Electronic Logging Devices and Hours of Service Supporting Documents, 78291-78416 [2015-31336]

Download as PDF Vol. 80 Wednesday, No. 241 December 16, 2015 Part II Department of Transportation tkelley on DSK9F6TC42PROD with RULES2 Federal Motor Carrier Safety Administration 49 CFR Parts 385, 386, 390, and 395 Electronic Logging Devices and Hours of Service Supporting Documents; Final Rule VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\16DER2.SGM 16DER2 78292 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. AGENCY: 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: tkelley on DSK9F6TC42PROD with RULES2 SUMMARY: 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 DriveawayTowaway Operations, Dealers, and PreModel 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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 OwnerOperators 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) E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 tkelley on DSK9F6TC42PROD with RULES2 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 v. 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: 1. Documents Requirements—The maximum number of supporting PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 78293 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. 2. Technical Specifications—Two of the options for the required electronic data transfer included in the SNPRM (Quick Response (QR) codes and TransferJet) 1 have been removed. Electronic data transfer must be made by either (1) wireless Web services and email or (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. 3. 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. 4. ELD Certification—To ensure that ELD providers 2 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. 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 onsite 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. 1 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.’’ 2 ‘‘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. E:\FR\FM\16DER2.SGM 16DER2 78294 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 3% 7% Option 2: (adopted) RODS drivers only 3% 7% Total Benefits ................................................................................................. Safety (Crash Reductions) ....................................................................... Paperwork Savings ................................................................................... Total Costs ..................................................................................................... New ELD Costs ........................................................................................ AOBRD Replacement Costs .................................................................... HOS Compliance Costs ............................................................................ CMV Driver Training Costs ....................................................................... Enforcement Training Costs ..................................................................... Enforcement Equipment Costs ................................................................. $3,150 694 2,456 2,298 1,348 2 936 9 1 1 $3,124 687 2,438 2,280 1,336 2 929 10 2 1 $3,035 579 2,456 1,851 1,042 2 797 7 1 1 $3,010 572 2,438 1,836 1,032 2 790 8 2 1 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 2: RODS drivers only Option 1: all HOS drivers tkelley on DSK9F6TC42PROD with RULES2 Crashes Avoided .. Injuries Avoided .... Lives Saved .......... 2,217 675 31 1,844 562 26 III. Public Participation To view comments, as well as any documents identified in this preamble as available in the docket, go to https://www.regulations.gov. Insert the docket number, FMCSA–2010–1067, in VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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: 3 • Drivers who use paper RODS for not more than 8 days during any 30 day period. • Drivers who conduct driveawaytowaway operations, where the vehicle being driven is the commodity being delivered. 3 ‘‘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. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations • 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. tkelley on DSK9F6TC42PROD with RULES2 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. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 caseby-case basis, FMCSA may authorize exemptions to allow a motor carrier to use a supporting document selfcompliance 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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 78295 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 onduty 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 E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78296 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 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 telematicstype 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. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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. tkelley on DSK9F6TC42PROD with RULES2 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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,4 and an online commenting system pilot program called Regulation Room.5 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 v. Fed. Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011) (decision available in the docket for this 4 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. 5 The Regulation Room is available on line at: https://archive.regulationroom.org/eobr, last accessed January 2, 2015. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 78297 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.6 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.7 FMCSA proposed new technical standards for ELDs and requiring the 6 656 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. 7 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. E:\FR\FM\16DER2.SGM 16DER2 78298 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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)).8 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. 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 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 LocaRequired at each tion Information. 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. 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). Require automated entry at each change of duty status, at 60-minute intervals while CMV is in motion, at engineon and engine-off instances, and at beginning and end of personal use and yard moves. tkelley on DSK9F6TC42PROD with RULES2 8 Available at https://www.regulations.gov. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 Require automated entry at each change of duty status, at 60-minute intervals while CMV is in motion, at engineon and engine-off instances, and at beginning and end of personal use and yard moves. Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 78299 TABLE 3—COMPARISON OF TECHNICAL SPECIFICATIONS—Continued Feature/Function 1988 AOBRD Rule 2010 EOBR Rule 2014 ELD SNPRM Today’s ELD Final rule 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 limits notification not required.. ‘‘Unassigned driving time/miles’’ warning provided upon login. 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-driverinitiated status change is allowed. ELD time must be synchronized to UTC, absolute deviation must not exceed 10 minutes at any point in time. 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 limits notification not required. ‘‘Unassigned driving time/miles’’ warning provided upon login. 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-driverinitiated status change is allowed. ELD time must be synchronized to UTC, absolute deviation must not exceed 10 minutes at any point in time. 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. HOS Driver Advisory Messages. Not addressed ........... Device ‘‘Default’’ Duty Status. Not addressed ........... Requires notification at least 30 minutes before driver reaches 24-hour and 7/8 day driving and on-duty limits. On-duty not driving when the vehicle is stationary (not moving and the engine is off) 5 minutes or more. Clock Time Drift Not addressed ........... Communications Methods. Not addressed—focused on interface between AOBRD support systems and printers. 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. Identification of Sensor Failures and Edited Data. tkelley on DSK9F6TC42PROD with RULES2 Graph Grid Display. 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. Absolute deviation from the time base coordinated to (UTC) Coordinated Universal Timeshall not exceed 10 minutes at any time. Wired: USB 2.0 implementing Mass Storage Class 08H for driverless operation.. Wireless: IEEE 802.11g, CMRS 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Primary: Wireless Web services Two Options: 1-Telematics: As or Bluetooth 2.1 or Email a minimum, the ELD must (SMTP) or Compliant Printout. transfer data via both wireBackup Wired/Proximity: USB less Web services and wire2.0 * and (Scannable QR less email codes, or TransferJet *). 2-‘‘Local Transfer’’: As a min* Except for ‘‘printout alterimum, the ELD must transfer native’’. 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. ELD must not permit alteration ELD must not permit alteration or erasure of the original inor erasure of the original information collected conformation collected concerning the driver’s ELD cerning the driver’s ELD records or alteration of the records or alteration of the source data streams used to source data streams used to provide that information. ELD provide that information. ELD must support data integrity must support data integrity check functions. check functions. ELD must have the capability ELD must have the capability to monitor its compliance to monitor its compliance (engine connectivity, timing, (engine connectivity, timing, positioning, etc.) for detectpositioning, etc.) for detectable malfunctions and data able malfunctions and data inconsistencies. ELD must inconsistencies. ELD must record these occurrences. record these occurrences. 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.9 9 Copy of Memorandum of Understanding available at https://www.osha.gov/plsoshaweb/ PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 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 OnBoard Recorder Performance Specifications.10 The Agency asked the owadisp.show_document?p_table=MOU&p_ id=1305. 10 Motor Carrier Safety Advisory Committee (MCSAC) Task Statement, Task 11–04, Electronic On-Board Recorders (EOBR) communications protocols, security, interfaces, and display of hours- E:\FR\FM\16DER2.SGM Continued 16DER2 78300 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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. 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, 2011.11 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. 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, 2012.12 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. 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 Electronic On-Board Recorders for Hours-ofService Compliance. Final rule .................... RIN 2126–AA89 ......... Docket No. 2004– 18940. 75 FR 17208, Apr. 5, 2010. 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. Electronic On-Board Recorders for Hours-ofService Compliance. Final rule; Technical amendments, response to petitions for reconsideration,. RIN 2126–AA89 ......... Docket No. 2004– 18940. NPRM ......................... RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. 75 FR 55488, Sept. 13, 2010. NPRM; extension of comment period,. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. Notice; request for additional public comment. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. Notice of meeting ....... Related to RIN 2126– AA89. Docket No. FMCSA– 2006–26367. 76 FR 13121, Mar. 10, 2011. Electronic On-Board Recorders and Hours-ofService Supporting Documents. Electronic On-Board Recorders and Hours-ofService Supporting Documents. Electronic On-Board Recorders and Hours-ofService Supporting Documents. tkelley on DSK9F6TC42PROD with RULES2 Motor Carrier Safety Advisory Committee (MCSAC) Series of Public Subcommittee Meetings. of-service data during driver/vehicle inspections and safety investigations. Retrieved December 7, 2014, from https://mcsac.fmcsa.dot.gov/documents/ July2011/task_statement_11-04.pdf. 11 MCSAC Task 11–04: Electronic On-Board Recorders (EOBR) Communications Protocols, VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Citation, date 76 FR 5537, Feb. 1, 2011. Frm 00010 Fmt 4701 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. 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. Amended requirements for the temperature range in which EOBRs must be able to operate, and the connector type specified for the USB interface. 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. Extended the public comment period for the NPRM from April 4, 2011, to May 23, 2011. 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. 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. Security, Interfaces, and Display of Hours-ofService Data During Driver/Vehicle Inspections and Safety Investigations, December 16, 2011. Retrieved December 7, 2014, from https:// mcsac.fmcsa.dot.gov/meeting.htm. PO 00000 Synopsis Sfmt 4700 12 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 https://mcsac.fmcsa.dot.gov/Reports.htm. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 78301 TABLE 4—TIMELINE OF REGULATORY AND JUDICIAL ACTIONS SINCE THE 2010 RULE—Continued Title Type of action, RIN Citation, date 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 ...... Notice of meetings related to EOBRs. No RIN. ...................... Docket No. FMCSA– 2006–26367. Notice of meeting ....... Related to RIN 2126– AB20. Docket Nos. FMCSA– 2006–26367 and FMCSA–2011–0131. Notice of intent ........... RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d. 580 (7th Cir. 2011), Aug. 26, 2011 ............. 76 FR 62496, Oct. 7, 2011. Vacated the April 2010 rule. 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. 77 FR 7562, Feb. 13, 2012. Notice of public listening session,. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. Notice of public listening session. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. Final rule .................... RIN 2126–AB45 ......... Docket No. FMCSA– 2012–0006. Notice and request for information. No RIN. ...................... Docket No. FMCSA– 2012–0309. 77 FR 12231, Feb. 29, 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. Announced public listening session held in Louisville, Kentucky on March 23, 2012. 77 FR 19589, Apr. 2, 2012. Announced public listening session held in Bellevue, Washington on April 26, 2012. 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. 77 FR 74267, Dec. 13, 2012. Notice and request for comments. No RIN. ...................... Docket No. FMCSA– 2012–0309. 78 FR 32001, May 28, 2013. 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. 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. Motor Carrier Safety Advisory Committee Series of Public Subcommittee Meetings. MCSAC: Public Meeting Medical Review Board: Joint Public Meeting With MCSAC. Electronic On-Board Recorders and Hours-ofService Supporting Documents. Electronic On-Board Recorders and Hours-ofService Supporting Documents. Electronic On-Board Recorders and Hours-ofService Supporting Documents. Electronic On-Board Recorders for Hours-ofService Compliance; Removal of Final Rule Vacated by Court. Agency Information Collection Activities; New Information Collection Request: Driver and Carrier Surveys Related to Electronic OnBoard Recorders (EOBRs), and Potential Harassment Deriving From EOBR Use. tkelley on DSK9F6TC42PROD with RULES2 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. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 Synopsis Oct. 24–27, 2011, subcommittee review of the functional specifications for EOBRs published by FMCSA as part of EOBR final rule E:\FR\FM\16DER2.SGM 16DER2 78302 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations TABLE 4—TIMELINE OF REGULATORY AND JUDICIAL ACTIONS SINCE THE 2010 RULE—Continued Title Type of action, RIN Citation, date Synopsis 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. Electronic Logging Devices and Hours of Service Supporting Documents. Evaluating the Potential Safety Benefits of Electronic Hoursof-Service Recorders; Notice of availability of research report. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. NPRM ......................... RIN 2126–AB57 ......... Docket No. FMCSA– 2012–0377. 79 FR 27040, May 12, 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. 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-ofservice (HOS) violation rate than those without EHSRs. Supplemental notice of proposed rulemaking; extension of comment period. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. Notice and Request for Comments. No RIN ....................... Docket No.: FMCSA– 2014–0377. Notice of Availability of Research Report. RIN 2126–AB20 ......... Docket No. FMCSA– 2010–0167. 79 FR 28471, May 16, 2014. 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. Coercion of Commercial Motor Vehicle Drivers; Prohibition. Final Rule ................... RIN 2126–AB57 ......... Docket No. FMCSA– 2012–0377. 80 FR 74695, Nov. 30, 2015. Coercion of Commercial Motor Vehicle Drivers; Prohibition. Electronic Logging Devices and Hours of Service Supporting Documents. Agency Information Collection Activities; New Information Collection Request: Electronic Logging Device Vendor Registration. tkelley on DSK9F6TC42PROD with RULES2 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. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00012 Fmt 4701 79 FR 27265, May 13, 2014. 79 FR 642848, Oct. 28, 2014. 79 FR 67541, Nov. 13, 2014. Sfmt 4700 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. Extended the public comment period for the Agency’s March 28, 2014 SNPRM until June 26, 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. 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. 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. 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. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and 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. tkelley on DSK9F6TC42PROD with RULES2 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 78303 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 tamperresistant, 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. 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. 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 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, PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 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-bycase 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:\FR\FM\16DER2.SGM 16DER2 78304 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and 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, 2012.14 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. 13 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. 14 Transcripts of both sessions are available in the docket for this rulemaking, and the Web casts are archived and available at https:// www.tvworldwide.com/events/dot/120323/ and https://www.tvworldwide.com/events/dot/120426/, respectively (last accessed May 30, 2013). tkelley on DSK9F6TC42PROD with RULES2 operated by drivers who are required to keep RODS, be equipped with ELDs.13 The statute sets out provisions that the regulations must address, including device performance and design standards and certification requirements. In adopting regulations, the Agency must consider how the need for supporting documents might be reduced, to the extent data is captured on an ELD, without diminishing HOS enforcement. The statute also addresses privacy protection and use of data. 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. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 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 ELDlike 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 E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 tkelley on DSK9F6TC42PROD with RULES2 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. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 78305 archived at: https:// www.tvworldwide.com/events/dot/ 120323/ and https:// 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 E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78306 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 owneroperators 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 wideranging 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 14hour 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 onduty 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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 fatiguerelated 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 noncompliance while the Agency’s work with government and industry leaders in launching the North American Fatigue Management Program (https:// E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 tkelley on DSK9F6TC42PROD with RULES2 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 78307 Comments on Option 1: ELDs mandated for all CMV operations subject to 49 CFR part 395. An owneroperator, 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 E:\FR\FM\16DER2.SGM 16DER2 78308 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 workreporting 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. tkelley on DSK9F6TC42PROD with RULES2 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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 E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 30day 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 shorthaul 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 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 78309 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 towbar. 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 driveawaytowaway 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 E:\FR\FM\16DER2.SGM 16DER2 78310 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 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 modelyear 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-ofthe-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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 (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 driveawaytowaway 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 DriveawayTowaway 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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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 costprohibitive. Both PeopleNet and Zonar Systems (Zonar) supported using GPSbased 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 E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 78311 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 E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78312 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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, allelectronic 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. E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 30day 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 30day period to use an ELD. Although VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 FMCSA cannot quantify the costs to carriers, the Agency believes extending the ELD mandate to these drivers would not be cost beneficial.’’ 15 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. 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 15 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. . . .’’ PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 78313 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 owneroperators 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 E:\FR\FM\16DER2.SGM 16DER2 78314 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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. tkelley on DSK9F6TC42PROD with RULES2 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. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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. tkelley on DSK9F6TC42PROD with RULES2 VIII. Discussion of Comments Related to Supporting Documents A. Definition and Number Section 113 of the Hazardous Materials Transportation Authorization Act of 1995 (HMTAA) 16 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 16 Public. Law 103–311, 108 Stat. 1673, 1676–77 (August 26, 1994). VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 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].’’ 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. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 78315 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. E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78316 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 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 compliance at a reasonable cost to carriers. It recommended that two supporting documents be required per driver’s workday—the one nearest the start of the day and the one nearest the end—sufficient to verify the 14-hour rule. ATA noted that, according to a prior FMCSA HOS rulemaking, only a small percentage of drivers operate near the cumulative 60/70 hour duty time limit,17 and that fact does not justify FMCSA’s proposal for motor carriers to retain supporting documents for all mid-shift duty changes. The Truckload Carriers Association (TCA) also suggested that the only other supporting documents that should be retained are the documents closest to the beginning and the end of the driver’s workday. The American Bus Association (ABA) proposed limiting the supporting document requirement to five documents from three categories. FedEx suggested that motor carriers should only be responsible for fuel data plus one other supporting document type, if one exists. Knight Transportation, Inc. (Knight) noted that enforcement generally relies on no more than two to three supporting documents. The American Moving & Storage Association (AMSA) noted that, in the case of household goods drivers, ODND time is likely to be extensive and requested that the required supporting documents be kept to a minimum and simplified to the extent possible. The International Foodservice Distributors Association, the Snack Food Association, and an individual commenter noted that the location and tracking functions in the ELDs should eliminate the need for additional paperwork. They therefore recommended elimination of supporting document requirements. The National Waste & Recycling Association suggested a total exemption from the supporting documents requirement for local routes. FedEx suggested that FMCSA wait to modify the rule on supporting documents until after the ELD rule has been in effect long enough to determine if drivers are falsifying their ODND time on ELDs and if crashes are occurring as a direct result of drivers improperly recording ODND time. 17 Although this fact was attributed to FMCSA, the statement apparently reflected the commenter’s view and not necessarily that of the Agency. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 The Institute of Makers of Explosives (IME) and the National Private Truck Council both asked FMCSA to continue to look at supporting document requirements with an eye to providing more flexibility and considering additional means to reduce the compliance burden on carriers. Other commenters mistakenly believed that FMCSA asserted that the proposed supporting document changes will reduce paperwork. Drivers and carriers will still have to retain certain documents for other business purposes. In terms of the 10-document cap, ATA noted that, because it is rare for any document to reflect all of the required elements, carriers would have to substitute documents containing all required elements except time, which are not subject to the 10-document daily cap. As such, the 10-document cap is a benefit in theory only and provides no actual relief from the HOS supporting documents requirements. 3. FMCSA Response As explained in the 2014 SNPRM, FMCSA made major changes to the proposed supporting documents regulations based upon public comments submitted in response to the NPRM. The Agency disagrees with commenters that suggest that the number of required supporting documents has been increased through the 2014 SNPRM. This final rule does not change the fundamental nature of supporting documents; they are records generated in the normal business rather than documents created specifically to verify the duty status of a driver. Because supporting documents used to verify driving time would no longer be required of carriers that use ELDs, some carriers subject to the ELD mandate would end up having fewer supporting documents than they were required to retain before today’s rule. And whenever possible, FMCSA tried to reduce the costs and complication of retaining supporting documents without compromising the efficiency in ensuring HOS compliance. In today’s rule, the definition of ‘‘supporting document,’’ makes clear that a document can be in ‘‘any medium,’’ consistent with the SNPRM. (The reference to CMV driver in HMTAA is not repeated because a driver’s obligations are addressed in substantive provisions concerning supporting documents.) In addressing the frequency requirement, the Agency tied the cap to a driver’s 24-hour period. While the SNPRM proposed a 10 document cap, FMCSA reduced the supporting document cap to eight documents in today’s rule. This PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 definition, combined with clearer categories, and a reduced number of required documents, will allow drivers and carriers to comply at a reasonable cost. While FMCSA appreciates the desire to eliminate supporting documents or to wait until after widespread ELD use before implementing the requirement, FMCSA does not believe that the ELD eliminates the need for supporting documents. Today’s rule requires the retention of supporting documents generated or received in the normal course of business—an essential resource for both authorized safety officials and motor carriers to verify compliance with the HOS rules. Supporting documents are critical in checking ODND periods. FMCSA acknowledges that motor carriers retain supporting documents for reasons other than verifying compliance with the HOS rules, including complying with the rules of other agencies. Thus, the Agency did not project in the SNPRM or in today’s rule any paperwork savings associated with the supporting documents provisions. In terms of the number of documents employed in on-site enforcement interventions or investigations, the Agency uses all types of supporting documents to evaluate a driver’s RODS. Because of the scope of transportation activities and the range of documents, enforcement authorities cannot effectively evaluate the accuracy of a driver’s RODS based on a maximum of two to three supporting documents per duty day. FMCSA recognizes the number of supporting documents obtained daily may vary based upon the driver’s activities. By establishing a maximum of eight supporting documents this rule promotes safety by ensuring that authorized safety officials have the opportunity to evaluate effectively the driver’s RODS and HOS compliance. Limiting required supporting documents to the start and end of the workday is not adequate for ensuring HOS compliance especially with regard to on-duty, not driving periods. Documents acquired throughout the day are important in the enforcement of the 60/70-hour rule—a crucial part of ensuring HOS compliance. Compliance with the 60/70-hour rule limits is based on how many cumulative hours an individual works over a period of days. Supporting documents are critical in helping to verify the proper duty statuses for an individual in calculating compliance with the 60/70 hour rules. FMCSA notes that, absent sufficient documents reflecting each element, E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations documents lacking time would count in applying the 8-document cap. B. Categories 1. Comments to the 2011 NPRM The NPRM proposed four categories of supporting documents: (1) Payroll, (2) trip-related expense records and receipts, (3) FMS communication logs, and (4) bills of lading or equivalent documents. Some commenters said the four categories represented a significant expansion of the existing requirement. These commenters stated that the four categories were confusing, vague, and unjustifiably burdensome, and instead suggested short, specific lists of documents. FedEx said that a short list of supporting documents, used in the Compliance Review process, would hold all carriers to the same standard. ATA said that a short list might be more effective in getting motor carriers to retain supporting documents. OOIDA cautioned that small-business motor carriers, particularly sole proprietors, might not maintain payroll or expense records, or use an FMS or communications logs. Many commenters agreed with the Agency that EOBRs would make supporting documents related to driving time unnecessary. Other commenters, however, recommended that the Agency continue to require supporting documents for driving time. A driver said that supporting documents reflecting drive time show whether routes conformed to speed limits, or if a driver was speeding to achieve company productivity standards. The American Association for Justice wanted the Agency to continue requiring supporting documents for driving time to guard against EOBR equipment failure, drivers and motor carriers abusing the system, and multiple drivers using one truck. The Association also wanted FMCSA to require motor carriers to notify GPS providers immediately after a crash and to require GPS providers to retain crashrelated data for 6 months. tkelley on DSK9F6TC42PROD with RULES2 2. Comments to the 2014 SNPRM Based on comments received to the NPRM, FMCSA modified the description of the categories of required supporting documents in the SNPRM. For every 24-hour period a driver is on duty, the motor carrier would be required to retain a maximum number of supporting documents from the following five categories: (1) Bills of lading, itineraries, schedules, or equivalent documents that indicate the origin and destination of each trip; (2) VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 dispatch records, trip records, or equivalent documents; (3) expense receipts related to ODND time; (4) electronic mobile communication records reflecting communications transmitted through an FMS for the driver’s 24-hour duty day; and (5) payroll records, settlement sheets, or equivalent documents that indicate what and how a driver was paid. Drivers who continue to use paper RODS would also need to retain toll receipts. The ATA, the IME, and others supported FMCSA’s proposal to relieve motor carriers of the requirement to retain supporting documents to verify on-duty driving time. ATA pointed out that because ELDs are synchronized with the vehicle, they consistently, reliably, and automatically capture vehicle movement, and the potential for underreporting driving time is minimal, if not non-existent. NTSB, however, noted that it has found toll information, such as EZ Pass data and toll receipts, to be some of the most reliable information in verifying HOS compliance. It recommended that FMCSA consider specifically listing toll receipts and electronic toll data in the five categories of required supporting data. As to the requirement that drivers who continue to use paper RODS still need to retain toll receipts, FedEx suggested that FMCSA allow motor carriers to retain either toll receipts or trip dispatch records, so long as those documents are created in the ordinary course of business. 3. FMCSA Response The role of supporting documents is to improve HOS compliance by providing verifiable records to compare with the RODS to ensure the accuracy of the information entered by the driver. Given the broad diversity of motor carrier and CMV operations, the Agency does not believe that a specific list of supporting documents is appropriate for verifying compliance with the HOS regulations. FMCSA intends the five categories of supporting documents to accommodate various sectors of the industry. Although ELDs eliminate the need for supporting documents that reflect driving time, supporting documents are important in reconstructing a driver’s ODND time and other duty statuses—a key element in overall HOS compliance, most notably as it relates to the 14-hour and weekly on-duty limits. FMCSA believes that the five categories proposed in the SNPRM clarified the requirement for supporting documents without compromising the Agency’s enforcement abilities. FMCSA did not PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 78317 change the categories of documents required in today’s rule. FMCSA also believes that the listed categories of supporting documents, combined with the reduced cap of eight documents per duty day, will not result in an unreasonable burden. FMCSA notes that two categories—electronic mobile communications and payroll records—will typically not be documents a driver would have to physically retain, and may be a part of a larger record that the carrier already has to retain electronically or physically at the dispatch location or principal place of business. FMCSA eliminates the requirement to retain supporting documents, such as toll receipts, that verify on-duty driving time for drivers using ELDs. Given that ELDs will adequately track driving time, requiring such documents would be redundant and would not further the purpose of this rule, which is to improve HOS compliance. FMCSA does not create a new requirement that GPS records be preserved after a crash. The Agency currently requires that RODS and supporting documents be retained for 6 months after receipt and this requirement does not change in today’s rule. Crash records are addressed in a separate regulation. FMCSA emphasizes that drivers using paper RODS must also keep toll receipts. These drivers are not required to use ELDs, and, absent an ELD, this documentation of driving time is necessary. Required toll receipts do not count towards the eight-document cap. C. Data Elements 1. Comments to the 2011 NPRM The February 2011 NPRM was based on an assumption that only one supporting document—containing driver name or identification number, date and time, and location—would be needed for the beginning and end of each ODND period within the duty status day. Absent a document containing all four elements, a carrier would have been required to retain sufficient individual documents from specified categories. Commenters suggested that the proposed requirements would demand a significant expansion of their current recordkeeping responsibilities. Commenters also stated that at least some of the proposed data elements are usually missing from documents created or received in the normal course of business. Based on its research, one commenter said that only drug testing control and custody forms, fuel receipts, and roadside inspection reports provide E:\FR\FM\16DER2.SGM 16DER2 78318 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations any of the proposed data elements useful in verifying ODND activity. Because such a supporting document is rare, some commenters stated that motor carriers would be forced to retain multiple documents. 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 many—and a broad range of— documents. Another 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. tkelley on DSK9F6TC42PROD with RULES2 2. Comments to the 2014 SNPRM In the SNPRM, FMCSA modified the data elements that a document must contain to qualify as a supporting document. FMCSA agreed with ATA and other commenters that relying on a single document is generally unrealistic. Further, the SNPRM prescribed how the necessary elements related to the document retention cap. The proposed data elements were: (1) 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; (2) date; (3) location (including name of nearest city, town, or village); and (4) time. If sufficient documents containing these four data elements were not available, a motor carrier would be required to retain supporting documents that contain the driver name or motor carrier-assigned identification number, date, and location. Schneider requested clarification about whether a document that does not contain the four data elements would meet the definition of a supporting document and need to be retained. Schneider noted that the only documents that have all four data elements are expense receipts, like fueling, drug and alcohol chain-ofcustody forms, and accident reports. Schneider also noted that bills of lading, dispatch records, and pay records do not contain a start time or end time and, in some cases, location information. As such, those documents do not verify a driver’s duty record. 3. FMCSA Response FMCSA understands Schneider’s comment that some categories of document may not contain some of the data elements. We believe, however, that the driver identifier, date, and location are crucial elements in HOS compliance. If a motor carrier has fewer VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 than eight documents containing all four data elements, a document would qualify as a supporting document if it contains each data element, except time. Under this scenario, a document lacking time would nonetheless count in applying the 8-document cap. D. Supporting Document Exemption for Self-Compliance System 1. Comments to the 2011 NPRM The NPRM included a provision to authorize, on a case-by-case basis, motor carrier self-compliance systems, as required by section 113(b)(4) of HMTAA. The statute requires FMCSA to provide exemptions for motor carriers to use qualifying ‘‘self-compliance systems’’ instead of retaining supporting documents. FMCSA proposed using the procedures already in 49 CFR part 381, subpart C, Exemptions, to consider requests for exemption from the retention and maintenance requirements for supporting documents. In the NPRM, the Agency asked commenters to describe their current self-compliance systems or the systems they might anticipate developing. Klapec and Werner said they had selfcompliance systems. One provided some details on its auditing procedures. Several commenters were concerned that the number of companies seeking exemptions for self-compliance systems could severely test the Agency’s ability to respond. The Truck Safety Coalition and Advocates recommended rulemaking to provide minimum requirements for self-compliance systems. Advocates also wanted an explanation of how parts 381 and 395 would interact. A motor carrier recommended an expedited system for approval of a carrier’s self-compliance exemption. Although ATA believed that using the part 381 process made sense, it was skeptical that FMCSA intends to consider such applications seriously. 2. Comments to the 2014 SNPRM The SNPRM re-proposed the same self-compliance system proposed in the NPRM. ATA and the Ohio Trucking Association (OTA) commented on the self-compliance systems proposal. ATA stated that it supports the proposed selfcompliance system process and appreciates the non-prescriptive approach and flexibility it provides. However, the OTA stated that FMCSA should develop and write requirements for the self-compliance system process with comments from the public and the industry rather than forcing each individual carrier to develop its own proposal. OTA stated that with no guidance, motor carriers will be in the PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 position of guessing what FMCSA might find acceptable and going through a long and often costly process of responding to FMCSA questions and public comment. 3. FMCSA Response In today’s rule, the Agency retains the self-compliance option as it appeared in the NPRM and SNPRM. In 49 CFR 395.11(h), FMCSA authorizes, on a caseby-case basis, motor carrier selfcompliance systems. A motor carrier may apply for an exemption under existing part 381 provisions for additional relief from the requirements for retaining supporting documents. Because part 381 rules and procedures were developed in response to Congressional direction contained in section 4007 of the Transportation Equity Act for the 21st Century 18 and already contain detailed requirements concerning the application and review processes for exemptions,19 the Agency does not create a separate process for exemptions related to part 395 regulations. In response to commenters who asked if this would test FMCSA’s resources, FMCSA is confident that the Agency would be able to comply with the requirements of HMTAA. Given the diversity of the industry, FMCSA continues to believe that a nonprescriptive, flexible standard to achieve compliance is appropriate, and does not establish minimum standards for a self-compliance system. E. Supporting Document Management 1. Comments to the 2011 NPRM FMCSA’s NPRM proposal would require motor carriers and CMV drivers to share responsibility for complying with the proposed supporting document requirements. The NPRM proposed that drivers submit supporting documents to a motor carrier within 3 days or, in the case of electronic records, within a single day. A motor carrier would be required to maintain an HOS management system to detect violations of the HOS rules. The motor carrier would be required to retain supporting documents for its drivers for a period of 6 months. A commenter objected to any requirement that a motor carrier collect from the CMV driver documents of a personal nature generated during the course of business to be used as supporting documents. The commenter also objected to any obligation on the driver or the motor carrier ‘‘to alter, annotate or assemble documents from 18 Public Law 105–178, 112 Stat. 107 (June 9, 1998). 19 See 63 FR 67608, December 8, 1998. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 the form in which they are generated in the normal course of business.’’ OOIDA noted that small carriers may not keep certain records that would qualify as supporting documents. OOIDA asked FMCSA to clarify the requirements, including whether drivers or motor carriers would be required ‘‘to note the missing information on these documents.’’ 2. Comments to the 2014 SNPRM Like the NPRM, the SNPRM would require motor carriers and CMV drivers to share responsibility for complying with the proposed supporting document requirements. However, based on comments to the NPRM, the supporting document provisions were changed. The proposed HOS management system was among the provisions eliminated in the SNPRM. The definition and requirements governing ‘‘supporting document’’ were clarified. FMCSA extended the proposed time in which a driver would be required to submit his or her supporting documents to the employing carrier to 8 days, consistent with the proposed submission period for RODS. Proposed § 395.11(e) required a motor carrier to retain supporting documents in a way that allows them to be ‘‘effectively matched’’ to the corresponding driver’s RODS. However, a motor carrier would still need to retain supporting documents received in the course of business for 6 months. ATA opposed the requirement that carriers retain supporting documents in a way that allows them to be effectively matched to the corresponding driver’s RODS. Although ATA believed it was reasonable to expect that carriers not deliberately make matching difficult or frustrate investigators, it noted that ‘‘to require that carriers go beyond ‘retaining’ records (keeping them in the manner in which they receive them) to ‘maintaining’ them (by ensuring that they can be easily matched by an investigator) goes a step too far.’’ ATA stated that responsible motor carriers should not have to manipulate the manner in which a supporting document is retained or be held accountable for not facilitating such matching if there is no evidence of HOS violations. ATA also noted that the requirement that drivers submit supporting documents to their employing carriers within 8 days creates an imbalance with the existing regulation that requires drivers who keep paper logs to submit those logs and supporting documentation to their employing carriers within 13 days. ATA suggested that all drivers should be required to submit supporting documents within 13 days of receipt. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 FedEx asked that FMCSA clarify whether a carrier would be out of compliance with the regulation if it had no supporting documents kept in the carrier’s ordinary course of business that fit the description of a supporting document under the rule. FedEx also suggested that FMCSA clarify what it means for a supporting document to be ‘‘effectively matched’’ to the corresponding driver’s HOS records. CVSA recommended that FMCSA require CMV drivers to keep the proposed supporting documents for the current and past 7 days with them in the vehicle, so that roadside inspectors could have access to the documents to verify location, time, and date of all driver duty status entries. 3. FMCSA Response In today’s rule, FMCSA expanded the deadline for drivers to submit supporting documents to the motor carrier from 8 days to 13 days, consistent with the current period for submission of RODS. While FMCSA does not require that drivers retain supporting documents in the CMV for a prescribed period, it does require that a driver make any supporting document in the vehicle available to an authorized safety official if requested during roadside inspections. FMCSA believes this approach achieves a reasonable and workable balance between the needs of enhanced enforcement during roadside inspections and not requiring that motor carriers modify their current document management practices. FMCSA notes that a motor carrier is not required to create supporting documents not otherwise generated or received in the normal course of business or to annotate such documents in any manner. But a motor carrier or driver may not obscure, deface, destroy, mutilate, or alter existing information found on a supporting document. Today’s rule does not require establishment of a new record management system specifically for supporting documents. However, the rule retains the requirement that supporting documents be retained in a manner that allows them to be effectively matched to the driver’s RODS. This is a long-existing requirement, well documented in the Agency’s administrative decisions. The purpose is to enable a motor carrier, as well as authorized safety officials, to verify a driver’s RODS. (See e.g., In the Matter of Bridgeways, Inc., Docket No. FMCSA–2001–9803–0009 (Final Order June 1, 2004)).20 Agency decisions make clear that a motor carrier cannot take 20 Available PO 00000 at https://www.regulations.gov. Frm 00029 Fmt 4701 Sfmt 4700 78319 supporting documents that permit identification of a driver, but then store them in a manner or sanitize them so the ability to link individual documents to the driver is lost. See Darrell Andrews Trucking, Inc. Docket No. FMCSA– 2001–8686–21 (Final Order Under 49 CFR 385.15, January 19, 2001), aff’d in part, vacated in part, Darrell Andrews Trucking, Inc. v. Fed. Motor Carrier Safety Admin., 296 F.3d 1120 (D.C. Cir. 2002), remanded to Docket No. FMCSA–2001–8686–26 (Final Order on Remand, Mar. 14, 2003); see also In the Matter of A.D. Transport Express, Inc., Docket No. FMCSA–2002–11540–1 (Final Order Under 49 CFR 385.15, May 22, 2000), aff’d, A.D. Transport Express, Inc. v. Fed. Motor Carrier Safety Admin., 290 F.3d 761 (6th Cir. 2002). F. Requirements When ELDs Malfunction and Requests for Clarification Regarding State Laws 1. Comments to the 2014 SNPRM Greyhound Lines, Inc. (Greyhound) and Schneider National, Inc., asked for clarification on various parts of the proposed rule. Greyhound asked FMCSA to make it clear that States may not impose supporting document standards that are more specific than, or different from, the Federal standard. Schneider requested clarification on whether toll receipts would be expected for days where a driver is completing a paper ROD due to an ELD malfunction. Schneider noted that, given the size of its fleet, it will experience regular device malfunctions, and it will consequently have to keep all toll receipts for all drivers to ensure it is in compliance on those days where malfunctions occur. 2. FMCSA Response State laws or regulations addressing supporting documents are not necessarily preempted by Federal law. The FMCSRs are ‘‘not intended to preclude States or subdivisions . . . from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with [the FMCSRs] by the person subject thereto.’’ 49 CFR 390.9. However, as a condition of Federal funding under the MCSAP, a State must have rules in place compatible to Federal regulations adopted under the 1984 Act, subject to certain exceptions. See parts 350 and 355 of 49 CFR. Subject to permissible variances, a State law or regulation found by the Secretary of Transportation to be less stringent than its Federal counterpart cannot be enforced; a State law or regulation more stringent than its E:\FR\FM\16DER2.SGM 16DER2 78320 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Federal counterpart may be enforced unless the Secretary decides the State law or regulation has no safety benefit, is incompatible with the Federal regulation, or would cause an unreasonable burden on interstate commerce. 49 U.S.C. 31141(c). A motor carrier such as Greyhound that believes a State law or regulation is incompatible with the FMCSRs may petition FMCSA for review of the matter and the State’s eligibility of MCSAP funding. 49 CFR 350.335(d). Therefore, the Agency does not address the preemption of State supporting document requirements in this rulemaking. Today’s rule requires a motor carrier to retain toll receipts for a driver who keeps paper RODS in lieu of using an ELD. However, the Agency does not expect a carrier to modify its supporting document retention policy whenever a driver who regularly uses an ELD needs to complete paper RODS for a brief period due to an ELD malfunction. IX. Discussion of Comments Related to Harassment A. Background and 2011 NPRM tkelley on DSK9F6TC42PROD with RULES2 1. Background In enacting the Truck and Bus Safety and Regulatory Reform Act of 1988, Congress required that regulations addressing onboard monitoring devices on CMVs ensure that the devices not be used to harass CMV drivers. However, the devices may be used to monitor productivity.21 In its challenge to the April 2010 EOBR rule in the U.S. Court of Appeals for the Seventh Circuit, OOIDA raised several issues, including the Agency’s failure to ensure that electronic recorders not be used to harass CMV drivers. While the Seventh Circuit litigation was pending, FMCSA published the February 2011 NPRM. By notice published on March 10, 2011 (76 FR 13121), the Agency extended the public comment period for the 2011 NPRM to May 23, 2011. 2011 Notice and Request for Additional Public Comment The Agency believed that it appropriately addressed the issue of harassment in accordance with the statute, both in the April 2010 rule that was the subject of litigation and the subsequent February 2011 NPRM, focusing on harassment in the context of drivers’ privacy concerns. However, in reaction to the litigation and to public comments in response to the NPRM, on 21 Public Law 100–690, Title IX, Subtitle B, sec. 9104(b), 102 Stat. 4527, 4529 (November 18, 1988). This provision was subsequently revised and codified at 49 U.S.C. 31137(a) by Public Law 103– 272, 108 Stat. 745, 1004 (July 5, 1994). VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 April 13, 2011, the Agency published a notice requesting additional comments on harassment (76 FR 20611). FMCSA wanted to ensure that interested parties had a full opportunity to address this issue. The notice explicitly requested information about driver experiences with harassment. The notice asked if the same activities considered harassing might also be considered monitoring for productivity. It questioned if these same activities might be barred by other existing provisions, and if additional regulations were needed. The notice also asked about the role that electronic recorders might play in the ability of carriers, shippers, and others to pressure drivers to violate HOS regulations. Seventh Circuit Decision On August 26, 2011, the court vacated the April 2010 rule (Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011)). The court held that, contrary to the statutory requirement, the Agency failed to address the issue of driver harassment, namely, how the Agency would distinguish between harassment and productivity, how harassment occurs, and how harassment would be prevented. On May14, 2012, following the court’s decision, FMCSA issued a rule that removed the vacated language from 49 CFR (77 FR 28448). Motor carriers relying on electronic devices to monitor HOS compliance are currently governed by the rules addressing the use of AOBRDs in effect immediately before the court’s ruling (49 CFR 395.15). These provisions were not affected by the Seventh Circuit’s decision. Public Listening Sessions FMCSA conducted two public listening sessions to better understand drivers’ concerns about harassment. The first was in Louisville, Kentucky, on March 23, 2012, at the Mid-America Truck Show. The second was in Bellevue, Washington, on April 26, 2012, at the CVSA Workshop. FMCSA heard from commenters, both those in attendance and those participating through the Internet, who offered varied opinions on the implementation and use of electronic recorders. Commenters at the Louisville session included drivers, representatives of motor carriers, owneroperators, and representatives of OOIDA. At the Bellevue session, FMCSA specifically sought the input of State MCSAP agencies because of their role in enforcing the HOS rules and familiarity with electronic recording devices and other technical issues. Additional participants in the Bellevue public listening session included PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 drivers, representatives of motor carriers and other business entities, representatives of the motor carrier industry organizations, authorized safety officials, and other State agency representatives. Transcripts of both sessions are available in the docket for this rulemaking. Web casts are archived at: https://www.tvworldwide.com/events/ dot/120323/ and https:// www.tvworldwide.com/events/dot/ 120426/, respectively.22 MAP–21 In July 2012, Congress enacted MAP– 21, mandating that the Agency adopt regulations requiring that certain CMVs be equipped with ELDs.23 As part of this legislation, Congress defined ‘‘electronic logging device’’ and required that regulations ‘‘ensur[e] that an electronic logging device is not used to harass a vehicle operator.’’ 49 U.S.C. 31137(a)(2) and (f)(1). The legislation eliminated the prior reference to ‘‘productivity.’’ 2. Comments to the 2011 NPRM Given the intervening events between issuance of the NPRM and the SNPRM, including the Seventh Circuit decision and enactment of MAP–21, and the fact that the SNPRM regulatory text superseded the text included in the NPRM, FMCSA’s comment analysis focuses on comments submitted to the SNPRM. B. General 1. Comments to the 2014 SNPRM In accordance with the MAP–21 mandate, the 2014 SNPRM addressed harassment, in part, through the new technical specifications. Among the technical specifications intended to address harassment, the Agency included a mute function available during sleeper berth periods, edit rights, and requirements addressing transparency and driver control over editing. The complaints of drivers focused mainly on pressures from motor carriers. Based on their concerns, the Agency also proposed procedural provisions aimed at protecting CMV drivers from actions resulting from information generated by ELDs, since not every type of complaint suggested a technical solution. Several commenters stated that the SNPRM provisions adequately addressed the issue of driver 22 In addition to the formal comment process and listening sessions, FMCSA also conducted a survey of drivers and motor carriers to better understand perceptions on the harassment issue, See Section XII. L of this preamble. 23 Public Law 112–141, sec. 32301(b), 126 Stat. 405, 786–788 (July 6, 2012) (amending 49 U.S.C. 31137). E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations harassment. Advocates wrote that the SNPRM fulfilled the Agency’s obligation following the decision of the U.S. Court of Appeals. Continental stated that the SNPRM has adequately addressed the issues of data privacy. The National Shippers Strategic Transportation Council supported FMCSA’s approach. Some commenters wrote that ELDs actually improved the relationship between drivers and dispatchers and decreased tension. Commenters pointed out that ELDs provide transparency, ensure that both drivers and motor carriers have the same information, and keep a record of interactions. OOIDA, however, commented that Congress told the Secretary to ensure that ELDs are not used to harass and that OOIDA believes the SNPRM fell far short of implementing this mandate. In its comments to the NPRM, which are incorporated by reference into OOIDA’s comments to the SNPRM, OOIDA suggested specific proposals to address driver harassment.24 OOIDA also criticized the Agency for addressing the issue of coercion and harassment in separate rulemakings and addressing only harassment related to ELDs required under today’s rule. Some commenters believed ELDs are not intended to improve safety, but only serve as a management tool to track drivers. Some commenters reported the use of FMSs to direct drivers to do unsafe or even illegal things. Other commenters complained that neither FMCSA nor the ELD could prevent harassment by motor carriers. Many drivers complained that the ELD would limit their flexibility, and cause them to drive while tired or stressed. tkelley on DSK9F6TC42PROD with RULES2 2. FMCSA Response FMCSA believes today’s rule appropriately implements MAP–21’s mandate requiring certain CMV drivers to use ELDs while addressing the concerns expressed about the potential for harassment resulting from ELD use. The rule adopts a clear prohibition against driver harassment, subject to a civil penalty in addition to the penalty 24 OOIDA suggested the following specific proposals to address driver harassment: (1) Establish guidelines for the appropriate use of EOBRs to improve productivity; (2) promulgate a regulation to make it unlawful for motor carriers to use EOBRs to harass drivers; (3) establish procedures for drivers to complain about harassment and create a unit in FMCSA to review and act on complaints; (4) promulgate a regulation protecting drivers who complain about harassment from retaliation; (5) make harassment a factor considered in compliance reviews; (6) permit drivers to participate in compliance reviews involving harassment; and (7) provide for driver compensation for time spent under out-of-service orders where harassment is implicated in the violation. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 for the underlying violation. ELD technologies, including related technologies often employed in FMS, do not necessarily result in driver harassment; nor do they preclude actions that drivers might view as harassing. However, the Agency believes that, on balance, the use of ELDs will protect drivers from pressures to violate the HOS rules by ensuring a better record of drivers’ time. As the court noted in the litigation on the 2010 EOBR rule, the term ‘‘harass’’ is not defined by statute and requires amplification. 656 F.3d at 588. In order to better understand the nature and context of drivers’ harassment concerns, the Agency undertook extensive outreach. The provisions proposed in the SNPRM, and reflected in today’s rule, are largely reflective of this outreach. Today’s rule includes the definition of ‘‘harassment’’ proposed in the SNPRM, that is, ‘‘. . . an action by a motor carrier toward a driver employed by the motor carrier (including an independent contractor while in the course of operating a [CMV] on behalf of the motor carrier) involving the use of information available to the motor carrier through an ELD . . . or through other technology used in combination with and not separable from the ELD, that the motor carrier knew, or should have known, would result in the driver violating § 392.3 or part 395 [of 49 CFR].’’ FMCSA acknowledges that harassment and coercion may often appear related. However, it is important to recognize that the statutory basis for each requirement differs. While the harassment provision is linked specifically to ELDs as defined in MAP– 21, Congress required that the Agency, in adopting regulations under the 1984 Act, prohibit motor carriers, shippers, receivers, and transportation intermediaries from coercing CMV drivers in violation of specified regulatory provisions. See FMCSA’s rule on coercion, published November 30, 2015 (80 FR 74695). The Agency notes, however, that § 395.30(e) of today’s rule does prohibit a motor carrier from coercing (as that term is defined in 80 FR 74695) a driver to falsely certify the driver’s data entries or RODS. The Agency encourages any driver who feels that she or he was the subject of harassment to consider the potential application of the harassment provisions adopted today, as well as FMCSA’s coercion rule and the remedies available through the Department of Labor, in determining which approach to pursue in light of the specific facts. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 78321 The Agency included some of OOIDA’s specific proposals to address harassment in today’s rule, such as making it unlawful for carriers to use ELDs to harass drivers and establishing procedures for drivers to submit harassment complaints directly to FMCSA. Some of its suggestions went beyond FMCSA’s authority, such as the suggestion that we provide for driver compensation for time spent under outof-service orders in cases where harassment is implicated in the violation. With regard to the suggestion that we promulgate a regulation protecting drivers who complain about harassment from retaliation, we note that such protections already exist under current law. Retaliation protections available to CMV drivers are set forth in 49 U.S.C. 31105, which is administered by the Department of Labor. The Agency declines to link harassment violations to the safety rating process, consistent with the Agency’s approach in the coercion rulemaking (80 FR 74695, November 30, 2015). We therefore also decline to adopt OOIDA’s suggestion that drivers be permitted to participate in compliance reviews involving harassment. FMCSA believes that harassment complaints can be effectively addressed through the complaint process established through today’s rule and through the civil penalty structure. C. Privacy; Ownership and Use of ELD Data 1. Comments to the 2014 SNPRM In development of the proposed technical performance requirements, the Agency took into account drivers’ privacy interests in the collection and maintenance of data. For example, the proposed requirements included industry standards affecting the handling of data and access requirements, ensuring only authenticated individuals could access an ELD system. These provisions are part of today’s rule. Several commenters expressed concern about how the data collected from ELDs will be used. For example, questions were posed about who owns the data recorded by an ELD, who will see that data, and whether that data will be retained. Commenters also raised concerns about the use of data in private civil litigation. One commenter asked what would preclude law enforcement from using data gleaned from ELDs to charge truck drivers with other violations such as speeding, illegal parking, and driving on restricted routes. Another commenter stated that E:\FR\FM\16DER2.SGM 16DER2 78322 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations FMCSA must ensure that data collected for HOS enforcement purposes will not be provided to other government agencies for other purposes. 2. FMCSA Response An ELD record reflecting a driver’s RODS is the driver’s record. However, under the FMCSRs, motor carriers are responsible for maintenance of these records for a 6-month period. Thus, drivers and carriers share responsibility for the record’s integrity. FMCSA does not presently plan to retain any data captured by an ELD absent documentation of violations during investigations. In addition to other statutory privacy protections, MAP–21 limits the way FMCSA may use ELD data and requires that enforcement personnel use information collected from ELDs only to determine HOS compliance. See 49 U.S.C. 31137 (e)(1) and (3).25 U.S. Department of Transportation regulations govern the release of private information, including requests for purposes of civil litigation. 49 CFR parts 7 and 9. Today’s rule includes industry standards for protecting electronic data; it also regulates access to such data and requires motor carriers to protect drivers’ personal data in a manner consistent with sound business practices. However, FMCSA has limited authority to ensure total protection of information in the custody of third parties. MAP–21 also requires that the Agency institute appropriate measures to preserve the confidentiality of personal data recorded by an ELD that is disclosed in the course of an FMCSR enforcement proceeding (49 U.S.C. 31137(e)(2)). To protect data of a personal nature unrelated to business operations, the Agency would redact such information included as part of the administrative record before a document was made available in the public docket. Finally, the Agency notes that Federal law addresses the protection of individual’s personally identifiable information maintained by Federal agencies. See the Privacy Impact Assessment for today’s rule available in the rulemaking docket. tkelley on DSK9F6TC42PROD with RULES2 D. Tracking of Vehicle Location; Real Time Transmission of Data 1. Comments to the 2014 SNPRM Location recording is a critical component of HOS enforcement. The SNPRM addressed drivers’ concerns 25 These measures will be included in the ELD implementation and training protocol currently under development within FMCSA. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 about the level of data collected for HOS enforcement. FMCSA did not propose a requirement for real-time tracking of CMVs or the recording of precise location information. Instead, location data available to authorized safety officials would be recorded at specified intervals; that is, when the driver changes duty status, 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. During on-duty driving periods, FMCSA proposed to limit the location accuracy for HOS enforcement to approximately a 1-mile radius. When a driver operates a CMV for personal use, the position reporting accuracy would be further reduced to an approximate 10-mile radius. The SNPRM did not propose that the ELD record and transmit any CMV location data either to the motor carrier or to authorized safety officials in real time. ATA stated that the proposed precision requirements for monitoring vehicle location are quite reasonable. ATA believed that these requirements should stave off any concern by drivers that records available to law enforcement during roadside inspections will present an intrusion on their privacy, especially since this limited level of location monitoring will prevent law enforcement from knowing the exact location a driver has visited. ATA wrote that respecting this confidentiality may be important in some circumstances, such as when a driver visits a medical specialist. Provided that law enforcement can still reasonably verify HOS compliance, the needs of both parties will be met. Other commenters, however, asked who would have access to the tracking data. These commenters believed that the tracking was a form of harassment in that it would allow carriers to harass the driver about his or her performance. Other commenters viewed tracking as an invasion of privacy in violation of their constitutional rights. The NPGA stated that technologies similar to ELDs have previously been under consideration by the Pipeline and Hazardous Materials Safety Administration as one type of technology that can be used in HM transportation security. In comments submitted to an advance notice of proposed rulemaking concerning the need for enhanced security requirements for the motor carrier transportation of HM, put out by the Research and Special Programs Administration and FMCSA (67 FR 46622, July 16, 2002), NPGA opposed location-tracking systems as a requirement for HM security. Its PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 concerns focused on ease of access to data on CMVs carrying propane and the harm it could cause if the vehicle fell into the wrong hands. Specifically, anyone who wished to cause harm through a coordinated attack could hack the system to learn the whereabouts of any transport vehicle that is loaded with propane. NPGA commented that an outright requirement to install an ELD on these vehicles, particularly for a motor carrier with no demonstrated violations, not only fails to improve safety, but lessens the security of the transport of the fuel. Knight stated that carriers must be allowed to track vehicle position of the CMVs they own to a proximity closer than 10 miles, even when in personal conveyance. Though the driver may be using the vehicle for personal use, the fleet still has an interest in and responsibility for the vehicle. The commenter wrote that nothing within the rule should impair the ability of the owner of a CMV to track its location, which should not be considered ‘‘harassment.’’ ATA believed the needs of carriers to monitor CMV location outweigh the impact on driver privacy. The commenter stated that in the interests of safety, security, and efficiency, motor carriers must be able to monitor their equipment and cargoes. PeopleNet sought confirmation that GPS precision is only to be limited in the ELD application and that other enterprise solution applications will not be required to reduce GPS accuracy in efforts to support optimization processes and IFTA requirements. Eclipse Software Systems asked for a clarification providing that the system will be allowed to store data in greater position for fleet records (such as highly accurate fuel tax reporting), but that when that data is divulged to law enforcement it will be rounded or truncated to the number of decimal places specified in section 4.3.1.6. The commenter noted that current FMSs store data in far greater detail (often four or more decimal points) for legitimate business purposes. 2. FMCSA Response FMCSA acknowledges the concern about dispatchers and motor carriers using real-time data in order to require drivers to fully utilize their driving time to the allowed limits. However, FMCSA has not proposed, nor does it include in today’s rule, any requirement for ELDs to track CMV drivers in real time. As long as a motor carrier is not compelling a driver to drive while ill or fatigued in violation of § 392.3 or in violation of the HOS limits of part 395, there is no E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations turn off, or turn down the volume, or the device must do so automatically. This requirement would only apply to FMSs or other technology that includes an ELD function and that includes a communications function. Given drivers’ concerns about interrupted rest periods, this is the single area in which the Agency believed it necessary to address an issue that extends beyond the provisions of a minimally-compliant ELD. However, this protection does not apply if a team driver is logged onto the ELD as on-duty, driving. Numerous commenters complained of repeated contact by dispatchers, even during breaks and sleeper-berth time. One commenter wrote that the mute function should be the decision of the driver rather than automatic. She stated that not all companies abuse their drivers as the enforced automatic mute implies. The IME stated that it did not oppose ELD features that allow a driver to mute, reduce volume, or turn off a device during sleeper berth status. Eclipse Software Systems stated that the audible alarm required by section 4.1.5 of the appendix is very important and should not be muted if the vehicle is moving. Eclipse recommended that the rule be amended to say the mute function does not apply when the engine is running and the vehicle is in motion. E. Mute Function tkelley on DSK9F6TC42PROD with RULES2 violation of the FMCSRs. Authorized safety officials will not have access to information during roadside inspections except the data required by today’s final rule that is related to HOS compliance. The SNPRM proposed limitations concerning the ELD data in order to protect drivers from motor carrier harassment, all of which are reflected in today’s rule. The Agency believes that the enhanced security controls and provisions protecting drivers from inappropriate pressures to violate the HOS rules will address many of the concerns raised by drivers concerning ELDs. Although ELDs might be viewed primarily as tools for HOS recordkeeping, the data certainly can be used by motor carriers to document their operations more accurately than they could by using paper RODS. Further, for systems that include both ELD functionality and real-time tracking and communications capabilities, the device may capture what is transpiring between a driver and a motor carrier or dispatcher. Although this technology is not required under today’s rule, such technology also protects drivers from inappropriate pressures to violate the HOS rules. Today’s rule limits the data that may be transferred from an ELD to authorized safety officials. FMCSA, however, did not propose, nor does it include in today’s rule, any limitation on a motor carrier’s use of technology to track its CMVs at a more precise level than that shared with authorized safety officials, including tracking of CMVs in real time for the purposes of the motor carrier’s business. A motor carrier is free to use such data as long as it does not engage in harassment or otherwise violate the FMCSRs. See 49 CFR 390.17. Given the limited requirements in terms of required location tracking, FMCSA does not agree that the risks suggested by the NPGA outweigh the benefits of ELDs. Some commenters viewed tracking of vehicles as an invasion of privacy. While a legal basis for their position was not always stated, some of these commenters focused on their Fourth Amendment rights. FMCSA addresses this position under Section XII, M, Legal Issues—Constitutional Rights: Fourth and Fifth Amendments, of this preamble. The SNPRM provided that a driver has a right to access the driver’s ELD data during the period a carrier must keep these records. During the period that the data is accessible through the ELD, a driver must have a right to the records without requesting access from the motor carrier. 1. Comments to the 2014 SNPRM To protect a driver from disrupting communications during rest periods, the SNPRM proposed that, if a driver indicates a sleeper-berth status, an ELD must allow the driver to either mute, VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 2. FMCSA Response The complaint from drivers about being contacted during sleeper berth time was a common one and FMCSA responds to that concern by requiring in section 4.7.1 of the technical specifications of today’s rule, that the mute function either be engaged automatically when the driver enters sleeper berth status or that it allows the driver to manually select that function. (However, this function would not be available if a co-driver was logged in as on-duty, driving.) In the event the CMV started moving, the ELD would default to on-duty, driving status, thereby overriding the mute function. FMCSA believes this addition of a mute function is important to allow drivers to obtain adequate rest during sleeper berth or offduty periods. F. Drivers’ Access to Own Records 1. Comments to the 2014 SNPRM PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 78323 The IME agreed that drivers should have access to their ELD data, including options for a motor carrier to provide the data to drivers upon request. The IBT also supported giving drivers the ability to obtain copies of their own ELD records available on or through an ELD. IBT believed that it is critical that drivers or driver representatives have, upon request, immediate access to, and copies of driver ELD records for the 6 months that the motor carrier is required to retain the records. XRS, Verigo, and Zonar noted that obtaining the logs from the ELD will limit drivers’ access to 7 days. Commenters wrote that drivers require records for numerous reasons, including comparing logs to settlement records, providing records required for tax purposes, providing evidence in loss prevention claims, and qualification for safety awards. It may be necessary for a driver to have access to more than 12 months of records. Commenters believed that access to driver’s records is best achieved as a function of the carriers’ support system most carriers already have in place rather than as a function of the ELD. XRS asked whether there could be an alternative method, such as a Web-based login, to retrieve the required information. It recommended that, when a driver leaves a carrier, the RODS be supplied on a jump drive in a PDF format to keep costs at a minimum and not cause a security risk by giving access to individuals who no longer have a relationship with the carrier. The commenter questioned what amount of data may be requested by drivers if they have been employed by the carrier for at least 6 months. Extracting 6 months of data through the ELD would be costly. Verigo stated that the electronic or printout format of the driver’s records must be compliant with section 4.8.2.1, which is the comma separated values (CSV) file output format for peer-to-peer record exchange. The format will be of no value to the driver. The commenter believed that records retrievable by the driver should be a PDF copy of the standard paper format in use today because graph-grid logs can be read, understood, printed, distributed, and checked with ease by the driver without a requirement to provide a utility function for the driver to display the data. The commenter recommended the requirement to access records from ELDs connected to backend servers be eliminated and that records be retrieved from support systems connected to the ELD. E:\FR\FM\16DER2.SGM 16DER2 78324 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 2. FMCSA Response FMCSA acknowledges that a driver’s ability to access his or her records through an ELD without requesting them from the carrier will vary depending on the ELD system employed. In some cases, immediate access is limited to the 7 previous days. Thus, we did not prescribe an exact time during which a driver could independently access the records. If the driver cannot independently access the records, the motor carrier must provide a means of access on request. However, the right of access is limited to a 6month period, consistent with the time period during which a motor carrier must retain drivers’ RODS. The SNPRM proposed a single data format that applies to all the data elements and the file format. This is adopted in today’s rule. The ELD data file output will not vary dependent on the ELD used. The data output is a comma delimited file that can be easily imported into Microsoft Excel, Word, notepad, or other common tools that a driver may access. A driver will also be able to access her or his ELD records through either the screen display or a printout, depending on the design of the ELD. tkelley on DSK9F6TC42PROD with RULES2 G. Drivers’ Control Over RODS 1. Comments to the 2014 SNPRM Recognizing that ELD data reflect a driver’s data, the proposal required that any edits made by a motor carrier would require the driver’s approval. FMCSA’s proposal was intended to protect the integrity of a driver’s records and prevent harassment attributable to unilateral changes by motor carriers. In the SNPRM, FMCSA used the word ‘‘edit’’ to mean a change to an ELD record that does not overwrite the original record. A driver may edit and the motor carrier may request edits to electronic RODS. Drivers have a full range of edit abilities and rights over their own records (except as limited by the rule), while a carrier may propose edits for a driver’s approval or rejection. All edits, whether made by a driver or the motor carrier, need to be annotated to document the reason for the change. Saucon Technologies asked about drivers editing their logs using a support system other than the recording device: Specifically, what drivers are permitted to change versus what safety administrators are allowed to change. The commenter wrote that the safety administrator should be advised when drivers make corrections to their logs and have the opportunity to approve the change. XRS stated that FMCSA needs to allow a process for the driver to VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 accept edits and certify the logs on the ELD prior to transfer to enforcement to be consistent with § 395.30. A number of commenters, including the Alliance for Driver Safety & Security, Knight, and J.B. Hunt, stated that employers should not be held responsible if a driver makes a false or inaccurate entry onto an ELD and refuses to change the entry when the employer requests it be done. Knight asked whether a carrier can force a driver to make an edit when it is clear the driver failed to log something properly. Knight wrote that, though the carrier is attempting to get the driver to comply with the rules, the driver may be able circumvent compliance and make a false allegation that the carrier is ‘‘coercing’’ him or her. Knight believed that FMCSA ought to allow carriers to make edits and allow the driver to either approve or not approve them when made by the carrier. Knight commented that the rule should clearly allow drivers to edit their ELD records at any time before, during, or after having confirmed a record. Knight wrote that FMCSA should allow drivers to flag personal conveyance or yard moves segments even after they occur. Knight believed the most common error made with ELDs is that drivers forget to change duty status. Therefore, FMCSA should allow drivers to make duty status change designations as edits at any time. Such an allowance will better serve drivers and alleviate concerns about an ELD intruding upon an individual’s privacy. TCA wrote that employers should be allowed to make minor edits to correct driver ELD records, limited to instances that do not pertain to compliance with driving or on-duty time. ATA stated that the proposed rule on edits will complicate compliance and enforcement, and could raise the potential for fraud. ATA identified several problems it perceived as the result of requiring driver acceptance of edits. The commenter wrote that FMCSA must consider what an employer should do if a driver refuses to accept the changes. Similarly, ATA asked what happens if the erroneous record is identified during an internal review weeks or months after the fact and the driver cannot be contacted for approval because he has since left the company? For these reasons, and because the carrier is ultimately responsible for maintaining accurate records, ATA stated that FMCSA should permit carriers to make edits. At a minimum, the Agency should allow changes that would not disguise driving time violations or otherwise make such violations possible. ATA indicated that PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 minor recordkeeping errors that do not reflect driving time violations comprise the vast majority of HOS violations. ATA recommended that FMCSA allow carriers to correct them, unhindered by the need to seek driver approval, would more efficiently help both carriers and authorized safety officials focus on those comparatively few discrepancies that reflect material fraud (i.e., false logs) and driving time violations. J.B. Hunt wrote that the final rule should clearly say that corrective action taken by a carrier against a driver for false entries is not harassment. BigRoad Inc. (BigRoad) stated that, although section 4.3.2.8.2 (2) allows for the correction of errors related to team driver switching, it does not allow for the correction of errors commonly found in slip-seat operations, where drivers do not always drive the same truck each day. In such operations, drivers occasionally forget to sign out when their shift in the truck ends or forget to sign in when their shift begins. This can cause drive time to be incorrectly assigned to the driver who was last signed in instead of the current driver of the truck, essentially the same type of error experienced by team drivers who are signed-in incorrectly. ABA stated that there was some confusion with respect to the SNPRM requirement that only drivers are able to ‘‘edit’’ their HOS records. While ABA agreed that drivers should have the ability to revise a duty status designation, it asked whether the SNPRM meant to allow drivers to revise records that do not reflect a change in duty status. ABA contended that the driver should be allowed to revise only the duty status designation and that the final rule should reflect that determination. Schneider National supported the proposal that the driver must approve edits made by the motor carrier to ensure accuracy. However, since any edit made on a record from more than the preceding 8 days will not impact the current duty cycle, the requirement for driver approval should be removed. Schneider listed several operational reasons why an edit would be made on a record that is more than 8 days old. Roehl Transport stated that the proposed process will complicate compliance and enforcement. Allowing the company to edit a driver’s ELD record would, they argued, facilitate its ability to correct a potential falsification. Roehl Transport wrote that the motor carrier is ultimately responsible for maintaining accurate RODS and FMCSA should permit motor carriers to make edits to drivers’ RODS. Verigo commented that the proposal to allow editing of ODND records does E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 not indicate any time limit, or address edits that trigger a violation on subsequent records that have already been certified. Verigo believed that the proposal indicated that, when edits, additions, or annotations are necessary, the driver must use the ELD. Commenter believed the rule should allow editing and recertification of records outside of the ELD provided all other proposed protocols are followed. The IBT supported allowing a driver to edit, enter missing information, or annotate their ELD record when the vehicle is stopped. It was concerned with the motor carrier’s ability to propose changes directly to the driver’s record within the electronic interface because it would create an opportunity for driver coercion and harassment. It supported the inclusion of edit notes as detailed in the appendix to subpart B of part 395, section 4: Functional requirements. The IBT proposed that, if a driver record is changed, the source of the change be documented. The IME indicated that any change of a driver’s records made by a motor carrier should require the driver’s approval. The OTA stated that some provision needs to be made to allow the carrier to correct RODS without the driver’s approval. Given the high turnover in the industry, it is common for a driver to have moved to another carrier and no longer be responsive to the carrier attempting to correct the record. Commenter wrote that even a clear, obvious error could remain unchanged if the driver simply refuses to respond to the carrier’s request, resulting in a false log charge against the company. Although PeopleNet thought that carriers are better suited to provide comments concerning the handling of ‘‘unassigned driver events’’ and making corrections to ELD records, it recommended that the final rule provide some additional guidance on how to manage carrier-initiated corrections that the driver opts to reject. Zonar recommended adding a section addressing the certification of records for law enforcement. Commenter believed that the driver should be required to certify the records prior to giving them to law enforcement. In addition, law enforcement should allow the driver sufficient time to certify his or her ELD records before a citation is given for not having them available. 