Electronic On-Board Recorders for Hours-of-Service Compliance, 2340-2394 [07-56]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Proposed Rules]
[Pages 2340-2394]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-56]



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Part II





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Part 350, et al.



Electronic On-Board Recorders for Hours-of-Service Compliance; Proposed 
Rule

Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / 
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 385, 395, and 396

[Docket No. FMCSA-2004-18940]
RIN-2126-AA89


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

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) 
to incorporate new performance standards for electronic on-board 
recorders (EOBRs) installed in commercial motor vehicles (CMVs) 
manufactured on or after the date 2 years following the effective date 
of a final rule. On-board hours-of-service recording devices meeting 
FMCSA's current requirements and voluntarily installed in CMVs 
manufactured before the implementation date of a final rule may 
continue to be used for the remainder of the service life of those 
CMVs. Under the proposal, motor carriers that have demonstrated a 
history of serious noncompliance with the hours-of-service (HOS) rules 
would be subject to mandatory installation of EOBRs meeting the new 
performance standards. If FMCSA determined, based on HOS records 
reviewed during each of two compliance reviews conducted within a 2-
year period, that a motor carrier had a 10 percent or greater violation 
rate (``pattern violation'') for any regulation in proposed Appendix C 
to Part 385, FMCSA would issue the carrier an EOBR remedial directive. 
The motor carrier would be required to install EOBRs in all of its CMVs 
regardless of their date of manufacture and to use the devices for HOS 
recordkeeping for a period of 2 years, unless the carrier already had 
equipped its vehicles with automatic on-board recording devices 
(AOBRDs) meeting the Agency's current requirements under 49 CFR 395.15 
and could demonstrate to FMCSA that its drivers understand how to use 
the devices. We also propose changes to the safety fitness standard 
that would require this group of carriers to install, use, and maintain 
EOBRs in order to meet the new standard. Finally, FMCSA would encourage 
industrywide use of EOBRs by providing the following incentives for 
motor carriers to voluntarily use EOBRs in their CMVs: Revising the 
Agency's compliance review procedures to permit examination of a random 
sample of drivers' records of duty status; providing partial relief 
from HOS supporting documents requirements, if certain conditions are 
satisfied; and other potential incentives made possible by the inherent 
safety and driver health benefits of EOBR technology.

DATES: Comments must be received by April 18, 2007.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2004-18940 by any of the following methods:
     Web site: https://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to https://
www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the Agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking (RIN-2126-AA89). Note that all comments received will be 
posted without change to https://dms.dot.gov, including any personal 
information provided. Please see the Privacy Act heading for further 
information.
    Docket: For access to the docket to read background documents 
including those referenced in this document, or to read comments 
received, go to https://dms.dot.gov at any time or to Room PL-401 on the 
plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit https://dms.dot.gov.
    Comments received after the comment closing date will be included 
in the docket and the Agency will consider late comments to the extent 
practicable. FMCSA may, however, issue a final rule at any time after 
the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations, (202) 366-4009, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: This rulemaking notice is organized as 
follows:

I. Legal Basis for the Rulemaking
II. Background
III. Executive Summary
IV. Discussion of Comments to the ANPRM
    A. Overview of Comments
    B. Key Research Factors
    C. Comments on the Requested Subjects
    1. Synchronization of Recorder to a Vehicle Operating Parameter
    2. Amendment of Records
    3. Duty Status Categories When the CMV Is Not Moving
    4. Ensuring Drivers Are Properly Identified
    5. Reporting and Presentation (Display) Formats
    6. Audit Trail/Event Log
    7. Ability To Interface with Third-Party Software for Compliance 
Verification
    8. Verification of Proper Operation
    9. Testing and Certification Procedures
    10. EOBR Maintenance and Repair
    11. Development of ``Basic'' EOBRs To Promote Increased Carrier 
Acceptance
    12. Definitions--Basic Requirements
    13. Potential Benefits and Costs
    14. Incentives To Promote EOBR Use
    15. Miscellaneous Questions
V. Agency Proposal
    A. Technology
    B. Remedies
    C. Incentives
VI. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures
Regulatory Flexibility Act
Unfunded Mandates Reform Act
Executive Order 13132 (Federalism)
Executive Order 12372 (Intergovernmental Review)
Paperwork Reduction Act
National Environmental Policy Act
E.O. 13211 (Energy Supply, Distribution or Use)
E.O. 12898 (Environmental Justice)
E.O. 13045 (Protection of Children)
E.O. 12988 (Civil Justice Reform)
E.O. 12630 (Taking of Private Property)
National Technology Transfer and Advancment Act
Privacy Impact Assessment

