Electronic Logging Devices and Hours of Service Supporting Documents

Federal RegisterDec 16, 2015

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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:

Final rule.

SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) amends 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. The requirements for ELDs will improve compliance with the HOS rules.

DATES:

Effective Date:

February 16, 2016.

Compliance Date:

December 18, 2017.

Petitions for Reconsideration:

The deadline for submitting petitions for reconsideration is January 15, 2016.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Office of the Federal Register as of February 16, 2016.

FOR FURTHER INFORMATION CONTACT:

Mr. Michael Huntley, 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:

The Agency organizes the final rule as follows:

I. Abbreviations and Acronyms

II. Executive Summary

III. Public Participation

IV. Overview

A. Today's Final Rule

B. Regulatory History

C. Provisions of Previous Rulemaking Proposals That Are Not Included in Today's Rule

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

E. MCSAC Recommendations

F. Table Summary

V. 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

VI. Discussion of Comments—Overview

A. Terminology in This Rulemaking

B. An Overview of Comments

VII. Discussion of Comments Related to Scope and Exceptions to the Mandate

A. Scope

B. Exceptions to the Requirement To Use ELDs—the 8 in 30-Day Threshold

C. Requests for Exemption for Driveaway-Towaway Operations, Dealers, and Pre-Model Year 2000 Vehicles

D. Requests for Exceptions From the ELD Mandate for Certain Segments of the CMV Industry

E. Exceptions for Small Business

F. Exceptions for CMVs Under 26,001 Pounds or Carrying Between 9 and 15 Passengers (Including the Driver)

G. ELDs Only for Unsafe Carriers or Drivers

VIII. Discussion of Comments Related to Supporting Documents

A. Definition and Number

B. Categories

C. Data Elements

D. Supporting Document Exemption for Self-Compliance System

E. Supporting Document Management

F. Requirements When ELDs Malfunction and Requests for Clarification Regarding State Laws

IX. Discussion of Comments Related to Harassment

A. Background and 2011 NPRM

B. General

C. Privacy; Ownership and Use of ELD Data

D. Tracking of Vehicle Location; Real Time Transmission of Data

E. Mute Function

F. Drivers' Access to Own Records

G. Drivers' Control Over RODS

H. Harassment Complaints

I. Matters Outside FMCSA's Authority

X. Discussion of Comments Related to the Technical Specifications

A. Performance and Design Specifications

B. Specific Performance Requirements

C. Security

D. External Operating Factors and Failure Rate of ELDs

E. Automatic Duty Status

F. CMV Position

G. Special Driving Categories

H. Data Automatically Recorded

I. Driver's Annotation/Edits of Records

J. Driver's Data Transfer Initiation Input

K. ELD Data File

L. Engine Power Up and Shut Down

M. Engine Synchronization Compliance Monitoring

N. Engine Miles

O. Records Logged Under the Unidentified Driver Profile

P. Power-On Status Time

Q. Time

R. User List

S. ELD Vehicle Interfaces

T. Vehicle Miles

U. Vehicle Motion Status

V. Wireless Electronic Transfer

W. Pre-2000 Model Year CMVs

X. Authenticated User and Account Management

Y. ODND Time

Z. Data Transfer

AA. USB2

BB. Wireless Data Transfer Through Web Services

CC. Wireless Services via E-Mail

DD. Bluetooth

EE. QR Codes and Transfer Jet

FF. Other Communications and Technology Options

GG. Data Reporting During Roadside Inspections

HH. Data Transfer Compliance Monitoring

II. Printing

JJ. Portable ELDs

XI. Discussion of Comments Related to Costs and Benefits

A. Cost and Analysis—General

B. Costs Associated With ELDs

C. Cost and Analysis—Updating Existing Systems

D. Paperwork Analysis

E. Small Business

F. Cost of a Printer

G. Tax Credits and Relief To Off-Set Costs

H. Basis for Evaluating Safety Benefits

XII. Discussion of Comments Related to Procedures, Studies, Etc.

A. Registration and Certification

B. Compliance Date and Grandfather Period

C. Penalties and Enforcement

D. Enforcement Proceedings

E. FMCSA Should Not Provide Mexican Motor Carriers With ELDs

F. International Issues

G. Effects of ELDs on Current Business Practices

H. Leased and Rented Vehicles

I. Business Relationships With Owner-Operators

J. Carrier Liability

K. Safety Study

L. Harassment Survey

M. Legal Issues—Constitutional Rights: Fourth and Fifth Amendments

N. Short Movements or Movements Under a Certain Speed and Personal Use of a CMV

O. Statutory Definition of ELD

P. Roadside Enforcement

Q. Out of Scope Comments

XIII. 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

XIV. 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. Abbreviations and Acronyms

American Bus Association ABA

American Moving & Storage Association AMSA

American Pyrotechnics Association APA

American Trucking Association ATA

Associated General Contractors of America AGC

Automatic On-Board Recording Device AOBRD

Commercial Vehicle Safety Alliance CVSA

Commercial Driver's License CDL

Commercial Motor Vehicle CMV

Department of Transportation DOT

Electronic Control Module ECM

Electronic Logging Device ELD

Electronic On-Board Recorder EOBR

Electronic Records of Duty Status eRODs

Engine Control Unit ECU

Extensible Markup Language XML

Federal Motor Carrier Safety Administration FMCSA

Federal Motor Carrier Safety Regulations FMCSRs

Fleet Management System FMS

Global Positioning System GPS

Hazardous Materials HM

Hours of Service HOS

Information Collection Request ICR

Institute of Makers of Explosives IME

Initial Regulatory Flexibility Assessment IRFA

International Brotherhood of Teamsters IBT

International Foodservice Distributors Association IFDA

Motor Carrier Safety Advisory Committee MCSAC

Motor Carrier Safety Assistance Program MCSAP

National Federation of Independent Businesses NFIB

National Limousine Association NLA

National Motor Freight Traffic Association NMFTA

National Propane Gas Association NPGA

National Transportation Safety Board NTSB

Notice of Proposed Rulemaking NPRM

Office of Management and Budget OMB

Ohio Trucking Association OTA

On-Board Diagnostics OBD-II

On-Duty Not Driving ODND

Owner-Operator Independent Driver Association OOIDA

Quick Response QR

Record of Duty Status RODS

Regulatory Impact Analysis RIA

Supplemental Notice of Proposed Rulemaking SNPRM

Truck Rental and Leasing Association TRALA

Truckload Carriers Association TCA

United Motorcoach Association UMA

Vehicle Identification Number VIN

II. Executive Summary

This rule improves commercial motor vehicle (CMV) safety and reduces the overall paperwork burden for both motor carriers and drivers by increasing the use of ELDs within the motor carrier industry, which will, in turn, improve compliance with the applicable HOS rules. Specifically, this rule: (1) Requires new technical specifications for ELDs that address statutory requirements; (2) mandates ELDs for drivers currently using RODS; (3) clarifies supporting document requirements so that motor carriers and drivers can comply efficiently with HOS regulations; and (4) adopts both procedural and technical provisions aimed at ensuring that ELDs are not used to harass CMV operators.

In August 2011, the United States Court of Appeals for the Seventh Circuit vacated the April 2010 rule on electronic on-board recorders (EOBRs), including the device performance standards. See

Owner-Operator Indep. Drivers Ass'n

Fed. Motor Carrier Safety Admin.,

656 F.3d 580 (7th Cir. 2011) available in the docket for this rulemaking. This rulemaking addresses issues raised by that decision.

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 EOBRs. Beginning with the supplemental notice of proposed rulemaking (SNPRM) for this rulemaking (79 FR 17656, March 28, 2014), the term “electronic logging device (ELD)” was 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 provider central support system—if one is used—to manage or store ELD records.

FMCSA based this rulemaking on the 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.

Today's rule makes changes from the SNPRM. The key changes are:

Documents Requirements

—The maximum number of supporting documents that must be retained has been lowered from 10 in the SNPRM to 8 in today's rule. In addition, the timeframe in which a driver must submit RODS and supporting documents to a motor carrier has been extended from 8 to 13 days.

Technical Specifications

—Two of the options for the required electronic data transfer included in the SNPRM (Quick Response (QR) codes and TransferJet)

have been removed. Electronic data transfer must be made by either (1) wireless Web services and email

(2) Bluetooth® and USB 2.0. Furthermore, to facilitate roadside inspections, and ensure authorized safety officials are always able to access this data, including cases of limited connectivity an ELD must provide either a display or printout.

Quick Response (QR) codes convert information into two dimensional barcodes that can be read using common tools such as smart phones or hand scanners. TransferJet, the close-proximity transfer of data, allows a large amount of data to be transmitted at high speed when two devices are held very close together, or “bumped.”

Exemptions

—Two optional exceptions are added from the required use of ELDs: (1) Driveaway-towaway operations are not required to use an ELD, provided the vehicle driven is part of the shipment; and (2) ELDs are not required on CMVs older than model year 2000.

ELD Certification

—To ensure that ELD providers

have the opportunity for due process in the event that there are compliance issues with their product, procedures are added that FMCSA would employ if it identified problems with an ELD model before it would remove the model from the Agency's list of certified products.

“ELD provider” describes a manufacturer or packager of an ELD that complies with the appendix to subpart B of part 395 that is also responsible for registering and certifying the ELD on FMCSA's Web site.

In this rule, the Agency clarifies 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 changes are expected to improve the quality and usefulness of the supporting documents retained, and consequently increase the effectiveness and efficiency of the Agency's review of motor carriers' HOS records during on-site compliance reviews and its ability to detect HOS rules violations. The Agency is currently unable to evaluate the impact the changes to supporting documents requirements would have on crash reductions.

Today's rule contains provisions calculated to prevent the use of ELDs to harass drivers. FMCSA explicitly prohibits a motor carrier from harassing a driver, and provides that a driver may file a written complaint under § 386.12(b) if the driver was subject to harassment. Technical provisions that address harassment include a mute function to ensure that a driver is not interrupted in the sleeper berth. Further, the design of the ELD allows only limited edits of an ELD record by both the driver and the motor carrier's agents and in either case the original record generated by the device cannot be changed, which will protect the driver's RODS from manipulation.

Cost and Benefits

The Regulatory Impact Analysis (RIA) for today's rule retains two of the four options put forward in the SNPRM:

• 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.

In today's rule, FMCSA adopts a slight variation of Option 2 from the SNPRM. Based on comments received on the SNPRM, Options 3 and 4 are not included in the final rule. Unlike the SNPRM, to provide a backup means of accessing data FMCSA will require either a display or printout regardless of the specific data transfer technologies required, thus rendering Options 3 and 4 unnecessary. In response to comments received to the SNPRM, the specific data transfer technologies required under today's rule are simplified, with QR Codes and TransferJet technologies eliminated. In the SNPRM, the required data transfer technologies were the same across the four options presented, with the only differences being the population the rule would apply to and a specific requirement for the ability to print out data. In today's rule, the required data transfer technologies are the same across the two options presented. The change in data transfer technologies from the SNPRM does not affect the per unit cost of the ELD. However, in today's rule the purchase price of the ELD was reduced from that used in the SNPRM, to reflect the most up-to-date prices consistent with the technical requirements of the rule. This change in data transfer technologies from the SNPRM also simplifies and enhances uniformity of enforcement. For purposes of comparison, the analysis from the SNPRM, including Options 3 and 4, is available in the docket for this rulemaking.

The RIA details the costs and benefits of this rule and discusses the methods by which they were derived. The major elements that contribute to the overall net benefits of the rulemaking are shown below in Table 1. The figures presented are annualized using 7 percent and 3 percent discount rates.

Table 1—Summary of Annualized Costs and Benefits

[2013 $ millions]

Option 1: all HOS drivers

Option 2: (adopted) RODS drivers only

Total Benefits

$3,150

$3,124

$3,035

$3,010

Safety (Crash Reductions)

694

687

579

572

Paperwork Savings

2,456

2,438

2,456

2,438

Total Costs

2,298

2,280

1,851

1,836

New ELD Costs

1,348

1,336

1,042

1,032

AOBRD Replacement Costs

HOS Compliance Costs

936

929

797

790

CMV Driver Training Costs

Enforcement Training Costs

Enforcement Equipment Costs

Net Benefits

852

844

1,184

1,174

Under today's rule, FMCSA estimates 1,844 crashes avoided annually and 26 lives saved annually.

Table 2—Estimated Reductions in Crashes

Option 1: all HOS drivers

Option 2: RODS drivers only

Crashes Avoided

2,217

1,844

Injuries Avoided

675

562

Lives Saved

III. Public Participation

To view comments, as well as any documents identified in this preamble as 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.

IV. Overview

A. Today's Final Rule

Today's rule mandates ELD use for HOS compliance. It applies to most motor carriers and drivers who are currently required to prepare and retain paper RODS to comply with HOS regulations under part 395. Today's rule allows limited exceptions to the ELD mandate. As indicated in § 395.1(e), drivers who operate using the timecard exception are not required to keep RODS and will not be required to use ELDs. The following drivers are excepted in § 395.8(a)(1)(iii) from installing and using ELDs and may continue to use “paper” RODS:

“Paper RODS” means RODS that are not kept on an ELD or AOBRD, but instead are either recorded manually in accordance with § 395.8(f) or on a computer not synchronized to the vehicle or that otherwise does not qualify as an ELD or AOBRD.

• Drivers who use paper RODS for not more than 8 days during any 30 day period.

• Drivers who conduct driveaway-towaway operations, where the vehicle being driven is the commodity being delivered.

• Drivers of vehicles manufactured before model year 2000.

This exception is limited to the ELD requirement only; these drivers are still bound by the RODS requirements in 49 CFR part 395 and must prepare paper logs when required unless they voluntarily elect to use an ELD.

As required by MAP-21, § 395.8(a)(1) directs a motor carrier operating CMVs to install and require each of its drivers to use an ELD to record the driver's duty status no later than December 18, 2017. Drivers and motor carriers currently using § 395.15-compliant Automatic Onboard Recorders (AOBRDs), however, are allowed to continue to use AOBRDs for an additional 2 years after that date.