2. FMCSA Response While FMCSA appreciates carrier management concerns about requiring driver re-certification of any edits made subsequent to the driver’s initial certification, today’s rule retains this VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 concept. The ELD reflects the driver’s RODS, although integrity of the records is both a driver and carrier responsibility. The driver certification is intended, in part, to protect drivers from unilateral changes—a factor that drivers identified as contributing to harassment. In fact, the rule prohibits a carrier from coercing a driver into making a false certification. See § 395.30(e) of today’s rule. Edits are permitted of a driver’s electronic record except as limited by the rule’s technical specifications. See 4.3.2.8.2 of the technical specifications. Each edit must be accompanied by an annotation. See § 395.30(b)(2) of today’s rule. However, if the driver was unavailable or unwilling to recertify the record, the proposed edit and annotation made by a carrier would remain as part of the record. The Agency would expect that a carrier and driver would ordinarily resolve any disputes in this regard. Changes initiated after the period during which records were accessible through the ELD (i.e., minimum of 8 days) would likely be initiated by a carrier; however, driver re-certification would still be required. See § 395.30(b)(4) of today’s rule. FMCSA recognizes that the need for edits will sometimes arise at a time when the driver’s record will no longer be accessible through the ELD. The process to edit records at this point will vary depending on the ELD system used. However, any edit and annotation will still require recertification of that record by the driver. Today’s rule does not specifically address the ‘‘slip-seat’’ scenario raised by BigRoad. However, FMCSA expects the motor carrier to resolve the issue by proposing edits that would adequately attribute the driving time and provide an annotation describing the circumstances. In terms of roadside inspections, the rule would not modify current practice where a driver normally certifies her or his record at the close of the day. See § 395.30(b)(2) of today’s rule. H. Harassment Complaints 1. Comments to the 2014 SNPRM In the SNPRM, FMCSA proposed a new complaint process under which a driver who felt that she or he was subject to harassment, as defined in the SNPRM, could file a complaint with the FMCSA Division Administrator for the State where the incident is occurring or had occurred. Provided the complaint was not deemed frivolous, an investigation would result. FMCSA’s finding of a harassment violation could result in a notice of violation under 49 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 78325 CFR 386.11(b) or a notice of claim under 49 CFR 386.11(c). OOIDA noted that proposed § 390.36 requires that harassment complaints be based upon violations of § 392.3 or part 395. It wrote that the statutory provision on harassment is not so limited and the SNPRM does not explain or defend this limitation. In its view, the approach of tying harassment problems to driver violations of part 395 or § 392.3 is flawed. Requiring that driver harassment complaints be based upon regulatory violations creates a giant loophole through which acts of harassment will pass with impunity. It also stated that FMCSA has assigned itself a passive role with no duty to investigate or take any action on its own and criticized the Agency’s reference to alternative remedies. Although OOIDA noted that the reference to ‘‘productivity’’ was eliminated in MAP– 21, it nevertheless criticized the Agency’s failure to follow the Seventh Circuit’s direction that the Agency define how ELDs may be used to monitor driver productivity. It also argued that the statutory requirement to address harassment under 49 U.S.C. 31137(a)(2) applies to any electronic logging device and is distinct from the ELD mandate under section 31137(a)(2). OOIDA further suggested that the Agency defined ELD in a manner so as to minimize the requirement that the Agency ensure that ELDs do not result in harassment. ABA stated that § 386.12, regarding complaints of substantial violations, requires that a complaint against a carrier for a ‘‘violation may be filed with the FMCSA Division Administrator for the State where the incident . . . occurred.’’ It questioned whether the complaint may be transferred to the FMCSA Division Administrator for the State where the motor carrier is domiciled. For the small business bus operator, ABA commented that the costs associated with defending any complaint can be substantial. The defense would be significantly more costly if the carrier is required to hire an out-of-State attorney and bear the costs of the proceeding in a State that could be thousands of miles away from home. 2. FMCSA Response In mandating the use of ELDs for CMV drivers required to keep RODS, Congress embraced ELDs as a tool to enhance compliance with the HOS rules. The statute restricts FMCSA’s use of ELD-generated data for purposes unrelated to motor carrier safety enforcement. Thus, in today’s rule the Agency tied the definition of ‘‘harassment’’ to violations of the HOS E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78326 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations rules set forth in part 395 and a related regulation, § 392.3, prohibiting carriers from requiring drivers to drive when their ability or alertness is impaired due to fatigue, illness or other causes that compromise safety. FMCSA believes the effective enforcement of the harassment prohibition requires that harassment be defined by objective criteria. Linking the definition of harassment to underlying violations of specified FMCSRs will enhance the Agency’s ability, through its Division Administrators located throughout the country, to respond to driver harassment complaints filed under § 390.36(c) in a consistent manner and within a reasonable period of time. However, the Agency simply lacks the resources necessary to investigate every possible circumstance that a driver might consider as harassment. OOIDA’s suggestion that the Agency defined the term ‘‘ELD’’ to include only recording functions in order to minimize its obligation to address harassment is without merit. The Agency’s requirements for an ELD of limited functionality, which are consistent with MAP–21’s definition, were developed in order to minimize the cost of required technology. Furthermore, today’s rule addresses ELD-related functionality, other than recording, to require that ELDs have a mute function available during sleeper berth periods. This technical specification was adopted directly in response to concerns raised by commenters. In addition, FMCSA notes that § 390.36 is not the sole remedy available to drivers who believe they have been subjected to harassment. Drivers may alternatively seek relief by filing a coercion complaints with FMCSA under § 386.12(c), a process adopted in the recent coercion rulemaking (80 FR 74695, November 30, 2015), or by filing complaints with the Department of Labor pursuant to 49 U.S.C. 31105, depending on the underlying facts. The Agency notes that certain examples of harassment offered by commenters fall squarely within the realm of labormanagement relations rather than the application of the HOS rules and are therefore outside the scope of this rulemaking. The Agency does not address the distinction between productivity and harassment, because, as part of the MAP–21 legislation, Congress eliminated the statutory provision expressly permitting carriers to use ELDs to monitor the productivity of drivers. In light of that revision, we do not infer congressional intent that the Agency establish guidelines in this rule VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 for the appropriate use of ELDs to improve productivity. FMCSA simply makes clear that, for the protection of drivers, productivity measures undertaken by carriers cannot be used to harass drivers, as that term is defined in the regulations. The procedures governing the filing of a complaint, including with whom the complaint must be filed, and the procedures addressing the Agency’s handling of a harassment complaint have been modified from those proposed in the SNPRM in order to track the procedures governing complaints alleging coercion in a recent FMCSA rulemaking (80 FR 74695, November 30, 2015). Similarly, the complaint process for substantial violations is modified to track, in part, procedures under the coercion rule. Complaints alleging a substantial violation can be filed by any person through the National Consumer Complaint Database or with any FMCSA Division Administrator; the Agency will then refer the complaint to the Division Administrator it believes is best able to handle the complaint. As further indication of the seriousness with which FMCSA’s viewed drivers’ harassment concerns, the Agency conducted a survey of drivers and motor carriers concerning their attitudes and experiences related to harassment and its relationship to ELDs. FMCSA placed the harassment survey report in the public docket with a request for comment, to which OOIDA subsequently responded. The survey and related comments, which are part of the record of this rulemaking, are discussed in Section XII, L, of this preamble. I. Matters Outside FMCSA’s Authority Several commenters submitted recommendations that would require new statutory authorities for FMCSA before action could be taken to address the issue. For example, commenters suggested changes in methods by which drivers are paid, admissibility of ELD data in litigation, and further protections of ELD data beyond current law. The Agency will not consider taking actions beyond its current authority and will not commit to seeking such authority. X. Discussion of Comments Related to the Technical Specifications A. Performance and Design Specifications The detailed performance and design requirements for ELDs included in today’s rule ensure that providers are able to develop compliant devices and PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 systems, and that motor carriers are able to make informed decisions before purchasing them. The requirements ensure that drivers have effective recordkeeping systems, which provide them control over access to their records. The technical specifications also address, in part, statutory requirements pertaining to prevention of harassment, protection of driver privacy, compliance certification procedures, and resistance to tampering. Furthermore, they establish methods for providing authorized safety officials with drivers’ ELD data when required. 1. Comments to the 2011 NPRM The 2011 NPRM relied entirely upon the now-vacated 2010 rule. Though comments were submitted to the 2011 NPRM concerning the technical specifications, they were out of the scope of the 2011 proposal, as those specifications had already been finalized in the April 2010 rule and subsequent amendments to address petitions for reconsideration of the rule. 2. Comments to the 2014 SNPRM FMCSA proposed new technical specifications in the SNPRM, which included detailed design and performance standards for ELDs that address statutory requirements. FMCSA proposed specific standard data formats and outputs that ELD providers would need to use to transfer, initialize, or upload data between systems or to authorized safety officials. These proposed technical specifications are intended to be performance-based, in order to accommodate evolving technology and standards, and to afford ELD providers the flexibility to offer compliant products that meet the needs of both drivers and motor carriers. In the SNPRM, FMCSA asked the following questions specifically about interoperability. 1. Should FMCSA require that every ELD have the capability to import data produced by other makes and brands of ELDs? 2. To what extent would these additional required capabilities for full interoperability increase the cost of the ELDs and the support systems? 3. While full interoperability could lower the cost of switching between ELDs for some motor carriers, are there a large number of motor carriers who operate or plan to operate with ELDs from more than one vendor? How would full interoperability compare to the proposed level of standardized output? If carriers wanted to operate ELDs from more than one vendor, would this be a barrier? Would this issue be impacted E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations by the market-share of the ELD manufacturer? 4. Would motor carriers and individual drivers have broad-based use or need for such capability? Is there a better way to structure standardized output to lower cost or encourage flexibility without requiring full interoperability? Providers raised questions about many of the technical specifications and suggested changes. NTSB asked FMCSA to consider adding crash survivability for ELD and ELD data. EROAD Inc. (EROAD) stated that the easiest and fairest way for FMCSA to provide standards that guarantee high performance is to use general hardware and software technical and security standards. It recommended a requirement for ELD providers to meet appropriate FIPS, Common Criteria, or other equivalent standards. BigRoad stated that codifying the technical specifications, as part of the regulatory requirements, is undesirable because the regulatory process would impede the development of the technical specifications. Instead, FMCSA should remove technical specifications from the regulatory requirements and create a technical standards open working group consisting of industry and government representatives that is able to work collaboratively through the interoperability issues. BigRoad was concerned that the complexity of the ELD specifications, particularly in support of roadside inspection information transfer, would result in ELD systems that are more expensive and less reliable than necessary to meet the requirements of MAP–21. Interoperability issues between ELD providers and roadside inspection systems could result in an unintended bias toward drivers producing printed paper logs during an inspection. Providing simpler roadside data transfer options, with specific requirements for both ELD providers and authorized safety officials, would allow technology providers to deploy the necessary systems more quickly. Continental stated that the ELD regulation and associated standards should include a clear security specification, using standard IT industry processes and endorsed by the National Institute of Standards and Technology (NIST) and standardized interfaces. This would assist with the identification of drivers, the transmission of drivers’ data from one vehicle to another and easy access to and downloading of data by enforcement personnel and vehicle operators. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PeopleNet requested clarification on how to manage data for those drivers that transition between a compliant AOBRD device and a compliant ELD. Eclipse Software Systems stated that it would be useful for any driver to have access to non-authenticated driving time so they are aware of it, since it will be displayed to roadside inspectors. It asked for a clarification that displaying co-driver names (perhaps automatically from other driver’s data on the ELD) is allowed. 3. FMCSA Response The Agency is not requiring crash survivability standards for ELDs because of the costs involved. Crash survivability is a complicated and expensive requirement, and would mean that the ELD has to withstand high impact or crash forces and be water resistant and withstand exposure to open flames for some period of time. FMCSA does not believe this is necessary. FMCSA agrees that some level of standardization is necessary. Whenever possible, FMCSA used NIST, or other commonly available technical standards, including those incorporated by reference in today’s rule in § 395.38, Incorporation by Reference. FMCSA has elected to codify the technical specification standards in the appendix to part 395 in today’s rule rather than establish a new working group. Though FMCSA acknowledges that including the technical requirements in the regulations makes changing them more difficult, FMCSA believes this is the best way to provide transparency and ensure that all interested parties are aware of the requirements and any proposed changes to the standards. FMCSA notes that adopting technical specifications by regulation is the only way to make them binding. Additionally, though the Agency did not create a workgroup, the MCSAC subcommittee, which included members from the ELD technical community, gave a recommendation to FMCSA on task 11–04, which the Agency considered in lieu of a workgroup’s recommendations. Today’s rule requires standardized output and standardized data sets. FMCSA has decided not to require full interoperability between all ELDs. Although full interoperability would have some benefits, it would also be complicated and costly. FMCSA believes that requiring standardized data output and requiring that drivers have access to their own records will achieve some of the goals of the commenters advocating for full interoperability. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 78327 The motor carrier and the driver are responsible for ensuring that all the RODS information required by the HOS rules is available for review by authorized safety officials at the roadside. If the driver works for multiple employers with multiple ELD or AOBRD systems that are not compatible (e.g., the data file from one system cannot be uploaded into the other system), the driver must either manually enter the missing duty status information or provide a printout from the other system so that an accurate accounting of the duty status for the current and previous 7 days is available for authorized safety officials. B. Specific Performance Requirements 1. Comments to the SNPRM Commenters had comments or questions on specific design elements in the proposed appendix to part 395. Comments Requesting New Requirements FedEx stated that ELDs should be programmed to acknowledge that a driver is using the 100-air-mile exception. While taking the exception, the driver should only need to enter start time and end time into the ELD. Omnitracs, LLC (Omnitracs) asked for a definition of minimum duty status duration. Paper logs are to a granularity of 15 minutes, but there is no specification for RODS recorded by the ELD. Omnitracs believed the customer should be able to configure the duration. CVSA and the United Motorcoach Association (UMA) stated that the ELD should alert a driver when he or she is approaching the HOS limits. Number of Required Features The IFDA recommended eliminating the requirement for a single-step interface and graphic display or printout. The commenter wrote that there is not a sufficient safety benefit to justify the 60-minute requirement for recording the location, communications methods, and indications of sensor failure, which it wrote are not currently standard technology. XRS stated that FMCSA needs to clarify why the engine hours are a requirement. FMCSA should identify what other methods would accurately acquire engine hours without an ECM available. ATA raised concerns about the requirement to synchronize devices to Coordinated Universal Time (UCT) periodically and to ensure that a device’s deviation from UCT not exceed 10 minutes at any point in time. To ensure such synchronization will E:\FR\FM\16DER2.SGM 16DER2 78328 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 require cell or satellite service (depending on the device) and such service is not always available. ATA also questioned if ELDs would be able to produce the volume of data that FMCSA proposes (e.g., last 6 months’ records, all drivers who previously used the device). ATA believed that such requirements will cause devices to need large memory capacity that will add to cost, reduce design flexibility, and ultimately impact the ability of some existing hardware to be upgraded to meet new specifications. ATA recommended limiting the requirement to the same level of detail that drivers currently must provide during roadside inspections. With the requirement for ELD records to resolve latitude and longitude to a place name, as well as the distance and direction to the place name, Verigo stated that it is questionable why locations need to be resolved to an accuracy of two decimal places. This level of granularity does not appear to provide a higher level of safety and is inconsistent with the accuracy in use today. The 10-mile accuracy of single decimal coordinates is consistent with the distance that could reasonably be traveled within the 15-minute interval in use. Eclipse Software Systems stated that the transaction numbering system, along with the odometer capture (vehicle miles) provides very strong security that makes tampering extremely difficult. Adding engine hours, ignition on/off and VIN detection add very little additional security. Another issue Eclipse asked FMCSA to consider is that the serial and CAN buses of ECMs broadcast the odometer and wheel speed without intervention from an ELD. The ELD can sit in ‘‘listen mode’’ and obtain this information. Conversely, to get engine hours and VIN, the ELD must transmit on the ECM bus, and send requests for this information. Eclipse commented that it was aware of some EOBRs improperly transmitting on vehicle buses, causing erratic behavior on the electrical bus. Given that an ELD mandate is likely to draw lots of new providers to this market (who may be inexperienced with ECM interfacing), it seems safer that ELD providers operate in ‘‘listen only’’ mode, where they are less likely to interfere with vehicle operation by broadcasting on the engine bus. 2. FMCSA Response FMCSA is aware that there is no current device on the market that meets every standard in today’s rule. However, the intent of this rule is to set a standard that the Agency believes is secure, VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 useful, and can be met at a reasonable cost. FMCSA has been careful to consider the cost of developing new components of an ELD, and has purposefully set standards that can be met by re-programming many existing devices with little cost to the providers. Requesting New Requirements FMCSA does not require ELDs to accommodate any statuses other than those that are currently required to complete paper RODS, including excepted and exempted statuses. However, section 4.3.3.1.2. (c) states that an exemption must be proactively configured for an applicable driver account by the motor carrier. The ELD must prompt the motor carrier to annotate the record and provide an explanation for the configuration of the exemption. FMCSA does not require a minimum duty status duration. The ELD will capture all duty statuses entered; there is no minimum amount of time these statuses must be engaged. While longstanding industry and enforcement practices may have relied upon minimum intervals of 15 minutes in the handwritten RODS, the ELD provides for a more accurate accounting of drivers’ time. This should not be construed to be an indicator that the activities that are electronically recorded as less than 15 minutes are suspect, only that the time actually required to complete the task may be less that what had been traditionally noted in the paper RODS. FMCSA allows, but does not require, any notification of the driver when they are nearing their HOS limits. While an ELD will automatically record on-duty driving time, a driver is still responsible to record other duty statuses based on the driver’s actual work time. Number of Required Features FMCSA agrees that data transmission is complex, and roadside enforcement and review will likely play a large role, especially in the transition phase of the implementation of today’s rule. For this reason, FMCSA has standardized the information on the printout and the display screen to contain the same data set. FMCSA believes that the modifications made from the SNPRM in today’s rule to require a standardized backup of a display or printout will increase the ease of users. FMCSA acknowledges the commenter’s concerns about 60-minute location but the Agency believes ELD devices can easily be programmed to record at 60 minute intervals. FMCSA believes it is necessary to record engine hours, as a check with the PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 other data contained on the ELD. A record of engine hours, when compared with the ECM odometer readings, verifies the accuracy of periods other than drive time. Because today’s rule is not applicable to vehicles older than model year 2000, and ELD providers can work-around vehicles using OBD–II, which might not capture engine hours, the concern about engines without ECMs should be eliminated. However, should a driver of a CMV with a nonECM engine wish to install an ELD, Appendix B sections 4.2(b) and 4.3.1.2(b) provide specifications for an ELD when there is no ECM or ECM connectivity. With current technology, it should be rare for an ELD’s time to drift more than 10 minutes. In addition, the technical specifications require the ELD to (1) periodically cross-check its compliance with the requirement specified in section 4.3.1.5 of the Appendix with respect to an accurate external UTC source and (2) record a timing compliance malfunction when it can no longer meet the underlying compliance requirement. FMCSA clarifies that the ELD in the CMV only needs to retain the data for the current 24 hour period and the previous 7 consecutive days. Carrier (or private driver) record keeping systems could retain more data for the purposes of historical data storage. FMCSA does not prohibit any ELD from retaining more data than 8 days, but it is not required. The carrier is required to keep data for 6 months in case of an FMCSA inspection. This information can be kept on the device itself or in the carrier’s office. These electronic files are not large. FMCSA estimates that 6 months of data, for one ELD, would not require more than 10 MB of storage. Therefore, in this rule, FMCSA does not reduce the data set that needs to be retained. FMCSA needs to capture latitude and longitude because it is more reliable for computers to process than place names. However, FMCSA also needs place names to allow drivers to verify that the location is correct and safety officials to recognize the location quickly. Data collected in addition to odometer, such as engine hours, are necessary as a cross check to verify that data has not been manipulated. Location resolved to an accuracy of two decimal places when drivers are on-duty driving provides a clear history of where the driver and vehicle have been. In today’s rule, FMCSA does not require an ELD to be able to communicate with the motor carrier. FMCSA disagrees that the location information does not have a safety reason; location information will make falsification of HOS records more E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations difficult. Additionally, FMCSA believes this level of specificity can provide accurate time information, and that this is not a difficult level of location information to meet. In response to concerns about improper transmittal, the industry will be driven by customer requirements to provide safe and non-interfering connectivity of the ELDs to the engine ECM or ECM connectivity. Additionally, the use of industry standards in the regulation, and the requirement that ELD providers register and certify their ELDs on FMCSA’s Web site, should reduce the potential for this type of issue. tkelley on DSK9F6TC42PROD with RULES2 C. Security 1. Comments to the 2014 SNPRM The SNPRM proposed incorporating by reference several industry standards for privacy and encryption including NIST standards. Continental stated that ELDs should be tested and certified to comply with security standards by independent laboratories that follow processes endorsed by NIST. In the absence of a precise requirement for a specific tamper resistance level, FMCSA should at least ensure that ELD software cannot be accessed and modified by end users. As drafted, Continental stated the rule may lead to the proliferation of hacked or cloned apps for smartphones and tablets that exactly mimic the displays of compliant systems. As a minimum security requirement, FMCSA should only allow ELDs that prohibit user access to the software environment on the device. The provider of the ELD should demonstrate during the certification process that the software environment on the device cannot be easily accessed and modified by the end user. While the industry has shown an interest in using smart devices for operational management, the current market penetration of smart devicebased ELDs is very low. Therefore, there will be only a minimal financial impact to the industry by prohibiting opensoftware devices. As the number and sophistication of tampering attempts will grow with time, the overall tamper resistance level could be significantly enhanced by requiring that the data delivered by ELDs be digitally signed. Continental noted that FMCSA proposes to require that ELDs provide data in the format of an electronic file. Lacking enforceable security requirements, however, it will be extremely easy to perform undetectable modifications on those files. XRS stated that many suppliers of AOBRD portable devices or handheld VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 devices that are AOBRD compliant and moving to an ELD have been employing security measures through the use of Mobile Device Management software, which provides for security of the device. BigRoad stated that the series of checksums that are required on event logs, output file lines, and the entire output file itself are calculated in a manner that would be trivial to recalculate should any data be altered. However, in proposed sections 7.1.20, 7.1.26, and 7.1.31 (7.21, 7.27, and 7.32 in this rule), these values have the stated purpose to identify cases where an ELD file or event record may have been inappropriately modified after its original creation. BigRoad stated that, for security against purposeful tampering, only a cryptographically robust signature of the data in question is effective in practice. Omnitracs also questioned the value of these and stated that as proposed they provide no security. PeopleNet recommended the use of a proven industry standard, MD5 Hash. 2. FMCSA Response FMCSA follows all DOT Security guidelines which includes NIST standards for access to any FMCSA system or network. In this rule, FMCSA has expressly prohibited any modification at the user level. FMCSA believes that the security standards of ELDs have appropriately balanced industry standards, privacy, the need for accurate HOS monitoring, and the cost of security measures. FMCSA notes that it has only established minimally compliant standards in this rule, and there could be a market for more security features on an ELD. ELD providers are not prohibited from using additional security measures, so long as the data can still be transferred to authorized safety officials as required by the today’s rule. In addition, the commenter’s concern about mobile devices is misplaced. Security on mobile devices is wellunderstood. Banks, governments, and retailers all provide apps which require security. There is no reason to believe that consumer mobile devices cannot be an adequate platform for ELDs. FMCSA believes the specifications and privacy standards and protocols are sufficient to respond to reasonable concerns about hackers. FMCSA does not prohibit the use of Mobile Device Management software, but believes it is too costly to include as a minimum ELD specification. The intent of the checksums is to provide a simple method of detecting data manipulation to help prevent a PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 78329 novice user or rogue script programmer from easily modifying the data and gaming the system. The checksum algorithms are sufficiently robust to prevent a novice user from simple data manipulation. Although MD5 is a wellknown and more robust checksum algorithm, in this instance it is no better than the simple scheme provided in this rule. Someone changing the data could simply apply the MD5 checksum to each line as there is no independent source to verify its accuracy. The MD5 checksum has the additional disadvantage of adding significantly more data to each line, thus increasing the size of the overall file. D. External Operating Factors and Failure Rate of ELDs 1. Comments to the 2014 SNPRM The SNPRM did not address the effect of external operating factors, such as dirt or vibration, on the failure rate of ELDs. The National Ground Water Association stated that FMCSA should ensure that providers understood that ELDs had to perform when subjected to vibration from heavy equipment. The Association of General Contractors stated that the off-road conditions construction vehicles operate under may be problematic for ELDs. Its members indicate at least a 10 percent failure rate. 2. FMCSA Response In today’s rule, FMCSA continues to allow the marketplace to address developing roadworthy ELDs. As with other electronic device manufacturers (mobile phones and laptop computers for example), the market should drive ELD providers to respond to CMV operating situations where a high level of durability is required. CMVs that operate only on the highway may not need the robustness of design that the construction and utility industries require. E. Automatic Duty Status 1. Comments to the 2014 SNPRM If the driver’s duty status is Driving, an ELD would only have allowed the driver who is operating the CMV to change the driver’s duty status to another duty status. A stopped vehicle would have to maintain zero (0) miles per hour speed to be considered stationary for purposes of information entry into an ELD. Additionally, an ELD would have to switch to driving mode automatically once the vehicle is moving at up to a set speed threshold of 5 miles per hour. E:\FR\FM\16DER2.SGM 16DER2 78330 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations XRS stated that FMCSA should indicate whether the drive time should be set back to the beginning of the on duty period when 5 minutes has expired. Zonar stated that the safety, effectiveness, efficiency, and reliability of the ELD and FMS will be significantly limited by not allowing automatic duty-status changes when the system finds specific criteria for an event have been met. Zonar commented that automatic changes include providing the driver the ability to change the event; if the driver does not respond, then the automatic duty status occurs. Automatic duty status records must include an annotation to describe the system action taken, so the original record is retained. XRS stated that FMCSA should reconsider ‘‘Other Automatic DutyStatus Setting Actions Prohibited’’ since the driver will have the ability to edit and annotate other changes. Section 395.2 (definition of ‘‘on-duty time’’) allows a co-driver to be off duty for up to 2 hours in the passenger seat of a moving vehicle before or after at least 8 hours in the sleeper berth and then the co-driver must revert to on duty. Allowing an automatic duty status change from off to on duty when the 2 hours expires, would make ELD records more accurate and avoid additional transactions by the driver without compromising safety. 2. FMCSA Response tkelley on DSK9F6TC42PROD with RULES2 FMCSA purposefully did not require drive time to set back automatically. FMCSA believes that the driver of a CMV has a responsibility to ensure the accuracy of his or her own HOS records. FMCSA considers that, in most cases, status changes should be directly linked to an action taken by a driver. An ELD must prompt the driver to input information into the ELD only when the CMV is stationary and the driver’s duty status is not on-duty driving, except for the automatic setting of duty status to ODND. The driver still has the option to edit and switch that time after it has elapsed, as long as it is not driving time. Limited editing rights, coupled with the ability of the driver and motor carrier to annotate, should ensure that records are accurate. FMCSA does not believe this will result in an unreasonable number of edits or complicated data for enforcement. F. CMV Position 1. Comments to the 2014 SNPRM The SNPRM provided that an ELD must have the capability to automatically determine the position of the CMV in standard latitude/longitude VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 (proposed section 4.3.1.6. of the SNPRM). The ELD must obtain and record this information without any external input or interference from a motor carrier, driver, or any other person. CMV position measurement must be accurate to ±0.5 mile of absolute position of the CMV when an ELD measures a valid latitude/longitude coordinate value. FMCSA proposed that position information be obtained in or converted into standard signed latitude and longitude values and must be expressed as decimal degrees to hundreds of a degree precision (i.e., a decimal point and two decimal places). XRS stated that FMCSA needs to clarify the accuracy of the GPS as to rounding up or truncating on the 1decimal and 2-decimal accuracy. Eclipse Software Systems stated that FMCSA is requiring that the ELD determine date, time, and location ‘‘[w]ithout allowing external input or interference.’’ Given that this data comes from GPS, and GPS can be interfered with (by obscuring the GPS antenna, for example), the wording should be changed to reflect that the carrier, driver, or other individuals are not allowed to set the date, time, and location manually. Eclipse commented that other parts of the SNPRM already make it clear that interfering with GPS is a violation, but the responsibility lies with the individual, not the ELD provider. Zonar asked for guidance on the maximum characteristics to be displayed. A customer may choose to have more precise information than 3 to 6 or 3 to 7 characters. As an FMS has reports and tools that are supported by the precise GPS location of the vehicle, this will have a major impact on the system. 2. FMCSA Response Geo-location rounding to a 1-decimal (approximately within a 10 mile radius) will provide sufficient granularity to the data without providing an excessive amount of specificity; this granularity remains of limited specificity when reduced to 2-decimal accuracy. Because the date, time, and location will be determined by the ELD without modification by the driver, motor carrier, or any other individual, any alterations to these records would be considered tampering with an ELD under § 395.8(e)(2). The output values for GPS location for the purpose of enforcement and compliance to the ELD rule may be 3 to 6 characters. If a carrier has more character requirements for its FMS there PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 is no prohibition on having more precise information. G. Special Driving Categories 1. Comments to the 2014 SNPRM The SNPRM proposed to add a requirement for the ELD to provide the capability for a driver to indicate the beginning and end of two specific categories, namely, personal use of a CMV and yard moves, as allowed by the motor carrier. In these cases, the CMV may be in motion but a driver is not necessarily in a ‘‘driving’’ duty status. This would record the necessary information in a consistent manner for the use of drivers, motor carriers, and authorized safety officials. In the data structures as defined in the SNPRM, XRS saw no allowance for identification for items such as adverse conditions, or 16-hour short haul exemption and requested guidance on how these should be identified or indicated in the files. Zonar asked for clarification on the special driving categories: How does FMCSA expect this to be displayed in ‘‘Off-Duty’’ and ‘‘On-Duty Not Driving’’ or is there no requirement? While Omnitracs agreed with resetting the special driving situation to ‘‘none’’ if the ELD or CMV’s engine goes through a power off cycle, it suggested that the same confirmation be allowed during yard driving that is allowed for authorized personal use of the CMV. This would enable the driver to turn off the engine when connecting or disconnecting a trailer when operating within a company’s facility without the requirement to re-enter the annotation of yard driving each time the engine goes through a power cycle. 2. FMCSA Response FMCSA does not require special identification to be built into an ELD for specific exceptions or adverse condition status. FMCSA expects drivers and motor carriers to use the annotation ability on the ELD to record these statuses. Today’s rule permits the driver to indicate the beginning and end of yard moves and personal conveyance, as allowed by the motor carrier. All other special driving categories, such as adverse driving conditions (§ 395.1(b)) or oilfield operations (§ 395.1(d)), would be annotated by the driver, similar to the way they are now. The Agency feels that the allowance of multiple power off cycles would not provide a substantive reduction in inputs required by the driver during yard moves. In addition, this may create a potential for misuse of the off duty yard-move status. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations moving at a set speed threshold of up to 5 miles per hour. H. Data Automatically Recorded 1. Comments to the 2014 SNPRM The SNPRM proposed that the ELD would automatically record the following data elements: (1) Date; (2) time; (3) CMV geographic location information; (4) engine hours; (5) vehicle miles; (6) driver or authenticated user identification data; (7) vehicle identification data; and (8) motor carrier identification data. Eclipse Software Systems stated that it had concerns that items (6) driver, and (8) motor carrier information cannot truly be ‘‘automatically recorded.’’ The ELD can make note of the current driver and carrier, but these values have been manually entered or selected by a human at some point. Unlike items 1 through 5, and 7, they are not provided by external sensors. Inthinc Technology Solutions, Inc. (inthinc) stated that a driver may log out and then turn off the engine. It asked if engine shutdown should be recorded on the ELD record even though the driver is logged out. Schneider requested confirmation that in § 395.32(a), where the words ‘‘as soon as the vehicle is in motion’’ occur, that the definition of ‘motion’ is the one found in the appendix, in section 4.3.1.2. tkelley on DSK9F6TC42PROD with RULES2 2. FMCSA Response Today’s rule provides that driver and motor carrier information will be the responsibility of the motor carrier, as reflected in § 395.22. After a driver’s unique login to the ELD, this information will be available to the ELD and will be recorded by the ELD, with all the other data elements, at each change of duty status and at intermediate recording times. With regard to comments about the engine status, FMCSA notes the ELD will automatically capture the engine on and engine off activities, including the date, time, and location of these activities. FMCSA expects the driver to enter a new duty status before turning the vehicle off. For example, if the driver intends to remain on duty, then the driver would enter that information and then turn the vehicle off. If the driver plans to switch from driving time to a sleeper-berth period, the new duty status would be entered before the vehicle is shut down. The precision of the data collected by an ELD is not intended to override the practical sequence of events needed to reduce to the greatest extent possible annotations and corrections. The ELD will indicate the vehicle is in motion once the vehicle begins VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 I. Driver’s Annotation/Edits of Records 1. Comments to the 2014 SNPRM The SNPRM proposed that a driver may edit and a motor carrier may request edits to electronic RODS. All edits would have to be annotated to document the reason for the change. The SNPRM did not allow any driving time to be edited into non-driving time. BigRoad noted that the annotation requires a 4-character minimum. Its database of logs includes hundreds of thousands of 3-letter notes that are meaningful. It stated that the restriction should be removed. Omnitracs stated that the term ‘‘source data streams’’ is too vague and should be changed to ‘‘recorded data.’’ Omnitracs recommended the process outlined in sections 4.3.2.8.1 and in 4.4.4.2 be amended to track only the original and the driver-approved final edit since they comprise the final record set. It also stated that the requirements regarding edits to driver ELD records do not sufficiently detail that only the original and final edits are to be maintained and are too restrictive regarding automatically recorded drive time edits. PeopleNet stated that the specifications in section 4.4.1.2 mean that if the driver is in Driving, gets to the destination, and turns off the ignition, he will remain in Driving, which is incorrect, but the ELD cannot reduce drive time. 2. FMCSA Response The term ‘‘source data streams’’ has a broader meaning than ‘‘recorded data.’’ It includes all the information, recorded or not, that the ELD receives. FMCSA does not find that there is a reason to include 3-letter notes as acceptable annotations, and continues to require 4character minimum codes. The Agency thinks that a code with a minimum of four characters will provide better quality information and specificity. When the duty status is set to driving, and the CMV has not been in-motion for 5 consecutive minutes, the ELD must prompt the driver to confirm continued driving status or enter the proper duty status. If the driver does not respond to the ELD prompt within one-minute, the ELD must automatically switch the duty status to ODND. The time thresholds for purposes of this section must not be configurable. Accordingly, the driver status will most likely change to ODND under the PeopleNet scenario. FMCSA declines to limit the record to only the original record and driverapproved edits. While an edit by a motor carrier normally requires PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 78331 recertification of the record by the driver, the Agency acknowledges that there will be instances where a driver is no longer available at the time of an edit. Although the edit and annotation would lack the required certification, retaining the carrier edits may provide a more complete picture of what occurred. J. Driver’s Data Transfer Initiation Input 1. Comments to the 2014 SNPRM The rule indicates that a screen icon must be clearly marked and visible when the vehicle is stopped. Verigo asked for clarification regarding the required visibility of this icon at all times when the vehicle is stopped. 2. FMCSA Response The icon is a function that allows the driver to easily transfer data at roadside. The supported single-step data transfer initiation mechanism (such as a switch or an icon on a touch-screen display) must be clearly marked and visible to the driver when the vehicle is stopped and data transfer is required. We expect that the ELD makers will meet the regulation requirements by incorporating user friendly and useful features to maintain market share. K. ELD Data File 1. Comments to the 2014 SNPRM In the SNPRM, FMCSA provided that an ELD must have the capability to generate an electronic file output, compliant with the format described in section 4.8.2, to facilitate the transfer, processing and standardized display of ELD data sets on the authorized safety officials’ computing environments. FMCSA required that all output files be standardized on ELDs according to American Standard Code for Information Interchange (ASCII), which the Agency proposed incorporating by reference. Zonar asked where the output file comment should be stored—within the driver records on the ELD, just in the support system, or both? If stored on the ELD only, when the ELD records are purged after the 7 or 8 days they are required to be retained, should it then be stored within the support system? Omnitracs recommended replacing the word ‘‘ELD’’ in section 4.8.2 with the phrase, ‘‘ELD or a support system used in conjunction with ELDs,’’ the same language used in section 4.9.2. The commenter believed that use of the additional term would allow for closer alignment within the rules. Omnitracs also stated that there is nothing in the output file standard that specifies how to handle non-ASCII character sets such E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78332 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations as special characters that may be used either by Canadian cities/provinces or even in driver names. In section 4.8.2.1 of the appendix to part 395, the SNPRM proposed that the ELD must produce a standard ELD data output file for transfer purposes, regardless of the particular database architecture used for recording the ELD events in electronic format. This ELD data output file must be generated according to the standard specified in section 4.8.2.1. Omnitracs stated that all of the ‘‘supporting’’ elements (e.g. annotations, certifications, malfunctions, etc.) reference the event sequence ID number as the only means to associate to the actual driver duty change event (refer to 4.8.2.1.5, which contains the format for Event annotations or comments). If a driver’s duty cycle consists of data recorded from multiple ELDs, these sequence IDs may overlap and may not be unique on the current ELD. It recommended that a secondary reference to the original duty status, which could include an ELD unique identifier, or even a date/time reference, be used. Omnitracs requested that there be further clarification on how to handle event sequence IDs when data on the ELD are a mix of data that have been recorded from different ELDs. The current language has no provision on how to handle data from different ELDs when there could be a sequence conflict. Inthinc recommended that UTF–8 be used for output rather than ASCII. It also asked for examples of how output code should be parsed. BigRoad stated that the commaseparated format described in the SNPRM is not based on any contemporary standard for structured data and already fails to accommodate some data requirements fully (see Table 6, Event Type 4). BigRoad wrote the format also fails to account for field values that might include inline commas or <CR> characters. The commenter also noted that a file format based on standards like extensible markup language (XML) would allow for more flexibility for future changes and could be paired with any character set encoding, including Unicode, to allow any character data to be captured correctly without loss of precision. BigRoad wrote that to restrict future flexibility of the data format to support a minority of devices seems shortsighted. Since ELD data that are transmitted to FMCSA Web services are formatted as XML, BigRoad believed that XML should be used as the format for all transmission options. BigRoad wrote VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 that using XML along with a formal XSD schema is beneficial when trying to ensure interoperability between disparate systems and would reduce the number of file format incompatibility issues when transferring data between systems. BigRoad stated that the ELD data file specifications are not explicit about how to display and transfer data from drivers that produce records on multiple ELDs. The requirements to display multi-day data imply that data must be aggregated across all ELDs the driver uses. None of the ELD data files contains an identifier for the specific ELD that created the record, so if the records from multiple ELDs are aggregated the event sequence number ranges throughout the file could be discontinuous. If the intention is to produce data files containing ELD data aggregated across several ELDs, BigRoad believed adding an ELD identifier would mean that each separate ELD could be easily disambiguated. 2. FMCSA Response In today’s rule, section 4.8.2 is largely the same as proposed. Some changes have been made to accommodate comments and to clarify the rule. In response to the comment asking how the output file comment should be stored, it must be recorded in the output file and transferred to roadside enforcement or inspectors. All captured elements from the output file must be retained by the carrier for 6 months. FMCSA understands that some capabilities of an ELD may not be located on the same physical device, or even in the CMV, but rather in a support system. FMCSA has provided flexibility in this rule for all provider types and their respective ELDs. FMCSA requires that all information in the output file be standardized and only include ASCII characters. ASCII is a widely available standard within the United States, and is appropriate for the data required. Although ASCII does not provide for special characters, FMCSA feels that identification of proper names and cities can be clear without the insertion special characters. The ELD technology option for any data transfers will require that the standard ELD CSV data file outlined in part 395 would be packaged into XML format. FMCSA will provide and manage ELD XML schema and all related instructions outlined in guidance, ‘‘ELD Interface Control Document (ICD),’’ to be placed on its Third Party Development site (3PDP). There is no prohibition on using an XML format internally. However, ELD output files have a standardized format. The format method accounts for the PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 suggested needs, including that for Table 7, Event Type 4. In the respective section, only Event code is necessary as event type is implied by the section. Field values including inline commas or <CR> characters can be controlled for or pre-processed by the ELD provider. FMCSA has updated section 4.8.2.1. to accommodate a comma or carriage return by adding: ‘‘(3) Any field value that may contain comma (‘‘,’’) or carriage return (<CR>) must be replaced with a semicolon (‘;’) before generating the compliant CSV output file.’’ The concern about HOS records from multiple ELDs is appropriate. FMCSA added data and time stamp fields to annotations to allow an improved method of disambiguation. There may still be rare situations where one or more drivers could have data in multiple ELDs that get combined into a single file having identical event IDs and slightly unsynchronized time stamps. The probability of this occurring is low, but not zero, and the consequences are minimal. An ELD Identifier data element that BigRoad mentions is already defined in the rule. While today’s rule does not include requirements concerning compatibility of files between ELD systems or the ability to upload drivers’ duty status files from multiple systems, there is nothing in the rule that prevents collaboration among the providers to produce compatible products. In the absence of a compatibility standard, if a driver’s duty cycle consists of data recorded from multiple ELDs, then the records will be in multiple files. If the ELD is set to combine them, then a provider could opt to use an additional field as a database element in order to keep them separated. In today’s rule, FMCSA has added a secondary reference to the original duty status to include a date and time field. There are multiple methods to handle combining data from more than one source and FMCSA has purposely left this open for the innovation and flexibility of ELD providers. L. Engine Power Up and Shut Down 1. Comments to the 2014 SNPRM The SNPRM proposed that an ignition power on cycle refers to the engine power sequence changing from ‘‘off to on and then off.’’ This refers to a continuous period when a CMV’s engine is powered. Omnitracs asked if, since CMV ignition can be in the ‘‘on’’ position without the engine running, the ELD must capture when the ignition is in the on position without the engine running. The same commenter recommended E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations that the 1-minute time for power up be relaxed to 3 minutes to allow for a cold boot situation. Zonar asked what constitutes ‘‘Ignition power on cycle’’ when connected to a hybrid truck? A hybrid truck will not produce a RPM of greater than 0 until driven. 2. FMCSA Response The technical specification included a capture for when the engine goes from on to off, but the intended data capture was for when the driver intended to drive the CMV. Though propulsion variations can be defined, FMCSA wants the specification to capture when the CMV is put into a state where it can be driven. Likewise, ignition on/engine on for a hybrid vehicle will be the status of vehicle ready to drive—the equivalent to ‘‘engine on’’ for an internal combustion engine. FMCSA continues to require the capture of the engine on data. FMCSA does not accept the suggestion to relax the power up status to 3 minutes because the Agency believes that 1 minute is sufficient. Any cold boot event records that would be captured could be annotated, or would be clear from the type of activity that occurred. A 3 minute cold start would be a rare occasion, and would be captured as a diagnostic event, not as a fault, and should not impact driving time. M. Engine Synchronization Compliance Monitoring tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2014 SNPRM The SNPRM proposed that an ELD monitor the data it receives from the engine ECM or alternative sources to record history to identify instances and durations of its non-compliance with the ELD engine synchronization, and establish a link to the ECM, as well as set an engine synchronization compliance malfunction if connectivity to any of the required data sources is lost for more than 30 minutes during a 24-hour period aggregated across all driver profiles, including the unidentified driver profile. FMCSA also proposed that engine synchronization must be functional for all but 30 minutes in a 24-hour period. If it is not, an engine synchronization compliance malfunction must be logged. If the vehicle ECM becomes unresponsive, XRS asked what value should be inserted into these fields to record the malfunction. There are other cases of failure that could prevent significant data being available to record (e.g., Driver interface unit failing. . . . ‘‘Data recording compliance’’ malfunction). The ECM could recover at VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 a later point and the system will be fully functional. XRS wanted FMCSA to clarify the 30 minutes mentioned in this section. This could easily exceed 30 minutes in a 24 -hour period especially with many jurisdictions around the country prohibiting CMV drivers from idling their engines. There is the possibility that a vehicle bus under particular stress may not respond for more than 5 seconds. Clarification on the 24-hour period as well as the aggregate of the 30 minutes against all profiles may be difficult or give false errors. Verigo noted that, given the wide variety of computer processor speeds and other sequencing events that may be encountered, the 5-second limit may introduce a significantly higher level of error reporting than necessary to promote safe operation. There have been several instances where the OBD–II interface does not become active when the ignition is switched on, but only after the vehicle is started. Without additional conditions to be checked, it seems likely that there will be invalid logs of engine sync failure for these vehicles (i.e. driver turns on ignition and listens to the radio). It would be useful if the Engine Sync Compliance Monitoring is not required to log a failure until after engine ignition is detected and motion is detected (via GPS) and vehicle data are not available. Eclipse Software Systems stated engine synchronization must be functional for all but 30 minutes in a 24hour period. If it is not, an engine synchronization compliance fault must be logged. This is problematic in that the engine bus is not always operational. When the engine is not powered and a cab door is not open, there is usually no activity on the engine bus. This is indistinguishable from the wires to the engine bus being disconnected. One action is harmless, the other is tampering. 2. FMCSA Response Table 4 of the appendix explains the malfunction codes that must be listed for a variety of issues including engine synchronization compliance malfunctions. If the ECM or ECM connectivity is unresponsive for more than 5 seconds, or if the failure cannot be recorded until the ELD is fully functional again, Table 4 in the appendix outlines how to capture these malfunctions. These conditions are not expected to be occurring frequently but FMCSA acknowledges that on occasion that a malfunction or disconnection anomalies will occur, but still requires the ELD to adhere to the standard of PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 78333 consistent connectivity expected of the ELD product. In regards to the concern about the aggregate 30 minute period in a 24 hour period, FMCSA believes that this is a generous standard for HOS compliance. If a driver is concerned about this malfunction, there are several ways, including a simple pre-boot, to ensure that the ELD is ready to receive data as soon as the ECM or ECM connection sends it. Additionally, when an ELD displays a malfunction, the authorized safety official should be able to see what the problem is and take that into consideration. There would be enough data in this instance to see what the issue was, and what the real driving time is. When the engine is not powered, the ELD does not have to capture data. The 30 minutes verifies that additional miles and movement has not taken place in the 24 hour period. FMCSA clarifies that the ECM data or ECM connectivity data must only be captured when the engine is powered, but the ELD is not prohibited from recording information, if desired, when the engine is off. If the CMV is older than model year 2000, then the driver is not required to use an ELD. However, if that driver is voluntarily using an ELD in a vehicle older than model year 2000 with the connections required in section 4 of the appendix, then the interface should become active when the engine is on, not just when the switch is turned on. N. Engine Miles 1. Comments to the 2014 SNPRM The SNPRM proposed that engine miles be retrieved from an ECM if the CMV had an ECM. If a vehicle was older than model year 2000, and did not have an ECM, then the vehicle miles would have to be derived. Zonar stated that there are multiple sources of engine miles. Because of widespread variability among CMVs with respect to what data can actually be readily extracted by ELD providers, Zonar believed FMCSA should consider a version of ELD that substitutes GPSderived data (such as mileage) for data that cannot be readily obtained from a vehicle ECU or a vehicle data bus. Modern GPS fleet tracking devices can be wired securely and permanently into a vehicle, can be programmed to uniquely identify individual vehicles, and can provide very accurate mileage data and truck run time data to validate driver records. 2. FMCSA Response Because today’s rule is only mandatory for motor carriers operating E:\FR\FM\16DER2.SGM 16DER2 78334 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations CMVs that are model year 2000 or newer, all engine miles must be derived from the ECM or ECM connection. Synchronization with a satellite for the receipt of GPS-derived data is not the same as being integrally synchronized with the engine of the CMV, as required in today’s rule. Engine synchronization for purposes of ELD compliance means the monitoring of the vehicle’s engine operation to automatically capture data, including: the engine’s power status, vehicle’s motion status, miles driven value, and engine hours value. O. Records Logged Under the Unidentified Driver Profile 1. Comments to the 2014 SNPRM The SNPRM proposed that all records logged be recorded on the ELD. If a driver did not respond to prompts to log in, that time became unassigned driving time, and would be visible to any authorized safety official viewing the ELD records. Omnitracs stated that it was unclear how to handle unclaimed, unassigned driving time. It recommended that the persistence of unclaimed unassigned driving time only be kept on an ELD for 8 days (maximum duty cycle). After such time, the ELD may delete any recorded yet unclaimed unassigned drive time. In addition, unassigned driving time should be sent to any ELD support system (e.g., host system) for future assignment if the driver does not claim unassigned driving time on the ELD directly. Omnitracs recommended an exception to this requirement in the case of unit maintenance where the ELD may be completely ‘‘reset’’ and all data purged from the ELD. In this situation, the ELD is allowed to act as a ‘‘new’’ ELD with no driver history. In addition, Omnitracs recommended that any ELD support system not be required to maintain this information and then ‘‘push’’ back to the ELD post maintenance. tkelley on DSK9F6TC42PROD with RULES2 2. FMCSA Response All data for the last 8 days, including unassigned driving time, must be available at roadside. There is no requirement that unassigned driving time be available at roadside after 8 days. All data older than 8 days can be purged from the ELD, but all data, including unassigned driving time, must be available to inspectors at the motor carrier’s principal place of business for 6 months. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 P. Power-On Status Time 1. Comments to the 2014 SNPRM The SNPRM stated that an ELD must be powered within 15 seconds of the vehicle’s engine receiving power and must remain powered for as long as the vehicle’s engine stays powered. XRS stated that FMCSA needs to clarify the definition of power on the device within 15 seconds referencing Fig 1. XRS asked if this is for internal processing or is this for all input and outputs? There are portable devices commercially available that can take much longer than 15 seconds to be available; these are tablets, ruggedized handheld computers, and smart phones that can meet all other ELD recording requirements. Omnitracs raised the same issue. It stated that a better solution would be for the system to read and retain data from the ECM; a 180second time frame would better accommodate existing hardware that could have slower cold boot capabilities. Omnitracs and inthinc noted that the rule does not indicate what ELD functionality is required. 2. FMCSA Response As part of the ELD User Guide or a driver Standard Operating Procedure on proper use of the ELD, FMCSA will recommend that the driver turn on the engine and then power on and start up the ELD, before moving the vehicle. However, the requirement remains the same; the device must receive power within 15 seconds, and the driver should pre-boot the equipment prior to powering up the vehicle. Similarly, at power off and shutdown, FMCSA will recommend driver certifications of records, followed by ELD log off, followed by engine shutdown. By not following these recommendations, malfunction codes and annotations will be needed in order to explain unaccounted odometer changes and suspicious driving activity. This 15 second start up time is not unreasonable, compared with other start up times for similar technology. However, in response to the concern from commenters, FMCSA extends the requirement to a period of 1 minute for full functionality in today’s rule. Additionally, any reboots that take longer would already be logged as power diagnostic events. Q. Time 1. Comments to the 2014 SNPRM The SNPRM proposed that the ELD automatically record the time at changes of duty status and certain intervals (§ 395.26(b)(2)). As described in the PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 proposed data elements dictionary (proposed section 7.1.39; section 7.40 in this rule), even though time must be captured in UTC, event records must use time converted to the time zone in effect at the driver’s home terminal. Proposed section 4.6.1.3, timing compliance monitoring, would have required an ELD to periodically crosscheck the automatically acquired date and time with an accurate external UTC source. Zonar asked FMCSA to clarify all sections that reference time format. Zonar commented that it can be very difficult to calculate a true 24 hours and accurately record time unless there is a one consistent format; multiple formats cause inconsistencies in data. If one event needs to be recorded as HH:MM:SS then all clocks within an ELD need to run on this format. If the HH:MM:SS clock needs to record an HH:MM for a different event, the commenter asked how the ELD should handle the seconds—does it round up or down. Zonar asked for specific examples within guidance to this question and suggested an HH:MM clock to eliminate the need to round the seconds. Eclipse Software Systems stated that it had seen many projects in the past where storing time in the local format leads to problems, particularly when at or near daylight savings changeovers. While it is only 1 hour per year, when daylight savings occurs in the fall, there are two periods from 1am to 2am. All events during those 2 hours are ambiguous. It recommended that all times be stored and reported in UTC, which is what is reported by GPS systems by default. Omnitracs stated a concern about recording a qualifying 34-hour restart. With respect to timing compliance monitoring, Eclipse stated that aside from GPS, it is difficult to obtain other reliable sources of the precise time. It has seen cell towers (which are not accessible from all proposed ELDs) have time stamps that are years off. The ELD could watch for backdating, if a time stamp from GPS is ever before another received timestamp from GPS, but other validation would be quite difficult. 2. FMCSA Response In response to comments, FMCSA changes the time to be captured in today’s rule to include seconds. Today’s rule requires an ELD to convert and track date and time—captured in UTC standard—to the time standard in effect at driver’s home terminal, taking the daylight savings time changes into account. An ELD must record the driver’s RODS using the time standard E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations in effect at the driver’s home terminal for a 24-hour period beginning with the time specified by the motor carrier for that driver’s home terminal. The data element ‘‘Time Zone Offset from UTC’’ must be included in the ‘‘Driver’s Certification of Own Records’’ events as specified in section 4.5.1.4. Time must be stored in UTC, and reported in carrier’s local time. If an ELD stored it in a different format that was translated to UTC, this would be acceptable. In today’s rule, FMCSA does not require the ELD to record State time. FMCSA does not believe that it is necessary for the ELD to record State time for HOS compliance. However, FMCSA does not prevent ELD providers from including State time as part of a compliant ELD. In regard to the comment on timing compliance monitoring, this section of the rule has been clarified per the requester’s suggestion and the rule no longer requires the ELD to cross check time if it uses GPS. R. User List tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2014 SNPRM In section 4.8.2.1.2, the SNPRM proposed that the ELD should provide a ‘‘user list.’’ In chronological order, this user list shows all drivers and co-drivers with driving time records on the most recent CMV operated by the inspected driver or motor carrier’s support personnel who requested edits within the time period for which this file is generated. If ELDs are swapped on a CMV, Omnitracs believed that the new ELD should not be required to know the driver list for the CMV prior to the ELD being installed in the CMV. XRS stated that FMCSA needs to describe how this user list would be used at roadside and if there could be a validation process for its use. Depending on the time of day, there may be users who will not be in the CMV user list from the support system due to last time the CMV communicated with the host. 2. FMCSA Response For a reset or replaced ELD, today’s rule requires data or documents showing the driver’s RODS history in the vehicle. This data would include the driver’s past 7 days of RODS either loaded into the ‘‘new’’ ELD or in paper format to be provided at roadside. There is no requirement that the ELD have a wireless connection. In the case of ELDs that include a wireless connection, a user list must be available up to the date from the last time the CMV or ELD communicated with the host or back office system. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 S. ELD Vehicle Interfaces 1. Comments to the 2014 SNPRM In the SNPRM, section 4.2 of the technical specifications proposed that an ELD must be integrally synchronized with the engine of the CMV. Engine synchronization means monitoring the vehicle’s engine operation to automatically capture engine’s power status, vehicle’s motion status, miles driven value, and engine hours value. An ELD used while operating a 2000 or later model year CMV, as indicated by the tenth character in the VIN, that has an engine ECM, must establish a link to the engine ECM and receive this information automatically through the serial or Control Area Network communication protocols supported by the vehicle’s engine ECM. The SNPRM proposed that if a CMV is older than model year 2000 and does not have an ECM, an ELD may use alternative sources to obtain or estimate these vehicle parameters with the listed accuracy requirements under section 4.3.1. XRS asked FMCSA to clarify if a link to the ECM is the only method for the ELD to receive information or could information be received from specific ECUs in the vehicle; e.g., can the ELD interface with other components on the bus including the instrument cluster and the vehicle management system. Because there is not Fstandardization on the OBD that is published with the Society for Automotive Engineers for odometer and other elements that could be captured, XRS asked what FMCSA would expect manufacturers to capture for light duty vehicles. The same commenter wrote that FMCSA needs to coordinate with National Highway Transportation Safety Administration concerning the requirements of the capturing of ECM data. For light duty vehicles that may be required to use an ELD, FMCSA should require providers of OBD–II to supply proprietary or public information to satisfy the regulation requirements for ECM data capture. XRS also believed that ECM data capture of specific OBD–II data requirements may increase the overall cost of ELD solutions. 2. FMCSA Response FMCSA agrees that mandatory transfer through the OBD–II could require additional information transfer or equipment. In today’s rule, FMCSA does not require drivers of CMVs manufactured before model year 2000 to use ELDs. However, if a driver of one of those vehicles voluntarily uses an ELD, they must do so in compliance with section 4.2 of the technical PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 78335 specifications in today’s rule. As indicated in that section, if an ELD is being used voluntarily in a vehicle older than model year 2000, it may use alternative sources to obtain or estimate the required vehicle parameters with the listed accuracy requirements under section 4.3.1. However, any CMV manufactured beginning model year 2000 must use an ELD that connects to the ECM. FMCSA believes that the ECM or ECM connectivity is the best and most costefficient source of data. However, FMCSA understands that drivers with non-ECM engines might see benefits from the use of an ELD. Today’s rule requires a reasonable proxy for the data if the ECM or ECM connectivity is not providing it. So although a connection to the ECM or ECM connectivity is preferable, voluntary use of an ELD could be used with any CMV, provided the accuracy specifications are met. T. Vehicle Miles 1. Comments to the 2014 SNPRM Section 4.3.1.3 of the SNPRM proposed that an ELD must monitor vehicle miles as accumulated by a CMV over the course of an ignition power on cycle (accumulated vehicle miles) and over the course of CMV’s operation (total vehicle miles). If the ELD is required to have a link to the vehicle’s engine ECM (as specified in section 4.2), the ELD must monitor the ECM’s odometer message broadcast and use it to log total vehicle miles information and determine accumulated vehicle miles since engine’s last power on instance. Otherwise, the accumulated vehicle miles indication must be obtained or estimated from an accurate source (within ±10 percent of miles accumulated by the CMV over a 24-hour period, as indicated on the vehicle’s odometer display). XRS suggested that FMCSA define specifics of odometer use that are acceptable. XRS questioned if the odometer may be used from the instrument cluster. XRS believed that the proposed method is inconsistent. Zonar stated that heavy-duty vehicles may have more than one controller on the data bus that provides odometer value in verifying levels of precision. Zonar suggested pulling the mileage from the dash as this is more accurate than the engine and is in-sync with what will be on the dash. Eclipse Software Systems stated that it would avoid calculating and storing the mileages for each on/off pair. It is simpler to record the odometer at the required intervals (duty status changes and hourly). The elapsed miles can be E:\FR\FM\16DER2.SGM 16DER2 78336 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations calculated (perhaps by eRODS) for each driving segment (and hour) using only that data. 2. FMCSA Response By definition, an ELD means a device or technology that automatically records a driver’s driving time and facilitates the accurate recording of the driver’s HOS, and that meets the requirements of subpart B of this part. The data received from the ECM is more accurate than the data that is displayed on the dash. However, when there is no ECM or ECM connectivity in the CMV, and an ELD is being used voluntarily, vehicle miles can be derived from either engine or dash odometer, provided that method of transfer meets the accuracy specification in section 4 of the technical specifications. If the reading of the mileage meets the accuracy specification required in section 4 of the appendix, although it could be slightly different in the ECM than on the odometer, the reading ensures the vehicle mileage data is of value. In the case of large anomalies between the two readings, the authorized safety official will decide whether further investigation would be required. U. Vehicle Motion Status tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2014 SNPRM In section 4.3.1.2, the SNPRM proposed that an ELD must automatically determine whether a CMV is in motion or stopped by comparing the vehicle speed information to a set speed threshold. If an ELD is linked to the ECM, vehicle speed information must be acquired from the engine ECM. Otherwise, accurate vehicle speed information must be acquired using an independent source—apart from the positioning services described under section 4.3.1.6. Omnitracs recommended a second distance threshold as an additional means to automatically detect and transition into driving status. This commenter believed that simply using a speed threshold could potentially reduce accuracy in determining an actual driving event. Ongoing verification of this accuracy would require an alternate source of speed detection and is not feasible during normal operation. In addition, Omnitracs believed this level of accuracy (+/¥3 miles per hour tolerance) should only be required at the bottom end of the speed values used for motion detection and not be required at higher speed readings (e.g. at 75 mph). VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 2. FMCSA Response FMCSA continues to believe that a speed threshold is the best way to determine accurate motion. FMCSA declines to create an alternate threshold that relies upon distance; the data files and the actual location will show how far the CMV has moved. Any additional threshold that captures vehicle motion before the speed threshold required by the rule is met is acceptable. However, as soon as the required speed threshold is met, the ELD must record, even if the alternate threshold is not met. In today’s rule, once the vehicle speed exceeds the set speed threshold of no more than 5 miles per hour, it must be considered in motion until its speed falls to 0 miles per hour and stays at 0 miles per hour for 3 consecutive seconds, at which point it will be considered stopped. FMCSA has established this requirement to determine the initiation of vehicle motion, which is at a very low speed of no greater than 5 miles per hour. The accuracy does not apply to highway speed. V. Wireless Electronic Transfer 1. Comments to the 2014 SNPRM Proposed section 4.10.1 provided that ELDs must transmit records electronically in accordance with a specified file format and must be capable of a one-way transfer of these records to authorized safety officials upon request. Proposed section 4.10.1.1 described the standards for transferring ELD data to FMCSA via Web services. BigRoad stated that section 4.10.1.1 describes how an ELD provider must obtain a public/private key pair compliant with NIST SP 800 32. Using a private key in this scenario is not ideal since it would have to be stored on every ELD that might create the email and is therefore exploitable via memory inspection or code disassembly. 