I. Legal Basis for the Rulemaking

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August 
9, 1935,

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now codified at 49 U.S.C. 31502(b)) (the 1935 Act) provides that 
``[t]he Secretary of Transportation may prescribe requirements for--(1) 
qualifications and maximum hours of service of employees of, and safety 
of operation and equipment of, a motor carrier; and (2) qualifications 
and maximum hours of service of employees of, and standards of 
equipment of, a motor private carrier, when needed to promote safety of 
operation.'' This notice of proposed rulemaking (NPRM) addresses 
``safety of operation and equipment'' of motor carriers and ``standards 
of equipment'' of motor private carriers and, as such, is well within 
the authority of the 1935 Act. The NPRM would allow motor carriers to 
use EOBRs to document drivers' compliance with the HOS requirements; 
require some noncompliant carriers to install, use, and maintain EOBRs 
for this purpose; and update existing performance standards for on-
board recording devices.
    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984) (the 1984 Act) provides concurrent 
authority to regulate drivers, motor carriers, and vehicle equipment. 
It requires the Secretary to ``prescribe regulations on commercial 
motor vehicle safety. The regulations shall prescribe minimum safety 
standards for commercial motor vehicles. At a minimum, the regulations 
shall ensure that--(1) commercial motor vehicles are maintained, 
equipped, loaded, and operated safely; (2) the responsibilities imposed 
on operators of commercial motor vehicles do not impair their ability 
to operate the vehicles safely; (3) the physical condition of operators 
of commercial motor vehicles is adequate to enable them to operate the 
vehicles safely; and (4) the operation of commercial motor vehicles 
does not have a deleterious effect on the physical condition of the 
operators.'' (49 U.S.C. 31136(a)) Section 211 of the 1984 Act also 
grants the Secretary broad power, in carrying out motor carrier safety 
statutes and regulations, to ``prescribe recordkeeping and reporting 
requirements'' and to ``perform other acts the Secretary considers 
appropriate.'' (49 U.S.C. 31133(a)(8) and (10))
    The HOS regulations are designed to ensure that driving time--one 
of the principal ``responsibilities imposed on the operators of 
commercial motor vehicles''--does ``not impair their ability to operate 
the vehicles safely.'' (49 U.S.C. 31136(a)(2)) EOBRs that are properly 
designed, used, and maintained would enable motor carriers to track 
their drivers' on-duty driving hours accurately, thus preventing 
regulatory violations or excessive driver fatigue, and to schedule 
vehicle and driver operations more efficiently. Driver compliance with 
the HOS rules helps ensure that ``the physical condition of [commercial 
motor vehicle drivers] is adequate to enable them to operate the 
vehicles safely.'' (49 U.S.C. 31136(a)(3)) To assist in the enforcement 
of the HOS regulations generally, and thus improve driver safety and 
welfare, FMCSA proposes to require EOBR use by motor carriers with the 
most serious HOS compliance deficiencies (``pattern violations''), as 
described elsewhere in this NPRM. The Agency considered whether this 
proposal would impact driver health under 49 U.S.C. 31136(a)(3) and 
(a)(4). Since the proposal could increase compliance with the HOS 
regulations, including driving and off-duty time, it would not have a 
deleterious effect on the physical condition of drivers. (See the 
discussion regarding health impacts at section 13.3.) The requirements 
in 49 U.S.C. 31136(a)(1) concerning safe motor vehicle maintenance, 
equipment, and loading are not germane to this proposed rule, as EOBRs 
influence driver operational safety rather than vehicular and 
mechanical safety. Consequently, the Agency has not explicitly assessed 
the proposed rule against that requirement. However, to the limited 
extent 49 U.S.C. 31136(a)(1) pertains specifically to driver safety, 
the Agency has taken this statutory requirement into account throughout 
the proposal.
    In addition, section 408 of the ICC Termination Act of 1995 (Pub. 
L. 104-88, 109 Stat. 803, at 958) (ICCTA) required the Agency to issue 
an advance notice of proposed rulemaking (ANPRM) ``dealing with a 
variety of fatigue-related issues pertaining to commercial motor 
vehicle safety (including * * * automated and tamper-proof recording 
devices * * *) no later than March 1, 1996.'' The original ANPRM under 
section 408 of ICCTA was published on November 5, 1996 (61 FR 57252), 
the NPRM on May 2, 2000 (65 FR 25540), and the final rule on April 28, 
2003 (68 FR 22456). As discussed further later in this preamble, FMCSA 
decided not to adopt EOBR regulations in 2003. FMCSA noted, however, 
that it planned ``to continue research on EOBRs and other technologies, 
seeking to stimulate innovation in this promising area'' (68 FR 22456, 
at 22488, Apr. 28, 2003).
    Section 113(a) of the Hazardous Materials Transportation 
Authorization Act of 1994 (Pub. L. 103-311, August 26, 1994, 108 Stat. 
1673, at 1676) (HMTAA) requires the Secretary to prescribe regulations 
to improve--(A) compliance by commercial motor vehicle drivers and 
motor carriers with hours-of-service requirements; and (B) the 
effectiveness and efficiency of Federal and State enforcement officers 
reviewing such compliance. HMTAA section 113(b) states that such 
regulations must allow for a motor carrier's use of a ``written or 
electronic document[s] to be used by a motor carrier or by an 
enforcement officer as a supporting document to verify the accuracy of 
a driver's record of duty status.'' Today's EOBR proposals set forth 
performance standards, incentives measures, and remedial requirements 
for use of devices that generate such electronic documents and address 
the HMTAA mandate.
    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act 
(Pub. L. 100-690, November 18, 1988, 102 Stat. 4181, at 4529) also 
anticipates the Secretary prescribing ``a regulation about the use of 
monitoring devices on commercial motor vehicles to increase compliance 
by operators of the vehicles with hours of service regulations,'' and 
requires the Agency to ensure that any such device is not used to 
``harass vehicle operators.'' (49 U.S.C. 31137(a))
    Section 4012 of the Transportation Equity Act for the 21st Century 
(Pub. L. 105-178) (TEA-21) makes inapplicable to drivers of utility 
service vehicles, during an emergency period of not more than 30 days, 
regulations issued under 49 U.S.C. 31502 or 31136 regarding ``the 
installation of automatic recording devices associated with 
establishing the maximum driving and on-duty times.'' (49 U.S.C. 
31502(e)(1)(C))
    Based on the statutory framework reviewed previously, FMCSA thus 
has statutory authority to adopt an industrywide requirement that all 
motor carriers subject to HOS requirements under 49 CFR Part 395 
install and use EOBR-based systems. The Agency elects not to exercise 
the full extent of its authority at this time, however, and instead 
proposes a more targeted approach of mandating EOBR use for only those 
carriers with deficient safety management controls, as demonstrated by 
repeated patterns of hours-of-service violations. In this NPRM, the 
Agency proposes criteria for identifying carriers with patterns of HOS 
violations. We also propose changes to the safety fitness standard that 
would require this group of carriers to install, use, and maintain 
EOBRs in order to meet the new standard.
    The determination of a carrier's safety fitness is well within the 
Secretary's authority. Section 215 of the 1984 Act

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requires the Secretary to ``determine whether an owner or operator is 
fit to operate safely commercial motor vehicles,'' (49 U.S.C. 
31144(a)(1)) and to ``maintain by regulation a procedure for 
determining the safety fitness of an owner or operator.'' (49 U.S.C. 
31144(b)) That procedure must include ``[s]pecific initial and 
continuing requirements with which an owner or operator must comply to 
demonstrate safety fitness.'' (49 U.S.C. 31144(b)(1)) Section 4009 of 
TEA-21 prohibits motor carriers found to be unfit according to a safety 
fitness determination from operating commercial motor vehicles in 
interstate commerce. With limited exceptions, owners and operators 
determined to be unfit may not operate commercial motor vehicles in 
interstate commerce beginning on the 61st day after the date of such 
fitness determination, or the 46th day after such determination in the 
case of carriers transporting passengers or hazardous materials, ``and 
until the Secretary determines such owner or operator is fit.'' (49 
U.S.C. 31144(c))
    Section 4104 of the Safe, Accountable, Flexible, Efficient 
Transportation Act: A Legacy for Users (Pub. L. 109-59, August 10, 
2005, 119 Stat. 1144) (SAFETEA-LU) directs FMCSA to revoke the 
registration of a motor carrier that has been prohibited from operating 
in interstate commerce for failure to comply with the safety fitness 
requirements of 49 U.S.C. 31144. Section 4114(b) of SAFETEA-LU expands 
FMCSA jurisdiction into intrastate operations by amending 49 U.S.C. 
31144(c) to prohibit from operating in interstate commerce and 
intrastate operations affecting interstate commerce owners or operators 
of CMVs that FMCSA has determined do not meet the safety fitness 
requirement to operate in interstate commerce, until the Secretary 
determines that such owner or operator is fit.

