM modifies that proposed mandate in some respects. Given the distinction between short-haul and long-haul operations, and the proposed exception for drivers infrequently required to keep RODS, FMCSA is not proposing any additional exceptions addressing specific sectors of the industry, size of operations, or specific types of CMVs at this time. Nor is the Agency any longer proposing to require ELD use by passenger carriers whose drivers are not required to keep RODS, e.g., local operations permitted to rely on timecards under existing 49 CFR 395.1(e)(1). The Agency is also not proposing to include all motor carriers transporting bulk quantities of HM or all carriers subject to part 395 (the “true universal” approach). The estimated compliance costs of the “true universal” approach recommended by NTSB
13

exceed the estimated safety benefits for most short-haul motor carriers; the comprehensive estimated net benefits are negative. The mandated use of ELDs as part of a remedial directive, as in the

vacated April 2010 rule, also is not proposed today. Finally, the Agency is not proposing an exception based on HOS compliance history in today's SNPRM because: (1) It could provide an unfair advantage to motor carriers for whom FMCSA has insufficient data to assess their HOS-related safety status; and (2) the dynamic nature of safety status measurements would present significant challenges to communicating changes in carriers' safety status levels.

13
NTSB Safety Recommendation H-07-041 issued on December 17, 2007.

VIII. Proposed Compliance Dates

A. Effective and Compliance Dates for a Final Rule

1. Technical Specifications

An ELD provider could begin manufacturing ELDs according to the technical specifications of this rulemaking on the effective date of a final rule (30 days after the publication of a final rule in the
Federal Register
). This means that ELDs meeting the requirements of this rulemaking could be both manufactured and used to comply voluntarily with this rule soon after the date of the final rule's publication and establishment of FMCSA's public Web site.

2. ELD Mandate

A driver or motor carrier subject to this proposed regulation would not be required to install or use an ELD until the compliance date (2 years after the effective date of the final rule). However, a motor carrier that required its drivers to use AOBRDs that met the requirements of § 395.15 before the compliance date for the ELD final rule could continue using such devices for 2 years after the rule's compliance date. At that point, a driver subject to the rule would need to use an ELD that met the new specifications. Today's SNPRM would not preclude a driver or motor carrier who chose to voluntarily adopt ELDs in advance of the compliance date from doing so.

3. Supporting Documents

The proposed supporting document requirements in this rulemaking would take effect on the compliance date for the final rule (2 years after the effective date). On that date, the regulatory provisions would supersede the policy on retention of supporting documents and the use of electronic mobile communications/tracking technology issued June 10, 2010 (75 FR 32984).

4. Harassment

Because the harassment provisions are tied to the presence of part 395, subpart B compliant ELDs, there is no specific compliance date. If a driver worked for a motor carrier that implemented ELDs voluntarily (before the 2-year compliance date), that driver could make a complaint before the ELD compliance date, as noted in Section X, below. However, a driver working for a motor carrier using AOBRDs before the compliance date would be unable to use the complaint process proposed in today's SNPRM until a compliant ELD device was in place. In other words, the harassment language would take effect on the rule's effective date, but, as a practical matter, the provision would be unavailable until an ELD was in use.

The existing avenues to submit complaints remain available to drivers, including the FMCSA complaint process for substantial violations (49 CFR 386.12), the FMCSA National Consumer Complaint Helpdesk, and the complaint process at the U.S. Department of Labor under 49 U.S.C. 31105(b). FMCSA also cooperates with the U.S. Department of Justice in appropriate enforcement cases.

B. 2-Year Transition Period

The 2011 NPRM proposed a compliance date 3 years after the effective date of the anticipated final rule. Furthermore, motor carriers would have been required to install compliant devices in CMVs manufactured on or after June 4, 2012.

MAP-21, however, requires a compliance date 2 years after publication of a final rule (49 U.S.C. 31137(b)(1)(C)). In implementing the statute, the Agency seeks to balance effective roadside enforcement against the transition costs to motor carriers that installed AOBRDs before the compliance date of the ELD final rule. Thus, the Agency proposes to allow continued use of § 395.15 devices, installed before the compliance date, for 2 years beyond the compliance date. To enhance enforcement, all motor carriers that use RODS—including those who used AOBRDs before the compliance date—would be required to use compliant ELDs by 2 years after the compliance date. The Agency does not propose to require use of ELDs based on a vehicle's manufacture date.