2. FMCSA Response All required security measures for data transfer with the Agency, public or private, will require strict adherence to NIST for all data in transit or ‘handshakes’ between Government and private systems. DOT guidelines follow NIST 820. The exact Public Key Infrastructure (PKI) for ELD data transfers will be distributed once ELD providers register and certify ELDs. W. Pre-2000 Model Year CMVs 1. Comments to the 2014 SNPRM FMCSA sought comments on issues related to installing and using an ELD on CMVs manufactured prior to model year 2000. The SNPRM required all PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 drivers using RODS to use an ELD, regardless of the CMV the drivers operate. 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. For vehicles that do not have a diagnostics port, but have an electronic speedometer, Continental stated that the ELD can use the analog speed signal to calculate the odometer and engine hours. This functionality is already integrated in some existing AOBRDs at no additional cost. For vehicles that do not have a diagnostics port and that have a mechanical speedometer (mostly built before 1992), Continental wrote that a speed sensor must be added to convert the mechanical signal into an electronic pulse signal. XRS stated that the GPS solutions and related costs for black boxes could have 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 costprohibitive. When a connection to the ECM is not available, it recommended that GPS be used to determine vehicle speed. The commenter wrote that nonGPS options to determine vehicle speed include ranging laser, accelerometer, revolution counter (tire); or camera. PeopleNet did not believe any of these options could ensure accuracy within (plus or minus) 3 miles per hour of the CMV’s true ground speed. Zonar supported using GPS-based ELDs for older CMVs. It stated that modern GPS fleet tracking devices can be wired into a vehicle, be programmed to identify individual vehicles, and provide very accurate mileage data and truck run-time data. The Truck and Engine Manufacturers Association raised questions about whether FMCSA was referring to model years or calendar years. The commenter believed that 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 stated that OBD–II ports data could not be shared if they are already dedicated for another purpose. Another problem is that 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. E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 2. FMCSA Response When FMCSA developed the technical specifications, the Agency considered whether ELDs could be easily installed in the full range of CMVs operated by drivers subject to the HOS requirements. The Agency determined that the most practical and cost-effective means of achieving compliance is the use of the ECM or ECM connectivity or OBD–II ports. Generally, these options are available in all the vehicles manufactured beginning with model year 2000 and on many pre2000 vehicles. After reviewing the comments in response to the SNPRM, the Agency believes that imposing a requirement for ELDs on pre-model year 2000 vehicles is not feasible in all cases and that trying to distinguish when it is a viable option is too difficult in this rulemaking and next to impossible at the roadside. Some private-sector publications, such as the IHS Inc.’s March 2014 publication ‘‘Quarterly Commercial Vehicle Report,’’ suggest that the population of pre-2000 Class 3 through Class 8 CMVs (CMVs with a gross vehicle weight rating greater than 10,000 pounds) is approximately 35 percent of the registered CMVs in operation (4,178,000 pre-2000 versus 7,723,000 2000-current). These vehicles will have been in operation more than 17 years by the compliance date of this rule. Therefore, the percentage of these vehicles operated by drivers who are required to use ELDs is likely to be small. The Agency decided not to use alternate technology for vehicles without ECMs, ECM connectivity or OBD–II ports. While FMCSA is aware that there are technologies that would make this possible, it does not mandate their use. In the RIA for today’s rule, FMCSA estimates that there will be approximately 209,000 pre-2000 model year vehicles in 2017. FMCSA has decided to exempt this relatively small population of CMVs. Concerning the comment from XRS, part 395 does not require black boxes nor is there anything in the SNPRM related to ‘black box’ modification. Each ELD provider supports proprietary communications via satellite, code division multiple access or CDMA, Bluetooth, etc. The market dictates these products and their communication needs. X. Authenticated User and Account Management 1. Comments to the SNPRM Section 395.22(b)(2)(i) of the SNPRM would have required that the motor VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 carrier actively manage the ELD accounts. The motor carrier would have to include certain identification data elements in the ELD user account assigned to a driver (§ 395.22(c)). These data elements include the driver’s license number and the name of the State that issued the license. Under the proposal, the motor carrier assigns the ELD username during the creation of a new ELD account (§ 395.22(b)(2)(ii)). As proposed, the ELD username is any alphanumeric combination, 4 to 60 characters long, but it cannot include either the driver’s license number or social security number. The SNPRM also proposed adding unique authenticated-user profiles for all users of the ELD and its support system, to increase transparency and responsibility between a motor carrier and its drivers, as well as to prevent fraudulent activities. Commenters expressed concern with the requirements for user names. FedEx stated that it is too restrictive. Because current usernames are sufficiently identifying drivers, FedEx suggested that FMCSA expand this requirement to allow ELD users to set the format of their own usernames. Concerns about the creation of multiple aliases for a single driver could be addressed via DOT compliance reviews. FedEx stated that the requirement does not accommodate all motor carrier structures. FedEx suggested that the user rights management rule require that ELD accounts are managed appropriately and that the motor carrier is responsible for any failures. With the carrier ultimately responsible, the rule need not dictate who must manage the account. ATA stated that FMCSA should consider alternatives that accomplish the same objectives and include the same protections against fraud. This alternative would prevent carriers and providers from having to implement new systems to assign identifiers based on CDL numbers. Saucon Technologies stated that requiring drivers to enter their entire CDL number and State presents some technical challenges. Many existing ELD solutions do not provide the ability to enter alphabetical characters, only numeric characters. Requiring the name of the State and entire CDL number would necessitate new hardware and increase the time required for drivers to sign on. Schneider asked for clarification on what proper identification data are as they relate to logging into an ELD. AGC stated that in its industry multiple drivers—including temporary employees—may use a vehicle. FMCSA PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 78337 should establish a more secure means to identify the driver operating the vehicle and tie the resulting ELD records to that driver. Several commenters stated that the requirement that a person have a single role (driver or support person) fails to accommodate smaller carriers where there is no support staff and the driver/ owner fills both roles. BigRoad stated that proposed section 7.1.13 (7.13 in this rule) indicates that a person who is both the driver and the support person would need to maintain two separate accounts in the system, since each account can only be given a single role in the ELD account type field. That person would have to switch between accounts to perform different functions on the same system, creating an unnecessary administrative burden. XRS, Omnitracs, inthinc, and Zonar also raised this issue. XRS asked if account creation can be performed on the host and if the credentials can be stored on the host. Zonar asked how a driver can certify his or her records at the end of a 24hour period if the driver has gone off duty for multiple days. It suggested allowing the driver to confirm the records on the driver’s return to duty. Section 395.32(c) describes the carrier’s responsibility to review unidentified driving records; however, it does not establish an expectation for when the motor carrier must complete the review. Schneider recommended that the rule specifically state the number of days a carrier is allowed to research and assign the unidentified driving segments or annotate the record explaining why the time is unassigned. Because the carrier has to make contact with the driver or research if the tractor was moved by maintenance, one commenter believed that 8 days is a reasonable time frame to allow for this research to be done. 2. FMCSA Response FMCSA acknowledges commenters’ concerns, but emphasizes that the rulemaking does not impose the types of restrictions on usernames and passwords that the commenters described. Section 4.1.2 of the appendix to part 395 covers account creation with the explanation that each driver account must require the entry of the driver’s license number and the State of jurisdiction that issued the driver’s license into the ELD during the account creation process. The driver’s license information is only required to set up the user account and verify the identity of the driver; it is not used as part of the daily process for entering duty status information. E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78338 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations There may only be one user account per driver’s license number and the carrier would be responsible for establishing requirements for unique user identifications and passwords. Therefore, the burden that commenters believed would be imposed by the rule was not intended and indeed is not a requirement in this rule. This rule does not differentiate between temporary and permanent employees, nor does it affect how many drivers may use a CMV. Each motor carrier that assigns a driver to operate a CMV under its DOT number must establish and manage an ELD user account for that driver. Each driver should have one account that allows him or her to login and perform driver-related functions specific to the driver. All other administrative functions should be based on the discretion of each company or its provider. This means a driver who is also the owner of the company would have a single account authorizing entries as a driver, and a separate account for administrative functions. Accounts can be created on the ELD or the ELD support system. In response to Zonar’s comments, FMCSA emphasizes that a driver only needs to certify his or her records for each 24 hour duty status period he or she is on duty. This is the case under the HOS rule and the ELD rulemaking does not alter the duty status requirements under the HOS rule. The ELD would allow the record to be confirmed as off-duty when the driver returns to duty. There is no prohibition on a driver certifying multiple days off on a single RODS. And, in the case where the driver has Web-based access to review the records and make certain edits or entries, the rule does not prohibit the driver from logging into the system to provide updates on the duty status when there are multiple days away from the CMV. This is also a means for drivers employed by more than one motor carrier to update records between carriers. Regarding the issue of providing carriers enough time to audit electronic RODS and make corrections, FMCSA does not place limits on when an annotation or correction may be made. The motor carrier must maintain the original record so that authorized safety officials can compare the chronology with the annotations and corrections, and supporting documents. Y. ODND Time 1. Comments to the 2014 SNPRM The existing HOS rules require a driver to record in his or her RODS any VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 ODND time, even if it is not in the truck (see § 395.2, On-duty time). The SNPRM did not propose any changes to this underlying HOS requirement. Saucon Technologies, XRS, Zonar, and PeopleNet suggested that FMCSA clarify how ODND time is to be managed when the driver is not at the truck. PeopleNet stated that many customers use payroll integrations to put their drivers on duty (i.e., when the driver swipes the time clock, it puts the driver on duty via the AOBRD). Payroll integrations also allow administrators to put a group of drivers on duty to account for time spent at a safety meeting. 2. FMCSA Response FMCSA emphasizes that today’s ELD rule does not change the underlying HOS requirements. The ELD automatically captures the date, time and location when the vehicle is turned on and turned off, when someone starts to drive the vehicle, and when the individual stops driving. The system also captures automatically the date, time and location when manual entries are made so that the driver’s location and time are captured when manual entries (such as on-duty, not driving, or sleeper berth) are entered. An ELD system relies upon the driver to enter information about the duty status when the vehicle is stopped or parked. The ELD captures the same duty status options that are available to drivers currently relying upon paper RODS. The technical specifications do not prevent supervisors from having administrative rights to add ODND time onto drivers’ ELD records. With regard to time a driver may spend working for another employer, the time must be counted as on-duty time, either driving or not driving. This is required by the current HOS rules, and the ELD mandate does not change this fact. The ELD system mandated by this rule provides drivers with the ability to update their RODS to account for time the device is not capable of generating automatically. Z. Data Transfer 1. Comments to the 2014 SNPRM The SNPRM used a menu-style approach, and several of the compliant options would have required wireless connectivity. The SNPRM proposed that all ELDs would need to use one of seven combinations of USB 2.0, printouts of QR codes, TransferJet, wireless Web services, Web email, and Bluetooth for the electronic transfer of data to authorized safety officials. One alternative included a printout. The PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 SNPRM also required an ELD to be able to present a graph grid of the driver’s daily duty status changes either on a display unit or printout. Omnitracs stated that the SNPRM’s technical requirements for data transfer mechanisms, and the options provided, use technologies that are not easily adaptable or readily available for enforcement to deploy. The IME generally supported requirements to ensure that the ELD would be able to communicate with officials at roadside. IFDA stated that the requirement that systems use a ‘‘standardized single-step driver interface for compilation of driver’s ELD records and initiation of the data transfer to authorized safety officials . . .’’ is unnecessary and overly prescriptive. Many devices currently in use require the driver to perform more than a single step to display the information. These systems do not pose a significant burden for drivers or authorized safety officials and do not appear to compromise safety in any way. IFDA opposed the requirement for a graphic display or printout, and they felt that these unnecessary requirements would add additional costs without any commensurate safety value. CVSA believed that the regulation should require a practical standard interface for manual roadside inspections: ‘‘A requirement for a printout of the HOS graph grid showing the same information contained in the paper logs is a proven, reliable, and cost-effective technical solution that would significantly enhance the enforceability of the regulation.’’ PeopleNet stated that providers should have to support only one primary and one secondary method. Boyle Transportation recommended FMCSA require support systems for ELDs, use Web services exclusively, allow display mode for inspections, and limit electronic submissions. A rural transit provider stated that connectivity is not available in many areas, so Internet and cellphone reception is not possible. ELDs that rely on such connectivity are not viable. 2. FMCSA Response In consideration of the comments, FMCSA revised the data transfer options, by establishing two options for electronic data transfer (option one is a telematics-type ELD with a minimum capability of electronically transferring data via wireless Web service, and email; option two is a ‘‘local connectivity’’ type ELD with a minimum capability of electronically transferring data via USB 2.0 and Bluetooth). Additionally, both types of ELDs must be capable of displaying a E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations standardized ELD data set in the format specified in this rule via printout or display to an authorized safety official on demand. FMCSA’s changes address comments and concerns about the types of data transfer, as well as provide flexibility for providers and motor carriers looking for ELDs to suit different business needs and costs. These changes are discussed in more detail in the next few sections. Although areas within the United States where data connectivity is not available are shrinking, FMCSA understands that some areas of the country do not have such access. Today’s rule allows for alternative methods of data transfer including Bluetooth and USB 2.0. Where data transfer is not practical, the driver can still show enforcement compliance via a printout or the ELD display. Due to potentially hazardous conditions (i.e., weather, traffic, etc.) during roadside inspections, authorized safety officials may ask drivers to hand them their ELD outside of the CMV so that they may examine the ELD display of data at a safe distance outside of the CMV. Absent a printout, an ELD must be designed so that its display may be reasonably viewed by an authorized safety officer without entering the CMV. tkelley on DSK9F6TC42PROD with RULES2 AA. USB 2.0 1. Comments to the 2014 SNPRM J.B. Hunt, Continental, and PeopleNet supported USB 2.0 as a method to electronically transfer data due to its low cost, and ease of deployment without complex IT infrastructure nor any monthly communication and service fees. With appropriate security software on the USB 2.0 device, J.B. Hunt wrote there could be safeguards to avoid transmission of malware. Eclipse Software Systems recommended requiring ‘‘at least one’’ USB 2.0 port on ELDs. In contrast, the National School Transportation Association (NSTA), BigRoad, Omnitracs, inthinc, and Drivewyze Inc. (Drivewyze) did not fully support USB 2.0 as a required backup method for the electronic transfer of data due to future hardware design constraints, security/encryption concerns, lack of availability of connections on computers, and probable obsolescence. J.J. Keller and Associates, Inc. (J.J. Keller) noted that requiring a specific technology, such as USB 2.0, constrains the hardware design to meet the specifications. This will likely cause more frequent upgrades in hardware to adapt to more modern USB 2.0 flash devices, increasing cost to industry. Inthinc recommended that the rule state VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 that USB transfer is specifically for a drive—not for just a cable—and that the USB 2.0 port on the ELD can be an accessory to the ELD. 2. FMCSA Response FMCSA believes that USB 2.0 is a cost-effective, technically viable option for many authorized safety officials to obtain an electronic data file from an ELD. The Agency acknowledges that some States have IT security—related restrictions that would preclude their officers from relying on USB 2.0 drivers or USB 2.0 connections to the ELD as a means of retrieving the RODS information. This information was presented during the MCSAC’s session concerning ELD technical specifications. The Agency continues to believe it should be included in the list of options for making data files available to roadside inspectors. It is not expected that this option would be used by every State, but retaining a range of capabilities required on the driver side, including USB 2.0 capability, will help to ensure flexibility for the enforcement community. In the SNPRM, the USB 2.0 as a part of almost every option for an ELD. In today’s rule, the USB 2.0 is a requirement, along with Bluetooth under only the ‘‘local data transfer ’’ option, meaning that it would be possible to have a compliant ELD that did not have USB 2.0 if the telematicstype ELD is selected for use. In regard to USB standards becoming obsolete, that is the case with any technical standards irrespective of whether the standards are referenced in a rulemaking. The criticism of the USB 2.0 standard not being widely used by authorized safety officials is no longer relevant, given that authorized safety officials will have the option, under today’s rule, to utilize Bluetooth instead of USB 2.0 for electronic data transfer. BB. Wireless Data Transfer Through Web Services 1. Comments to the 2014 SNPRM PeopleNet recommended using a Web Service as a primary electronic data transfer method, while Continental supported it as an option, but not a mandate. BigRoad recommended eliminating wireless data transfer through Web Services to simplify inspection requirements. Omnitracs stated there is a need for clarification around the use of the public/private keys in this section, including security provisions and the process for refreshing the public/private keys as a part of security best practices. PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 78339 Inthinc recommended Representational State Transfer (REST), noting that Simple Object Access Protocol (SOAP) is much more difficult and expensive to implement, and it is becoming archaic. 2. FMCSA Response FMCSA believes that Web Services will be a viable data transfer option for telematic ELD providers. SOAP is a standards-based Web services access protocol utilized for telematics data transfers. Therefore, today’s rule retains Web Services as a valid method of data transfer, one of the two methods described in section 4.9.1(b) to transfer data as part of the telematics option, along with wireless email. FMCSA has clarified the public/ private key in section 4.10.1.1. of the technical specifications of this rule. CC. Wireless Services via E-Mail 1. Comments to the 2014 SNPRM J.B. Hunt and inthinc supported email as a viable, low cost option for electronically transferring ELD data. Inthinc believes that ELDs could have all inspection station email addresses pre-programmed or ELDs could automatically send emails to these addresses upon entry to inspection stations. Continental supported it as an option, but not a mandate. Drivewyze said that this option is redundant with Web services and could be cut. BigRoad recommended eliminating this option to simplify inspection requirements. Omnitracs stated there is a need for clarification around the use of the public/private keys, including security provisions and the process for refreshing the public/private keys as a part of security best practices. 2. FMCSA Response Today’s rule allows the use of email as a part of the telematics ELD specifications in section 4.9.1(b) of the appendix to part 395, along with Web services. FMCSA does not believe it is redundant because it provides a way for enforcement to access the data without using FMCSA or other government systems. Authorized safety officials could use either Web services or wireless email to verify ELD data from an ELD with this telematics option. FMCSA agrees that inspection stations and other enforcement Agencies could post or share a standardized email address but does not require this. FMCSA believes a benefit of transferring ELD data to authorized safety officials by email is a viable method to submit data to the officer if necessary. E:\FR\FM\16DER2.SGM 16DER2 78340 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations FMCSA clarifies the public/private key requirements in 4.10.1.1(4)(b)(2) of the technical specifications. DD. Bluetooth 1. Comments to the 2014 SNPRM Drivewyze recommended Bluetooth as a viable data transfer option. Continental supported it as an option, but not a mandate. J.B. Hunt noted that Bluetooth transmissions are short-range, which would limit the effectiveness of this technology. Eclipse was concerned about Bluetooth personal area network in the roadside environment, commenting that Bluetooth has a typical operating range of 30 feet. Many officers use laptops mounted in their patrol vehicles, which sit behind the truck and a 52-foot trailer, making reception from the patrol car cab unlikely. Verigo and inthinc disagreed with including Bluetooth as a means of electronic data transfer. Garmin Ltd. (Garmin) believed the description of transferring ELD records using the Bluetooth transfer method in section 4.10.1.2 should be further clarified. Once the connection is successfully established, this section indicates that the ELD must connect to the official’s technology via wireless PAN and transmit the required data via Web Services as described in section 4.10.1.1. Garmin wanted FMCSA to consider the case where the official’s device cannot connect to the internet. In this scenario, it will also be possible to transfer the ELD records directly to the official’s device over Bluetooth. tkelley on DSK9F6TC42PROD with RULES2 2. FMCSA Response FMCSA included Bluetooth as part of the local data transfer ELD option specifications in section 4.9.1(b), along with USB 2.0 connectivity. FMCSA acknowledges that Bluetooth has its limitations as all technologies do, but, it is a widely used, reliable, short range non-telematic data transfer method. In today’s rule, FMCSA changed the language in 4.10 to clarify the fact that the Bluetooth transfer does not occur via telematics, as was written in the SNPRM. If a driver is using a local data transfer method and the officer cannot accept the data for some reason, the officer has the ability to request the data in the form of a display on the ELD or a printout, depending on the type of ELD. FMCSA does not agree with the commenter who stated that Bluetooth is not designed for this type of transfer; the mechanism for data transfer does not distinguish between the types of data being transferred. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 EE. QR Codes and Transfer Jet 1. Comments to the 2014 SNPRM Overall, none of the commenters supported QR codes or TransferJet as feasible solutions for electronically transferring ELD data for the purposes of roadside enforcement. Omnitracs, PeopleNet, XRS, inthinc, and Drivewyze did not believe that QR Codes are a viable ELD data transfer option at roadside. Omnitracs wrote that typical drivers would need to present between 6 and well over 30 QR codes that must be scanned by an authorized safety official in the proper order, which does not seem to be realistic in the field. Issues with screen size, screen resolution, the type of scanner (camera versus laser), and the amount of data that needs to be transferred adversely impact the ability of an authorized safety official to successfully scan the QR codes. Drivewyze stated that onscreen QR codes cannot be scanned, and printed QR codes are redundant with printing grid graphs. As a result, QR codes were recommended to be removed as an option. Drivewyz, BigRoad, PeopleNet, Continental, and J.B. Hunt questioned the feasibility of TransferJet as a viable method of electronically transferring ELD data to roadside officials. J.B. Hunt, XRS, and Drivewyze noted that TransferJet is not a mainstream technology. PeopleNet and XRS also stated that TransferJet is not widely used except in smartphones; and that there are limited suppliers of products to support current architectures. BigRoad noted TransferJet has no encryption mechanism built into the link layer; for security, the transmission should be encrypted. Continental pointed out that the TransferJet technology is not used today in either automotive or commercial vehicle applications and should be removed from the list of options. PeopleNet stated that TransferJet requires the purchase of additional hardware, which FMCSA did not take into consideration in the cost analysis. In addition, commenters were concerned that many suppliers would need to make modifications at the operating system level to take advantage of the new hardware. Commenters contended this solution would be prone to failure due to discrete hardware components, and increase both carrier and supplier support costs due to this sole source solution. 2. FMCSA Response FMCSA agrees with the commenters’ technical and practical concerns about both QR codes and TransferJet PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 technology as not being viable means of transferring electronic ELD data. Therefore, today’s rule does not include QR codes nor TransferJet technology as options for electronically transferring ELD data to authorized safety officials. FF. Other Communications and Technology Options 1. Comments to the 2014 SNPRM Garmin, J.B. Hunt, and Eclipse recommended use of Wi-Fi as an additional primary transfer option. Similar to using Bluetooth, Garmin wrote that Wi-Fi would enable the ELD to connect to the authorized safety official’s device via the local area network at the inspection site. Alternatively, the Wi-Fi connection at the inspection site could be used to transfer the ELD records via Web Services. Commenters pointed out that Wi-Fi range is larger than the very short range within which Bluetooth devices communicate, and it supports higher data transfer speeds. Wi-Fi technology has the means to support the setup of security-enabled networks where users can view available devices and request a connection, or may receive an invitation to connect to another device. Garmin recommended that an additional alternative method to consider is the transfer of ELD records using a secure digital (SD) card, that is via a microSD card and optional microSD to SD memory card adaptor. The requirements for authenticating the driver, the ELD system, and the official’s hardware when using the USB 2.0 method can continue to be realized and supported. 2. FMCSA Response FMCSA does not prohibit the use of a Wi-Fi device for intermediary transfer, but the data transfer to an authorized safety official must occur in accordance with the technical specifications. Data transfer to an authorized safety official must occur through wireless email, wireless Web services, USB 2.0, or Bluetooth. This is because implementation of another option would necessitate hardware changes for ELDs and would also increase the risks of conflicts between the regulatory options and the IT security regulations policies that FMCSA and its State partners must follow. GG. Data Reporting During Roadside Inspections 1. Comments to the 2014 SNPRM CHP stated that a data exchange may present cross connectivity issues when using a portable computer for ELD dataset exchange because of the threat of E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations computer viruses and malware, issues associated with encryption software, regional connectivity issues, operating systems compatibility, and data transfer best practices. Therefore, enforcement will continue to consist of an official physically observing the data on a device’s electronic display. Omnitracs stated that Option 1 presented in Table 5 has no backup mechanism should the printer become disabled, and all other options require two separate backup mechanisms. Inthinc recommended that the regulation state that authorized safety officials are mandated to accept whichever of the seven methods of data transfer that the ELD provider has opted to support. EROAD recommended that FMCSA consider implementing a simple generic report format as a transition to using eRODS software. FMCSA could require the ELD solutions to generate and send enforcement data not only in a raw data format, but also in a simple generic report format—an enforcement view of the ELD data/records. This could be a secure PDF file with a small number of relevant statistics. This option will be easily implemented in the interim while States adopt eRODS software, and such a report could be viewed on any device with ability to read PDFs. Because ELDs will have the capability to send raw data, the States will always be free to adopt eRODS software and develop or procure additional software to display the information in their own way. BigRoad stated that the only requirement is that ‘‘an authorized safety official will specify which transfer mechanism the official will use,’’ meaning that they can select any of the backup methods without supporting the primary method themselves. In particular, this could mean that although a device supports a primary mechanism such as Bluetooth, the safety official might only ever choose the backup USB 2.0 mechanism. The SNPRM provides no guidance or requirements for data transfer support on the devices used by authorized safety officials. BigRoad also stated that inspections should require that the ELD information be shown on the display of the ELD. Verigo stated that the SNPRM provided too many options. The backup method of file transfer from the ELD in CSV format should be limited to USB 2.0, QRC, or NFC. Advocates cautioned against allowing the introduction of any unnecessary intermediaries in the process of maintaining and transferring HOS data. To prevent data corruption, the Agency must require that the most recent 24 hours as well as the previous 7 days of operation be stored in the ELD VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 for immediate transfer to officers at the roadside. Advocates acknowledged the check value calculations, but did not believe that this limited security feature will thwart determined efforts to evade compliance. Advocates recommended that the Agency establish security features, which would be shared with certified manufacturers and shielded from those subject to the HOS requirements, namely drivers, carriers, and third parties servicing those groups. 2. FMCSA Response FMCSA believes the SNPRM presented an appropriate number of options for making the HOS data available to authorized safety officials. While various commenters had substantive technical concerns about the options, the Agency continues to believe that—with the exception of TransferJet technology and QR codes—the proposed options remain viable and cost-effective. However, FMCSA does believe that limiting the combinations of data transfer types to two types, local and telematics, and combined with a backup option, will make the data transfer to authorized safety officials clearer. FMCSA believes that today’s rule’s data transfer mechanism options suit the needs of many business operations of motor carriers, the daily needs of drivers, and the needs of authorized safety officials as well. Additionally, all ELDs are required to have a backup method for the authorized safety official to verify HOS compliance. FMCSA also believes that by not prescribing one specific standard, cost is kept lower and providers can provide ELDs that are able to meet the requirements of this rulemaking, including the security standards. The Agency considered IT security concerns and the potential need for additional hardware to implement the options. FMCSA does not believe that there are concerns about crossconnectivity and security concerns about portable devices. All ELDs will meet the same minimum standards; there is no reduction in security for portable devices. HH. Data Transfer Compliance Monitoring 1. Comments to the 2014 SNPRM Drivewyze requested clarification on the scope of a data transfer test given that this test may occur without the presence of a receiving roadside inspection system or that the receiving system may only support a limited number of transfer mechanisms. Without a full suite of connectivity tests that cover all transfer mechanisms, there PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 78341 can be no confirmation of compliance beyond a test that only monitors the ability to send data, not its successful receipt by third party systems. BigRoad stated that data transfer mechanisms are only truly verifiable when there are two endpoints to transfer between. It is unclear how either the ELD or the driver could verify transfer mechanisms without extra hardware components to act as one of the endpoints in the pair. BigRoad commented that some clarification of the extent and character of verification is needed. Omnitracs recommended removing the self-monitoring requirement on the primary data transfer mechanism. To fully verify primary data transfer mechanisms, the ELD would require (1) two Bluetooth radios to test, transmit, and receive (in the case of Bluetooth); and (2) two USB 2.0 connections and an interconnect cable to test, transmit, and receive over the USB 2.0 connections (in the case of USB 2.0). Since there are both primary and backup transfer mechanisms, this added hardware expense and complexity is not feasible. 2. FMCSA Response FMCSA believes the data transfer options provide a practical way to provide RODS information to authorized safety officials. It is expected that the ELD providers will be testing data transfer options before certifying their devices with FMCSA. If the authorized safety official is unable to receive or open the electronic file, this would not, in and of itself suggest that the ELD system that transmitted the file was non-compliant. The driver would then need to present the RODS information to the authorized safety official at roadside, either on a display screen or a printout. FMCSA does not remove the requirement to self-monitor. FMCSA will use its Web site to accommodate ELD testing in support of today’s rule. This site will accommodate provider registration, allow approved ELD providers to register their device with the Agency and act as single source site for: ELD registration keys, authentication keys, authentication files, data formatting and configuration details and data testing (end to end) with approved third parties. This site will also include an ELD Interface Control Document, specifically written for ELD providers and service providers. FMCSA is currently in the development stage of modifying this site in preparation for today’s rule and plans to have a registration site available and operational for ELD providers by rule’s effective date. E:\FR\FM\16DER2.SGM 16DER2 78342 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 II. Printing 1. Comments to the 2014 SNPRM In the SNPRM, FMCSA explored options that would require a printer during roadside inspections. FMCSA also proposed to require an ELD to be able to present a graph grid of a driver’s daily duty status changes—either on a display unit or on a printout—for the current 24-hour period and the previous 7 days. Proposed section 4.10.2.4, Printout, (section 4.8.13 in the today’s rule) laid out the data elements that had to be included in the printed reports for the authorized safety official at roadside. It also specified that print paper must be at least 2 inches wide and 11 inches in height, or on a roll of paper that could be torn when each individual printout was complete. CHP recommended that ELDs possess printer capabilities. Because of agencies’ encryption software, signal transmission, signal coverage, and different operating systems, CHP stated that it may be problematic to use software for ELD dataset exchange. CHP anticipated that enforcement would continue as usual, i.e., an official physically observing the data on a device’s electronic display or the data being faxed to an inspection facility. This limitation creates an enforcement situation that requires the official to conduct an enforcement action at a later time, once the faxes are received, or execute an enforcement action without a printout. BigRoad stated that portable printing devices such as photo printers might use non-standard paper sizes such 4″ x 6″ or 5″ x 7″. Such printed documents would easily be as legible as the allowed 2-inch roll, but would not be at least 11 inches in height or on a roll. BigRoad believed that FMCSA should modify this requirement so that drivers are able to choose the smallest printer that is suitable for printing legible ELD records with a minimum paper width of 2 inches. Continental stated that a 2010 survey indicated that over 50 percent of CVSAcertified inspectors did not have the equipment to receive and manage electronic files at roadside. A requirement for a printout of the HOS graph grid showing the same information contained in the paper logs is a proven, reliable, and cost-effective technical solution. Inthinc, OTA, and PeopleNet recommended that printing not be an option. PeopleNet stated that the majority of current AOBRD suppliers agree that the print option would be a significant cost to the industry and difficult to implement in a VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 successful way, due to the environment of the vehicle. 2. FMCSA Response Today’s rule requires the ELD to be able to provide certain data elements to an authorized safety official at roadside using either a display or a printout as backup methods to the electronic transfer of data. If drivers or motor carriers want to avoid printers, they have the option to present a display that includes the data elements required by the regulation. The specifications of paper size in the SNPRM were based upon the presence of a QR Code on the printout. Because QR codes are not an acceptable form of data transfer, FMCSA has removed the specification for minimum paper size and specified a minimum size of 6 inches by 1.5 inches for the size of the graph grid on the printout, in today’s rule. For the display, FMCSA has not made specifications on font or size requirements. Today’s rule requires a performance standard specifying that the display must be reasonably viewed by an authorized safety official without entering the commercial motor vehicle. JJ. Portable ELDs 1. Comments to the 2014 SNPRM The SNPRM did not address portability of ELDs. Many commenters addressed the possibility of allowing portable devices to serve as ELDs. Except for the safety advocacy groups, the commenters generally supported allowing the use of smartphones, tablets, or computers as ELDs. The Limousine Association and J.J. Keller noted the prevalence of smart devices and the cost-savings involved in using them as ELDs. J.J. Keller supported the rule language as currently proposed, which allows multi-purpose devices to be mounted, with a secure elogging application that cannot be used while the vehicle is in motion. J.J. Keller wrote that a requirement to lock the device in its entirety, however, would discourage the use of multi-purpose device technology for e-logging. YRC stated that FMCSA should allow flexibility in the type of device used for compliance—including allowing the use of a Bluetooth device that would avoid monthly cellular charges and would use Wi-Fi networks. YRC wrote that some companies have invested heavily in a handheld device that, while not tethered to the engine, could be used to track city pickup and delivery drivers’ duty status and location. Commenter stated that leveraging an existing device offers companies the opportunity to build on that investment and would PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 limit developing entirely new back office technology, significantly drop training times, and not take trucks out of service. The MPAA stated that the most effective solutions to enable meaningful, all-electronic RODS for production drivers, and others similarly situated, may be either: (a) A greater emphasis on truly portable ELDs that accompany drivers between vehicles and motor carriers; or (b) a more prescriptive rule that standardizes ELD inputs and outputs and methods of data transfer. The American Pyrotechnics Association stated that, absent readily available ‘‘plug and play’’ devices that can be rented on a short-term basis, it would be extremely difficult for its members who use rentals for a very limited time each year for commercial purposes, to comply with the mandatory ELD requirements. BigRoad generally supported allowing portable devices. Verigo asked if the rule language covered netbooks and laptops. Omnitracs noted that the rule would require data that are not available unless the driver is logged onto a specific CMV. Inthinc recommended that an ELD used for oilfield equipment be ruggedized, and not just an ordinary tablet. Zonar asked how a portable device could work if it was removed from the vehicle before it was started. The Truck Renting and Leasing Association (TRALA) similarly stated that there are provisions in the rule that contradict the assertion that the devices will be truly portable. For example, proposed 49 CFR 395.26(h) would require that, when the vehicle’s engine is powered up or powered down, the ELD would automatically record the data elements set out in § 395.26(b)(1) through (8). But if a device is actually portable, there is a possibility that it would not be in the vehicle, or not attached to the vehicle engine, when the vehicle was powered up. TRALA stated that the Agency should ensure that the requirement that the ELD be ‘‘integrally connected’’ to the CMV’s engine does not jeopardize the portability or transferability of ELDs among vehicles and/or customers. Generally, safety advocacy groups opposed allowing ELDs that are not wired to the engine. Commenters believed the use of portable ELDs that are not directly synchronized or connected to the vehicle engine reduces the effectiveness of the rule and the security of the system. 2. FMCSA Response FMCSA acknowledges the safety advocates’ concerns about the use of portable devices. However, the Agency has concluded that it would be E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations inappropriate to prohibit the use of such technology in today’s rule because all ELDs will be subject to the same technical specifications in the appendix of this rule. FMCSA relies upon a performancebased standard that allows flexibility in the market place, including the use of certain smart phones and tablets, provided they have a means of achieving integral synchronization. In its effort to create a minimum standard that is not too expensive or complex, FMCSA has not required ELDs to be ruggedized. However, the Agency does not prohibit more durable devices for industries that may require them. XI. Discussion Of Comments Related to Costs and Benefits A. Cost and Analysis—General tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2011 NPRM The 2011 NPRM proposed a mandate for the use of an ‘‘EOBR’’ that met the technical specification in the 2010 EOBR rule. Under this proposal, FMCSA’s recommended option would have required all motor carriers whose drivers were required to keep RODS to use EOBRs, subject to a limited exception for drivers requiring RODS no more than 2 days in any 7-day period. The NPRM, however, analyzed several options comparing them to the current HOS regulations as well as the then proposed HOS rule. The net benefits ranged from $418 million to $891 million. Many commenters stated that the industry has had many financial challenges recently, and could not handle an added expense. Commenters also stated that the CMV industry has seen dramatic increases in safety and therefore did not need the stress of what they perceived as a costly rule. Referring to the new costs on the industry, OOIDA called the proposal the ‘‘proverbial straw that breaks the camel’s back.’’ Several commenters to Regulation Room had concerns about the cost to upgrade their equipment. Commenters predicted costs being passed on to consumers, drivers losing income and work, and the costs for goods being driven up, ultimately hurting the economy. Other commenters raised concerns about financial inequality and said that the proposal was lacking because it relied on a ‘‘one-size fits all’’ model. An OOIDA member said that there would be a decrease in service quality. A commenter stated that the Cost Benefit Analysis should be recalculated on a true EOBR, not a technology that incorporates functions of an FMS. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Some commenters had questions about who would pay for the EOBR if the driver were an owner-operator, or owned the CMV and worked for a motor carrier. OOIDA stated that some motor carriers require the use of their systems and take payment for this use from the owner-operators’ paychecks; OOIDA believed the drivers are being overcharged for the use. OOIDA believed this made owner-operators function more like employees of a motor carrier as they would be connected to a specific system. 2. Comments to the SNPRM The 2014 SNPRM proposed a new technical standard for ELDs. It addressed concerns of harassment through both technical specifications and procedural requirements and prohibited a motor carrier from engaging in harassment as defined in the proposed rule. It kept the same population of RODS users that would need to transition to ELD use as was included in the NPRM, subject to a limited exception for drivers requiring RODS no more than 8 days in any 30day period. This SNPRM analyzed several options within the proposal, resulting in annualized net benefits from negative $355.5 million to positive $493.9 million. Most of the commenters on this issue disputed some aspect of the analysis and its assumptions. OOIDA noted that the statute is silent regarding who will bear the burden of paying for mandatory ELD use—the driver or the motor carrier. If the burden is placed on owner-operator drivers or small fleet owners, OOIDA believed that the cost poses a very heavy burden. For owneroperators, any additional financial burden may make their continuation in the trucking business impossible. OOIDA stated that a cost-benefit analysis that does not address the crucial question of what type of organization will shoulder the burden of these costs cannot support a reasoned regulatory judgment. OOIDA also commented that FMCSA states, without support and unrealistically, that financing for the equipment costs will be available in the market. However, this is conditioned on ‘‘if the carrier has good credit.’’ The AGC stated that, while FMCSA regulations apply only to interstate operations, most States will follow suit and adopt the rules for intrastate operations. If States adopt this rule, ELDs will be required in almost all vehicles with a rating of 10,001 pounds or more, which includes 1-ton pickups and 1-ton and up work trucks. Requiring the drivers of these vehicles to use an PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 78343 ELD creates an undue financial burden on the motor carrier. Commenter believed the cost of purchasing the devices, installation, monthly service fees, and driver training would be excessive. These costs would be incurred for all vehicles even though logging would only be required in limited circumstances. The California Construction Trucking Association questioned FMCSA’s costbenefit analysis as well as the estimates of CMVs and drivers that will ultimately be covered by this rule. Commenter wrote that FMCSA has calculated tens of millions of hours in savings attributable to drivers no longer needing to complete paper RODS, despite FMCSA being aware that the majority of drivers are not compensated for ODND time. The commenter believed that while some calculated time savings may be present—especially on the fleet management side of the equation— assigning a dollar value to the time drivers spend completing paperwork is an example of government manipulating data to justify a regulation. NPGA stated that the cost impact from an ELD mandate, particularly for those who have demonstrated an excellent safety record, does not justify the benefits. Moreover, the commenter stated that it is not clear there is any correlation between the use of ELDs and a decrease in CMV crashes. It cited the decline in crashes between 2004 and 2008 as an indication that trucking was becoming safer absent ELDs, as well as the safety record under waivers during the winter of 2013–14. For small business less-than-truckload (LTL) carriers, the NMFTA stated that the proposed ELD rule will require the additional cost of hiring more personnel to manage and maintain new information systems equipment and software. LTL small businesses are concerned that they do not have the financial wherewithal to comply with such obligations. The association stated that the cost/benefit assessment weighs against the application of the rule over a much broader segment of short-haul operations than acknowledged by FMCSA in the proposed rule. 3. FMCSA Response FMCSA emphasizes that this rulemaking does not differ from other rulemakings the Agency has undertaken with regard to industry compliance costs and how costs are accounted for in business relationships between motor carriers and any independent drivers working for them under a contract. The task before the Agency is to move forward with a safety regulation requiring the use of ELDs while leaving E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78344 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations to the private sector the contractual arrangements necessary to address the costs for purchasing, installing and maintaining the ELDs. The calculation of the cost benefit analysis does not take into account who bears the cost of ELD purchase and installation. In the case of carriers that require that their subcontractors use a particular ELD system, FMCSA also leaves it to the market to determine how these costs are shared between companies and drivers through their contractual agreements. We note, however, that to the extent carriers that purchase ELDs in large numbers receive volume-related discounts from the provider, those savings might be passed along to independent drivers who may assume some or all of the purchase cost. In today’s rule, FMCSA requires a device that needs to perform only minimal HOS recording functions. There are several technical requirements focusing on the concern of driver harassment by motor carriers. While the standards allow manufacturers to develop and motor carriers to use an FMS with additional features and functions, the technical specifications included in today’s rule allow the market to develop a compliant device at a low cost. FMCSA used currently available devices, whose functions are similar to the minimal requirements in the rule, to determine costs and benefits. There is no support for the rulemaking’s more expansive impact on the industry, on the economy, or on service that some commenters suggested. Interstate CMV drivers and a subset of intrastate CMV drivers are subject to FMCSA HOS regulations in 49 CFR part 395. Although FMCSA only has the statutory authority to directly regulate interstate CMVs, States must adopt compatible regulations as a condition of Federal MCSAP funding. This rule will only impose the ELD requirement on interstate CMV drivers currently required to keep RODS; however, intrastate drivers indirectly affected were included in the final rule analysis of cost and benefits because they will be required to comply with compatible State rules. There is nothing in this ELD rule that requires States to extend the ELD requirement beyond motor carriers already required to retain RODS. For purposes of assessing the value of the driver’s time savings as a result of this rule, FMCSA assumes that a driver’s time is valuable whether or not that driver receives an hourly wage for their time. In the rule, we value the time when the driver should be on duty at an hourly wage rate for his or her time, excluding benefits. This is common practice in Federal cost benefit analyses. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 FMCSA does not believe that small businesses will have to add personnel to manage their ELDs, and the requirements for motor carriers to manage their drivers’ time have not changed with this rulemaking. The basic ELD performs minimal HOS recording functions. Adoption of this automated process will result in simplified HOS compliance management. B. Costs Associated With ELDs 1. Comments to the 2011 NPRM Based on extensive research and modeling, the NPRM assumed that ‘‘[t]he annualized cost for a motor carrier that does not currently use an FMS or other ‘EOBR-read’ system ranges from $525 to $785 per power unit (PU).’’ A number of commenters, including OOIDA, maintained that EOBRs are costly, do not benefit the trucking community, and have no practical or safety application. Other commenters questioned if the cost is commensurate with the benefits from the use of the EOBR by carriers with a strong safety record. One commenter said that the use of the EOBR provides FMCSA with data, but provides minimal benefit to the carrier. Another commenter said that any data collection by EOBRs, other than what is strictly required by HOS compliance, is an unnecessary expense and a burden on small business owners. This commenter also said that any savings to truckers from collecting other information should not be included in DOT’s cost-benefit estimates. Commenters believed that EOBRs might provide large motor carriers a financial advantage over small carriers and owner-operators. A number of commenters, including trade associations and carriers, provided specific information on the costs of an EOBR or implementing an EOBR mandate for their company or industry. J.B. Hunt stated that it thought there was opportunity for the devices to become increasingly affordable, while staying in compliance with the requirements of the 2011 NPRM. Another commenter stated that EOBRs are not financially burdensome, and models exist that do not have real-time components. The National Association of Chemical Distributors, however, was concerned that there would not be sufficient EOBRs available, which would drive the cost up. Some commenters provided reasons for using an EOBR, including improvements in HOS compliance. Knight said, ‘‘if you are a fleet or an operator who does not comply with the HOS rules, it is true that investing in a system to electronically monitor logs PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 will cost you greater than to not comply using paper RODS.’’ Multiple commenters stated that the cost of the EOBR used in the cost benefit analysis was overestimated, as the market for EOBRs is broader than FMCSA considered in the NPRM. They maintained that the market will expand once there is a mandate, further driving down costs. One said that ‘‘it is probable that FMS vendors will offer a logs-only solution,’’ thus reducing the cost dramatically. ATA believed that the proposed rule did not require an investment beyond a basic system. A commenter criticized the cost estimates used, saying that they were too generalized, and did not account for the budget or size of the motor carrier. A number of commenters stated that the hourly rates used were too high. Another commenter stated that the useful life of an EOBR should be about 3 years. Many commenters compared the cost of purchasing an EOBR to the cost of a paper log book, which they estimated to be less than $10 per month. Other commenters stated that the cost of an EOBR would be less than the cost of other common equipment on CMVs, like stereos or citizen’s band radios. OOIDA thought that including fleet management systems with EOBR functions in the analysis was ‘‘simply incorrect’’ as the fleet management systems do not necessarily incorporate the EOBR function. OOIDA also thought FMCSA’s estimates of repair costs were too low. 2. Comments to the SNPRM In the SNPRM, FMCSA took a very conservative approach to the cost of an ELD. It analyzed the Mobile Computing Platform 50, a higher-end FMS, and included installation, hardware costs, and monthly fees. However, by relying on performance standards and prescribing minimal requirements, FMCSA allowed for use of a basic ELD that would satisfy the rule. The SNPRM estimated an average cost of $495 per CMV on an annualized basis where the range is from $165 to $832 per CMV on an annualized basis. In the SNPRM, FMCSA analyzed a range of devices, the most expensive one being $1,675 and the least expensive provided for free as part of a monthly service agreement. FMCSA found that time savings to drivers and carriers from filling out, submitting, and handling paper can exceed these annualized costs. FMCSA estimated that 4.6 million inter- and intra-state drivers were subject to HOS and 3.1 million were required to keep RODs. A carrier estimated the cost to install, maintain, monitor, and replace ELDs at E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations over $100,000 per year for its 200 trucks. This did not include the cost of employee’s downtime when the ELD is not working, the penalties, and inactivity at the job site because the load does not make it. The Association of Independent Property Brokers and Agents stated that its research indicates that there are options available that range from a reasonable, one-time fee of a few hundred dollars to an even smaller set up fee with a reasonable monthly fee equal to a basic cellular phone service bill. It doubted that a few hundred dollars increase in truckers’ costs would have a significant impact. The ABA stated that the SNPRM does not account for all of the costs that bus operators will bear with the implementation of the ELD rule. The commenter wrote that bus operators are required to pay separate charges for monitoring the ELD system and a perdriver fee for the system. Even small operators are obligated to pay a $25 monthly service charge and a $25 perdriver fee. The ABA commented that all bus operators will have to add staff to ensure that the operator is in compliance with the rule. The ABA predicted that costs will mount each year. AGC stated that purchase and installation of ELDs will be far more expensive than retaining paper RODs; anecdotal accounts from a sampling of members who have researched the costs suggested that FMCSA estimates fall short of the actual costs. While the costs of the devices themselves would be significant, the commenter believed that additional overhead would increase costs significantly. AGC wrote that FMCSA’s estimates do not appear to include the additional costs for data plans, training, programming, and support. Because there tends to be substantial turnover of drivers in the construction industry, AGC held that the training costs alone will be significant. The NPGA estimated, based on FMCSA’s figures, that the startup costs of purchase and installation alone would approach $8 million for the 9,000 trucks in their industry. For the propane industry, regular monitoring would add another $180,000 annually; even if three-fourths of the drivers of the 9,000 transport trucks needed training, it would cost the industry nearly $122,000. The commenter wrote that not all motor carriers, particularly those considered small businesses, possess the type of technology needed to comply with the ELD mandate. Those who do not would also incur significant startup costs for purchasing new computers, file servers, etc. Continental VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 believed that the ELD mandate will increase the market from 50,000 units per year to around 3 million units in the mandate year and will attract additional suppliers and competition. This will bring costs down. In addition, Continental commented that the truck and bus manufacturers will offer ELDs as a standard product, further lowering the costs of acquisition and installation of the systems. Based on its experience in other countries, Continental wrote that highly tamper resistant ELDs can be made available to motor carriers for less than $500 per unit, while ELDs with an integrated thermal printer are already available for purchase in the United States for $500. It criticized FMCSA for including in its estimated operating costs of $25 in monthly fees per ELD (for wireless data extraction) since FMCSA does not require that ELDs include wireless communication technology. Continental wrote it is inappropriate to factor in costs related to features that are not required by the rule, thus, monthly fees should be excluded from the cost calculation. Similarly, a safety group noted that over 90 percent of carriers operate with six or fewer power units, yet FMCSA included the yearly cost for adding electronic HOS monitoring to an FMS. Only the larger carriers will use an FMS and most of them already pay for HOS electronic monitoring. Since this cost will only be assumed by a very small percentage of carriers, the commenter wrote it should not be added as a general cost of ELD yearly use. Verigo stated that the annual record keeping costs for motor carrier clerical staff of $120 per driver to handle and file RODS does not appear to include any allowance for the appropriate validation, measurement, and management practices to determine ongoing compliance of drivers. Verigo commented that examples for proper HOS compliance management taken from industry best practices and carrier excellence programs indicate a higher cost than reported in the proposal. Conversely, business case studies following the implementation of electronic log management systems have consistently revealed the cost of compliance management, including truck mounted data terminal hardware, to be 30 percent lower than manual compliance management procedures used for paper logs. A number of commenters compared the very low cost of purchasing paper logbooks to the cost of ELDs. They provided a wide range of estimates for ELD implementation, from about $800 to $6,000 per truck. A commenter believed that FMCSA’s estimate does PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 78345 not account for the initial cost of set-up, including iPhones/tablets and activation fees. A driver believed that the economic factor will drive a large percentage of owner/operators out of business or they will sacrifice maintenance to meet these regulation costs. The driver wrote that the cost of ELD repairs included in the costs, and the economic impact of necessary equipment for enforcement personnel has only been ‘‘loosely’’ estimated. Knight stated that opponents’ argument that the cost of using an ELD is higher than using a paper log is not the proper way to frame the issue and is intentionally misleading. The question must not be purely about the cost to complete a log; it must be about the cost to comply with the rules. For a fleet to assure a level of compliance using paper logs commensurate with the level of compliance assured by use of an ELD, Knight commented, ‘‘it does and would cost much more to use a paper log.’’ To assure compliance, the commenter wrote that a carrier must invest considerable resources to collect the logs, the supporting documents, and then to audit them against each other. The ELD automates the collection of logs and the auditing of driving activity. It is that automation that makes the ELD more cost effective to fleets. Knight wrote that a paper log is less costly than an ELD only when you do not invest the necessary resources to audit those paper logs, especially against reliable vehicle position history, which is only possible with some form of telematics/GPS technology on the truck. It noted that, even for the owner-operator, there is a cost benefit associated with the ELD. Advocates questioned whether the cost to the industry represented by coming into compliance with the law should be included in these calculations. It stated that the industry is already required to comply with HOS requirements and has been for many years. The costs associated with HOS compliance are costs that should have been borne by the industry regardless of the ELD requirement. Advocates held that the cost side of the cost-benefit analysis for this rule should not be encumbered simply because some in the industry have, for decades, violated the HOS rules, and will now be forced to act responsibly and in compliance with long established rules of conduct. Advocates also stated that FMCSA must reconsider the justification for including in the cost estimates for the ELD both the unquantified costs to a limited number of motor carriers that have FMS with no electronic HOS monitoring, as well as the highly overstated printer cost. Advocates E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78346 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations believed that those cost figures must be substantially reduced in accordance with the realistic use by multi-vehicle fleets and current pricing for inexpensive printer equipment. The failure to reflect more realistic cost estimates has led the Agency to conclude that certain options are not cost beneficial and therefore underestimate the net benefits of all the options presented in the SNPRM. The UMA stated that FMCSA should include in the cost analysis the adverse effects this rulemaking has on new equipment acquisition and fleet modernization. It commented that keeping passengers in older motorcoaches and compelling groups to use alternative vehicles, such as private passenger automobiles and vans, could delay the desired results and potentially increase fatalities. The George Washington University Regulatory Study Center wrote that FMCSA should consider the effect of the SNPRM on driver compensation and small carriers. OOIDA stated that FMCSA greatly underestimates the cost of the regulations, taking into account driver and equipment turnover. If a driver buys a new truck, OOIDA wrote, he or she will have to buy a new ELD or pay to transfer his existing unit. If a driver moves to another carrier, the driver will have to modify equipment to meet the requirements of a new carrier. OOIDA questioned FMCSA assumptions on cost savings. It stated that logs will still need to be checked and stored. More personnel may have to be added to interpret new information from the ECM and GPS synchronization, to maintain the equipment and software, and perform repairs and software updates. OOIDA stated that, according to FMCSA statistics, driving past the 11th hour accounted for only 0.9 percent of HOS violations in 2009. If the automatic detection of the 11-hour violation is an ELD’s only compliance and enforcement advantage over paper logbooks, this should be the starting point for any benefit calculation of ELDs. OOIDA commented, however, that FMCSA assumes, without explanation or support, a far greater level of benefits for HOS compliance through ELDs. OOIDA believed that FMCSA should acknowledge the limited capability of ELDs and measure the safety benefits to be derived from that limited capacity. If the Agency performed such an analysis, it would be clear that the costs of ELDs in economic, privacy, and safety terms far outweigh whatever marginal benefits are identified. Both OOIDA and the California Construction Trucking Association VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 criticized the Agency’s estimate of the total number of CMV operators who would be affected by the rule, noting that FMCSA had reduced its estimates of affected drivers. The California Trucking Association believed that FMCSA’s analysis had given ‘‘little thought to the totality of CMVs operated beyond freight hauling operations.’’ OOIDA claimed that FMCSA based its cost benefit analysis on an estimate of 4.3 million drivers in FMCSA-regulated operations. However, OOIDA wrote that, in the ICR for the HOS rule (79 FR 35843–44 (June 24, 2014)), the Agency lowered the number of drivers covered under the HOS rules from 4.6 million to 2.84 million—a reduction of 38 percent—and estimated that 10 percent of those drivers currently use electronic HOS technology. 3. FMCSA Response In today’s rule FMCSA estimates the annualized cost for an ELD that must support one of two options for electronic transfer. The first option is a telematics type ELD. We estimate a total annualized cost of $419 for an ELD with telematics. The RIA prepared for the SNPRM assumed an annualized device cost of $495, which FMCSA acknowledged was on the high end of the range of costs of existing units. The $495 figure cited by OOIDA is therefore no longer relied upon by the Agency. The reduction in the estimated annualized cost for an ELD with telematics, from $495 to $419, is largely attributable to the reduction in purchase price of the device from $799 to $500. The second option is a local transfer method type ELD (ELD with USB 2.0 and Bluetooth). The estimated annualized cost of an ELD with USB 2.0 and Bluetooth is $166. The lower price of these units is a reflection of their limited FMS functionality rather than a decline in either the manufacturing or component costs. For estimating the cost of the final rule, the Agency conservatively assumed that drivers would purchase an ELD with telematics, however the Agency did reduce the baseline price estimate of these units to reflect the market trend towards more basic FMS designed primarily for ELD functionality. Although we do not specifically account for the cost of ‘‘driver turnover’’ as described by OOIDA, the RIA for the final rule does factor in the cost of installing, removing, and repairing ELDs. The Agency notes that some independent drivers will have the option to purchase a portable ELD, which fall at the lower end of the price range and which typically can be removed and reinstalled in less than 30 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 minutes. In addition, to the extent that OOIDA’s comments concerning driver turnover costs are based on the premise that drivers will always be financially responsible for the purchase and installation of ELDs, we note that OOIDA did not identify the source of its information underlying this assumption, nor is the Agency aware of any data that could be reviewed independently to validate the claims. FMCSA made an effort to consider, and reduce, the costs of overhead. Because the technical requirements of this final rule have been changed, there is no longer a requirement to use any wireless communication capabilities (e.g., telematics or email), eliminating this monthly cost. These basic ELDs do not require monitoring, data plans, or programming support; FMCSA has reduced the cost of ELDs to reflect that. FMCSA has considered the cost of repair, fleet modernization, and useful life in its cost analysis. As explained in the RIA, the use of ELDs will significantly reduce the paperwork and recordkeeping burden associated with the HOS regulations. Drivers’ time spent completing RODS and forwarding RODS to their employers while away from the motor carriers’ terminals will be reduced by $558 and $65, respectively. Further, the RIA estimates that the savings in clerical time spent retaining paper RODS and eliminating the need to purchase paper log books is $144 and $42, respectively. This amounts to a total annual paperwork savings of $809 per driver. The rule does not mandate specific training requirements for drivers in connection with ELDs. While the RIA includes training costs for drivers, these are not anticipated to be different from existing training related to paper RODS. New drivers currently need to be trained on paper RODS instead of ELDs. FMCSA expects that motor carriers will continue to monitor their drivers’ records for compliance with HOS. Additionally, there is no real-time requirement, and much of this could be done electronically. Further, electronic records are less expensive, and take less time to manage, compared to paper RODS. Some ELDs are portable and can be transferred between vehicles. For example, one of the least expensive devices on the market, Continental’s VDO Roadlog which costs $500 and does not require monthly fees, can be simply unplugged from the ECM from one CMV and plugged into the ECM of another CMV. A permanently installed ELD can be sold or purchased with the CMV it is installed in and reflected in the sale price for the vehicle. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Additionally, as Continental pointed out in a comment, some manufacturers might start offering ELDs as a standard feature. The assertion of some commenters that the Agency reduced the number of CMV drivers affected by the rule is incorrect. In fact, the number of CMV drivers subject to the rule increased from 2.8 million, the number cited in the SNPRM, to 3.4 million in today’s rule. The increase is primarily due to the inclusion of intrastate long-haul drivers subject to RODS, which we added due to the likelihood of statelevel adoption of similar requirements in order to obtain MCSAP funding. The basis for determining the number of CMV drivers impacted by the rule is further explained in the Agency’s discussion of the Paperwork Reduction Act in Section XIV, J, of today’s rule. The Agency rejects OOIDA’s premise that the automatic detection of the 11 hour violation is the ELD’s only enforcement and compliance advantage over paper log books.26 FMCSA’s Roadside Intervention Model, described in Appendix E of the RIA to this rule, directly measures the relationship between crashes and violations using roadside inspection, traffic enforcement, and safety data. This model represents a major improvement in the Agency’s estimates of the safety benefits of ELD use. C. Cost and Analysis—Updating Existing Systems tkelley on DSK9F6TC42PROD with RULES2 1. Comments on the 2011 NPRM The NPRM proposed a 3-year compliance date and a 3-year grandfathering period for devices meeting the standards of 49 CFR 395.15 that could not be updated to meet the new (now vacated) standard in § 395.16. The NPRM assumed a cost of $92 to update an existing device to be compliant with those specifications. Though UPS voiced support for the EOBR mandate, it also ‘‘estimates that the total cost of bringing . . . [its] fleets into compliance with the proposed rule would be approximately $25,520,000. In addition, UPS would need to incur the 26 OOIDA’s assertion that, according to FMCSA data, driving past the 11th hour accounted for only 0.9 percent of HOS violations in 2009 is incorrect. In fact, FMCSA stated that 11th hour violations are present in around 0.9 percent of total driver inspections. The rate of out of service violations for any reason related to HOS was about 5.8 percent in 2009, which implies that 11th hour violations were present in 16 percent of inspections in which there was an out of service order due to HOS (0.9/ 5.8). Other data consistently indicate that 11th hour rule violations are a significant reason for HOS out of service violations. Therefore, the Agency reasonably expects that ELDs will have a significant impact on reducing these violations. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 costs to install ELDs in new units it purchases that are manufactured after June 1, 2012.’’ Werner stated that under the rule as proposed, carriers who voluntarily complied with the April 2010 rule lose the benefit of having complied early. 2. Comments to the SNPRM In the RIA for the SNPRM, FMCSA estimated that the FMS upgrade would be significantly cheaper than the purchase of any new device. FMCSA estimated annualized costs to all voluntary adopters of AOBRD systems to upgrade their systems: $174 per CMV to add electronic HOS monitoring services to FMS that have this capability. Some carriers that have already adopted AOBRDs would have to replace their older devices 2 years after the effective date of the final rule. FMCSA estimates that the annualized cost of replacing an older AOBRD is $106 per unit. PeopleNet agreed with FMCSA’s assessment and, based on the details provided in the SNPRM, agreed that only software updates would need to be made on the majority of the deployed devices. This would include those manufactured before 2010 as well as those manufactured after. 3. FMCSA Response The RIA prepared for today’s rule estimates the annualized cost of replacing existing devices will be between $93 per device for FMS upgrades and $128 per device for AOBRD replacements. Because FMCSA carefully studied the industry and looked at several devices representing a significant fraction of the AOBRDs in use, the Agency thinks that the majority of FMS devices that exist today could easily meet the minimum specifications of this rule with relatively inexpensive upgrades. Information materials from many providers indicate that ELD functionality is available for their FMS. FMCSA based the estimated cost to add the functionality, which it used in the RIA, on real price data from providers. D. Paperwork Analysis 1. Comments to the 2011 NPRM The proposed rule would not have required additional reporting, recordkeeping, or other paperworkrelated compliance requirements beyond those already required in the existing regulations. In fact, the NPRM was estimated to result in paperwork savings, particularly from the elimination of paper RODS. Compared to paper RODS, drivers could have completed, reviewed, and submitted PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 78347 EOBR records more rapidly. Furthermore, motor carriers would have experienced compensatory time-saving and administrative efficiencies as a result of using EOBR records in place of paper RODS. The level of savings would have varied with the size of the carrier implementing the systems (larger carriers generally experience greater savings). In the NPRM, FMCSA estimated annual recordkeeping cost savings from the proposed rule of about $688 per driver. This was comprised of $486 for a reduction in time drivers spend completing paper RODS and $56 submitting those RODS to their employers; $116 for motor carrier staff to handle and file the RODS; and $30 for elimination of expenditures on blank paper RODS for drivers. One trade association stated that the reasonable cost stipulation in the HMTAA would not be met, and that the rule would cost over 1 billion dollars. A commenter believed that the paperwork savings estimate is ‘‘fictitious’’ and inflated. This commenter stated that large fleets getting this advantage are already using EOBRs, but they will have to purchase new equipment to fit the new EOBR requirements, and small fleets ‘‘will see nothing but increased cost and no savings.’’ The Specialized Carriers and Rigging Association believed the EOBR costs to be so large that they would not be offset by paperwork reductions. Other commenters wrote that that the paperwork benefits of the rule would not be realized because some drivers would keep a paper log despite it not being required. A motor carrier said that the rule increased the paperwork burden due to the requirement to monitor supporting documents and HOS compliance, cost of the EOBR, cost of potential violations of not maintaining a system, and the requirement to submit documents within 3 days. 2. Comments to the SNPRM The Paperwork Reduction Act analysis presented in the SNPRM was similar to that in the NPRM. FMCSA still assumed that under HOS regulations, most CMV drivers would be required to fill out RODS for every 24hour period. The remaining population of CMV drivers would be required to fill out time cards at their workplace (reporting location). Motor carriers must retain the RODS (or timecards, if used) for 6 months. FMCSA estimated the annual recordkeeping cost savings from the proposed rule to be about $705 per driver. This would comprise $487 for a reduction in time drivers spend E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78348 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations completing paper RODS and $56 submitting those RODS to their employers; $120 for motor carrier clerical staff to handle and file the RODS; and $42 for elimination of expenditures on blank paper RODS for drivers. The George Washington University Regulatory Study Center stated that, according to the ICR submitted to OMB, the transition from paper RODS to ELDs will reduce the time spent complying with the HOS regulations by 68.33 million hours per year. The commenter maintained that FMCSA should commit to gathering data to evaluate whether these predicted time savings materialize, either through a representative survey of drivers and carriers, or by encouraging feedback under the Paperwork Reduction Act . Greyhound noted that this is the third rulemaking within the last few months in which FMCSA proposes to impose substantial new recordkeeping requirements on passenger motor carriers. The other two were the Lease and Interchange of Vehicles: Motor Carriers of Passengers NPRM and the Commercial Driver’s License Drug and Alcohol Clearinghouse NPRM. Greyhound suggested ways to reduce the recordkeeping burdens of the proposals so that passenger carriers can keep an operational focus. FedEx did not believe that the supporting documents rule would create any paperwork relief. FedEx believed the proposed rule is burdensome and that the new requirement that carriers retain 10 supporting documents far outweighs the reduction of one paper RODS per day. For a carrier like FedEx Ground, the proposed supporting documents rule would generate at least 80,000 documents per day (assuming that the carrier collects 10 supporting documents for each driver’s 24-hour day). Over the course of 1 year, the carrier would need to collect, review, and file approximately 29 million documents. FedEx wrote that carriers will also be required to implement new systems to store a potentially large number of documents so that they can be ‘‘effectively matched’’ to the corresponding driver’s HOS records. FedEx asked FMCSA to address what motor carriers should do with a driver’s reconstructed logs if the ELD is repaired and the original logs are retrieved from the device. FedEx suggested that only the ELD-created logs should be retained if they can be retrieved from the device or ELD provider. Unless an ELD is required, Knight stated that a driver may not understand that he or she is saving the 10–15 minutes a day spent filling out the paper VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 log. With a paper log, there really are not HOS limits for that kind of operator/ operation. ATA stated that, as a result of the illusory document cap and the unnecessary burdens of proving midshift ODND time, it is not surprising that FMCSA does not expect this rulemaking to produce a reduction in the overall document collection and retention burden. ATA writes that this is at odds with the intent of the HMTAA. Since the passage of HMTAA in 1994, FMCSA has maintained a broad view of what constitutes a supporting document and thus continued to impose an unusual and uncustomary burden on the trucking industry. A carrier, which mistakenly believed that the paperwork reduction was the result of the reduced number supporting documents, noted that the SNPRM states a paperwork reduction in one section, and then lists required supporting documents that must be retained in another. Commenter wrote that government agencies require carriers to keep all documentation for IFTA, the International Registration Plan, the Internal Revenue Service, etc.; therefore, it believed that there is no reduction of paperwork overall. 