1. Supporting Documents

Under § 395.11(d), motor carriers must retain up to 8 supporting documents for every 24-hour period a driver who uses ELDs is on duty. Section 395.8(k) continues to require that motor carriers retain RODS and supporting documents for 6 months. New § 395.11(b) specifies that drivers must submit supporting documents to the motor carrier no later than 13 days after receiving them. While ELDs are highly effective at monitoring compliance with HOS rules during driving periods, supporting documents are still needed to verify on-duty not driving time (ODND). In § 395.2, today's rule defines “supporting document.” To be considered supporting documents, they need to meet certain criteria in § 395.11(c)(2). The eight documents should contain these elements from § 395.11(c)(2)(i):

• Driver name or carrier-assigned identification number, either on the document or on another document enabling the carrier to link the document to the driver, or the vehicle unit number if that number can be linked to the driver;

• Date;

• Location (including name of nearest city, town, or village); and

• Time.

FMCSA acknowledges that sometimes drivers will not receive documents that meet all these criteria. If a driver has fewer than eight documents that include the four elements under § 395.11(c)(2)(ii), a document that contains all of the elements except “time” is considered a supporting document; otherwise, it is not considered a supporting document. FMCSA notes that there is no obligation on a motor carrier to create or annotate documents that it did not otherwise generate or receive in its normal course of business.

If a driver submits more than eight documents to the motor carrier for a single day, paragraph (d)(3) requires that the motor carrier must include the first and last documents for that day among the eight documents that must be retained. If a driver submits fewer than eight documents, the motor carrier must keep each document.

Supporting documents consist of the following five categories, described in § 395.11(c):

• 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 a fleet management system (FMS); and

• Payroll records, settlement sheets, or equivalent documents that indicates payment to a driver.

Except for drivers who use paper RODS, there is no requirement for drivers or motor carriers to retain other types or categories of documents. If a driver keeps a paper RODS under § 395.8(a)(1)(iii), § 395.11(d)(4) states that toll receipts must be retained as well. For drivers using paper RODS, the toll receipts do not count in applying the eight-document cap. In applying the limit on the number of documents, § 395.11(d)(2) states that all information contained in an electronic mobile communication record, such as communication records kept by an FMS, will be counted as one document per duty status day.

Section 395.11(e) requires motor carriers to retain supporting documents in a way that allows them to be matched to a driver's RODS. Section 395.11 (f) prohibits drivers or carriers from destroying or defacing a supporting document or altering information on a document. Section 395.11(g) requires the driver to make supporting documents in his or her possession available to an authorized Federal, State, or local official on request. However, the driver only has to provide the documents in the format in which the driver has them available.

Self-compliance systems.

On a case-by-case basis, FMCSA may authorize exemptions to allow a motor carrier to use a supporting document self-compliance system, as required by section 113 of HMTAA. Using the procedures already in 49 CFR part 381, subpart C, FMCSA will consider requests for exemption from the retention and maintenance requirements for supporting documents. This alternative system would ensure compliance with the HOS regulations. Section 395.11(h) references the procedures for applying for an exemption for a self-compliance system.

2. Harassment

Today's rule includes a definition of “harassment,” which covers an action by a motor carrier toward one of its drivers that the motor carrier knew, or should have known, would result in the driver violating § 392.3, which prohibits an ill or fatigued driver from operating a CMV, or part 395, the HOS rules. Harassment must involve information available to the motor carrier through an ELD or other technology used in combination with and not separable from an ELD. In § 390.36(b), FMCSA explicitly prohibits a motor carrier from harassing a driver.

Today's rule adopts a regulatory prohibition on harassment, as defined, subject to a civil penalty in addition to the penalty for the underlying violation. The rule also has other provisions intended to ensure that ELDs are not used to harass drivers. Some of these are technical provisions intended to guard against harassment. Others are procedural, to give drivers recourse when they are harassed.

Among the technical solutions addressing harassment is a required mute function for FMSs with ELD functionality that would be used to comply with this rule. The mute function ensures that a driver is not interrupted by an FMS that includes an ELD function when the driver is in the sleeper berth. FMCSA emphasizes that a minimally compliant ELD is not required to have voice or text message communication capabilities or to produce audible alerts or alarms. For ELDs that have the ability to generate audible signals, however, today's rule requires that the devices have volume control. This control must either automatically engage, or allow the driver to turn off or mute the ELD's audible output when the driver puts the ELD into a sleeper berth status, and, in the case of co-drivers, when no other driver has logged into the ELD in an on-duty driving status.

The design of the ELD allows only limited edits of an ELD record by both the driver and the motor carrier's agents and in either case the original record generated by the device cannot be changed. Drivers may edit, enter missing information into, and annotate the ELD records but the original record will be retained. The ELD prevents electronically-recorded driving time from being shortened. A motor carrier may request edits to a driver's RODS to

ensure accuracy. However, for the carrier-proposed changes, the driver must confirm them and certify and submit the updated RODS. Section 395.30(c)(2) requires all edits, whether made by a driver or the motor carrier, be annotated to document the reason for the change. All of these procedures and design features will help a driver retain control of the RODS, and ensure against harassment.

The rule requires that anyone making edits to an ELD record have a unique login ID. Drivers must have access to their own ELD records without having to request access through their motor carriers, ensuring that drivers can review the ELD record and determine whether unauthorized edits/annotations have been entered.

Section § 395.26 describes ELD data records, including location data, when the driver changes duty status, when a driver indicates personal use or yard moves, when the CMV engine powers up and shuts down, and at 60-minute intervals when the vehicle is in motion. FMCSA emphasizes that it does not require real-time tracking of CMVs or the recording of precise location information in today's rule.

For the purposes of HOS enforcement, FMCSA requires all ELDs to record location in a way that provides an accuracy of approximately a 1-mile radius during on-duty driving periods. However, when a CMV is operated for authorized personal use, the position reporting accuracy, as required by section 4.3.1.6(f), is reduced to an approximate 10-mile radius, to further protect the driver's privacy. While a motor carrier could employ technology that provides more accurate location information internally, when the ELD transmits data to authorized safety officials, the location data will be limited to the reduced proximities.

Today's rule includes a new process for driver complaints related to harassment involving ELDs.

Civil penalties against motor carriers found to be harassing drivers are governed under Appendix B to Part 386 and today's rule addresses how penalties for harassment will be assessed (Part 386, Appendix B, (a)(7)). Because harassment will be considered in cases of alleged HOS violations, the penalty for harassment is in addition to the underlying violation under 49 CFR 392.3 or part 395. An underlying violation must be found in order for a harassment penalty to be assessed.

3. Technical Specifications; Implementation Period

Today's rule includes technical specifications for an ELD device. All ELDs must meet standard requirements which include recording certain information related to a driver's HOS status, but they are not required to track a CMV or driver in real time. ELDs are not required to include a capability to communicate between the driver and the motor carrier. All ELDs, however, must capture and transfer identical data regarding a driver's HOS status to authorized safety officials. Although an ELD may be part of an FMS, the ELD functions required by this rule are limited to automatically recording all driving time, and intermittently recording certain other information. The ELD functions will make it easy for the driver to record off duty, sleeper berth, and ODND time, and transfer that information to authorized safety officials and motor carriers.

Section 395.26 provides that the ELD automatically record the following data elements at certain intervals: date; time; location information; engine hours; vehicle miles; and identification information for the driver, the authenticated user, the vehicle, and the motor carrier. Unless the driver has indicated authorized personal use of the vehicle, those data elements are automatically recorded when the driver indicates a change of duty status or a change to a special driving category. When the driver logs into or out of the ELD, or there is a malfunction or data diagnostic event, the ELD records all the data elements except geographic location. When the engine is powered up or down, the ELD records all the data elements required by § 395.26. When a CMV is in motion and the driver has not caused some kind of recording in the previous hour, the ELD will automatically record the data elements. However, if a record is made during a period when the driver has indicated authorized personal use, some elements will be left blank and location information will be logged with a resolution of only a single decimal point (approximately 10-mile radius).

In addition to the information that the ELD records automatically, both the motor carrier and the driver must input manually some information in the ELD. The driver may select on the ELD an applicable special driving category, or annotate the ELD record to explain driving under applicable exceptions, including personal conveyance if configured by the motor carrier.

FMCSA will provide a list of provider-certified ELDs on its Web site. Today's rule requires interstate motor carriers to use only an ELD that appears on that list of registered ELDs. ELD providers must register through a FMCSA Web site, and certify through the Web site that their products meet the technical specifications in today's rule. FMCSA will publish compliance test procedures to assist providers in determining whether their products meet the requirements. ELD providers are not required to use FMCSA's compliance test procedures. They may use any test procedures they deem appropriate, but FMCSA will use the compliance test procedures during any investigation and rely upon the results from that procedure in making any preliminary determinations of whether a system satisfies the requirements of today's rule.

If the Agency believes an ELD model does not meet the required standards, new section 5.4 of the technical specifications prescribes a process of remedying the problem, or, if necessary, removing that model from FMCSA's registration Web site.

To meet roadside electronic data reporting requirements, under section 4.9.1 of the technical specifications, an ELD must support one of two options for different types of electronic data transfer. The first option is a telematics-type ELD. At a minimum, it must electronically transfer data to an authorized safety official on demand via wireless Web services and email. The second option is a local transfer method-type ELD. At a minimum, it must electronically transfer data to an authorized safety official on demand via USB2.0 and Bluetooth. Additionally, both types of ELDs must be capable of displaying a standardized ELD data set in the format specified in this rule to an authorized safety official on demand. To ensure that authorized safety officials are always able to receive the HOS data during a roadside inspection, a driver must be able to provide either the display or a printout when an authorized safety official requests a physical display of the information. Display and printouts will each contain the same standardized data set identified in section 4.8.1.3 of the technical specifications. Motor carriers will be able to select an ELD that works for their business needs since both types of ELDs will transfer identical data sets to law enforcement.

4. Enforcement

A driver must submit supporting documents to the driver's employer within 13 days. Today's rule does not require the driver to keep any supporting documents in the vehicle. However, FMCSA notes that any supporting documents that are in a vehicle during a roadside inspection must be shown to an authorized safety official on request.

Authorized safety officials who conduct roadside enforcement activities (

i.e.,

traffic enforcement and inspections) or compliance safety investigations will be able to select a minimum of one method of electronic data transfer from each type of ELD. States will have the option of choosing a minimum of one “telematics” electronic data transfer method (wireless Web services or email) and one “local” electronic data transfer method (USB 2.0 or Bluetooth) for the electronic transfer of ELD data.

5. Implementation Period

The Agency will make its compliance test available and its Web site available for ELD providers to register and certify ELDs on or shortly following the effective date of today's rule. A motor carrier may then elect to voluntarily use ELDs listed on the Web site. Prior to the rule's effective date, February 16, 2016, the Agency will issue a policy addressing how ELDs will be handled for HOS enforcement purposes during this voluntary period. Beginning on the rule's compliance date, December 18, 2017, the Agency will apply today's rule in its enforcement activities. If a motor carrier elects to voluntarily use ELDs in advance of the rule's compliance date, the provisions of the rule prohibiting harassment of drivers apply. However, those motor carriers that have installed a compliant AOBRD before the compliance date will have the option to continue using an AOBRD through December 16, 2019.

The supporting document provisions of today's rule also take effect as of the rule's compliance date. The effective date of provisions addressing harassment is tied to the use of an ELD.

B. Regulatory History

For a more extensive regulatory history and background of electronic logging device regulations, please see the April 5, 2010 Final Rule (75 FR 17208), February 1, 2011 NPRM (76 FR 5537), and the March 28, 2014 SNPRM (79 FR 17656). See also the table titled, “Timeline of Regulatory and Judicial Actions after 2010 Related to this Rulemaking,” in Section IV, F, below.

The 2010 EOBR 1 rule established technical specifications for an electronic logging device, but the rule concerned only remedial and voluntary use of EOBRs (75 FR 17208, Apr. 5, 2010). The rule would have required that motor carriers with demonstrated serious noncompliance with the HOS rules be subject to mandatory installation of EOBRs meeting the new performance standards included in the 2010 rule. If FMCSA determined, based on HOS records reviewed during a compliance review, that a motor carrier had a 10 percent or greater violation rate (“threshold rate violation”) for any HOS regulation listed in a new Appendix C to part 385, FMCSA would have issued the carrier an EOBR remedial directive. The motor carrier would then have been required to install EOBRs in all of its CMVs regardless of their date of manufacture and use the devices for HOS recordkeeping for a period of 2 years, unless the carrier (i) already equipped its vehicles with AOBRDs meeting the Agency's current requirements under 49 CFR 395.15 prior to the finding, and (ii) demonstrated to FMCSA that its drivers understand how to use the devices. At that time, the Agency estimated that the remedial directive aspect of 2010 rule would be applicable to about 2,800 motor carriers in the first year and 5,700 motor carriers each year thereafter.

The 2010 rule would have also changed the safety fitness standard to take into account a remedial directive when determining fitness. Additionally, to encourage industry-wide use of EOBRs, FMCSA revised its compliance review procedures to permit examination of a random sample of drivers' records of duty status after the initial sampling, and provided partial relief from HOS supporting documents requirements, if certain conditions were satisfied, for motor carriers that voluntarily use compliant EOBRs.

On February 1, 2011, FMCSA published an NPRM to expand the electronic logging requirements from the 2010 rule to a much broader population of motor carriers (76 FR 5537). There were several opportunities for public input, including a notice inviting comment on the issue of harassment, public listening sessions, MCSAC meetings,

and an online commenting system pilot program called Regulation Room.

The MCSAC provides advice and recommendations to the Administrator of FMCSA on motor carrier safety programs and motor carrier safety regulations. MCSAC members are appointed by the Administrator for two-year terms and includes representatives of the motor carrier safety advocacy, safety enforcement, industry, and labor communities.

The Regulation Room is available on line at:

http://archive.regulationroom.org/eobr

, last accessed January 2, 2015.