II. Background

    The Federal HOS regulations (49 CFR Part 395) limit the number of 
hours a commercial motor vehicle driver may drive and be on duty each 
day, and during each 7- or 8-day period. The rules are needed to 
prevent commercial vehicle operators from driving for long periods 
without opportunities to obtain adequate sleep. Sufficient sleep is 
necessary to ensure that a driver is alert behind the wheel and able to 
respond appropriately to changes in the driving environment. Under 
Sec.  395.8, all motor carriers and drivers (except private motor 
carriers of passengers [non-business]) must keep records to track on-
duty and off-duty time. FMCSA and State agencies use these records to 
carry out safety oversight activities.
    As FMCSA discussed in its September 2004 ANPRM on EOBRs (69 FR 
53386, Sept. 1, 2004), the methods of recording and documenting HOS 
have been modified several times over the years. The Interstate 
Commerce Commission (ICC) first established a requirement for a 
Driver's Daily Log in 1940. This requirement was later revised to add 
the familiar graph-grid recording format to the driver's log, which 
became known as ``Driver's Record of Duty Status (RODS).''
    In the mid-1980s, motor carriers began to look to automated methods 
of recording drivers' duty status as a way of saving drivers time and 
improving the efficiency of their compliance-assurance procedures. On 
April 17, 1985 (50 FR 15269), the Federal Highway Administration 
(FHWA), the predecessor Agency to FMCSA within the U.S. Department of 
Transportation (DOT), granted a waiver to Frito-Lay, Inc. to allow it 
to use on-board computers rather than requiring its drivers to complete 
handwritten RODS (the driver logbook, or ``logs''). Nine other motor 
carriers were subsequently granted waivers.
    In 1986, the Insurance Institute for Highway Safety (IIHS) 
petitioned FHWA to require the installation and use of automatic on-
board recordkeeping systems. Although the petition was denied, FHWA 
determined that regulations were needed to allow motor carriers to use 
AOBRDs without having to seek waivers. After providing the public with 
notice and opportunity to comment, FHWA issued a final rule on 
September 30, 1988 (53 FR 38666), which revised part 395 of the FMCSRs 
to allow, but not require, motor carriers to equip CMVs with AOBRDs 
instead of requiring drivers to complete handwritten RODS (49 CFR 
395.15). An AOBRD was defined under Sec.  395.2 as:

    * * an electric, electronic, electromechanical, or mechanical 
device capable of recording driver's duty status information 
accurately and automatically as required by Sec.  395.15. The device 
must be integrally synchronized with specific operations of the 
commercial motor vehicle in which it is installed. At a minimum, the 
device must record engine use, road speed, miles driven, the date, 
and time of day.

    Performance requirements for AOBRDs are straightforward. The AOBRD 
and its support systems must be certified by the manufacturer as 
evidence that they ``have been sufficiently tested to meet the 
requirements of Sec.  395.15'' and Appendix A to Part 395 ``under the 
conditions in which they would be used.'' The design must permit duty 
status to be updated only when the vehicle is at rest, unless the 
driver is registering the crossing of a State boundary. The AOBRD and 
support systems must be resistant to tampering ``to the maximum extent 
practicable.'' The AOBRD must provide a visual or audible warning to 
the driver if it ceases to function, and any sensor failures and edited 
data must be identified in the RODS printed from the device. Finally, 
the AOBRD must be maintained and recalibrated according to the 
manufacturer's specifications; drivers must be adequately trained in 
the proper operation of the device; and the motor carrier must maintain 
a second (backup) copy of electronic HOS files in a separate location.
    At the time Sec.  395.15 was issued, the technology to allow on-
board recorders to communicate data wirelessly between the CMV and the 
motor carrier's base of operations did not exist on a widespread 
commercial basis. Today's technologies allow for real-time transmission 
of a vehicle's location and other operational information. FMCSA calls 
these current-generation recording devices EOBRs. By exploiting the 
power of these technologies, a motor carrier can improve not only its 
scheduling of vehicles and drivers but also its asset management and 
customer service. In fact, some system providers offer applications for 
real-time HOS monitoring that build upon the time- and location-
tracking functions included in the providers' hardware and software 
products. Because of these developments in technology and 
communications, the current, narrowly crafted on-board recorder 
regulations require revision.
    On August 3, 1995, the IIHS, Advocates for Highway and Auto Safety 
(Advocates), and several other highway safety and advocacy 
organizations petitioned FHWA to require on-board recorders in CMVs. 
The petitioners believed that mandated use of these devices would 
improve HOS compliance, thereby reducing the number of fatigued drivers 
and fatigue-related crashes. Subsequently, FMCSA included in its May 2, 
2000, NPRM (65 FR 25540) on HOS a proposal to require EOBRs on 
commercial motor vehicles used in long-haul and regional operations. In 
its report ``Top Ten Management Issues'' (Report Number PT-2001-017, 
January 18, 2001) the DOT Office of Inspector General summarized the 
NPRM regarding EOBR use as follows:

    Driver HOS violations and falsified driver logs continue to pose 
significant safety

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concerns. Research has shown that fatigue is a major factor in 
commercial vehicle crashes. During roadside safety inspections, the 
most frequent violation cited for removing a driver from operation 
is exceeding allowed hours of service. Use of electronic recorders 
and other technologies to manage the HOS requirements has 
significant safety value. FMCSA's [May 2, 2000] proposed rulemaking 
would revise the hours of service by reducing the driving time 
allowed within a 24-hour period and by phasing in, over a period of 
years, the use of on-board electronic recorders to document drivers' 
hours of service. The Congress prohibited the Department from 
adopting a final rule during FY 2001. FMCSA management should use 
this time to consider all of the comments received and revise the 
proposed rule as appropriate.