3. FMCSA Response FMCSA believes that this rulemaking meets the HMTAA’s ‘‘reasonable cost’’ standard for HOS supporting documents. Almost all AOBRDs and ELDs electronically transmit log data. This eliminates a source of burden associated with drivers and carrier staff handling paper records, and eliminates the cost of the paper. ELDs automate many of the steps needed to make RODS entries, thereby saving time. On a daily, per-driver basis, these savings may seem small, but multiplied by the number of drivers that would be required to use ELDs over the course of a year, the savings are significant. In today’s rule, FMCSA extends the period that a driver has to submit records to a motor carrier; both RODS and supporting documents are to be submitted within 13 days. FMCSA clarifies that any ELD data that has been reconstructed is a part of the HOS records and must be retained as part of the record. Neither the NPRM nor the SNPRM claimed any paperwork reduction benefit related to supporting documents. The Agency understands that supporting documents are kept in the ordinary course of business for purposes other than satisfying FMCSA’s regulations. The removal of the requirement to retain paper RODS, which will no longer be required for PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 ELD users, will lead to a reduction in paperwork. FMCSA recognizes that short-haul drivers exempt from keeping RODS would get none of these savings. MAP– 21 mandates the installation of ELDs for CMV drivers required to use RODS. FMCSA’s preferred option, adopted in today’s rule, is consistent with the statutory mandate and maximizes paperwork savings. Although not all drivers are paid by the hour, their time does have value, and their time saved has value. It is common practice for benefit/cost analyses to value either time savings or delays for individuals in terms of an hourly wage rate. The hourly wage a person requires to work reflects the value they place on their time. FMCSA notes that the obligation on a motor carrier to monitor its drivers’ compliance with HOS is not new. (See In the Matter of Stricklin Trucking Co., Inc., Order on Reconsideration (March 20, 2012)).27 E. Small Business 1. Comments to the 2011 NPRM The Agency examined its registration data and found that 96 percent of, or just over 19,000, interstate passenger carriers have 47 power units or fewer. The 2011 NPRM did not propose any exclusions or exceptions based upon business size. However, the Agency did request comment on a possible phasedin compliance date to help small businesses. OOIDA commented that 2011 NPRM RIA made assumptions about the safety practices of large carriers. OOIDA commented that small businesses could not realize any reduction in cost, as paperwork is not considered to be a source of cost, since their only revenue is from operating. Since many drivers are not paid by the hour, OOIDA believed that the analysis in the RIA should not use hourly estimates of the value of their time. OOIDA also stated that because many drivers or motor carriers may not trust EOBRs, they might keep manual logs anyway, which would mean no paperwork savings. OOIDA thought that FMCSA had not included an explanation of benefits in the 2011 NPRM. Though they support the objective of this rule, AMSA stated that it is too much of a burden on their segment of the industry. Commenters to Regulation Room stated that the cost benefit analysis included savings for the reduction of clerical costs, but small 27 Available in Docket FMCSA–2011–0127, https://www.regulations.gov (Document No. FMCSA–2011–0127–0013). E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 businesses would not realize those costs. A carrier stated that compliance costs are two to three times as expensive for the small firms. Some commenters also stated that small businesses would not see a return on investment like larger businesses would. Several commenters suggested that the rule should apply only to carriers with a threshold number of power units. Other commenters stated that there should be a waiver process for small businesses to be exempted from the rule. The NFIB said that this was a punitive measure for small business, impacting them disproportionately. This organization suggested an exception for vehicles based on weight that they thought would benefit local service vehicles used by small plumbers, electricians, and other service providers. 2. Comments to the SNPRM FMCSA did not re-analyze a phasedin compliance date in the SNPRM. MAP–21 requires a 2 year compliance date following publication of the rule. The Agency did, however, increase its commitment to outreach among small businesses. As stated in the SNPRM, ‘‘[t]he Agency recognizes that small businesses may need additional information and guidance in order to comply with the proposed regulation. To improve their understanding of the proposal and any rulemaking that would result from it, FMCSA proposes to conduct outreach aimed specifically at small businesses. . . . [The] purpose would be to describe in plain language the compliance and reporting requirements so they are clear and readily understood by the small entities that would be affected.’’ (79 FR 17683, Mar. 28, 2014) ABA characterized the bus industry as small, generally family owned, and without the financial resources to undertake a major addition to their equipment. Taking the average ABA member’s equipment roster as a guide, the commenter believed that this proposal would add approximately $6,600 to the cost of a small business operating a bus company. At a June 2014 meeting of ABA’s Bus Industry Safety Council, the question was asked of approximately 100 bus operators: How many operators have ELDs on their coaches? About 10 operators did. Assuming that the percentage of operators with ELDs is the same industry-wide, only 10 percent of the industry uses ELDs. ELD-use is confined to the larger bus operators, those operators who need many ELDs for their buses and whose purchasing power will allow them to take delivery of ELDs faster than smaller operators. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 ABA believed that the majority of bus operators seeking ELDs will be the smaller bus operators. They will be able to obtain ELDs only after the larger, more financially able carriers receive them. ABA believed that the prices of ELDs, particularly for smaller operators with little purchasing power, are more likely to rise rather than fall. 3. FMCSA Response Because the majority of regulated entities are considered small businesses, FMCSA did not propose a special waiver process, a threshold for usage based upon size of the motor carrier, or a blanket exception for small businesses. FMCSA believes that there are benefits to be realized from this rule for businesses of all sizes, and, as with most technology, new uses and abilities will continue to emerge to fit the needs of the end users. F. Cost of a Printer 1. Comments to the 2011 NPRM The 2011 NPRM did not propose or analyze the cost of an ELD with a printer. 2. Comments to the SNPRM The 2014 SNPRM analyzed options for ELDs that included a mandatory printer. FMCSA sought comment on the feasibility and accuracy of the benefit and cost estimates associated with this requirement. The requirement for printers with each ELD would increase ELD costs by about 40 percent. One of the two ELD-like devices that the Agency considered as baseline devices offers the printer function. Advocates stated that FMCSA erred in its estimate of how much a printer would increase ELD costs. It identified a recent article that cites a basic ELD with an integrated printer retailing at a total combined cost to an owneroperator of approximately $600. Advocates wrote that similarly low ELDplus-printer costs, as well as low-cost thermal printers that are commonly found in taxi cabs and in hand-held portable devices used in restaurants and elsewhere, can readily be found by contacting suppliers and on the Internet. Advocates held that it is likely that some models could meet performance requirements for use in ELD-equipped CMVs at a far lower cost than the Agency used in its estimate for the SNPRM. Other commenters, including ATA, PeopleNet, and J.B. Hunt, were concerned with the costs associated with requiring a printer. To survive in the environment of a truck cab, an external printer would need to be PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 78349 ‘‘ruggedized.’’ PeopleNet and J.B. Hunt anticipated that printers would be stolen unless they are built-into the vehicle. The commenters believed that maintaining and storing operational supplies for the printer would be difficult and an added cost. ATA noted that the vast majority of manufacturers do not market a device with internal printing capability; to offer it would require redesigning their hardware. In addition to adding cost, ATA believed that requiring paper printers would put a chilling effect on voluntary ELD adoption in advance of an industry-wide mandate. If FMCSA were to require all devices to be capable of producing paper printouts, the ‘‘software upgrade’’ claims for existing systems would no longer be true and those using such devices would find themselves holding obsolete hardware. ATA understood law enforcement’s interest in facilitating roadside verification of HOS compliance. However, it asked if it makes more sense to impose a prescriptive data transfer requirement on close to 3,000,000 CMVs and drivers, or to require that approximately 13,000 certified CMV enforcement officials have the means to accept records electronically by one of several required options. To assess the cost of printers on commercial vehicles, J.B. Hunt and PeopleNet. considered a number of different products, including the HP Officejet 100 Mobile Printer, priced at $309, not ruggedized, which was the cheapest. Applying the cost for that printer to the 2,840,000 CMV drivers that FMCSA stated would be affected by the ELD requirements of this rulemaking, the initial purchase of printers would cost the industry $877,560,000. If each printer used one color cartridge and one black cartridge annually, the costs would be an additional $164,663,200 per year. If the printer has an expected life cycle of 5 years, the annualized replacement costs would be $175,512,000. The commenters wrote that the cost of equipping every weigh station and CMV enforcement cruiser in the country is minimal when compared to equipping CMVs with printers. While printers should be optional, these commenters maintained that the cost of requiring them on all CMVs is cost prohibitive. PeopleNet was also concerned with the security of printed log records, which could be lost, stolen, or damaged. Continental believed it would have been appropriate to add external printer costs to ELDs prior to the mandate taking effect. However, Continental wrote that it is not appropriate to do so post-mandate, given that industry will E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78350 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations choose to use the much more costeffective option of installing ELDs with an integrated thermal printer. Continental also stated that FMCSA’s estimated cost of $500 for an external printer is on the order of five times more than current market costs; there are many portable thermal printers available for $100. As a reference point, Continental noted that taximeters with an integrated thermal printer cost between $150 and $350. The commenter wrote that FMCSA added the cost of an external printer to all ELDs when looking at the Options, which was fundamentally flawed because carriers would acquire more cost-effective solutions (i.e., ELDs with an integrated printer). The cost of an integrated printer in an ELD is less than $10, considerably lower than the cost of an external printer. The VDO RoadLog ELD, currently available on the United States market, costs $500 and has an integrated printer. A safety coalition stated that enumerating costs for a separate printer is unnecessary as ELDs with an integrated printer are available at less than FMCSA’s estimated cost for an ELD lacking an integrated printer. While some carriers will choose options that best fit their operational needs regardless of cost, the commenter believed that the least expensive system that complies with ELD performance requirements for CMVs should be used for FMCSA’s cost estimates. It commented that inflation of costs reduces net benefit calculations, and may be used by some to justify slowing or preventing an expedient ELD compliance process. Knight stated that the most cost effective approach is not to require some kind of printout in the vehicle. The National Limousine Association opposed printers. Schneider opposed a requirement to supply printers in the vehicle because the cost will be prohibitive and far outweigh the benefits. Schneider wrote that the benefit of this rule is the paperwork reduction and requiring a printer would defeat that purpose. Another group stated that law enforcement officers could be equipped with a dedicated portable printing device that the officer could hold with a USB 2.0 plugged to the ELD and print the data, as almost all ELD manufacturers will accommodate a USB 2.0. The Alliance for Driver Safety and Security believed that while carriers certainly have the option of using an ELD with a portable printer, they should not be required to do so. OTA stated that relying on the industry to provide a printed copy is not cost effective. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Adding the cost of printers to each CMV would raise the cost of this rule to the point the benefits would not outweigh the costs. 3. FMCSA Response In today’s rule, FMCSA requires ELDs to have either the capability to transfer data to roadside inspectors telematically, via Web services and email, or the capability to transfer data locally, via Bluetooth and USB 2.0. The final rule also requires ELDs to have either a printer or display as a backup method for displaying data to law enforcement. FMCSA believes that leaving the decision to use a display or printout to the ELD providers and the motor carrier will allow individuals to make the most cost effective decision for their particular operations. By allowing alternative methods for electronic transfer of information, coupled with two backup mechanisms (display or printout), the Agency anticipates that ELD providers will offer alternative products, responsive to motor carrier needs. G. Tax Credits and Relief To Off-Set Costs 1. Comments to the 2011 NPRM The NPRM did not propose any tax credits because the Agency does not have the statutory authority to deal with such matters. However, several commenters, including FedEx and the Specialized Carriers and Rigging Association, suggested that FMCSA offer a tax credit for motor carriers using EOBRs, to offset carriers’ costs. FedEx related this request to the use of EOBRs by Mexican motor carriers and drivers. The Truckload Carriers Association wanted direct financial relief from any EOBR mandate. 2. Comments to the SNPRM The SNPRM did not propose any tax credits, nor were there comments. 3. FMCSA Response FMCSA does not have the authority to offer any tax credits or direct financial relief. While FMCSA equipped each vehicle approved for use in the United States-Mexico Cross-Border Long-Haul Trucking Pilot Program with monitoring equipment, FMCSA owned the monitoring equipment and had access to and control of the data. The pilot program has ended, and FMCSA no longer funds the cost of those electronic monitoring devices. PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 H. Basis for Evaluating Safety Benefits 1. Comments to the 2011 NPRM ATA believed that compliance with the HOS regulations will lead to better safety, stating that ‘‘. . . data generated in the course of evaluating the agency’s Compliance, Safety, Accountability program shows a strong correlation between hours of service compliance and favorable safety performance (e.g., low crash rates).’’ CVSA commented that the cost benefit analysis underestimated the number of lives saved and overestimated the cost of the EOBR by at least 50 percent based on information the organization has received from providers. Some commenters criticized Agency studies or claimed that the Federal government had no evidence that EOBRs will help reduce fatigue. Commenters believed that more data or studies are needed, including studies to measure fatigue and issues related to the security of information. Some commenters said that there was no link between HOS compliance and safety. The National Limousine Association stated that the now-vacated 2010 final rule was based on insufficient data and that the information in the 2011 NPRM did not reflect enough research on the ‘‘non-trucking’’ part of the industry. Commenters to the Regulation Room questioned the validity of existing methods for measuring fatigue. Some were concerned that fatigued driving is a political issue and the rule was not based on sound evidence. One of these commenters also requested that the cost of an upgrade for security reasons be included in the proposal cost. OOIDA stated that no published data supported the rulemaking and believed that the degree of non-compliance was not known. OOIDA commented that the Cambridge Study, commissioned by FMCSA, showed ‘‘no documented improvement in compliance or safety,’’ and stated that non-driving time was being ignored. OOIDA also criticized FMCSA for relying on public comments when no data exist. OOIDA said that the RIA was based on underlying flawed research, and that FMCSA lacked evidence to link benefits to this rule. It claimed that the RIA for the NPRM was inadequate due to the use of data from 2003, as well as ‘‘false assumption[s]’’ made about fatigue. It also wanted to know the credentials of the people making assumptions about the 2003 data and claimed that the National Highway Transportation Safety Administration’s Fatality Analysis Reporting System (FARS) data contradicted the data used in the RIA. OOIDA stated that FMCSA failed to E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 show the connection between fatiguerelated crashes and EOBRs. OOIDA stated that the ‘‘Agency has never attempted to demonstrate, through examples or detailed explanations, the benefits of EOBRs over paper logs during this rulemaking or EOBR 1.’’ OOIDA also said that FMCSA ‘‘use[d] assumptions/staff opinions rather than data or facts to try to measure safety benefits gained from EOBRs.’’ OOIDA further stated that FMCSA had previously ignored analysis and data because they ‘‘[did] not show improvements in safety.’’ The Specialized Carriers and Rigging Association also believed that data failed to establish a link between crashes and EOBR use. 2. Comments to the SNPRM Several commenters addressed the benefits of ELDs. The Alliance for Driver Safety & Security stated that the ELD mandate will improve compliance with Federal HOS rules and ultimately reduce driver fatigue and the number of highway crashes caused by driver fatigue. Alliance noted that the leading freight transportation companies have found that the ability to record accurate driving records decreases HOS compliance violations, reduces driver fatigue, improves inspection reports to the Compliance, Safety, and Accountability program, and improves Behavior Analysis and Safety Improvement Category scores. AMSA stated that the proposed ELD requirements would significantly help to enhance HOS compliance, reduce paperwork for motor carriers and drivers, and increase CMV safety. NAFA Fleet Management stated that use of ELDs will improve compliance with HOS regulations, which is important because of the strong correlation between compliance with HOS regulations and safe operations. ELD provider BigRoad, Inc. stated that is has found that drivers and motor carriers who use electronic HOS solutions have increased awareness of, and compliance with, HOS requirements. J.B. Hunt pointed out that many of the opponents of mandatory ELDs commented about the ‘‘flexibility’’ of paper logs and how they will not be able to run as many miles and earn as much money if they are held accountable for their driving time and breaks. J.B. Hunt stated that these opponents are acknowledging that they are not complying with the current regulation, which provides justification for mandating ELDs. Knight stated that electronic logs that record drive time and are tamper proof, to the degree proposed by the SNPRM, do not allow VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 drivers to cheat on driving time. Knight pointed out that paper logs are often exploited and that the industry is in urgent need of a universal ELD mandate to ensure compliance with existing rules. Knight did acknowledge, however, that ELDs cannot prevent crashes or prevent drivers from violating HOS rules. The carrier noted that drivers must be individually accountable for following the rules and safe driving. Several drivers spoke from personal experience about how the use of ELDs improves safety and compliance with HOS requirements. One driver stated that the system will remind him to take a break an hour in advance. The driver noted that this helps with safety by allowing him enough time to find a safe place to stop. The driver also pointed out that with electronic logs, his fleet manager can see the hours he has and better plan his loads. Another driver noted that his ELD keeps him from having log violations because it notifies him of his exact time status. The driver also stated that the ELD provides a definite benefit in trip planning and load booking, and enables him to determine if he has enough time to complete a load legally. The driver also stated that he is more productive. Another driver stated that the electronic log system forces drivers to be better trip planners, which makes them better drivers. The driver also pointed out that ELDs improve safety by giving drivers reminders of when they need to take a 30-minute break and when the end of their 14-hour tour-of-duty is approaching. Numerous commenters stated that the use of ELDs will not improve safety or HOS compliance. OOIDA noted that the primary criticism of paper logbooks is the ease with which a driver can ‘‘falsify’’ time, which can lead to fatigue and unsafe driver. OOIDA believed an ELD is unable to provide any appreciable improvement to the accuracy of a driver’s RODS and compliance with the HOS rules over paper logbooks, and submitted several hypothetical RODS constructed to demonstrate why, in its view, the use of ELDs does not result in improved HOS compliance because drivers would still be able to mask HOS violations by manually entering false duty status into the ELD. OOIDA stated that the ability of ELDs to automatically record the length of time a truck has been driven has no appreciable value over paper logbooks if drivers can continue to enter an incorrect duty status while they are not driving. OOIDA further stated that only an accurate record of both a driver’s driving and non-driving PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 78351 activities will enable a determination of whether the driver is complying with HOS rules. OOIDA stated that ELDs will give inspectors and people concerned about highway safety a false sense of safety and driver compliance when, in fact, ELDs will permit up to 11 hours of unlawful driving a day without showing a violation. In addition, OOIDA argued that the safety analysis did not take into account that ELD use will increase pressure on drivers to violate speeding and other local ordinances and engage in other unsafe behavior. Advocates stated that a poorly crafted ELD regulation would provide drivers and carriers with the opportunity to continue to falsify logs electronically, thus enabling drivers to work, or to be forced to work, excessive hours resulting in fatigue and the associated increase in crashes, injuries and fatalities. Advocates expressed concern that the proposed rule does not ensure that drivers or carriers cannot manipulate the process of securing the data and transferring it from the ELD to roadside inspectors and enforcement officers, thus circumventing the purpose and intent of the regulation. Quoting from FMCSA’s April 2014 report on the safety benefits of ELDs,28 the UMA noted the American Transportation Research Institute stated that the correlation between EOBRs and safety is weak. The UMA pointed out that the ELD mandate is a significant proposal for passenger carriers, and that a direct and measurable correlation between reducing crashes is a necessity that goes to the very core of the Agency’s mission. Freightlines of America, Inc., stated that putting ELDs in CMVs will not get to the root of the problems in the industry, but instead make drivers and carriers more desperate to survive and endanger themselves, their businesses, and the public safety. An individual commenter pointed out that FMCSA has yet to show any direct correlation between ELD use and reduced crashes, or any other kinds of safety benefit. The commenter also pointed to OOIDA’s comments that the proposed rule as written will not improve highway safety, does not fully address the issue of driver harassment, and does not fulfill the requirements prescribed by Congress. Another individual pointed out that ELDs will not prevent drivers from lane deviation, following too closely, or any other poor driving habits. The commenter 28 In the docket for this rulemaking, docket number FMCSA–2010–0167–0900. https:// www.regulations.gov/#!documentDetail;D=FMCSA2010-0167-0900. E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78352 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations recommended better driver training regulations, infrastructure maintenance, and improvements to the national highway system, ‘‘share the road’’ education for both commercial drivers and passenger vehicle drivers, and a greater focus on truck parking and increasing the number of rest stations. Implementing ELDs without addressing these issues would strain an industry that is already seeing a major shortage in drivers. The commenter pointed out that shippers and receivers detain trucks during loading and unloading without consideration for HOS requirements because they have no oversight over their actions. Several commenters pointed to what they believe is the real reason for the ELD mandate—i.e., big trucking companies trying to put smaller trucking companies out of business. The California Construction Trucking Association stated that mandating ELDs will not achieve the safety benefits calculated by the Agency, and that the only true beneficiaries of an ELD mandate would be those intent on chasing competitors from the market under the guise of safety. HerbiSystems, a lawn care company, stated that there is no public demand for ELDs, and that some large trucking firms want to raise the cost of doing business for small trucking firms in order to minimize competition. An individual commenter stated that ELDs are not necessary for medium and small carriers because the drivers do not alter their paper RODS due to potential penalties. The commenter also stated that the big trucking companies who are pushing for the ELD mandate have sister companies with stock ownership in companies that produce ELDs. Klapec commented that ELDs are no more reliable than paper logbooks, and the ‘‘safest thing to put into a truck is a well-trained, experienced driver.’’ Klapec noted that experienced drivers will leave the industry, causing an increase in crash and fatality rates. It believed the Agency is discriminating against small carriers, and stated that large carriers know that the ELD mandate will cause an exit of many small carriers from the marketplace because they will be unable to sustain the high costs of doing business. Klapec said that the Vice President of ELD provider XATA Corporation sits on two of the three boards for FMCSA and that XATA Corporation stands to gain a potential windfall of business if the ELD mandate goes through. Klapec also pointed out that ATA’s members include big, national carriers that are eager to see small carriers, like Klapec, become extinct. Klapec urged the VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Agency to be careful about who is on its advisory boards, who is giving advice on the potential benefits of ELDs, and who stands to benefit from the passage the proposed ELD mandate. 3. FMCSA Response In the SNPRM, FMCSA used a different approach from that in the 2011 NPRM to estimate the number of crashes mandatory ELD use will prevent. Based on an analysis of carriers using ELDs, and using the peer-reviewed Roadside Intervention Model,29 FMCSA was able to estimate the reduction in crashes from mandatory ELD use. This estimate used a sample period from January 2005 through September 2007, which contained 9.7 million interventions. Generally, ELDs bring about improvements in safety by making it difficult for drivers and carriers to falsify drivers’ duty status which in turn deters violations of the HOS rules. And increased compliance with the HOS rules will reduce the risks of fatiguerelated crashes attributable, in whole or in part, to patterns of violations of the HOS rules. Part of the improvement in safety also involves motor carriers accepting the responsibility of reviewing the electronic records and supporting documents. Motor carriers are required to ensure their drivers comply with applicable safety regulations and motor carriers that strive to do so will now have a more effective tool for reviewing drivers’ RODS. A more detailed explanation of the process FMCSA employed to determine crash reduction benefits, with a clear, full accounting of assumptions and procedures, is in the RIA for this rulemaking. In response to these comments, FMCSA also undertook a study about the potential safety benefits of the ELD, and discusses that study and comments received about it in today’s rule, in Section XII, K, of this preamble. OOIDA submitted several hypothetical RODS constructed to demonstrate why, in its view, the use of ELDs does not result in improved HOS compliance because drivers would still be able to mask HOS violations by manually entering false duty status into the ELD. We note that the examples OOIDA provides rely on the premise that drivers using paper RODS accurately record their driving time and location. FMCSA’s enforcement experience demonstrates that is not always the case. Contrary to OOIDA’s assertion that ‘‘knowing how long a driver has operated a truck rarely helps 29 See Appendix E of the RIA to today’s rule, available in the docket. PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 identify whether the driver is in compliance with the HOS rules’’, the Agency’s field inspection personnel report that the bulk of their time spent on enforcement is in determining whether or not the driver has accurately entered driving time on the paper log. The use of ELDs would minimize this concern. Rather than respond directly to OOIDA’s hypothetical scenarios, we think it is more useful to illustrate how ELD use could have easily detected actual HOS violations recently documented in FMCSA’s field reports. For example, an FMCSA inspector reviewed a driver’s paper log, which showed that he was within the permitted HOS and that he had taken the required breaks. However, when the inspector compared the paper log to the driver’s time/date stamped toll receipts, it was apparent that the driver was at least 500 miles from the location shown on his log for a particular day. The inspector concluded that the driver simply could not have reached that location by taking the required 10-hours of off-duty driving time and by travelling at a speed of 60 miles per hours as ‘‘documented’’ on the log. Had an ELD been installed in this driver’s truck, the device, by automatically capturing driving time, mileage and location, would have made this HOS violation readily apparent to the FMCSA inspector. Another recent example of an actual HOS violation involved a driver leaving Arkansas just before noon on a Saturday to reach the first of several retail delivery locations in California the following Monday morning. The driver’s paper RODS showed 30 hours of driving time, arranged to accommodate the required 10-hour breaks. The log also showed that the driver spent about an hour unloading at each of the retail locations in California. However, when the FMCSA inspector compared the GPS-based asset tracking record with the driver’s log, it was apparent that, between Arkansas and California, the driver stopped for only brief periods, most of which ranged from 15 minutes to 75 minutes. The longest period the driver stopped driving did not exceed 3 hours during a total of 34 hours of actual driving time. Asset tracking also showed that the periods of unloading took longer than the hour that the driver logged. As with the previous example, an ELD would have immediately revealed the falsification of the driver’s RODS. The Agency thus believes it is reasonable to conclude that drivers would be less likely to engage in, and carriers would be less likely to encourage, the types of E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations HOS subterfuge that ELDs would readily detect. We also believe that ELDS will facilitate better trip planning by drivers and carriers, resulting in fewer unintentional HOS violations. While FMCSA acknowledges that ELDs will not prevent every crash or ensure that every driver will follow the HOS rules to the letter, we do believe that by reducing HOS violations, ELDs will result in less fatigued and less dangerous drivers, thereby achieving the statutory mandate of MAP–21. In addition, to the extent that OOIDA focuses on ELDs as the sole means of monitoring HOS compliance, that focus is misguided. In addition to retaining RODS, motor carriers have long been required to retain supporting documents. Today’s rule continues that requirement while also providing specific guidance as to the type of documentation that must be retained. In addition, today’s rule requires drivers to make available supporting documents in their possession upon request during a roadside inspection. Enforcement personnel as well as carriers rely on these documents along with driver’s RODS, to provide a more comprehensive view of a driver’s workday. Finally, we also note that, in addition to HOS violations, certain aspects of the behavior OOIDA describes in its hypothetical RODS are currently prohibited under the FMCSRs. For example, FMCSA could cite a motor carrier under 49 CFR 392.6 for scheduling a run between points in a way that would necessitate speeding. Similarly, § 392.2 requires that CMVs be operated in accordance with local laws; § 392.3 prohibits driving, and prohibits the carrier from requiring driving, while the driver is fatigued, ill or the driver’s ability to remain alert is otherwise impaired. XII. Discussion of Comments Related to Procedures, Studies, Etc. A. Registration and Certification tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the SNPRM FMCSA proposed that ELD providers would have to register with FMCSA, certifying that their devices meet the requirements and providing information on how the ELD works and how it was tested. FMCSA would make much of that information available on an FMCSA Web site that would list the registered providers. FMCSA would develop optional test procedures, which providers could use to ensure their ELDs meet the requirements. In the SNPRM, FMCSA sought comments on the certification issue and the ability of VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 carriers and providers to meet the requirements in the time provided. Although ATA, UMA, and CVSA supported the certification process, OTA opposed it, arguing that it would expose carriers to considerable risk. If a device is later held to be non-compliant, the carrier would have a fleet of vehicles that might need to be taken off the road. OTA stated that FMCSA should provide assurance that a carrier is not at risk of having to replace a registered product or have its logs declared invalid. OTA was concerned that FMCSA might refine the regulations, which could require expensive modifications, reprogramming, or replacement of the first equipment purchased. Drivewyze noted that FMCSA has not anticipated the use of intermediaries to support ELD providers’ internetconnected data transfer needs; the intermediaries may also need to register and conform to FMCSA standards. ATA stated that providers contend that the cost of the upgrades will be high and that the existing hardware will need to be tested. FedEx, UMA, CVSA, and an ELD provider stated that FMCSA should require each registering providers to use FMCSA-prescribed test procedures to provide carriers with some assurance that the devices meet the specific requirements. CVSA stated that the certification process must include resistance against tampering with the device/system. Several providers raised concerns about the information that has to be submitted. Some stated that only major releases should be reported to FMCSA— not every update. Zonar asked if ‘‘version’’ refers to hardware or includes software, and whether providers will be able to update information posted on the FMCSA Web page, and stated that providers should be listed in random order. Some providers questioned the requirement to provide the user manual. XRS stated that the Enforcement Instruction Card should be sufficient; the user manual may contain proprietary information that should not be publicly available. Omnitracs recommended providing a link to the provider’s Web site rather than the manual; this would make it easier to ensure that carriers had access to the most recent version. 2. FMCSA Response In today’s rule, FMCSA includes procedures for provider registration of an ELD as they were proposed in the SNPRM. However, in response to comments, FMCSA is adding section 5.4 to the technical specifications—a PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 78353 procedure to remove a listed certification from the Web site—in order to provide additional assurance to motor carriers that that the ELDs listed on the provider registration Web site are compliant. The procedure includes as a preliminary step an opportunity for the ELD provider to cure any deficiency. It also protects an ELD provider’s interest in its product. Today’s rule provides the specifications for the data elements and related HOS data transfers that are mandatory to develop a compliant ELD in the appendix to subpart B of part 395. This includes all aspects of the file structure, formatting, and naming conventions. However, FMCSA understands that providers and motor carriers need assurance that an ELD meets FMCSA’s requirements. FMCSA will provide guidance to providers that will contain the tools providers will need to ensure that their ELD meets the technical specifications. However, it will be the responsibility of each provider to ensure that its product complies with the RODS file data definitions FMCSA provides. While FMCSA does not mandate third party software requirements, it allows for them, and will provide guidance so that providers can evaluate whether they are in compliance with part 395. Any agents acting on behalf of a motor carrier must comply with FMCSA’s regulations as well. FMCSA provides more information about this process, and the mandatory elements that providers will have to submit to FMCSA in order to be listed on the public Web site, in the ICR notices related to ELD provider registration. FMCSA released the related Paperwork Reduction Act ICR notice for public comment on October 28, 2014 (79 FR 64248). The elements that providers have to submit are adopted as proposed in section 5.2.1, Online Certification. User manuals are generally available to the public. Given required submission, FMCSA does not believe that providers would include proprietary information that the manufacturer does not want to make available to the public. The elements that providers may have to submit are limited to those included in the ICR for ELD certification. The ICR process is separate from the rulemaking process, and FMCSA responds to comments on the ELD certification ICR in the notice issued in accordance with the Paperwork Reduction Act on April 3, 2015 (80 FR 18295). E:\FR\FM\16DER2.SGM 16DER2 78354 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations B. Compliance Date and Grandfather Period tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2011 NPRM The NPRM proposed a compliance date 3 years after the effective date of the anticipated final rule. Motor carriers would have been required to install EOBRs in CMVs manufactured on or after June 4, 2012. Motor carriers that installed AOBRDs before the compliance date of the final rule would have been allowed to continue to use those devices for 3 years beyond the compliance date, for a total of 6 years after the publication of a final rule. The Agency asked for comments on factors it should consider to determine if the compliance date should be adjusted (76 FR 5544, February 1, 2011). It asked if EOBRs should be phased-in, based on the number of power units in a motor carrier’s fleet. Several commenters, including CVSA, supported a 3-year implementation period with a single effective date for EOBR use. The Insurance Institute for Highway Safety believed that the compliance date should not be later than 3 years. Several commenters contended that the 3-year period is too long; others believed that the proposed 3-year compliance period was too short. Some commenters, including AMSA, NSTA, and NPGA, asked for a 5-year compliance period. While a large motor carrier recommended that large motor carriers have additional time, several large carriers, as well as TCA and ATA, opposed different compliance dates. AMSA recommended that FMCSA conduct a 2–3 year operational test of EOBRs, providing EOBRs to United States-based motor carriers under a program similar to the Agency’s North American Free Trade Agreement pilot program. 2. Comments to the 2014 SNPRM Subsequent to the NPRM, Congress enacted MAP–21, which required that the ELD regulations apply to a CMV beginning 2 years following publication of the rule (49 U.S.C. 31137(b)(1)(C)). In the SNPRM, FMCSA proposed an effective date of 30 days after publication of a rule in the Federal Register and a compliance date of 2 years thereafter. FMCSA proposed that motor carriers that installed AOBRDs, as described in current § 395.15, before the compliance date of the ELD rule be allowed to continue to use those devices for 2 years beyond the compliance date. Two-Year Compliance Date Four commenters, including the NTSB, expressed support for the proposed effective and compliance VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 dates. Knight the Alliance for Driver Safety & Security, and the NTSB urged FMCSA to implement the rule quickly. The American Moving & Storage Association stated that the compliance schedule for mandated ELDs and related requirements are appropriate. The majority of commenters on this issue, however, stated that the proposed 2-year compliance date should be extended. CHP recommended collaboration with private and public stakeholders to ensure compliance dates are realistic. The UMA stated that FMCSA should consider an incremental approach. The ABA stated that 3 years is the absolute minimum needed for ELD implementation in the motorcoach industry. YRC estimated that under a 2year implementation schedule, it would have to take approximately 500 trucks a month out of service for installation and train 700 to 1,000 drivers a month on the new devices. The National Propane Gas Association stated that a 3- to 5-year compliance deadline is necessary to ensure sufficient availability of devices and that there is enough time to install them. CVSA and an ELD provider stated that the grandfather clause should be eliminated, and that a 3-year compliance deadline should be applied to all CMVs. CVSA stated that having multiple compliance deadlines would complicate roadside enforcement and undermine uniformity. Omnitracs was concerned that there could be confusion with enforcing the grandfather period and, therefore recommended a 3-year compliance deadline for ELD use. Four commenters stated that the compliance deadline should be extended to 4 years from the effective date. MPAA suggested that FMCSA delay initial enforcement of its allelectronic roadside inspection requirement or apply the ELD mandate to production drivers either 1 year after FMCSA confirms that sufficient RODS transfer functionality is available in the market, or 2 years after the initial implementation of the rule (i.e., 4 years after publication). Two-Year Grandfather Period Most of the commenters on this issue, including Roehl Transport, the International Foodservice Distributors Association, the Snack Food Association, UMA, TCA, ATA, and OTA, stated that the proposed 2-year grandfather period for AOBRDs installed prior to the compliance date is too short. Many recommended that carriers be permitted to use installed AOBRDs for the remainder of the service life of the vehicle in which they PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 are installed. ATA and TCA both stated that failure to extend the grandfather period for the life of the vehicle would discourage fleets from making an early investment in ELDs. A non-profit transit provider noted that it has already invested in Mobile Data Terminals and tablets for some of its vehicles, and asked that FMCSA allow flexibility to upgrade current devices to meet the proposed requirements. The NAFA Fleet Management Association agreed with FMCSA’s proposed 2-year grandfather period. However, an ELD provider and the Alliance for Driver Safety & Security recommended eliminating the 2-year grandfather provision. The ELD provider stated that it would unnecessarily extend the use of noncompliant systems, incentivize some carriers to circumvent HOS enforcement, and undermine the ability of law enforcement to enforce the ELD mandate and the HOS rules. The provider believed it would be difficult to determine if an AOBRD was installed before or after the compliance date. Law enforcement will need to be trained to use both AOBRDs and ELDs, which will also increase the cost of enforcement. Knight recommended that FMCSA be more specific in identifying the conditions for eligibility for the 2-year grandfather provision. It believed that a ‘‘high percentage’’ of the fleet should be so equipped to be eligible. 3. FMCSA Response In enacting MAP–21, Congress required the Agency to use a compliance date 2 years after publication of the rule. This means that a CMV driver required to use an ELD will be required to use a certified ELD 2 years after this rule is published unless the grandfathering provision is met. Until this date, existing AOBRD devices or paper logs will be acceptable. In today’s rule, FMCSA clarifies that the compliance date, as well as the grandfather period, is calculated to run from today’s publication rather than from the effective date of the rule, consistent with the requirement of MAP–21. For 2 years after the compliance date, today’s rule requires a driver subject to this regulation to use either an ELD or an AOBRD, i.e., a device that meets the requirements of § 395.15, which was installed and that a motor carrier required its drivers to use before the rule compliance date. FMCSA clarifies that the grandfather provision is vehicle-based, not fleet-based. While FMCSA proposed a 3-year grandfathering date in the NPRM, mirroring the 3-year compliance date in E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations that proposal, FMCSA does not believe the intent of the statute would allow for a grandfathering date longer than the compliance date. Therefore, the rule allows drivers to continue to use grandfathered AOBRDs for 2 years after the rule’s compliance date. FMCSA declines to remove or shorten the grandfathering period beyond what was proposed in the SNPRM. The Agency believes that some transitional time is necessary for ELD providers to produce a sufficient quantity of ELDs to meet the needs of the motor carrier industry. FMCSA does not think that the 2-year grandfather period will penalize early adopters of logging technology. Motor carriers currently using AOBRDs will have 4 years of use of the devices, starting from the publication date of this rule; these devices have an estimated useful service life of 5 years. FMCSA notes that it has heard from ELD providers during the rulemaking process, as well as through the MCSAC subcommittee on ELD technology, about their current technologies. The Agency kept current systems in mind while developing the technical specifications, and believes that many existing AOBRDs can become ELDs. Given the obstacles and cost of converting AOBRDs operated under 49 CFR 395.15, FMCSA believes that it will be necessary to have some overlap in time where both AOBRD and ELD devices are acceptable. The Agency does not think that this will lead to a delayed enforcement program or inconsistency. Other than grandfathering current AOBRDs, the Agency does not provide a phased or incremental compliance period. The Agency notes that, in today’s rule, it corrects references to the compliance and grandfather date. The clock starts at the rule publication date, rather than the effective date, consistent with MAP–21. C. Penalties and Enforcement tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2011 NPRM An individual commenter asked who would be responsible for paying the penalty for disconnecting an EOBR device. Another commenter said that EOBR records should provide drivers the same authorities as a ship’s logs and have the same rules against fraudulent entries. A commenter stated that the EOBR will now make it ‘‘institutionalized’’ that driving during a break period is a violation of the HOS, no matter the circumstances. The commenter stated that this would lead to drivers getting HOS violations and losing their livelihoods. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 2. Comments to the 2014 SNPRM FMCSA proposed a new prohibition against harassment, subject to a civil penalty, for a motor carrier that engages in harassment. Harassment would be considered in cases where a motor carrier is alleged to have required a driver to violate the HOS rules involving the use of the ELD. Some commenters recommended enhanced penalties for repeated violations of the ELD requirements. Advocates stated that there is no provision for specific or enhanced penalties to be imposed for violations of the requirement to use ELDs. Advocates believed the Agency must specify strong penalties for intentional and unintentional violations that progressively increase with a subsequent violation and permit an out of service order for a carrier, and provide for disqualification of a driver found to have committed a third violation of the ELD requirements. A coalition of safety groups (Truck Safety Coalition, Parents Against Tired Truckers and Citizens for Reliable and Safe Highways) stated that carriers and drivers must have a strong motivation to comply with the new ELD regulation, and serious and meaningful penalties should be identified as part of the rulemaking to ensure that the cost of a violation is not merely part of doing business. These commenters wrote that, unfortunately, there is no provision for penalties in the ELD regulation. They believed that FMCSA must remedy this oversight and include strong penalties for offenders, with an escalation for repeat offenders such that, by the third violation, an order to cease operation is issued. EROAD supported FMCSA’s approach. It commented that the proposed regulation leaves States with the flexibility to continue their own commercial vehicle policies and enforcement approaches while allowing private companies to support the requirements in an open market environment. FedEx commented that it is possible that law enforcement will be inclined to write violations for failing to use an ELD if the driver cannot prove at roadside that he or she did not complete a log more than 8 times in the last 30 days. In effect, this rule would require these occasional drivers to carry their HOS records for the previous 30 days in their vehicles, directly conflicting with the requirement that drivers retain logs only for the previous 7 days. IBT supported heavy penalties for carriers who harass and coerce drivers to violate HOS regulations. IBT would PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 78355 also like FMCSA to include language in the rule that defines penalties for carriers and drivers when evidence of tampering is detected. It supported heavy penalties issued to carriers who tamper with or otherwise alter a ELDs ability to operate per FMCSA specifications. IBT commented that the SNPRM provides that a motor carrier may request an extension of time from FMCSA to repair, replace, or service an ELD. Unless an extension is granted, a driver could receive a citation for the malfunctioning ELD. The IBT does not support this language, as it would unjustly penalize the driver for the motor carrier’s failure to apply for a service extension correctly. IBT believed that the driver should only be responsible for having manually prepared RODS for the current 24-hour period and the previous 7 days. Any citation issued by law enforcement should be directed to the carrier, not the driver where the driver can produce evidence, via the driver vehicle inspection report (DVIR) or other acceptable means, that he/she notified the motor carrier of the malfunction within the specified 24-hour period. Inthinc recommended that the regulations state that law enforcement officers must ask carriers, not drivers, for non-authenticated driver logs. 3. FMCSA Response FMCSA adopts an approach that increases drivers’ control over their own HOS records in order to maximize transparency and ownership of edits being made. All edits to ELD records will appear with clear authorship. FMCSA clearly prohibits any kind of ELD tampering or altering. The Agency prescribes penalties for non-compliance with the requirements in today’s rule. Civil penalties for violations of regulations addressing ELDs will be assessed under Appendix B to 49 CFR part 386, and numerous factors, including culpability and history of prior offenses, are taken into account. 49 CFR 386.81. Tampering with an ELD is also an acute violation under FMCSA’s safety rating process under today’s rule. Section VII of Appendix B to 49 CFR part 385. FMCSA includes a provision that allows penalties for harassment to be enforced at the maximum levels in order to discourage motor carriers and drivers from committing violations. In assessing the amount of a civil penalty, however, the Agency is required by statute to take certain factors into account. See 5 U.S.C. 521(b)(2)(D). Thus, the Agency intends to apply this provision through its Uniform Fine Assessment software to E:\FR\FM\16DER2.SGM 16DER2 78356 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations assure civil penalties are assessed in individual cases in a fair manner while addressing the gravity of harassment violations at an appropriate level. Both motor carriers and drivers are prohibited from committing violations of the FMCSRs. FMCSA acknowledges, through today’s rule, concerns of harassment of drivers by motor carriers through the use of ELDs and related technologies, and believes provisions addressing harassment appropriately target motor carriers for actions affecting drivers they control. The use of an ELD makes a driver’s HOS records more transparent. Furthermore, carriers using ELDs with related communication components generate records documenting carrier/driver interactions. These electronic records generated in the ordinary course of business are covered by the supporting documents provisions in today’s rule. During investigations, inspections, and safety audits, FMCSA and its State partners will evaluate the 8 out of 30 day threshold for ELD use under today’s rule. Drivers currently allowed to use timecards may continue to do so under the provisions of 49 CFR 395.1(e). Authorized safety officials may request the time cards from the motor carrier supporting the exception. Section 395.1(e)(2)(v) requires a motor carrier to maintain ‘‘accurate and true time records’’ for each driver. These records must show the time the driver goes on and off duty, as well as the total number of hours on duty, each day. The lack of a time record for a driver under this exception on any given day would ordinarily suggest that the driver was not on duty that day. If an authorized safety official discovers that the driver was in fact on duty, despite the absence of a time record, the motor carrier has violated § 395.1(e), because it has not retained ‘‘true and accurate time records.’’ Appropriate enforcement action may then be taken. FMCSA recognizes that records relevant to the evaluation of the 8 out of 30-day exception will not ordinarily be available during roadside inspections. However, this factor does not differ from enforcement of the short-haul exception at roadside, where similarly, on-site confirmation generally is not available from records inspection or otherwise. tkelley on DSK9F6TC42PROD with RULES2 D. Enforcement Proceedings 1. Comments to the 2014 SNPRM The SNPRM included a new procedural provision, § 395.7, Enforcement proceedings. The proposed provision encompassed three concepts, providing that: (1) A motor carrier is liable for an employee’s acting or failing VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 to act in a manner that violates the HOS rules if the action is within the course of the motor carrier’s operation; (2) the burden of proof in demonstrating that an employee’s action was outside the course of the motor carrier’s operation is on the carrier; and (3) knowledge of a document in a motor carrier’s possession, or available to the motor carrier, that could be used to enforce the HOS rules is imputed to the motor carrier. Given drivers’ autonomy, ATA stated that a carrier ought to be held liable only in cases where the carrier encouraged a violation or, for undetected violations by an employee, where the government can show that the carrier failed to perform due diligence in providing instruction and training to the driver on HOS compliance. ATA indicated that the burden of proof ought to be on the government for proving HOS violations. With respect to the proposed provision imputing knowledge of a document to the carrier, OTA asked what ‘‘available to the motor carrier’’ means, and to what extent the motor carrier is required to pursue such documents. OTA suggested that the carrier should only be charged with knowledge of a document if the carrier receives that document in the regular course of business. J.B. Hunt stated that the Agency must define the term ‘‘available’’ and present a cost benefit analysis addressing the paperwork burden the new standards place on carriers. J.B. Hunt also recommended that certain statements in the SNPRM be modified to make it clear that carriers are responsible only for documents generated and maintained during the normal course of business. 2. FMCSA Response The provisions originally proposed as § 395.7 in the SNPRM, addressing part 395 enforcement proceedings, are included as § 386.30 in today’s rule. The provisions are moved to codify the enforcement provisions with other rules of practice. Motor carriers and drivers share the responsibility for complying with HOS requirements under part 395. A motor carrier’s responsibility for an employee’s violation of the HOS rules is not a new concept; it dates back to the Interstate Commerce Commission. Under 49 CFR 390.11, a motor carrier is required to have its drivers observe any duty or prohibition on drivers under the FMCSRs. Section 386.30(a) reiterates a carrier’s liability with respect to the HOS rules. The FMCSA and its predecessor agencies have consistently held carriers liable for their drivers’ PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 actions that violate the HOS regulations. This addition, however, does not in any way modify a carrier’s liability under 49 CFR 390.11. Carriers are deemed to have knowledge of regulatory violations if the means were present to detect the violation. (See In the Matter of Goya Foods, Inc., Final Order (July 7, 2014).30 Section 386.30(a) codifies administrative case law addressing a motor carrier’s responsibility for an employee acting within the course of the motor carrier’s operations. For example, in the case of a driver providing false logs, a carrier is responsible for the driver’s violation regardless of the systems it has established to prevent violations or whether it actually detected the violation. (In the Matter of Holland Enterprises, Inc., Order Appointing Administrative Law Judge p. 4 (February 13, 2013)).31 This is consistent with the principle of respondent superior. Id. However, this concept does not result in strict liability in that a carrier could argue the driver was acting outside the scope of employment. (See In the Matter of Stricklin Trucking Co., Inc., Docket No. FMCSA–2011–0127 (Order on Reconsideration Mar. 20, 2012)).32 In terms of the applicable burden of proof under § 386.30(b), a motor carrier claiming that a driver was acting outside the carrier’s operations is in the best position to establish this fact and will need to raise the issue as an affirmative defense under the rule. Section 386.30(c), providing that a motor carrier is deemed to have knowledge of any document in its possession or available to the motor carrier for purposes of enforcement proceedings, is written to preclude a motor carrier from ignoring documents that would assist in monitoring its drivers. Questions of imputed knowledge are more likely to arise in enforcement of false log violations than violations of provisions governing supporting documents. The concept of imputed knowledge is material in determining the effectiveness of a motor carrier’s efforts in monitoring its drivers. Generally, a carrier has imputed knowledge if it could have discovered violations had it reviewed its internal records. (See In the Matter of Transland, 30 Available in Docket FMCSA–2011–0156, https://www.regulations.gov (Document No. FMCSA–2011–0156–0004). 31 Available in Docket FMCSA–2008–0233, https://www.regulations.gov (Document No. FMCSA–2008–0233–0006). 32 Available in Docket FMCSA–2011–0127, https://www.regulations.gov (Document No. FMCSA–2011–0127–0013). E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Inc., Decision of Chief Administrative Law Judge (February 16, 2010)).33 Nevertheless, available documents are not necessarily limited to documents a carrier actually uses in its normal course of business in ensuring compliance with the HOS rules. Rather, the standard is whether the documents could be used to determine compliance. (See In the Matter of Roadco Transportation Services, Inc., Decision on Petition for Review of Safety Rating (December 4, 2003); 34 see also In the Matter of Stricklin Trucking Co., Inc., Order on Reconsideration (March 20, 2012)).35 Section 386.30(c), prescribing the imputed knowledge concept applicable to enforcement proceedings, is not intended to modify a motor carrier’s current obligations under the Agency’s administrative case law. Thus, in response to J.B. Hunt’s comment, no new paperwork burden results. In terms of the impact on motor carriers, today’s rule neither increases nor decreases the burden associated with supporting documents. E. FMCSA Should Not Provide Mexican Motor Carriers With ELDs tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2011 NPRM Between October 14, 2011, and October 10, 2014, FMCSA conducted the United States-Mexico Cross-Border Long-Haul Trucking Pilot Program (Pilot Program). The Pilot Program evaluated the ability of Mexico-domiciled motor carriers to operate safely in the United States beyond the municipalities and commercial zones along the United States-Mexico border. The Pilot Program was part of FMCSA’s implementation of the North American Free Trade Agreement cross-border long-haul trucking provisions. As part of FMCSA’s information gathering process, FMCSA equipped each vehicle approved for use by a Mexico-domiciled motor carrier in the Pilot Program with an electronic monitoring device. Numerous commenters strongly objected to FMCSA’s funding of electronic monitoring devices for CMVs in the Cross-Border Pilot Program. Klapec, AMSA, and FedEx believed that the United States government was providing Mexican-based carriers with an advantage not available to domestic carriers. AMSA suggested FMCSA institute a 2 to 3-year long pilot 33 Available in Docket FMCSA–2006–25348, https://regulations.gov (Document No. FMCSA– 2006–25348–0133). 34 Available in Docket FMCSA–2002–13667, https://regulations.gov (Document No. FMCSA– 2002–13667–0005). 35 Available in Docket FMCSA–2011–0127, https://regulations.gov (Document No. FMCSA– 2011–0127–0013). VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 program, for which FMCSA would fund the EOBRs, to test the integration of EOBRs into the CMV fleet nationwide. FedEx felt that FMCSA’s agreement to pay for EOBRs in Mexican trucks bolstered its suggestion that the United States government provide tax credits to purchasers of EOBRs to offset their costs. 2. Comments to the 2014 SNPRM A number of commenters objected to FMCSA paying for electronic monitoring devices for foreign carriers. Some suggested that FMCSA fund ELDs for domestic carriers. 3. FMCSA Response FMCSA acknowledges commenters’ concerns about the Agency purchase of ELDs for foreign motor carriers. The Agency emphasizes that the purchase was an essential step to ensuring appropriate levels of oversight during a pilot program. FMCSA used electronic monitoring devices with GPS capabilities to monitor the operation of vehicles used in the Pilot Program and used the data to identify potential violations. This approach addressed concerns expressed by members of Congress and others. FMCSA owned the monitoring equipment and had near real-time access to and control of the data provided by the electronic monitoring devices and GPS units, 24 hours per day, every day of the week. This will not be the case with the ELDs required through this rulemaking. The Pilot Program ended in October 2014 and FMCSA discontinued the subscription service used in connection with the devices. FMCSA no longer funds the cost of electronic monitoring devices for Mexico-domiciled carriers authorized to operate in the United States. The suggestion that ELD’s acquired during the Pilot Program provide foreign carriers with a competitive advantage is without merit. The number of vehicles equipped with ELDs was limited, with approximately 55 vehicles operating at the conclusion of the pilot program. Also, foreign carriers are prohibited from making domestic point-to-point deliveries within the U.S. FMCSA is not in a position to fund ELDs for domestic carriers and implementing a domestic pilot program is inconsistent with the Congressional mandate that the Agency require certain drivers to use ELDs. F. International Issues 1. Comments to the 2011 NPRM Under existing regulations, drivers from Canada and Mexico who drive in PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 78357 the United States need to be in full compliance with our HOS rules once they cross the border—just like any domestic driver. Under this rulemaking, Canadian and Mexican drivers would keep their RODS using an ELD in the same way that United States drivers would, unless they qualified for one of the exceptions. The Regulation Room received a remark suggesting that an EOBR helped ‘‘keep a driver straight’’ in the face of complex rules, and allowed the driver to change from Canadian to United States rules with the flip of a switch. However, Verigo, a Canadian wireless logbook provider, recommended that FMCSA allow companies in the oil and gas sector, which operate under an equivalent level of safety required by a Canadian Oil Well Service Vehicle Permit, be exempt from mandatory use of EOBRs. CVSA commented that Canada is pursuing the development of an EOBR standard. It recommended that FMCSA make every effort to work with Canada to develop a harmonized standard across North America. OOIDA believed that there might be a need for a dual mandate for both paper RODS and EOBRs, absent a Canadian mandate. This would add to the costs of the United States mandate for those drivers. The Air and Expedited Motor Carriers Association, the National Association of Small Trucking Companies, and The Expedite Association of North America (TEANA), responding together, were concerned about the compatibility of United States and Canadian requirements for EOBRs because Canada required EOBRs to print and present a paper log. 2. Comments to the 2014 SNPRM Klapec stated that Mexican and Canadian trucking companies are already taking a share of the trucking business from small United States carriers, and believed that the ELD mandate would make competition between small carriers and foreign carriers impossible. An individual commenter stated that FMCSA wants American truckers to operate like truckers in Europe, despite the different economic situation between Europe and the United States. A number of commenters questioned how the rule will apply to Mexican or Canadian drivers. Several commenters emphasized the importance of harmonizing the proposed regulation with Canadian and Mexican standards. Greyhound pointed out that the SNPRM does not address the compatibility of the proposed ELD standards with Canada and Mexico, and noted that compatibility among the E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78358 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations three countries is critically important for carriers like Greyhound who operate a large number of daily trips between the United States and Canada or Mexico. UMA pointed out that there is significant international traffic (between the United States and Mexico and Canada) involving passenger carriers and recommended FMCSA complete regulatory harmonization prior to full implementation of the proposed rule. ABA noted that Canadian motor carrier authorities have not instituted a change in their regulations in line with the United States ELD proposed rule. ABA further noted its understanding that Canadian authorities will wait for FMCSA to issue its rule before considering any changes to Canadian laws and regulations. It stated that the 2-year compliance period may be an insufficient period of time for Canadiandomiciled carriers to obtain ELDs. A Canadian owner-operator stated that FMCSA should exempt Canadian owned and operated CMVs from ELD regulations because FMCSA is not adopting Canada’s HOS regulations. The commenter asserted that the imposition of ELD regulations forces the Canadian Federal Transportation Ministry to enforce United States law on Canadians operating in the United States. ELD provider PeopleNet requested further clarification as to how to manage harmonization of data for those drivers who transition between United States Federal regulations and Canadian or intrastate regulations. XRS pointed out that there are additional data elements for each duty status change, as well as several additional events, such as ignition on, which will need to be captured in the harmonization required for drivers who travel between Canada and the United States. Two individual commenters addressed the issue of drivers traveling between Alaska and the lower 48 states through British Columbia and the Yukon Territory. One commenter noted that there are different HOS requirements for each jurisdiction through which he travels. The commenter stated that it would be impossible for an ELD to function properly under these circumstances. The other commenter pointed out that there are many areas between Alaska and the lower 48 states in which GPS devices do not show accurate locations. That commenter noted that he has researched several ELDs and found that none would work for his situation. A recruiter who hires owner-operators for a small carrier in Canada was concerned about the impact the ELD mandate will have on the expedite business from Canada to the United VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 States. The recruiter pointed out that Canadian owner-operators who agree to install ELDs in their trucks to do this expedite work to the United States will also be required to use the ELDs for local work to be compliant with the United States regulations. The recruiter noted that most of the owner-operators he spoke to in Canada stated that if the ELD mandate goes into effect they will stop doing expedite work and either do local work only or retire from trucking entirely. 3. FMCSA Response The Agency emphasizes that this rule does not alter the underlying HOS regulations or the obligation of drivers to comply with the applicable rules of the jurisdiction in which they are operating. Though FMCSA agrees that complying with several sets of regulations can be complex and challenging, the applicable requirements have not been altered. FMCSA requires that Canada- and Mexico-domiciled drivers comply with the Federal HOS rules while operating in the United States. While FMCSA agrees with the commenter that regulatory harmonization would be ideal, North American HOS harmonization is not an option at this time. However, the Agency understands that there are electronic monitoring devices currently on the market that have been programmed to accommodate the HOS rules of multiple jurisdictions. Further, under today’s rule, a driver operating in multiple jurisdictions would be able to annotate the driver’s record of duty status on the ELD to reflect information about periods outside the United States. Regarding the concern raised by several entities that Canada requires a printout of an electronic log, today’s rule includes a printer option. FMCSA declines to exempt through this rulemaking specialized equipment or vehicles tied to specific industrial sector, including CMVs subject to safety regulation under a Canadian Oil Well Service Vehicle Permit. G. Effects of ELDs on Current Business Practices 1. Comments to the 2011 NPRM Several commenters stated that the impact of ELDs would unevenly fall on smaller carriers. OOIDA provided an example of a current practice by a carrier that instructs drivers to falsify HOS records kept on EOBR-like devices, and said there was no reason for current illegal practices to change with the use of EOBRs. Advocates, and others, also noted that current practices often PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 involve violating the HOS rules; however, in their view, ELDs could help stop those violations. A commenter stated, ‘‘[a] lot of the fear of EOBRs seems to stem from a lack of good practices following the HOS [rules] in the first place.’’ 2. Comments to the 2014 SNPRM A number of commenters were concerned that the rule would affect their current business practices. Continental stated that some carriers are opposed to an ELD mandate because they anticipate that the costs for ELDs will be high; they relate the problems associated with today’s complex FMS (e.g., system-to-system incompatibility, complex handling, or data privacy concerns) to ELDs; and they fear that ELDs may be a capable tool to enforce the HOS regulation (a rule they fundamentally oppose). Continental said it is likely that the majority of carriers will accept ELDs, assuming FMCSA adequately addresses some concerns. The commenter said that FMCSA effectively addressed cost and data privacy concerns. Continental also noted fleets that would not benefit from the use of FMS functionalities will not be required to use real-time communications and will be able to use ELDs without monthly fees. Three commenters addressed the proposed requirements, in §§ 395.8 (a)(2)(ii) and 395.11(b), that RODS and supporting documents be transferred from the vehicle to the carrier’s office within 8 days. Current regulations in § 395.8(i) require a driver to submit RODS within 13 days. FedEx stated that, like the 13-day time period, an 8-day time period is too long, especially given that the vast majority of logs will be created using ELDs and the proposed ELD rule requires that drivers certify their daily record ‘‘immediately after the final required entry has been made or corrected for the 24-hour period.’’ To allow carriers to better manage HOS and ensure they are not at risk of allowing a driver to operate in violation of § 395.3, FedEx recommended drivers should be required to certify and submit their HOS records to carriers within 24 hours of the end of their day. FedEx suggested that FMCSA carve out an exception for logs showing only off duty time and only require that they be turned over to the motor carrier prior to the driver performing any on duty work for the carrier. Where trucks do not return to the main office every 8 days, Continental was concerned that this shorter timeframe may force carriers to use cell phone or satellite wireless communication for data transfer, E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 creating additional costs. Continental stated the requirement to send RODS to the back office should remain at 13 days. Eclipse Software Systems stated that the requirement to file logs within 8 days will be onerous to carriers wanting to use low-cost ELDs that do not support wireless connections for data transfer, and problematic for drivers who are away from their home terminal for more than 8 days. The commenter noted that the gains in safety from such a requirement would also seem to be minimal because the most pressing compliance issues occur in real-time, when a driver is tired. According to the commenter, carriers have been operating under the 13-day submission rule for many years, and continuing with that limitation would mirror current operational patterns without penalizing users of low-cost ELD systems that experience longer trips. The MPAA stated that FMCSA should confirm that industries in which drivers work for multiple carriers, such as the motion picture and television industry, may employ third-party administrators to coordinate ELD information and technology. The commenter believed that this approach may support the unique characteristics of production drivers better than a carrier-by-carrier approach. MPAA suggested an amendment to proposed § 395.20(c). The National Private Truck Council appreciated that the Agency clarified that carriers may use ELDs ‘‘to improve productivity or for other appropriate business practices,’’ and that the rulemaking will not ‘‘ban or impose significant new restrictions on those functionalities.’’ 3. FMCSA Response FMCSA intentionally created technical specifications that allow an ELD of limited complexity, at lower cost, and without monthly charges. Today’s rule does not require real-time data transferor wireless submission of data. Based on the comments to the SNPRM, FMCSA changed some parts of the proposal to address data transfer and other issues, in order to increase the flexibility of the ELD and address multiple motor carrier business models and price points without compromising safety or data integrity. Based on comments that reducing submission timeframes from the currently required 13 days to 8 days will interfere with current business practices, today’s rule requires submission of both RODS and supporting documents to the motor carrier within 13 days. A motor carrier that wants a shorter time frame than 13 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 days for the submission of RODS or supporting documents already has the ability to make this request of its drivers, and today’s rule does not change that. Motor carriers can require different policies so long as they are not less rigorous than the FMCSRs. As a point of clarification, if a driver is off-duty for multiple days, the motor carrier may annotate the driver’s ELD records to reflect that, subject to the driver’s certification. As stated before, the only prohibition is that no time that a driver spent driving can be converted into non-driving time. Another acceptable method of noting time spent off duty would be to have the driver add this time retroactively with an annotation, at the beginning of his or her first day back on duty. Drivers who have responsibilities outside of driving should note those job-related functions in their ELDs as ODND time at the start of their driving the CMV. Nothing in the today’s rule prohibits third parties from being engaged by a motor carrier to help with HOS compliance. If the third party is engaged as an agent of the motor carrier and is involved in HOS compliance through ELD use, that person will be required to have a unique login on ELD systems. The requirement for HOS compliance ultimately lies with the motor carrier, so FMCSA does not make the suggested change to the regulatory language. FMCSA has eliminated language that was proposed in § 395.20(c) to avoid confusion as evidenced by comments. FMCSA recognizes that different ELDs will employ different technologies, including back office systems. FMCSA does not intend to limit alternative technologies, provided that the ELD operates in a manner that satisfies the technical specifications in today’s rule. H. Leased and Rented Vehicles 1. Comments to the 2011 NPRM Commenters asked how rented and leased trucks would be treated (e.g., would a truck rental company be required to install EOBRs for its customers). A commenter explained that the occasional or seasonal use of rental vehicles is a key part of many businesses. 2. Comments to the 2014 SNPRM The IFDA wrote that while rental units can be equipped with ELDs, they may not be the same as the system in use in other company vehicles. The commenter noted this situation raises issues concerning training and maintaining records for drivers who are using multiple systems within the same week. IFDA urged the Agency to PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 78359 recognize that such events are a routine aspect of daily fleet operations and allow flexibility for companies and drivers in the rule. ATA said that FMCSA should consider the real-world challenges an ELD mandate would create for fleets using rented and leased vehicles. In the event of a breakdown, ATA explained that a motor carrier will call on its truck rental and leasing company to provide a replacement truck. It is not reasonable to expect the provider will have one with an ELD that matches the carrier’s HOS management system. ATA noted that the carrier will be unable to populate the device in the replacement vehicle with the driver’s RODS for the prior 7 days. Even if the driver manually populates the device, the motor carrier will not have the means to communicate and read data from it. ATA suggested that fleets using short-term replacement vehicles should be permitted to use paper RODS for more than 8 days. Similarly, the NMFTA commented that its members are concerned about the complications and costs ELDs present when the carrier routinely requires drivers to use different pieces of equipment. LTLs often rely on the short-term use of rental equipment, and LTL carriers must constantly manage and shuffle drivers in and out of both company and temporary equipment to meet business needs. NMFTA stated different truck manufacturers install different types of data equipment, connections, and software. NMFTA noted this situation requires carriers who wish to maintain the flexibility of bringing in outside equipment on a temporary basis to invest in different types of cables and software to ensure that their office systems can integrate with it. TRALA expressed concern about proposed § 395.26(d)(2), which requires that ELDs capture personal miles operated in a CMV. TRALA asked how the recording of personal miles of a regulated motor carrier employee will be reconciled with the personal use of rental vehicles by unregulated consumer customers or motor carrier drivers who are not subject to the ELD requirements because they are under one of the shorthaul exemptions in 49 CFR 395.1(e). The commenter asserted that trip data of rental customers who are not subject to the ELD requirements, either because they are using the CMV for noncommercial purposes or are exempt short-haul operators, should not be recorded nor be available for FMCSA or State inspection. TRALA noted that transferability allows TRALA members to use ELDs on vehicles where use is required, and to E:\FR\FM\16DER2.SGM 16DER2 78360 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations avoid the cost of employing that technology where it is not. TRALA is concerned that its member companies may disclose their unregulated customers’ geographic location as a mandatory ELD data element, or violate the proprietary nature of the HOS data recorded and stored on the ELDs by and on behalf of their regulated customers, the motor carriers. With multiple users of a single vehicle, TRALA companies could be liable for unlawful disclosure or access to such data. TRALA recommended allowing portable devices that have unique logins for each driver and strict protocols for device accessibility and information capture to alleviate this concern. In light of the significant concerns raised by the TRALA, IFDA, and others, the American Truck Dealers Division of the National Automobile Dealers Association urged FMCSA to clarify in the rule that lessors and rental companies bear no responsibility for providing or installing ELDs in leased or rented CMVs operated by CDL holders employed by unrelated motor carriers. tkelley on DSK9F6TC42PROD with RULES2 3. FMCSA Response Because today’s rule provides a performance-based standard for ELDs, motor carriers will have a number of options to choose from the market place of ELD providers. This includes portable units that stay with the driver as opposed to being installed in the vehicle. Motor carriers that rely upon long-term leases of CMVs can work with the leasing companies to identify options and implement solutions to the challenge of using ELDs with leased vehicles. Therefore, the Agency has not included in today’s rule an exception for leased or rented CMVs. If a driver who is not required to use an ELD were to operate a motor vehicle that is equipped with an ELD, that driver would not have to use the ELD. This would apply to a driver operating under the short-haul exception in § 395.1(e) or to a private individual using a rented truck to move his or her own household goods. A company renting a truck to an unregulated consumer could protect that customer’s information by removing the ELD or removing any recorded information from the ELD. FMCSA does not regulate truck-rental companies. There is no requirement or prohibition for a rental agreement or short-term lease to include an ELD. A rental company might choose to include an ELD as a part of the agreement, just as they might include another piece of equipment. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 I. Business Relationships With OwnerOperators 1. Comments to the 2011 NPRM In addition to concerns related to harassment (addressed elsewhere in this preamble), commenters believed that ELDs could affect the relationship between motor carriers and the owneroperators with whom they contract. An owner-operator said that the devices allow corporations to micromanage. Another owner-operator said that the use of EOBRs could lead to drivers being paid by the hour rather than the mile. One commenter stated ‘‘absent uniform compatibility profiles and mandates, EOBRs installed on owneroperator units would only necessitate additional installation costs and the incurring of unused vendor contracts as owner-operators elect to move from one carrier to another which is their right to do so in a free market on a regular basis.’’ Another commenter wanted to know what system would be required if the driver contracted to multiple motor carriers. 2. Comments to the 2014 SNPRM United Van Lines, LLC (United) and Mayflower Transit, LLC (Mayflower), responding together, and AMSA, said a carrier’s obligations related to the use of ELDs should not be a factor in determining whether a lessor is an independent contractor or an employee for Agency determination purposes and recommended that FMCSA amend § 395.20 to reflect that. United’s/Mayflower’s disclosed household goods agents may typically contract with non-employee, owneroperators (‘‘drivers’’) who own or lease their CMVs. United/Mayflower did not believe that their companies bear any responsibility for the drivers’ compliance with HOS regulations when the drivers are not driving under their respective authorities. United/Mayflower believed the proposed rules would require them to install ELDs in drivers’ CMVs when operating under their authorities and, subsequently, to remove the ELDs. United/Mayflower believed that the proposed rules permit them to require drivers operating under their operating authorities to install ELDs owned by United/Mayflower, even if the drivers have already installed and are using their own ELDs in their CMVs. 3. FMCSA Response The Agency understands that there are many types of relationships between owner-operators and motor carriers. This rule does not change the relationship between employee and PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 employer or carrier and contractor. This rule does not change the underlying requirement to comply with HOS. The responsibility for complying with HOS, including through the use of an ELD, lies with both the driver and the motor carrier. FMCSA declines to amend the language of § 395.20, as suggested by the commenters. The independent contractor relationship is outside the scope of this rulemaking. J. Carrier Liability 1. Comments to the 2011 NPRM Several commenters to the NPRM, including J.B. Hunt, stated that EOBR use would help motor carriers lower risk and liability because they would record more information and lower the crash risk. Commenters also stated that access to a driver’s records through an EOBR would help decrease liability, as the carrier and driver could plan routes together to avoid delays. Other commenters spoke of benefits as a result of minimizing the carrier’s liability while the CMV is being used for personal purposes. 2. Comments to the 2014 SNPRM AMSA and United/Mayflower stated that ELDs will be required to automatically record a limited set of data points. However, ELDs being marketed to the trucking industry by ELD system providers are able to, and do, collect significantly more data than required under the rule. Examples of source data streams include, but are not limited to, measurements of a driver’s speeding, hard braking, and idling. These data are recorded even when the drivers are not under dispatch for a carrier. The proposed rule forbids carriers from altering or erasing the original source data. This means that even if a carrier elects not to view reports including data points that are not required by the rules, it must not seek or permit the destruction of the extraneous data collected by the devices. AMSA and United/Mayflower were concerned that the mandated retention of the additional data will lead to an unintended increase in carrier liability. These commenters anticipated that certain lawyer groups will second-guess FMCSA’s judgment and carriers’ reliance on the information requirements imposed by the proposed regulations by arguing that carriers had a ‘‘duty’’ to access and use the additional data created by ELDs. United/Mayflower proposed that FMCSA add new language that clarifies E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations On May 12, 2014, FMCSA announced the availability of a study concerning the safety benefits of ELD-like devices: ‘‘Evaluating the Potential Safety Benefits of Electronic Hours-of-Service Recorders’’ (Safety Study). It quantitatively evaluated whether trucks equipped with devices like ELDs had a lower (or higher) crash and HOS violation rate than those without such devices (May 12, 2014, 79 FR 27040). The study is available in the docket for this rulemaking.36 An ELD provider was the only commenter who agreed with the Safety Study’s finding that ELDs provide safety benefits. The remaining 21 commenters criticized the Safety Study. One commenter provided crash and fatality data for motor carriers that use ELDs, and noted that carriers with ELDs are still involved in crashes. Another commenter claimed that most traffic fatalities are not caused by large trucks, therefore, the ELD mandate is unnecessary. OOIDA provided a detailed critique of the Safety Study’s data and concluded that, ‘‘FMCSA has no credible data on the relationship between the use of ELDs and actual HOS compliance, and even less data on the relationship between HOS compliance and highway safety.’’ According to OOIDA, the 2014 Safety Study lacks reliability for numerous reasons, including because it is taken from the records of carriers with differing recording criteria. OOIDA criticized the study for failing to provide sufficiently detailed information about how the data inconsistencies were reconciled and for including crashes that OOIDA believed could not have been avoided by drivers. OOIDA wrote that the number of HOS violations included in the 2014 Safety Study is not consistent with the violation data in FMCSA’s Safety Measurement System. OOIDA claimed that the Safety Study data did not include on-board recording device violations. OOIDA also criticized the study for the small sample size, failure to include small carriers, and failure to account for how trucks are selected for inspection. OOIDA noted that although 97 percent of all carriers have fleets with 20 or fewer trucks, 9 of the 11 carriers in the Study maintained fleets with more than 1000 trucks while the remaining two carriers had fleets with between 100 and 500 trucks. OOIDA stated that the Safety Study’s failure to control for the effects of ELD use on inspection frequency biased the results. Based on its own survey and the anecdotal evidence it collected, OOIDA claimed that trucks with ELDs are less likely to be inspected for HOS violations than trucks without ELDs. In OOIDA’s survey, 39 percent of the 2,347 respondents reported seeing ‘‘a law enforcement official passing on inspecting another driver’s logs because the truck was equipped with an EOBR/ ELD. Further, numerous responders reported that in addition to just passing on inspection, officers did not know how to operate EOBRs/ELDs.’’ According to OOIDA, trucks in the 36 In the docket for this rulemaking, docket number FMCSA–2010–0167–0900, https:// www.regulations.gov/#!documentDetail;D=FMCSA2010-0167-0900. that the motor carrier would not be responsible for accessing such data. These commenters also asked that FMCSA provide guidance that removes any ambiguity concerning the application of proposed regulations prohibiting alteration or destruction of data streams and reaffirm that drivers not placed out of service are authorized for use. 3. FMCSA Response FMCSA believes that transparency and increased control over a driver’s records by the driver is beneficial to the carrier-driver relationship. FMCSA notes that commenters appear to focus on a device that goes beyond the minimum requirements of this rulemaking, but is still part of an ELDlike device, such as an FMS. Though it does not have a regulatory definition, any device that has the capabilities of an ELD, like an FMS, is bound by the same recording and editing requirements and prohibitions as an ELD in terms of required data elements. While an extended data set might be recorded by an FMS, the items in it are not part of the driver’s electronic RODS that are required to be transferred to an authorized safety official. Information like hard braking or other events would not be a part of that required data set. See also Section IX, C, Privacy; Ownership and Use of ELD Data, for information on the use of data provided by an ELD. Today’s rule does not change motor carriers’ existing obligation to ensure its drivers’ comply with HOS regulations. The Agency does not believe that this requirement is ambiguous. However, the Agency does not address data elements that are not required as part of the minimal technical standards for an ELD. Nor does the Agency have the authority to address through its regulations the use of evidence in civil litigation. K. Safety Study tkelley on DSK9F6TC42PROD with RULES2 1. Comments to the 2014 SNPRM VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 78361 study with ELDs had lower HOS violation rates because they were less likely to be selected for inspection than trucks without ELDs. OOIDA objected to the study’s conclusion that ELDs have clear safety benefits. OOIDA cited one of its own surveys that compared the safety record of carriers with speed limiters and electronic logging devices to carriers without those monitoring devices. Using FMCSA/CSA data, OOIDA concluded that carriers without electronic monitoring had a better crash ratio than monitored carriers. 2. FMCSA Response While the Agency acknowledges commenters’ concerns about the study, we did not rely on its conclusions to establish the safety benefits of ELDs relative to paper logs. The Safety Benefits Analysis in the RIA uses a different measure of HOS violation rates, a different data set and a different study design to demonstrate a reduction in HOS violations attributable to ELD use. The Safety Study did, however, provide corroborative data to support the crash reduction estimates used in this rulemaking. FMCSA notes that the crash data in the Safety Study were vetted by analysts to ensure consistency across carriers. The Safety Study received two types of crash files from participating carriers— those with only crashes and those with crashes plus claims data. To ensure the crash data was comparable across carriers, data analysts removed all claims data according to procedures described in the study. The report includes examples of claims. However, the report does not separately describe each specific claim in the original carrier data. As indicated in the report, all of the HOS violations from the participating carriers were collected from FMCSA’s Safety Measurement System Web site during a short portion of 2010 and all of 2011 and 2012. All categories of HOS violations were included in the analysis, although some HOS violations that could not be linked to a specific truck in the study were dropped from the analysis. The study clearly acknowledged that its sample was skewed toward large, forhire carriers. However, because the study was designed to compare trucks with and without ELDs owned by the same carrier, large carriers provided the best set from which to obtain this data. Any bias toward a specific carrier or type of carrier would equally affect trucks with and without ELDs. The study applied statistical techniques to identify and measure the E:\FR\FM\16DER2.SGM 16DER2 78362 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations effects of ELD use separately from the many other factors that affect crash rates. As with any study, the Safety Study could not completely eliminate all potential sources of bias. Although the study was able to control for carrier factors that might affect selection for roadside inspection, the study did not address the relationship between ELD use and the likelihood a truck would be selected for inspection. The Safety Study measured HOS violation rates as the ratio of HOS violations to millions of vehicle miles travelled. If trucks with ELDs were less likely to be inspected per mile traveled then the study would overestimate the reduction in HOS violations due to ELD use. By contrast, the safety benefits analysis in the RIA measured HOS violations per inspection and found a significant reduction in HOS violations in a before and after comparison in a group of carriers that had implemented ELDs at a certain time. OOIDA’s claim that the Safety Study data did not include on-board recording device violations is incorrect; the Safety Study did include these violations. In reviewing the data presented by OOIDA, FMCSA notes that those studies did not control for numerous other factors that affect crash or violation rates. In addition, OOIDA’s survey data showing that roadside inspections of ELD-equipped CMVs are routinely waived is subject to its own selection bias. FMCSA continues to believe that the safety benefits estimates presented with the SNPRM were appropriate and supported by the research the Agency sponsored. The Safety Study focused on estimating the effects of ELDs on outcome measures of safety, such as crash rates, rather than process measures, such as violation rates and fatigue. The study found a significant reduction in the overall crash rate and the preventable crash rate for trucks with ELDs compared to trucks without ELDs. Due to limited data, the study could not evaluate the effect of ELDs on DOT-reportable and fatigue-related crashes. tkelley on DSK9F6TC42PROD with RULES2 L. Harassment Survey 1. Comments to the Survey FMCSA conducted a survey to examine the issue of driver harassment and to determine the extent to which ELDs are used to either harass drivers or monitor driver productivity. The research explored the relevant issues from the perspective of both drivers and carriers. On November 13, 2014, FMCSA published a notice of availability for the survey in the Federal VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Register (79 FR 67541). In that notice, FMCSA re-opened the public docket for this rulemaking for the limited purpose of soliciting comment on this survey. The report titled, ‘‘Attitudes of Truck Drivers and Carriers on the Use of Electronic Logging Devices and Driver Harassment’’ (the Harassment Survey),37 summarized the survey findings. The survey explored driver’s attitudes about harassment and whether harassment is more prevalent for drivers using ELDs. The survey had seven major findings in the following areas: 1. Interactions which drivers consider harassment. 2. Frequency of experiencing interactions considered harassment. 3. Whether harassing experiences are associated with ELDs. 4. Whether drivers who use ELDs have different experiences than those who use paper. 5. Nature of attitudes toward ELDs. 6. Whether the perspectives of carriers are substantially different from drivers. 7. Reactions to FMCSA definitions of harassment and coercion. Of the 13 comments that FMCSA received in response to the notice of availability, 9 commenters did not address the report; rather, they expressed their opposition to the ELD mandate, the HOS rules, or both. Advocates and ATA agreed that the data indicates that drivers’ experience of harassment is unlikely to be affected by ELD use. ATA also stated that the survey’s findings that instances of harassment are uncommon are consistent with ATA members’ experiences. However, ATA expressed concern that in the report FMCSA represented some scenarios as harassment, such as waiting time delays and driver compensation issues, that are, in fact, not related to harassment. ATA further noted that FMCSA’s definition of harassment does not refer to waiting time or how drivers are paid, nor has Congress suggested that harassment should include delays caused by customers. The Snack Food Association addressed concerns about the driver harassment and coercion rulemakings. The commenter stated the results of FMCSA’s survey report suggest ‘‘that coercion or harassment of drivers is not a significant issue impacting motor carrier safety,’’ thereby undermining the need for regulation. Should the Agency 37 The Harassment Survey is available in the docket for this rulemaking; it is docket number FMCSA–2010–0167–2256. It is also available on line at: https://ntl.bts.gov/lib/54000/54100/54178/ RRR-14-009-Attitudes_of_Truck_Drivers_and_ Carriers_on_the_Use_of_ELDs_and_HarassmentV11-FINAL.pdf. PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 establish a connection between driver harassment or coercion and motor carrier safety in the future, the Snack Food Association recommended that FMCSA use enforcement tools under existing regulations to address the issue. In its comments on the Harassment Survey, OOIDA raised several issues concerning the ELD rulemaking, including FMCSA’s responsibility to ensure ELD’s are not used to harass drivers and the demonstrated use of ELDs by motor carriers to harass drivers. OOIDA cited language in the ‘‘Notice’’ section, on page 2 of the report, that indicates the report does ‘‘not necessarily reflect the official policy of the USDOT,’’ nor does it ‘‘constitute a standard, specification or regulation,’’ as suggesting that the Agency has distanced itself from the results of the study and ‘‘disavows responsibility for the accuracy of the data in the report.’’ The commenter pointed out that the report did not provide information on the background or qualifications of the contractor or the authors of the report, information about the Agency’s direction to the contractor regarding the research, and the raw data from the survey. OOIDA also noted the report is not peer reviewed and FMCSA has not made any official statement recognizing or adopting any findings of the study. OOIDA contended the survey framework and terminology differ from the statutory requirements for ELDs set forth in 49 U.S.C. 31137(a) (2012). For example, OOIDA stated FMCSA’s duty to ensure ELDs are not used to harass drivers does not require the finding of any particular level of harassment, or a comparison of the level of driver harassment by motor carriers using ELDs versus instances of harassment when paper log books are used. However, the commenter stated the survey compares reports of harassment between AOBRD users and paper log users. Although language related to the use of ELDs to monitor productivity is not included in the current version of the law, OOIDA wrote ‘‘the survey report spends excessive time on productivity issues.’’ The commenter also took issue with the definitions of ‘‘harassment’’ and ‘‘coercion’’ used in the survey, stating that the statute does not require that harassment result in any driver violation. Similarly, OOIDA noted the survey definition of coercion requires the offending conduct be based on the denial of business or work, but the statute does not include such a requirement. OOIDA asserted the survey methodology likely resulted in under reporting instances of driver harassment. One source of under E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations reporting is the result of the survey being based on self-reporting rather than direct observation. OOIDA noted motor carriers are not likely to admit to unlawful driver harassment, and drivers are unlikely to admit that they were a victim of harassment, particularly when it might implicate them in a violation. OOIDA also contended large motor carriers are strong supporters of ELDs and, therefore, more likely to report positive results with respect to ELD use. OOIDA argued that large motor carriers were the subject of the survey. According to OOIDA, although motor carriers with 10 or fewer trucks make up 92 percent of registered motor carriers, they made up only 2 percent of the survey. OOIDA expressed concern about the quality of the survey data, stating that the survey only partially focused on driver harassment. The commenter explained that of the total of 14 questions asked of respondents, 7 questions have no connection to ELDs or harassment, 3 other questions relate to harassment, but have no relationship to ELDs, and only 4 questions relate to motor carrier use of ELDs to harass drivers. However, OOIDA stated, the four relevant questions were asked in generic terms that suggested unlawful behavior, but they were not presented in the context of a real-world example that might be meaningful to drivers. OOIDA said comparing the data associated with responses to generically worded questions to data associated with responses to questions that used more specific language supports its concern. Although the report characterized the instances of driver harassment as few on a percentage basis, OOIDA believed the evidence shows significant use of ELDs to harass drivers in terms of raw numbers. Applying the report’s percentages to the 2.3 million drivers who would be covered by the proposed ELD rulemaking, OOIDA’s analysis showed, at least once a month, motor carriers changing the duty status of more than 98,000 drivers, contacting more than 206,000 drivers and asking why their truck was not moving, and asking 276,000 drivers to operate when fatigued. OOIDA asserted this data illustrates that motor carriers would use ELDs as a tool to ask drivers to operate longer hours than the driver’s professional judgment will support. Furthermore, OOIDA believed the study documents the serious problem of harassment requiring a serious regulatory response. OOIDA contended FMCSA’s proposed rules do not take into account the record it has made on the current use of ELDs to harass drivers. It stated it expects VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 FMCSA to review its pending proposed ELD rules to address the record it has now made with this study. OOIDA stated that the record for the proposed rulemaking is deficient because it lacks information and analysis on the survey, and because the public has not had an opportunity to react to, and comment on, the survey. As described in the SNPRM, OOIDA noted that FMCSA initiated a survey of drivers and motor carriers regarding the use of e-logging devices to harass drivers, but a report on the results of that survey is not due until 2 months after the close of the comment period for the SNPRM. OOIDA asserted that it was this type of defect in a rulemaking process that caused the U.S. Court of Appeals for the DC Circuit to overturn the HOS rules in July 2007. OOIDA stated that to remedy this problem and comply with the Administrative Procedure Act, FMCSA must be prepared to publish the data collected by the survey and its analysis of that data, and welcome another round of comments so that interested parties may properly address the driver harassment issue. 3. FMCSA Response In accordance with the Paperwork Reduction Act of 1995, FMCSA announced its plan to submit an ICR to OMB and asked for comments in Federal Register notices on December 13, 2012 (77 FR 74267) and May 28, 2013 (78 FR 32001). Both of these notices provided the name and complete contact information for the contractors who conducted the survey. That information is also in the study report itself, and available at: https:// ntl.bts.gov/lib/54000/54100/54178/RRR14-009-Attitudes_of_Truck_Drivers_ and_Carriers_on_the_Use_of_ELDs_ and_Harassment-V11-FINAL.pdf . The study objectives are set out in the report. In addition the December 13, 2012, and May 28, 2013, notices spelled out the objectives clearly and provided opportunity for comment. Two peer reviews were conducted—the first on the study design and methodology and the second on the actual findings and presentation. Further, the study methodology was reviewed through the OMB Paperwork Reduction Act and ICR processes. OOIDA contended that the survey framework and terminology and the definitions of ‘‘harassment’’ and ‘‘coercion’’ used in the survey differ from the statutory requirements. The harassment element of the survey was premised on the opinion of the United States Court of Appeals for the Seventh Circuit, addressing this matter. Owner- PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 78363 Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580, 588–89 (7th Cir. 2011). The Agency’s obligation to consider coercion in certain rulemakings was subsequently enacted as part of MAP– 21. 49 U.S.C. 31136(a)(5). Neither term is defined by statute. Although OOIDA objected to survey time spent on productivity issues, those issue were included because the circuit court explicitly addressed productivity. FMCSA responded to OOIDA’s concerns about the definitions of harassment and coercion in the May 28, 2013, notice addressing the Agency’s ICR under the Paperwork Reduction Act (78 FR 32001).38 Further, Congress eliminated the statutory reference to productivity in enacting MAP–21 and the Agency does not regulate productivity in this rule (other than to clarify that productivity measures undertaken by carriers cannot be used to harass drivers). FMCSA acknowledges OOIDA’s concern that neither drivers nor motor carriers may disclose harassment when it might implicate them in a violation. However, every reasonable step was taken in the survey to ensure the anonymity of drivers. They were assured that no one would be told of their participation or their answers. The sheet they signed acknowledging questionnaire topics was kept separate from the surveys. Participation was not mandatory, which was explained to the drivers and written on the sheet. Carrier personnel were included in the survey because they interact with drivers and because their perspective on harassment is relevant to FMCSA. OOIDA criticized the survey questions because, in their view, only four questions relate directly to the use of an ELD by a motor carrier to harass a driver. The questions were formulated to include a list of interactions which includes items seen as both positive and negative, which helped to ensure that the list was not biased. Second, the opinions of what is beneficial can vary. The wording of questions was pre-tested in a series of in-depth interviews with a random set of drivers. Comprehension of the items was confirmed, and drivers were also asked whether there was anything else they considered harassment that was not on the list of what had been asked. The report characterized instances of driver harassment as ‘‘few’’ when considered on a percentage basis. Based on an estimate of 2.3 million drivers, OOIDA applied the percentages in the report to the affected population of 38 OOIDA’s comment on the December 13, 2012, notice is available in docket FMCSA–2012–0309. E:\FR\FM\16DER2.SGM 16DER2 78364 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations drivers and concluded that many drivers are affected by harassment. This extrapolation may or may not be accurate, since confidence intervals were not provided for the incidence of harassment. OOIDA recommended that FMCSA identify current Federal and State enforcement practices and rules that protect drivers from harassment and coercion. At least nine questions in the survey addressed this very issue, including question 32, which specifically asked drivers to rate the effectiveness of Federal regulations. FMCSA conducted the Harassment Survey to better understand drivers’ and carriers’ perceptions of harassment. FMCSA posted the report on the survey in the rulemaking’s public docket and opened the rulemaking for public comment on the report (November 13, 2014, 79 FR 67541). The Agency considered the results of the survey, as well as comments on the report, as part of the rulemaking process. The Agency relied on both the survey results and the responsive comments to inform this rule. M. Legal Issues—Constitutional Rights: Fourth and Fifth Amendments 1. Fourth Amendment tkelley on DSK9F6TC42PROD with RULES2 Comments to the 2011 NPRM Numerous commenters to the NPRM claimed that the proposed rule violates the Fourth Amendment of the United States Constitution in that the required use of an electronic recorder results in an unreasonable search and seizure and an invasion of a driver’s right of privacy. Comments to the 2014 SNPRM Similar Fourth Amendment arguments were submitted in response to the SNPRM. A majority of these commenters stated that the ELD mandate would be an invasion of privacy rights. Comments included statements such as one noting that requiring an ELD results in a sustained illegal search without a warrant and a search of property (including data and personal information) without permission or reasonable cause. One commenter noted that, when an agent of a government can stop your vehicle and download your whereabouts over the last several weeks, you have lost your privacy. Two commenters pointed out that the Supreme Court recently ruled that authorities must have a warrant to obtain cellular phone data. Those commenters noted that mandatory tracking and monitoring of CMV drivers with ELDs is the same thing and should require a warrant. Several commenters pointed out that the ELD mandate is VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 particularly invasive because most drivers spend a significant amount of time in their trucks and view them more as homes. Commenters pointed out that 24-hour audio and visual monitoring would be particularly offensive to husband and wife teams who live in their trucks. Another commenter stated that there needs to be a way for enforcement personnel to view logs from outside of trucks, because he would not give enforcement personnel permission to enter his truck without a search warrant. Another commenter pointed out that the government does not drug test every citizen to ensure compliance with drug laws, or put GPS trackers on all vehicles on the highway, or put ignition interlocks on all vehicles to deter driving while intoxicated, or read every piece of mail or listen to every phone call, because it would be unconstitutional to do so; likewise, required use of an ELD is unconstitutional. Commenters stated that the government should not mandate ELDs on CMVs unless it is willing to mandate such devices for every form of transportation. OOIDA provided the most extensive analysis addressing why, in its view, the required use of ELDs runs afoul of the Fourth Amendment. OOIDA noted that the Fourth Amendment applies to both criminal and civil cases and proscribes unreasonable searches and seizures. OOIDA pointed to Federal case law to support the conclusion that prolonged and systematic tracking of drivers using ELDs constitutes a search under the Fourth Amendment. OOIDA first pointed to a Supreme Court case, United States v. Knotts, 460 U.S. 276 (1983), in which the Court held that the short term use of a simple beeper device to track the movement by truck of a 5-gallon drum of chloroform used in drug manufacturing was not a search. OOIDA noted that the Knotts case presents a very narrow ruling under facts that are easily distinguished from the proposed use of ELDs. OOIDA also cited to subsequent case law where Federal courts declined to apply the Knotts ruling beyond the narrow confines of the facts presented in that case. OOIDA next stated that the use of ELDs to monitor driver behavior is not covered by the ‘‘pervasively regulated business’’ exception to the warrant requirement articulated by the Supreme Court in New York v. Burger, 482 U.S. 691, 702–703 (1987). OOIDA explained that the Supreme Court concluded in Burger that where (1) the business in question is closely regulated, and (2) the warrantless inspections are necessary to further the regulatory scheme, then (3) PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 compliance with the Fourth Amendment turns on whether the inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant. OOIDA stated that the proposed use of ELDs does not involve the inspection of ‘‘commercial premises,’’ but, rather, involves the systematic tracking of the movement of individual drivers over extended periods of time by the use of sophisticated electronic devices in order to enforce compliance with HOS regulations. OOIDA pointed out that neither Burger nor any of the cases implementing the pervasively regulated industry exception stand for the proposition that individuals working in a pervasively regulated industry may be personally subjected to continuous surveillance by sophisticated monitoring devices over long periods of time without a warrant. OOIDA also argued that the proposed use of ELDs does not fall within the pervasively regulated industry exception because it does not satisfy the second prong of the Burger test—i.e., that the search be necessary to accomplish regulatory goals. In support of its argument, OOIDA noted that, according to FMCSA, government interests at issue in this rulemaking are to improve compliance with various HOS rules; to make the operation of CMVs safer; and to improve drivers’ opportunities for rest. OOIDA asserted that the record presented does not support the conclusion that FMCSA’s regulatory goals are furthered by the ELD mandate, arguing that drivers must manually enter changes in duty status into an ELD, which makes the device no better than paper logs. OOIDA also stated that FMCSA is completely unable to support its safety claims with current, reliable data. FMCSA Response FMCSA disagrees that the required use of ELDs violates the Fourth Amendment. For more than 75 years, CMV drivers engaged in interstate commerce have been required to keep paper logbooks as part of their compliance with HOS rules. Under current regulations, the log must show, among other information, the driver’s duty status (on duty, on-duty driving, sleeper berth, off duty) and the general location of any change in duty status. Although an ELD will record driving time information automatically (including date, time and location for any transition into or out of driving time) and collect location information at intermediate intervals, only the methodology changes; the fundamental E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations data and the purpose of data collection remains unchanged. To be sure, an ELD collects additional data elements (such as engine on, engine hours), but the minimal expansion is aimed at ensuring the authenticity of the driver’s data. While technology such as GPS can generate a ‘‘precise comprehensive record of a person’s public movements’’ that reflects a wealth of personal information (United States v. Jones, __ U.S. __, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring)), the rule does not provide for presentation of this level of precision to authorized safety officials. Rather, the Agency has deliberately limited the location information shared with authorized safety officials to avoid specific proximities, and is recorded at varying prescribed intervals rather than real time reporting—measures taken to address drivers’ privacy concerns. While ELDs would generally replace paper logs, a change required by statute, the basic premise, that is, prescribing a method of policing a driver’s compliance with HOS regulations, remains unchanged. An ELD records data only during operation of a CMV and drivers have no reasonable expectation of privacy in the data captured during that period. The Fourth Amendment provides, in part, that, ‘‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’’ A Fourth Amendment search occurs when the government invades a person’s privacy interests that society recognizes as reasonable or seeks to obtains information by physically intruding on a constitutionally protected area. United States v. Jones, __U.S. __, 132 S. Ct. 945 (2012). Commenters argued that required use of an ELD results in an unconstitutional search. (No commenter argued the use of ELDs involved a seizure.) However, commenters arguing that a Fourth Amendment violation results from the required use of ELDs rely largely on case law addressing law enforcement’s use of technology for surveillance purposes, thus without the subject’s knowledge, or searches of property conducted incident to arrests. FMCSA believes these cases are inapposite. Given that ELDs are employed by motor carriers pursuant to a Federal regulatory requirement and drivers are aware of their use, there is no trespass or infringement of a reasonable expectation of privacy. Thus, there is no search for purposes of the Fourth Amendment. Cf. El-Nahal v. Yassky, 993 F.Supp.2d 460 (S.D.N.Y. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 2014) (required use of technology, including GPS, under municipal regulatory scheme governing taxicabs did not result in a search under Fourth Amendment). Commenters also referenced a recent Supreme Court decision holding that authorities required a warrant to view data captured on a cell phone that they compared to an ELD. The case referenced, Riley v. California, __U.S. __, 134 S. Ct. 2473 (2014), involved searches of cell phone data incident to arrests; thus, it is clearly distinguishable from the required use of ELDs. Even if we assumed that requiring the collection of data through an ELD and sharing that information with authorized safety officials qualified as a search, the commenters fail to recognize that not every search is unreasonable for purposes of the Fourth Amendment. Notwithstanding comments to the contrary, it is well established that interstate commercial trucking is a pervasively regulated industry. See United States v. Castelo, 415 F.3d 407, 410 (5th Cir. 2005), and United States v. Maldonado, 356 F.3d 130, 135 (1st Cir. 2004) (applying New York v. Burger, 482 U.S. 691 (1987)), concluding that interstate commercial trucking is a pervasively regulated industry, capable of supporting recourse to an administrative search exception. The nature of its regulation justifies treating motor carriers and CMV drivers differently from the population at large. Although some commenters draw an analogy between a driver’s truck and the driver’s home, the Supreme Court has long recognized that an individual’s expectation to privacy in a private vehicle is less than that in a home (Preston v. United States, 376 U.S. 364, 366–367 (1964)). The privacy interests of CMV drivers are clearly diminished given the nature of the commercial trucking industry (Int’l Bhd. of Teamsters v. Dep’t of Transp., 932 F.2d 1292, 1300 (9th Cir. 1991) (upholding DOT drug testing regulations)). OOIDA notes that case law addressing the pervasively regulated industry does not support the proposition that individuals working in the industry may be subject to continuous surveillance over long periods of time absent a warrant. However, that argument ignores that ELD-related monitoring is limited, tied to a driver’s compliance with HOS rules while operating a CMV. Although the methodology is new, the required monitoring of hours has been in place over 75 years.39 39 OOIDA also argued that the ELD requirement does not satisfy an exception to the warrant requirement applicable to situations involving PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 78365 As to the concern about authorized safety officials entering the CMV, the technical specifications in today’s rule require that an ELD without a printer be designed so that its display may be reasonably viewed by an authorized safety official outside of the vehicle. Some commenters’ Fourth Amendment concerns reflected a misunderstanding of the rule. For example, at no point did the Agency propose constant audio and visual monitoring of drivers. In sum, the Agency believes that commenters’ Fourth Amendment objections are not supported by the relevant case law as applied to today’s rule. 2. Fifth Amendment Comments to the 2011 NPRM Several commenters said that requiring the use of EOBRs violates drivers’ rights under the Fifth Amendment of the United States Constitution. Comments to the 2014 SNPRM In responding to the SNPRM, OOIDA elaborated on its Fifth Amendment concerns, claiming that the required use of ELDs violates drivers’ right of due process through an imposition of ‘‘an unconstitutional deprivation of a driver’s freedom of movement.’’ It described the SNPRM as ‘‘provid[ing] for electronic monitoring combined with, effectively, a curfew.’’ According to OOIDA, electronic monitoring is imposed without any determination of an individual driver’s risk to public safety. OOIDA notes that the ‘‘right of procedural due process requires an individual hearing for each person to determine whether electronic monitoring plus a curfew (restricting the accuser’s [sic] right to freedom of movement) was reasonable and necessary to meet the government’s interest.’’ In support of its position, OOIDA relies on a series of Federal district court cases finding that automatic electronic monitoring and curfews imposed as a condition of bail, required under the Adam Walsh Child Protection and Safety Act of 2006 40 for certain violations involving minors, are unconstitutional. special needs beyond the needs of ordinary law enforcement. Given the Agency’s position that required use of an ELD is not a ‘‘search’’ for purposes of the Fourth Amendment but, even if it were considered a search, it is justified under the exception for administrative searches in a pervasively regulated industry, we do not address this argument. 40 Public Law 109–248, Title II, sec. 216, 120 Stat. 587, 617 (July 27, 2006). E:\FR\FM\16DER2.SGM 16DER2 78366 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations FMCSA Response OOIDA and other commenters stated that the ELD mandate is akin to a criminal penalty that unlawfully restricts a driver’s freedom of movement. OOIDA’s reliance on cases under the Adam Walsh Child Protection and Safety Act is misplaced. That Act requires continuous electronic monitoring by the government of individuals who have been charged, but not convicted, of certain crimes involving minors. The statute’s very purpose is to track and restrict the individual’s movement without any procedural review of the risk posed by the individual charged. In contrast, today’s rule requiring ELDs, applicable to certain individuals electing to operate CMVs as part of a pervasively regulated industry, does not require constant monitoring of individual drivers. It simply replaces a long-standing existing process under which drivers have been required to manually track their time to demonstrate compliance with HOS rules with an electronic recording system. There is no automatic electronic monitoring once a driver steps out of the CMV. Although other comments did not fully explain how the Fifth Amendment would be violated, it appears that their concerns related to access to the HOS records and the right against selfincrimination. The commenters, however, ignored established law that provides an exception to the Fifth Amendment privilege against selfincrimination for records that are required to be kept by law such as the HOS rules. Driver HOS records, whether in the form of a paper log book or data captured by an ELD, fall under this exception. By engaging in a regulated industry, a driver waives any privilege related to the production of required records (Thomas v. Tyler, 841 F. Supp. 1119 (D. Kan. 1993)). In sum, commenters’ Fifth Amendment arguments lack merit. tkelley on DSK9F6TC42PROD with RULES2 N. Short Movements or Movements Under a Certain Speed and Personal Use of a CMV 1. Comments to the 2011 NPRM The NPRM relied upon the technical specifications from the April 2010 rule. Those specifications did not address the issue of short movements or movements under a certain speed and for personal use. 2. Comments to the 2014 SNPRM In the SNPRM, FMCSA sought comments on how short movement, such as movements within a terminal, similar slow movements, and yard VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 movements by other drivers, should be logged. FMCSA proposed that the ELD would provide the capability for a driver to indicate the beginning and end of two specific categories: Personal use of a CMV and yard moves, where the CMV may be in motion but a driver is not necessarily in a ‘‘driving’’ duty status. If a motor carrier allowed drivers to use a CMV for personal conveyance or yard moves, the SNPRM proposed that a driver’s indication of the start and end of such occurrences would record a dataset; but the ELD would not indicate these as separate duty statuses. If a driver used a CMV for personal conveyance, the ELD would not record that time as on-duty driving. FMCSA did not define a specific threshold of distance or time traveled for a driver to be able to use the personal conveyance or the yard movement provisions. Instead, authorized motor carrier safety personnel and authorized safety officials would use the ELD data to further explore and determine whether the driver appropriately used the indicated special category. ATA stated that FMCSA’s modified proposal represents a reasonable middle ground. Carriers will have a record of all vehicle movements but will be able to distinguish those that should be legitimately recorded as driving time from those should not. Further, it will help law enforcement identify true driving time violations, while at the same time providing visibility to yard and personal conveyance movements in the event they are unreasonable or excessive. Defining Yard Moves and Personal Conveyance Schneider recommended ‘‘yard moves’’ be defined, as did inthinc. Schneider noted this term, which is used in § 395.28 under ‘‘special driving categories—other driving statuses,’’ requires a clear definition. Without a definition, Schneider asserted, there will be inconsistency in the use of this status that will create issues during roadside enforcement. Schneider suggested defining ‘‘yard move’’ to mean ‘‘an on-duty not driving activity where all driving is done within an area that does not allow for any public access.’’ CVSA recommended that FMCSA define the term ‘‘personal conveyance’’ in 49 CFR 395.2 as ‘‘an unladen commercial motor vehicle (CMV) . . . used by a driver, while in an ‘‘off-duty’’ status and when the utilization of a motor carrier’s CMV is necessary for personal transportation, and for a short distance.’’ CVSA would consider ‘‘short PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 distance’’ travel to and from the nearest lodging or restaurant facilities in the immediate vicinity. ‘‘Personal conveyance’’ would also include use of a motor carrier’s CMV to travel from a driver’s home to his/her terminal (normal work reporting location), or from a driver’s terminal (normal work reporting location) to his/her home. In any case, this distance could not exceed the lesser of 25 miles or 30 minutes. Schneider supported this definition. Comments on the Practical Application of the Rule Through testing with hundreds of drivers, Schneider found that having driving status trigger only off of a speed threshold without an additional mileage threshold is detrimental to the ELD. It recommended that FMCSA change the appendix to subpart B of part 395, section 4.3.1.2, paragraph (1) to read ‘‘[o]nce the vehicle speed exceeds the set speed threshold OR the vehicle travels more than 1.5 miles, it is considered in motion.’’ The commenter believed this avoids the potential for a tractor to move 20 miles at 2 miles per hour without showing any driving time. Also, in section 4.3.1.2, paragraph (2), Schneider suggested the vehicle should be considered stopped when the speed reaches 0 miles per hour AND the unit stays at 0 miles per hour for 5 minutes, rather than the proposed ‘‘3 consecutive seconds.’’ Commenter wrote that to leave the threshold at 3 seconds as the rule proposes will result in invalid duty status changes. AGC urged the Agency to include a provision allowing short vehicle movements within a closed facility (e.g., less than 2 miles in the aggregate) to be recorded as ODND time. Saucon Technologies recommended allowing the driver to indicate yard movement by selecting an appropriate comment on the device. Once yard movement is selected, the driver would be allowed to move the CMV within the confines of the yard, (minimum amount of distance should be clearly defined), before the status would automatically change to On-Duty Driving. While the driver is to indicate manually the beginning and ending of yard moves, XRS stated that there is no guidance on how the ELD should indicate a yard move is beyond appropriate limits, such as a warning if the ELD indicates Yard Move and the CMV exceeds the normal safe yard speed or distance. Geo-fencing of yards would be costly and time consuming and not an effective practice. XRS asked FMCSA to clarify the process of reviewing unassigned driver moves of the CMV with an ELD device E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations installed. XRS believed the language in proposed § 395.32(c) seems to contradict the driver identification process as later described in § 395.32(c)(1)(ii). Commenter believed that the SNPRM made the carrier responsible for the final determination of ownership of unidentified driving. XRS suggested an edit process that would give the driver the opportunity to reject the unidentified hours in the edit review. XRS asked for direction concerning which ELD records under the unidentified driver profile need to be presented to the driver. Coach USA stated that support personnel, rather than drivers, often make yard moves, for example, when they wash buses. The result is many short movements within the facility by personnel who are not drivers and never operate a bus outside of the facility. Under FMCA’s proposed ELD specifications, Coach USA wrote that it appears that all of these yard moves by support personnel would be recorded as ‘‘unidentified driving,’’ and the carrier would be responsible for annotating each of these records to explain why they are not assigned to a driver. This would create a substantial administrative burden for large carriers. Coach USA suggested that FMCSA allow ELDs to be designed to recognize, using GPS, when they are being operated within the carrier’s facility and could be set to automatically record any unassigned operation within the facility of a duration of less than 15 minutes as ‘‘yard moves by support personnel.’’ Such a system would effectively annotate all of the unassigned yard moves automatically. If a driver were to engage in yard moves, Coach USA wrote that driver could still log in and set the ELD to record the yard moves under his or her account. The Alliance for Driver Safety and Security stated that there is no guidance for the common situations whereby the truck leaves the property briefly, increases speed for a mile and returns to the yard. Eclipse Software Systems asked FMCSA to allow automated yard moves. The point at which a vehicle comes to rest for more than 5 minutes becomes its anchor point. As long as the vehicle does not move, say, outside a half-mile radius of that anchor point, these moves could be logged automatically as yard moves. This prevents any significant vehicle use, while reducing the likely number of unauthenticated driving events. Eclipse also stated that sometimes drivers need to move their trucks short distances at a truck stop. It would be fair if they could log this as a yard-move, rather than having to switch to personal use, or trigger VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 unauthenticated driving time. Truck stops are not technically ‘‘yards’’ so a clarification may be warranted in the rulemaking. TRALA stated that, at the very least, there is some confusion as to whether all miles, including personal and yard miles, must be recorded. Zonar stated that an ELD must provide the means for a driver to indicate the beginning and end of a period when the driver uses the CMV for personal use or yard moves. Zonar asked how the driver will end the yard move if the CMV is moved in the yard and then continues out of the yard to a road move. While the SNPRM does not subscribe to a specific threshold of miles or time, the TCA stated that it is important that personal conveyance be distinguished from true driving time. TCA wrote that FMCSA should more clearly define the principals and parameters of personal conveyance so that it can avoid any misinterpretation. ATA supported FMCSA’s proposed treatment and recording of personal conveyance and movements within closed facilities (i.e., yards). NAFA Fleet Management Association concurred that authorized use of a CMV for personal conveyance would not be recorded as driving, but rather off-duty time. Eclipse Software Systems agreed that the driver needs to indicate when he or she begins personal use. However, just as the proposed rules allow the driver to be placed in ODND after 5 minutes with no vehicle movement, Eclipse would like to enable the same automatic functionality for the end of Personal Use time. A number of individual commenters asked FMCSA to clarify when it is appropriate to use a CMV for personal conveyance. One asked that the guidance be rewritten. Another commenter suggested that personal conveyance could be used to disguise moves in the local delivery area of a terminal. Several individual commenters asked that allowances be made for maintenance driving, for example, when a CMV was being tested. 3. FMCSA Response FMCSA acknowledges and agrees with the commenters who stated that ELDs, by virtue of recording all movements, will create a visible consistent record of all actions taken in the CMV. The Agency is aware that there are concerns about personal conveyance and yard moves, as some commenters would like clear-cut limits on the mileage or time thresholds for CMV usage acceptable under personal conveyance and yard moves. However, the Agency does not think it is appropriate to include these definitions PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 78367 in the ELD rulemaking, as both clearly fall under the HOS rules and are applicable to a wide variety of CMV operations, not just those using ELDs. Thus, the Agency declines to address these matters at this time. Additionally, the Agency does not create any new provisions for either status, instead requiring only that they each be recorded. By making specific requirements on how these statuses must be recorded, but not specifying limits in mileage or time, FMCSA has purposely left these guidelines as open as they are today, to suit the diversity of operations across the country. FMCSA wishes to clarify that all miles driven, regardless of the status the driver has selected, are recorded. However, when a personal conveyance status is selected, the CMV’s location is recorded with a lower level of precision, i.e., an approximate 10-mile radius. FMCSA believes that the recording of these miles is essential to HOS compliance, but balances this requirement with protections on the privacy of location data when drivers are not on-duty. If a driver selects the yard moves status and then begins regular driving, the driver simply switches statuses. If there is no break, and the driver forgets to add the new status, the driver can annotate his or her record to explain this, and can switch the time between the two statuses, as both are driving statuses. At the end of a personal conveyance status, FMCSA does not require that the ELD automatically switch to an off-duty status. Again, the driver can annotate his or her record to explain if the driver forgets to record an off-duty status at the end of the driving time. FMCSA understands the potential for abuse of the personal conveyance status, and has purposely required that all movements of the CMV be recorded (with a less precise location requirement). The rules do not allow driving statuses, including off-duty driving, to be edited to say they are nondriving time. These protections will directly address the falsification of HOS records, making it significantly harder. FMCSA believes that recording all the time that a CMV is in motion will limit significantly the amount of falsified time. Commenters asked about mechanics or maintenance personnel operating CMVs, or driving done by employees who are not listed CMV drivers. Today’s rule allows any employee of the motor carrier that operates the vehicle to have a unique login. If a CMV is operated by someone without a CDL within a yard, the mileage could be attributed to the E:\FR\FM\16DER2.SGM 16DER2 78368 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations individual. Generally, the short-haul exception for RODS would mean these individuals would not be expected to use an ELD and there is nothing in this rulemaking that would preclude the ELD system from having entry categories to capture occasional movements of an ELD-equipped vehicle by individuals who are not required to prepare RODS. FMCSA agrees that the carrier should have the opportunity to review unassigned driver miles, as they are ultimately responsible for the records. There is no prohibition on the motor carrier reviewing these records. FMCSA does not believe that this will be a significant administrative burden, especially if all employees who have the potential to operate CMVs on company property or beyond are given unique identifiers. Today’s rule does not allow ‘‘anchoring’’ or any location-based operational exemption. Drivers have the option to select a yard moves status in this case, and their operational history would need to be consistent with that status, which may look different depending on different types of operations. O. Statutory Definition of ELD 1. Comments to the 2014 SNPRM tkelley on DSK9F6TC42PROD with RULES2 Subsequent to the NPRM, Congress enacted MAP–21, requiring regulations mandating the use of ELDs by drivers of CMVs required to keep RODS. The statute defines an electronic logging device as a ‘‘device that . . . is capable of recording a driver’s [HOS] and duty status accurately and automatically . . . and . . . meets the requirements established by the Secretary through regulation.’’ 49 U.S.C. 31137(f)(1). Focusing on the statutory definition of an ELD, OOIDA commented that FMCSA failed to comply with the statutory directive enacted as part of MAP–21 in that an ELD is not ‘‘capable of recording a driver’s hours of service and duty status accurately and automatically.’’ 49 U.S.C. 31137(f)(1)(A). OOIDA viewed the Agency’s action as ‘‘arbitrary, capricious and reason enough for any court to overturn the . . . rule.’’ Furthermore, OOIDA emphasized that the majority of HOS violations result from the miscoding of non-driving duty status. 2. FMCSA Response The Agency acknowledges that technical specifications in this rule do not include ELDs that automatically record a driver’s duty status, other than on-duty driving time. Although technology currently exists that could VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 track a driver’s every movement, including whether a driver is sleeping, this type of technology is not regularly employed in electronic recorders used to record drivers’ HOS. FMCSA does not believe that Congress, in directing the Agency to require use of ELDs, envisioned this level of monitoring and the inherent privacy invasion that would occur. Indeed, given the privacy concerns raised by OOIDA and other commenters, we find it difficult to reconcile OOIDA’s argument that the ELD functionality required in today’s rule is not sufficiently broad because it does not record all of a driver’s duty statuses. In order to support its claim that FMCSA willfully ignores the definition of an ELD set forth in MAP–21, OOIDA reads the statutory definition in isolation. However, a fundamental rule of statutory construction requires that a statutory provision be read in the context of the statutory scheme and that no subsection be read in isolation. 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 46.5 (7th ed. 2007). As part of the MAP–21 enactment addressing ELDs, Congress addressed the role of supporting documents, requiring the Agency to ‘‘consider how [the] regulations may . . . reduce or eliminate . . . supporting document[s] associated with paper-based [RODS] if . . . data contained in an [ELD] supplants such documentation . . . and . . . using such data without paperbased records does not diminish the Secretary’s ability to audit and review compliance with [HOS] regulations[.]’’ 49 U.S.C. 31137(d)(1). Supporting documents serve a critical role in monitoring a driver’s ODND time. Had Congress envisioned that the ELD could automatically track every duty status, it would have simply eliminated the need for supporting documents. FMCSA finds further support for its position in the applicable legislative history. In developing the ELD provisions incorporated into MAP–21, including the statutory definition, the Senate Committee on Commerce, Science, and Transportation considered EOBRs then in use and referenced the Agency’s February 1, 2010, NPRM, as to the type of electronic recorders it envisioned. S. Rep. No. 112–238 at 4 (2012). In prescribing the ELD mandate, Congress was clearly aware that neither existing technology nor the Agency’s 2010 NPRM contemplated devices that would ‘‘automatically’’ monitor a driver’s non-driving hours. In response to OOIDA’s comment that HOS violations result primarily from the miscoding of non-driving duty time, PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 FMCSA notes that the data captured by ELDs, such as time, location, and mileage, combined with required supporting documents, will result in a more accurate record of a driver’s duty status than paper RODS currently provide. P. Roadside Enforcement 1. Comments to the SNPRM The SNPRM specified how the ELD would transmit data to authorized safety officials at roadside. The proposed primary method of data transmission was Wireless Web Services or Bluetooth 2.1 or Email (SMTP) or compliant printout. The proposed backup methods were USB 2.0, Scannable QR codes, or TransferJet. An ELD must be able to present a graph grid of driver’s daily duty status changes either on a display unit or on a printout. Commenters believed that authorized safety officials at road side do not have the training or equipment to inspect vehicles with ELDs. FedEx stated that there is concern in the industry about uneven acceptance and use of the data transfer mechanisms by law enforcement. Particularly, there is concern that some law enforcement officers will feel more comfortable reviewing paper records and will thus demand paper from drivers. If the driver’s ELD cannot print, then the officer may write a violation for failure to produce the required HOS documents. To prevent this type of uneven enforcement, FedEx suggested that FMCSA make clear in § 395.24 that a driver can provide his or her records to law enforcement by printouts or by data transfer. The UMA stated that it is essential that enforcement personnel are able to evaluate the accuracy of compliance in the field. UMA has heard that a number of field interventions do not include reviewing electronic logs. UMA suggested that expedited uniform standards and training are critical to achieving the desired benefits of compliance. OOIDA conducted a survey regarding the frequency with which State roadside inspections passed trucks monitored with EOBRs/ELDs through the inspection process without checking the trucker’s logs. OOIDA received over 2,687 responses. Of those, 69 percent (2,069) reported that many trucks carry a sticker stating that it has an EOBR/ ELD installed on the truck. The survey found that many responders reported that a law enforcement official declined to inspect the driver’s logs because the official saw that the truck had a sticker. Many responders also stated that they E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations saw a law enforcement official passing on inspecting another driver’s logs because the truck was equipped with an EOBR/ELD. Further, numerous responders reported that officers did not know how to operate the EOBRs/ELDs. Responders to the survey reported the practice of passing on inspection of such trucks was evident throughout the country, with no particular area singled out. A driver said he had heard similar reports. He asked if poorly maintained vehicles are also being overlooked. 2. FMCSA Response FMCSA recognizes the potential challenges during the transition from the current use of AOBRDs and paper logs to ELDs. Starting on the mandatory compliance date of this rule, FMCSA expects standardized data—shared with authorized safety officials by both electronic and non-electronic methods—to make enforcement more efficient by increasing the ease of reading and interpreting data presented by ELDs. Today’s rule makes clear that either the standard display or printout will be available to ensure that CMVs with ELDs can be inspected absent an electronic data transfer. To support a smooth transition period for the upcoming technological changes, FMCSA has initiated early planning to implement today’s rule that will facilitate comprehensive, consistent enforcement. Today’s rule standardizes the data transfer and display options on ELDs. This standardization facilitates the ability of roadside officers to use the ELD technology. While there will still be some unique functionality between systems and vendors, the underlying information and data will be communicated to roadside officers in a consistent manner across all ELDs, which will enhance roadside officers’ ability to enforce HOS rules during roadside inspections. Authorized safety officials also will receive standardized training, which will be scenario-driven and activitybased and focused on reading and interpreting standardized data. The Agency believes that training focused on efficiently reading ELD data in a standardized format will improve the ability of authorized safety officials to conduct inspections and investigations. tkelley on DSK9F6TC42PROD with RULES2 Q. Out of Scope Comments 1. 2011 NPRM and 2014 SNPRM Commenters to both the 2011 NPRM and the SNPRM brought up a number of issues that are outside the scope of this rulemaking. Issues are out of scope if they cannot be addressed or changed in VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 this rulemaking, though they may be related in some way to ELDs. For example, a number of comments are now out of scope because they dealt with the technical specifications of the (now vacated) April 2010 rule. Commenters asked FMCSA to address a number of issues, such as changes to or elimination of HOS rules—a matter outside the scope of this rulemaking. Commenters had suggestions about how drivers should be paid, including payment by the hour and overtime after 40 hours. Commenters asked that shippers and receivers be held accountable for HOS-related violations, detention times, or loading issues. A commenter asked FMCSA to raise the minimum insurance liability limits that truck drivers are required to carry, and to implement requirements for improved underride guards. A commenter asked FMCSA to impose speed limiters; another opposed them. A commenter also asked FMCSA to concentrate on maintenance issues. Commenters recommended that FMCSA focus on all motorists, not just on commercial vehicles. A motor carrier wrote that whenever there is a crash involving a commercial vehicle, it goes on the history of that driver and company even if they were not at fault. The commenter asked why we are not getting this needed change accomplished first and then looking at the fatality numbers. Commenters wrote that this rulemaking fails to address the parking shortage, and the problems drivers face when they cannot find a safe place to park at the end of their shift, when they are delayed, or when they run out of hours and are forced off property by a customer. Numerous commenters emphasized that adequate training is essential for drivers, or criticized existing training. Some commenters suggested that FMCSA go after inadequate driving schools or chameleon carriers. A commenter suggested that drivers have a panic button in the sleeper berth area to allow them to call law enforcement for help. 2. FMCSA Response FMCSA is aware of the ongoing concerns, as reflected in these comments, concerning drivers’ HOS, including parking issues, detention time, and hourly versus mileage payments. However, many of the issues raised are either outside the Agency’s authority or outside the scope of today’s rule. XIII. Section-By-Section Analysis This rulemaking establishes technical specifications for ELDs and sets forth PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 78369 requirements pertaining to the use of ELDs, the maintenance of supporting documents and the potential for ELDrelated harassment of drivers. Any substantive changes from the SNPRM are noted. The SNPRM tied compliance to the effective date of the final rule. However, in order to reflect the requirements of MAP–21, this rule ties compliance to the publication date. A. Part 385—Safety Fitness Procedures In Section VII of appendix B of part 385, the list of acute and critical regulations is modified to reflect changes in part 395 (HOS). The Agency removes the reference to a violation of § 390.36(b)(1) that appeared in the SNPRM to make this rule consistent with the treatment of violations under the recent coercion rulemaking (80 FR 74695, November 30, 2015). This deletion does not affect the treatment under appendix B of part 385 of any underlying violation in a carrier’s safety fitness determination. B. Part 386—Rules of Practice for Motor Carrier, Intermodal Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials Proceedings 1. Section 386.1 (Scope of the Rules in This Part) FMCSA modifies this section to reflect the handling of substantial violations and harassment violations by the appropriate Division Administrator, rather than the Division Administrator for the State where the incident occurs as was proposed. Paragraph (c) of this section was changed from the language of the SNPRM to make today’s rule consistent with the recently published coercion rule (80 FR 74695, November 30, 2015), including the revision to and changes in codification in § 386.12. Section 386.12 (Complaints) All of § 386.12, including the heading, is changed and recodified to reflect the recently published coercion rulemaking (80 FR 74695, November 30, 2015). What was proposed in § 386.12 is now included in paragraph (a) of that section, ‘‘complaint of substantial violation.’’ FMCSA changes this paragraph to provide that substantial violation complaints must be filed through the National Consumer Complaint Database and will be referred to the Division Administrator who the Agency believes will be best able to handle the complaint. (Because any person may file a complaint alleging a substantial violation, references to a driver’s State of employment found in § 386.12(b) and (c) are not included in this paragraph.) The time for filing a E:\FR\FM\16DER2.SGM 16DER2 78370 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations complaint is extended from 60 to 90 days and the procedures are modified to closely track the procedures governing complaints under the coercion rule (80 FR 74695, November 30, 2015). In a new paragraph (b), ‘‘complaint of harassment,’’ FMCSA adds the material that was proposed in § 386.12a. Harassment complaints are to be filed through the National Consumer Complaint Database or with the Division Administrator for the State where the driver is employed. Paragraph (b) identifies the information that a driver needs to include in a written complaint alleging harassment by a motor carrier, as well as procedures that the appropriate Division Administrator follows in handling complaints. The language in this paragraph was changed from the SNPRM to reflect the language in paragraph (c) of this section, adopted as part of the coercion rulemaking (80 FR 74695, November 30, 2015). Paragraph (c), complaint of coercion, of this section was originally published on November 30, 2015 as part of the coercion rulemaking (80 FR 74695). Only changes are stylistic. 3. Section 386.12a Proposed § 386.12a is not included in today’s rule. Instead, the procedures proposed in § 386.12a are moved to § 386.12(b). tkelley on DSK9F6TC42PROD with RULES2 4. Section 386.30 Today’s rule adds § 386.30—a provision that appeared as § 395.7 in the SNPRM. The only changes are stylistic. This section adds procedural provisions that apply during any proceeding involving the enforcement of 49 CFR part 395. Specifically, it provides that a motor carrier is liable for an employee acting or failing to act in a manner that violates part 395 as long as the action is within the course of the motor carrier’s operations. The burden of proof is on the motor carrier to show that the employee acted outside the scope of the motor carrier’s operation. Finally, knowledge of any document in the motor carrier’s possession, or available to the motor carrier, that could be used to ensure compliance with part 395 is imputed to the motor carrier. 5. Appendix B to Part 386 (Penalty Schedule: Violations and Monetary Penalties) FMCSA adds new paragraph (a)(7) granting the Agency discretion to consider the gravity of the driver harassment violation in the imposition of penalties up to the maximum permitted by law. The addition of this paragraph reflects the Agency’s intention to appropriately address VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 findings of driver harassment. In assessing the amount of a civil penalty, however, the Agency is required by statute to take certain factors into account. See 5 U.S.C. 521(b)(2)(D). Thus, the Agency will apply this provision through its Uniform Fine Assessment software to assure civil penalties are assessed in individual cases in a fair manner while addressing the gravity of harassment violations. C. Part 390—Federal Motor Carrier Safety Regulations; General FMCSA adds a new § 390.36 to define harassment by a motor carrier toward a driver employed by the motor carrier and to prohibit motor carriers from engaging in the harassment of drivers. This section also identifies the process under which a driver who believes he or she was subjected to harassment by a motor carrier may file a written complaint. D. Part 395—Hours of Service of Drivers Today’s rule divides part 395 into two subparts. Subpart A, General, includes §§ 395.1 through 395.19. Subpart B, ELDs, addresses the design and use of ELDs and consists of §§ 395.20 through 395.38. FMCSA provides detailed performance specifications applicable to ELDs in the appendix to subpart B. Subpart A—General 1. Section 395.1 (Scope of Rules in This Part) FMCSA amends § 395.1(e) to reflect that drivers who qualify to use the short-haul exceptions under 49 CFR 395.1(e)(1) or (2) are not required to keep supporting documents under § 395.11. 2. Section 395.2 (Definitions) In this section, FMCSA adds three new definitions. ‘‘ELD record’’ is added to mean a record of duty status, recorded on an ELD, that reflects the data elements that must be captured by an ELD under the technical specifications in the Appendix to subpart B of part 395. ‘‘Electronic Logging Device (ELD)’’ is added to mean a device or technology that automatically records driving time and facilitates the accurate recording of HOS and that meets the requirements of subpart B of part 395. FMCSA also adds a definition of ‘‘supporting document’’ similar to the definition in the HMTAA. Substantive provisions pertaining to supporting documents are in § 395.11. PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 3. Section 395.7 (Enforcement Proceedings) Section 395.7, as proposed in the SNPRM, is included in today’s rule as § 386.30. The only changes are stylistic. 4. Section 395.8 (Driver’s Record of Duty Status) This section addresses general requirements for HOS RODS. Subject to limited exceptions, it requires motor carriers to install and use ELDs that comply with the technical specifications no later than 2 years following the date of publication of today’s rule. Subject to limited exceptions, under paragraph (a)(1), motor carriers must require drivers that keep RODS to use ELDs. The rule allows a motor carrier that installs, and requires its drivers to use, AOBRDs before the compliance date of this rule to continue to use AOBRDs until December 16, 2019 thereby providing a 2-year grandfather period for devices installed prior to the compliance date. Paragraph (a)(1)(iii) reflects a change from the SNPRM. The SNPRM would have allowed the use of paper RODS only by drivers requiring RODS not more than 8 days in a 30-day period. Today’s rule allows drivers in a driveway-towaway operation—when the vehicle being driven is part of the shipment being delivered—as well as drivers of vehicles that were manufactured before model year 2000 to also use paper RODS. Paragraph (a)(1)(iv) provides that, until the compliance date of this rule, motor carriers must require their drivers to keep RODS manually or by using either an ELD or an AOBRD. Paragraph (a)(2)(ii) is also changed from the SNPRM. The SNPRM would have required drivers to use the recording method required by their motor carrier and to submit their RODS to their carrier within 8 days. Today’s rule requires drivers to submit their RODS within 13 days. Proposed paragraph (a)(3) is eliminated because operating a CMV while the ELD is malfunctioning is addressed in § 395.34(d). Paragraph (e) prohibits a motor carrier or driver from making a false report in connection with duty status and from tampering with, or allowing another person to tamper with, an AOBRD or ELD to prevent it from recording or retaining accurate data. Paragraph (i) (Filing driver’s record of duty status) is eliminated because it duplicates the requirements of § 395.8(a)(2)(ii). Paragraph (k)(1) continues to require a motor carrier to retain RODS and supporting documents for a 6-month period. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 5. Section 395.11 (New Section— Supporting Documents) The detailed requirements concerning supporting documents are set forth in § 395.11. Paragraph (a) provides that the new supporting document provisions take effect 2 years after the publication date of the rule. Until this date, the June 10, 2010 policy on the retention of supporting documents and the use of electronic mobile communication/ tracking technology remains in place (75 FR 32984). Paragraph (b) addresses the drivers’ obligation to submit supporting documents to their employers. While the SNPRM would have required the driver to submit supporting documents within 8 days, today’s rule specifies 13 days. (The term ‘‘employer’’ is defined in § 390.5.) The phrase ‘‘required to be retained under [§ 395.11]’’ is eliminated in today’s rule to avoid the erroneous implication that the driver, rather than the motor carrier, determines what records are retained. Paragraph (c) describes five categories of supporting documents generated or received in the normal course of business. These categories include: (1) Bills of lading, itineraries, schedules, or equivalent documents indicating the origin and destination of a trip; (2) dispatch records, trip records, or equivalent documents; (3) expense receipts related to ODND time; (4) electronic mobile communication records reflecting communications transmitted through an FMS (e.g., text messages, email messages, instant messages, or pre-assigned coded messages); and (5) payroll records, settlement sheets, or equivalent documents reflecting driver payments. Paragraph (c)(2) identifies the four data elements that a document must contain in order to qualify as a supporting document: Driver identification, date, vehicle location and time. The SNPRM provided that, for a driver who had fewer than 10 supporting documents containing those four data elements, documents containing the first three specified elements (i.e., all elements except time) would be considered supporting documents for purposes of paragraph (d) of this section (discussed below). In this rule, FMCSA reduces the number of supporting documents to eight. Paragraph (d) generally requires a motor carrier to retain a maximum of eight documents for an individual driver’s 24-hour duty day. While the SNPRM proposed a 10-document cap, today’s rule reduces that number to eight. Paragraph (d)(2) describes how FMCSA will treat electronic mobile VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 communication records in applying the eight-document cap. Under paragraph (d)(3), if a motor carrier has more than eight documents for a driver’s 24-hour period, the motor carrier needs to retain the documents containing the earliest and latest time indications. Under paragraph (d)(4), drivers who continue to use paper RODS must retain all toll receipts, irrespective of the eightdocument requirement. The Agency interprets the reference to ‘‘toll receipts’’ to include electronic records. Paragraph (e) requires a motor carrier to retain supporting documents in a way that allows the documents to be matched to a driver’s RODS. Paragraph (f) prohibits motor carriers and drivers from obscuring, defacing, destroying, mutilating, or altering information in a supporting document. Paragraph (g) requires that, during a roadside inspection, drivers must make available to an authorized official, any supporting document in the driver’s possession. In today’s rule, a paragraph heading is added for clarification. Paragraph (h) describes the process for submitting requests for selfcompliance systems that FMCSA may authorize on a case-by-case basis, as required by HMTAA. 6. Section 395.15 (Automatic On-Board Recording Devices) Paragraph (a) describes how FMCSA will sunset the authority to use AOBRDs 2 years after the rule’s publication date. However, those motor carriers that have installed AOBRDs prior to the sunset date are allowed to continue using AOBRDs for an additional 2 years (i.e., up to 4 years after the publication date of the final rule). Subpart B—Electronic Logging Devices (ELDS) 7. Section 395.20 (New Section—ELD Applicability and Scope) Section 395.20 paragraph (a) states that this subpart applies to ELDs used to record a driver’s HOS. Paragraph (b) describes the applicability of technical specifications required for ELDs under subpart B, effective 2 years after the rule’s publication date. In order to avoid confusion, proposed paragraph (c) was removed to eliminate language referencing support systems. 8. Section 395.22 (New Section—Motor Carrier Responsibilities—In General) Section 395.22 outlines motor carriers’ responsibilities related to the use of ELDs. Paragraph (a) requires motor carriers to use only ELDs registered and certified with FMCSA PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 78371 and listed on the Agency’s Web site: www.fmcsa.dot.gov/devices. Paragraph (b) outlines the responsibilities of a motor carrier and its support personnel authorized to access ELD records. Paragraph (c) lists the required driver identification data. Paragraph (d) details the identification data for motor carrier support personnel. Paragraph (e) states that a motor carrier must require its drivers and support personnel to use the proper login process for an ELD. Paragraph (f) requires a motor carrier to calibrate and maintain ELDs. Paragraph (g) contains the requirements for mounting portable ELDs. Paragraph (h) lists the information a motor carrier is required to provide to its drivers who are using ELDs in their CMVs. Paragraph (i) requires a motor carrier to retain a driver’s ELD records so as to protect the driver’s privacy in a manner consistent with sound business practices. This paragraph also requires that the motor carrier retain a separate back-up copy of ELD records for six months. Paragraph (j) requires a motor carrier to provide 6 months of ELD records electronically to authorized safety officials when requested during an enforcement activity or, if the motor carrier has multiple offices or terminals, within the time permitted under § 390.29. 9. Section 395.24 (New Section—Driver Responsibilities—In General) Paragraph (a) requires a driver to provide data as prompted by the ELD and as required by the motor carrier. Paragraph (b) lists the duty statuses that a driver may choose from, corresponding to the duty status categories currently listed on paper RODS. Paragraph (c) lists other data that a driver may sometimes need to enter manually into the ELD, such as annotations, file comments, verification, CMV number, trailer numbers, and shipping numbers, as applicable. Paragraph (d) requires a driver to produce and transfer the driver’s HOS data to an authorized safety official on request. 10. Section 395.26 (New Section—ELD Data Automatically Recorded) Paragraph (a) notes that the data elements listed in this section are in accordance with the requirements of the appendix to subpart B of part 395. Paragraph (b) lists the data elements recorded when an ELD logs an event. E:\FR\FM\16DER2.SGM 16DER2 78372 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Paragraph (c) describes requirements for data recording during a change of duty status event. Paragraph (d) describes what an ELD records during an intermediate recording when the CMV is in motion and there has been no change of duty status entered into the ELD and no other intermediate status recorded in an hour. Paragraph (e) describes what an ELD records when a driver selects a special driving category, i.e., personal use or yard moves. Paragraph (f) describes what an ELD records when a driver certifies a daily log. Paragraph (g) describes what an ELD records when there is a log in/log off event. Paragraph (h) describes what an ELD records when the CMV’s engine powers on or off. Paragraph (i) describes an ELD’s recording of location information during authorized personal use of a CMV. Paragraph (j) describes what an ELD records when it detects a malfunction or data diagnostic event. tkelley on DSK9F6TC42PROD with RULES2 11. Section 395.28 (New Section— Special Driving Categories; Other Driving Statuses) Paragraph (a) allows motor carriers to configure an ELD to authorize a driver to indicate that he or she is operating a CMV under one of the special driving categories identified in this paragraph. This paragraph also lists a driver’s responsibilities related to ELD use when operating under one of these special driving categories. Paragraph (b) allows a motor carrier to configure an ELD to show that a driver is exempt from ELD use. Paragraph (c) requires a driver excepted under § 390.3(f) or § 395.1 to annotate the ELD record to explain why the driver is excepted. 