In June 2010, the Owner-Operator Independent Drivers Association (OOIDA) filed a petition in the U.S. Court of Appeals for the Seventh Circuit seeking a review of the 2010 rule (

Owner-Operator Indep. Drivers Ass'n

Fed. Motor Carrier Safety Admin.,

656 F.3d 580 (7th Cir. 2011) (decision available in the docket for this rulemaking)). On August 26, 2011, the Seventh Circuit vacated the April 2010 rule. The court held that, contrary to a statutory requirement, the Agency failed to address the issue of driver harassment.

656 F.3d at 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, which 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.

On February 13, 2012, FMCSA announced its intent to move forward with an SNPRM that would propose technical standards for electronic logging devices, 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.

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

As a result of the Seventh Circuit's vacatur, the technical specifications that were to be used in 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 EOBRs.

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 retain certain supporting documents, was not affected by the Seventh Circuit decision.

FMCSA proposed new technical standards for ELDs and requiring the

use of ELDs on March 28, 2014 in the SNPRM (79 FR 17656). These technical standards were in response to the vacatur of the 2010 rule, the MCSAC's recommendations (December 16, 2011 and February 8, 2012 reports), the public listening sessions (March 12, 2012 and April 26, 2012), and the enactment of MAP-21. The Agency also proposed new requirements for supporting documents and ways to ensure that ELDs are not used to harass drivers. The regulatory text proposed in the 2014 SNPRM superseded the regulatory text proposed in the 2011 NPRM.

FMCSA conducted a study of the potential for safety benefits with the use of ELDs, and published the results of this study in the docket on May 12, 2014.

FMCSA also conducted a survey of drivers and motor carriers concerning the potential for the use of ELDs to result in harassment, and docketed the results of this survey on November 13, 2014.

C. Provisions of Previous Rulemaking Proposals That Are Not Included in Today's Rule

1. Supporting Document Provisions

A number of provisions relating to a motor carrier's obligations concerning supporting documents that were included in the 2011 NPRM were not re-proposed in the SNPRM. For example, given the comments received in response to the NPRM and additional information brought to the Agency's attention, FMCSA decided not to require an HOS management system as part of this rulemaking.

The NPRM also proposed that a single supporting document would be sufficient for the beginning and end of each ODND period if that document contained the required elements. In addition, the NPRM also proposed a motor carrier to certify the lack of any required supporting document for prescribed periods. Given commenters overwhelming opposition to the HOS Management System, these requirements were not re-proposed in the 2014 SNPRM and are not included in the final rule.

It is a paramount responsibility, however, of all motor carriers to monitor their drivers' HOS compliance. As explained in prior administrative decisions of the Agency, a motor carrier has an obligation to verify HOS compliance of its drivers (See,

e.g., In the Matter of Stricklin Trucking Co., Inc.,

Docket No.

FMCSA-2011-0127-0013, at 10-13 (Order on Reconsideration

Mar. 20, 2012)).

Motor carriers have a duty to ensure that their drivers are complying with the requirements and prohibitions imposed on them in the HOS regulations, just as they are responsible for complying with other elements of the FMCSRs. The elimination of the HOS Management System proposed in the NPRM does not alter this obligation.

Available at

http://www.regulations.gov

The Agency eliminated the suggestion that a single supporting document could satisfy the motor carrier's obligation. The Agency agreed with comments submitted at the NPRM stage that this suggestion was not realistic and did not include it in the SNPRM. Similarly, the Agency eliminated the requirement that a motor carrier certify the unavailability of supporting documents based on comments received in response to the NPRM.

2. Technical Specifications

The 2011 NPRM relied upon the technical specifications in the EOBR 1 rule, which the Seventh Circuit vacated and which are now obsolete. The 2014 SNPRM proposed new technical specifications, and today's rule makes some modifications to those technical specifications. Below is a comparison of the technical specifications in the existing 1988 AOBRD rule, the 2010 EOBR 1 rule, the 2014 SNPRM, and today's rule. Motor carriers that have installed compliant AOBRDs before the compliance date of today's rule (2 years from today's publication date) may continue use of these devices for an additional 2 years after the compliance date.

Table 3—Comparison of Technical Specifications

Feature/Function

1988 AOBRD Rule

2010 EOBR Rule

2014 ELD SNPRM

Today's ELD Final rule

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 model year 2000 and later, interfacing with engine control module (ECM)

Integral synchronization interfacing with the CMV engine ECM, to automatically capture engine power status, vehicle motion status, miles driven, engine hours.

(CMVs older than model year 2000 exempted).

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

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 or on a printout

An ELD must be able to present a graph grid of driver's daily duty status changes either on a display 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

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 not 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

On-duty not 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) Coordinated Universal Timeshall 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

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 Web services 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”

Two Options: 1-Telematics:

As a minimum, the ELD must transfer data via both wireless Web services and wireless email

2-“Local Transfer”:

As a minimum, the ELD must transfer data via both USB 2.0 and Bluetooth.

Both types of ELDs must be capable of displaying a standardized ELD data set to authorized safety officials via display or printout.

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 HOS, or alteration of the source data streams used to provide that information

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. ELD must support data integrity check functions

Identification of Sensor Failures and Edited Data

Must identify sensor failures and edited data

Device/system must identify sensor failures and edited and annotated data when downloaded or reproduced in printed form

ELD must have the capability to monitor its compliance (engine connectivity, timing, positioning, etc.) for detectable malfunctions and data inconsistencies. ELD must record these occurrences

ELD must have the capability to monitor its compliance (engine connectivity, timing, positioning, etc.) for detectable malfunctions and data inconsistencies. ELD must record these occurrences.

D. 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, including those pertaining to harassment. The Department of Labor administers the whistleblower law enacted as part of the Surface Transportation Assistance Act (49 U.S.C. 31105). FMCSA and the 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 also have been in communication concerning their respective authorities and complaint procedures and, in the Spring of 2014, entered a memorandum of understanding to facilitate coordination and cooperation between FMCSA and the Occupational Safety and Health Administration concerning statutory provisions addressing retaliation and coercion as well as the exchange of safety and health allegations.

Copy of Memorandum of Understanding available at

https://www.osha.gov/plsoshaweb/owadisp.show_document?p_table=MOU&p_id=1305

E. MCSAC Recommendations

Under Task 11-04, FMCSA tasked the MCSAC with clarifying the functionality of communications standards originally adopted in the April 2010 rule, in appendix A to part 395—Electronic On-Board Recorder Performance Specifications.

The Agency asked the

MCSAC to make recommendations on technical subjects to improve the functionality of the information reporting requirements after considering advice from technical experts and input from stakeholders.

Motor Carrier Safety Advisory Committee (MCSAC) Task Statement, Task 11-04, Electronic On-Board Recorders (EOBR) communications protocols, security, interfaces, and display of hours-

of-service data during driver/vehicle inspections and safety investigations. Retrieved December 7, 2014, from

http://mcsac.fmcsa.dot.gov/documents/July2011/task_statement_11-04.pdf

The MCSAC created the EOBR Implementation Subcommittee, which 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. In its notice announcing the subcommittee meetings (76 FR 62496, Oct. 7, 2011), FMCSA stated, “[t]he Agency will consider the MCSAC report in any future rulemaking to reestablish functional specifications for EOBRs.”

The MCSAC report was delivered to the Administrator on December 16, 2011.

The report consisted of comments on, and recommended changes to, the April 2010 rule and a discussion of issues the committee believed FMCSA should consider while developing the rule. The committee's recommendations focused on: Technical specifications, including required data elements, location data, and device display requirements; and implementation considerations, including grandfather provisions, product certification procedures, and exceptions for early adopters.

MCSAC Task 11-04: Electronic On-Board Recorders (EOBR) Communications Protocols, Security, Interfaces, and Display of Hours-of-Service Data During Driver/Vehicle Inspections and Safety Investigations, December 16, 2011. Retrieved December 7, 2014, from

http://mcsac.fmcsa.dot.gov/meeting.htm

Under Task 12-01, FMCSA tasked the MCSAC to present information the Agency should consider as it develops ways to address potential harassment of drivers related to the use of EOBRs. This report was delivered to the Administrator on February 8, 2012.

This report addressed a number of issues concerning harassment, including the definition of harassment, complaint procedures, civil penalties, and the potential for harassment by law enforcement.

MCSAC Task 12-01: Measures to Ensure Electronic On-Board Recorders (EOBRs) Are Not Used to Harass Commercial Motor Vehicle (CMV) Drivers, February 8, 2012. Retrieved January 8, 2015, from

http://mcsac.fmcsa.dot.gov/Reports.htm

FMCSA considered the MCSAC recommendations submitted under Task 11-04 and Task 12-01 during the rulemaking process. Many of the new requirements in today's rule are consistent with the MCSAC recommendations.

F. Table Summary

Table 4—Timeline of Regulatory and Judicial Actions Since the 2010 Rule

Title

Type of action, RIN

Citation, date

Synopsis

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

Final rule

RIN 2126-AA89

Docket No. 2004-18940

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.

No RIN.

No docket number.

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 HOS regulations.

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

Final rule; Technical amendments, response to petitions for reconsideration,

RIN 2126-AA89

Docket No. 2004-18940

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 USB interface.

Electronic On-Board Recorders and Hours-of-Service Supporting Documents

NPRM

RIN 2126-AB20

Docket No. FMCSA-2010-0167

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,

RIN 2126-AB20

Docket No. FMCSA-2010-0167

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

RIN 2126-AB20

Docket No. FMCSA-2010-0167

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 RIN 2126-AA89

Docket No. FMCSA-2006-26367

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 RIN 2126-AA89

No docket number

Owner-Operator Indep. Drivers Ass'n

Fed. Motor Carrier Safety Admin.,

656 F.3d. 580 (7th Cir. 2011),

Aug. 26, 2011

Vacated the April 2010 rule.

Motor Carrier Safety Advisory Committee Series of Public Subcommittee Meetings

Notice of meetings related to EOBRs

No RIN.

Docket No. FMCSA-2006-26367

76 FR 62496, Oct. 7, 2011

Oct. 24-27, 2011, subcommittee review of the functional specifications for EOBRs published by FMCSA as part of EOBR final rule

MCSAC: Public Meeting Medical Review Board: Joint Public Meeting With MCSAC

Notice of meeting

Related to RIN 2126-AB20

Docket Nos. FMCSA-2006-26367 and FMCSA-2011-0131

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

RIN 2126-AB20

Docket No. FMCSA-2010-0167

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,

RIN 2126-AB20

Docket No. FMCSA-2010-0167

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

RIN 2126-AB20

Docket No. FMCSA-2010-0167

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

RIN 2126-AB45

Docket No. FMCSA-2012-0006

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.

Agency Information Collection Activities; New Information Collection Request: Driver and Carrier Surveys Related to Electronic On-Board Recorders (EOBRs), and Potential Harassment Deriving From EOBR Use

Notice and request for information

No RIN.

Docket No. FMCSA-2012-0309

77 FR 74267, Dec. 13, 2012

FMCSA submits an Information Collection Request (ICR) to Office of Management and Budget (OMB) for approval. The purpose of this new ICR is to examine by the collection of survey data, the issue of driver harassment and determine the extent to which EOBRs could be used by motor carriers or enforcement personnel to harass drivers and/or monitor driver productivity. The survey will also collect information on the extent to which respondents believe that the use of EOBRs may result in coercion of drivers by motor carriers, shippers, receivers and transportation intermediaries.

Agency Information Collection Activities; Approval of a New Information Collection Request: Driver and Carrier Surveys Related to Electronic Onboard Recorders (EOBRs), and Potential Harassment Deriving From EOBR Use

Notice and request for comments

No RIN.

Docket No. FMCSA-2012-0309

78 FR 32001, May 28, 2013

The purpose of this new ICR is to broadly examine, by the collection of survey data, the issue of driver harassment and determine the extent to which EOBRs used to document drivers' HOS could be used by motor carriers or enforcement personnel to harass drivers or monitor driver productivity. The survey will collect information on the extent to which respondents believe that the use of EOBRs may result in coercion of drivers by motor carriers, shippers, receivers, and transportation intermediaries. The proposed surveys for drivers and carriers collect information related to issues of EOBR harassment of drivers by carriers. FMCSA plans to publish a supplemental notice of proposed rulemaking on EOBRs.

Electronic Logging Devices and Hours of Service Supporting Documents

Supplemental notice of proposed rulemaking; request for comments

RIN 2126-AB20

Docket No. FMCSA-2010-0167

79 FR 17656, Mar. 28, 2014

Proposed minimum performance and design standards for HOS ELDs, mandated their use by drivers currently required to keep RODS, proposed clarifying and specified HOS supporting document retention requirements; and included measures to address concerns about harassment resulting from the mandatory use of ELDs.

Electronic Logging Devices and Hours of Service Supporting Documents

Evaluating the Potential Safety Benefits of Electronic Hours-of-Service Recorders; Notice of availability of research report

RIN 2126-AB20

Docket No. FMCSA-2010-0167

79 FR 27040, May 12, 2014

Announced the availability of a new final report, “Evaluating the Potential Safety Benefits of Electronic Hours-of-Service Recorders.” The study quantitatively evaluated whether trucks equipped with Electronic Hours-of-Service Recorders (EHSRs) have a lower (or higher) crash and hours-of-service (HOS) violation rate than those without EHSRs.

Coercion of Commercial Motor Vehicle Drivers; Prohibition

NPRM

RIN 2126-AB57

Docket No. FMCSA-2012-0377

79 FR 27265, May 13, 2014

FMCSA proposes regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate CMVs in violation of certain provisions of the FMCSRs—including HOS limits and the Commercial Driver's License (CDL) regulations and associated drug and alcohol testing rules—or the Hazardous Materials Regulations. In addition, the NPRM would prohibit anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations.

Electronic Logging Devices and Hours of Service Supporting Documents

Supplemental notice of proposed rulemaking; extension of comment period

RIN 2126-AB20

Docket No. FMCSA-2010-0167

79 FR 28471, May 16, 2014

Extended the public comment period for the Agency's March 28, 2014 SNPRM until June 26, 2014.