    When FMCSA published its final HOS rule in April 2003, however, the 
proposal for mandatory use of EOBRs for CMVs used in long-haul and 
regional operations was withdrawn (68 FR 22456, Apr. 28, 2003). FMCSA 
concluded there were insufficient economic and safety data, coupled 
with a lack of support from the transportation community at large, to 
justify an EOBR requirement at that time. The Agency based these 
conclusions on the following:
    (1) Neither the costs nor the benefits of EOBR systems were 
adequately ascertainable, and the benefits were easier to assume than 
to accurately estimate.
    (2) The EOBR proposal was drafted as a performance standard, but 
enforcement officials generally preferred the concept of a design 
standard to facilitate data accessibility.
    (3) There was considerable opposition to the proposal to phase in 
the EOBR requirement, starting with large long-haul motor carriers--
those having more than 50 power units. Large carriers argued that 
mandated EOBR use was irrational because small carriers generally have 
higher crash rates. Major operators also complained that the phase-in 
schedule would force them to pay high initial prices for EOBRs, while 
carriers allowed to defer the requirement would benefit from the lower 
costs associated with increased demand, competition, and economies of 
scale.
    (4) There was considerable concern about the potential use of EOBR 
data for purposes other than HOS compliance.
    On July 16, 2004, the United States Court of Appeals for the 
District of Columbia Circuit vacated the 2003 final rule, for reasons 
unrelated to EOBRs. See Public Citizen, et al. v. FMCSA, 374 F.3d 1209 
(D.C. Cir. 2004). In dicta, however, the court stated that section 408 
of the ICCTA ``required the Agency, at a minimum, to collect and 
analyze data on the costs and benefits of requiring EOBRs.'' (Id. at 
1221)
    On September 1, 2004, FMCSA published an ANPRM requesting comments 
on a wide range of issues related to the design, use, applicability, 
costs, and benefits of EOBRs (69 FR 53386). FMCSA also conducted 
research into the current use, design, and costs of EOBRs and other 
communications systems being deployed by trucking companies, to provide 
additional information on which to base an approach to incorporating 
EOBR requirements in the FMCSRs. This proposed rule is based, 
therefore, both on the comments received to the ANPRM and on 
independent research the Agency conducted. The four research studies 
cited in the ANPRM are available in the docket at entries 2, 3, 6, and 
7. FMCSA sponsored three additional studies: ``Recommendations 
Regarding the Use of Electronic On-Board Recorders (EOBRs) for 
Reporting Hours of Service (HOS),'' prepared by staff of the John A. 
Volpe National Transportation Systems Center, U.S. Department of 
Transportation Research and Innovative Technology Administration, 
Cambridge, Massachusetts (``Volpe Center Study''); ``Technical Review 
and Assessment: Recommendations Regarding the Use of Electronic On-
Board Recorders (EOBRs) for Reporting Hours of Service (HOS),'' 
prepared by Dr. Kate A. Remley, Electromagnetics Division, National 
Institute of Standards and Technology, Boulder, Colorado; and the 2005 
update of ``On-Board Recorders: Literature and Technology Review,'' 
prepared by Cambridge Systematics (Cambridge, Massachusetts). These 
studies are also in the docket.
    Three of FMCSA's sister agencies within DOT-FHWA, the National 
Highway Traffic Safety Administration (NHTSA), and the Federal Railroad 
Administration--conducted a peer review of the Volpe Center Study in 
accordance with Office of Management and Budget peer review 
requirements. The reviewers evaluated the research with respect to 
scientific and technical merit, adequacy, and overall quality. A 
summary report of the peer review panel's evaluation and FMCSA's 
response to the evaluation are available in the Agency's EOBR Peer 
Review docket (FMCSA-2006-25548) of the DOT Docket Management System.

III. Executive Summary

    FMCSA proposes a comprehensive rule intended to improve CMV safety, 
increase use of EOBRs within the motor carrier industry, and to improve 
HOS compliance. The approach has three components: (1) A new 
performance-oriented standard for EOBR technology; (2) use of EOBRs to 
remediate regulatory noncompliance; and (3) incentives to promote EOBR 
use. FMCSA believes this approach strikes an appropriate balance 
between promoting highway safety and minimizing cost and operational 
burdens on motor carriers that demonstrate strong and consistent 
compliance with the HOS regulations.
    EOBR Performance Requirements. In developing the proposed 
requirements for EOBRs, FMCSA focused its attention on seven research 
factors listed in the ANPRM: (1) Ability to identify the individual 
driver; (2) Tamper resistance; (3) Ability to produce records for 
audit; (4) Ability of roadside enforcement personnel to access the HOS 
information quickly and easily; (5) Level of protection afforded other 
personal, operational, or proprietary information; (6) Cost; and (7) 
Driver acceptability. FMCSA proposes that the EOBR record basic 
information needed to track duty status, including the identity of the 
driver, duty status, date and time, location of the CMV, distance 
traveled, and other items that the driver would enter (such as truck 
numbers and shipping document numbers). The EOBR would be required to 
identify the driver, although FMCSA does not propose mandating a 
specific identification method. This approach would allow carriers to 
use existing identification systems or implement newer technologies as 
they become feasible.
    While many of the proposed requirements, such as that for tamper 
resistance, parallel the requirements for AOBRDs, others would extend 
the AOBRD requirements based on our expectation that the EOBR will have 
a high degree of reliability. The EOBR would not need to be integrally 
synchronized to the engine or other vehicle equipment. An EOBR must, 
however, have GPS or other location tracking systems that record 
location of the CMV at least once a minute. EOBRs could still use 
sources internal to the vehicle to record distance traveled and time. 
EOBRs must perform a power-on self-test on demand and must also warn 
the driver if the device ceased to function. Maintenance, 
recalibration, and self-certification requirements would be similar to 
those for AOBRDs.
    EOBRs would need to produce parallel data streams of original and 
modified entries to provide an audit trail for data. FMCSA proposes 
several options for information transfer and display; EOBRs could 
produce the driver's HOS chart in a graph-grid

[[Page 2344]]

format in either electronic or printed form. Data transfer could be 
either hardwired or wireless.
    EOBR Use Requirements. FMCSA is proposing to require EOBR use only 
for those carriers found to have HOS violation rates of 10 percent or 
more of the records reviewed during each of two compliance reviews 
(CRs), when the two reviews are conducted within a 2-year period. These 
carriers would be issued a remedial directive requiring that they 
install EOBRs in all of their CMVs and use the devices for HOS 
recordkeeping for a period of 2 years. This approach focuses on 
carriers with a history of serious HOS violations.
    EOBR Incentives. FMCSA would encourage all motor carriers to 
install and use EOBRs. Some carriers are reluctant to take this step, 
out of concerns that EOBRs' accuracy and the accessibility of the 
electronic records they generate would cause safety investigators to 
examine all of the carrier's HOS records and make minor violations 
easier to identify. We believe these concerns are warranted. To avoid 
putting EOBR-using carriers at a disadvantage during CRs, and to 
provide an incentive for EOBR use, under this proposed rule FMCSA would 
evaluate HOS compliance differently during CRs of carriers using EOBRs 
voluntarily than during CRs of other carriers. If a carrier voluntarily 
using EOBRs is found to have HOS violations in 10 percent or more of 
the records reviewed in the initial analysis, which focuses on drivers 
expected to have compliance problems,\1\ FMCSA would conduct a second 
review, of a random sample made up of records of duty status for the 
carrier's other drivers, and use the results of the second sample in 
determining the carrier's safety rating. FMCSA would assess civil 
penalties on the carrier in the Notice of Claim phase for all HOS 
violations discovered, regardless of the safety rating assigned. (If 
the initial, focused sample did not disclose a 10 percent or greater 
violation rate, then under current regulations the violations found 
would not affect the carrier's safety rating in any case.) We believe 
this approach would remove a disincentive to EOBR use while maintaining 
the Agency's focus on safety. This incentive would not be available to 
motor carriers operating under a remedial directive to install, use, 
and maintain EOBRs.
---------------------------------------------------------------------------