12. Section 395.30 (New Section—ELD Record Submissions, Edits, Annotations and Data Retention) Paragraph (a) states that both drivers and motor carriers are responsible for ensuring that drivers’ ELD records are accurate. Paragraph (b) requires a driver to review and certify that the driver’s ELD records are accurate and explains how to use the certification function of the ELD. Paragraph (c) allows a driver, within the edit limits of an ELD, to edit, add missing information, and annotate ELD recorded events. This paragraph states that a driver must use an ELD and follow the ELD’s prompts when making such changes or annotations. It also explains how mistakes involving team drivers may be corrected. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Paragraph (d) permits a motor carrier to request edits to a driver’s RODS in order to ensure accuracy. It explains the process by which a driver implements motor carrier-proposed edits, requiring that a driver must confirm or reject any edits made to his or her record by anyone other than the driver. Paragraph (e) prohibits a motor carrier from coercing a driver to falsely certify the driver’s data entries or RODS. FMCSA defined the term ‘‘coerce’’ in a separate rulemaking (80 FR 74695, November 30, 2015). Paragraph (f) prohibits a motor carrier from altering or deleting original ELD records concerning the driver’s HOS, the source data used to provide that information or related driver HOS information contained in any ELD. Language referencing support systems proposed in the SNPRM was removed to avoid confusion. 13. Section 395.32 (New Section—NonAuthenticated Driver Logs) This section describes how the ‘‘nonauthenticated’’ operation of a CMV is accounted for in the ELD record. Paragraph (a) describes how the ELD tracks non-authenticated use of a CMV as soon as the vehicle is in motion. Paragraph (b) requires a driver to review any unassigned driving time listed under the account upon login to the ELD. If the unassigned records are not attributable to the driver, the driver must indicate that fact in the ELD record. If driving time logged under this unassigned account belongs to the driver, the driver must add that driving time to his or her own record. Paragraph (c) lists the requirements for a motor carrier to explain or assign ‘‘non-authenticated driver log’’ time. The motor carrier must retain unidentified driving records for at least six months as a part of its HOS ELD records and make them available to authorized safety officials. 14. Section 395.34 (New Section—ELD Malfunction and Data Diagnostic Events) Paragraph (a) sets forth a driver’s recordkeeping requirements in the event of an ELD malfunction. It specifies that the driver would need to provide written notice to the motor carrier of an ELD malfunction within 24 hours. Paragraph (b) explains what a driver is required to do if the driver’s HOS records are inspected during a malfunction. Paragraph (c) requires a driver to follow the ELD provider’s and the motor carrier’s recommendations to resolve data inconsistencies that generate an ELD data diagnostic event. PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 Paragraph (d) requires that a motor carrier take corrective action within 8 days of discovering the malfunction of an ELD, or notification of the malfunction by the driver, whichever comes first. If a motor carrier needs additional time to repair, replace, or service one or more ELDs, paragraph (d) also provides a process for requesting an extension of time from FMCSA. 15. Section 395.36 (New Section— Driver Access to Records) Paragraph (a) makes clear that drivers must have access to their own ELD records. A motor carrier may not require that its drivers access their own ELD records by requesting them through the motor carrier if those records are otherwise available on or retrievable through the ELD operated by the driver. Paragraph (b) requires a motor carrier to provide a driver with access to the driver’s own ELD records, upon request, if they are unavailable through the ELD. 16. Section 395.38 (New Section— Incorporation by Reference) Section 395.38 describes materials that are incorporated by reference (IBR) in subpart B of part 395 and addresses where the materials are available. Whenever FMCSA, or any Federal agency, wants to refer in its rules to materials or standards published elsewhere, it needs approval from the Director of the Office of the Federal Register. FMCSA describes the process it needs to follow in this section. Industry best practices rely upon these standards. FMCSA updated the standards proposed in the SNPRM in order to make the most recent, easily available versions of the applicable standards part of the final rule. None of these is a major version change; most are revisions to the standards that should not be complicated or onerous for those ELD providers already working in this field. Additionally, these standards are technical in nature, and focus on the function of the device. The only parties who will need to purchase these standards are parties who wish to become ELD providers. The following provides a brief description of each standard. All the standards are available for low cost or free, as noted below. In order to provide better access, FMCSA includes Web addresses where the user can find more information about the standard or download it. Complete contact information is included as part of § 395.38. These standards are also available for review at FMCSA headquarters. Paragraph (b)(1), American National Standard Institute ‘s (ANSI) ‘‘4–1986 E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations (R2012) Information Systems—Coded Character Sets—7-Bit American National Standard Code for Information Interchange (7-Bit ASCII),’’ describes a character set code to convert digits to alphabet, number, and symbol characters used in computing. This code set is used to create ELD files. IBR in section 4.8.2.1, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available for $60, and information about it can be found at https://webstore.ansi.org/Record Detail.aspx?sku=INCITS+4-1986%5bR 2012%5d. Paragraph (b)(2), ANSI’s ‘‘ANSI INCITS 446–2008 (R2013), American National Standard for Information Technology—Identifying Attributes for Named Physical and Cultural Geographic Features (Except Roads and Highways) of the United States, Its Territories, Outlying Areas, and Freely Associated Areas and the Waters of the Same to the Limit of the Twelve-Mile Statutory Zone (10/28/2008),’’ covers geographic names and locations stored in the U.S. Geological Survey (USGS) Geographic Names Information System (GNIS). This information is required to populate the location database of compliant ELDs. IBR in section 4.4.2, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available for $60, and information about it can be found at https:// webstore.ansi.org/RecordDetail. aspx?sku=INCITS+446-2008%5bR 2013%5d. Paragraph (c)(1) describes ‘‘Specification of the Bluetooth System: Wireless Connections Made Easy,’’ the Bluetooth Special Interest Group’s standard for short range wireless network communication. Under today’s rule, the standard could be used for a transfer of ELD data. IBR in sections 4.9.1, 4.9.2, 4.10.1.4, 4.10.2, Appendix to subpart B of 395. As of October 20, 2015, this standard was available at no cost, and information about it can be found at https://www.bluetooth.org/ Technical/Specifications/adopted.htm. Paragraph (d)(1), Institute of Electric and Electronic Engineers’ (IEEE) ‘‘Standard for Authentication in Host Attachments of Transient Storage Devices,’’ describes a trust and authentication protocol for USB 2.0 flash drives and other storage devices that can be used for a possible transfer of ELD data according to the specifications of this rule. IBR in section 4.10.1.3, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available for $185, and information about it can be found at https://standards.ieee.org/findstds/ standard/1667-2009.html. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Paragraph (e)(1) contains the standard for ‘‘Use of the Advanced Encryption Standard (AES) Encryption Algorithm in Cryptographic Message Syntax (CMS)’’ This standard relates to wireless data transfer through email. IBR in section 4.10.1.2, Appendix to subpart B of 395. As of October 20, 2015, this standard was available at no cost, and can be found at https://tools.ietf.org/ html/rfc3565. Paragraph (e)(2) references ‘‘Use of the RSASSA–PSS Signature Algorithm in Cryptographic Message Syntax (CMS).’’ This standard relates to wireless data transfer through email. IBR in section 4.10.1.2, Appendix to subpart B of 395 of title 49 of the CFR. As of October 20, 2015, this standard was available at no cost, and can be found at https:// tools.ietf.org/html/rfc4056. Paragraph (e)(3), IETF’s ‘‘Simple Mail Transfer Protocol,’’ is an industry standard for a computer networking protocol to send and receive electronic mail (email) containing ELD data. IBR in section 4.10.1.2, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available at no cost, and can be found at https://www.rfceditor.org/rfc/rfc5321.txt. Paragraph (e)(4) contains ‘‘Secure/ Multipurpose Internet Mail Extensions (S/MIME).’’ This standard relates to wireless data transfer through email. IBR in section 4.10.1.2, Appendix to subpart B of 395. As of October 20, 2015, this standard was available at no cost, and can be found at https:// tools.ietf.org/html/rfc5751. Paragraph (e)(5), IETF’s ‘‘Internet Message Format,’’ describes an industry standard for the formatting of email, (i.e. address, header information, text, and attachments), including those emails containing ELD data. IBR in section 4.10.1.2, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available at no cost, and can be found at https://tools.ietf.org/ html/rfc5322. Paragraphs (e)(6), IETF’s RFC 7230, Hypertext Transfer Protocol—HTTP/1.1 Message Syntax and Routing, and (e)(7), IETF RFC 7231, Hypertext Transfer Protocol—HTTP/1.1 Semantics and Content, both describe a computer networking protocol that is the foundation for the World Wide Web. These standards will be used if ELD files are transferred using the Web. They are both incorporated by reference in section 4.10.1.1, Appendix to subpart B of part 395. As of October 20, 2015, standard RFC 7230 was available at no cost, and can be found at https:// tools.ietf.org/html/rfc7230. As of October 20, 2015, standard RFC 7231 was available at no cost, and can be PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 78373 found at https://tools.ietf.org/html/ rfc7231. Paragraph (e)(8) incorporates IETF’s ‘‘The Transport Layer Security (TLS) Protocol Version 1.2,’’, a security mechanism standard for information that is being transmitted over a network. This standard is best known for use with Web sites that start with ‘‘https://’’ rather than just ‘‘https://’’. This standard will be used to secure data when ELD files are transferred using the Web. IBR in section 4.10.1.1, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available at no cost and it can be found at https://tools.ietf.org/html/rfc5246. Paragraph (f)(1),’’Federal Information Processing Standards (FIPS) Publication 197, November 26, 2001, Announcing the ADVANCED ENCRYPTION STANDARD (AES),’’ describes the National Institute of Standards and Technology’s (NIST) Federal government standard for encrypting data in order to protect its confidentiality and integrity. This standard may be used to encrypt emailed data derived from the ELD. IBR in sections 4.10.1.2 and 4.10.1.3, Appendix to subpart B of 395. As of October 20, 2015, this standard is available at no cost at https:// csrc.nist.gov/publications/fips/fips197/ fips-197.pdf. Paragraph (f)(2) describes ‘‘Special Publication (SP) 800–32, February 26, 2001, Introduction to Public Key Technology and the Federal PKI Infrastructure,’’ NIST’s guidance document for securely exchanging sensitive information, including some ELD data. IBR in section 4.10.1.2, Appendix to subpart B of 395. As of October 20, 2015, this standard is available at no cost at https:// csrc.nist.gov/publications/nistpubs/80032/sp800-32.pdf. Paragraph (g)(1) contains Universal Serial Bus Implementers Forum’s (USBIF) ‘‘Universal Serial Bus Specification’’ or USB 2.0, which is an industry standard for communication between two computing devices. The USB 2.0 allows a driver to transfer the record of duty status data to a safety official using a small device commonly called a ‘‘flash drive.’’ IBR in sections 4.9.1, 4.9.2, 4.10.1.3, and 4.10.2, Appendix to subpart B of part 395. As of October 20, 2015, this standard was available at no cost and it can be found at https://www.usb.org/developers/docs/ usb20_docs/. Paragraph (h)(1) describes ‘‘Simple Object Access Protocol (SOAP) Version 1.2 Part 1: Messaging Framework (Second Edition), W3C Recommendation 27 April 2007,’’ E:\FR\FM\16DER2.SGM 16DER2 78374 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 W3C’s specification for a computer networking protocol for Web services. This protocol will be used if ELD files are transferred using the Web. IBR in section 4.10.1.1, Appendix to subpart B of 395. As of October 20, 2015, this standard was available at no cost, and can be found at https://www.w3.org/TR/ soap12-part1/. 17. Appendix A to Subpart B of Part 395 (New Section) Appendix A to subpart B of part 395 contains the technical requirements for ELDs. It consists of seven sections. Section 1 outlines the purpose and content of the rest of the appendix. Section 1 was recodified by adding letters and numbers to each paragraph for ease of reference. Section 2 lists the abbreviations used throughout this appendix. FMCSA removes the abbreviation ‘‘QR’’ for ‘‘quick response’’ because that technology is not included in today’s rule. Section 3 provides definitions for terms and notations used in this appendix. In the today’s rule, FMCSA codified section 3 throughout, adding letters and numbers to each paragraph as necessary for ease of reference. FMCSA clarifies section 3.1.4 by adding a specific reference to the display or printout required in section 4.I Section 4 lists all the functional requirements for an ELD. This section provides a detailed description of the technical specifications for an ELD, including security requirements, internal engine synchronization, ELD inputs, manual entries of data, and drivers’ use of multiple vehicles. FMCSA provides descriptions specific enough to allow the ELD provider to determine whether an ELD would meet the requirements for certification. FMCSA made numerous changes to proposed section 4, which reflect the simplified data transfer requirements in today’s rule. FMCSA recodified section 4 throughout, due to changes in the text and for ease of reference. FMCSA has eliminated language referencing support systems that was proposed in § 395.20(c) to avoid confusion. Throughout section 4, FMCSA made conforming changes. In section 4.2, FMCSA adds a specific reference to the information that the ELD must receive automatically, and clarifies that the use of non-ECM data is only acceptable when there is no other option. In section 4.5, FMCSA changed the references to section 7 to reflect the codification changes in section 7. In section 4.6.1.4, FMCSA changed the phrase ‘‘within the past 5 miles of the CMV’s movement’’ to read ‘‘within 5 VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 miles of the CMV’s movement’’ to clarify how the regulation applies FMCSA revised proposed section 4.6.3.1 to remove the last two paragraphs because they are redundant. In section 4.7.2(b), FMCSA changed the reference to ‘‘hours-of-service records’’ to ‘‘ELD records,’’ to clarify which records are meant. FMCSA revises proposed section 4.8.1 to describe the compliant report that the ELD must be able to generate either as a printout or on a display. In addition, FMCSA corrected the data elements in sections 4.8.2.1.5 and 4.8.2.1.9. Proposed section 4.9.1 is revised to remove the references to the proposed roadside data transfer capabilities and add new methods for meeting roadside electronic data reporting requirements. The new methods require transferring electronic data using either Option 1, wireless Web services and email, or Option 2, USB 2.0 and Bluetooth. In section 4.9.2(c), FMCSA replaces the term ‘‘ELD data file or files’’ with the term ‘‘ELD records.’’ In paragraph (c), FMCSA also adds Bluetooth to the transfer mechanisms already specified. Proposed section 4.10 is reorganized. FMCSA revises proposed section 4.10.1 to remove the word ‘‘Wireless’’ in the heading, and add a reference to a ‘‘data transfer mechanism’’ to reflect the new methods of transferring electronic data. Proposed section 4.10.1.2, which described wireless data transfer via Bluetooth, is moved to new section 4.10.1.4. Proposed section 4.10.1.3, which described wireless data transfer through email, is moved to 4.10.1.2. In addition, in new section 4.10.1.2(b), FMCSA adds three new encryption standards: The Secure/Multipurpose Internet Mail Extensions as described in RFC 5751, the RSA algorithm as described in RFC 4056, and RFC 3565. Proposed section 4.10.2.1, which covers USB 2.0, becomes new section 4.10.1.3, but the rest of proposed section 4.10.2 is removed as part of the reorganization. Proposed sections 4.10.2.2, which pertained to scannable QR codes, and 4.10.2.3, which described TransferJet, are both removed because those technologies are not included in today’s rule. The rest of 4.10.2, as appropriate, is moved to section 4.8.1. Proposed section 4.10.3 becomes section 4.10.2. FMCSA adds a new paragraph to section 4.10.2(d) to describe Bluetooth. Section 5 describes the ELD certification and registration process. FMCSA numbered the paragraphs in Section 5 for ease of reference and made related conforming changes. In section 5.2.2, the phrase ‘‘institute an’’ is corrected to read ‘‘identify its.’’ FMCSA adds section 5.4 to the appendix, which PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 describes the process that FMCSA uses to remove an ELD model or version from the list of ELDs on the FMCSA Web site. The administrative review process available to an ELD provider is described in section 5.4.5. The administrative review process consists of a two steps. First, an ELD provider will have an opportunity to either cure any deficiency that the Agency identified or explain to the Agency why, in the ELD provider’s view, the Agency’s determination is wrong. If the ELD provider fails to respond, fails to convince the Agency that its decision is erroneous, or fails to cure any defect to the Agency’s satisfaction, within prescribed time periods, the Agency will then remove the ELD model or version from its list of certified products. Second, in the event of removal, the ELD provider will have an additional opportunity to challenge the Agency’s decision through an administrative post-deprivation review. Section 6 lists references cited throughout this appendix. Section 6 is changed to conform with the new codification in the rest of the appendix. Section 6 matches § 395.38 exactly. It is repeated in the appendix to provide a convenient guide for these standards within the Appendix to Subpart B itself. To conform to § 395.38, FMCSA adds several new references to section 6, and updates others to the current versions. FMCSA also removes several references that are no longer relevant to the rulemaking. Section 7 provides a data elements dictionary for each data element referenced in the appendix. In today’s rule, FMCSA adds a new data element to section 7, ‘‘ELD provider,’’ to clarify what is meant by that term. Section 7 is recodified to conform with the codification used in the rest of the appendix. 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 FMCSA has determined that this rulemaking is an economically significant regulatory action under Executive Order (E.O.) 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). It also is significant under Department of Transportation regulatory policies and procedures because the economic costs and benefits of the rule exceed the $100 million annual threshold and because of the substantial congressional and public E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations interest concerning the crash risks associated with driver fatigue. FMCSA mandates the installation and use of ELDs by drivers currently required to prepare HOS RODS.41 However, the costs and benefits of such a broad mandate are not identical across both options evaluated in the RIA. The Agency has chosen to evaluate options that reflect public comments regarding past ELD and HOS rulemakings and the Agency’s safety priorities. The RIA associated with this rule examined two options: • Option 1: ELDs are mandated for all CMV operations subject to 49 CFR part 395. 78375 • Option 2 (Adopted): ELDs are mandated for all CMV operations where the driver is required to complete RODS under 49 CFR 395.8. FMCSA adopted Option 2. The costs and benefits resulting from the adoption of Option 2 are presented in the table below: TABLE 5—SUMMARY OF ANNUALIZED COSTS AND BENEFITS [7% discount rate] Annualized total value (2013 $ millions) Cost element: New ELD Costs ............................................. Device 2.0 Enforcement Equipment Costs ...................... 1.3 Enforcement Training Costs .......................... 1.6 CMV Driver Training Costs ............................ 8.0 HOS Compliance Costs ........................................ 790.4 Total Costs ............................................. $2,437.6 (2) Clerical Time ............................................ 433.9 (3) Paper Costs ............................................. Safety (Crash Reductions) .................................... 126.6 572.2 Total Benefits .......................................... 3,010 Net Benefits ............................................ For all long-haul (LH) and short-haul (SH) drivers that use RODS, to pay for new devices and FMS upgrades. Carriers that purchased AOBRDs for their CMVs and can be predicted to still have them in 2019 and would need to replace or update them with ELDs. The final rule does not require inspectors to purchase QR code scanners. Instead, inspectors would have Bluetooth capability and USB 2.0. Costs include travel to training sites, as well as training time, for all inspectors in the first year and for new inspectors each year thereafter. Costs of training new drivers in 2017, and new drivers each year thereafter. Extra drivers and CMVs needed to ensure that no driver exceeds HOS limits. 1,836 Benefit element: Paperwork Savings (Total of three parts below). (1) Driver Time ............................................... tkelley on DSK9F6TC42PROD with RULES2 Automatic On-Board Recording (AOBRD) Replacement Costs. $1,032.2 Notes 1,174 1,877.2 Reflects time saved as drivers no longer have to fill out and submit paper RODS. Reflects time saved as office staff no longer have to process paper RODS. Purchases of paper logbooks are no longer necessary. Although the predicted number of crash reductions is lower for SH than LH drivers, both should exhibit less fatigued driving if HOS compliance increases. Complete HOS compliance is not assumed. Modifications to the rule analysis resulted in moderate changes to the cost and benefit estimates for the rule from what was included in the SNPRM. For example, the purchase price of the ELD was reduced to reflect the most up-todate prices consistent with the technical requirements of the rule, the population estimates were adjusted to update the universe of drivers subject to the requirements of the rule, and equipment requirements for inspectors were adjusted to no longer include QR scanners. The population changes had the effect of increasing costs, while adjustments to the ELD purchase price and equipment needs resulted in a decrease in costs. Overall, the total costs are somewhat higher than what was projected in the SNPRM. In addition, the total benefits of the rule increased due to updated wage estimates and adjustments to the projection of the cost of a crash. This resulted in an increase in the overall net benefits for the rule from what was proposed in the SNPRM. These revisions are discussed in more detail throughout the RIA. The Regulatory Flexibility Act of 1980, Public Law 96–354, 94 Stat. 1164 (5 U.S.C. 601–612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121, 110 Stat. 857, March 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111–240, September 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term ‘‘small entities’’ comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an 41 This rule does not require short-haul drivers who would need to keep RODS for not more than 8 days in any 30-day period to use an ELD. Although FMCSA cannot quantify the costs to carriers, the Agency believes that extending the ELD mandate to these drivers would not be cost beneficial. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 B. Regulatory Flexibility Act 1. Introduction PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 78376 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. A Final Regulatory Flexibility Analysis must contain the following: • A statement of the need for, and objectives of, the rule. • A statement of the significant issues raised by the public comments in response to the Initial Regulatory Flexibility Act (IRFA), a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments. • The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments. • A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available. • A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. • A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. • For a covered agency, as defined in section 609(d)(2), a description of the steps the agency has taken to minimize any additional cost of credit for small entities. 2. Statement of the Need for and Objectives of This Rule The Agency is issuing this rule to mandate the use of ELDs by the majority of CMV operations. The objective is to reduce the number of crashes caused by driver fatigue that could have been avoided had the driver complied with the HOS rules. The Agency is required by statute (MAP–21) to adopt regulations requiring that CMVs operated in interstate commerce by drivers required to keep RODS, be equipped with ELDs. FMCSA amends part 395 of the FMCSRs to require the installation and use of ELDs for CMV operations for which RODS are required. CMV drivers are currently required to record their HOS (driving time, on- and off-duty time) in paper RODS, although some carriers have voluntarily adopted an earlier standard for HOS recording using devices known as AOBRDs. The HOS regulations are intended to ensure that driving time ‘‘do[es] not impair their ability to operate the vehicles safely’’ (49 U.S.C. 31136(a)(2)). 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)). FMCSA believes that properly designed, used, and maintained ELDs would enable motor carriers to track their drivers’ on-duty driving hours accurately, thus preventing regulatory violations or excessive driver fatigue. Improved HOS compliance would prevent commercial vehicle operators from driving for long periods without opportunities to obtain adequate rest. Sufficient rest is necessary to ensure that a driver is alert behind the wheel and able to respond appropriately to changes in the driving environment. Substantial paperwork and recordkeeping burdens are also associated with HOS rules, including time spent by drivers filling out and submitting paper RODS and time spent by motor carrier staff reviewing, filing, and retaining these RODS. ELDs would eliminate all of the driver’s clerical tasks associated with the RODS and significantly reduce the time drivers spend recording their HOS. These paperwork reductions offset most of the costs of the devices. 3. Public Comment on the IRFA, FMCSA Assessment and Response Although public comment on the SNPRM for this rule was extensive, there were no comments specific to the Initial Regulatory Flexibility Analysis. 4. FMCSA Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration on the IRFA The FMCSA did not receive comments from the Chief Counsel for Advocacy of the Small Business Administration on the IRFA included with the SNPRM for this rule. 5. Description and Numerical Estimate of Small Entities Affected by the Rulemaking The motor carriers regulated by FMCSA operate in many different industries, and no single Small Business Administration (SBA) size threshold is applicable to all motor carriers. Most for-hire property carriers operate under North American Industrial Classification System 42 (NAICS) code 484, truck transportation (see: https:// www.bls.gov/iag/tgs/iag484.htm), although some for-hire carriers categorize themselves as ‘‘express delivery services’’ (NAICS 492110) or ‘‘local delivery’’ (NAICS 492210) or operate primarily in other modes of freight transportation. As shown in Table 6 below, the SBA size standard for truck transportation and local delivery services is currently $27.5 million in revenue per year and 1,500 employees for express delivery services. For other firms in other modes that may also be registered as for-hire motor carriers, the size standard is 500 or 1,500 employees. As Table 6 also shows, for-hire passenger operations that FMCSA regulates have a size standard of $15 million in annual revenue. TABLE 6—SBA SIZE STANDARDS FOR SELECTED INDUSTRIES [2014 $] NAICS industry description Annual revenue (millions) Freight Air Transportation ......................................................................... Line-Haul Railroads ................................................................................... Freight Water Transportation .................................................................... Freight Trucking ........................................................................................ ........................ ........................ ........................ $27.5 tkelley on DSK9F6TC42PROD with RULES2 NAICS codes 481112 482111 483111 484110 and 481212 ......................... ............................................. through 483113 .................. through 484230 .................. 42 More information about NAICS is available at: https://www.census.gov/eos/www/naics/. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 Employees 1,500 1,500 500 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 78377 TABLE 6—SBA SIZE STANDARDS FOR SELECTED INDUSTRIES—Continued [2014 $] NAICS industry description Annual revenue (millions) Employees Couriers and Express Delivery ................................................................. Local Messengers and Local Delivery ...................................................... Bus Transportation .................................................................................... Supermarkets and Grocery Stores ........................................................... Department Stores (except Discount Department Stores) ....................... Discount Department Stores ..................................................................... Warehouse Clubs and Superstores .......................................................... Other General Merchandise Stores .......................................................... Office Supplies and Stationery Stores ...................................................... Building Construction ................................................................................ Water and Sewer Line and Related Structures Construction ................... Oil and Gas Pipeline and Related Structures Construction ..................... Power and Communication Line and Related Structures Construction ... Land Subdivision ....................................................................................... Highway, Street, and Bridge Construction ................................................ Other Heavy and Civil Engineering Construction ..................................... Specialty Trade Contractors ...................................................................... Crop Production ........................................................................................ Beef Cattle Ranching and Farming ........................................................... Cattle Feedlots .......................................................................................... Dairy Cattle and Milk Production .............................................................. Hog and Pig Farming ................................................................................ Chicken Egg Production ............................................................................ All Other Animal Production ...................................................................... Logging ...................................................................................................... Oil and Gas Extraction and Mining ........................................................... ........................ 27.5 15.0 32.5 32.5 29.5 29.5 32.5 32.5 36.5 36.5 36.5 36.5 27.5 36.5 36.5 15.0 0.75 0.75 7.5 0.75 0.75 15.0 0.75 ........................ ........................ 1,500 ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 500 500 NAICS codes 492110 492210 485210 445110 452111 452112 452910 452990 453210 236115 237110 237120 237130 237210 237310 237990 238110 111110 112111 112112 112120 112210 112310 112320 113310 211111 ............................................. ............................................. through 485510 .................. ............................................. ............................................. ............................................. ............................................. ............................................. ............................................. through 236220 .................. ............................................. ............................................. ............................................. ............................................. ............................................. ............................................. through 238990 .................. through 111998 .................. ............................................. ............................................. ............................................. ............................................. ............................................. through 112990 .................. ............................................. through 213111 .................. tkelley on DSK9F6TC42PROD with RULES2 This rulemaking will also affect private motor carriers. These carriers use CMVs they own or lease to ship their own goods (such as a motor carrier that is operated by a retail department store chain to distribute goods from its warehouses to its store locations) or in other regulated transportation activities related to their primary business activities (for example, dump trucks used by construction companies). The latter category also includes the provision of passenger transportation services not available to the general public. FMCSA does not have NAICS codes for motor carriers and therefore cannot determine the appropriate size standard to use for each case. As shown, the size standards vary widely, from $0.75 million for many types of farms to $36.5 million for building construction firms. For for-hire motor carriers, FMCSA examined data from the 2007 Economic Census 43 to determine the percentage of firms that have revenue at or below SBA’s thresholds. Although boundaries for the revenue categories used in the Economic Census do not exactly coincide with the SBA thresholds, FMCSA was able to make reasonable estimates using these data. According to the Economic Census, about 99 percent of trucking firms had annual revenue less than $27.5 million; the Agency concluded that the percentage would be approximately the same using the SBA threshold of $25.5 million as the boundary. For passenger carriers, the $15 million SBA threshold falls between two Economic Census revenue categories, $10 million and $25 million. The percentages of passenger carriers with revenue less than these amounts were 96.7 percent and 98.9 percent. Because the SBA threshold is closer to the lower of these two boundaries, FMCSA has assumed that the percentage of passenger carriers that are small will be closer to 96.7 percent, and is using a figure of 97 percent. For private carriers, the Agency constructed its estimates under the assumption that carriers in the 99th percentile in terms of number of CMVs of for-hire property carriers will be large. In the case of for-hire property carriers, we assumed that carriers in the 97th percentile will also be large. That is, any company of sufficient size to maintain a fleet large enough to be considered a large truck or bus company will be large within its own industry. This could overestimate the number of small, private carriers. However, the Agency is confident that no small private carrier would be excluded. The Agency found that for property carriers, the threshold was 194 CMVs, and that for passenger carriers, it was 89 CMVs. FMCSA identified 195,818 small private property carriers (99.4 percent of this group), and 6,000 small private passenger carriers (100.0 percent of this group). The table below shows the complete estimates of the number of small carriers. All told, FMCSA estimates that 99.1 percent of regulated motor carriers are small businesses according to SBA size standards. 43 U.S. Census Bureau, ‘‘2007 Economic Census.’’ https://www.census.gov/econ/census/. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 78378 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations TABLE 7—ESTIMATES OF NUMBERS OF SMALL ENTITIES For-hire general freight Carriers .................................................... Percentage of Small Carriers .................. Number of Small Carriers ........................ 176,000 98.9% 174,064 tkelley on DSK9F6TC42PROD with RULES2 6. Description of Reporting, Recordkeeping and Other Compliance Requirements of the Rule FMCSA believes that implementation of the rule will not require additional reporting, recordkeeping, or other paperwork-related compliance requirements beyond what are already required in the existing regulations. In fact, the rule is estimated to result in paperwork savings, particularly from the elimination of paper RODS. Furthermore, the carriers will experience compensatory time-saving or administrative efficiencies as a result of using ELD records in place of paper RODS. The level of savings will vary with the size of the carrier implementing the systems (larger carriers generally experience greater savings). Under current regulations, most CMV drivers are required to fill out RODS for every 24-hour period. The remaining population of CMV drivers is required to fill out time cards at their workplace (reporting location). Motor carriers must retain the RODS (or timecards, if used) for 6 months. FMCSA estimates annual recordkeeping cost savings from this rule of about $805 per driver. This comprises $558 for a reduction in time drivers spend completing paper RODS and $65 submitting those RODS to their employers; $144 for motor carrier clerical staff to handle and file the RODS; and $38 for elimination of expenditures on blank paper RODS for drivers. One of the options discussed in the rule (Option 1) would extend the ELD mandate to carrier operations that are exempt from the RODS requirements. Paperwork savings would not accrue to drivers engaged in these operations. Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulations. This rule makes regulatory changes to several parts of the FMCSRs, but only those applicable to part 395, ‘‘Hours of For-hire specialized freight For-hire passenger 152,000 98.9% 150,328 8,000 97.0% 7,760 Service of Drivers,’’ will alter or impose ICR. The ICR of this rule will affect OMB Control Number 2126–0001, which is currently approved through May 31, 2018, at 127,600,000 burden hours. 7. Steps To Minimize Adverse Economic Impacts on Small Entities Of the population of motor carriers that FMCSA regulates, 99 percent are considered small entities under SBA’s definition. Because small businesses constitute a large part of the demographic the Agency regulates, providing exemptions to small business to permit noncompliance with safety regulations is not feasible and not consistent with good public policy. The safe operation of CMVs on the Nation’s highways depends on compliance with all of FMCSA’s safety regulations. Accordingly, the Agency will not allow any motor carriers to be exempt from coverage of the rule based solely on a status as a small entity. Furthermore, exempting small businesses from coverage would be inconsistent with the explicit statutory mandate contained in MAP–21. The Agency recognizes that small businesses may need additional information and guidance in order to comply with the regulation. To improve their understanding of the rule, FMCSA intends to conduct outreach aimed specifically at small businesses, including webinars and other presentations upon request as needed and at no charge to the participants. These sessions will be held after the rule has published and before the rule’s compliance date. To the extent practicable, these presentations will be interactive. They will describe in plain language the compliance and reporting requirements so they are can be readily understood by the small entities that will be affected. ELDs can lead to significant paperwork savings that can offset the costs of the devices. The Agency, however, recognizes that these devices entail an up-front investment that can be burdensome for small carriers. At Private property 197,000 99.4% 195,818 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 6,000 100.0% 6,000 Total 539,000 99.1% 533,970 least one provider, however, provides free hardware and recoups the cost of the device over time in the form of higher monthly operating fees. The Agency is also aware of lease-to-own programs that allow carriers to spread the purchase costs over several years. Nevertheless, the typical carrier will likely be required to spend about $584 per CMV to purchase and install ELDs. In addition to purchase costs, carriers will also likely spend about $20 per month per CMV for monthly service fees. 8. Description of Steps Taken by a Covered Agency To Minimize Costs of Credit for Small Entities FMCSA is not a covered agency as defined in section 609(d)(2) of the Regulatory Flexibility Act, and has taken no steps to minimize the additional cost of credit for small entities. C. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 requires Agencies to evaluate whether an Agency action would result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $155 million or more (which is $100 million in 1995, adjusted for inflation) in any 1 year, and, if so, to take steps to minimize these unfunded mandates. As Table 8 shows, this rulemaking would result in private sector expenditures in excess of the $155 million threshold for each of the options. Gross costs, however, are expected to be more than offset in savings from paperwork burden reductions. The Agency is required by statute to adopt regulations requiring that CMVs, operated in interstate commerce by drivers required to keep RODS, be equipped with ELDs (49 U.S.C. 31137). To the extent this rule implements the direction of Congress in mandating the use of ELDs, a written statement under the Unfunded Mandates Reform Act is not required.44 However, the Agency 44 Unfunded Mandates Reform Act of 1995. Title II, Section 201. https://www.gpo.gov/fdsys/pkg/ PLAW-104publ4/pdf/PLAW-104publ4.pdf. VerDate Sep<11>2014 Private passenger E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations provides its projection of the annualized costs to the private sector in Table 8 below. Additionally the Agency’s adopted option provides the lowest cost 78379 and highest net benefits of the options considered. TABLE 8—ANNUALIZED NET EXPENDITURES BY PRIVATE SECTOR [2013 $ millions] Cost or Savings Category Option 1 Option 2 New ELD Costs ....................................................................................................................................................... AOBRD Replacement Costs ................................................................................................................................... HOS Compliance Costs ........................................................................................................................................... Driver Training Costs ............................................................................................................................................... $1,336 2 929 10 $1,032 2 790 8 Total Costs ....................................................................................................................................................... 2,278 1,833 Total Savings (Paperwork) ............................................................................................................................... 2,438 2,438 Net Expenditure by Private Sector ................................................................................................................... ¥160 ¥605 D. Executive Order 12988 (Civil Justice Reform) consultation on Federal programs and activities do not apply to this action. This rulemaking meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. I. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) FMCSA analyzed this rulemaking in accordance with the principles and criteria in E.O. 13175, Consultation and Coordination with Indian Tribal Governments. This rulemaking is required by law and does not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on tribal governments. Thus, the funding and consultation requirements of E.O. 13175 do not apply and no tribal summary impact statement is required. E. Executive Order 13045 (Protection of Children) FMCSA analyzed this action under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. FMCSA determined that this rulemaking would not pose an environmental risk to health or safety that might affect children disproportionately. F. Executive Order 12630 (Taking of Private Property) This rulemaking would not effect a taking of private property or otherwise have takings implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. tkelley on DSK9F6TC42PROD with RULES2 G. Executive Order 13132 (Federalism) A rulemaking has implications for Federalism under E.O. 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on State or local governments. FMCSA analyzed this action in accordance with E.O. 13132. The rule would not have a substantial direct effect on States or local governments, nor would it limit the policymaking discretion of States. Nothing in this rulemaking would preempt any State law or regulation. H. Executive Order 12372 (Intergovernmental Review) The regulations implementing E.O. 12372 regarding intergovernmental VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 J. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires Federal agencies to obtain OMB approval of each information collection (IC) they conduct, sponsor, or require through agency regulations. Informationcollection requests (ICRs) submitted to OMB by agencies must estimate the burden hours imposed by their information-collection (IC) requirements. Part 395 of the Federal Motor Carrier Safety Regulations, ‘‘Hours of Service of Drivers,’’ requires drivers and motor carriers to collect, transmit and maintain information about driver daily activities. The part 395 ICR is assigned OMB Control Number 2126–0001. On May 21, 2015, OMB approved the Agency’s estimate of 127.6 million burden hours as the annual IC burden of part 395 as it existed at that time, prior to this final rule. This rulemaking substantially amends the IC requirements of part 395. For the SNPRM of this rulemaking (79 FR 17656, March 28, 2014), the Agency excluded the IC burden of drivers operating purely in intrastate commerce, PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 but following discussions with OMB, decided the burden of these drivers should be included in future part 395 estimates. The intrastate burden was included in the estimate approved by OMB on May 21, 2015, and is included in the Agency’s burden estimate for this final rule. FMCSA estimates that 3.37 million interstate and intrastate CMV drivers are subject to the IC requirements of part 395 as of 2013. OMB regulations require that Agencies estimate IC burdens over a period of 3 years. This rule has a compliance date 2 years from the date of its publication. Thus, during the first 2 years of this PRA estimate, drivers and motor carriers will not be required to employ ELDs. The Agency has incorporated estimates of the number of drivers who will be voluntarily employing electronic HOS recording devices during each of the first 2 years. For year three, the Agency’s estimate is based upon all drivers using electronic logging devices. FMCSA estimates that the part 395 amendments of this final rule will reduce the IC burden an average of 21,373,653 hours annually for the 3-year period. K. National Environmental Policy Act and Clean Air Act FMCSA analyzed this rulemaking for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and determined under DOT Environmental Procedures Order 5610.1, issued March 1, 2004 (69 FR 9680), that this action would have a minor impact on the environment. The Environmental Assessment is available for inspection or copying at the Regulations.gov Web site listed under Section II.A of this preamble. There were two notable changes to data input values used in section 3.2.1 of the Environmental Assessment for today’s rule as compared to the equivalent values used in the Environmental E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78380 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Assessment for the SNPRM. First, in the calculation of emissions from additional idling, the number of affected long-haul tractors with sleeper berths was increased from 665,000, which was based on year 2002 data, to a revised estimate of 976,889 to reflect growth in the number of truck tractors from 2002 to 2012 as reported by the Federal Highway Administration. For additional details, see section 3.2.1 of the Environmental Assessment. Second, in the calculation of the reduction of emissions from crash prevention, the emission rates per crash for the six Environmental Protection Agency criteria pollutants and for carbon dioxide were updated from values that were previously based on FMCSA research from 2004 regarding the environmental impacts of truck crashes, to revised emission rate values that are based on more recent FMCSA research from 2013 regarding the environmental impacts of truck crashes. For additional details, see section 3.2.1 of the Environmental Assessment. FMCSA also analyzed this action under section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7506(c)), and the U.S. Environmental Protection Agency’s implementing regulations, 40 CFR part 93. Pursuant to 40 CFR 93.153, a conformity determination is required ‘‘for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any of the rates in paragraphs (b)(1) or (2) of this section.’’ FMCSA recognizes that the action taken in this rulemaking could slightly affect emissions of criteria pollutants from CMVs. FMCSA discusses the air emissions analysis in section 3.2.1 of the Environmental Assessment for this rule. As discussed in section 3.1.2 of the Environmental Assessment, the CAA requires additional analysis to determine if this action impacts air quality. In determining whether this action conforms to CAA requirements in areas designated as nonattainment under section 107 of the CAA and maintenance areas established under section 175A of the CAA, FMCSA is required (among other criteria) to determine if the total direct and indirect emissions are at or above de minimis levels. In the case of the alternatives in this rulemaking, as discussed in section 3.2.1 of the Environmental Assessment (except for the No-Action Alternative), FMCSA considers the change in emissions to be an indirect result of the rulemaking action. FMCSA is requiring VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 drivers and motor carriers to use ELDs that would lead to greater compliance with the HOS regulations, which does not directly result in additional emissions releases. Although emissions from idling are foreseeable and an indirect result of the rulemaking, in order for the idling emissions to qualify as ‘indirect emissions’ pursuant to 40 CFR 93.152, they must meet all four criteria in the definition: (1) The emissions are caused or initiated by the Federal action and originate in the same nonattainment or maintenance area but occur at a different time or place as the action; (2) they are reasonably foreseeable; (3) FMCSA can practically control them; and (4) FMCSA has continuing program responsibility for them. FMCSA does not believe the increase of emissions of some criteria pollutants or their precursors from the proposed rulemaking meet two of the criteria: That FMCSA can practically control the emissions, and that FMCSA has continuing program responsibility. FMCSA’s statutory authority limits its ability to require drivers to choose alternatives to idling while taking a rest period. If FMCSA had authority to control CMV emissions, the Agency could prohibit idling or require drivers to choose an alternative such as electrified truck stops or use of auxiliary power units, both of which reduce idling emissions. Moreover, based on FMCSA’s analysis, it is reasonably foreseeable that this rulemaking would not significantly increase total CMV mileage, nor would it change the routing of CMVs, how CMVs operate, or the CMV fleet mix of motor carriers. Therefore, because the idling emissions do not meet the definition of direct or indirect emissions in 40 CFR 93.152, FMCSA has determined it is not required to perform a CAA general conformity analysis, pursuant to 40 CFR 93.153.45 L. Executive Order 12898 (Environmental Justice) FMCSA evaluated the environmental effects of this rulemaking in accordance with E.O. 12898 and determined that there are neither environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were ‘‘disproportionate’’’ and ‘‘high and adverse impact’’ on minority or low-income populations. None of the alternatives analyzed in the 45 Additionally, the EPA General Conformity regulations provide an exemption for rulemaking activities. See 40 CFR 93.153(c)(2)(iii). PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 Agency’s deliberations would result in high and adverse environmental justice impacts. M. Executive Order 13211 (Energy Effects) FMCSA analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FMCSA determined that it is not a ‘‘significant energy action’’ under that E.O. because, although this rulemaking is economically significant, it is not likely to have an adverse effect on the supply, distribution, or use of energy. N. National Technology Transfer and Advancement Act The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) requires agencies to ‘‘use technical standards that are developed or adopted by voluntary consensus standards bodies’’ to carry out policy objectives determined by the agencies, unless the standards are ‘‘inconsistent with applicable law or otherwise impractical.’’ This requirement pertains to ‘‘performance-based or designspecific technical specifications and related management systems practices.’’ MAP–21 also requires that the Agency adopt a ‘‘standard security level for an electronic logging device and related components to be tamper resistant by using a methodology endorsed by a nationally recognized standards organization’’ (49 U.S.C. 31137(b)(2)(C)). FMCSA is not aware of any technical standards addressing ELDs. However, in today’s rule, the Agency employs several publicly-available consensus standards consistent with these statutory mandates, including standards adopted by the World Wide Web Consortium to facilitate secure Web based communications, American National Standards Institute (ANSI) codes for identification of geographic locations and for standard information display, Institute of Electrical and Electronic Engineers (IEEE) Standards Association standards addressing secure transfer of data with a portable storage device, Bluetooth Special Interest Group (SIG) standards addressing short-range wireless information transfer, and the USB Specification (Revision 2.0). In addition, although not developed by a private sector consensus standard body, FMCSA also employs the National Institute of Standards and Technology (NIST) standards concerning data encryption. A complete list of standards that FMCSA proposes for adoption is found in 49 CFR 395.38. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations O. E-Government Act of 2002 2. Amend Appendix B to part 385, section VII, by removing the entries for §§ 395.8(a), 395.8(e), and 395.8(i), and the two entries for § 395.8(k)(1); and adding entries for § 395.8(a)(1), § 395.8(a)(2)(ii), § 395.8(e)(1), § 395.8(e)(2), § 395.8(k)(1), § 395.11(b), § 395.11(c), § 395.11(e), § 395.11(f), and § 395.30(f) in numerical order to read as follows: ■ The E-Government Act of 2002, Public Law 107–347, section 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. FMCSA completed an assessment in connection with today’s rule addressing the handling of PII. The assessment is a documented assurance that privacy issues have been identified and adequately addressed, ensures compliance with laws and regulations related to privacy, and demonstrates the DOT’s commitment to protect the privacy of any personal information we collect, store, retrieve, use, and share. Additionally, the publication of the assessment demonstrates DOT’s commitment to provide appropriate transparency in the ELD rulemaking process. A copy of the privacy impact assessment is available in the docket for this rulemaking. List of Subjects 49 CFR Part 385 Administrative practice and procedure, Highway safety, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements 49 CFR Part 386 Administrative practice and procedure, Brokers, Freight forwarders, Hazardous materials transportation, Highway safety, Motor carriers, Motor vehicle safety, Penalties 49 CFR Part 390 Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements Appendix B to Part 385—Explanation of Safety Rating Process * * Highway safety, Incorporation by reference, Motor carriers, Reporting and recordkeeping requirements In consideration of the foregoing, FMCSA amends 49 CFR chapter III, parts 385, 386, 390, and 395 as follows: * * * * * * * § 395.8(a)(1) Failing to require a driver to prepare a record of duty status using appropriate method (critical). § 395.8(a)(2)(ii) Failure to require a driver to submit record of duty status in a timely manner (critical). § 395.8(e)(1) Making, or permitting a driver to make, a false report regarding duty status (critical). § 395.8(e)(2) Disabling, deactivating, disengaging, jamming, or otherwise blocking or degrading a signal transmission or reception; tampering with an automatic onboard recording device or ELD; or permitting or requiring another person to engage in such activity (acute). § 395.8(k)(1) Failing to preserve a driver’s record of duty status or supporting documents for 6 months (critical). § 395.11(b) Failing to require a driver to submit supporting documents in a timely manner (critical). § 395.11(c) Failing to retain types of supporting documents as required by § 395.11(c) (critical). § 395.11(e) Failing to retain supporting documents in a manner that permits the effective matching of the documents to the driver’s record of duty status (critical). § 395.11(f) Altering, defacing, destroying, mutilating, or obscuring a supporting document (critical). § 395.30(f) Failing to retain ELD information (acute). * 49 CFR Part 395 * VII. List of Acute and Critical Regulations * * * * PART 386—RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS 3. The authority citation for part 386 is revised to read as follows: ■ PART 385—SAFETY FITNESS PROCEDURES 1. The authority citation for part 385 is revised to read as follows: Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5123, 13901–13905, 31133, 31135, 31136, 31137, 31144, 31148, and 31502; Sec. 113(a), Pub. L. 103–311; Sec. 408, Pub. L. 104–88, 109 Stat. 803, 958; and 49 CFR 1.87. Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5123, 13901–13905, 31133, 31135, 31136, 31137, 31144, 31148, and 31502; Sec. 113(a), Pub. L. 103–311; Sec. 408, Pub. L. 104–88, 109 Stat. 803, 958; and 49 CFR 1.87. ■ tkelley on DSK9F6TC42PROD with RULES2 ■ VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 4. Amend § 386.1 by revising paragraph (a) and adding paragraph (c) to read as follows: PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 § 386.1 78381 Scope of rules in this part. (a) Except as provided in paragraph (c) of this section, the rules in this part govern proceedings before the Assistant Administrator, who also acts as the Chief Safety Officer of the Federal Motor Carrier Safety Administration, under applicable provisions of the Federal Motor Carrier Safety Regulations (49 CFR parts 350–399), including the commercial regulations (49 CFR parts 360–379), and the Hazardous Materials Regulations (49 CFR parts 171–180). * * * * * (c)(1) The rules in § 386.12(a) govern the filing of a complaint of a substantial violation and the handling of the complaint by the appropriate Division Administrator. (2) The rules in § 386.12(b) govern the filing by a driver and the handling by the appropriate Division Administrator of a complaint of harassment in violation of § 390.36 of this subchapter. (3) The rules in § 386.12(c) govern the filing by a driver and the handling by the appropriate Division Administrator of a complaint of coercion in violation of § 390.6 of this subchapter. ■ 5. Revise § 386.12 to read as follows: § 386.12 Complaints. (a) Complaint of substantial violation. (1) Any person alleging that a substantial violation of any regulation issued under the Motor Carrier Safety Act of 1984 is occurring or has occurred must file a written complaint with FMCSA stating the substance of the alleged substantial violation no later than 90 days after the event. The written complaint, including the information below, must be filed with the National Consumer Complaint Database at https:// nccdb.fmcsa.dot.gov or any FMCSA Division Administrator. The Agency will refer the complaint to the Division Administrator who the Agency believes is best able to handle the complaint. Information on filing a written complaint may be obtained by calling 1– 800–DOT–SAFT (1–800–368–7238). A substantial violation is one which could reasonably lead to, or has resulted in, serious personal injury or death. Each complaint must be signed by the complainant and must contain: (i) The name, address, and telephone number of the person who files it; (ii) The name and address of the alleged violator and, with respect to each alleged violator, the specific provisions of the regulations that the complainant believes were violated; and (iii) A concise but complete statement of the facts relied upon to substantiate each allegation, including the date of each alleged violation. E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78382 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations (2) Upon the filing of a complaint of a substantial violation under paragraph (a)(1) of this section, the Division Administrator shall determine whether the complaint is non-frivolous and meets the requirements of paragraph (a)(1) of this section. If the Division Administrator determines the complaint is non-frivolous and meets the requirements of paragraph (a)(1), the Division Administrator shall investigate the complaint. The complainant shall be timely notified of findings resulting from the investigation. The Division Administrator shall not be required to conduct separate investigations of duplicative complaints. If the Division Administrator determines the complaint is frivolous or does not meet the requirements of paragraph (a)(1), the Division Administrator shall dismiss the complaint and notify the complainant in writing of the reasons for the dismissal. (3) Notwithstanding the provisions of 5 U.S.C. 552, the Division Administrator shall not disclose the identity of complainants unless it is determined that such disclosure is necessary to prosecute a violation. If disclosure becomes necessary, the Division Administrator shall take every practical means within the Division Administrator’s authority to ensure that the complainant is not subject to coercion, harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of such disclosure. (b) Complaint of harassment. (1) A driver alleging a violation of § 390.36(b)(1) of this subchapter (harassment) must file a written complaint with FMCSA stating the substance of the alleged harassment by a motor carrier no later than 90 days after the event. The written complaint, including the information described below, must be filed with the National Consumer Complaint Database at https:// nccdb.fmcsa.dot.gov or the FMCSA Division Administrator for the State where the driver is employed. The Agency may refer a complaint to another Division Administrator who the Agency believes is best able to handle the complaint. Information on filing a written complaint may be obtained by calling 1–800–DOT–SAFT (1–800–368– 7238). Each complaint must be signed by the driver and must contain: (i) The driver’s name, address, and telephone number; (ii) The name and address of the motor carrier allegedly harassing the driver; and (iii) A concise but complete statement of the facts relied upon to substantiate each allegation of harassment, including: VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 (A) How the ELD or other technology used in combination with and not separable from the ELD was used to contribute to harassment; (B) The date of the alleged action; and (C) How the motor carrier’s action violated either § 392.3 or part 395. Each complaint may include any supporting evidence that will assist the Division Administrator in determining the merits of the complaint. (2) Upon the filing of a complaint of a violation under paragraph (b)(1) of this section, the appropriate Division Administrator shall determine whether the complaint is non-frivolous and meets the requirements of paragraph (b)(1) of this section. (i) If the Division Administrator determines the complaint is nonfrivolous and meets the requirements of paragraph (b)(1) of this section, the Division Administrator shall investigate the complaint. The complaining driver shall be timely notified of findings resulting from the investigation. The Division Administrator shall not be required to conduct separate investigations of duplicative complaints. (ii) If the Division Administrator determines the complaint is frivolous or does not meet the requirements of paragraph (b)(1) of this section, the Division Administrator shall dismiss the complaint and notify the complainant in writing of the reasons for the dismissal. (3) Because prosecution of harassment in violation of § 390.36(b)(1) of this subchapter will require disclosure of the driver’s identity, the Agency shall take every practical means within its authority to ensure that the driver is not subject to coercion, harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of the disclosure. This will include notification that 49 U.S.C. 31105 includes broad employee protections and that retaliation for filing a harassment complaint may subject the motor carrier to enforcement action by the Occupational Safety and Health Administration. (c) Complaint of coercion. (1) A driver alleging a violation of § 390.6(a)(1) or (2) of this subchapter must file a written complaint with FMCSA stating the substance of the alleged coercion no later than 90 days after the event. The written complaint, including the information described below, must be filed with the National Consumer Complaint Database at https:// nccdb.fmcsa.dot.gov or the FMCSA Division Administrator for the State where the driver is employed. The Agency may refer a complaint to PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 another Division Administrator who the Agency believes is best able to handle the complaint. Information on filing a written complaint may be obtained by calling 1–800–DOT–SAFT (1–800–368– 7238). Each complaint must be signed by the driver and must contain: (i) The driver’s name, address, and telephone number; (ii) The name and address of the person allegedly coercing the driver; (iii) The provisions of the regulations that the driver alleges he or she was coerced to violate; and (iv) A concise but complete statement of the facts relied upon to substantiate each allegation of coercion, including the date of each alleged violation. (2) Action on complaint of coercion. Upon the filing of a complaint of coercion under paragraph (c)(1) of this section, the appropriate Division Administrator shall determine whether the complaint is non-frivolous and meets the requirements of paragraph (c)(1). (i) If the Division Administrator determines that the complaint is nonfrivolous and meets the requirements of paragraph (c)(1) of this section, the Division Administrator shall investigate the complaint. The complaining driver shall be timely notified of findings resulting from such investigation. The Division Administrator shall not be required to conduct separate investigations of duplicative complaints. (ii) If the Division Administrator determines the complaint is frivolous or does not meet the requirements of paragraph (c)(1) of this section, the Division Administrator shall dismiss the complaint and notify the driver in writing of the reasons for the dismissal. (3) Protection of complainants. Because prosecution of coercion in violation of § 390.6 of this subchapter will require disclosure of the driver’s identity, the Agency shall take every practical means within its authority to ensure that the driver is not subject to coercion, harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of the disclosure. This will include notification that 49 U.S.C. 31105 includes broad employee protections and that retaliation for filing a coercion complaint may subject the alleged coercer to enforcement action by the Occupational Safety and Health Administration. 6. Add § 386.30 to subpart D to read as follows: ■ E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations § 386.30 Enforcement proceedings under part 395. ■ (a) General. A motor carrier is liable for any act or failure to act by an employee, as defined in § 390.5 of this subchapter, that violates any provision of part 395 of this subchapter if the act or failure to act is within the course of the motor carrier’s operations. The fact that an employee may be liable for a violation in a proceeding under this subchapter, based on the employee’s act or failure to act, does not affect the liability of the motor carrier. (b) Burden of proof. Notwithstanding any other provision of this subchapter, the burden is on a motor carrier to prove that the employee was acting outside the scope of the motor carrier’s operations when committing an act or failing to act in a manner that violates any provision of part 395 of this subchapter. (c) Imputed knowledge of documents. A motor carrier shall be deemed to have knowledge of any document in its possession and any document that is available to the motor carrier and that the motor carrier could use in ensuring compliance with part 395 of this subchapter. ‘‘Knowledge of any document’’ means knowledge of the fact that a document exists and the contents of the document. ■ 7. Amend appendix B to part 386 by adding paragraph (a)(7) to read as follows: § 390.36 * * * * * * * * PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 12. Amend § 395.1 by revising the introductory text of paragraphs (e)(1) and (e)(2) to read as follows: tkelley on DSK9F6TC42PROD with RULES2 Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31151, 31502; sec. 114, Pub. L. 103–311, 108 Stat. 1673, 1677–1678; sec. 212, 217, Pub. L. 106– 159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106–159 (as transferred by sec. 4115 and amended by secs. 4130–4132, Pub. L. 109–59, 119 Stat. 1144, 1726, 1743–1744); sec. 4136, Pub. L. 109–59, 119 Stat. 1144, 1745; sections 32101(d) and 34934, Pub. L. 112–141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113–125, 128 Stat. 1388; and 49 CFR 1.87. Jkt 238001 11. Redesignate § 395.1 through § 395.15 as subpart A, and add a new subpart heading to read as follows: ■ ■ 8. The authority citation for part 390 is revised to read as follows: 18:38 Dec 15, 2015 Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 113, Pub. L. 103–311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106– 159 (as transferred by sec. 4115 and amended by secs. 4130–4132, Pub. L. 109–59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. L. 109–59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110–432, 122 Stat. 4860–4866; sec. 32934, Pub. L. 112–141, 126 Stat. 405, 830; and 49 CFR 1.87. Subpart A—General ■ VerDate Sep<11>2014 PART 395—HOURS OF SERVICE OF DRIVERS 10. The authority citation for part 395 continues to read as follows: (a) * * * (7) Harassment. In instances of a violation of § 390.36(b)(1) of this subchapter the Agency may consider the ‘‘gravity of the violation,’’ for purposes of 49 U.S.C. 521(b)(2)(D), sufficient to warrant imposition of penalties up to the maximum permitted by law. * Harassment of drivers prohibited. (a) Harass or harassment defined. As used in this section, harass or harassment means an action by a motor carrier toward a driver employed by the motor carrier (including an independent contractor while in the course of operating a commercial motor vehicle on behalf of the motor carrier) involving the use of information available to the motor carrier through an ELD, as defined in § 395.2 of this chapter, or through other technology used in combination with and not separable from the ELD, that the motor carrier knew, or should have known, would result in the driver violating § 392.3 or part 395 of this subchapter. (b) Prohibition against harassment. (1) No motor carrier may harass a driver. (2) Nothing in paragraph (b)(1) of this section shall be construed to prevent a motor carrier from using technology allowed under this subchapter to monitor productivity of a driver provided that such monitoring does not result in harassment. (c) Complaint process. A driver who believes he or she was the subject of harassment by a motor carrier may file a written complaint under § 386.12(b) of this subchapter. ■ Appendix B to Part 386—Penalty Schedule; Violations and Monetary Penalties * 9. Add § 390.36 to read as follows: § 395.1 Scope of rules in this part. * * * * * (e) * * * (1) 100 air-mile radius driver. A driver is exempt from the requirements of § 395.8 and § 395.11 if: * * * * * (2) Operators of property-carrying commercial motor vehicles not requiring a commercial driver’s license. Except as PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 78383 provided in this paragraph, a driver is exempt from the requirements of §§ 395.3(a)(2), 395.8, and 395.11 and ineligible to use the provisions of § 395.1(e)(1), (g), and (o) if: * * * * * ■ 13. Amend § 395.2 by adding definitions for Electronic logging device (ELD), ELD record, and Supporting document, in alphabetical order, to read as follows: § 395.2 Definitions. * * * * * Electronic logging device (ELD) means a device or technology that automatically records a driver’s driving time and facilitates the accurate recording of the driver’s hours of service, and that meets the requirements of subpart B of this part. ELD record means a record of duty status, recorded on an ELD, that reflects the data elements that an ELD must capture. * * * * * Supporting document means a document, in any medium, generated or received by a motor carrier in the normal course of business as described in § 395.11 that can be used, as produced or with additional identifying information, by the motor carrier and enforcement officials to verify the accuracy of a driver’s record of duty status. * * * * * ■ 14. Amend § 395.8 by: ■ a. Revising paragraphs (a) and (e), ■ b. Removing and reserving paragraph (i), and ■ c. Revising the heading of paragraph (k), and paragraph (k)(1) to read as follows: § 395.8 Driver’s record of duty status. (a)(1) Except for a private motor carrier of passengers (nonbusiness), as defined in § 390.5 of this subchapter, a motor carrier subject to the requirements of this part must require each driver used by the motor carrier to record the driver’s duty status for each 24-hour period using the method prescribed in paragraphs (a)(1)(i) through (iv) of this section, as applicable. (i) Subject to paragraphs (a)(1)(ii) and (iii) of this section, a motor carrier operating commercial motor vehicles must install and require each of its drivers to use an ELD to record the driver’s duty status in accordance with subpart B of this part no later than December 18, 2017. (ii) A motor carrier that installs and requires a driver to use an automatic onboard recording device in accordance E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78384 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations with § 395.15 before December 18, 2017 may continue to use the compliant automatic on-board recording device no later than December 16, 2019. (iii)(A) A motor carrier may require a driver to record the driver’s duty status manually in accordance with this section, rather than require the use of an ELD, if the driver is operating a commercial motor vehicle: (1) In a manner requiring completion of a record of duty status on not more than 8 days within any 30-day period; (2) In a driveaway-towaway operation in which the vehicle being driven is part of the shipment being delivered; or (3) That was manufactured before model year 2000. (B) The record of duty status must be recorded in duplicate for each 24-hour period for which recording is required. The duty status shall be recorded on a specified grid, as shown in paragraph (g) of this section. The grid and the requirements of paragraph (d) of this section may be combined with any company form. (iv) Subject to paragraphs (a)(1)(i) through (iii) of this section, until December 18, 2017, a motor carrier operating commercial motor vehicles shall require each of its drivers to record the driver’s record of duty status: (A) Using an ELD that meets the requirements of subpart B of this part; (B) Using an automatic on-board recording device that meets the requirements of § 395.15; or (C) Manually, recorded on a specified grid as shown in paragraph (g) of this section. The grid and the requirements of paragraph (d) of this section may be combined with any company form. The record of duty status must be recorded in duplicate for each 24-hour period for which recording is required. (2) A driver operating a commercial motor vehicle must: (i) Record the driver’s duty status using one of the methods under paragraph (a)(1) of this section; and (ii) Submit the driver’s record of duty status to the motor carrier within 13 days of the 24-hour period to which the record pertains. * * * * * (e)(1) No driver or motor carrier may make a false report in connection with a duty status. (2) No driver or motor carrier may disable, deactivate, disengage, jam, or otherwise block or degrade a signal transmission or reception, or reengineer, reprogram, or otherwise tamper with an automatic on-board recording device or ELD so that the device does not accurately record and retain required data. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 (3) No driver or motor carrier may permit or require another person to disable, deactivate, disengage, jam, or otherwise block or degrade a signal transmission or reception, or reengineer, reprogram, or otherwise tamper with an automatic on-board recording device or ELD so that the device does not accurately record and retain required data. * * * * * (i) [Reserved] * * * * * (k) Retention of driver’s record of duty status and supporting documents. (1) A motor carrier shall retain records of duty status and supporting documents required under this part for each of its drivers for a period of not less than 6 months from the date of receipt. * * * * * ■ 15. Add § 395.11 to read as follows: unit number can be associated with the driver operating the unit; (B) The date, which must be the date at the location where the date is recorded; (C) The location, which must include the name of the nearest city, town, or village to enable Federal, State, or local enforcement personnel to quickly determine a vehicle’s location on a standard map or road atlas; and (D) Subject to paragraph (c)(2)(ii) of this section, the time, which must be convertible to the local time at the location where it is recorded. (ii) If a driver has fewer than eight supporting documents containing the four data elements under paragraph (c)(2)(i) of this section for a 24-hour period, a document containing the data elements under paragraphs (c)(2)(i)(A) through (C) of this section is considered a supporting document for purposes of paragraph (d) of this section. § 395.11 Supporting documents. (d) Maximum number of supporting (a) Effective date. This section takes documents. (1) Subject to paragraphs effect December 18, 2017. (d)(3) and (4) of this section, a motor (b) Submission of supporting carrier need not retain more than eight documents to motor carrier. Except supporting documents for an individual drivers for a private motor carrier of driver’s 24-hour period under paragraph passengers (nonbusiness), a driver must (c) of this section. submit to the driver’s employer the (2) In applying the limit on the driver’s supporting documents within number of documents required under 13 days of either the 24-hour period to paragraph (d)(1) of this section, each which the documents pertain or the day electronic mobile communication the document comes into the driver’s record applicable to an individual possession, whichever is later. driver’s 24-hour period shall be counted (c) Supporting document retention. (1) as a single document. Subject to paragraph (d) of this section, (3) If a motor carrier has more than a motor carrier must retain each eight supporting documents for a supporting document generated or driver’s 24 hour period, the motor received in the normal course of carrier must retain the supporting business in the following categories for documents containing the earliest and each of its drivers for every 24-hour the latest time indications among the period to verify on-duty not driving eight supporting documents retained. (4) In addition to other supporting time in accordance with § 395.8(k): (i) Each bill of lading, itinerary, documents required under this section, schedule, or equivalent document that and notwithstanding the maximum indicates the origin and destination of number of documents under paragraph each trip; (d)(1) of this section, a motor carrier that (ii) Each dispatch record, trip record, requires a driver to complete a paper or equivalent document; record of duty status under (iii) Each expense receipt related to § 395.8(a)(1)(iii) must maintain toll any on-duty not driving time; receipts for any period when the driver (iv) Each electronic mobile kept paper records of duty status. communication record, reflecting (e) Link to driver’s record of duty communications transmitted through a status. A motor carrier must retain fleet management system; and supporting documents in such a manner (v) Each payroll record, settlement that they may be effectively matched to sheet, or equivalent document that the corresponding driver’s record of indicates payment to a driver. duty status. (2)(i) A supporting document must (f) Prohibition of destruction. No include each of the following data motor carrier or driver may obscure, elements: deface, destroy, mutilate, or alter (A) On the document or on another existing information contained in a document that enables the carrier to link supporting document. (g) Supporting documents at roadside. the document to the driver, the driver’s name or personal identification number (1) Upon request during a roadside inspection, a driver must make available (PIN) or a unit (vehicle) number if the PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations to an authorized Federal, State, or local official for the official’s review any supporting document in the driver’s possession. (2) A driver need not produce a supporting document under paragraph (g)(1) of this section in a format other than the format in which the driver possesses it. (h) Self-compliance systems. (1) FMCSA may authorize on a case-by-case basis motor carrier self-compliance systems. (2) Requests for use of a supporting document self-compliance system may be submitted to FMCSA under the procedures described in 49 CFR part 381, subpart C (Procedures for Applying for Exemptions). (3) FMCSA will consider requests concerning types of supporting documents retained by a motor carrier under § 395.8(k)(1) and the method by which a driver retains a copy of the record of duty status for the previous 7 days and makes it available for inspection while on duty in accordance with § 395.8. ■ 16. Amend § 395.15 by revising paragraph (a) to read as follows: § 395.15 Automatic on-board recording devices. (a) Authority to use. (1) A motor carrier that installs and requires a driver to use an automatic on-board recording device in accordance with this section before December 18, 2017 may continue to use the compliant automatic on-board recording device no later than December 16, 2019. Otherwise, the authority to use automatic on-board recording devices under this section ends on December 18, 2017. (2) In accordance with paragraph (a)(1) of this section, a motor carrier may require a driver to use an automatic onboard recording device to record the driver’s hours of service. (3) Every driver required by a motor carrier to use an automatic on-board recording device shall use such device to record the driver’s hours of service. * * * * * §§ 395.16–395.19 [Added and Reserved] 17. Add and reserve §§ 395.16 through 395.19 in subpart A. ■ 18. Amend part 395 by adding a new subpart B, consisting of §§ 395.20 through 395.38, and Appendix A to Subpart B of Part 395, to read as follows: tkelley on DSK9F6TC42PROD with RULES2 ■ Subpart B—Electronic Logging Devices (ELDs) Sec. 395.20 ELD applicability and scope. 395.22 Motor carrier responsibilities—In general. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 395.24 Driver responsibilities—In general. 395.26 ELD data automatically recorded. 395.28 Special driving categories; other driving statuses. 395.30 ELD record submissions, edits, annotations, and data retention. 395.32 Non-authenticated driver logs. 395.34 ELD malfunctions and data diagnostic events. 395.36 Driver access to records. 