Agency Information Collection Activities; New Information Collection Request: Electronic Logging Device Vendor Registration

Notice and Request for Comments

No RIN

Docket No.: FMCSA-2014-0377

79 FR 642848, Oct. 28, 2014

Invited public comment on the approval of a new information collection request entitled, Electronic Logging Device Vendor Registration. This ICR will enable manufacturers of ELDs to register with FMCSA.

Electronic Logging Devices and Hours of Service Supporting Documents; Research Report on Attitudes of Truck Drivers and Carriers on the Use of Electronic Logging Devices and Driver Harassment

Notice of Availability of Research Report

RIN 2126-AB20

Docket No. FMCSA-2010-0167

79 FR 67541, Nov. 13, 2014

Announced the availability of a new report: “Attitudes of Truck Drivers and Carriers on the Use of Electronic Logging Devices and Driver Harassment.” This project surveyed drivers on their attitudes regarding carrier harassment and examined whether reported harassment experiences varied due to the hours-of service logging method used by the driver.

Agency Information Collection: Activities; New Information Collection Request: Electronic Logging Device (ELD) Registration

Notice and Request for Comments

No RIN

Docket No. FMCSA-2014-0377

80 FR 18295, Apr. 3, 2015

Announced the FMCSA plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget for its review, and invited public comment on the approval of a new ICR entitled, Electronic Logging Device Registration to enable providers to register their ELDs with FMCSA.

Coercion of Commercial Motor Vehicle Drivers; Prohibition

Final Rule

RIN 2126-AB57

Docket No. FMCSA-2012-0377

80 FR 74695, Nov. 30, 2015

Prohibits motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate CMVs in violation of certain provisions of the FMCSRs. Prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations.

V. Legal Basis for the Rulemaking

FMCSA's authority for this rulemaking is derived from several statutes, which are discussed below.

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 rule requires the use of safety equipment that will increase compliance with the HOS regulations and address the “safety of operation” of motor carriers subject to this statute. This will result through the 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) (the 1984 Act), as amended, 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 will 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 and motor carrier 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 the rulemaking's impact on driver health under 49 U.S.C. 31136(a)(3) and (a)(4), as discussed in the Environmental Assessment, available in the docket for this rulemaking.

By ensuring ELDs are tamper-resistant, this rulemaking will help protect against coercion of drivers (49 U.S.C. 31136(a)(5)). The ELD will decrease the likelihood that driving time, which will 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 will 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 rule also prohibits motor carriers from coercing drivers to falsely certify their ELD records (49 CFR 395.30(e)). FMCSA recently adopted a rule that defines “coerce” or “coercion” and prohibits the coercion of drivers (49 CFR 390.5 and 390.6, respectively) (80 FR 74695, November 30, 2015).

Because the rule will increase compliance with the HOS regulations, which are intended to prevent driver fatigue, it will 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 rule because ELDs and the rulemaking'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 promulgating a regulation about the use of monitoring devices on CMVs to increase compliance with HOS regulations. The statute, as amended, required the Agency to ensure that such devices were not used to “harass a vehicle operator.” This provision was further amended by MAP-21, providing that regulations requiring the use of ELDs, ensure that ELDs not be used to harass drivers. See the discussion of MAP-21, below, and the discussion of comments related to harassment in Section IX.

D. Hazardous Materials Transportation Authorization Act of 1994

Section 113 of the Hazardous Materials Transportation Authorization Act of 1994 (Pub. L. 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 efficiency of Federal and State authorized safety officials 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 rule does not require generation of new supporting documents outside the normal course of the motor carrier's business. It addresses supporting documents that a motor carrier needs to retain consistent with the statutory requirements. The provisions addressing supporting documents are also discussed in Section VIII of this preamble.

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.

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.

In the March 28, 2014 SNPRM, the term “electronic logging device (ELD)” was 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.

The statute also addresses privacy protection and use of data. Section 32301(b) of MAP-21 requires the regulations to “ensur[e] that an electronic logging device is not used to harass a vehicle operator.” Among other protections, the rule protects drivers from being harassed by motor carriers that are using information available through an ELD, resulting in a violation of § 392.3 or part 395 of 49 CFR, and minimizes the likelihood of interruptions during a driver's sleeper berth period. In doing so, this rule also furthers the provisions of 49 U.S.C. 31136(a), protecting a driver's health.

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. Although there may be instances where claims of coercion and harassment might overlap, in enacting MAP-21, Congress addressed the issues separately and each regulatory violation has distinct elements. A motor carrier can only be found to have committed harassment if the driver commits a specified underlying violation based on the carrier's actions and there is a nexus to the ELD. Adverse action against the driver is not required because the driver complied with the carrier's instructions. In contrast, coercion is much broader in terms of entities covered and addresses the threat to withhold work from or take adverse employment action against a driver in order to induce the driver to violate a broader range of regulatory provisions or to take adverse action to punish a driver for the driver's refusal to operate a CMV is violation of the specified regulations.

VI. Discussion of Comments—Overview

In today's rule, FMCSA responds to comments in public docket FMCSA-2010-0167, which includes comments submitted in response to the following

Federal Register

notices:

• February 1, 2011, NPRM

• April 13, 2011, Notice, request for additional public comment concerning harassment associated with electronic recording of HOS duty status

• March 28, 2014, SNPRM

• May 12, 2014, Notice of Availability concerning the Agency's research report evaluating the potential safety benefits of ELDs

• November 13, 2014, Notice of Availability concerning the Agency's research report about harassment and its relationship to ELDs

The docket also includes transcripts of comments received at two public listening sessions held in Louisville, Kentucky on March 23, 2012, and Bellevue, Washington on April 26, 2012.

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).

In the 2014 SNPRM, the Agency stated that the proposed regulatory text should be read to replace that proposed in the 2011 NPRM. Some issues in the NPRM were addressed at the SNPRM stage. FMCSA discusses comments to the 2011 NPRM that remain relevant to this rulemaking in the appropriate sections of this comment summary. However, the Agency generally does not address comments to the 2011 NPRM that have been rendered obsolete by changes in the Agency's proposal and events subsequent to the 2011 NPRM, such as the enactment of MAP-21, or that were also submitted to the SNPRM. Obsolete provisions are discussed in Section IV, Overview, above. Similarly, we do not generally respond to comments related to cost and benefit assumptions that the Agency relied on in the NPRM because the SNPRM and this rule largely rely on different data and methodologies.

At the NPRM stage, FMCSA and the Department of Transportation (DOT) participated in a pilot program intended to increase effective public involvement in this rulemaking 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.

A. Terminology in This Rulemaking

1. A Note on the Terms “EOBR,” “EOBR Technology,” and “ELD” as Used by Commenters

To the best of the Agency's knowledge, no devices or technologies for HOS compliance in the marketplace to date comply fully with the vacated § 395.16 requirements. However, the characteristics of many systems and devices probably came very close to meeting those requirements, and may have been able to become fully compliant with some relatively minor technological changes. Despite this, many commenters referred to “existing EOBRs,” and referenced specific makes and models of EOBR-like (ELD-like) devices and systems. FMCSA does not refer to devices or systems discussed by commenters by brand name in this rule. In these responses to comments, the Agency considers the term “EOBR” or “electronic on-board recorder” to mean a device or a technology that would cover both HOS data recording and storage systems, but acknowledges that the devices commented upon might not actually be compliant with the technical specifications of today's rule.

MAP-21 defines “electronic logging device” or “ELD” as a device that “is capable of recording a driver's hours of service and duty status accurately and automatically; and meets the requirements established by the Secretary through regulation.” 49 U.S.C. 31137(f)(1). The Agency previously used the term “electronic on-board recorder” to refer to this category of HOS recording device and its support system. However, to achieve consistency with MAP-21, the Agency now refers to devices that meet today's final rule's technical specifications as “ELDs.” FMCSA may retain the use of the term “EOBR,” as appropriate, in the context of comments.

Technically there are only “ELD-like” devices in use today, as an ELD did not exist in regulation before today's rule. The Agency assumes that many ELD-like devices could be made compliant with the ELD rule at relatively low-cost, but existing devices would likely need some modification.

2. Fleet Management Systems

An FMS may include the functions of an ELD, but typically provides communication capabilities that go beyond the defined requirements of today's rule. Commenters often use the term “ELD” to refer to what appears to be an FMS. FMCSA may retain the language of the comments, despite the fact that the technologies described exceed the minimum specifications and

definition to be considered an ELD. Today's rule prescribes technical specifications required for a minimally compliant ELD; however, it also addresses communication features available as part of FMS as part of its effort to prevent harassment. Today's rule does not prohibit certain enhanced capabilities that some ELD providers may choose to create, and some motor carriers may elect to employ, consistent with 49 CFR 390.17.

3. ELD Records

In today's rule, FMCSA uses the term “ELD records” reflecting the move from paper logs to electronic records recorded on an ELD. The term “ELD records” includes all the data elements that must be recorded by an ELD under the technical specifications in the Appendix to subpart B of part 395. The term does not include information that an ELD is not required to record such as supporting documents, including communication records recorded through an FMS. The term is used to describe a type of RODS that are recorded on an ELD and that must be retained by a motor carrier. A definition of “ELD record” is added to 49 CFR 395.2 for clarity.

B. An Overview of Comments

1. Comments to the 2011 NPRM

The Agency received 385 unique and germane comments to the NPRM. The Agency received 66 docket submissions that were generally in favor of the 2011 proposal to expand the use of EOBRs; commenters included industry and safety advocacy groups, as well as individuals, motor carriers, and government entities. The six safety advocacy groups that generally supported the 2011 NPRM included Road Safe America; the Insurance Institute for Highway Safety; the Alliance for Driver Safety and Security; and, in a joint filing, the Truck Safety Coalition, Parents Against Tired Truckers, and the Citizens for Reliable and Safe Highways. The National Transportation Safety Board (NTSB) and the Commercial Vehicle Safety Alliance (CVSA) wrote supportive comments, as did the Truckload Carriers Association, the Arkansas Trucking Association, and the American Trucking Associations (ATA). Several individuals and drivers, motor carriers, and owner-operators also supported the rule.

FMCSA received 232 separate comments to the docket that were generally opposed to the proposed rule, particularly concerning the expansion of the EOBR usage requirements. Some commenters responded several times. The Agency heard from drivers or other individuals, including owner-operators, and motor carriers. Six associations also opposed all or certain elements of the proposed rule: OOIDA; the Agricultural Retailers Association; the Joint Poultry Industry Safety and Health Council; and, in a joint filing, the Air and Expedited Motor Carriers Association, National Association of Small Trucking Companies, and The Expedite Association of North America.

Reasons cited by commenters who opposed the proposed rule included the following:

• The proposal would not improve compliance with the HOS rules

• The proposal would not improve highway safety

• The proposal would impose excessive costs, particularly on small businesses

• The proposed mandated use of EOBRs would be an invasion of privacy

• The proposal did not adequately address protection of drivers from harassment

Comments During Listening Sessions

FMCSA sought public involvement in the rulemaking through two public listening sessions. These sessions occurred at the Mid-America Truck Show in Louisville, Kentucky, on March 23, 2012, and at the CVSA Conference in Bellevue, Washington, on April 26, 2012. The listening sessions were held after the EOBR 1 rule was vacated and after the 2011 NPRM was published. Comments received at these public sessions focused primarily on the topic of harassment.

During the course of these two public listening sessions, FMCSA heard from both commenters present and those participating through the Internet, who offered varied opinions on the implementation and use of EOBRs. Commenters at the listening session in Louisville, Kentucky, included OOIDA officials, drivers, representatives of motor carriers, and owner-operators. The second public listening session in Bellevue, Washington, specifically sought the input of FMCSA's Motor Carrier Safety Assistance Program (MCSAP) agencies because of their role in enforcing the HOS rules and familiarity with EOBR devices and other technical issues. Participants in the Bellevue public listening session included drivers, representatives of transportation-related businesses, representatives of motor carrier industry organizations, authorized safety officials, and Agency representatives.

In addition to the transcripts of the sessions, which are available in the docket to this rulemaking, Web casts are archived at:

http://www.tvworldwide.com/events/dot/120323/

and

http://www.tvworldwide.com/events/dot/120426/

, respectively. The comments made at these listening sessions are incorporated into the comments addressed here.

2. Comments to the 2014 SNPRM

FMCSA received 1,750 unique and germane comments to the SNPRM.

Comments Generally in Support of the SNPRM

More than 200 commenters expressed general support for the SNPRM. In addition, the Agency received a submission from the Karth family providing a copy of “The AnnaLeah & Mary Karth Petition: STAND UP FOR TRUCK SAFETY,” which had 11,389 electronic signatures as of May 27, 2014, when it was submitted to the docket. Some of the commenters who expressed general support had additional comments or reservations that FMCSA discusses in the relevant sections elsewhere in this comment summary. A number of motor carriers, providers of FMSs and related technologies, trade associations, and labor unions stated their general support for the goals of the rulemaking. Safety advocacy organizations generally supported a requirement for ELDs. The Truck Safety Coalition, Parents Against Tired Truckers, and Citizens for Reliable and Safe Highways, responding together, noted some concerns, but indicated their organizations and the safety community support the rulemaking.

The California Highway Patrol (CHP) supported FMCSA's efforts to document driver HOS and duty status via ELDs. The NTSB supported expanding the number of motor carriers and drivers required to use ELDs and indicated that it is vitally important that FMCSA expeditiously issue a final rule to increase compliance with HOS regulations and prevent future crashes, injuries, and deaths.

Individual commenters wrote that they supported ELDs because they make keeping logs easier, there is less paperwork, and logs are orderly, clear, and accurate. Some commenters wrote that ELDs make both drivers and motor carriers operate legally and hold both accountable for compliance. Commenters also noted that ELDs will speed up roadside inspections and simplify enforcement.

Comments Generally Opposed to the SNPRM

FMCSA received 1,357 comments that expressed general opposition to the

SNPRM. FMCSA describes many of these comments in more detail in other parts of the response to comments, but the most commonly cited reasons are discussed below.