C. Cost Associated With Replacing AOBRDs

In setting the proposed compliance date, FMCSA considered the costs of replacing voluntarily adopted AOBRDs and addressed those costs in the RIA prepared for this SNPRM. Although the proposed performance specifications for ELDs differ from those published in the April 2010 rule, FMCSA believes that most HOS recording devices and systems manufactured on or after 2010 will be able to comply with this rule with relatively inexpensive software upgrades. To avoid understating costs, FMCSA assumed, however, that all devices and systems manufactured before 2010 would have to be replaced. The compliance date for a final rule that would follow this SNPRM is anticipated to be at the end of the useful life of these devices. FMCSA estimates that annualized costs to all voluntary adopters would be less than $5 million. The RIA contains more details on how these estimates were derived. FMCSA seeks comments on the assumptions and methodology used.

IX. Proposed Supporting Document Provisions

Today's SNPRM defines “supporting document” in a manner that generally tracks the definition found in section 113(c) of the HMTAA, i.e., “any document . . . generated or received by a motor carrier . . . in the normal course of business that could be used, as produced or with additional identifying information, to verify the accuracy of a driver's record of duty status.” In accordance with HMTAA, sec. 113(b)(2), this SNPRM would limit the supporting documents that a motor carrier must maintain by specifying the number, category, and required elements for a supporting document and, subject to a limited exception, would not require supporting documents that reflect driving time. The reference in the statute to a “commercial motor vehicle driver” is not repeated in today's proposed definition because the specific obligations of the driver are addressed in proposed § 395.11. The supporting document requirements would supersede the June 2010 policy on the retention of supporting documents (75 FR 32984) and would take effect the same date as the ELD compliance date (2 years after the effective date of a final rule).

FMCSA acknowledges that some stakeholders have claimed that the use of ELDs eliminates the need to retain supporting documents. While properly functioning ELDs eliminate the need for supporting documents demonstrating driving time, some supporting documents are still necessary to ensure HOS compliance. In today's SNPRM, FMCSA clearly delineates between the information and data produced by the ELD and what FMCSA considers a supporting document.

FMCSA believes that today's proposal is consistent with both the HMTAA and MAP-21. It balances the need for effective HOS enforcement and the burden on motor carriers to meet their obligation to ensure compliance in a

cost effective manner. It is also consistent with motor carriers' current obligations related to the retention and monitoring of supporting documents.

Among the major changes from the February 2011 NPRM, today's SNPRM would eliminate the former proposals that each motor carrier maintain an HOS Management System and that a motor carrier certify as to the lack of supporting documents showing required elements. Further, today's SNPRM would eliminate the proposal in the 2011 NPRM that a single document, showing the start and end of any ODND period, could satisfy the supporting documents requirement.

A. Applicability

The motor carrier would need to maintain supporting documents, which are generated or received in the normal course of business, to verify a driver's HOS compliance. The Agency defines “supporting document” to clarify that a document can be “in any medium,” that is, either a paper or an electronic document.

The Agency would not require motor carriers to retain supporting documents to verify driving time, because the ELD would capture this information. The Agency's position is that ELDs record driving time more accurately than drivers using paper RODS and supplant the need for paper logs and any supporting documents that would have been generated or received concerning driving time. FMCSA, however, proposes to require motor carriers to retain, for each driver, supporting documents to verify each driver's ODND periods.

The Agency proposes generally to require a single supporting document standard. For drivers who continue to use paper RODS, however, toll receipts would also need to be maintained. An otherwise uniform supporting document requirement will benefit both motor carriers and enforcement personnel by promoting standardized document retention and enforcement practices.

FMCSA's proposal would require motor carriers and CMV drivers to share responsibility for complying with the proposed supporting document requirements. A driver would be required to submit his or her supporting documents to the employing carrier within 8 days. While a driver would not be required to keep all supporting documents in the CMV, a driver would, nonetheless, need to make supporting documents that are in the driver's possession available, on request, during a roadside inspection.

B. Categories

In today's SNPRM, FMCSA would modify the categories of supporting documents that were proposed in the 2011 NPRM to better accommodate the broad diversity of the motor carrier industry. Specifically, the Agency proposes to alter the number of categories to provide clarification and more detailed descriptions of the supporting documents within each category. For every 24-hour period a driver is on duty, the motor carrier would be required to maintain not more than 10 supporting documents from the following 5 categories:

• Bills of lading, itineraries, schedules, or equivalent documents that indicate the origin and destination of each trip;

• Dispatch records, trip records, or equivalent documents;

• Expense receipts;

• Electronic mobile communication records, reflecting communications transmitted through an FMS for the driver's 24-hour duty day; and

• Payroll records for the driver's 24-hour duty day, settlement sheets, or equivalent documents that indicate what and how a driver was paid.

These categories would provide the Agency and motor carriers with the supporting documents necessary to perform their safety oversight functions.

FMCSA acknowledges the view of som

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2014-05827. Public record. Not legal advice.