395.38 Incorporation by reference. Appendix A to Subpart B of Part 395— Functional Specifications for All Electronic Logging Devices (ELDS) Subpart B—Electronic Logging Devices (ELDs) § 395.20 ELD applicability and scope. (a) Scope. This subpart applies to ELDs used to record a driver’s hours of service under § 395.8(a). (b) Applicability. An ELD used after December 18, 2017 must meet the requirements of this subpart. § 395.22 Motor carrier responsibilities—In general. (a) Registered ELD required. A motor carrier required to use an ELD must use only an ELD that is listed on the Federal Motor Carrier Safety Administration’s registered ELDs list, accessible through the Agency’s Web site, www.fmcsa.dot.gov/devices. (b) User rights management. (1) This paragraph applies to a motor carrier whose drivers use ELDs and to the motor carrier’s support personnel who have been authorized by the motor carrier to access ELD records and make or suggest authorized edits. (2) A motor carrier must: (i) Manage ELD accounts, including creating, deactivating, and updating accounts, and ensure that properly authenticated individuals have ELD accounts with appropriate rights; (ii) Assign a unique ELD username to each user account with the required user identification data; (iii) Ensure that a driver’s license used in the creation of an ELD driver account is valid and corresponds to the driver using the ELD account; and (iv) Ensure that information entered to create a new account is accurate. (c) Driver identification data. (1) The ELD user account assigned by the motor carrier to a driver requires the following data elements: (i) A driver’s first and last name, as reflected on the driver’s license; (ii) A unique ELD username selected by the motor carrier; (iii) The driver’s valid driver’s license number; and (iv) The State or jurisdiction that issued the driver’s license. (2) The driver’s license number or Social Security number must not be PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 78385 used as, or as part of, the username for the account created on an ELD. (d) Motor carrier support personnel identification data. The ELD user account assigned by a motor carrier to support personnel requires the following data elements: (1) The individual’s first and last name, as reflected on a government issued identification; and (2) A unique ELD username selected by the motor carrier. (e) Proper log-in required. The motor carrier must require that its drivers and support personnel log into the ELD system using their proper identification data. (f) Calibration. A motor carrier must ensure that an ELD is calibrated and maintained in accordance with the provider’s specifications. (g) Portable ELDs. If a driver uses a portable ELD, the motor carrier shall ensure that the ELD is mounted in a fixed position during the operation of the commercial motor vehicle and visible to the driver when the driver is seated in the normal driving position. (h) In-vehicle information. A motor carrier must ensure that its drivers possess onboard a commercial motor vehicle an ELD information packet containing the following items: (1) A user’s manual for the driver describing how to operate the ELD; (2) An instruction sheet for the driver describing the data transfer mechanisms supported by the ELD and step-by-step instructions for the driver to produce and transfer the driver’s hours-of-service records to an authorized safety official; (3) An instruction sheet for the driver describing ELD malfunction reporting requirements and recordkeeping procedures during ELD malfunctions; and (4) A supply of blank driver’s records of duty status graph-grids sufficient to record the driver’s duty status and other related information for a minimum of 8 days. (i) Record backup and security. (1) A motor carrier must retain for 6 months a back-up copy of the ELD records on a device separate from that on which the original data are stored. (2) A motor carrier must retain a driver’s ELD records so as to protect a driver’s privacy in a manner consistent with sound business practices. (j) Record production. When requested by an authorized safety official, a motor carrier must produce ELD records in an electronic format either at the time of the request or, if the motor carrier has multiple offices or terminals, within the time permitted under § 390.29 of this subchapter. E:\FR\FM\16DER2.SGM 16DER2 78386 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations § 395.24 Driver responsibilities—In general. (a) In general. A driver must provide the information the ELD requires as prompted by the ELD and required by the motor carrier. (b) Driver’s duty status. A driver must input the driver’s duty status by selecting among the following categories available on the ELD: (1) ‘‘Off duty’’ or ‘‘OFF’’ or ‘‘1’’; (2) ‘‘Sleeper berth’’ or ‘‘SB’’ or ‘‘2’’, to be used only if sleeper berth is used; (3) ‘‘Driving’’ or ‘‘D’’ or ‘‘3’’; or (4) ‘‘On-duty not driving’’ or ‘‘ON’’ or ‘‘4’’. (c) Miscellaneous data. (1) A driver must manually input the following information in the ELD: (i) Annotations, when applicable; (ii) Driver’s location description, when prompted by the ELD; and (iii) Output file comment, when directed by an authorized safety officer. (2) A driver must manually input or verify the following information on the ELD: (i) Commercial motor vehicle power unit number; (ii) Trailer number(s), if applicable; and (iii) Shipping document number, if applicable. (d) Driver use of ELD. On request by an authorized safety official, a driver must produce and transfer from an ELD the driver’s hours-of-service records in accordance with the instruction sheet provided by the motor carrier. tkelley on DSK9F6TC42PROD with RULES2 § 395.26 ELD data automatically recorded. (a) In general. An ELD provides the following functions and automatically records the data elements listed in this section in accordance with the requirements contained in appendix A to subpart B of this part. (b) Data automatically recorded. The ELD automatically records the following data elements: (1) Date; (2) Time; (3) CMV geographic location information; (4) Engine hours; (5) Vehicle miles; (6) Driver or authenticated user identification data; (7) Vehicle identification data; and (8) Motor carrier identification data. (c) Change of duty status. When a driver indicates a change of duty status under § 395.24(b), the ELD records the data elements in paragraphs (b)(1) through (8) of this section. (d) Intermediate recording. (1) When a commercial motor vehicle is in motion and there has not been a duty status change or another intermediate VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 recording in the previous 1 hour, the ELD automatically records an intermediate recording that includes the data elements in paragraphs (b)(1) through (8) of this section. (2) If the intermediate recording is created during a period when the driver indicates authorized personal use of a commercial motor vehicle, the data elements in paragraphs (b)(4) and (5) of this section (engine hours and vehicle miles) will be left blank and paragraph (b)(3) of this section (location) will be recorded with a single decimal point resolution (approximately within a 10mile radius). (e) Change in special driving category. If a driver indicates a change in status under § 395.28(a)(2), the ELD records the data elements in paragraphs (b)(1) through (8) of this section. (f) Certification of the driver’s daily record. The ELD provides a function for recording the driver’s certification of the driver’s records for every 24-hour period. When a driver certifies or recertifies the driver’s records for a given 24-hour period under § 395.30(b)(2), the ELD records the date, time and driver identification data elements in paragraphs (b)(1), (2), and (6) of this section. (g) Log in/log out. When an authorized user logs into or out of an ELD, the ELD records the data elements in paragraphs (b)(1) and (2) and (b)(4) through (8) of this section. (h) Engine power up/shut down. When a commercial motor vehicle’s engine is powered up or powered down, the ELD records the data elements in paragraphs (b)(1) through (8) of this section. (i) Authorized personal use. If the record is created during a period when the driver has indicated authorized personal use of a commercial motor vehicle, the data element in paragraph (b)(3) of this section is logged with a single decimal point resolution (approximately within a 10-mile radius). (j) Malfunction and data diagnostic event. When an ELD detects or clears a malfunction or data diagnostic event, the ELD records the data elements in paragraphs (b)(1) and (2) and (b)(4) through (8) of this section. § 395.28 Special driving categories; other driving statuses. (a) Special driving categories—(1) Motor carrier options. A motor carrier may configure an ELD to authorize a driver to indicate that the driver is operating a commercial motor vehicle under any of the following special driving categories: (i) Authorized personal use; and (ii) Yard moves. PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 (2) Driver’s responsibilities. A driver operating a commercial motor vehicle under one of the authorized categories listed in paragraph (a)(1) of this section: (i) Must select on the ELD the applicable special driving category before the start of the status and deselect when the indicated status ends; and (ii) When prompted by the ELD, annotate the driver’s ELD record describing the driver’s activity. (b) Drivers exempt from ELD use. A motor carrier may configure an ELD to designate a driver as exempt from ELD use. (c) Other driving statuses. A driver operating a commercial motor vehicle under any exception under § 390.3(f) of this subchapter or § 395.1 who is not covered under paragraph (a) or (b) of this section must annotate the driver’s ELD record to explain the applicable exemption. § 395.30 ELD record submissions, edits, annotations, and data retention. (a) Accurate record keeping. A driver and the motor carrier must ensure that the driver’s ELD records are accurate. (b) Review of records and certification by driver. (1) A driver must review the driver’s ELD records, edit and correct inaccurate records, enter any missing information, and certify the accuracy of the information. (2) Using the certification function of the ELD, the driver must certify the driver’s records by affirmatively selecting ‘‘Agree’’ immediately following a statement that reads, ‘‘I hereby certify that my data entries and my record of duty status for this 24-hour period are true and correct.’’ The driver must certify the record immediately after the final required entry has been made or corrected for the 24-hour period. (3) The driver must submit the driver’s certified ELD records to the motor carrier in accordance with § 395.8(a)(2). (4) If any edits are necessary after the driver submits the records to the motor carrier, the driver must recertify the record after the edits are made. (c) Edits, entries, and annotations. (1) Subject to the edit limitations of an ELD, a driver may edit, enter missing information, and annotate ELD recorded events. When edits, additions, or annotations are necessary, a driver must use the ELD and respond to the ELD’s prompts. (2) The driver or support personnel must annotate each change or addition to a record. (3) In the case of team drivers, if there were a mistake resulting in the wrong driver being assigned driving-time hours E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations by the ELD, and if the team drivers were both indicated in each other’s records for that period as co-drivers, driving time may be edited and reassigned between the team drivers following the procedure supported by the ELD. (d) Motor carrier-proposed edits. (1) On review of a driver’s submitted records, the motor carrier may request edits to a driver’s records of duty status to ensure accuracy. A driver must confirm or reject any proposed change, implement the appropriate edits on the driver’s record of duty status, and recertify and resubmit the records in order for any motor carrier-proposed changes to take effect. (2) A motor carrier may not request edits to the driver’s electronic records before the records have been submitted by the driver. (3) Edits requested by any system or by any person other than the driver must require the driver’s electronic confirmation or rejection. (e) Coercion prohibited. A motor carrier may not coerce a driver to make a false certification of the driver’s data entries or record of duty status. (f) Motor carrier data retention requirements. A motor carrier must not alter or erase, or permit or require alteration or erasure of, the original information collected concerning the driver’s hours of service, the source data streams used to provide that information, or information contained in any ELD that uses the original information and HOS source data. tkelley on DSK9F6TC42PROD with RULES2 § 395.32 Non-authenticated driver logs. (a) Tracking non-authenticated operation. The ELD must associate the non-authenticated operation of a commercial motor vehicle with a single account labeled ‘‘Unidentified Driver’’ as soon as the vehicle is in motion, if no driver has logged into the ELD. (b) Driver. When a driver logs into an ELD, the driver must review any unassigned driving time when prompted by the ELD and must: (1) Assume any records that belong to the driver under the driver’s account; or (2) Indicate that the records are not attributable to the driver. (c) Motor carrier. (1) A motor carrier must ensure that records of unidentified driving are reviewed and must: (i) Annotate the record, explaining why the time is unassigned; or (ii) Assign the record to the appropriate driver to correctly reflect the driver’s hours of service. (2) A motor carrier must retain unidentified driving records for each ELD for a minimum of 6 months from the date of receipt. (3) During a safety inspection, audit or investigation by an authorized safety VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 official, a motor carrier must make available unidentified driving records from the ELD corresponding to the time period for which ELD records are required. § 395.34 ELD malfunctions and data diagnostic events. (a) Recordkeeping during ELD malfunctions. In case of an ELD malfunction, a driver must do the following: (1) Note the malfunction of the ELD and provide written notice of the malfunction to the motor carrier within 24 hours; (2) Reconstruct the record of duty status for the current 24-hour period and the previous 7 consecutive days, and record the records of duty status on graph-grid paper logs that comply with § 395.8, unless the driver already possesses the records or the records are retrievable from the ELD; and (3) Continue to manually prepare a record of duty status in accordance with § 395.8 until the ELD is serviced and brought back into compliance with this subpart. (b) Inspections during malfunctions. When a driver is inspected for hours of service compliance during an ELD malfunction, the driver must provide the authorized safety official the driver’s records of duty status manually kept as specified under paragraphs (a)(2) and (3) of this section. (c) Driver requirements during ELD data diagnostic events. If an ELD indicates that there is a data inconsistency that generates a data diagnostic event, the driver must follow the motor carrier’s and ELD provider’s recommendations in resolving the data inconsistency. (d) Motor carrier requirements for repair, replacement, or service. (1) If a motor carrier receives or discovers information concerning the malfunction of an ELD, the motor carrier must take actions to correct the malfunction of the ELD within 8 days of discovery of the condition or a driver’s notification to the motor carrier, whichever occurs first. (2) A motor carrier seeking to extend the period of time permitted for repair, replacement, or service of one or more ELDs shall notify the FMCSA Division Administrator for the State of the motor carrier’s principal place of business within 5 days after a driver notifies the motor carrier under paragraph (a)(1) of this section. Each request for an extension under this section must be signed by the motor carrier and must contain: PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 78387 (i) The name, address, and telephone number of the motor carrier representative who files the request; (ii) The make, model, and serial number of each ELD; (iii) The date and location of each ELD malfunction as reported by the driver to the carrier; and (iv) A concise statement describing actions taken by the motor carrier to make a good faith effort to repair, replace, or service the ELD units, including why the carrier needs additional time beyond the 8 days provided by this section. (3) If FMCSA determines that the motor carrier is continuing to make a good faith effort to ensure repair, replacement, or service to address the malfunction of each ELD, FMCSA may allow an additional period. (4) FMCSA will provide written notice to the motor carrier of its determination. The determination may include any conditions that FMCSA considers necessary to ensure hours-ofservice compliance. The determination shall constitute a final agency action. (5) A motor carrier providing a request for extension that meets the requirements of paragraph (d)(2) of this section is deemed in compliance with § 395.8(a)(1)(i) and (a)(2) until FMCSA makes an extension determination under this section, provided the motor carrier and driver continue to comply with the other requirements of this section. § 395.36 Driver access to records. (a) Records on ELD. Drivers must be able to access their own ELD records. A motor carrier must not introduce a process that would require a driver to go through the motor carrier to obtain copies of the driver’s own ELD records if such records exist on or are automatically retrievable through the ELD operated by the driver. (b) Records in motor carrier’s possession. On request, a motor carrier must provide a driver with access to and copies of the driver’s own ELD records unavailable under paragraph (a) of this section during the period a motor carrier is required to retain the records under § 395.8(k). § 395.38 Incorporation by reference. (a) Incorporation by reference. Certain materials are incorporated by reference in part 395, with the approval of the Director of the Office of the Federal Register under 5 U.S.C. 552(a), and 1 CFR part 51. To enforce any edition other than that specified in this section, the Federal Motor Carrier Safety Administration must publish notice of the change in the Federal Register, and E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78388 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations the material must be available to the public. All approved material is available for inspection at the Federal Motor Carrier Safety Administration, Office of Analysis, Research and Technology, (800) 832–5660, and is available from the sources listed below. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030 or go to https://www.archives.gov/ federal_register/ code_of_federal_regulations/ ibr_locations.html. (b) American National Standards Institute (ANSI). 11 West 42nd Street, New York, New York 10036, https:// webstore.ansi.org, (212) 642–4900. (1) ANSI INCITS 4–1986 (R2012), American National Standard for Information Systems—Coded Character Sets—7-Bit American National Standard Code for Information Interchange (7-Bit ASCII), approved June 14, 2007, IBR in section 4.8.2.1, Appendix A to subpart B. (2) ANSI INCITS 446–2008 (R2013), American National Standard for Information Technology—Identifying Attributes for Named Physical and Cultural Geographic Features (Except Roads and Highways) of the United States, Territories, Outlying Areas, and Freely Associated Areas, and the Waters of the Same to the Limit of the TwelveMile Statutory Zone, approved October 28, 2008, IBR in section 4.4.2, Appendix A to subpart B. (c) Bluetooth SIG, Inc. 5209 Lake Washington Blvd. NE., Suite 350, Kirkland, WA 98033, https:// www.bluetooth.org/Technical/ Specifications/adopted.htm, (425) 691– 3535. (1) Bluetooth SIG, Inc., Specification of the Bluetooth System: Wireless Connections Made Easy, Covered Core Package version 2.1 + EDR, volumes 0 through 4, approved July 26, 2007, IBR in sections 4.9.1, 4.9.2, 4.10.1.4, 4.10.2, Appendix A to subpart B. (2) [Reserved] (d) Institute of Electrical and Electronic Engineers (IEEE) Standards Association. 445 Hoes Lane, Piscataway, NJ 08854–4141, https:// standards.ieee.org/, (732) 981–0060. (1) IEEE Std 1667–2009, IEEE Standard for Authentication in Host Attachments of Transient Storage Devices, approved 11 November 2009, IBR in section 4.10.1.3, Appendix A to subpart B. (2) [Reserved] (e) Internet Engineering Task Force (IETF). C/o Association Management VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Solutions, LLC (AMS) 48377 Freemont Blvd., Suite 117, Freemont, CA 94538, (510) 492–4080. (1) IETF RFC 3565, Use of the Advanced Encryption Standard (AES) Encryption Algorithm in Cryptographic Message Syntax (CMS), approved July 2003, IBR in section 4.10.1.2, Appendix A to subpart B. (2) IETF RFC 4056, Use of the RSASSA–PSS Signature Algorithm in Cryptographic Message Syntax (CMS), approved June 2005, IBR in section 4.10.1.2, Appendix A to subpart B. (3) IETF RFC 5246, The Transport Layer Security (TLS) Protocol Version 1.2, approved August 2008, IBR in section 4.10.1.1, Appendix A to subpart B. (4) IETF RFC 5321, Simple Mail Transfer Protocol, approved October 2008, IBR in section 4.10.1.2, Appendix A to subpart B. (5) IETF RFC 5322, Internet Message Format, approved October 2008, IBR in section 4.10.1.2, Appendix A to subpart B. (6) IETF RFC 5751, Secure/ Multipurpose Internet Mail Extensions (S/MIME) Version 3.2, Message Specification, approved January 2010, IBR in section 4.10.1.2, Appendix A to subpart B. (7) IETF RFC 7230, Hypertext Transfer Protocol (HTTP/1.1): Message Syntax and Routing, approved June 2014, IBR in section 4.10.1.1, Appendix A to subpart B. (8) IETF RFC 7231, Hypertext Transfer Protocol (HTTP/1.1): Semantics and Content, approved June 2014, IBR in section 4.10.1.1, Appendix A to subpart B. (f) National Institute of Standards and Technology (NIST). 100 Bureau Drive, Stop 1070, Gaithersburg, MD 20899– 1070, https://www.nist.gov, (301) 975– 6478. (1) Federal Information Processing Standards Publication (FIPS PUB) 197, Advanced Encryption Standard (AES), approved November 26, 2001, IBR in sections 4.10.1.2 and 4.10.1.3, Appendix A to subpart B. (2) SP 800–32, Introduction to Public Key Technology and the Federal PKI Infrastructure, approved February 26, 2001, IBR in section 4.10.1.2, Appendix A to subpart B. (g) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 153rd Drive, Beaverton, Oregon 97006, https:// www.usb.org, (503) 619–0426. (1) USB Implementers Forum, Inc., Universal Serial Bus Specification, Revision 2.0, approved April 27, 2000, as revised through April 3, 2015, IBR in sections 4.9.1, 4.9.2, 4.10.1.3, and 4.10.2, Appendix A to subpart B. PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 (2) [Reserved] (h) World Wide Web Consortium (W3C). 32 Vassar Street, Building 32– G514, Cambridge, MA 02139, https:// www.w3.org, (617) 253–2613. (1) W3C Recommendation 27, SOAP Version 1.2 Part 1: Messaging Framework (Second Edition), including errata, approved April 2007, IBR in section 4.10.1.1, Appendix A to subpart B. (2) [Reserved] Appendix A to Subpart B of Part 395— Functional Specifications for All Electronic Logging Devices (ELDs) Table of Contents 1. Scope and Description Scope 1.1. ELD Function 1.2. System Users 1.3. System Architecture 1.4. System Design 1.5. Sections of Appendix 2. Abbreviations 3. Definitions; Notations 3.1. Definitions 3.1.1. Databus 3.1.2. ELD Event 3.1.3. Exempt Driver 3.1.4. Geo-Location 3.1.5. Ignition Power Cycle, Ignition Power On Cycle, Ignition Power Off Cycle 3.1.6. Unidentified Driver 3.2. Notations 4. Functional Requirements 4.1. ELD User Accounts 4.1.1. Account Types 4.1.2. Account Creation 4.1.3. Account Security 4.1.4. Account Management 4.1.5. Non-Authenticated Operation 4.2. ELD-Vehicle Interface 4.3. ELD Inputs 4.3.1. ELD Sensing 4.3.1.1. Engine Power Status 4.3.1.2. Vehicle Motion Status 4.3.1.3. Vehicle Miles 4.3.1.4. Engine Hours 4.3.1.5. Date and Time 4.3.1.6. CMV Position 4.3.1.7. CMV VIN 4.3.2. Driver’s Manual Entries 4.3.2.1. Driver’s Entry of Required Event Data Fields 4.3.2.2. Driver’s Status Inputs 4.3.2.2.1. Driver’s Indication of Duty Status 4.3.2.2.2. Driver’s Indication of Situations Impacting Driving Time Recording 4.3.2.3. Driver’s Certification of Records 4.3.2.4. Driver’s Data Transfer Initiation Input 4.3.2.5. Driver’s Entry of an Output File Comment 4.3.2.6. Driver’s Annotation of Records 4.3.2.7. Driver’s Entry of Location Information 4.3.2.8. Driver’s Record Entry/Edit 4.3.2.8.1 Mechanism for Driver Edits and Annotations 4.3.2.8.2 Driver Edit Limitations 4.3.3. Motor Carrier’s Manual Entries 4.3.3.1. ELD Configuration 4.3.3.1.1. Configuration of Available Categories Impacting Driving Time Recording E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 4.3.3.1.2. Configuration of Using ELDs 4.3.3.1.3. Motor Carrier’s Post-Review Electronic Edit Request 4.4. ELD Processing and Calculations 4.4.1. Conditions for Automatic Setting of Duty Status 4.4.1.1. Automatic Setting of Duty Status to Driving 4.4.1.2. Automatic Setting of Duty Status to On-Duty Not Driving 4.4.1.3. Other Automatic Duty-Status Setting Actions Prohibited 4.4.2. Geo-Location Conversions 4.4.3. Date and Time Conversions 4.4.4. Setting of Event Parameters in Records, Edits, and Entries 4.4.4.1. Event Sequence Identifier (ID) Number 4.4.4.2. Event Record Status, Event Record Origin, Event Type Setting 4.4.4.2.1. Records Automatically Logged by ELD 4.4.4.2.2. Driver Edits 4.4.4.2.3. Driver Entries 4.4.4.2.4. Driver’s Assumption of Unidentified Driver Logs 4.4.4.2.5. Motor Carrier Edit Suggestions 4.4.4.2.6. Driver’s Actions Over Motor Carrier Edit Suggestions 4.4.5. Data Integrity Check Functions 4.4.5.1. Event Data Check 4.4.5.1.1. Event Checksum Calculation 4.4.5.1.2. Event Data Check Calculation 4.4.5.2. Line Data Check 4.4.5.2.1. Line Checksum Calculation 4.4.5.2.2. Line Data Check Calculation 4.4.5.2.3. Line Data Check Value Inclusion in Output File 4.4.5.3. File Data Check 4.4.5.3.1. File Checksum Calculation 4.4.5.3.2. File Data Check Value Calculation 4.4.5.3.3. File Data Check Value Inclusion in Output File. 4.5. ELD Recording 4.5.1. Events and Data To Record 4.5.1.1. Event: Change in Driver’s Duty Status 4.5.1.2. Event: Intermediate Logs 4.5.1.3. Event: Change in Driver’s Indication of Allowed Conditions that Impact Driving Time Recording 4.5.1.4. Event: Driver’s Certification of Own Records 4.5.1.5. Event: Driver’s Login/Logout Activity 4.5.1.6. Event: CMV’s Engine Power Up and Shut Down Activity 4.5.1.7. Event: ELD Malfunction and Data Diagnostics Occurrence 4.6. ELD’s Self-Monitoring of Required Functions 4.6.1. Compliance Self-Monitoring, Malfunctions and Data Diagnostic Events 4.6.1.1. Power Compliance Monitoring 4.6.1.2. Engine Synchronization Compliance Monitoring 4.6.1.3. Timing Compliance Monitoring 4.6.1.4. Positioning Compliance Monitoring 4.6.1.5. Data Recording Compliance Monitoring 4.6.1.6. Monitoring Records Logged under the Unidentified Driver Profile 4.6.1.7. Data Transfer Compliance Monitoring VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 4.6.1.8. Other Technology-Specific Operational Health Monitoring 4.6.2. ELD Malfunction Status Indicator 4.6.2.1. Visual Malfunction Indicator 4.6.3. ELD Data Diagnostic Status Indicator 4.6.3.1. Visual Data Diagnostics Indicator 4.7. Special Purpose ELD Functions 4.7.1. Driver’s ELD Volume Control 4.7.2. Driver’s Access To Own ELD Records 4.7.3. Privacy Preserving Provision for Use During Personal Uses of a CMV 4.8. ELD Outputs 4.8.1. Printout or Display 4.8.1.1. Print Paper Requirements 4.8.1.2. Display Requirements 4.8.1.3. Information To Be Shown on the Printout and Display at Roadside 4.8.2. ELD Data File 4.8.2.1. ELD Output File Standard 4.8.2.1.1. Header Segment 4.8.2.1.2. User List 4.8.2.1.3. CMV List 4.8.2.1.4. ELD Event List for Driver’s Record of Duty Status 4.8.2.1.5. Event Annotations, Comments, and Driver’s Location Description 4.8.2.1.6. ELD Event List for Driver’s Certification of Own Records 4.8.2.1.7. Malfunction and Diagnostic Event Records 4.8.2.1.8. ELD Login/Logout Report 4.8.2.1.9. CMV’s Engine Power-Up and Shut Down Activity 4.8.2.1.10. ELD Event Log List for the Unidentified Driver Profile 4.8.2.1.11. File Data Check Value 4.8.2.2. ELD Output File Name Standard 4.9. Data Transfer Capability Requirements 4.9.1. Data Transfer During Roadside Safety Inspections 4.9.2. Motor Carrier Data Reporting 4.10. Communications Standards for the Transmittal of Data Files From ELDs 4.10.1. Data Transfer Mechanisms 4.10.1.1. Wireless Data Transfer via Web Services 4.10.1.2. Wireless Data Transfer Through EMail 4.10.1.3. Data Transfer via USB 2.0 4.10.1.4 Wireless Data Transfer via Bluetooth® 4.10.2. Motor Carrier Data Transmission 5. ELD Registration and Certification 5.1. ELD Provider’s Registration 5.1.1. Registering Online 5.1.2. Keeping Information Current 5.1.3. Authentication Information Distribution 5.2. Certification of Conformity With FMCSA Standards 5.2.1. Online Certification 5.2.2. Procedure To Validate an ELD’s Authenticity 5.3. Publicly Available Information 5.4. Removal of Listed Certification 5.4.1. Removal Process 5.4.2. Notice 5.4.3. Response 5.4.4. Agency Action 5.4.5. Administrative Review 6. References 7. Data Elements Dictionary 7.1. 24-Hour Period Starting Time 7.2. Carrier Name 7.3. Carrier’s USDOT Number 7.4. CMV Power Unit Number PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 78389 7.5. CMV VIN 7.6. Comment/Annotation 7.7. Data Diagnostic Event Indicator Status 7.8. Date 7.9. Distance Since Last Valid Coordinates 7.10. Driver’s License Issuing State 7.11. Driver’s License Number 7.12. Driver’s Location Description 7.13. ELD Account Type 7.14. ELD Authentication Value 7.15. ELD Identifier 7.16. ELD Provider 7.17. ELD Registration ID 7.18. ELD Username 7.19. Engine Hours 7.20. Event Code 7.21. Event Data Check Value 7.22. Event Record Origin 7.23. Event Record Status 7.24. Event Sequence ID Number 7.25. Event Type 7.26. Exempt Driver Configuration 7.27. File Data Check Value 7.28. First Name 7.29. Geo-Location 7.30. Last Name 7.31. Latitude 7.32. Line Data Check Value 7.33. Longitude 7.34. Malfunction/Diagnostic Code 7.35. Malfunction Indicator Status 7.36. Multiday Basis Used 7.37. Order Number 7.38. Output File Comment 7.39. Shipping Document Number 7.40. Time 7.41. Time Zone Offset from UTC 7.42. Trailer Number(s) 7.43. Vehicle Miles 1. Scope and Description (a) This appendix specifies the minimal requirements for an electronic logging device (ELD) necessary for an ELD provider to build and certify that its technology is compliant with this appendix. 1.1. ELD Function The ELD discussed in this appendix is an electronic module capable of recording the electronic records of duty status for CMV drivers using the unit in a driving environment within a CMV and meets the compliance requirements in this appendix. 1.2. System Users Users of ELDs are: (a) CMV drivers employed by a motor carrier; and (b) Support personnel who have been authorized by the motor carrier to: (1) Create, remove, and manage user accounts; (2) Configure allowed ELD parameters; and (3) Access, review, and manage drivers’ ELD records on behalf of the motor carrier. 1.3. System Architecture An ELD may be implemented as a standalone technology or within another electronic module. It may be installed in a CMV or may be implemented on a handheld unit that may be moved from vehicle to vehicle. The functional requirements are the same for all types of system architecture that may be used in implementing the ELD functionality. E:\FR\FM\16DER2.SGM 16DER2 78390 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations (e) This appendix specifies minimally required data elements that must be part of an event record such that a standard ELD output file can be produced by all compliant ELDs. (f) Figure 1 provides a visual layout of how this appendix is generally organized to further explain the required sub-functions of an ELD. 4.3.2 and by the motor carrier as covered in section 4.3.3. The ELD requirements for internal processing and tracking of information flow are described in section 4.4, which includes conditions for and prohibitions against automatic setting of duty-status in section 4.4.1, required geolocation and date and time conversion functions in sections 4.4.2 and 4.4.3, respectively, use of event attributes for tracking of edit and entry history in section 4.4.4, and the use of data check functions in the recording of ELD logs in section 4.4.5 as standard security measures for all ELDs. Section 4.5 describes the events an ELD must record and the data elements each type of event must include. Section 4.6 introduces device self-monitoring requirements and standardizes the minimal set of malfunctions and data diagnostic events an ELD must be able to detect. Section 4.7 introduces technical functions that are intended to guard a driver against harassment and introduces a privacy preserving provision when a driver operates a CMV for personal purposes. Section 4.8 explains ELD outputs, which are the information displayed to a user and the standard data output file an ELD must produce. Sections 4.9 and 4.10, respectively, describe the data reporting requirements and the communications protocols. (d) Section 5 describes the ELD certification and registration process. (e) Section 6 lists the cited references throughout this appendix. (f) Section 7 provides a data elements dictionary referencing each data element identified in this appendix. (a) Section 2 lists the abbreviations used throughout this appendix. (b) Section 3 provides definitions for terms and notations used in this document. (c) Section 4 lists functional requirements for an ELD. More specifically, section 4.1 describes the security requirements for account management within an ELD system and introduces the term ‘‘Unidentified Driver’’ account. Section 4.2 explains internal engine synchronization requirements and its applicability when used in recording a driver’s record of duty status in CMVs. Section 4.3 describes the inputs of an ELD which includes automatically measured signals by the ELD as covered in section 4.3.1, and manual entries by the authenticated driver as covered in section VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.000</GPH> (c) An ELD records a driver’s electronic RODS and other supporting events with the required data elements specified in this appendix and retains data to support the performance requirements specified in this appendix. (d) An ELD generates a standard data file output and transfers it to an authorized safety official upon request. 1.5. Sections of Appendix tkelley on DSK9F6TC42PROD with RULES2 1.4. System Design (a) An ELD is integrally synchronized with the engine of the CMV such that driving time can be automatically recorded for the driver operating the CMV and using the ELD. (b) An ELD allows for manual inputs from the driver and the motor carrier support personnel and automatically captures date and time, vehicle position, and vehicle operational parameters. Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 2. Abbreviations 3pDP Third-Party Developers’ Partnership ASCII American Standard Code for Information Interchange CAN Control Area Network CMV Commercial Motor Vehicle ECM Electronic Control Module ELD Electronic Logging Device FMCSA Federal Motor Carrier Safety Administration HOS Hours of Service HTTP Hypertext Transfer Protocol HTTPS Hypertext Transfer Protocol Secure ICD Interface Control Document SAFER Safety and Fitness Electronic Records RFC Request for Comments RODS Records of Duty Status TLS Transport Layer Security UCT Coordinated Universal Time USB Universal Serial Bus WSDL Web Services Definition Language XML Extensible Markup Language XOR Exclusive Or {bitwise binary operation} tkelley on DSK9F6TC42PROD with RULES2 3. Definitions; Notations 3.1. Definitions 3.1.1. Databus A vehicle databus refers to an internal communications network that interconnects components inside a vehicle and facilitates exchange of data between subsystems typically using serial or control area network protocols. 3.1.2. ELD Event An ELD event refers to a discrete instance in time when the ELD records data with the data elements specified in this appendix. The discrete ELD events relate to the driver’s duty status and ELD’s operational integrity. They are either triggered by input from the driver (driver’s duty status changes, driver’s login/ logout activity, etc.) or triggered by the ELD’s internal monitoring functions (ELD malfunction detection, data diagnostics detection, intermediate logs, etc.). ELD events and required data elements for each type of ELD event are described in detail in section 4.5.1 of this appendix. 3.1.3. Exempt Driver As specified in further detail in section 4.3.3.1.2 of this appendix, an ELD must allow a motor carrier to configure an ELD for a driver who may be exempt from the use of the ELD. An example of an exempt driver would be a driver operating under the shorthaul exemption in § 395.1(e) of this part (100 air-mile radius driver and non-CDL 150-air mile radius driver). Even though exempt drivers do not have to use an ELD, in operations when an ELD equipped CMV may be shared between exempt and non-exempt drivers, motor carriers can use this allowed configuration to avoid issues with unidentified driver data diagnostics errors. 3.1.4. Geo-Location Geo-location is the conversion of a position measurement in latitude/longitude coordinates into a description of the distance and direction to a recognizable nearby location name. Geo-location information is used on an ELD’s display or printout. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 3.1.5. Ignition Power Cycle, Ignition Power On Cycle, Ignition Power Off Cycle (a) An ignition power cycle refers to the engine’s power status changing from ‘‘on to off’’ or ‘‘off to on’’, typically with the driver controlling engine power status by switching the ignition key positions. (b) An ignition power on cycle refers to the engine power sequence changing from ‘‘off to on and then off’’. This refers to a continuous period when a CMV’s engine is powered. (c) An ignition power off cycle refers to the engine power sequence changing from ‘‘on to off and then on’’. This refers to a continuous period when a CMV’s engine is not powered. 3.1.6. Unidentified Driver ‘‘Unidentified Driver’’ refers to the operation of a CMV featuring an ELD without an authenticated driver logging in the system. Functional specifications in this appendix require an ELD to automatically capture driving time under such conditions and attribute such records to the unique ‘‘Unidentified Driver account,’’ as specified in section 4.1.5 of this appendix, until the motor carrier and the driver review the records and they are assigned to the true and correct owner, as described in § 395.32 of this part. 3.2. Notations Throughout this appendix the following notations are used when data elements are referenced. (a) < . > indicates a parameter an ELD must track. For example refers to the unique <ELD username> or identifier specified during the creation of an ELD account with the requirements set forth in section 7.18 of this appendix. (b) { .} indicates which of multiple values of a parameter is being referenced. For example <ELD username {for the co-driver}> refers specifically to the ELD username for the co-driver. (c) <CR> indicates a carriage return or new line or end of the current line. This notation is used in section 4.8.2 of this appendix, which describes the standard ELD output file. 4. Functional Requirements 4.1. ELD User Accounts 4.1.1. Account Types An ELD must support a user account structure that separates drivers and motor carrier’s support personnel (i.e. non-drivers). 4.1.2. Account Creation (a) Each user of the ELD must have a valid active account on the ELD with a unique identifier assigned by the motor carrier. (b) Each driver account must require the entry of the driver’s license number and the State or jurisdiction that issued the driver’s license into the ELD during the account creation process. The driver account must securely store this information on the ELD. (c) An ELD must not allow creation of more than one driver account associated with a driver’s license for a given motor carrier. (d) A driver account must not have administrative rights to create new accounts on the ELD. PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 78391 (e) A support personnel account must not allow recording of ELD data for its account holder. (f) An ELD must reserve a unique driver account for recording events during nonauthenticated operation of a CMV. This appendix will refer to this account as the ‘‘unidentified driver account.’’ 4.1.3. Account Security (a) An ELD must provide secure access to data recorded and stored on the system by requiring user authentication during system login. (b) Driver accounts must only have access to data associated with that driver, protecting the authenticity and confidentiality of the collected information. 4.1.4. Account Management (a) An ELD must be capable of separately recording and retaining ELD data for each individual driver using the ELD. (b) An ELD must provide for and require concurrent authentication for team drivers. (c) If more than one ELD unit is used to record a driver’s electronic records within a motor carrier’s operation, the ELD in the vehicle the driver is operating most recently must be able to produce a complete ELD report for that driver, on demand, for the current 24-hour period and the previous 7 consecutive days. 4.1.5. Non-Authenticated Operation (a) An ELD must associate all nonauthenticated operation of a CMV with a single ELD account labeled unidentified driver. (b) If a driver does not log onto the ELD, as soon as the vehicle is in motion, the ELD must: (1) Provide a visual or visual and audible warning reminding the driver to stop and log in to the ELD; (2) Record accumulated driving and onduty, not-driving, time in accordance with the ELD defaults described in section 4.4.1 of this appendix under the unidentified driver profile; and (3) Not allow entry of any information into the ELD other than a response to the login prompt. 4.2. ELD-Vehicle Interface (a) An ELD must be integrally synchronized with the engine of the CMV. Engine synchronization for purposes of ELD compliance means the monitoring of the vehicle’s engine operation to automatically capture the engine’s power status, vehicle’s motion status, miles driven value, and engine hours value when the CMV’s engine is powered. (b) An ELD used while operating a CMV that is a model year 2000 or later model year, as indicated by the vehicle identification number (VIN), that has an engine electronic control module (ECM) must establish a link to the engine ECM when the CMV’s engine is powered and receive automatically the engine’s power status, vehicle’s motion status, miles driven value, and engine hours value through the serial or Control Area Network communication protocols supported by the vehicle’s engine ECM. If the vehicle does not have an ECM, an ELD may use alternative sources to obtain or estimate these E:\FR\FM\16DER2.SGM 16DER2 78392 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations vehicle parameters with the listed accuracy requirements under section 4.3.1 of this appendix. 4.3. ELD Inputs 4.3.1. ELD Sensing tkelley on DSK9F6TC42PROD with RULES2 4.3.1.1. Engine Power Status An ELD must be powered and become fully functional within 1 minute of the vehicle’s engine receiving power and must remain powered for as long as the vehicle’s engine stays powered. 4.3.1.2. Vehicle Motion Status (a) An ELD must automatically determine whether a CMV is in motion or stopped by comparing the vehicle speed information with respect to a set speed threshold as follows: (1) Once the vehicle speed exceeds the set speed threshold, it must be considered in motion. (2) Once in motion, the vehicle must be considered in motion until its speed falls to 0 miles per hour and stays at 0 miles per hour for 3 consecutive seconds. Then, the vehicle will be considered stopped. (3) An ELD’s set speed threshold for determination of the in-motion state for the purpose of this section must not be configurable to greater than 5 miles per hour. (b) If an ELD is required to have a link to the vehicle’s engine ECM, vehicle speed information must be acquired from the engine ECM. Otherwise, vehicle speed information must be acquired using an independent source apart from the positioning services described under section 4.3.1.6 of this appendix and must be accurate within ±3 miles per hour of the CMV’s true ground speed for purposes of determining the in-motion state for the CMV. 4.3.1.3. Vehicle Miles (a) An ELD must monitor vehicle miles as accumulated by a CMV over the course of an ignition power on cycle (accumulated vehicle miles) and over the course of CMV’s operation (total vehicle miles). Vehicle miles information must use or must be converted to units of whole miles. (b) If the ELD is required to have a link to the vehicle’s engine ECM as specified in section 4.2 of this appendix: (1) The ELD must monitor the engine ECM’s odometer message broadcast and use it to log total vehicle miles information; and (2) The ELD must use the odometer message to determine accumulated vehicle miles since engine’s last power on instance. (c) If the ELD is not required to have a link to the vehicle’s engine ECM as specified in section 4.2 of this appendix, the accumulated VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 vehicle miles indication must be obtained or estimated from a source that is accurate to within ±10% of miles accumulated by the CMV over a 24-hour period as indicated on the vehicle’s odometer display. 4.3.1.4. Engine Hours (a) An ELD must monitor engine hours of the CMV over the course of an ignition power on cycle (elapsed engine hours) and over the course of the total engine hours of the CMV’s operation. Engine hours must use or must be converted to hours in intervals of a tenth of an hour. (b) If an ELD is required to have a link to the vehicle’s engine ECM, the ELD must monitor the engine ECM’s total engine hours message broadcast and use it to log total engine hours information. Otherwise, engine hours must be obtained or estimated from a source that monitors the ignition power of the CMV and must be accurate within ±0.1 hour of the engine’s total operation within a given ignition power on cycle. 4.3.1.5. Date and Time (a) The ELD must obtain and record the date and time information automatically without allowing any external input or interference from a motor carrier, driver, or any other person. (b) The ELD time must be synchronized to Coordinated Universal Time (UCT) and the absolute deviation from UCT must not exceed 10 minutes at any point in time. 4.3.1.6. CMV Position (a) An ELD must determine automatically the position of the CMV in standard latitude/ longitude coordinates with the accuracy and availability requirements of this section. (b) The ELD must obtain and record this information without allowing any external input or interference from a motor carrier, driver, or any other person. (c) CMV position measurement must be accurate to ±0.5 mile of absolute position of the CMV when an ELD measures a valid latitude/longitude coordinate value. (d) Position information must be obtained in or converted to standard signed latitude and longitude values and must be expressed as decimal degrees to hundreds of a degree precision (i.e., a decimal point and two decimal places). (e) Measurement accuracy combined with the reporting precision requirement implies that position reporting accuracy will be on the order of ±1mile of absolute position of the CMV during the course of a CMV’s commercial operation. (f) During periods of a driver’s indication of personal use of the CMV, the measurement reporting precision requirement is reduced to PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 tenths of a degree (i.e., a decimal point and single decimal place) as further specified in section 4.7.3 of this appendix. (g) An ELD must be able to acquire a valid position measurement at least once every 5 miles of driving; however, the ELD records CMV location information only during ELD events as specified in section 4.5.1 of this appendix. 4.3.1.7. CMV VIN The vehicle identification number (VIN) for the power unit of a CMV must be automatically obtained from the engine ECM and recorded if it is available on the vehicle databus. 4.3.2. Driver’s Manual Entries (a) An ELD must prompt the driver to input information into the ELD only when the CMV is stationary and driver’s duty status is not on-duty driving, except for the condition specified in section 4.4.1.2 of this appendix. (b) If the driver’s duty status is driving, an ELD must only allow the driver who is operating the CMV to change the driver’s duty status to another duty status. (c) A stopped vehicle must maintain zero (0) miles per hour speed to be considered stationary for purposes of information entry into an ELD. (d) An ELD must allow an authenticated co-driver who is not driving, but who has logged into the ELD prior to the vehicle being in motion, to make entries over his or her own records when the vehicle is in motion. The ELD must not allow co-drivers to switch driving roles when the vehicle is in motion. 4.3.2.1. Driver’s Entry of Required Event Data Fields (a) An ELD must provide a means for a driver to enter information pertaining to the driver’s ELD records manually, e.g., CMV power unit number, as specified in section 7.4 of this appendix; trailer number(s), as specified in section 7.42; and shipping document number, as specified in section 7.39. (b) If the motor carrier populates these fields automatically, the ELD must provide means for the driver to review such information and make corrections as necessary. 4.3.2.2. Driver’s Status Inputs 4.3.2.2.1. Driver’s Indication of Duty Status (a) An ELD must provide a means for the authenticated driver to select a driver’s duty status. (b) The ELD must use the ELD duty status categories listed in Table 1 of this appendix. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 78393 Table 2 of this appendix. This list must be supported independent of the duty status categories described in section 4.3.2.2.1 of this appendix. (b) An ELD must allow a driver to select only categories that a motor carrier enables by configuration for that driver, as described in section 4.3.3.1.1 of this appendix. (c) An ELD must only allow one category to be selected at any given time and use the latest selection by the driver. (d) The ELD must prompt the driver to enter an annotation upon selection of a category from Table 2 of this appendix and record the driver’s entry. (e) A driver’s indication of special driving situation must reset to none if the ELD or CMV’s engine goes through a power off cycle (ELD or CMV’s engine turns off and then on) except if the driver has indicated authorized personal use of CMV. If the driver has indicated authorized personal use of the CMV, the ELD must require confirmation of continuation of the authorized personal use of CMV condition by the driver. If not confirmed by the driver and the vehicle is in motion, the ELD must default to none. (b) An ELD must only allow the authenticated driver to certify records associated with that driver. (c) If any edits are necessary after the driver certifies the records for a given 24hour period, the ELD must require and prompt the driver to re-certify the updated records. (d) If there are any past records on the ELD (excluding the current 24-hour period) that require certification or re-certification by the driver, the ELD must indicate the required driver action on the ELD’s display and prompt the driver to take the necessary action during the login and logout processes. 4.3.2.5. Driver’s Entry of an Output File Comment An ELD must accommodate the entry of an output file comment up to 60 characters long. If an authorized safety official provides a key phrase or code during an inspection to be included in the output file comment, it must be entered and embedded in the electronic ELD records in the exchanged dataset as specified in section 4.8.2.1.1 of this appendix. The default value for the output file comment must be blank. This output file comment must be used only for the creation of the related data files for the intended time, place, and ELD user. 4.3.2.6. Driver’s Annotation of Records (a) An ELD must allow a driver to add annotations in text format to recorded, entered, or edited ELD events. (b) The ELD must require annotations to be 4 characters or longer, including embedded spaces if driver annotation is required and driver is prompted by the ELD. 4.3.2.7. Driver’s Entry of Location Information (a) An ELD must allow manual entry of a CMV’s location by the driver in text format in support of the driver edit requirements described in section 4.3.2.8 of this appendix. (b) The driver’s manual location entry must be available as an option to a driver only when prompted by the ELD under allowed conditions as described in section 4.6.1.4 of this appendix. (c) A manual location entry must show ‘‘M’’ in the latitude/longitude coordinates fields in ELD records. tkelley on DSK9F6TC42PROD with RULES2 4.3.2.3. Driver’s Certification of Records (a) An ELD must include a function whereby a driver can certify the driver’s records at the end of a 24-hour period. (1) This function, when selected, must display a statement that reads ‘‘I hereby certify that my data entries and my record of duty status for this 24-hour period are true and correct.’’ (2) An ELD must prompt the driver to select ‘‘Agree’’ or ‘‘Not ready.’’ An ELD must record the driver’s affirmative selection of ‘‘Agree’’ as an event. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 4.3.2.4. Driver’s Data Transfer Initiation Input (a) An ELD must provide a standardized single-step driver interface for compilation of driver’s ELD records and initiation of the data transfer to authorized safety officials when requested during a roadside inspection. (b) The ELD must input the data transfer request from the driver, require confirmation, present and request selection of the supported data transfer options by the ELD, and prompt for entry of the output file comment as specified in section 4.3.2.5 of this appendix. Upon confirmation, the ELD must generate the compliant output file and perform the data transfer. (c) The supported single-step data transfer initiation mechanism (such as a switch or an icon on a touch-screen display) must be clearly marked and visible to the driver when the vehicle is stopped. PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.002</GPH> a period when the driver may use the CMV for authorized personal use or for performing yard moves. The ELD must acquire this status in a standard format from the category list in ER16DE15.001</GPH> 4.3.2.2.2. Driver’s Indication of Situations Impacting Driving Time Recording (a) An ELD must provide the means for a driver to indicate the beginning and end of 78394 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 4.3.2.8. Driver’s Record Entry/Edit (a) An ELD must provide a mechanism for a driver to review, edit, and annotate the driver’s ELD records when a notation of errors or omissions is necessary or enter the driver’s missing ELD records subject to the requirements specified in this section. (b) An ELD must not permit alteration or erasure of the original information collected concerning the driver’s ELD records or alteration of the source data streams used to provide that information. 4.3.2.8.1. Mechanism for Driver Edits and Annotations (a) If a driver edits or annotates an ELD record or enters missing information, the act must not overwrite the original record. (b) The ELD must use the process outlined in section 4.4.4.2 of this appendix to configure required event attributes to track the edit history of records. (c) Driver edits must be accompanied by an annotation. The ELD must prompt the driver to annotate edits. 4.3.2.8.2. Driver Edit Limitations (a) An ELD must not allow or require the editing or manual entry of records with the following event types, as described in section 7.25 of this appendix: Event type Description 2 ........... 5 ........... 6 ........... An intermediate log, A driver’s login/logout activity, CMV’s engine power up/shut down, or ELD malfunctions and data diagnostic events. tkelley on DSK9F6TC42PROD with RULES2 7 ........... (b) An ELD must not allow automatically recorded driving time to be shortened or the ELD username associated with an ELD record to be edited or reassigned, except under the following circumstances: (1) Assignment of Unidentified Driver records. ELD events recorded under the ‘‘Unidentified Driver’’ profile may be edited and assigned to the driver associated with the record; and (2) Correction of errors with team drivers. In the case of team drivers, the driver account associated with the driving time records may be edited and reassigned between the team drivers if there was a mistake resulting in a mismatch between the actual driver and the driver recorded by the ELD and if both team drivers were respectively indicated in each other’s records as a co-driver. The ELD must require each co-driver to confirm the change for the corrective action to take effect. 4.3.3. Motor Carrier’s Manual Entries An ELD must restrict availability of motor carrier entries outlined in this section only to authenticated ‘‘support personnel’’ account holders. 4.3.3.1. ELD Configuration If an ELD or a technology that includes an ELD function offers configuration options to the motor carrier or the driver that are not otherwise addressed or prohibited in this appendix, the configuration options must not affect the ELD’s compliance with the VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 requirements of this rule for each configuration setting of the ELD. 4.3.3.1.1. Configuration of Available Categories Impacting Driving Time Recording (a) An ELD must allow a motor carrier to unilaterally configure the availability of each of the three categories listed on Table 2 of this appendix that the motor carrier chooses to authorize for each of its drivers. By default, none of these categories must be available to a new driver account without the motor carrier proactively configuring their availability. (b) A motor carrier may change the configuration for the availability of each category for each of its drivers. Changes to the configuration setting must be recorded on the ELD and communicated to the applicable authenticated driver during the ELD login process. 4.3.3.1.2. Configuration of Using ELDs (a) An ELD must provide the motor carrier the ability to configure a driver account exempt from use of an ELD. (b) The ELD must default the setting of this configuration option for each new driver account created on an ELD to ‘‘no exemption.’’ (c) An exemption must be proactively configured for an applicable driver account by the motor carrier. The ELD must prompt the motor carrier to annotate the record and provide an explanation for the configuration of exemption. (d) If a motor carrier configures a driver account as exempt (1) The ELD must present the configured indication that is in effect for that driver during the ELD login and logout processes. (2) The ELD must continue to record ELD driving time but suspend detection of missing data elements data diagnostic event for the driver described in section 4.6.1.5 of this appendix and data transfer compliance monitoring function described in section 4.6.1.7 when such driver is authenticated on the ELD. 4.3.3.1.3 Motor Carrier’s Post-Review Electronic Edit Requests (a) An ELD may allow the motor carrier (via a monitoring algorithm or support personnel) to screen, review, and request corrective edits to the driver’s certified (as described in section 4.3.2.3 of this appendix) and submitted records through the ELD system electronically. If this function is implemented by the ELD, the ELD must also support functions for the driver to see and review the requested edits. (b) Edits requested by anyone or any system other than the driver must require the driver’s electronic confirmation or rejection. 4.4. ELD Processing and Calculations 4.4.1. Conditions for Automatic Setting of Duty Status 4.4.1.1. Automatic Setting of Duty Status to Driving An ELD must automatically record driving time when the vehicle is in motion by setting duty status to driving for the driver unless, before the vehicle is in motion, the driver: (a) Sets the duty status to off-duty and indicates personal use of CMV, in which case PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 duty status must remain off-duty until driver’s indication of the driving condition ends; or (b) Sets the duty status to on-duty not driving and indicates yard moves, in which case duty status must remain on-duty not driving until driver’s indication of the driving condition ends. 4.4.1.2. Automatic Setting of Duty Status to On-Duty Not Driving When the duty status is set to driving, and the CMV has not been in-motion for 5 consecutive minutes, the ELD must prompt the driver to confirm continued driving status or enter the proper duty status. If the driver does not respond to the ELD prompt within 1-minute after receiving the prompt, the ELD must automatically switch the duty status to on-duty not driving. The time thresholds for purposes of this section must not be configurable. 4.4.1.3. Other Automatic Duty-Status Setting Actions Prohibited An ELD must not feature any other automatic records of duty setting mechanism than those described in sections 4.4.1.1 and 4.4.1.2 of this appendix. Duty status changes that are not initiated by the driver, including duty status alteration recommendations by motor carrier support personnel or a software algorithm, are subject to motor carrier edit requirements in section 4.3.3.1.3. 4.4.2. Geo-Location Conversions (a) For each change in duty status, the ELD must convert automatically captured vehicle position in latitude/longitude coordinates into geo-location information, indicating approximate distance and direction to an identifiable location corresponding to the name of a nearby city, town, or village, with a State abbreviation. (b) Geo-location information must be derived from a database that contains all cities, towns, and villages with a population of 5,000 or greater and listed in ANSI INCITS 446–2008 (R2013) (incorporated by reference, see § 395.38). (c) An ELD’s viewable outputs (such as printouts or display) must feature geolocation information as place names in text format. 4.4.3. Date and Time Conversions (a) An ELD must have the capability to convert and track date and time captured in UTC standard to the time standard in effect at driver’s home terminal, taking the daylight savings time changes into account by using the parameter ‘‘Time Zone Offset from UTC’’ as specified in section 7.41 of this appendix. (b) An ELD must record the driver’s record of duty status using the time standard in effect at the driver’s home terminal for a 24hour period beginning with the time specified by the motor carrier for that driver’s home terminal. (c) The data element ‘‘Time Zone Offset from UTC’’ must be included in the ‘‘Driver’s Certification of Own Records’’ events as specified in section 4.5.1.4 of this appendix. 4.4.4. Setting of Event Parameters in Records, Edits, and Entries This section describes the security measures for configuring and tracking event E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations attributes for ELD records, edits, and entries in a standardized manner. 4.4.4.1. Event Sequence Identifier (ID) Number (a) Each ELD event must feature an event sequence ID number. (1) The event sequence ID number for each ELD event must use continuous numbering across all users of that ELD and across engine and ELD power on and off cycles. (2) An ELD must use the next available event sequence ID number (incremented by one) each time a new event log is recorded. (3) The event sequence ID number must track at least the last 65,536 unique events recorded on the ELD. (b) The continuous event sequence ID numbering structure used by the ELD must be mapped into a continuous hexadecimal number between 0000 (Decimal 0) and FFFF (Decimal 65535). 4.4.4.2. Event Record Status, Event Record Origin, Event Type Setting (a) An ELD must retain the original records even when allowed edits and entries are made over a driver’s ELD records. (b) An ELD must keep track of all event record history, and the process used by the ELD must produce the event record status, event record origin, and event type for the ELD records in the standard categories specified in sections 7.23, 7.22, and 7.25 of this appendix, respectively for each record as a standard security measure. For example, an ELD may use the process outlined in sections 4.4.4.2.1–4.4.4.2.6 to meet the requirements of this section. 4.4.4.2.1. Records Automatically Logged by ELD At the instance an ELD creates a record automatically, the ELD must: (a) Set the ‘‘Event Record Status’’ to ‘‘1’’ (active); and (b) Set the ‘‘Event Record Origin’’ to ‘‘1’’ (automatically recorded by ELD). 4.4.4.2.2. Driver Edits At the instance of a driver editing existing record(s), the ELD must: (a) Identify the ELD record(s) being modified for which the ‘‘Event Record Status’’ is currently set to ‘‘1’’ (active); (b) Acquire driver input for the intended edit and construct the ELD record(s) that will replace the record(s) identified in paragraph 4.4.4.2.2(a) of this appendix; (c) Set the ‘‘Event Record Status’’ of the ELD record(s) identified in paragraph 4.4.4.2.2(a) of this appendix, which is being modified, to ‘‘2’’ (inactive-changed); (d) Set the ‘‘Event Record Status’’ of the ELD record(s) constructed in paragraph 4.4.4.2.2(b) of this appendix to ‘‘1’’ (active); and (e) Set the ‘‘Event Record Origin’’ of the ELD record(s) constructed in paragraph 4.4.4.2.2(b) of this appendix to ‘‘2’’ (edited or entered by the driver). 4.4.4.2.3. Driver Entries When a driver enters missing record(s), the ELD must: (a) Acquire driver input for the missing entries being implemented and construct the new ELD record(s) that will represent the driver entries; VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 (b) Set the ‘‘event record status’’ of the ELD record(s) constructed in paragraph 4.4.4.2.3(a) of this appendix to ‘‘1’’ (active); and (c) Set the ‘‘event record origin’’ of the ELD record(s) constructed in paragraph 4.4.4.2.3(a) of this appendix to ‘‘2’’ (edited or entered by the driver). 4.4.4.2.4. Driver’s Assumption of Unidentified Driver Logs When a driver reviews and assumes ELD record(s) logged under the unidentified driver profile, the ELD must: (a) Identify the ELD record(s) logged under the unidentified driver profile that will be reassigned to the driver; (b) Use elements of the unidentified driver log(s) from paragraph 4.4.4.2.4(a) of this appendix and acquire driver input to populate missing elements of the log originally recorded under the unidentified driver profile, and construct the new event record(s) for the driver; (c) Set the event record status of the ELD record(s) identified in paragraph 4.4.4.2.4(a) of this appendix, which is being modified, to ‘‘2’’ (inactive–changed); (d) Set the event record status of the ELD record(s) constructed in paragraph 4.4.4.2.4(b) of this appendix to ‘‘1’’ (active); and (e) Set the event record origin of the ELD record(s) constructed in paragraph 4.4.4.2.4(b) of this appendix to ‘‘4’’ (assumed from unidentified driver profile). 4.4.4.2.5. Motor Carrier Edit Suggestions If a motor carrier requests an edit on a driver’s records electronically, the ELD must: (a) Identify the ELD record(s) the motor carrier requests to be modified for which the ‘‘event record status’’ is currently set to ‘‘1’’ (active); (b) Acquire motor carrier input for the intended edit and construct the ELD record(s) that will replace the record identified in paragraph 4.4.4.2.5(a) of this appendix—if approved by the driver; (c) Set the event record status of the ELD record(s) in paragraph 4.4.4.2.5(b) of this appendix to ‘‘3’’ (inactive–change requested); and (d) Set the event record origin of the ELD record constructed in paragraph 4.4.4.2.5(b) of this appendix to ‘‘3’’ (edit requested by an authenticated user other than the driver). 4.4.4.2.6. Driver’s Actions Over Motor Carrier Edit Suggestions (a) If edits are requested by the motor carrier, the ELD must allow the driver to review the requested edits and indicate on the ELD whether the driver confirms or rejects the requested edit(s). (b) If the driver approves the motor carrier’s edit suggestion the ELD must: (1) Set the event record status of the ELD record(s) identified under paragraph 4.4.4.2.5 (a) of this appendix being modified, to ‘‘2’’ (inactive–changed); and (2) Set the ‘‘event record status’’ of the ELD record(s) constructed in paragraph 4.4.4.2.5 (b) of this appendix to ‘‘1’’ (active). (c) If the driver disapproves the motor carrier’s edit(s) suggestion, the ELD must set the ‘‘event record status’’ of the ELD record(s) PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 78395 identified in paragraph 4.4.4.2.5 (b) of this appendix to ‘‘4’’ (inactive–change rejected). 4.4.5. Data Integrity Check Functions (a) An ELD must support standard security measures that require the calculation and recording of standard data check values for each ELD event recorded, for each line of the output file, and for the entire data file to be generated for transmission to an authorized safety official or the motor carrier. (b) For purposes of implementing data check calculations, the alphanumeric-tonumeric mapping provided in Table 3 of this appendix must be used. (c) Each ELD event record type specified in sections 4.5.1.1 and 4.5.1.3 of this appendix must include an event data check value, which must be calculated as specified in section 4.4.5.1. An event data check value must be calculated at the time of the following instances and must accompany that event record thereafter: (1) When an event record is automatically created by the ELD; (2) When an authorized edit is performed by the driver on the ELD; (3) When an electronic edit proposal is created by the motor carrier through the ELD system. (d) Each line of the ELD output file must include a line data check value, which must be calculated as specified in section 4.4.5.2 of this appendix. (e) Each ELD report must also include a file data check value, which must be calculated as specified in section 4.4.5.3 of this appendix. 4.4.5.1. Event Data Check The event data check value must be calculated as follows. 4.4.5.1.1. Event Checksum Calculation (a) A checksum calculation includes the summation of numeric values or mappings of a specified group of alphanumeric data elements. The ELD must calculate an event checksum value associated with each ELD event at the instance of the event record being created. (b) The event record elements that must be included in the checksum calculation are the following: (1) <Event Type>, (2) <Event Code>, (3) <Event Date>, (4) <Event Time>, (5) <Vehicle Miles>, (6) <Engine Hours>, (7) <Event Latitude>, (8) <Event Longitude>, (9) <CMV number>, and (10) <ELD username>. (c) The ELD must sum the numeric values of all individual characters making up the listed data elements using the character to decimal value coding specified in Table 3 of this appendix, and use the 8-bit lower byte of the hexadecimal representation of the summed total as the event checksum value for that event. 4.4.5.1.2. Event Data Check Calculation The event data check value must be the hexadecimal representation of the output 8bit byte, after the below bitwise operations E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 are performed on the binary representation of the event checksum value, as set forth below: (a) Three consecutive circular shift left (rotate no carry -left) operations; and (b) A bitwise exclusive OR (XOR) operation with the hexadecimal value C3 (decimal 195; binary 11000011). 4.4.5.2. Line Data Check A line data check value must be calculated at the time of the generation of the ELD output file, to transfer data to authorized safety officials or to catalogue drivers’ ELD records at a motor carrier’s facility. A line data check value must be calculated as follows. 4.4.5.2.1. Line Checksum Calculation (a) The ELD must calculate a line checksum value associated with each line of ELD output file at the instance when an ELD output file is generated. (b) The data elements that must be included in the line checksum calculation vary as per the output data file specified in section 4.8.2.1 of this appendix. (c) The ELD must convert each character featured in a line of output using the character to decimal value coding specified on Table 3 of this appendix and sum the converted numeric values of each character listed on a given ELD output line item (excluding the line data check value being calculated), and use the 8-bit lower byte VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 value of the hexadecimal representation of the summed total as the line checksum value for that line of output. 4.4.5.2.2. Line Data Check Calculation The line data check value must be calculated by performing the following operations on the binary representation of the line checksum value as follows: (a) Three consecutive circular shift left (rotate no carry -left) operations on the line checksum value; and (b) A bitwise XOR operation with the hexadecimal value 96 (decimal 150; binary 10010110). 4.4.5.2.3. Line Data Check Value Inclusion in Output File The calculated line data check value must be appended as the last line item of each of the individual line items of the ELD output file as specified in the output file format in section 4.8.2.1 of this appendix. 4.4.5.3. File Data Check A file data check value must also be calculated at the time of the creation of an ELD output file. A file data check value must be calculated as follows. 4.4.5.3.1. File Checksum Calculation (a) The ELD must calculate a single 16-bit file checksum value associated with an ELD output file at the instance when an ELD output file is generated. PO 00000 Frm 00106 Fmt 4701 Sfmt 4725 (b) The file data check value calculation must include all individual line data check values contained in that file. (c) The ELD must sum all individual line data check values contained in a data file output created, and use the lower two 8-bit byte values of the hexadecimal representation of the summed total as the ‘‘file checksum’’ value. 4.4.5.3.2. File Data Check Value Calculation (a) The file data check value must be calculated by performing the following operations on the binary representation of the file checksum value: (1) Three consecutive circular shift left (aka rotate no carry -left) operations on each 8-bit bytes of the value; and (2) A bitwise XOR operation with the hexadecimal value 969C (decimal 38556; binary 1001011010011100). (b) The file data check value must be the 16-bit output obtained from the above process. 4.4.5.3.3. File Data Check Value Inclusion in Output File The calculated 16-bit file data check value must be converted to hexadecimal 8-bit bytes and must be appended as the last line item of the ELD output file as specified in the output file format in section 4.8.2.1.11 of this appendix. E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.003</GPH> 78396 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 4.5. ELD Recording 4.5.1. Events and Data To Record An ELD must record data at the following discrete events: 4.5.1.1. Event: Change in Driver’s Duty Status When a driver’s duty status changes, the ELD must associate the record with the driver, the record originator—if created during an edit or entry—the vehicle, the motor carrier, and the shipping document number and must include the following data elements: (a) <Event Sequence ID Number> as described in section 7.24 of this appendix; (b) <Event Record Status> as described in section 7.23; (c) <Event Record> Origin as described in section 7.22; (d) <Event Type> as described in section 7.25; (e) <Event Code as described in section 7.20; (f) <{Event} Date> as described in section 7.8; (g) <{Event} Time> as described in section 7.40; (h) <{Accumulated} Vehicle Miles> as described in section 7.43; (i) <{Elapsed}> Engine Hours as described in section 7.19; (j) <{Event}> Latitude as described in section 7.31; (k) <{Event}> Longitude as described in section 7.33; (l) <Distance Since Last Valid Coordinates> as described in section 7.9; (m) <Malfunction Indicator Status {for ELD}> as described in section 7.35; (n) <Data Diagnostic Event Indicator Status {for Driver}> as described in section 7.7; (o) <{Event}> Comment/Annotation as described in section 7.6; (p) <Driver’s Location Description> as described in section 7.12; and (q) <Event Data Check Value> as described in section 7.21. 4.5.1.2. Event: Intermediate Logs tkelley on DSK9F6TC42PROD with RULES2 (a) When a CMV is in motion, as described in section 4.3.1.2 of this appendix, and there has not been a duty status change event or another intermediate log event recorded in the previous 1-hour period, the ELD must record a new intermediate log event. (b) The ELD must associate the record to the driver, the vehicle, the motor carrier, and the shipping document number, and must include the same data elements outlined in section 4.5.1.1 of this appendix except for item (p) in section 4.5.1.1. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 4.5.1.3. Event: Change in Driver’s Indication of Allowed Conditions That Impact Driving Time Recording (a) At each instance when the status of a driver’s indication of personal use of CMV or yard moves changes, the ELD must record a new event. (b) The ELD must associate the record with the driver, the vehicle, the motor carrier, and the shipping document number, and must include the same data elements outlined in section 4.5.1.1 of this appendix. 4.5.1.4. Event: Driver’s Certification of Own Records (a) At each instance when a driver certifies or re-certifies that the driver’s records for a given 24-hour period are true and correct, the ELD must record the event. (b) The ELD must associate the record with the driver, the vehicle, the motor carrier, and the shipping document number and must include the following data elements: (1)<Event Sequence ID Number> as described in section 7.24 of this appendix; (2)<Event Type> as described in section 7.25; (3)<Event Code> as described in section 7.20; (4)<Time Zone Offset from UTC> as described in section 7.41. (5) <{Event} Date> and <Date {of the certified record}> as described in section 7.8; and (6) <{Event} Time> as described in section 7.40. 4.5.1.5. Event: Driver’s Login/Logout Activity (a) At each instance when an authorized user logs in and out of the ELD, the ELD must record the event. (b) The ELD must associate the record with the driver, the vehicle, the motor carrier, and the shipping document number, and must include the following data elements: (1) <Event Sequence ID Number> as described in section 7.24 of this appendix; (2) <Event Type> as described in section 7.25; (3) <Event Code> as described in section 7.20; (4) <{Event} Date> as described in section 7.8; (5) <{Event} Time> as described in section 7.40; (6) <{Total} Vehicle Miles> as described in section 7.43; and (7) <{Total} Engine Hours> as described in section 7.19. 4.5.1.6. Event: CMV’s Engine Power Up and Shut Down Activity (a) When a CMV’s engine is powered up or shut down, an ELD must record the event within 1 minute of occurrence and retain the earliest shut down and latest power-up event PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 78397 if the CMV has not moved since the last ignition power on cycle. (b) The ELD must associate the record with the driver or the unidentified driver profile, the vehicle, the motor carrier, and the shipping document number, and must include the following data elements: (1) <Event Sequence ID Number> as described in section 7.24 of this appendix; (2) <Event Type> as described in section 7.25; (3) <Event Code> as described in section 7.20; (4) <{Event} Date> as described in section 7.8; (5) <{Event} Time> as described in section 7.40; (6) <{Total} Vehicle Miles> as described in section 7.43; (7) <{Total} Engine Hours> as described in section 7.19; (8) <{Event} Latitude> as described in section 7.31; (9) <{Event} Longitude> as described in section 7.33; and (10) <Distance Since Last Valid Coordinates> as described in section 7.9. 4.5.1.7. Event: ELD Malfunction and Data Diagnostics Occurrence (a) At each instance when an ELD malfunction or data diagnostic event is detected or cleared by the ELD, the ELD must record the event. (b) The ELD must associate the record with the driver, the vehicle, the motor carrier, and the shipping document number, and must include the following data elements: (1) <Event Sequence ID Number> as described in section 7.24 of this appendix; (2) <Event Type> as described in section 7.25; (3) <Event Code> as described in section 7.20; (4) <Malfunction/Diagnostic Code> as described in section 7.34; (5) <{Event} Date> as described in section 7.8; (6) <{Event} Time> as described in section 7.40; (7) <{Total} Vehicle Miles> as described in section 7.43; and (8) <{Total} Engine Hours> as described in section 7.19. 4.6. ELD’s Self-Monitoring of Required Functions An ELD must have the capability to monitor its compliance with the technical requirements of this section for the detectable malfunctions and data inconsistencies listed in Table 4 of this appendix and must keep records of its malfunction and data diagnostic event detection. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 4.6.1. Compliance Self-Monitoring, Malfunctions and Data Diagnostic Events tkelley on DSK9F6TC42PROD with RULES2 4.6.1.1. Power Compliance Monitoring (a) An ELD must monitor data it receives from the engine ECM or alternative sources as allowed in sections 4.3.1.1–4.3.1.4 of this appendix, its onboard sensors, and data record history to identify instances when it may not have complied with the power requirements specified in section 4.3.1.1, in which case, the ELD must record a power data diagnostics event for the corresponding driver(s), or under the unidentified driver profile if no drivers were authenticated at the time of detection. (b) An ELD must set a power compliance malfunction if the power data diagnostics event described in paragraph 4.6.1.1(a) of this appendix indicates an aggregated in-motion driving time understatement of 30 minutes or more on the ELD over a 24-hour period across all driver profiles, including the unidentified driver profile. 4.6.1.2. Engine Synchronization Compliance Monitoring (a) An ELD must monitor the data it receives from the engine ECM or alternative sources as allowed in sections 4.3.1.1–4.3.1.4 of this appendix, its onboard sensors, and data record history to identify instances and durations of its non-compliance with the ELD engine synchronization requirement specified in section 4.2. (b) An ELD required to establish a link to the engine ECM as described in section 4.2 must monitor its connectivity to the engine ECM and its ability to retrieve the vehicle VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 parameters described under section 4.3.1 of this appendix and must record an enginesynchronization data diagnostics event when it no longer can acquire updated values for the ELD parameters required for records within 5 seconds of the need. (c) An ELD must set an engine synchronization compliance malfunction if connectivity to any of the required data sources specified in section 4.3.1 of this appendix is lost for more than 30 minutes during a 24-hour period aggregated across all driver profiles, including the unidentified driver profile. 4.6.1.3. Timing Compliance Monitoring The ELD must periodically cross-check its compliance with the requirement specified in section 4.3.1.5 of this appendix with respect to an accurate external UTC source and must record a timing compliance malfunction when it can no longer meet the underlying compliance requirement. 4.6.1.4. Positioning Compliance Monitoring (a) An ELD must continually monitor the availability of valid position measurements meeting the listed accuracy requirements in section 4.3.1.6 of this appendix and must track the distance and elapsed time from the last valid measurement point. (b) ELD records requiring location information must use the last valid position measurement and include the latitude/ longitude coordinates and distance traveled, in miles, since the last valid position measurement. (c) An ELD must monitor elapsed time during periods when the ELD fails to acquire a valid position measurement within 5 miles PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 of the CMV’s movement. When such elapsed time exceeds a cumulative 60 minutes over a 24 hour period, the ELD must set and record a positioning compliance malfunction. (d) If a new ELD event must be recorded at an instance when the ELD had failed to acquire a valid position measurement within the most recent elapsed 5 miles of driving, but the ELD has not yet set a positioning compliance malfunction, the ELD must record the character ‘‘X’’ in both the latitude and longitude fields, unless location is entered manually by the driver, in which case it must log the character ‘‘M’’ instead. Under the circumstances listed in this paragraph, if the ELD event is due to a change in duty status for the driver, the ELD must prompt the driver to enter location manually in accordance with section 4.3.2.7 of this appendix. If the driver does not enter the location information and the vehicle is in motion, the ELD must record a missing required data element data diagnostic event for the driver. (e) If a new ELD event must be recorded at an instance when the ELD has set a positioning compliance malfunction, the ELD must record the character ‘‘E’’ in both the latitude and longitude fields regardless of whether the driver is prompted and manually enters location information. 4.6.1.5. Data Recording Compliance Monitoring (a) An ELD must monitor its storage capacity and integrity and must detect a data recording compliance malfunction if it can no longer record or retain required events or E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.004</GPH> 78398 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations retrieve recorded logs that are not otherwise catalogued remotely by the motor carrier. (b) An ELD must monitor the completeness of the ELD event record information in relation to the required data elements for each event type and must record a missing data elements data diagnostics event for the driver if any required field is missing at the time of recording. 