Unless laws are written to protect drivers and carriers, Freightlines of America, Inc. commented that brokers, shippers, receivers, corporations, and customers will use ELDs and the HOS rules to deduct pay or not pay at all for a load, jeopardizing safety and lives. The U.S. Poultry & Egg Association, National Chicken Council, and National Turkey Federation, responding together, did not believe that motor carriers that successfully monitor HOS with paper logs should be required to incur the expense of electronic recorders. The National Propane Gas Association (NPGA), Klapec Trucking Company (Klapec), and the Pennsylvania Propane Gas Association believed installation of ELDs should be on a voluntary basis only. The California Construction Trucking Association believed that motor carrier management and owner-operators should be free to choose how to implement safety management practices suited to their particular operations.

Numerous commenters objected to the rule, indicating that the government is overreaching, that there is too much regulation, and that the ELD impinges on privacy and freedom. Some believed that FMCSA would require ELDs for reasons that have nothing to do with safety, for example, to make money from carriers and drivers. OOIDA believed that the use of ELDs would have wide-ranging and negative implications for the health, privacy, safety, and economic interests of all U.S.-domiciled truck drivers and motor carriers.

Many commenters wrote that ELDs would be a financial burden, particularly for small motor carriers, and would drive small carriers out of business. The Agricultural Retailers Association and NPGA believed an ELD mandate is an unnecessary expense—with little to no safety benefits. Some wrote that ELDs would cause prices to rise and slow the economy. Some commenters objected to the costs of the ELD being the responsibility of the driver or motor carrier; some suggested that FMCSA should pay for ELDs. Commenters wrote that they would have to keep paper logs as well, in case the ELD failed.

Commenters also stated that ELDs would benefit only large carriers, or provide more benefits for large carriers than small carriers. These commenters believed big corporations would get discounts on ELDs. Commenters believed that ELDs would give big carriers economic advantages, and some accused FMCSA of requiring ELDs in order to eliminate small carriers. Many commenters wrote that one of the costs of ELDs would be a driver shortage, and many wrote that they would leave the driving industry if ELDs were required.

Many commenters wrote that the ELD would not improve safety, security, or compliance. Commenters complained that carriers with ELDs have a disproportionate number of crashes and high Safety Management System scores—more than carriers without ELDs. They provided examples of the Safety Management System scores of a number of major carriers (Schneider, National, J. B. Hunt, Swift, U.S. Xpress, Knight). Commenters believed that a June 2014 CMV crash involving a Walmart truck on the New Jersey Turnpike was equipped with an AOBRD. They argued that the incident is proof that ELDs do not prevent crashes. Commenters said that the ELD does not enhance compliance—ELDs can only prove driving time, not ODND, off duty, or sleeper berth time—and each duty status can be falsely entered. One commenter wrote that the Agency would have no additional manpower to enforce the ELD rules. Many commenters reported that authorized safety officials often fail to inspect trucks with AOBRDs.

Many commenters opposed ELDs because they would enforce the existing HOS rules and eliminate existing “flexibility.” They believed that ELDs would contribute to stress, bad diet, and ill health when used to enforce the 14-hour rule. They alleged that trucks with ELDs speed through construction zones, parking lots, and fueling stations. Commenters also believed that the use of ELDs would result in congested traffic and a scarcity of truck parking locations by forcing strict compliance with the HOS rules.

Commenters stated that the ELD would contribute to driver harassment because ELDs enable motor carriers to push drivers to their driving and on-duty time limits.

Many commenters wrote that training—not ELDs—will provide safety, and FMCSA should pursue long overdue driver training programs. Commenters maintained that big carriers need ELDs because they hire undertrained drivers.

More Data Needs To Be Collected and Analyzed

The George Washington University Regulatory Studies Center pointed out that FMCSA conducts regular roadside inspections that should produce data by which the Agency can measure compliance with HOS limits and associated safety benefits. While some links cannot be directly measured (

e.g.,

whether compliance with HOS regulations will actually reduce driver fatigue), the extent to which the predicted safety benefits of the ELD mandate are accurate should be measurable with data from roadside inspections and accident reports. George Washington University recommended that FMCSA explicitly commit to measuring the actual results of the regulation on an annual basis.

An individual commenter stated that independent research not related to the government will provide detailed information about, and answers to, the e-log problem. The commenter pointed to crashes involving all companies, large and small, and stated that the Agency did not completely research all factors in detail.

3. FMCSA Response

FMCSA describes and responds to many of these comments in more detail in other parts of the response to comments. However, FMCSA agrees with commenters who believe ELDs will help to reduce fatigue and fatigue-related crashes.

The use of ELDs will make it easier for drivers to accurately capture their duty status and make it more difficult for individuals who currently do not routinely achieve high levels of compliance with the HOS rules to produce inaccurate records. The ELD will provide increased transparency and a record that is created automatically of some data elements, as well as a record of any human authorship and editing. While commenters pointed out that there can still be falsification of time spent ODND, FMCSA believes that the opportunities for such fraud are drastically reduced when vehicles are equipped with ELDs. Automatic recording of all times when the CMV is moving and regular recording of geolocation data and other data elements will help both employers and authorized safety officials with HOS oversight, as those elements cannot be easily manipulated. FMCSA believes that ELD use will lead to increased compliance and beneficial behavior changes in commercial driving.

FMCSA notes that preventing fatigued operation of CMVs is a complex challenge and achieving increased compliance with the HOS rules is only one component of the problem. This rule addresses the role of HOS non-compliance while the Agency's work with government and industry leaders in launching the North American Fatigue Management Program (

http://

www.nafmp.com/en/

) is intended to address other components related to overall work-rest schedules, and balancing family and work life in a manner that enables the driver to rest during off-duty periods.

With regard to comments about flexibility, today's final rule concerns ELDs and supporting documents and does not involve any changes to the underlying HOS requirements or the various duty status options available under the HOS rules. Therefore, the use of ELDs does not preclude any of the flexibility provided under the HOS rules, such as the use of the CMV for personal conveyance.

And in response to the comments from George Washington University, FMCSA will conduct a regulatory effectiveness study at an appropriate time following the compliance date. The Agency will then be in a position to compare HOS violation rates in the years prior to the ELD mandate and during the years that follow implementation of the ELD mandate.

FMCSA addresses the relationship of ELDs and crashes in the discussion of its research. FMCSA discusses the benefits of ELD use elsewhere in this preamble.

VII. Discussion of Comments Related to Scope and Exceptions to the Mandate

A. Scope

1. Comments to the 2011 NPRM

The April 2010 rule mandated the use of EOBRs for motor carriers that demonstrated a history of severe noncompliance with the HOS regulations. Although many commenters, including the NTSB, had concerns that this limited mandate would not adequately address safety issues, the Agency could not include in the 2010 rule requirements that extended beyond the scope of the January 18, 2007 NPRM (72 FR 2340). At that time, the Agency estimated that the remedial directive aspect of 2010 rule would have been applicable to about 2,800 motor carriers in the first year and 5,700 motor carriers each year thereafter.

In the February 2011 NPRM, FMCSA proposed mandatory installation and use of EOBRs in all CMVs for which the use of RODS was required (76 FR 5537). The provisions of 49 CFR 395.1(e)(1) and (2) would still allow short-haul drivers to continue using the timecard provision to record HOS. Although FMCSA would not have required short haul drivers to install and use EOBRs, nothing in the NPRM precluded them from doing so. Several commenters to the NPRM suggested that the Agency consider expanding the rule to include a broader scope, or a “true universal” mandate for ELD use. Many other commenters supported the Agency's proposal for all current RODS users to be required to use ELDs.

2. Comments to the 2014 SNPRM

In the SNPRM, FMCSA proposed to mandate the installation and use of ELDs for the majority of interstate motor carrier operations. Drivers engaged in operations that do not require the preparation of RODS would be able to use ELDs to document their compliance with the HOS rules, but FMCSA would not require them to do so. 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 also be allowed to continue using paper RODS, provided they do not need to use RODS more than 8 days in any 30-day period.

The 2014 SNPRM evaluated four options for this proposed ELD mandate:

•

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.

Option 2 is FMCSA's preferred option for the mandated use of ELDs. FMCSA adopts this option in today's rule.

General comments.

An individual noted that the ELD mandate would put a cost burden on the occasional interstate driver (

e.g.,

10-20 times per year). An individual stated an objection to the ELD mandate on the basis that the government does not have the right to require private individuals to install something in their private property.

Because service technicians are not subject to Federal and State HOS restrictions, and they operate several vehicles owned or leased by different carriers on a daily basis, the American Truck Dealers (ATD) division of the National Automobile Dealers Association stated that it does not make sense to subject them to the RODS requirements or to the proposed ELD and supporting documents rules.

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

An owner-operator, a driver, and two individuals stated that the rule should cover all commercial truck drivers, with no exceptions. An individual commenter specifically included the 100/150 air mile carriers—which the commenter asserted were most problematic. Klapec opposed Option 1 and stated that, as a company with an excellent safety record, it is being subjected to punishment for the actions of a small percentage of the industry that routinely violate the HOS rules. The company believes ELDs should be mandated only for the chronic violators of the HOS rules.

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

The majority of commenters supported Option 2. The International Brotherhood of Teamsters (IBT) stated that safety benefits are higher when all regulated CMV operations are included in the ELD mandate, but supported Option 2. The International Foodservice Distributors Association (IFDA) noted its support for the Agency's proposed exclusion from the ELD mandate of drivers who are not currently, or are only occasionally, subject to RODS requirements.

The National Limousine Association (NLA) stated that Option 2 is the most sensible option and that it squarely meets the Congressional mandate under MAP-21. If the short-haul exemption were eliminated, NLA noted there would be severe negative economic impacts on NLA's members, most of whom are small businesses. NLA also stated short-haul carriers have a strong record of safety and HOS compliance, and that the focus must be on long-haul operators, where the fatigue-related safety concerns exist.

Comments on Options 3 and 4: ELDs must include, or be connected to, a printer.

Options 3 and 4 are essentially the same as Options 1 and 2, but would also require those ELDs to include, or to be able to be connected to a printer.

Support Printer Requirement.

Only one commenter supported the printer requirement. An ELD provider noted that Options 1 and 2 lack a practical interface for carrying out manual inspections at roadside inspections stations and that electronic data transfers are often not possible. The ELD provider recommended that FMCSA require ELDs to have a printer or the ability to connect to a printer.

Oppose Printer Requirement.

Several commenters, including the Agricultural Retailers Association, the NLA, and

several individuals, opposed the printer requirement due to the expense of maintaining and operating printers.

3. FMCSA Response

FMCSA agrees with the comments to the NPRM supporting the exception for short haul operations under § 395.1(e) because this approach presents the most cost effective approach for mandating ELD usage among a large percentage of CMVs operating on the Nation's highways. Based on comments to both the 2011 NPRM and the 2014 SNPRM, as well as the economic factors presented in the RIA for this rulemaking, FMCSA requires ELDs for CMV operations where the driver is required to complete RODS under 49 CFR 395.8, subject to limited exceptions addressed below.

The Agency continues to believe that this is the best and most cost-effective option and that it meets the requirements of MAP-21. FMCSA's analysis did not find a compelling safety or cost-benefit argument to include those drivers engaged in “short haul” operations given that these drivers work within a limited distance of the work-reporting location and generally are released from duty within 12 hours from the beginning of the work day. Because these drivers currently rely upon time records rather than RODS and operate limited distances within strict daily limits, FMCSA believes there is less cause for concern about fatigue than is the case with the population of drivers that must prepare RODS.

In response to commenters that believe the ELD mandate should be imposed only on drivers required to hold a CDL, the Agency notes that Congress linked the ELD requirement to the HOS requirements such that any person who operates a CMV, as defined in 49 CFR 390.5, and is subject to the Federal HOS requirements for RODS is subject to the mandate. Therefore, today's rule is applicable to CMV drivers required to keep RODS, regardless of whether they require a CDL.

In response to commenters' concerns regarding printer-related expenses, the rule includes a display option as an alternative to a printer as a backup to electronic data transfer.

B. Exceptions to the Requirement To Use ELDs—the 8 in 30-Day Threshold

1. Comments to the 2011 NPRM

In the 2011 NPRM, the Agency acknowledged that drivers working for motor carriers that keep timecards under 49 CFR 395.1(e)(1) and (2) may occasionally operate beyond the parameters of those provisions (for example, by operating outside the specified 100- or 150-air-mile radii). Under the 2011 NPRM, if a driver operated a CMV more than 2 of every 7 days using RODS (outside the parameters of the timecard exemption), the driver would be required to use an EOBR. This effectively set a threshold for EOBR usage. The NPRM specifically asked for comments and suggestions on this topic, as the Agency wanted to know if a more appropriate alternative threshold exists.

None of the commenters responding to the SNPRM favored the proposal as written. However, several commenters offered alternatives for FMCSA's consideration. ATA agreed with the proposed weekly period but recommended setting the threshold at three or more trips. The United Parcel Service (UPS) recommended that FMCSA consider a longer period—at least a month and at least 5 instances of exceeding time or distance limits within that month—to give carriers the opportunity to determine if deviations from the short-haul provisions were due to unplanned but unavoidable situations or from recurring situations. If EOBR use ultimately would be required for specific operations, UPS also suggested that FMCSA mandate EOBRs only for a specified period of time and consider restoring the timecard exemption if no further time or distance limit deviations occur.

FedEx Corp (FedEx) raised concerns about the potential complexity of an “occasional use” provision. FedEx noted that there are two different operational situations where a driver, who usually uses a timecard, would be required to use RODS because the driver had exceeded the time or distance thresholds: When the driver is aware of this prior to commencing a trip or when the driver discovers this during the trip. For this reason and to facilitate compliance assurance in roadside settings, FedEx recommended that FMCSA adopt a “bright-line” rule that would require EOBR use if the driver knew at the start of the trip that a RODS would be required.