    \1\ FMCSA's routine compliance review procedures call for FMCSA 
or State safety investigators to focus their sample of HOS records 
on the RODS of drivers involved in interstate recordable accidents, 
drivers placed out of service for hours-of-service violations during 
roadside inspections, drivers discovered to have poor driving 
records through Commercial Driver's License Information System 
checks, recently hired drivers, and drivers having a high 
probability of excessive driving.
---------------------------------------------------------------------------

    Under this proposed rule, FMCSA also would provide partial relief 
from HOS supporting documents requirements for motor carriers that 
voluntarily use EOBRs, provided certain conditions are satisfied. EOBRs 
meeting the proposed requirements produce regular time and CMV location 
position histories sufficient to verify adequately a driver's on-duty 
driving activities. Motor carriers voluntarily maintaining the time and 
location data produced by such devices would need to maintain only 
those additional supporting documents as are necessary to verify on-
duty not-driving activities and off-duty status.
    FMCSA is also requesting comment on other incentives for EOBR 
adoption. We are interested in identifying other regulatory relief that 
a motor carrier's EOBR use might justify, including relief from 
specific HOS requirements or limitations consistent with the safety and 
driver health benefits of EOBR technology.
    Other Issues. In response to the ANPRM, some carriers and drivers 
expressed a reluctance to use EOBRs because of other uses that could be 
made of the data the devices produce. Drivers objected to the devices 
as an invasion of privacy and as a source of information that could be 
used against them for non-HOS-related issues, such as speeding. 
Carriers were concerned that the data could be used in post-crash 
litigation. Both asked that FMCSA limit access to the data for the 
purpose of HOS compliance-related enforcement.
    This NPRM does not propose to require EOBRs to record engine speed, 
although we are aware that other data could be used to derive that 
information. We recognize the industry's concerns in this area, and are 
not proposing that EOBRs display, or make readily available to 
enforcement officials, information other than what is necessary to 
determine compliance with the HOS regulations.

IV. Discussion of Comments to the ANPRM

A. Overview of Comments

    FMCSA received 307 comments in response to the ANRPM. Nearly half 
(148) were from drivers or driver trainers. There were 35 comments from 
private citizens, not all of whom indicated whether they were drivers. 
FMCSA also received comments from 70 carriers, 35 of which were owner-
operators. Fourteen trucking associations submitted comments, as did 
three passenger carrier associations. Also commenting were six advocacy 
organizations and eight associations representing companies such as 
utilities, ready-mixed concrete suppliers, and solid waste management 
firms. Finally, 15 vendors of EOBRs or similar products, 3 individual 
non-trucking firms, one union, and one law enforcement agency submitted 
comments.
    In addition, 172 of the commenters to FMCSA's May 2, 2000, NPRM on 
hours of service of drivers (65 FR 25540) included comments on the 
issue of an EOBR requirement. Of these commenters, 48--including the 
National Transportation Safety Board (NTSB), advocacy organizations, 8 
carriers, and 34 drivers--supported such a requirement, while 124 were 
opposed. The latter group included construction industry associations 
and carriers, trucking associations, an express carrier, and 88 
drivers.
    The potential imposition of an EOBR requirement drew diverse 
comments. Some motor carriers requested that FMCSA exempt them from any 
EOBR requirement because of the nature of their activities. By 
contrast, other carriers thought any requirement to use EOBRs should be 
applied evenly across the industry to maintain a level playing field. 
The Canadian Trucking Alliance (CTA) stated that it ``has adopted a 
policy position, which has been communicated to Canadian governments at 
both the Federal and provincial levels, that calls for the mandatory 
use of EOBRs for the operators of all commercial vehicles, where a 
commercial driver's license is required to operate the vehicle and a 
logbook must be completed by the driver under the current rules.'' 
Advocacy organizations recommended an across-the-board mandate, viewing 
full compliance with the HOS regulations as vital to roadway safety. 
They believe EOBRs are necessary to improve both motor carriers' 
compliance with the HOS regulations and FMCSA's ability to enforce 
them.
    Many drivers contended that mandating EOBR use would constitute an 
unwarranted (and possibly unconstitutional) invasion of privacy. Some 
expressed concerns about trucking companies using EOBRs to maximize 
driving time under the HOS regulations at the expense of driver health 
and safety. The Truckload Carriers Association (TCA) cited protections 
afforded to consumer credit reports by the Fair Credit Reporting Act 
and the protections of medical information required by the Health 
Insurance Portability and Accountability Act of 1996.

[[Page 2345]]

    Motor carriers and trucking industry associations also expressed 
concerns with a potential mandate. Many motor carriers, especially 
smaller companies, echoed drivers' concerns regarding the potential 
financial burden of installing and maintaining EOBRs. On the other 
hand, several medium and large carriers noted they currently use 
vehicle tracking and wireless communication systems. They asked FMCSA 
to consider those systems as equivalent to EOBRs, similar to the 
exemption granted to Werner Enterprises (Werner) (69 FR 56474, Sept. 
21, 2004) to allow use of a system based upon global positioning system 
(GPS) technology. Motor carriers using these and similar systems 
asserted that the costs of installing and maintaining EOBRs would be 
counterbalanced by savings from operating efficiencies and reduced 
paperwork.
    Drivers generally expressed concerns about the EOBRs. They objected 
to the potential purchase and maintenance costs, and questioned the 
potential for improved accuracy of EOBR-generated RODS over paper RODS, 
because AOBRDs (and EOBRs) cannot automatically distinguish between 
``off-duty'' and ``on-duty not-driving'' status requiring manual input 
from the driver. Other commenters questioned the prospect of potential 
cost savings from automated recordkeeping, the potential for improving 
motor carrier HOS compliance and FMCSA's oversight activities, and the 
relationship between HOS compliance and highway crashes. Both drivers 
and motor carriers expressed concern about the potential for ``scope 
creep''--the potential use of EOBRs to collect data unrelated to HOS 
compliance for use in enforcement and litigation actions likewise 
unrelated to HOS.