The Utility Line Clearance Coalition recommended that FMCSA base the threshold for EOBR use on the number of trips in a month a driver operates outside the timecard provisions. The National School Transportation Association believed that a threshold premised on trips made during a given week does not properly account for the seasonal nature of some school transportation activities. The Association suggested that FMCSA consider a threshold based on total annual trips and that carriers that do not exceed the time or distance limits on more than 10 percent of their trips be exempt from EOBR use.

FirstGroup requested that FMCSA retain the current exemption for intrastate school bus operations and consider allowing the drivers to use RODS on the few occasions (less than 1 percent of all field trips) when they would operate beyond a 100-air-mile radius.

Schneider National, Inc. (Schneider) questioned the ability of short-haul carriers to make day-to-day judgments concerning EOBR use. Schneider also asked FMCSA to clarify the assessment periods (for example, do “week” and “month” refer to calendar weeks and months, or rolling periods?) and the Agency's expectations concerning when HOS would need to be recorded using an EOBR.

NLA believed that FMCSA did not have sufficient data to justify applying an EOBR mandate to short-haul motor carriers, particularly those carriers that operate smaller capacity passenger vehicles.

Individual commenters expressed different concerns about the short-haul provisions and EOBR use. One commenter believed long-haul motor carriers might change to relay operations to take advantage of the short-haul provisions. Another focused on seasonal operations where a driver is required to use RODS only for 10-15 days per year. This commenter recommended FMCSA consider setting a yearly threshold for RODS use based on annual distance traveled or number of days a CMV driver operates outside the short-haul limits.

2. Comments to the 2014 SNPRM

In response to the comments to the NPRM, FMCSA proposed a new threshold for ELD use in § 395.8(a)(1)(iii) of the SNPRM. FMCSA proposed that a motor carrier could allow a driver who needed to complete RODS not more than 8 days within any rolling 30-day period to record the driver's duty status manually, on a graph grid. FMCSA would not require these drivers to use an ELD. This proposed exception was intended to provide relief for drivers who only intermittently needed to use RODS, for example, drivers in short-haul operations who usually use time cards or occasional CMV drivers.

Many commenters supported the proposed exception for drivers who infrequently need to use RODS, including the California Highway Patrol, the National Private Truck Council, the National School Transportation

Association, the Snack Food Association, and the IBT. Other commenters proposed alternate bases for the exception.

Some commenters believed that the proposed exception was too restrictive to accommodate all those drivers who might need it. A commenter suggested a threshold of 15 days in a 30-day period before an ELD is required, while another commenter said that the 8-day limit did not consider circumstances like weather. The National Ready Mixed Concrete Association opposed the proposed exception, saying that the “provision, as written, is unachievable in the ready mixed concrete industry.” It called the 8 days in 30-days exception “shear overreach and outside the scope of what statutorily should be in the proposal,” because it is not required by MAP-21. The Association wrote that FMCSA has a duty and is compelled not to include such a provision, which they characterized as “non-mandated, unnecessary, and unfounded.”

The National Motor Freight Traffic Association (NMFTA) also objected to the 8 days in 30-days exception, writing that the proposed rule effectively requires motor carriers to equip trucks with ELDs if there is any possibility their drivers may surpass the 8-day threshold. NMFTA asked how a driver who may or may not exceed the 8-day threshold and who may have used different pieces of equipment will be expected to provide a recap of the last 7 days of HOS compliance data to roadside inspectors. NMFTA also questioned what the motor carrier's exact responsibilities will be to assemble, monitor, and retain ELD records and other driver records across several pieces of equipment?

The American Pyrotechnics Association believed that the 8 in 30-day exception was too restrictive and would not apply to its drivers because they do not return to the work-reporting location within 12 hours. The California Construction Trucking Association said the exception should also apply to intrastate operations using paper RODS to comply with a State regulation.

Some commenters, including the Continental Corporation (Continental), believed the 8 in 30-day exception would be difficult or impossible to enforce at roadside. CVSA wrote that roadside enforcement would not be able to determine whether the driver had exceeded the short-haul exception and by how much.

3. FMCSA Response

In the 2011 NPRM, FMCSA proposed that drivers using RODS more than 2 out of 7 days would have to use an ELD, and drivers using RODS for 2 days or fewer out of 7 could continue to use paper. Overwhelmingly, commenters rejected this threshold. Therefore, for a number of practical and enforcement reasons, FMCSA proposed in the SNPRM—and retains in today's rule—an 8 in 30-day threshold for ELD use. The fact that Congress vested in the Agency responsibility for mandating ELD-use by regulation, rather than requiring use of ELDs by statute, negates the suggestion that the Agency lacks any discretion to prescribe the parameters of the regulation. Nevertheless, the Agency has exercised that discretion narrowly, providing only three exceptions. Drivers who need to use RODS infrequently or intermittently, even if they are not operating under the short-haul exception in § 395.1(e), may continue to use paper RODS provided they are not required to use RODS more than 8 days in any 30 day period.

The Agency considered a number of factors in selecting the 8/30 day threshold. While the 8/30 day threshold preserves nearly the same ratio as the proposed 2/7 threshold, it will provide drivers and motor carriers with more flexibility. In addition, the 8-day period is the standard time frame for current HOS recordkeeping requirements. Currently drivers are required to keep the previous 7 days' records and the present day's records. Allowing a driver 8 days out of 30 days as the threshold to use paper RODS before requiring ELD use keeps this time frame consistent. The 8/30 day threshold will also accommodate some seasonal concerns. The Agency believes that expanding the 8/30 day threshold to 15/30 days, as suggested by some commenters, is inappropriate. That level of exception would significantly decrease the effectiveness of the ELD mandate. Similarly, extending the 30-day period would limit the ability of the Agency to monitor compliance during reviews.

The Agency acknowledges that any exception to the ELD mandate creates challenges for roadside enforcement. the Agency does not believe that the short haul exception from ELD use will present different challenges from the current challenges authorized safety officials face in monitoring the short-haul exceptions in 49 CFR 395.1 (e)(1) and (2).

C. Requests for Exemption for Driveaway-Towaway Operations, Dealers, and Pre-Model Year 2000 Vehicles

1. Comments to the 2011 NPRM

In the February 2011 NPRM, FMCSA proposed mandatory installation and use of EOBRs in all CMVs for which the use of RODS is currently required (76 FR 5537). While the NPRM would have allowed short-haul drivers to continue to use timecards, it did not provide for any other exceptions other than the 2 in 7-day exception. Commenters asked FMCSA to consider an exception to allow driveaway-towaway operators and CMV dealerships to use paper RODs in the vehicles they deliver to their customers.

In a driveaway-towaway operation, a driver transports an empty or unladen motor vehicle, with one or more sets of wheels on the ground, either by driving it or by using a saddle-mount or tow-bar. The driver moves the vehicle between a manufacturer and a dealer or purchaser, or between someone selling or leasing the vehicle and the purchaser or lessee. The driver may take the vehicle to a terminal or repair facility. Typically, the driver drops the vehicle off and either returns home or picks up another job. A motor carrier that specializes in these driveaway-towaway operations often employs the driver(s). Dealerships have some of the same issues as driveaway-towaway operations when delivering vehicles to their customers. The vehicle driven may or may not be part of the delivery.

While the NPRM did not specifically address older vehicles, FMCSA also received comments on using an EOBR with an older engine.

Driveaway-towaway operations.

Several commenters stated that they deliver CMVs of many different makes and models, and that EOBR installation would be a particular burden for them. Other commenters pointed out that the FMCSRs already contain exceptions and special provisions for driveaway-towaway operations (

e.g.,

§§ 390.21(f); 393.42(b)(2); 393.43(f); 393.48(c)(2); 393.95(a)(6); and 396.15). Because EOBRs are generally an aftermarket device, several commenters, including the Engine Manufacturers Association/Truck Manufacturers Association, stated that the temporary installation and subsequent removal of an EOBR would represent a significant expense for a one-time use. The Engine Manufacturing Association, Rush Enterprises, Inc. (Rush) and ATC Transportation, LLC (ATC) were also concerned that the process of installing and removing a temporary EOBR might damage the new vehicle or the EOBR and cause delivery delays. A few commenters noted that small portable or hand-held units were either not available or the commenters did not have information about them. Others noted that training costs and technical requirements would make using

manufacturer-installed EOBRs impractical, were they to be available. Rush, Driveaway-Towaway Carriers (a group of four individual carriers), and ATC each provided detailed projections of the cost impact on their operations.

Dealerships.

One commenter addressed the use of EOBRs on CMVs being transported from dealerships. This commenter suggested that a portable unit could be plugged into the 9-pin connector under the dash and could be used in these operations.

Vehicles manufactured before model-year 2000.

Two commenters stated that many older CMVs in use have mechanically-controlled engines and may not accommodate EOBRs (

i.e.,

there is no ECM). In contrast, another commenter advised that two state-of-the-practice EOBR-class models can be attached to a truck that is not equipped with an ECM by use of a sensor attached to the transmission, drive shaft, or axle, depending on the truck. Verigo Inc. (Verigo) recommended that FMCSA permit a driver to use untethered means (

i.e.,

an ELD that achieves integral synchronization through wireless communication with the CMV) to record on-duty time and off-duty time and carry out other recordkeeping tasks while away from the vehicle.

2. Comments to the 2014 SNPRM

Comments to the 2011 NPRM raised the issue of exemptions addressing specific sectors of the industry or specific types of CMVs. Given the 8 in 30 days threshold for drivers infrequently required to keep RODS, FMCSA stated in the SNPRM that it was not proposing any additional exceptions [79 FR 17672, March 28, 2014]. However, drivers and carriers in driveaway-towaway operations and those who use CMVs manufactured before model year 2000 explained how the proposed technical standards would be difficult to apply, given their unique operations.

FMCSA sought comments on issues related to installing and using an ELD on CMVs manufactured prior to 2000 [79 FR at 17668, Mar. 28, 2014]. These comments are also discussed under Section X, W, Pre-2000 Model Year CMVs, of this preamble.

Driveaway-towaway operations.

A number of comments to the SNPRM questioned how ELDs would affect driveaway-towaway operations. Several commenters, including ATC, Driveaway-Towaway Carriers (a group representing Classic Transport, Inc., Horizon Transport, Inc., and Quality Drive-Away, Inc.), the, Recreational Vehicle Industry Association, and Driveaway-Towaway Coalition (representing Bennett DriveAway, D&T Transport, EagleOne Oilfield Transportation, Hoosier Transit, Mamo Transportation, Norton Transport, and PARS), asked that the ELD rulemaking provide an exception for driveaway-towaway operations because of the unique nature of the operations. The commenters described the unique circumstances of a driveaway-towaway operation that make the installation and use of ELDs impractical and excessively burdensome:

• A driveaway-towaway operator is not allowed to alter, attach, or disassemble any portion of the CMV being transported. It must be delivered in the same condition as when it was presented for delivery.

• The driveaway-towaway operator does not own the CMV or rent or lease the CMV, but it is financially liable for any re-assembly or repairs to a CMV damaged or changed in transit.

• The driveaway-towaway operator operates the CMV only once, delivering it to the dealer/purchaser.

• The driveaway-towaway operator transports every type of CMV and other drive/towaway cargo for many different manufacturers of recreational, commercial, or specialized motor vehicles. The driver transports both new and used CMVs of every variety; the vehicle being transported may not have an ECM.

Henkels & McCoy Inc. and Driveaway-Towaway Carriers noted the lack of information on existing portable ELDs. The Driveaway-Towaway Coalition reported that many vehicles are not portable-ELD compatible.

ATC noted that a driver will have to carry the equipment to connect to each type of CMV the driver might encounter. ATC maintained that the costs for training, extra equipment, and constant installation are over and above what the majority of the trucking industry would incur to comply with mandated ELDs, and were not part of the cost analysis of the SNPRM.

The Driveaway-Towaway Carriers and the Driveaway-Towaway Coalition provided detailed descriptions of their collective operations. Both sets of commenters noted that FMCSA has recognized the unique nature of driveaway-towaway operations, referencing the exceptions and provisions in the CFR. The Recreational Vehicle Industry Association offered statistics for the driveaway-towaway companies demonstrating a low crash frequency.

Dealerships.

ATD wrote that some dealerships use contract drivers to operate new and used CMV inventory in intra- or interstate commerce; others use employee CDL holders. New or used sales department staff may pick-up or drop-off CMVs at factories, ports, customers, auctions, other dealerships, etc.

ATD recognized that some parts drivers may be covered by the exceptions in 49 CFR 395.1(c) and (e). To the extent that they fail to fall within an existing exception, ATD urged FMCSA to provide that such CDL holders need not use ELDs to meet RODS requirements if the vehicles being operated are not titled to or leased by a dealership employer. ATD also maintained it would be very burdensome for small business truck dealerships to have to set ELD systems and install ELD units in vehicles to which they do not take title.

Vehicles manufactured before model year 2000.

Eight commenters responded to FMCSA's request for comments on the complexity of compliance with a CMV manufactured on or before 2000. The California Construction Trucking Association said that while it is possible to retrofit an older truck, its research indicates that it is costly, at about $1,000 per truck in California. In contrast, Continental stated that it would cost between $100 and $300 per vehicle. XRS Corporation (XRS) stated that the Global Positioning System (GPS) solutions and related cost for black boxes could result in an incremental cost of $250 per vehicle. PeopleNet stated that obtaining speed from a source other than the ECM or GPS will be very complex and cost-prohibitive. Both PeopleNet and Zonar Systems (Zonar) supported using GPS-based ELDs for older CMVs.

The Truck and Engine Manufacturers Association generally supported the proposed rule. It raised questions about whether FMCSA was referring to model years or calendar years, as these are not the same. The association noted the additional requirement that the engine actually have an ECM is crucial in the event that a mechanically controlled engine was installed in a vehicle with a model year 2000 or later.

One carrier was concerned about light duty vehicles with On-Board Diagnostics (OBD-II) ports. It stated that OBD-II ports cannot share data if they are already dedicated for another purpose. This situation exists in several styles of its vehicles equipped with OBD-II ports; the ports are already occupied by auxiliary equipment. Another problem exists with capturing data from OBD-II ports: There are five different protocols used in OBD-II and the software is proprietary to the vehicle manufacturer. This would require the vehicle manufacturer to release their

software to use the OBD-II to capture the necessary data effectively. A towaway driver asked how the driver is to record time if there is no engine control unit (ECU) plug available.

3. FMCSA Response

Both driveaway-towaway operations and the operations associated with truck dealers represent a unique operational challenge concerning the use of ELDs. FMCSA believes that while many of these operations will fall within the current “timecard” provisions for HOS recordkeeping, some will not.

In today's rule, FMCSA includes an exception from the ELD mandate for driveaway-towaway operations, as defined in 49 CFR 393.5, provided that the vehicle driven is part of the shipment delivered. FMCSA acknowledges the concerns raised by these operators. FMCSA understands that ELDs may not fit their operational model when providing a one-time delivery of a vehicle. Neither the driveaway-towaway company nor the driver own or lease the vehicles that they will be driving under this exemption.

This exception only applies to driveaway-towaway operations where the CMV being driven is the commodity. These drivers will be required to keep proper RODS and retain the same number and categories of supporting documents as those required to use ELDs plus toll receipts. FMCSA believes that these operators will be easy to recognize at roadside; by the nature of their operation, drivers will be carrying supporting documents that explain their operation. To the extent that operations at a dealership fit the definition of a driveaway-towaway operation, those operations are able to benefit from this exemption.

FMCSA also includes an exception for to those drivers operating CMVs older than model year 2000, as identified by the vehicle identification number (VIN) of the CMV. Comments have indicated and FMCSA's research has confirmed that pre-2000 model year trucks may not allow the ELD to connect easily to the engine. While the Agency has confirmed that there are ways of equipping older vehicles to use an ELD consistent with today's rule technical specifications, these are not always cost beneficial or practical. Further, the Agency lacks confidence that the technology will be available to address this entire segment of the market (pre-2000 model years) at a reasonable cost.

While OBD-II does support 5 signaling protocols, none of these are proprietary. Each protocol is outlined in the standard and the engine manufacture decides which to implement and most vehicles implement only one of the protocols. It is often possible to deduce the protocol used based on which pins are present on the J1962 connector. While OBD-II diagnostic, connectivity needs, and reporting capability vary by manufacturer, FMCSA believes that ELD providers will work with each vehicle manufacturer for specific details.

D. Requests for Exceptions From the ELD Mandate for Certain Segments of the CMV Industry

1. Comments to the 2011 NPRM

While the NPRM preserved the exception for short-haul drivers who occasionally require RODS to continue to use timecards under § 395.1(e), it did not provide for other exceptions. This exception was limited to drivers requiring RODS no more than 2 days in any 7-day period; on those days, they could maintain paper RODS. FMCSA asked for comment on whether it should grant other exceptions. Responses were received from businesses, trade associations and others representing school bus operations, truck rental operations, agricultural operations, construction, maintenance, oil and gas operations, utilities, concrete companies and hazardous materials transporters. Many commenters believed FMCSA should provide an exception for their segment of the industry or their operations from the mandate to use ELDs. Commenters mainly focused on the nature of their operations or the costs of EOBRs. A hazardous materials transporter raised security concerns over tracking of vehicles. An organization representing concrete companies recommended a limited expansion of the short-haul exception for drivers occasionally exceeding 100 miles.

2. Comments to the 2014 SNPRM

In the SNPRM, FMCSA proposed only a limited exception to the ELD mandate—for drivers who are rarely required to keep RODS. Drivers who need to use RODS infrequently or intermittently would be allowed to continue using paper RODS, if they are not required to use RODS more than 8 days in any 30-day period. The 2 days out of 7-day period proposal in the NPRM was eliminated in light of the 8 days in 30 exception.

Many commenters to the SNPRM believed that ELDs are not necessary or appropriate for drivers in their particular industries, and asked that their industry be excepted from the requirement to install and use ELDs. Some commenters asked for an exception for private motor carriers. A commenter believed an exception would be appropriate because private motor carriers are not usually generating revenue through hauling, crossing State lines, or driving on the roads as much as for-hire carriers. A commenter asked how lawn services, private delivery, horse show teams, etc. would be handled. A commenter wrote that his or her drivers were working in the field, where they may not have any technological connectivity. For flatbeds; specialized heavy-haulers; auto transporters, or any other segment of the industry where drivers have to do their own loading, unloading, or load securement, a commenter wrote that ELDs would cripple the industry. Commenters also asked for an exception for testing a CMV when it is being serviced or repaired.

Comments from the following special industries or types of operations are discussed below: Agricultural-related operations; utilities; construction, oil and gas, and ready-mix concrete industry; pyrotechnics operations; driver salesperson operations; motion picture industry; and waste and recycling industry.

Agriculture-related operations.

The Agricultural Retailers Association interpreted the proposed ELD mandate would not apply to agricultural operations. It based its interpretation on the rule FMCSA published March 14, 2013 (78 FR 16189), which provided agricultural exceptions to the HOS rules in part 395. In contrast, several individual commenters believed that the proposed rule would apply to agricultural operations. These commenters maintained that the ELD mandate would be cost prohibitive for farm and ranch operators.

One commenter noted that agricultural commodities are seasonal in nature and asked how the ELD mandate would affect exemptions to the HOS rules for the transportation of anhydrous and liquid fertilizer.

An individual working for a company in the agricultural seed industry also mentioned the seasonal nature of the company's operations. The company has CMV's operating in interstate commerce on the road every day of the year, but most of its drivers qualify and use the 100- or 150- air-mile short haul exemptions. The commenter wrote that during certain seasons (

i.e.

planting, detasseling/pollinating, harvest), some of the drivers may increase their driving and may need to fill out RODS more than 8 times in a 30 day period during a 3-6 week season. The commenter noted that these drivers are not

professional, over-the-road truck drivers, but production and research associates who mainly operate pickup trucks with trailers that put them over the weight limits, qualifying them as CMVs. The commenter stated that putting ELDs in all of these pickups—which are only occasionally used as CMVs—would be a significant burden to the company.

Utilities.

Henkels & McCoy Inc. believed the proposed regulation was designed for long-haul truck drivers, not their drivers who are power line, pipeline, and telecommunications workers who only operate a CMV short distances to and from or on a job site. The commenter noted that utility project job sites often span great distances where the majority of the driving is accomplished on the construction right of way, not on public roadways. Henkels & McCoy, Inc., noted that some of these projects might not fall under the short haul exemptions in § 395.1(e) or the current interpretations of Utility Service Exemption from the HOS rules, thereby requiring the installation of ELDs in thousands of pieces of equipment that in the course of a day may only be operated a few miles and may not traverse a public roadway for days or weeks.

Construction, oil and gas, and other specialized operators.

A commenter from the service and drilling equipment industry wrote that ELDs are unnecessary because the drivers seldom drive far, but do not qualify for the short-haul exception due to their longer hours. Because of the conditions under which those trucks operate, the commenter wrote that maintenance would be impossible. Another commenter questioned if FMCSA had taken into consideration the ability of ELDs to accommodate the HOS rules applicable to oil fields.

A commenter who operates a small crane company asked FMCSA to consider an exception for special mobile machinery that sometimes needs to be moved more than 100 miles. The commenter maintained that, although the company's drivers will not usually exceed the 8 days in 30 day exception while driving a crane, they will at times exceed that amount when moving one of the large cranes. The commenter noted that older cranes do not have modern electronic engines and computers to support a compliant e-log device, and asked whether FMCSA expects them to modernize the engines to be e-log compliant. The commenter asserted that this process would not only be an excessive financial burden to a small company, but would also achieve no safety gain worth the cost because a slow moving crane on the highway for less than 5,000 miles per year is statistically not a risk to the traveling public. The Associated General Contractors of America (AGC) urged FMCSA to exempt the construction industry from the ELD mandate. AGC noted that Congress directed FMCSA to provide special consideration to construction drivers in the HOS regulations by allowing construction drivers to reset the on-duty clock after an off-duty period of 24 or more consecutive hours, showing Congress' recognition of the unique circumstances faced by the industry's drivers. The commenter also noted that no studies have concluded that there is a safety deficiency specific to construction workers driving under these rules.

AGC believed that the mandate would create unreasonable impacts on the construction industry given the cost of implementation and administration issues. The commenter noted that the constant vibrations, jarring movements, and bumps are likely to have an impact on ELD operations, longevity, and accuracy. AGC reported that several of its members claim that there is at least a 10 percent failure rate for ELDs. The commenter wrote that the purchase and installation of ELDs will be far more expensive than retaining records with paper RODS and believed that FMCSA estimates fall far short of the actual costs. AGC believed that administrative issues related to identifying drivers, particularly temporary drivers, and correctly recording driving time would cause problems for the construction industry. AGC asked FMCSA to consider this record and extend its part 395 exemption to the new ELD proposal.

Pyrotechnics.

The American Pyrotechnics Association (APA) supported limiting the scope of the ELD mandate to drivers who are currently subject to keeping RODS. The APA, however, believed that FMCSA should provide an exemption for industries that are engaged primarily in providing services or transporting tools of the trades, as opposed to long-haul trucking. The commenter wrote that the majority of its members operated CMVs over short distances to and from job sites and provided a detailed explanation of their operations. Based upon data provided by APA members and the carriers currently underwriting vehicles to the industry, during the peak Fourth of July season, the industry rents more than 3,500 vehicles for the 7-14 day period. The two primary rental truck suppliers to the fireworks industry have indicated that neither is planning to install ELDs at this time because they do a minimal amount of commercial leasing, focusing instead on the consumer market.

The APA did not believe that ELDs would improve safety or prevent crashes for drivers within the fireworks industry. The commenter wrote that ELDs could actually contribute to more crashes as a distraction for drivers who are not used to them. The APA wrote that it could not comply with the mandate until “plug and play” devices, which can be rented on a short term basis, become readily available. APA requested relief be provided to small operators, especially those that must rely on rented vehicles and intermittent/casual drivers over a short period of time to handle all of their business commitments.

Driver/salespersons.

YRC Worldwide Inc. (YRC) said that driver salespersons who exceed the short-haul exception in § 395.1(e) should be exempted based on their records availability, starting and ending their shifts at the same location, and serving in the role of driver salesperson. They should not be denied the exemption because of an arbitrary mileage calculation. Based on the flexibility it needs in its city fleet, YRC wrote that it may have to equip all vehicles with ELDs and train all the driver salespersons to ensure they could serve customers outside a 100 air-mile radius.

Motion picture industry.

The Motion Picture Association of America (MPAA) recommended that FMCSA permit the non-electronic interchange and production of RODS, at least for production drivers and other similarly situated drivers,

i.e.,

those who operate multiple CMVs or are employed by multiple motor carriers. This approach could be made permanent, or FMCSA could apply it to production drivers for an appropriate period beyond the proposed, industry-wide compliance deadline.

MPAA believed that an exception for drivers who operate multiple CMVs or are employed by multiple motor carriers would allow ELD technology to mature, with drivers generating less complex RODS, before requiring production drivers to produce ELD-generated, all-electronic RODS. The MPAA believed that ELD providers are likely to focus on releasing ELDs suitable for the most common CMV operations and sophisticated ELDs will not be available when the rule is implemented.

Ready-mixed concrete.

Both Glacier Northwest and Cemex Construction Materials Pacific believed the rule would force companies to install ELDs, penalizing the ready-mixed concrete industry because of the nature of its product and unpredictable operations.

The National Ready Mixed Concrete Association said that this proposal, in effect, is the true universal approach requested by NTSB. Instead, all three commenters suggested that the rule exempt drivers operating under § 395.1(e)(1), but eliminate the 12-hour on-duty threshold. Both Cemex and Glacier wrote that ready-mixed concrete industry drivers are not subjected to fatigue-inducing situations and generally operate under § 395.1(e)(1), but may need to work longer days.

The National Ready Mixed Concrete Association commented that the reason for the proposed ELD mandate for CMVs “is to obtain better Hours of Service (HOS) compliance.” The commenter described the working conditions of mixer drivers, and commented that, because of these conditions and exemptions to HOS compliance, making use of ELDs by mixer drivers “is a technical inapplicability.”

Since mixer drivers are only in the CMV or driving a small amount of the time they are on-duty, the commenter believed that ELDs cannot accurately determine HOS compliance or productivity for mixer drivers.

Waste and recycling industry.

The National Waste and Recycling Association commented that the industry operates a unique fleet that differs significantly from long-haul trucks and other short-haul trucks. The association provided a detailed description of its operations. The commenter was concerned that the ELD may not be able to handle unusual stresses inherent in their operations and may require constant maintenance.

The commenter wrote that FMCSA has acknowledged and research has shown that fatigue is less of a problem for short-haul drivers, for a number of reasons. Further, the association commented that Congress recognized the unique nature of local routes by limiting the required use of ELDs to CMVs operated by a driver subject to the HOS and RODS requirements. It wrote that the Congressional intent is clear: Local route, short-haul drivers who show HOS compliance by the use of time cards do not need to use ELDs. The association commented that the Agency, however, is now proposing that if a driver needs to use paper logs for more than 8 days in any 30-day period, that driver must use an ELD. The commenter was puzzled by the proposed 8 in 30-day threshold because it directly contradicts the language in footnote 15 on page 79 FR 17680, which states, “Today's SNPRM would not require short-haul drivers who would need to keep RODS more than 8 days in any 30-day period to use an ELD. Although FMCSA cannot quantify the costs to carriers, the Agency believes extending the ELD mandate to these drivers would not be cost beneficial.”

While the commenter wrote that it understands the Agency's desire to prevent abuse of short-haul, local-route status, it believed that the proposed remedy is excessive, unnecessary, and will produce contradictory results. It agreed with the footnote that it is not cost beneficial.

FMCSA acknowledges an error in the referenced footnote. It was intended to read, “[t]oday's SNPRM would not require short-haul drivers who would need to keep RODS

not

more than 8 days in a 30-day period to use an ELD. . . .”

The association commented that time cards adequately document HOS compliance. The commenter wrote that whereas the time card is an absolutely accurate record of duty time, an ELD will be a poor tracker of driving time in the short-haul, local route waste and recycling industry.