B. Key Research Factors

    As noted under EOBR Performance Requirements, the ANPRM 
specifically requested comments on the seven key research factors 
initially discussed in the April 2003 HOS final rule and in the 
Executive Summary of this preamble.
    Commenters suggested a number of additional research factors. For 
example, the Specialized Carriers and Rigging Association (SCRA) and 
the Owner-Operator Independent Drivers Association (OOIDA) stated that 
FMCSA needs to gather data to establish whether a correlation exists 
between the use of EOBRs (both Sec.  395.15-compliant devices and other 
systems, such as that used by Werner) and improved truck safety.
    The American Trucking Associations (ATA) recommended FMCSA consider 
maintenance and inspection of systems; performance certification and 
compliance of new systems; product assurance and validation; 
interoperability; and existing or future system evolution. ATA also 
encouraged FMCSA to expand the list by fostering an open stakeholder 
dialogue beyond the docket submission period.
    Advocates supported the Agency's research criteria with the 
exception of driver acceptance, contending this ``cannot be used as a 
barometer for the mandatory adoption of this important safety 
technology'' because drivers face pressure to accept schedules that 
cannot be met without violating speed limits and the HOS regulations. 
Advocates suggested adding three other criteria: High levels of crash 
damage resistance; the capability to track real-time geographic 
location to ensure compliance with CMV weights-and-dimensions laws and 
hazardous materials routing regulations; and interoperability of all 
EOBR data and data retrieval ``in accordance with the protocols that 
have been issued by the Intelligent Transportation Systems consensus 
positions of the ITS America Committee and constitute a baseline for 
interoperability in the U.S. Department of Transportation.''
    IIHS commented on FMCSA's methods of gathering information rather 
than on its choice of research criteria. IIHS thought FMCSA should 
conduct a field operational test of EOBR devices and conduct formal 
surveys to gather data on EOBR benefits, costs, and use in HOS 
enforcement.
    Motor carriers also suggested additional research factors. J.B. 
Hunt suggested ease of use, restrictions on use while a vehicle is in 
motion (for solo operations only), driver distraction, and device 
durability. Schneider recommended comparing the effectiveness of EOBRs, 
paper RODS, and existing compliance programs in reducing motor carrier 
crash rates. FedEx cited the ability of a device to produce documents 
for review at roadside as a key technical requirement, and called on 
FMCSA to assess categories of motor carrier operations for which an 
EOBR mandate would be appropriate.
    One equipment vendor suggested researching EOBR physical durability 
and system architecture, including two-way communications and GPS 
capabilities.
    A number of commenters stated that FMCSA needs to gather additional 
information through discussions with stakeholders. They believe this 
would provide a better means of exchanging information with the Agency 
than responding to a rulemaking docket. Only IIHS suggested FMCSA has 
enough information to craft a ``workable'' EOBR mandate. Other 
commenters urged FMCSA to move deliberately and obtain more information 
from motor carriers, law enforcement personnel, and drivers.
    With respect to EOBR performance standards, ATA recommended a 
facilitated dialogue among motor carriers, FMCSA, and enforcement 
personnel as the most effective way to develop standards serving the 
interests of all. Such a process could decrease ambiguities in 
interpretation between and among manufacturers and service providers, 
increase EOBRs' usefulness to trucking companies, and improve the 
efficiency of the HOS records auditing process.
    Schneider said the ``continued instability'' of the Federal HOS 
regulations and the interrelationships between the HOS regulations and 
HOS records make it difficult to answer the questions posed in the 
ANPRM. Schneider and other commenters suggested FMCSA move forward 
deliberately, promulgate tentative minimum functional specifications, 
request comments regarding the costs and benefits of compliant EOBRs, 
and consider a general EOBR mandate only after performing a more 
precise and comprehensive benefit-cost analysis. Overnite 
Transportation stressed the need for additional input from the motor 
carrier industry and the law enforcement community.
    Werner asserted that many motor carriers have reviewed its system 
and expressed an interest in implementing a similar system, but are 
unwilling to move forward given the open status of the EOBR rulemaking. 
Werner recommended that FMCSA assure motor carriers that their systems 
(including ones similar to the Werner paperless logging system) would 
still be considered acceptable alternatives to EOBRs should new rules 
be implemented.
    Many commenters (chiefly individuals) expressed concerns about 
other HOS compliance and motor carrier safety matters. These included 
excessive and unpaid delays at loading and unloading docks contributing 
to driver fatigue and unsafe driving, the relationship between the HOS 
regulations and driver pay, unsafe driving behavior by non-CMV drivers 
contributing to highway crashes, inadequate training of new drivers, 
anti-idling rules, and lack of legal truck parking.

[[Page 2346]]

Agency Response
    FMCSA agrees with many of the commenters' recommendations, which 
are reflected in several elements of the proposed rule. For example, we 
are proposing a performance standard concerning geographic location 
tracking of the CMV as well as providing for interoperability between 
EOBRs and support systems and compliance-assurance systems, as 
recommended by Advocates and other commenters. We conferred with FHWA 
concerning Advocates' recommendation on interoperability of EOBR data 
and data retrieval. FHWA is not aware of any ``ITS America consensus 
protocols'' in existence. We intend to develop the EOBR performance 
specifications in accordance with ITS America's ``ITS/CVO [Intelligent 
Transportation Systems Commercial Vehicle Operations] Interoperability 
Guiding Principles'' and DOT's Commercial Vehicle Information Systems 
Network [CVISN] Architecture.
    In response to a recommendation by ATA, Schneider, Overnite, and 
others, we are providing a longer than normal public comment period for 
this proposal to allow commenters ample time to develop their responses 
and ensure careful consideration of a cross-section of opinion. The 
Agency believes this deliberate approach, encompassing extensive 
analysis of public comment and the available research, is essential to 
provide the foundation for the ``workable'' rule to which IIHS 
referred.
    In response to Werner Enterprise's comment, we would continue to 
allow Werner to operate under the exemption granted on September 21, 
2004 (69 FR 56474) for vehicles manufactured prior to 2 years after the 
effective date of an EOBR final rule. EOBRs installed in vehicles 
manufactured after that date would be required to comply with 
requirements under an EOBR final rule.

C. Comments on the Requested Subjects

    The Agency also requested comments on 15 subjects, denoted as A 
through O in the ANPRM. The comments to those subjects are addressed 
below.
1. Synchronization of Recorder to a Vehicle Operating Parameter
    Commenters disagreed about whether it is necessary to synchronize 
an EOBR to the CMV to capture data necessary to establish a driver's 
``on-duty, driving'' status. Seven of the 10 equipment and systems 
providers commenting on this topic believe that EOBRs should be 
integrally synchronized to the CMV, either directly to the engine 
control module (ECM) or via the vehicle's electronic network (databus). 
Several stated that their products also support CMV location tracking 
via GPS or other means.
    XATA, an EOBR vendor, asserted that integral synchronization is not 
only more cost-effective than GPS and other technologies but provides 
EOBR manufacturers a standard interface method to ensure accurate 
tracking of vehicle motion and other operational data. Tripmaster 
stated ``electronic engine control modules (ECM) are calibrated during 
the manufacturing process with the proper odometer pulse per mile 
value,'' and that EOBRs connected to the ECM ``are in effect self-
calibrated.'' Tripmaster supported GPS as an alternative distance 
measurement, rather than as the primary source of such measurement. 
PeopleNet supported synchronization with the databus, using ECM data to 
determine travel distance and GPS to confirm location. Qualcomm 
recommended that ``integrally synchronized'' refer to an EOBR system in 
which at least one component is directly connected to the engine of the 
CMV in which it is installed, to enable the EOBR to collect and record 
CMV functions as they occur. Siemens stated its experience in other 
countries is that most falsifications are based on a tampered speed 
signal. It recommended tracking CMV speed through vehicle sensors 
combined with a GPS speed signal. Darby Corporate Solutions believes an 
EOBR should record only vehicle information, not duty status, which it 
contended should be recorded by a separate device. Karta Technologies 
described how its vehicle-tracking product could incorporate an EOBR 
function.
    In contrast, three commenters, LinksPoint, Nextel, and CPS, 
supported a GPS-only system without integral synchronization to the 
CMV. LinksPoint asserted that a combination of driver-reported status 
and GPS-sensed data (such as vehicle motion) would permit an economical 
``semi-automated'' and ``minimally compliant device'' approach to HOS 
recording, and believes current mobile computing technology would allow 
for error checking to improve data accuracy and protect against fraud. 
CPS contended the databus standards are ``out-of-date and rely on input 
from engine sensors that may be inaccurate and need regular 
calibration,'' whereas a GPS-only system would be self-contained, 
stand-alone, and tamper resistant. Nextel advocated integrated GPS 
technology as more accurate and providing near-real-time reporting.
    Motor carriers generally supported retaining a requirement for 
integral synchronization of the EOBR with the CMV. Greyhound, J.B. 
Hunt, Maverick, and Schneider contended that synchronization is 
essential, but also noted EOBRs depend upon human input to record duty 
status accurately. J.B. Hunt supported concurrent use of GPS-enabled 
location tracking and recording. Schneider believes synchronization of 
EOBRs with vehicle electronics ``would require significant filtering to 
avoid data overload and misleading results.'' Schneider suggested FMCSA 
request comments on the new European Union (EU) digital tachograph, 
specifically concerning how it records CMV movement. Schneider stated 
it is concerned FMCSA may be considering use of handheld GPS devices, a 
technology it does not consider appropriate. ATA generally supported 
development of reliable data parameters and standards. However, ATA did 
not support revising the current regulations, as it believes the 
problems cited in the ANPRM pertain to systems that do not comply with 
these rules.
    The Santa Clara Valley Transportation Authority, a public agency 
not subject to the FMCSRs for most of its operations, opposed 
continuing the synchronization requirement. The transportation 
authority uses automated vehicle location and GPS capabilities and has 
incorporated HOS rules into the Santa Clara bus schedules.
    Advocacy organizations supported maintaining the synchronization 
requirement. IIHS asserted the most important capability is the 
accurate recording of driving time, a feature most of today's systems 
provide. Citing FMCSA's past studies, Advocates and Public Citizen 
opposed GPS-only systems and supported a combination of GPS technology 
and recording of on-board vehicle operating parameters.
    Law enforcement interests also supported the notion of an EOBR 
providing a combination of location tracking and vehicle data. The 
Commercial Vehicle Safety Alliance (CVSA) cited a need for redundancy 
to minimize errors and falsification. The California Highway Patrol 
(CHP) thought synchronization among multiple data sources and the EOBR 
is vital to overcome the shortcomings of any one system.
    One commenter stated that an EOBR should record only data, should 
not be programmed to ``make assumptions'' as to duty status, and should 
record GPS data continuously. Another commenter said an EOBR should 
record data from the vehicle databus in real time. The International 
Foodservice Distributor Association opposed any rule requiring

[[Page 2347]]

use of GPS and engine data to track HOS compliance.
Agency Response
    The purpose of an AOBRD or EOBR is to accurately record a driver's 
sequence of duty statuses, the time the driver is engaged in a given 
duty status category, and the sequence of dates, times, and locations 
that make up a trip. Historically, the only information available from 
a source not directly controlled by the driver was the driving time and 
distance, both of which were obtained from a source on the vehicle. 
Change-of-duty status locations had to be entered manually. In the 20 
years since AOBRDs were first used, communications and logistics 
management technologies have evolved to enable a more fundamental item 
of information--vehicle location--to be tracked and recorded. The 
precision and accuracy of this recording has come to rival that of 
distance-and-time records from the CMV.
    FMCSA believes it is appropriate to offer an alternative, 
performance-oriented approach that allows motor carriers and EOBR 
developers to take advantage of emerging technologies. Specifically, 
FMCSA now believes that an EOBR does not necessarily have to be 
``integrally synchronized'' with the CMV to provide an accurate record 
of driving time, equivalent to that of an electronic odometer or the 
time function contained in an ECM. The Agency is proposing to allow two 
ways to record distance traveled and time: (1) Via sources internal to 
the vehicle (i.e., the ECM with an internal clock/calendar) to derive 
distance traveled, or (2) via sources external to the vehicle (i.e., 
location-reference systems--GPS, terrestrial, or a combination of both) 
recording location of the CMV once per minute and using a synchronized 
clock/calendar to derive distance traveled (``electronic 
breadcrumbs''). This approach has the potential advantages of removing 
a restrictive design requirement, providing an opportunity for 
innovation, and allowing use of less expensive hardware (e.g., GPS-
enabled cell phones), without making existing synchronized devices 
obsolete.
    Regardless of the communications modes (wireless or terrestrial) 
and the method used to synchronize the time and CMV-operation 
information into an electronic RODS, FMCSA would require the records 
from EOBRs to record duty status information accurately. The difference 
proposed between actual distance traveled and distance computed via 
location-tracking methods over a 24-hour period would be 1 
percent. EOBR developers would need to test their devices thoroughly to 
ensure they meet or exceed these tolerances.
2. Amendment of Records
2.1 Should FMCSA Revise Its Definition of ``Amend'' in the Regulatory 
Guidance for Sec.  395.15 To Include or Exclude Certain Specific 
Activities?
    Nearly all commenters who addressed this question supported a 
regulatory provision to allow drivers to amend or annotate in some way 
the duty status records captured by an EOBR. However, commenters did 
not, for the most part, directly address the question of whether FMCSA 
should revise its definition of ``amend'' in the Regulatory Guidance. 
Several stated that drivers should have the opportunity to amend on-
duty not-driving, off-duty, and sleeper-berth status entries to ensure 
they are accurate, while others opposed allowing drivers to amend any 
driving time entries. A few opposed any provisions for drivers to amend 
or annotate EOBR records.
    All motor carriers addressing this issue said FMCSA should allow 
drivers to make amendments or add remarks in some circumstances, 
although three opposed allowing amendment of on-duty driving time. J.B. 
Hunt recommended against allowing amendments of driving time entries, 
but supported allowing drivers to add information in a Remarks section. 
J.B. Hunt suggested employee drivers might request their company to 
correct driving time errors, while independent owner-operators might 
make these requests through a ``compliance consortium'' similar to 
those used to manage random drug and alcohol audits. Maverick 
Transportation recommended allowing drivers to amend records and enter 
explanatory remarks. Roehl Transport recommended prohibiting 
modification of a record ``if the truck is moving.'' Greyhound Lines' 
support for allowing amendments was based upon its contention that an 
EOBR cannot distinguish between a vehicle idling in traffic (on-duty/
driving) and idling at a terminal (on-duty not-driving or off-duty). 
Greyhound also pointed to the need to correct errors when a new driver 
takes over a vehicle but the previous driver has forgotten to log off. 
Werner Enterprises noted its current system explicitly measures only 
driving time, with all other duty status entries requiring driver 
input. Based upon its experience in training thousands of drivers, 
Werner contended that prohibiting corrections of nondriving-time errors 
would render the records meaningless.
    The International Brotherhood of Teamsters (IBT) stated that FMCSA 
should allow drivers to amend any electronic record and add 
informational remarks to note traffic conditions and indicate on-duty 
not-driving or off-duty status.
    CHP suggested FMCSA continue to prohibit amendments of any 
permanently recorded entry or data parameter, but allow comments 
regarding entry omissions and inadvertent errors as ``corrections'' in 
line with the current regulatory guidance for 49 CFR 395.8, Question 8. 
CVSA supported this position.
    Advocates stated that FMCSA should allow drivers to make separate 
annotations in certain circumstances, but should not allow alteration 
of any data captured by an EOBR. It opposed the idea of allowing 
drivers to use the Remarks section to provide details of on-duty not-
driving activities, reasoning that certain drivers would misrepresent 
some on-duty not-driving time as off-duty time. Advocates noted FMCSA 
did not include in the ANPRM any discussion of how to accurately verify 
work and rest time periods that an EOBR could not capture.
    Most of the vendors commenting on this issue supported allowing 
drivers to make amendments or annotations to the duty status recorded 
by an EOBR. For example, PeopleNet stated that without a process to 
allow drivers to amend records, motor carrier personnel would have to 
be available around the clock to respond to drivers' requests for 
annotations. It recommended requiring that drivers enter remarks 
describing the reason for the amendment, requiring the amendment to be 
visible to safety officials and motor carrier back-office staff, and 
prohibiting drivers from making amendments after the RODS has been 
certified. Siemens and CPS opposed any alteration or annotation of EOBR 
data. According to CPS, a system should provide function keys to allow 
the driver to record events. Other vendors commented that drivers' 
annotations or entries in the Remarks section would provide adequate 
documentation of non-driving time activities, trips of short duration, 
circumstances when a CMV may be stopped in traffic upstream of a crash, 
use of a CMV as a personal conveyance, and other situations. However, 
Siemens believes permitting any modification of recorded data would 
encourage falsifications.