3. FMCSA Response

Subject to limited exceptions, today's rule establishes clear requirements for the use of ELDs in CMVs operating under circumstances where drivers currently must keep paper RODS. Generally, the requirements apply to drivers who are subject to the HOS limits under 49 CFR part 395, and do not satisfy the short-haul exception to the RODS requirement. FMCSA considered all the comments and that, subject to a narrow exception, declines to provide industry-specific exceptions, given the lack of safety performance data for specific industry segments and the fact that industry segments often overlap.

The Agency, however, has provided limited exceptions from the ELD mandate. The 8-day out of 30 threshold is intended to accommodate drivers who infrequently require RODS. The driveaway-towaway exception addresses unique aspects of those operations, but only if the vehicle driven is or is part of the shipment. The pre-2000 model year exception reflects concerns about employing an ELD on such vehicles.

FMCSA anticipates that most of the industry segments seeking relief from the ELD mandate are addressed, in part, under the short-haul exemption under 49 CFR part 395. ELD use will be required only if a driver operates outside the short-haul exception to the paper RODS provision for more than 8 days of any 30-day period.

As to the concern about location tracking technology creating a security risk for hazardous materials, FMCSA notes that today's rule does not include a requirement for real time tracking of CMVs.

FMCSA believes that ELD providers will address the needs of specialized industries. We note that Congress did not address concerns of specific industry sectors in mandating a requirement for ELDs.

E. Exceptions for Small Business

1. Comments to the 2011 NPRM

Because small businesses comprise such a large portion of the motor carrier population subject to the FMCSRs, FMCSA stated in the 2011 NPRM that it is neither feasible nor consistent with the Agency's safety mandate to allow a motor carrier to be excepted from the requirement to use EOBRs based only on its status as a small business entity.

Several motor carriers, however, contended that very small operations should be excepted. One commenter suggested that ELDs should be required only for fleets of 25 or more trucks, another would set the threshold at 100 or more trucks. An owner-operator wanted the rule to allow owner-operators who own and drive one truck to use a Smartphone system that uses GPS satellite signals for location tracking and is not integrated with the truck's on-board computer.

Associations representing small motor carriers also wanted special consideration. The Air and Expedited Motor Carrier Association, National Association of Small Trucking Companies, and The Expedite Association of North America asked for a simple waiver procedure for small businessmen, reasoning that the EOBR requirement would impose needless costs on hundreds of thousands of small businesses. The National Federation of Independent Business (NFIB) believed that expanding the EOBR rule to cover all CMV drivers subject to the HOS requirements “is unnecessarily punitive to small businesses that operate locally.”

Given the disproportionate percentage of small businesses in the industry, the NLA felt that any final rule that mandates EOBRs for all CMV passenger carriers without a specific cost-benefit analysis of the effect of the rule on smaller passenger-carrying CMVs “would be arbitrary, capricious and excessive.” The association argued that exempting small businesses whose safety records demonstrate satisfactory compliance with the HOS rules from an EOBR mandate would not equate to toleration of noncompliance. Those drivers would still be required to keep RODS and operate within the HOS limitations. The association asserted

that members of the industry that operate smaller CMVs for shorter distances and shorter periods of time are not motivated to falsify RODS.

The Advocates for Highway and Auto Safety (Advocates), however, supported the reasoning behind the Agency's decision not to except small businesses from the EOBR requirement. Advocates stated that exempting some or all small businesses would undermine the purpose and safety benefits sought by proposing the rule and render it ineffectual.

2. Comments to the 2014 SNPRM

As with the commenters to the 2011 NPRM, many commenters to the SNPRM wanted an exception for small fleets and owner operators, including one-truck/one-driver operations.

3. FMCSA Response

For those motor carriers whose drivers engage in local operations, ELD use would be required only if a driver operates outside the timecard provisions of part 395 for more than 8 days of any 30-day period. The requirement would be applicable to the specific driver rather than the fleet. FMCSA notes that its safety requirements generally do not vary with the size of the fleet and the ELD rulemaking should not deviate from that practice. While Federal agencies are required to consider the impact of their rulemakings on small businesses, as defined by the Small Business Administration's size standards (discussed later in the preamble under the Regulatory Flexibility Act analysis), FMCSA is not required or expected to provide an exception to its safety rules based solely on the fact that the businesses are small. This approach also is consistent with the provisions of MAP-21 (49 U.S.C. 31137), which does not distinguish between motor carriers or their drivers based on the size of their operations.

Today's technical specifications require that all ELDs be integrally synchronized with the engine. However, the rulemaking does not preclude the use of smart phones or similar devices which could achieve integral synchronization, including wireless devices.

In response to the National Limousine Association, FMCSA notes that the Agency is required to consider the impact of its proposed regulations on small businesses. See XIV. B. (Regulatory Flexibility Act), below. However, it is not required to perform analyses for particular industry sectors.

F. Exceptions for CMVs Under 26,001 Pounds or Carrying Between 9 and 15 Passengers (Including the Driver)

1. Comments to the 2011 NPRM

Although the NPRM did not propose an exception to the ELD requirement for drivers engaged in operating CMVs under 26,001 pounds or vehicles handling between 9 and 15 passengers, the NFIB believed FMCSA should provide an exception for drivers operating CMVs with a gross vehicle weight under 26,001 pounds. The NFIB stated that the rule would disproportionately affect small business and fails to follow Executive Order 13563. It stated that an ELD would have “little or no positive effect on highway safety for small trucks and vans.” For many small plumbing, electrical, and other service providers, the NFIB wrote that the cost would be extremely prohibitive. It believed that many other factors provide incentives for the small business owner to use medium trucks responsibly, including market factors and the fact that they live and drive within the community.

2. Comments to the 2014 SNPRM

The SNPRM would require a driver of a CMV, as defined in 49 CFR 390.5, who is subject to the HOS regulations to use an ELD, unless the driver operated under the short-haul exception or qualified for the 8 out of 30 day exception. Thus, it would include a CMV under 26,000 pounds or a CMV designed or used to transport between 9 and 15 passengers (including the driver) for direct compensation.

Commenters had questions and concerns about how the proposed rules would affect light-duty vehicles. An individual commenter and the AGC suggested that the ELD requirement only apply to vehicles of a size requiring a driver with a CDL. Both commenters wrote that drivers operating vehicles between 10,000 and 26,001 pounds are usually engaged in short-haul operations; and, when a log is required, it is likely because they are on duty more than 12 hours or do not start and stop in the same location. While FMCSA regulations apply only to interstate operations, commenters wrote that most States will adopt the rules for intrastate operations. They believed that ELDs will then be required in almost all vehicles rated over 10,001 pounds, which includes 1-ton pickups and 1-ton and up work trucks where, they maintain, fatigue is not an issue. The commenters believed that this would create an undue financial burden.

NLA proposed that vehicles designed or used to transport between 9 and 15 passengers (including the driver) should be exempt. The association noted that the Department of Transportation provides relief for these types of vehicle and their drivers under 49 CFR parts 40, 171-180, 382, 383, and 397. The association also commented that a vehicle designed to carry 15 or fewer passengers is not substantially different from the driving characteristics of a privately operated vehicle of the same size.

The NFIB recommended exempting CMVs with gross vehicle weights (GVW) of less than 26,001 pounds from the ELD requirement. The NFIB's comments to the SNPRM largely echoed their comments to the NPRM. They also stated that since these regulations are only imposed on drivers engaged in commerce, the same driver, driving the same vehicle, along the same route would be regulated differently depending on whether the vehicle is being used for personal or business purposes. The NFIB stated that this decision to regulate drivers engaged in commerce is based on an assumption with no support; namely, that being “in commerce” has an adverse effect on the driver's ability to drive the same vehicle that may be driven for personal uses.

3. FMCSA Response

FMCSA acknowledges the commenters' concerns but continues to believe the underlying HOS recordkeeping requirements should not be altered, which in turn, limits the Agency's discretion in considering relief from the ELD mandate. MAP-21 requires that the Agency impose the ELD mandate on drivers who prepare handwritten RODS. Safety would not be enhanced by creating a new category of relief from the RODS requirements. Regardless of the size of the vehicles being operated, any driver who is unable to satisfy the eligibility criteria for the short-haul exception must use RODS.

FMCSA continues to grant relief in the form of an exception in § 395.1(e) to those drivers operating in “short-haul” operations. Drivers who infrequently need to keep RODS (

i.e.,

no more than 8 days in any 30-day period), may continue relying on paper RODS. However, because the Congressional mandate to require ELDs extends to CMVs as defined under 49 U.S.C. 31132, FMCSA declines to limit the regulation to CMVs over 26,000 pounds or exempt small passenger vehicles.

G. ELDs Only for Unsafe Carriers or Drivers

1. Comments to the 2011 NPRM

In the February 2011 NPRM, FMCSA requested comments on the potential advantages, disadvantages, and practicality of an exception from the EOBR requirements for motor carriers with few or no HOS violations. Many commenters supported the contention in the 2010 rule and believed that FMCSA should not mandate EOBRs for safe drivers or motor carriers. Other commenters felt that an exception should be available for safe drivers or motor carriers.

A number of commenters, including several trade associations, supported limiting the EOBR mandate to carriers with severe or chronic HOS violations. Other commenters, however, stated that a potential exemption from the EOBR requirement based on a lack of HOS violations “would result in endangering truck drivers and the motoring public.” They argued that just because a company does not have a documented history of violations does not mean that violations have not occurred.

2. Comments to the 2014 SNPRM

In the SNPRM, the Agency did not propose an exception based on HOS compliance history. Nonetheless, some commenters felt that experienced drivers or drivers with a history of safe driving should not be required to use an ELD.

3. FMCSA Response

FMCSA acknowledges commenters' concerns, but the Agency disagrees with the suggestion to provide an exception for experienced drivers with good safety records. Such an exception would be difficult to craft with regard to criteria for identifying eligible drivers and difficult to enforce. Furthermore, in enacting the MAP-21 provision requiring that the Agency mandate the use of ELDs, Congress did not predicate that requirement on any “safe driving” threshold.

VIII. Discussion of Comments Related to Supporting Documents

A. Definition and Number

Section 113 of the Hazardous Materials Transportation Authorization Act of 1995 (HMTAA)

requires the Secretary to adopt regulations under 49 CFR part 395 to address supporting documents used by motor carriers and authorized safety officials to verify a CMV driver's RODS in order to improve compliance with HOS rules. Among other requirements, the regulations are to describe identification factors that enable documents to be used as supporting documents, specify “the number, type, and frequency” of supporting documents that must be retained by a motor carrier, allow verification at a reasonable cost, and prescribe a minimum retention period of 6 months. The statute defines “supporting document” as “any document that is generated or received by a motor carrier or [CMV] 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 [RODS].”

Public. Law 103-311, 108 Stat. 1673, 1676-77 (August 26, 1994).

1. Comments to the 2011 NPRM

The 2011 NPRM proposed limiting the supporting documents a motor carrier would need to retain and defining the term “supporting document.” The proposal recognized that driving time information would be provided through the mandated use of EOBRs in CMVs.

FMCSA proposed in the NPRM to define “supporting document” in a way similar to the definition in section 113(c) of the HMTAA. Only one document would have been needed for the beginning and end of each ODND period if that document contained all the necessary elements—personal identification, date, time, and location. Otherwise, the motor carrier would have been required to retain several documents—enough to show collectively all the necessary information.

ATA, Werner Enterprises, Inc. (Werner), and Roehl Transport found the proposed definition too broad, too expensive, and overly burdensome. ATA commented that the definition did not allow for compliance at a “reasonable cost,” as required by HMTAA. The commenters believed the NPRM provisions could actually increase the burden for retaining supporting documents. The commenters also questioned why the definition from the HMTAA contained a reference to documents received from the CMV driver and the proposed definition of “supporting documents” in the NPRM did not. One commenter preferred the definition from the HMTAA. The commenters stated that at least some of the data elements are usually missing from documents created or received in the normal course of business. With the exception of hazardous material motor carriers, several motor carriers believed that documents to verify ODND were inadequate or unreliable.

ATA wrote that the Agency's attempt to limit supporting document retention to a single document is “unrealistic,” and that motor carriers would have to keep a broad range of multiple documents. One motor carrier commented that the Agency should not require a minimum number of documents. Another large motor carrier commented that the NPRM provided “no guidance as to how many documents must be included.” The commenter wrote that the NPRM could be interpreted as requiring “all” documents, records, and information generated or received by the motor carrier in the normal course of business.

2. Comments to the 2014 SNPRM

At the SNPRM stage, FMCSA significantly modified its proposal governing supporting documents. The revised proposal would limit the supporting documents that a motor carrier must retain by specifying a maximum number and provide categories and required elements for supporting documents. Like the NPRM, the Agency's proposal did not require motor carriers to retain supporting documents to verify driving time because the ELD would automatically capture this information. The Agency's proposal did, however, require motor carriers to retain, for each driver, supporting documents to verify a driver's ODND periods. In terms of number and frequency, FMCSA would require a motor carrier to retain up to 10 documents for a driver's 24-hour period. Electronic mobile communication records covering a driver's 24-hour period would count as a single document. Other types of supporting documents that are relevant to distinct activities—such as a bill of lading for a particular delivery or an expense receipt—would count as an individual document, as explained under Section VIII, B, Categories. If a driver were to submit more than 10 documents for a 24-hour period, the motor carrier would need to retain the documents containing earliest and latest time indications. If the supporting document cap were not reached, the motor carrier would be required to keep all of the supporting documents for that period. While the Agency proposed a single supporting document standard for drivers using ELDs, drivers who continued to use paper RODS would need to also retain all toll receipts.

The IBT stated its support for the supporting document proposal, as ELDs do not automatically record ODND and other duty status periods. The CVSA also supported the proposed supporting document provisions.

ATA, however, noted that the number and type of supporting documents has consistently increased. It claimed that the requirements in the SNPRM were excessive and unnecessary and do not fulfill the Congressional directive to allow for

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