[[Page 2348]]

2.2 Should Drivers Be Allowed To Amend the Duty Status Record if the 
System Maintains Both the Original and Amended Records?
    As with their responses to the previous question, most of the 
commenters addressing this issue thought drivers should be allowed to 
amend the duty status record if the EOBR maintains both the original 
and amended records. However, several commenters opposed allowing 
drivers this privilege, while others raised questions without taking a 
stance.
    Four of the five motor carrier commenters took an affirmative 
position. Schneider believes such a provision would be necessary for an 
EOBR system to be workable, particularly in instances of EOBR 
malfunction or misreadings. J.B. Hunt favored allowing drivers to add 
on-duty not-driving time, requiring them to request company approval to 
reduce prior on-duty time entries, but not allowing amendments of 
driving time. Roehl Transport believes drivers should not be allowed to 
amend their HOS records while in transit, contending that only a 
supervisory motor carrier official should be allowed to amend a 
driver's RODS. As noted under its response to the previous question, 
Greyhound supported allowing drivers to amend records. Greyhound 
suggested that drivers would have to review their electronic logs from 
fixed locations and carriers would have to provide a network of 
computer workstations.
    One owner-operator saw no need to allow drivers to amend records, 
contending that EOBRs should prompt for an entry at each change in 
vehicle status. Another supported the idea of allowing amendments by 
drivers.
    CHP and CVSA both recommended FMCSA consider a requirement for a 
permanent record of both original and amended entries. They 
acknowledged, however, that this could complicate enforcement because 
it would leave open the question of which version is accurate.
    Advocates supported allowing a driver to enter addenda to an EOBR 
record, but opposed the idea of EOBRs recording ``a separate version of 
the RODS that has been manipulated by the driver.'' With regard to non-
driving time, it had no objection to a driver's using a ``supplementary 
electronic logbook'' to enter non-driving work time and non-driving 
rest or end-of-duty-tour time. However, Advocates stressed this 
supplementary logbook should be matched against engine and GPS data for 
verification of compliance with the HOS rules.
    IBT recommended allowing drivers to amend the duty status record if 
the EOBR maintains both the original and amended record. However, like 
CHP and CVSA, IBT was concerned this approach could complicate 
compliance assurance processes.
    All but one of the vendors addressing this issue expressed 
qualified support for allowing drivers to amend the RODS generated by 
an EOBR. XATA said EOBRs could be designed to keep an original and 
amended copy of records or a single copy with an audit trail of the 
changes. Nevertheless, XATA recommended FMCSA limit drivers' amendment 
of records. LinksPoint echoed XATA's comments, adding that its system 
could flag instances when entered or amended data do not match a 
vehicle's GPS travel history. Tripmaster described an EOBR using GPS 
data to record location, vehicle movement to determine the duty status 
of the driver (on-duty/driving or on-duty not-driving), driver input to 
distinguish on-duty from off-duty status, and an internal time clock to 
record the time of each change in status. Provided such a system were 
in place, Tripmaster supported allowing a driver to alter ``clock in'' 
and ``clock out'' time to correct legitimate errors. PeopleNet 
suggested FMCSA require drivers to enter remarks describing the reason 
for any change and to make any amendments visible to law enforcement 
through in-cab and back-office reporting. It also reminded FMCSA that 
drivers must enter hours worked for a non-motor-carrier entity as on-
duty time. Qualcomm said that drivers should be able to correct non-
driving duty status as long as an audit trail is maintained, but only 
before a driver certifies the correctness of the daily log. In 
contrast, CPS contended drivers should not be allowed to amend the duty 
status record.
2.3 Should the Agency Maintain the Blanket Prohibition Against Drivers' 
Amending RODS Generated by an AOBRD?
    As their comments to the previous questions indicated, most 
carriers supported allowing drivers to amend or annotate non-driving 
duty status records.
    The few drivers who responded to this question were divided. One 
said that no one should be able to change the data recorded by an EOBR, 
and that drivers would soon become familiar with EOBRs and no longer 
need to amend their entries. Another asserted FMCSA should remove the 
blanket prohibition, but did not explain his position. A third driver 
commented that allowing drivers to check HOS records le