4.6.1.6. Monitoring Records Logged Under the Unidentified Driver Profile (a) When there are ELD records involving driving time logged on an ELD under the unidentified driver profile, the ELD must prompt the driver(s) logging in with a warning indicating the existence of new unassigned driving time. (b) The ELD must provide a mechanism for the driver to review and either acknowledge the assignment of one or more of the unidentified driver records attributable to the driver under the authenticated driver’s profile as described in paragraph 4.3.2.8.2(b)(1) of this appendix or indicate that these records are not attributable to the driver. (c) If more than 30 minutes of driving in a 24-hour period show unidentified driver on the ELD, the ELD must detect and record an unidentified driving records data diagnostic event and the data diagnostic indicator must be turned on for all drivers logged in to that ELD for the current 24-hour period and the following 7 days. (d) An unidentified driving records data diagnostic event can be cleared by the ELD when driving time logged under the unidentified driver profile for the current 24hour period and the previous 7 consecutive days drops to 15 minutes or less. 4.6.1.7. Data Transfer Compliance Monitoring (a) An ELD must implement in-service monitoring functions to verify that the data transfer mechanism(s) described in section 4.9.1 of this appendix are continuing to function properly. An ELD must verify this functionality at least once every 7 days. These monitoring functions may be automatic or may involve manual steps for a driver. (b) If the monitoring mechanism fails to confirm proper in-service operation of the data transfer mechanism(s), an ELD must record a data transfer data diagnostic event and enter an unconfirmed data transfer mode. (c) After an ELD records a data transfer data diagnostic event, the ELD must increase the frequency of the monitoring function to check at least once every 24-hour period. If the ELD stays in the unconfirmed data transfer mode following the next three consecutive monitoring checks, the ELD must detect a data transfer compliance malfunction. 4.6.1.8. Other Technology-Specific Operational Health Monitoring In addition to the required monitoring schemes described in sections 4.6.1.1–4.6.1.7 of this appendix, the ELD provider may implement additional, technology-specific malfunction and data diagnostic detection schemes and may use the ELD’s malfunction status indicator and data diagnostic status VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 78399 indicator (described in sections 4.6.2.1 and 4.6.3.1) to communicate the ELD’s malfunction or non-compliant state to the operator(s) of the ELD. 4.6.2. ELD Malfunction Status Indicator ELD malfunctions affect the integrity of the device and its compliance; therefore, active malfunctions must be indicated to all drivers who may use that ELD. An ELD must provide a recognizable visual indicator, and may provide an audible signal, to the operator as to its malfunction status. 4.6.2.1. Visual Malfunction Indicator (a) An ELD must display a single visual malfunction indicator for all drivers using the ELD on the ELD’s display or on a standalone indicator. The visual signal must be visible to the driver when the driver is seated in the normal driving position. (b) The ELD malfunction indicator must be clearly illuminated when there is an active malfunction on the ELD. (c) The malfunction status must be continuously communicated to the driver when the ELD is powered. 4.6.3. ELD Data Diagnostic Status Indicator ELD data diagnostic status affects only the authenticated user; therefore, an ELD must only indicate the active data diagnostics status applicable to the driver logged into the ELD. An ELD must provide a recognizable visual indicator, and may provide an audible signal, to the driver as to its data diagnostics status. 4.6.3.1. Visual Data Diagnostics Indicator (a) An ELD must display a single visual data diagnostics indicator, apart from the visual malfunction indicator described in section 4.6.2.1 of this appendix, to communicate visually the existence of active data diagnostics events for the applicable driver. (b) The visual signal must be visible to the driver when the driver is seated in the normal driving position. copies of the driver’s own ELD records if driver’s records reside on or are accessible directly by the ELD unit used by the driver. (c) If an ELD meets the requirements of this section by making data files available to the driver, it must also provide a utility function for the driver to display the data on a computer, at a minimum, as specified in § 395.8(g). 4.7.3. Privacy Preserving Provision for Use During Personal Uses of a CMV (a) An ELD must record the events listed in section 4.5.1 of this appendix under all circumstances. However, when a driver indicates that the driver is temporarily using the CMV for an authorized personal purpose, a subset of the recorded elements must either be omitted in the records or recorded at a lower precision level, as described in further detail below. The driver indicates this intent by setting the driver’s duty status to off-duty, as described in section 4.3.2.2.1, and indicating authorized personal use of CMV as described in section 4.3.2.2.2. (b) During a period when a driver indicates authorized personal use of CMV, the ELD must: (1) Record all new ELD events with latitude/longitude coordinates information rounded to a single decimal place resolution; and (2) Omit recording vehicle miles and engine hours fields in new ELD logs by leaving them blank, except for events corresponding to a CMV’s engine power-up and shut-down activity as described in section 4.5.1.6 of this appendix. (c) A driver’s indication that the CMV is being operated for authorized personal purposes may span more than one CMV ignition on cycle if the driver proactively confirms continuation of the personal use condition prior to placing the vehicle in motion when the ELD prompts the driver at the beginning of the new ignition power on cycle. 4.7. Special Purpose ELD Functions 4.7.1. Driver’s ELD Volume Control (a) If a driver selects the sleeper-berth state for the driver’s record of duty status, and no co-driver has logged into the ELD as on-duty driving, and if the ELD outputs audible signals, the ELD must either: (1) Allow the driver to mute the ELD’s volume or turn off the ELD’s audible output, or (2) Automatically mute the ELD’s volume or turn off the ELD’s audible output. (b) For purposes of this section, if an ELD operates in combination with another device or other hardware or software technology that is not separate from the ELD, the volume controls required herein apply to the combined device or technology. 4.7.2. Driver’s Access to Own ELD Records (a) An ELD must provide a mechanism for a driver to obtain a copy of the driver’s own ELD records on demand, in either an electronic or printout format compliant with inspection standards outlined in section 4.8.2.1 of this appendix. (b) The process must not require a driver to go through the motor carrier to obtain 4.8. ELD Outputs 4.8.1. Printout or Display The ELD must be able to generate a compliant report as specified in this section, either as a printout or on a display. 4.8.1.1. Print Paper Requirements Print paper must be able to accommodate the graph grid specifications as listed in section 4.8.1.3 of this appendix. 4.8.1.2. Display Requirements (a) This section does not apply if an ELD produces a printout for use at a roadside inspection. (b) An ELD must be designed so that its display may be reasonably viewed by an authorized safety official without entering the commercial motor vehicle. For example, the display may be untethered from its mount or connected in a manner that would allow it to be passed outside of the vehicle for a reasonable distance. 4.8.1.3. Information To Be Shown on the Printout and Display at Roadside (a) The printout and display must show reports for the inspected driver’s profile and the unidentified driver profile separately. If PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 78400 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Sleeper Berth <Total Hours {logged in Sleeper berth status}> Driving <Total Hours {logged in Driving status}> On duty not driving <Total Hours {logged in on-duty not driving status}> Miles Today <Vehicle Miles {Driven Today}> [For Each Row of Driver’s Record Certification Events] Time: <{Event} Time> Location: <Geo-Location># Odometer: <{Total} Vehicle Miles> Engine Hours: <{Total} Engine Hours> Event: <Date {of the certified record}> Origin: Driver Comment: <{Event} Comment/Annotation> [For Each Row of Malfunctions and Data Diagnostic Events] Time: <{Event} Time> Location: <Geo-Location># Odometer: <{Total}Vehicle Miles> Engine Hours: <{Total}Engine Hours> Event: <Event Type> Origin: <Event Record Origin> Comment: <{Event} Comment/Annotation> [For Each Row of ELD Login/Logout Events] Time: <{Event} Time> Location: <Geo-Location># Odometer: <{Total}Vehicle Miles> Engine Hours: <{Total}Engine Hours> Event: <Event Type> Origin: <ELD username> Comment: <{Event} Comment/Annotation> [For Each Row of CMV Engine Power up/ Shut Down Events] Time: <{Event} Time> (24 hours) VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.006</GPH> Driver’s Data Diagnostic Status: <Data Diagnostic Event Status {and Diagnostic Description}{for Driver}> Date: <Date {of Printout or Display}> Change of Duty Status, Intervening Interval Records and Change in Driver’s Indication of Special Driving Conditions: <Event Record Status>,<Event Record Origin>,<Event Type>,<{Event} Date>, <{Event} Time>,<{Accumulated} Vehicle Miles>,<{Elapsed} Engine Hours>,<GeoLocation>#,<{Event} Comment/ Annotation> <Event Sequence ID Number>,<Event Record Status>,<Event Record Origin>,<Event Type>,<Event Code>,<{Event} Date>,<{Event} Time>,<{Accumulated} Vehicle Miles>,<{Elapsed} Engine Hours>,<Geo-Location>#,<{Event} Comment/Annotation> # ‘‘<Geo-location> must be substituted with ‘‘<Driver’s Location Description>’’ field for manual entries and with ‘‘<{blank}>’’ field for intervening logs. ER16DE15.005</GPH> Driver License Number: <{Driver} Driver License Number> Co-Driver: <{Co-Driver’s} Last Name>, <{CoDriver’s} First Name> Co-Driver ID: < ELD username{for the codriver}> Current Odometer: <{Current}{Total} Vehicle Miles> Current Engine Hours: <{Current}{Total} Engine Hours> ELD ID: <ELD Registration ID> ELD Provider: <Provider> Truck Tractor ID: <CMV Power Unit Number> Truck Tractor VIN: <CMV VIN> Shipping ID: <Shipping Document Number> Current Location: <{Current} Geo-location> Unidentified Driving Records: <{Current} Data Diagnostic Event Indicator Status {for ‘‘Unidentified driving records data diagnostic’’ event}> Exempt Driver Status: <Exempt Driver Configuration {for the Driver}> ELD Malfunction Indicators: <Malfunction Indicator Status {and Malfunction Description} {for ELD}> 24 Hours [Print/Display Graph Grid] Total hours <Total Hours {in working day so far}> Off duty <Total Hours {logged in Off-duty status}> tkelley on DSK9F6TC42PROD with RULES2 there are no unidentified driver records existing on the ELD for the current 24-hour period and for any of the previous 7 consecutive days, an ELD does not need to print or display unidentified driver records for the authorized safety official. Otherwise, both reports must be printed or displayed and provided to the authorized safety official. (b) The printout and display must show the following information for the current 24-hour period and each of the previous 7 consecutive days: (Items in < . > are data elements.) Date: <Date {of Record}> 24-hour Starting Time, Time Zone Offset from UTC: <24-Hour Period Starting Time>, <Time Zone Offset from UTC> Carrier: <Carrier’s USDOT number>,<Carrier Name> Driver Name: <{Driver} Last Name>, <{Driver} First Name> Driver ID < ELD username{for the driver} > Driver License State <{Driver} Driver License Issuing State> Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Location: <Geo-Location># Odometer: <{Total}Vehicle Miles> Engine Hours: <{Total}Engine Hours> Event: <Event Type> Origin: Auto Comment/Annotation> 1 Printout report must only list up to 10 most recent ELD malfunctions and up to 10 78401 most recent data diagnostics events within the time period for which the report is generated. Example of Print/Display detail log data VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4725 E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.007</GPH> tkelley on DSK9F6TC42PROD with RULES2 Example of Full Day ELD Record: Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations (c) The printout and display must show a graph-grid consistent with § 395.8(g) showing each change of duty status. (1) On the printout, the graph-grid for each day’s RODS must be at least 6 inches by 1.5 inches in size. (2) The graph-grid must overlay periods of driver’s indications of authorized personal use of CMV and yard moves using a different style line (such as dashed or dotted line) or shading. The appropriate abbreviation must also be indicated on the graph-grid. 4.8.2. ELD Data File tkelley on DSK9F6TC42PROD with RULES2 An ELD must have the capability to generate a consistent electronic file output compliant with the format described herein to facilitate the transfer, processing, and standardized display of ELD data sets on the authorized safety officials’ computing environments. 4.8.2.1. ELD Output File Standard (a) Regardless of the particular database architecture used for recording the ELD events in electronic format, the ELD must produce a standard ELD data output file for transfer purposes, which must be generated according to the standard specified in this section. (b) Data output must be provided in a single comma-delimited file outlined in this section using American National Standard Code for Information Exchange (ASCII) character sets meeting the standards of ANSI INCITS 4–1986 (R2012) (incorporated by reference, see § 395.38). It must include: (1) A header segment, which specifies current or non-varying elements of an ELD file; and (2) Variable length comma-delimited segments for the drivers, vehicles, ELD events, ELD malfunction and data diagnostics records, ELD login and logout activity, and unidentified driver records. (3) Any field value that may contain a comma (‘‘,’’) or a carriage return (<CR>) must be replaced with a semicolon (‘;’) before generating the compliant CSV output file. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 4.8.2.1.1. Header Segment User List: <CR> This segment must include the following data elements and format: Each subsequent row must have the following data elements: <{Assigned User} Order Number>,<{User’s} ELD Account Type,<{User’s} Last Name>,<{User’s} First Name>,<Line Data Check Value> <CR> ELD File Header Segment: <CR> <{Driver’s} Last Name>,<{Driver’s} First Name>,< ELD username{for the driver}>,< {Driver’s} Driver’s License Issuing State>,<{Driver’s} Driver’s License Number>,<Line Data Check Value> <CR> <{Co-Driver’s} Last Name>,<{Co-Driver’s} First Name>,<ELD username {for the codriver} >,<Line Data Check Value> <CR> <CMV Power Unit Number>,<CMV VIN>,<Trailer Number(s)>,<Line Data Check Value> <CR> <Carrier’s USDOT Number>,<Carrier Name>,<Multiday-basis Used>,<24-Hour Period Starting Time>,<Time Zone Offset from UTC>,<Line Data Check Value> <CR><Shipping Document Number>,<Exempt Driver Configuration>,<Line Data Check Value> <CR> <{Current} Date,< {Current} Time>, < {Current} Latitude>,<{Current} Longitude,< {Current} {Total} Vehicle Miles,< {Current} {Total} Engine Hours>,<Line Data Check Value> <CR> <ELD Registration ID>,<ELD Identifier>, <ELD Authentication Value>,<Output File Comment>,<Line Data Check Value> <CR> 4.8.2.1.2. User List This segment must list all drivers and codrivers with driving time records on the most recent CMV operated by the inspected driver and motor carrier’s support personnel who requested edits within the time period for which this file is generated. The list must be in chronological order with most recent user of the ELD on top, and include the driver being inspected, the co-driver, and the unidentified driver profile. This segment has a variable number of rows depending on the number of profiles with activity over the time period for which this file is generated. This section must start with the following title: PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 4.8.2.1.3. CMV List This segment must list each CMV that the current driver operated and that has been recorded on the driver’s ELD records within the time period for which this file is generated. The list must be rank ordered in accordance with the time of CMV operation with the most recent CMV being on top. This segment has a variable number of rows depending on the number of CMVs operated by the driver over the time period for which this file is generated. This section must start with the following title: CMV List: <CR> Each subsequent row must have the following data elements: <{Assigned CMV} Order Number>,<CMV Power Unit Number>,<CMV VIN>,<Line Data Check Value> <CR> 4.8.2.1.4. ELD Event List for Driver’s Record of Duty Status This segment must list ELD event records tagged with event types 1 (a change in duty status as described in section 4.5.1.1 of this appendix), 2 (an intermediate log as described in section 4.5.1.2), and 3 (a change in driver’s indication of conditions impacting driving time recording as described in section 4.5.1.3). The segment must list all event record status types and all event record origins for the driver, rank ordered with the most current log on top in accordance with the date and time fields of the record. This segment has a variable number of rows depending on the number of ELD events recorded for the driver over the time period for which this file is generated. This section must start with the following title: E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.008</GPH> 78402 tkelley on DSK9F6TC42PROD with RULES2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations ELD Event List: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<Event Record Status>,<Event Record Origin>,<Event Type>, <Event Code>,<{Event} Date>,< {Event}Time>,<{Accumulated} Vehicle Miles>,<{Elapsed} Engine Hours>, {Event} <Latitude>,<{Event}Longitude>,<Distance Since Last Valid Coordinates>, < {Corresponding CMV} Order Number>,<{User} Order Number {for Record Originator}>,<Malfunction Indicator Status {for ELD}>,<Data Diagnostic Event Indicator Status {for Driver}>,<Event Data Check Value>,<Line Data Check Value> <CR> 4.8.2.1.5. Event Annotations, Comments, and Driver’s Location Description This segment must list only the elements of the ELD event list created in section 4.8.2.1.4 of this appendix that have an annotation, comment, or a manual entry of location description by the driver. This segment has a variable number of rows depending on the number of ELD events under section 4.8.2.1.4 that feature a comment, annotation, or manual location entry by the driver. This section must start with the following title: ELD Event Annotations or Comments: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<ELD username {of the Record Originator}>,<{Event} Comment Text or Annotation>,<{Event} Date>,<{Event} Time>, <Driver’s Location Description>,<Line Data Check Value> <CR> 4.8.2.1.6. ELD Event List for Driver’s Certification of Own Records This segment must list ELD event records with event type 4 (driver’s certification of own records as described in section 4.5.1.4 of this appendix) for the inspected driver for the time period for which this file is generated. It must be rank ordered with the most current record on top. This segment has a variable number of rows depending on the number of certification and re-certification actions the authenticated driver may have executed on the ELD over the time period for which this file is generated. This section must start with the following title: Driver’s Certification/Recertification Actions: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<Event Code>, <{Event} Date>,<{Event} Time>,<Date {of the certified record}>,<{Corresponding CMV} Order Number>,<Line Data Check Value> <CR> 4.8.2.1.7. Malfunction and Diagnostic Event Records This segment must list all malfunctions that have occurred on this ELD during the time period for which this file is generated. It must list diagnostic event records related to the driver being inspected, rank ordered with the most current record on top. This VerDate Sep<11>2014 20:04 Dec 15, 2015 Jkt 238001 segment has a variable number of rows depending on the number of ELD malfunctions and ELD diagnostic event records recorded and relevant to the inspected driver over the time period for which this file is generated. This section must start with the following title: Malfunctions and Data Diagnostic Events: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<Event Code>,<Malfunction/Diagnostic Code>,<{Event} Date>,<{Event} Time>,<{Total} Vehicle Miles>,<{Total} Engine Hours>, <{Corresponding CMV} Order Number>,<Line Data Check Value> <CR> 4.8.2.1.8. ELD Login/Logout Report This segment must list the login and logout activity on the ELD (ELD events with event type 5 (A driver’s login/logout activity)) for the inspected driver for the time period for which this file is generated. It must be rank ordered with the most recent activity on top. This section must start with the following title: ELD Login/Logout Report: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<Event Code>,<ELD username>,<{Event} Date>,<{Event} Time>,<{Total} Vehicle Miles>,<{Total} Engine Hours>,<Line Data Check Value> <CR> 4.8.2.1.9. CMV’s Engine Power-Up and Shut Down Activity This segment must list the logs created when a CMV’s engine is powered up and shut down (ELD events with event type 6 (CMV’s engine power up/shut down)) for the time period for which this file is generated. It must be rank ordered with the latest activity on top. This section must start with the following title: CMV Engine Power-Up and Shut Down Activity: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<Event Code>,<{Event} Date>,<{Event} Time>,<{Total} Vehicle Miles>,<{Total} Engine Hours>,<{Event} Latitude>,<{Event} Longitude>,<CMV Power Unit Number>,<CMV VIN>,<Trailer Number(s)>,<Shipping Document Number>,<Line Data Check Value> <CR> 4.8.2.1.10. ELD Event Log List for the Unidentified Driver Profile This segment must list the ELD event records for the Unidentified Driver profile, rank ordered with most current log on top in accordance with the date and time fields of the logs. This segment has a variable number of rows depending on the number of Unidentified Driver ELD records recorded over the time period for which this file is generated. This section must start with the following title: PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 78403 Unidentified Driver Profile Records: <CR> Each subsequent row must have the following data elements: <Event Sequence ID Number>,<Event Record Status>,<Event Record Origin>,<Event Type>,<Event Code>,<{Event} Date>,<{Event} Time>,< {Accumulated} Vehicle Miles>,< {Elapsed} Engine Hours>,<{Event} Latitude>,<{Event} Longitude>,<Distance Since Last Valid Coordinates>, <{Corresponding CMV} Order Number>,<Malfunction Indicator Status {for ELD}>,<Event Data Check Value>,<Line Data Check Value> <CR> 4.8.2.1.11. File Data Check Value This segment lists the file data check value as specified in section 4.4.5.3 of this appendix. This part includes a single line as follows: End of File: <CR> <File Data Check Value> <CR> 4.8.2.2. ELD Output File Name Standard If the ELD output is saved in a file for transfer or maintenance purposes, it must follow the 25 character-long filename standard below: (a) The first five position characters of the filename must correspond to the first five letters of the last name of the driver for whom the file is compiled. If the last name of the driver is shorter than five characters, remaining positions must use the character ‘‘_’’ [underscore] as a substitute character. For example, if the last name of the driver is ‘‘Lee’’, the first five characters of the output file must feature ‘‘Lee_ _’’. (b) The sixth and seventh position characters of the filename must correspond to the last two digits of the driver’s license number for the driver for whom the file is compiled. (c) The eighth and ninth position characters of the filename must correspond to the sum of all individual numeric digits in the driver’s license number for the driver for whom the file is compiled. The result must be represented in two-digit format. If the sum value exceeds 99, use the last two digits of the result. For example, if the result equals ‘‘113’’, use ‘‘13’’. If the result is less than 10, use 0 as the first digit. For example, if the result equals ‘‘5’’, use ‘‘05’’. (d) The tenth through fifteenth position characters of the filename must correspond to the date the file is created. The result must be represented in six digit format ‘‘MMDDYY’’ where ‘‘MM’’ represents the month, ‘‘’’DD’’ represents the day, and ‘‘YY’’ represents the last two digits of the year. For example, February 5, 2013, must be represented as ‘‘020513’’. (e) The sixteenth position character of the filename must be a hyphen ‘‘-’’. (f) The seventeenth through twenty-fifth position characters of the filename must, by default, be ‘‘000000000’’ but each of these nine digits can be freely configured by the motor carrier or the ELD provider to be a number between 0 and 9 or a character between A and Z to be able to produce distinct files—if or when necessary—that may otherwise be identical in filename as per the convention proposed in this section. ELD providers or motor carriers do not need to E:\FR\FM\16DER2.SGM 16DER2 tkelley on DSK9F6TC42PROD with RULES2 78404 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations disclose details of conventions they may use for configuring the seventeenth through twenty-fifth digits of the filename. 4.9. Data Transfer Capability Requirements An ELD must be able to present the captured ELD records of a driver in the standard electronic format as described below, and transfer the data file to an authorized safety official, on demand, for inspection purposes. 4.9.1. Data Transfer During Roadside Safety Inspections (a) On demand during a roadside safety inspection, an ELD must produce ELD records for the current 24-hour period and the previous 7 consecutive days in electronic format, in the standard data format described in section 4.8.2.1 of this appendix. (b) When a driver uses the single-step driver interface, as described in section 4.3.2.4 of this appendix, to indicate that the ELD compile and transfer the driver’s ELD records to authorized safety officials, the ELD must transfer the generated ELD data output to the computing environment used by authorized safety officials via the standards referenced in this section. To meet roadside electronic data transfer requirements, an ELD must do at least one of the following: (1) Option 1—Telematics transfer methods. Transfer the electronic data using both: (i) Wireless Web services, and (ii) Email, or (2) Option 2—Local transfer methods. Transfer the electronic data using both: (i) USB2 (incorporated by reference, see § 395.38), and (ii) Bluetooth (incorporated by reference, see § 395.38). (c) The ELD must provide an ELD record for the current 24-hour period and the previous 7 consecutive days as described in section 4.8.1.3 either on a display or on a printout. (d) An ELD must support one of the two options for roadside data transfer in paragraph (b) of this section, and must certify proper operation of each element under that option. An authorized safety official will specify which transfer mechanism the official will use within the certified transfer mechanisms of an ELD. 4.9.2. Motor Carrier Data Reporting (a) An ELD must be capable of retaining copies of electronic ELD records for a period of at least 6 months from the date of receipt. (b) An ELD must produce, on demand, a data file or a series of data files of ELD records for a subset of its drivers, a subset of its vehicles, and for a subset of the 6-month record retention period, to be specified by an authorized safety official, in an electronic format standard described in section 4.8.2.1 of this appendix or, if the motor carrier has multiple offices or terminals, within the time permitted under § 390.29. (c) At a minimum, an ELD must be able to transfer the ELD records electronically by one of the following transfer mechanisms: (1) Web Services as specified in section 4.10.1.1 of this appendix (but not necessarily wirelessly), and Email as specified 4.10.1.2 (but not necessarily wirelessly); or (2) USB 2.0 as specified in section 4.10.1.3 of this appendix and Bluetooth, as specified VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 in section 4.10.1.4 (both incorporated by reference, see § 395.38). 4.10. Communications Standards for the Transmittal of Data Files from ELDs ELDs must transmit ELD records electronically in accordance with the file format specified in section 4.8.2.1 of this appendix and must be capable of a one-way transfer of these records to authorized safety officials upon request as specified in section 4.9. 4.10.1. Data Transfer Mechanisms For each type of data transfer mechanism, an ELD must follow the specifications in this section. 4.10.1.1. Wireless Data Transfer via Web Services (a) Transfer of ELD data to FMCSA via Web Services must follow the following standards: (1) Web Services Description Language (WSDL) 1.1. (2) Simple Object Access Protocol (SOAP) 1.2 (incorporated by reference, see § 395.38). (3) Extensible Markup Language (XML) 1.0 5th Edition. (b) If an ELD provider plans to use Web Services, upon ELD provider registration as described in section 5.1 of this appendix, (1) FMCSA will provide formatting files necessary to convert the ELD file into an XML format and upload the data to the FMCSA servers. These files include FMCSA’s Rules of Behavior, XML Schema, WSDL file, Interface Control Document (ICD), and the ELD Web Services Development Handbook, and (2) ELD Providers must obtain a Public/ Private Key pair compliant with the NIST SP 800–32, Introduction to Public Key Technology and the Federal PKI Infrastructure (incorporated by reference, see § 395.38), and submit the public key with their registration. (3) ELD Providers will be required to complete a test procedure to ensure their data is properly formatted before they can begin submitting driver’s ELD data to the FMCSA server. (c) ELD data transmission must be accomplished in a way that protects the privacy of the driver(s). (d) At roadside, if both the vehicle operator and law enforcement have an available data connection, the vehicle operator will initiate the transfer of ELD data to an authorized safety official. In some cases, an ELD may be capable of converting the ELD file to an XML format using an FMCSA-provided schema and upload it using information provided in the WSDL file using SOAP via RFC 7230, RFC 7231, and RFC 5246, Transport Layer Security (TLS) Protocol Version 1.2 (incorporated by reference, see § 395.38). 4.10.1.2. Wireless Data Transfer Through Email (a) The ELD must attach a file to an email message to be sent using RFC 5321 Simple Mail Transfer Protocol (SMTP) (incorporated by reference, see § 395.38), to a specific email address, which will be shared with the ELD providers during the technology registration process. (b) The file must have the format described in section 4.8.2.1 of this appendix and must PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 be encrypted using the Secure/Multipurpose Internet Mail Extensions as described in RFC 5751 (incorporated by reference, see § 395.38), and the RSA algorithm as described in RFC 4056 (incorporated by reference, see § 395.38), with the FMCSA public key compliant with NIST SP 800–32 (incorporated by reference, see § 395.38) to be provided to the ELD provider at the time of registration. The content must be encrypted using AESin FIPS Publication 197 (incorporated by reference, see § 395.38), and RFC 3565 (incorporated by reference, see § 395.38). (c) The email must be formatted using the RFC 5322 Internet Message Format (incorporated by reference, see § 395.38), as follows: Element Format To : ............... <Address Provided by FMCSA during online registration> <Desired return address for confirmation> ELD records from <ELD Registration ID><’:’> <ELD Identifier> <Output File Comment> MIME encoded AES–256 encrypted file with <filename>.<Date string>.<unique identifier>.aes From : ........... Subject : ....... Body : ........... Attachment: .. (d) A message confirming receipt of the ELD file will be sent to the address specified in the email. The filename must follow the convention specified in section 4.8.2.2 of this appendix. 4.10.1.3 Data Transfer via USB 2.0 (a) ELDs certified for the USB data transfer mechanism must be capable of transferring ELD records using the Universal Serial Bus Specification (Revision 2.0) (incorporated by reference, see § 395.38). (b) Each ELD technology must implement a single USB-compliant interface with the necessary adaptors for a Type A connector. The USB interface must implement the Mass Storage class (08h) for driverless operation, to comply with IEEE standard 1667–2009, (incorporated by reference, see § 395.38). (c) The ELD must be capable of providing power to a standard USB-compatible drive. (d) An ELD must re-authenticate the driver prior to saving the driver’s ELD file to an external device. (e) On initiation by an authenticated driver, an ELD must be capable of saving ELD file(s) to USB-compatible drives (AES, in FIPS Publication 197, incorporated by reference, see § 395.38) that are provided by authorized safety officials during an inspection. Prior to initiating this action, ELDs must be capable of reading a text file from an authorized safety officials’ drive and verifying it against a file provided to ELD providers who have registered their technologies as described in section 5.1 of this appendix. 4.10.1.4. Data Transfer via Bluetooth® (a) Bluetooth SIG Specification of the Bluetooth System covering core package E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations version 2.1 + EDR (incorporated by reference, see § 395.38) must be followed. ELDs using this standard must be capable of displaying a Personal Identification Number generated by the Bluetooth application profile for bonding with other devices(incorporated by reference, see § 395.38). (b) Upon request of an authorized official, the ELD must become discoverable by the authorized safety officials’ Bluetooth-enabled computing platform, and generate a random code, which the driver must share with the official (incorporated by reference, see § 395.38). (c) The ELD must connect to the roadside authorized safety officials’ technology via wireless personal area network and transmit the required data via Web Services as described in section 4.10.1.1 of this appendix. 4.10.2. Motor Carrier Data Transmission Regardless of the roadside transmission option supported by an ELD, ELD records are to be retained and must be able to transmit enforcement-specified historical data for their drivers using one of the methods specified under section 4.9.2 of this appendix. (a) Web services option must follow the specifications described under section 4.10.1.1 of this appendix. (b) The email option must follow the specifications described under section 4.10.1.2 of this appendix. (c) The USB option must follow the specifications of Universal Serial Bus Specification, revision 2.0 (incorporated by reference, see § 395.38) and described in section 4.10.1.3 of this appendix. (d) Bluetooth must follow the specifications incorporated by reference (see § 395.38) and described in section 4.10.1.4 of this appendix. tkelley on DSK9F6TC42PROD with RULES2 5. ELD Registration and Certification As described in § 395.22(a) of this part, motor carriers must only use ELDs that are listed on the FMCSA Web site. An ELD provider must register with FMCSA and certify each ELD model and version for that ELD to be listed on this Web site. 5.1. ELD Provider’s Registration 5.1.1. Registering Online (a) An ELD provider developing an ELD technology must register online at a secure FMCSA Web site where the ELD provider can securely certify that its ELD is compliant with this appendix. (b) Provider’s registration must include the following information: (1) Company name of the technology provider/manufacturer. (2) Name of an individual authorized by the provider to verify that the ELD is compliant with this appendix and to certify it under section 5.2 of this appendix. (3) Address of the registrant. (4) Email address of the registrant. (5) Telephone number of the registrant. 5.1.2. Keeping Information Current The ELD provider must keep the information in section 5.1.1(b) of this appendix current through FMCSA’s Web site. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 5.1.3. Authentication Information Distribution FMCSA will provide a unique ELD registration ID, authentication key(s), authentication file(s), and formatting and configuration details required in this appendix to registered providers during the registration process. 5.2. Certification of Conformity With FMCSA Standards A registered ELD provider must certify that each ELD model and version has been sufficiently tested to meet the functional requirements included in this appendix under the conditions in which the ELD would be used. 5.2.1. Online Certification (a) An ELD provider registered online as described in section 5.1.1 of this appendix must disclose the information in paragraph (b) of this section about each ELD model and version and certify that the particular ELD is compliant with the requirements of this appendix. (b) The online process will only allow a provider to complete certification if the provider successfully discloses all of the following required information: (1) Name of the product. (2) Model number of the product. (3) Software version of the product. (4) An ELD identifier, uniquely identifying the certified model and version of the ELD, assigned by the ELD provider in accordance with section 7.15 of this appendix. (5) Picture and/or screen shot of the product. (6) User’s manual describing how to operate the ELD. (7) Description of the supported and certified data transfer mechanisms and stepby-step instructions for a driver to produce and transfer the ELD records to an authorized safety official. (8) Summary description of ELD malfunctions. (9) Procedure to validate an ELD authentication value as described in section 7.14 of this appendix. (10) Certifying statement describing how the product was tested to comply with FMCSA regulations. 5.2.2. Procedure To Validate an ELD’s Authenticity Paragraph 5.2.1(b)(9) of this appendix requires that the ELD provider identify its authentication process and disclose necessary details for FMCSA systems to independently verify the ELD authentication values included in the dataset of inspected ELD outputs. The authentication value must include a hash component that only uses data elements included in the ELD dataset and datafile. ELD authentication value must meet the requirements specified in section 7.14 of this appendix. 5.3. Publicly Available Information Except for the information listed under paragraphs 5.1.1(b)(2), (4), and (5) and 5.2.1(b)(9) of this appendix, FMCSA will make the information in sections 5.1.1 and 5.2.1 for each certified ELD publicly available on a Web site to allow motor carriers to PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 78405 determine which products have been properly registered and certified as ELDs compliant with this appendix. 5.4. Removal of Listed Certification 5.4.1. Removal Process FMCSA may remove an ELD model or version from the list of ELDs on the FMCSA Web site in accordance with this section. 5.4.2. Notice FMCSA shall initiate the removal of an ELD model or version from the list of ELDs on the FMCSA Web site by providing the ELD provider written notice stating: (a) The reasons FMCSA proposes to remove the model or version from the FMCSA list; and (b) Any corrective action that the ELD provider must take for the ELD model or version to remain on the list. 5.4.3. Response An ELD provider that receives notice under section 5.4.2 of this appendix may submit a response to the Director, Office of Carrier Driver, and Vehicle Safety Standards no later than 30 days after issuance of the notice of proposed removal, explaining: (a) The reasons why the ELD provider believes the facts relied on by the Agency, in proposing removal, are wrong; or (b) The action the ELD provider will take to correct the deficiencies that FMCSA identified. 5.4.4. Agency Action (a) If the ELD provider fails to respond within 30 days of the date of the notice issued under section 5.4.2 of this appendix, the ELD model or version shall be removed from the FMCSA list. (b) If the ELD provider submits a timely response, the Director, Office of Carrier, Driver, and Vehicle Safety Standards, shall review the response and withdraw the notice of proposed removal, modify the notice of proposed removal, or affirm the notice of proposed removal, and notify the ELD provider in writing of the determination. (c) Within 60 days of the determination, the ELD provider shall take any action required to comply. If the Director determines that the ELD provider failed to timely take the required action within the 60 day period, the ELD model or version shall be removed from the FMCSA list. (d) The Director, Office of Carrier, Driver, and Vehicle Safety Standards may request from the ELD provider any information that the Director considers necessary to make a determination under this section. 5.4.5. Administrative Review (a) Within 30 days of removal of an ELD model or version from the FMCSA list of certified ELDs under section 5.4.4 of this appendix, the ELD provider may request administrative review. (b) A request for administrative review must be submitted in writing to the FMCSA Associate Administrator for Policy. The request must explain the error committed in removing the ELD model or version from the FMCSA list, identify all factual, legal, and procedural issues in dispute, and include any supporting information or documents. E:\FR\FM\16DER2.SGM 16DER2 78406 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 (c) The Associate Administrator may ask the ELD provider to submit additional information or attend a conference to discuss the removal. If the ELD provider does not submit the requested information or attend the scheduled conference, the Associate Administrator may dismiss the request for administrative review. (d) The Associate Administrator will complete the administrative review and notify the ELD provider of the decision in writing. The decision constitutes a final Agency action. 6. References (a) American National Standards Institute (ANSI). 11 West 42nd Street, New York, New York 10036, https://webstore.ansi.org, (212) 642–4900. (1) ANSI INCITS 4–1986 (R2012), American National Standard for Information Systems—Coded Character Sets—7-Bit American National Standard Code for Information Interchange (7-Bit ASCII), approved June 14, 2007, IBR in section 4.8.2.1, Appendix A to subpart B. (2) ANSI INCITS 446–2008 (R2013), American National Standard for Information Technology—Identifying Attributes for Named Physical and Cultural Geographic Features (Except Roads and Highways) of the United States, Territories, Outlying Areas, and Freely Associated Areas, and the Waters of the Same to the Limit of the Twelve-Mile Statutory Zone, approved October 28, 2008, IBR in section 4.4.2, Appendix A to subpart B. (b) Bluetooth SIG, Inc. 5209 Lake Washington Blvd. NE., Suite 350, Kirkland, WA 98033, https://www.bluetooth.org/ Technical/Specifications/adopted.htm, (425) 691–3535. (1) Bluetooth SIG, Inc., Specification of the Bluetooth System: Wireless Connections Made Easy, Covered Core Package version 2.1 + EDR, volumes 0 through 4, approved July 26, 2007, IBR in sections 4.9.1, 4.9.2, 4.10.1.4, 4.10.2, Appendix A to subpart B. (2) [Reserved] (c) Institute of Electrical and Electronic Engineers (IEEE) Standards Association. 445 Hoes Lane, Piscataway, NJ 08854–4141, https://standards.ieee.org/, (732) 981–0060. (1) IEEE Std 1667–2009, IEEE Standard for Authentication in Host Attachments of Transient Storage Devices, approved 11 November 2009, IBR in section 4.10.1.3, Appendix A to subpart B. (2) [Reserved] (d) Internet Engineering Task Force (IETF). C/o Association Management Solutions, LLC (AMS) 48377 Freemont Blvd., Suite 117, Freemont, CA 94538, (510) 492–4080. (1) IETF RFC 3565, Use of the Advanced Encryption Standard (AES) Encryption Algorithm in Cryptographic Message Syntax (CMS), approved July 2003, IBR in section 4.10.1.2, Appendix A to subpart B. (2) IETF RFC 4056, Use of the RSASSA– PSS Signature Algorithm in Cryptographic Message Syntax (CMS), approved June 2005, IBR in section 4.10.1.2, Appendix A to subpart B. (3) IETF RFC 5246, The Transport Layer Security (TLS) Protocol Version 1.2, VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 approved August 2008, IBR in section 4.10.1.1, Appendix A to subpart B. (4) IETF RFC 5321, Simple Mail Transfer Protocol, approved October 2008, IBR in section 4.10.1.2, Appendix A to subpart B. (5) IETF RFC 5322, Internet Message Format, approved October 2008, IBR in section 4.10.1.2, Appendix A to subpart B. (6) IETF RFC 5751, Secure/Multipurpose Internet Mail Extensions (S/MIME) Version 3.2, Message Specification, approved January 2010, IBR in section 4.10.1.2, Appendix A to subpart B. (7) IETF RFC 7230, Hypertext Transfer Protocol (HTTP/1.1): Message Syntax and Routing, approved June 2014, IBR in section 4.10.1.1, Appendix A to subpart B. (8) IETF RFC 7231, Hypertext Transfer Protocol (HTTP/1.1): Semantics and Content, approved June 2014, IBR in section 4.10.1.1, Appendix A to subpart B. (e) National Institute of Standards and Technology (NIST). 100 Bureau Drive, Stop 1070, Gaithersburg, MD 20899–1070, https:// www.nist.gov, (301) 975–6478. (1) Federal Information Processing Standards Publication (FIPS PUB) 197, Advanced Encryption Standard (AES), approved November 26, 2001, IBR in sections 4.10.1.2 and 4.10.1.3, Appendix A to subpart B. (2) SP 800–32, Introduction to Public Key Technology and the Federal PKI Infrastructure, approved February 26, 2001, IBR in section 4.10.1.2, Appendix A to subpart B. (f) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 153rd Drive, Beaverton, Oregon 97006, https:// www.usb.org, (503) 619–0426. (1) USB Implementers Forum, Inc., Universal Serial Bus Specification, Revision 2.0, approved April 27, 2000, as revised through April 3, 2015, IBR in sections 4.9.1, 4.9.2, 4.10.1.3, and 4.10.2, Appendix A to subpart B. (2) [Reserved] (g) World Wide Web Consortium (W3C). 32 Vassar Street, Building 32–G514, Cambridge, MA 02139, https://www.w3.org, (617) 253– 2613. (1) W3C Recommendation 27, SOAP Version 1.2 Part 1: Messaging Framework (Second Edition), including errata, approved April 2007, IBR in section 4.10.1.1, Appendix A to subpart B. (2) [Reserved] 7. Data Elements Dictionary 7.1. 24-Hour Period Starting Time Description: This data element refers to the 24-hour period starting time specified by the motor carrier for driver’s home terminal. Purpose: Identifies the bookends of the work day for the driver; makes ELD records consistent with § 395.8 requirements, which require this information to be included on the form. Source: Motor carrier. Used in: ELD account profile; ELD outputs. Data Type: Programmed or populated on the ELD during account creation and maintained by the motor carrier to reflect true and accurate information for drivers. Data Range: 000000 to 235959; first two digits 00 to 23; middle two digits and last two digits 00 to 59. PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 Data Length: 6 characters. Data Format: <HHMMSS> Military time format, where ‘‘HH’’ refers to hours, ‘‘MM’’ refers to minutes, and ‘‘SS’’ refers to seconds; designation for start time expressed in time standard in effect at the driver’s home terminal. Disposition: Mandatory. Examples: [060000], [073000], [180000]. 7.2. Carrier Name Description: This data element refers to the motor carrier’s legal name for conducting commercial business. Purpose: Provides a recognizable identifier about the motor carrier on viewable ELD outputs; provides ability to cross check against USDOT number. Source: FMCSA’s Safety and Fitness Electronic Records (SAFER) System. Used in: ELD account profile. Data Type: Programmed on the ELD or entered once during the ELD account creation process. Data Range: Any alphanumeric combination. Data Length: Minimum: 4; Maximum: 120 characters. Data Format: <Carrier Name> as in <CCCC> to <CCCC. . . . . .CCCC>. Disposition: Mandatory. Example: [CONSOLIDATED TRUCKLOAD INC.]. 7.3. Carrier’s USDOT Number Description: This data element refers to the motor carrier’s USDOT number. Purpose: Uniquely identifies the motor carrier employing the driver using the ELD. Source: FMCSA’s Safety and Fitness Electronic Records (SAFER) System. Used in: ELD account profiles; ELD event records; ELD output file. Data Type: Programmed on the ELD or entered once during the ELD account creation process. Data Range: An integer number of length 1–8 assigned to the motor carrier by FMCSA (9 position numbers reserved). Data Length: Minimum: 1; Maximum: 9 characters. Data Format: <Carrier’s USDOT Number> as in <C to <CCCCCCCCC>. Disposition: Mandatory. Examples: [1], [1000003]. 7.4. CMV Power Unit Number Description: This data element refers to the identifier the motor carrier uses for their CMVs in their normal course of business. Purpose: Identifies the vehicle a driver operates while a driver’s ELD records are recorded; Makes ELD records consistent with § 395.8 requirements, which require the truck or tractor number to be included on the form. Source: Unique CMV identifiers a motor carrier uses in its normal course of business and includes on dispatch documents, or the license number and the licensing State of the power unit. Used in: ELD event records; ELD output file. Data Type: Programmed on the ELD or populated by motor carrier’s extended ELD system or entered by the driver. Data Range: Any alphanumeric combination. E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Data Length: Minimum: 1; Maximum: 10 characters. Data Format: <CMV Power Unit Number> as in <C> to <CCCCCCCCCC>. Disposition: Mandatory for all CMVs operated while using an ELD. Examples: [123], [00123], [BLUEKW123], [TX12345]. 7.5. CMV VIN Description: This data element refers to the manufacturer-assigned vehicle identification number (VIN) for the CMV powered unit. Purpose: Uniquely identifies the operated CMV not only within a motor carrier at a given time but across all CMVs sold within a 30-year rolling period. Source: A robust unique CMV identifier standardized in North America. Used in: ELD event records; ELD output file. Data Type: Retrieved from the engine ECM via the vehicle databus. Data Range: Either blank or 17 characters long as specified by NHTSA in 49 CFR part 565, or 18 characters long with first character assigned as ‘‘-’’ (dash) followed by the 17 character long VIN. Check digit, i.e., VIN character position 9, as specified in 49 CFR part 565 must imply a valid VIN. Data Length: Blank or 17–18 characters. Data Format: <CMV VIN> or <‘‘-’’> <CMV VIN> or <{blank}> as in <CCCCCCCCCCCCCCCCC>, or <-CCCCCCCCCCCCCCCCC> or <>. Disposition: Mandatory for all ELDs linked to the engine ECM and when VIN is available from the engine ECM over the vehicle databus; otherwise optional. If optionally populated and source is not the engine ECM, precede VIN with the character ‘‘-’’ in records. Examples: [1FUJGHDV0CLBP8834], [-1FUJGHDV0CLBP8896], []. tkelley on DSK9F6TC42PROD with RULES2 7.6. Comment/Annotation Description: This is a textual note related to a record, update, or edit capturing the comment or annotation a driver or authorized support personnel may input to the ELD. Purpose: Provides ability for a driver to offer explanations to records, selections, edits, or entries. Source: Driver or authorized support personnel. Used in: ELD events; ELD outputs. Data Type: Entered by the authenticated user via ELD’s interface. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Data Range: Free form text of any alphanumeric combination. Data Length: 0–60 characters if optionally entered; 4–60 characters if annotation is required and driver is prompted by the ELD. Data Format: <Comment/Annotation> as in <{blank}> or <C> to <CCC. . . . . . CCC>. Disposition: Optional in general; Mandatory if prompted by ELD. Examples: [], [Personal Conveyance. Driving to Restaurant in bobtail mode], [Forgot to switch to SB. Correcting here]. 7.7. Data Diagnostic Event Indicator Status Description: This is a Boolean indicator identifying whether the used ELD unit has an active data diagnostic event set for the authenticated driver at the time of event recording. Purpose: Documents the snapshot of ELD’s data diagnostic status for the authenticated driver at the time of an event recording. Source: ELD internal monitoring functions. Used in: ELD events; ELD outputs. Data Type: Internally monitored and managed. Data Range: 0 (no active data diagnostic events for the driver) or 1 (at least one active data diagnostic event set for the driver). Data Length: 1 character. Data Format: <Data Diagnostic Event Indicator Status> as in <C>. Disposition: Mandatory. Examples: [0] or [1]. 7.8. Date Description: In combination with the variable ‘‘Time’’, this parameter stamps records with a reference in time; even though date and time must be captured in UTC, event records must use date and time converted to the time zone in effect at the driver’s home terminal as specified in section 4.4.3. Purpose: Provides ability to record the instance of recorded events. Source: ELD’s converted time measurement. Used in: ELD events; ELD outputs. Data Type: UTC date must be automatically captured by ELD; date in effect at the driver’s home terminal must be calculated as specified in section 4.4.3. Data Range: Any valid date combination expressed in <MMDDYY> format where ‘‘MM’’ refers to months, ‘‘DD’’ refers to days of the month and ‘‘YY’’ refers to the last two digits of the calendar year. PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 78407 Data Length: 6 characters. Data Format: <MMDDYY> where <MM> must be between 01 and 12, <DD> must be between 01 and 31, and <YY> must be between 00 and 99. Disposition: Mandatory. Examples: [122815], [010114], [061228]. 7.9. Distance Since Last Valid Coordinates Description: Distance in whole miles traveled since the last valid latitude, longitude pair the ELD measured with the required accuracy. Purpose: Provides ability to keep track of location for recorded events in cases of temporary position measurement outage. Source: ELD internal calculations. Used in: ELD events; ELD outputs. Data Type: Kept track of by the ELD based on position measurement validity. Data Range: An integer value between 0 and 6; If the distance traveled since the last valid coordinate measurement exceeds 6 miles, the ELD must enter the value as 6. Data Length: 1 character. Data Format: <Distance Since Last Valid Coordinates> as in <C>. Disposition: Mandatory. Examples: [0], [1], [5], [6]. 7.10. Driver’s License Issuing State Description: This data element refers to the issuing State, Province or jurisdiction of the listed Driver’s License for the ELD account holder. Purpose: In combination with ‘‘Driver’s License Number’’, it links the ELD driver account holder uniquely to an individual with driving credentials; ensures that only one driver account can be created per individual. Source: Driver’s license. Used in: ELD account profile(s); ELD output file. Data Type: Entered (during the creation of a new ELD account). Data Range: To character abbreviation listed on Table 5 of this appendix. Data Length: 2 characters. Data Format: <Driver’s License Issuing State> as in <CC>. Disposition: Mandatory for all driver accounts created on the ELD; optional for ‘‘non-driver’’ accounts. Example: [WA]. BILLING CODE 4910–EX–P E:\FR\FM\16DER2.SGM 16DER2 78408 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Table 5 State and Province Abbreviation Codes U.S.A. STATE CODE AL STATE ALABAMA STATE CODE MT STATE MONTANA CT CONNECTICUT NM NEW MEXICO IL ILLINOIS SC SOUTH CAROLINA AMERICAN POSSESSIONS OR PROTECTORATES STATE CODE STATE AMERICANSAMOA AS VIRGIN ISLANDS CANADA PROVINCE CODE AB VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PROVINCE ALBERTA COLUMBIA PO 00000 Frm 00118 Fmt 4701 Sfmt 4725 E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.009</GPH> tkelley on DSK9F6TC42PROD with RULES2 VI Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations 7.11. Driver’s License Number Description: This data element refers to the unique Driver’s License information required for each driver account on the ELD. Purpose: In combination with driver’s license issuing State, it links the ELD driver account holder to an individual with driving credentials; ensures that only one driver account can be created per individual. Source: Driver’s license. Used in: ELD account profile(s); ELD output file. Data Type: Entered (during the creation of a new ELD account). Data Range: Any alphanumeric combination. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Data Length: Minimum: 1; Maximum: 20 characters. Data Format: <Driver’s License Number> as in <C> to <CCCCCCCCCCCCCCCCCCCC>. For ELD record keeping purposes, ELD must only retain characters in a Driver’s License Number entered during an account creation process that are a number between 0–9 or a character between A–Z (non-case sensitive). Disposition: Mandatory for all driver accounts created on the ELD; optional for ‘‘non-driver’’ accounts. Examples: [SAMPLMJ065LD], [D000368210361], [198], [N02632676353666]. PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 7.12. Driver’s Location Description Description: This is a textual note related to the location of the CMV input by the driver upon ELD’s prompt. Purpose: Provides ability for a driver to enter location information related to entry of missing records; provides ability to accommodate temporary positioning service interruptions or outage without setting positioning malfunctions. Source: Driver, only when prompted by the ELD. Used in: ELD events; ELD outputs. Data Type: Entered by the authenticated driver when ELD solicits this information as specified in section 4.3.2.7. E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.010</GPH> tkelley on DSK9F6TC42PROD with RULES2 BILLING CODE 4910–EX–P 78409 78410 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Data Range: Free form text of any alphanumeric combination. Data Length: 5–60 characters. Data Format: <CCCCC> to <CCC......CCC>. Disposition: Mandatory when prompted by ELD. Examples: [], [5 miles SW of Indianapolis, IN], [Reston, VA]. 7.13. ELD Account Type Description: An indicator designating whether an ELD account is a driver account or support personnel (non-driver) account. Purpose: Enables authorized safety officials to verify account type specific requirements set forth in this document. Source: ELD designated. Used in: ELD outputs. Data Type: Specified during the account creation process and recorded on ELD. Data Range: Character ‘‘D’’, indicating account type ‘‘Driver’’, or ‘‘S’’, indicating account type ‘‘motor carrier’s support personnel’’ (i.e. non-driver); ‘‘Unidentified Driver’’ account must be designated with type ‘‘D’’. Data Length: 1 character. Data Format: <C>. Disposition: Mandatory. Examples: [D], [S]. tkelley on DSK9F6TC42PROD with RULES2 7.14. ELD Authentication Value Description: An alphanumeric value that is unique to an ELD and verifies the authenticity of the given ELD. Purpose: Provides ability to cross-check the authenticity of an ELD used in the recording of a driver’s records during inspections. Source: ELD provider-assigned value; includes a certificate component and a hashed component; necessary information related to authentication keys and hash procedures disclosed by the registered ELD provider during the online ELD certification process for independent verification by FMCSA systems. Used in: ELD outputs. Data Type: Calculated from the authentication key and calculation procedure privately distributed by the ELD provider to FMCSA during the ELD registration process. Data Range: Alphanumeric combination. Data Length: 16–32 characters. Data Format: <CCCC.........CCCC>. Disposition: Mandatory. Example: [D3A4506EC8FF566B506EC8FF 566BDFBB]. 7.15. ELD Identifier Description: An alphanumeric identifier assigned by the ELD provider to the ELD technology that is certified by the registered provider at FMCSA’s Web site. Purpose: Provides ability to cross-check that the ELD used in the recording of a driver’s records is certified through FMCSA’s registration and certification process as required. Source: Assigned and submitted by the ELD provider during the online certification of an ELD model and version. Used in: ELD outputs. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Data Type: Coded on the ELD by the ELD provider and disclosed to FMCSA during the online certification process. Data Range: A six character alphanumeric identifier using characters A–Z and number 0–9. Data Length: 6 characters. Data Format: <ELD Identifier> as in <CCCCCC>. Disposition: Mandatory. Examples: [1001ZE], [GAM112], [02P3P1]. 7.16. ELD Provider Description: An alphanumeric company name of the technology provider as registered at the FMCSA’s Web site. Purpose: Provides ability to cross-check that the ELD used in the recording of a driver’s records is certified through FMCSA’s registration and certification process as required. Source: Assigned and submitted by the ELD provider during the online registration process. Used in: ELD outputs. Data Type: Coded on the ELD by the ELD provider and disclosed to FMCSA during the online registration process. Data Range: Any alphanumeric combination. Data Length: Minimum: 4; Maximum 120 characters. Data Format: <ELD Provider> as in <CCCC> to <CCCC......CCCC>. Disposition: Mandatory. Examples: [ELD PROVIDER INC]. 7.17. ELD Registration ID Description: An alphanumeric registration identifier assigned to the ELD provider that is registered with FMCSA during the ELD registration process. Purpose: Provides ability to cross-check that the ELD provider has registered as required. Source: Received from FMCSA during online provider registration. Used in: ELD outputs. Data Type: Coded on the ELD by the provider. Data Range: A four character alphanumeric registration identifier using characters A–Z and numbers 0–9. Data Length: 4 characters. Data Format: <ELD Registration ID> as in <CCCC>. Disposition: Mandatory. Examples: [ZA10], [QA0C], [FAZ2]. 7.18. ELD Username Description: This data element refers to the unique user identifier assigned to the account holder on the ELD to authenticate the corresponding individual during an ELD login process; the individual may be a driver or a motor carrier’s support personnel. Purpose: Documents the user identifier assigned to the driver linked to the ELD account. Source: Assigned by the motor carrier during the creation of a new ELD account. Used in: ELD account profile; event records; ELD login process. PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 Data Type: Entered (during account creation and user authentication). Data Range: Any alphanumeric combination. Data Length: Minimum: 4; Maximum: 60 characters. Data Format: <ELD Username> as in <CCCC> to <CCCC......CCCC>. Disposition: Mandatory for all accounts created on the ELD. Examples: [smithj], [100384], [sj2345], [john.smith]. 7.19. Engine Hours Description: This data element refers to the time the CMV’s engine is powered in decimal hours with 0.1 hr (6-minute) resolution; this parameter is a placeholder for <{Total} Engine Hours>, which refers to the aggregated time of a vehicle’s engine’s operation since its inception, and used in recording ‘‘engine power on’’ and ‘‘engine shut down’’ events, and also for <{Elapsed} Engine Hours>, which refers to the elapsed time in the engine’s operation in the given ignition power on cycle, and used in the recording of all other events. Purpose: Provides ability to identify gaps in the operation of a CMV, when the vehicle’s engine may be powered but the ELD may not; provides ability to cross check integrity of recorded data elements in events and prevent gaps in the recording of ELD. Source: ELD measurement or sensing. Used in: ELD events; ELD outputs. Data Type: Acquired from the engine ECM or a comparable other source as allowed in section 4.3.1.4. Data Range: For <{Total} Engine Hours>, range is between 0.0 and 99,999.9; for <{Elapsed} Engine Hours>, range is between 0.0 and 99.9. Data Length: 3–7 characters. Data Format: <Vehicle Miles> as in <C.C> to <CCCCC.C>. Disposition: Mandatory. Examples: [0.0], [9.9], [346.1], [2891.4]. 7.20. Event Code Description: A dependent attribute on ‘‘Event Type’’ parameter that further specifies the nature of the change indicated in ‘‘Event Type’’; this parameter indicates the new status after the change. Purpose: Provides ability to code the specific nature of the change electronically. Source: ELD internal calculations. Used in: ELD event records; ELD outputs. Data Type: ELD recorded and maintained event attribute in accordance with the type of event and nature of the new status being recorded. Data Range: Dependent on the ‘‘Event Type’’ as indicated on Table 6 of this appendix. Data Length: 1 character. Data Format: <Event Type> as in <C>. Disposition: Mandatory. Examples: [0], [1], [4], [9]. BILLING CODE 4910–EX–P E:\FR\FM\16DER2.SGM 16DER2 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 7.21. Event Data Check Value Description: A hexadecimal ‘‘check’’ value calculated in accordance with the procedure outlined in section 4.4.5.1 of this appendix and attached to each event record at the time of recording. Purpose: Provides ability to identify cases where an ELD event record may have been inappropriately modified after its original recording. Source: ELD internal. Used in: ELD events; ELD output file. Data Type: Calculated by the ELD in accordance with section 4.4.5.1 of this appendix. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Data Range: A number between hexadecimal 00 (decimal 0) and hexadecimal FF (decimal 255). Data Length: 2 characters. Data Format: <Event Data Check Value> as in <CC>. Disposition: Mandatory. Examples: [05], [CA], [F3]. 7.22. Event Record Origin Description: An attribute for the event record indicating whether it is automatically recorded, or edited, entered or accepted by the driver, requested by another authenticated user, or assumed from unidentified driver profile. PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 Purpose: Provides ability to track origin of the records. Source: ELD internal calculations. Used in: ELD event records; ELD outputs. Data Type: ELD recorded and maintained event attribute in accordance with the procedures outlined in sections 4.4.4.2.2, 4.4.4.2.3, 4.4.4.2.4, 4.4.4.2.5, and 4.4.4.2.6 of this appendix. Data Range: 1, 2, 3 or 4 as described on Table 7 of this appendix. Data Length: 1 character. Data Format: <Event Record Origin> as in <C>. Disposition: Mandatory. Examples: [1], [2], [3], [4]. E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.011</GPH> BILLING CODE 4910–EX–C 78411 78412 7.23. Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Event Record Status Description: An attribute for the event record indicating whether an event is active or inactive and further, if inactive, whether it is due to a change or lack of confirmation by the driver or due to a driver’s rejection of change request. 4.4.4.2.3, 4.4.4.2.4, 4.4.4.2.5, and 4.4.4.2.6 of this appendix. Data Range: 1, 2, 3 or 4 as described on Table 8 of this appendix. Data Length: 1 character. Data Format: <Event Record Status> as in <C>. Disposition: Mandatory. Examples: [1], [2], [3], [4]. Data Range: 0 to FFFF; initial factory value must be 0; after FFFF hexadecimal (decimal 65535), the next Event Sequence ID number must be 0. Data Length: 1–4 characters. Data Format: <Event Sequence ID Number> as in <C> to <CCCC>. Disposition: Mandatory. Examples: [1], [1F2C], p2D3], [BB], [FFFE]. Purpose: Provides ability to code the type of the recorded event in electronic format. Source: ELD internal calculations. Used in: ELD event records; ELD outputs. Data Type: ELD recorded and maintained event attribute in accordance with the type of event being recorded. Data Range: 1–7 as described on Table 9 of this appendix. Data Length: 1 character. Data Format: <Event Type> as in <C>. Disposition: Mandatory. Examples: [1], [5], [4], [7]. 7.25. Event Type ER16DE15.013</GPH> Description: An attribute specifying the type of the event record. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.012</GPH> tkelley on DSK9F6TC42PROD with RULES2 7.24. Event Sequence ID Number Description: This data element refers to the serial identifier assigned to each required ELD event as described in section 4.5.1 of this appendix. Purpose: Provides ability to keep a continuous record, on a given ELD, across all users of that ELD. Source: ELD internal calculations. Used in: ELD event records; ELD outputs. Data Type: ELD maintained; incremented by 1 for each new record on the ELD; continuous for each new event the ELD records regardless of owner of the records. Purpose: Provides ability to keep track of edits and entries performed over ELD records while retaining original records. Source: ELD internal calculations. Used in: ELD event records; ELD outputs. Data Type: ELD recorded and maintained event attribute in accordance with the procedures outlined in sections 4.4.4.2.2, Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 7.27. File Data Check Value Description: A hexadecimal ‘‘check’’ value calculated in accordance with the procedure outlined in section 4.4.5.3 of this appendix and attached to each ELD output file. Purpose: Provides ability to identify cases where an ELD file may have been inappropriately modified after its original creation. Source: ELD internal. Used in: ELD output files. Data Type: Calculated by the ELD in accordance with section 4.4.5.3 of this appendix. Data Range: A number between hexadecimal 0000 (decimal 0) and hexadecimal FFFF (decimal 65535). Data Length: 4 characters. Data Format: <File Data Check Value> as in <CCCC>. VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Disposition: Mandatory. Examples: [F0B5], [00CA], [523E]. 7.28. First Name Description: This data element refers to the given name of the individual holding an ELD account. Purpose: Links an individual to the associated ELD account. Source: Driver’s license for driver accounts; driver’s license or governmentissued ID for support personnel accounts. Used in: ELD account profile(s); ELD outputs (display and file). Data Type: Entered (during the creation of a new ELD account). Data Range: Any alphanumeric combination. Data Length: Minimum: 2; Maximum: 30 characters. Data Format: <First Name> as in <CC> to <CC......CC> where ‘‘C’’ denotes a character. Disposition: Mandatory for all accounts created on the ELD. Example: [John]. 7.29. Geo-Location Description: A descriptive indicator of the CMV position in terms of a distance and direction to a recognizable location derived from a GNIS database at a minimum containing all cities, towns and villages with a population of 5,000 or greater. Purpose: Provide recognizable location information on a display or printout to users of the ELD. Source: ELD internal calculations as specified in section 4.4.2 of this appendix. Used in: ELD display or printout. Data Type: Identified from the underlying latitude/longitude coordinates by the ELD. PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 Data Range: Contains four segments in one text field; a recognizable location driven from GNIS database containing—at a minimum— all cities, towns and villages with a population of 5,000 in text format containing a location name and the State abbreviation, distance from this location and direction from this location. Data Length: Minimum: 5; Maximum: 60 characters. Data Format: <Distance from {identified} Geo-location> <’mi ‘> <Direction from {identified} Geo-location> <’ ‘> <State Abbreviation {of identified} Geo Location> <’ ‘> <Place name of {identified} Geo-location> where: <Distance from {identified} Geo-location> must either be <{blank}> or <C> or <CC> where the up-to two character number specifies absolute distance between identified geo-location and event location; <Direction from {identified} Geo-location> must either be <{blank}> or <C> or <CC> or <CCC>, must represent direction of event location with respect to the identified geo-location, and must take a value listed on Table 10 of this appendix;<State Abbreviation {of identified} Geo Location> must take values listed on Table 5; <Place name of {identified} Geo-location> must be the text description of the identified reference location; Overall length of the ‘‘Geo-location’’ parameter must not be longer than 60 characters long. Disposition: Mandatory. Examples: [2mi ESE IL Darien], [1mi SE TX Dallas], [11mi NNW IN West Lafayette]. E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.014</GPH> 7.26. Exempt Driver Configuration Description: A parameter indicating whether the motor carrier configured a driver’s profile to claim exemption from ELD use. Purpose: Provides ability to code the motor carrier-indicated exemption for the driver electronically. Source: Motor carrier’s configuration for a given driver. Used in: ELD outputs. Data Type: Motor carrier configured and maintained parameter in accordance with the qualification requirements listed in § 395.1. Data Range: E (exempt) or 0 (number zero). Data Length: 1 character. Data Format: <Exempt Driver Configuration> as in <C>. Disposition: Mandatory. Examples: [E], [0]. 78413 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations tkelley on DSK9F6TC42PROD with RULES2 7.30. Last Name Description: This data element refers to the last name of the individual holding an ELD account. Purpose: Links an individual to the associated ELD account. Source: Driver’s license for driver accounts; driver’s license or governmentissued ID for support personnel accounts. Used in: ELD account profile(s); ELD outputs (display and file). Data Type: Entered (during the creation of a new ELD account). Data Range: Any alphanumeric combination. Data Length: Minimum: 2; Maximum: 30 characters. Data Format: <Last Name> as in <CC> to <CC.....CC>. Disposition: Mandatory for all accounts created on the ELD. Example: [Smith]. 7.31. Latitude Description: An angular distance in degrees north and south of the equator. Purpose: In combination with the variable ‘‘Longitude’’, this parameter stamps records requiring a position attribute with a reference point on the face of the earth. Source: ELD’s position measurement. Used in: ELD events; ELD outputs. Data Type: Latitude and Longitude must be automatically captured by the ELD. Data Range: ¥90.00 to 90.00 in decimal degrees (two decimal point resolution) in records using conventional positioning precision; ¥90.0 to 90.0 in decimal degrees (single decimal point resolution) in records VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 using reduced positioning precision when allowed; latitudes north of the equator must be specified by the absence of a minus sign (¥) preceding the digits designating degrees; latitudes south of the Equator must be designated by a minus sign (¥) preceding the digits designating degrees. Data Length: 3 to 6 characters. Data Format: First character: [<‘¥’> or <{blank}>]; then [<C> or <CC>]; then <‘.’>; then [<C> or <CC>]. Disposition: Mandatory. Examples: [¥15.68], [38.89], [5.07], [¥6.11], [¥15.7], [38.9], [5.1], [¥6.1]. 7.32. Line Data Check Value Description: A hexadecimal ‘‘check’’ value calculated in accordance with procedure outlined in section 4.4.5.2 and attached to each line of output featuring data at the time of output file being generated. Purpose: Provides ability to identify cases where an ELD output file may have been inappropriately modified after its original generation. Source: ELD internal. Used in: ELD output file. Data Type: Calculated by the ELD in accordance with 4.4.5.2. Data Range: A number between hexadecimal 00 (decimal 0) and hexadecimal FF (decimal 255) . Data Length: 2 characters. Data Format: <Line Data Check Value> as in <CC>. Disposition: Mandatory. Examples: [01], [A4], [CC]. PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 7.33. Longitude Description: An angular distance in degrees measured on a circle of reference with respect to the zero (or prime) meridian; The prime meridian runs through Greenwich, England. Purpose: In combination with the variable ‘‘Latitude’’, this parameter stamps records requiring a position attribute with a reference point on the face of the earth. Source: ELD’s position measurement. Used in: ELD events; ELD outputs. Data Type: Latitude and Longitude must be automatically captured by the ELD. Data Range: ¥179.99 to 180.00 in decimal degrees (two decimal point resolution) in records using conventional positioning precision; ¥179.9 to 180.0 in decimal degrees (single decimal point resolution) in records using reduced positioning precision when allowed; longitudes east of the prime meridian must be specified by the absence of a minus sign (¥) preceding the digits designating degrees of longitude; longitudes west of the prime meridian must be designated by minus sign (¥) preceding the digits designating degrees. Data Length: 3 to 7 characters. Data Format: First character: [<‘¥’> or <{blank}>]; then [<C>, <CC> or <CCC>]; then <‘.’>; then [<C> or <CC>]. Disposition: Mandatory. Examples: [¥157.81], [¥77.03], [9.05], [¥0.15], [¥157.8], [¥77.0], [9.1], [¥0.2]. 7.34. Malfunction/Diagnostic Code Description: A code that further specifies the underlying malfunction or data diagnostic event. E:\FR\FM\16DER2.SGM 16DER2 ER16DE15.015</GPH> 78414 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations Purpose: Enables coding the type of malfunction and data diagnostic event to cover the standardized set in Table 4 of this appendix. Source: ELD internal monitoring. Used in: ELD events; ELD outputs. Data Type: Recorded by ELD when malfunctions and data diagnostic events are set or reset. Data Range: As specified in Table 4 of this appendix. Data Length: 1 character. Data Format: <C>. Disposition: Mandatory. Examples: [1], [5], [P], [L]. 7.35. Malfunction Indicator Status Description: This is a Boolean indicator identifying whether the used ELD unit has an active malfunction set at the time of event recording. Purpose: Documents the snapshot of ELD’s malfunction status at the time of an event recording. Source: ELD internal monitoring functions. Used in: ELD events; ELD outputs. Data Type: Internally monitored and managed. Data Range: 0 (no active malfunction) or 1 (at least one active malfunction). Data Length: 1 character. Data Format: <Malfunction Indicator Status> as in <C>. Disposition: Mandatory. Examples: [0] or [1]. tkelley on DSK9F6TC42PROD with RULES2 7.36. Multiday Basis Used Description: This data element refers to the multiday basis (7 or 8 days) used by the motor carrier to compute cumulative duty hours. Purpose: Provides ability to apply the HOS rules accordingly. Source: Motor carrier. Used in: ELD account profile; ELD outputs. Data Type: Entered by the motor carrier during account creation process. Data Range: 7 or 8. Data Length: 1 character. Data Format: <Multiday basis used> as in <C>. Disposition: Mandatory. Examples: [7], [8]. 7.37. Order Number Description: A continuous integer number assigned in the forming of a list, starting at 1 and incremented by 1 for each unique item on the list. Purpose: Allows for more compact report file output generation avoiding repetitious use of CMV identifiers and usernames affected in records. Source: ELD internal. Used in: ELD outputs, listing of users and CMVs referenced in ELD logs. Data Type: Managed by ELD. Data Range: Integer between 1 and 99. Data Length: 1–2 characters. Data Format: <Order Number> as in <C> or <CC>. Disposition: Mandatory. Examples: [1], [5], [11], [28]. 7.38. Output File Comment Description: A textual field that may be populated with information pertaining to the VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 created ELD output file; An authorized safety official may provide a key phrase or code to be included in the output file comment, which may be used to link the requested data to an inspection, inquiry, or other enforcement action; if provided to the driver by an authorized safety official, it must be entered into the ELD and included in the exchanged dataset as specified. Purpose: The output file comment field provides an ability to link submitted data to an inspection, inquiry, or other enforcement action, if deemed necessary; further, it may also link a dataset to a vehicle, driver, carrier, and/or ELD that may participate in voluntary future programs that may involve exchange of ELD data. Source: Enforcement personnel or driver or motor carrier. Used in: ELD outputs. Data Type: If provided, output file comment is entered or appended to the ELD dataset prior to submission of ELD data to enforcement. Data Range: Blank or any alphanumeric combination specified and provided by an authorized safety official. Data Length: 0–60 characters. Data Format: <{blank}>, or <C> thru <CCCC......CCCC>. Disposition: Mandatory. Examples: [], [3BHG701015], [113G1EFW02], [7353930]. 7.39. Shipping Document Number Description: Shipping document number the motor carrier uses in their system and dispatch documents. Purpose: Links ELD data to the shipping records; makes ELD dataset consistent with § 395.8 requirements. Source: Motor carrier. Used in: ELD outputs. Data Type: Entered in the ELD by the authenticated driver or motor carrier and verified by the driver. Data Range: Any alphanumeric combination. Data Length: 0–40 characters. Data Format: <{blank}>, or <C> thru <CCCC......CCCC>. Disposition: Mandatory if a shipping number is used on motor carrier’s system. Examples: [], [B 75354], [FX334411707]. 7.40. Time Description: In combination with the variable ‘‘Date’’, this parameter stamps records with a reference in time; even though date and time must be captured in UTC, event records must use date and time converted to the time zone in effect at the driver’s home terminal as specified in section 4.4.3 of this appendix. Purpose: Provides ability to record the instance of recorded events. Source: ELD’s converted time measurement. Used in: ELD events; ELD outputs. Data Type: UTC time must be automatically captured by ELD; time in effect at the driver’s home terminal must be calculated as specified in section 4.4.3 of this appendix. Data Range: Any valid date combination expressed in <HHMMSS> format where PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 78415 ‘‘HH’’ refers to hours of the day, ‘‘MM’’ refers to minutes, and ‘‘SS’’ refers to seconds. Data Length: 6 characters. Data Format: <HHMMSS> where <HH> must be between 00 and 23, <MM> and <SS> must be between 00 and 59. Disposition: Mandatory. Examples: {070111}, {001259}, {151522}, {230945}. 7.41. Time Zone Offset from UTC Description: This data element refers to the offset in time between UTC time and the time standard in effect at the driver’s home terminal. Purpose: Establishes the ability to link records stamped with local time to a universal reference. Source: Calculated from measured variable <{UTC} Time> and <{Time Standard in Effect at driver’s home terminal} Time>; Maintained together with ‘‘24-hour Period Starting Time’’ parameter by the motor carrier or tracked automatically by ELD. Used in: ELD account profile; ELD event: Driver’s certification of own records. Data Type: Programmed or populated on the ELD during account creation and maintained by the motor carrier or ELD to reflect true and accurate information for drivers. This parameter must adjust for Daylight Saving Time changes in effect at the driver’s home terminal. Data Range: 04 to 11; omit sign. Data Length: 2 characters. Data Format: <Time Zone Offset from UTC> as in <HH> where ‘‘HH’’ refer to hours in difference. Disposition: Mandatory. Examples: {04}, {05}, {10}. 7.42. Trailer Number(s) Description: This data element refers to the identifier(s) the motor carrier uses for the trailers in their normal course of business. Purpose: Identifies the trailer(s) a driver operates while a driver’s ELD records are recorded; makes ELD records consistent with § 395.8 which requires the trailer number(s) to be included on the form. Source: Unique trailer identifiers a motor carrier uses in their normal course of business and includes on dispatch documents, or the license number and licensing State of each towed unit; trailer number(s) must be updated each time hauled trailers change. Data Type: Automatically captured by the ELD or populated by motor carrier’s extended ELD system or entered by the driver; must be updated each time the hauled trailer(s) change. Data Range: Any alphanumeric combination. Data Length: Minimum: blank; Maximum: 32 characters (3 trailer numbers each maximum 10 characters long, separated by spaces). Data Format: Trailer numbers; separated by space in case of multiple trailers hauled at one time; field to be left ‘‘blank’’ for noncombination vehicles (such as a straight truck or bobtail tractor). <Trailer Unit Number {#1}><’ ‘><Trailer Unit Number {#2}> <’ ‘><Trailer Unit Number {#3}> as in <{blank}> to E:\FR\FM\16DER2.SGM 16DER2 78416 Federal Register / Vol. 80, No. 241 / Wednesday, December 16, 2015 / Rules and Regulations <CCCCCCCCCC CCCCCCCCCC CCCCCCCCCC>. Disposition: Mandatory when operating combination vehicles. Examples: {987}, {00987 PP2345}, {BX987 POP712 10567}, {TX12345 LA22A21}. tkelley on DSK9F6TC42PROD with RULES2 7.43. Vehicle Miles Description: This data element refers to the distance traveled using the CMV in whole miles; this parameter is a placeholder for <{Total} Vehicle Miles>, which refers to the odometer reading and is used in recording ‘‘engine power on’’ and ‘‘engine shut down’’ events, and also for <{Accumulated} Vehicle VerDate Sep<11>2014 18:38 Dec 15, 2015 Jkt 238001 Miles>, which refers to the accumulated miles in the given ignition power on cycle and is used in the recording of all other events. Purpose: Provides ability to track distance traveled while operating the CMV in each duty status. Total miles traveled within a 24hour period is a required field in § 395.8. Source: ELD measurement or sensing. Used in: ELD events; ELD outputs. Data Type: Acquired from the engine ECM or a comparable other source as allowed in section 4.3.1.3. Data Range: For <{Total} Vehicle Miles>, range is between 0 and 9,999,999; for PO 00000 Frm 00126 Fmt 4701 Sfmt 9990 <{Accumulated} Vehicle Miles>, range is between 0 and 9,999. Data Length: 1–7 characters. Data Format: <Vehicle Miles> as in <C> to <CCCCCCC>. Disposition: Mandatory. Examples: [99], [1004566], [0], [422]. Issued under authority delegated in 49 CFR 1.87 on: November 23, 2015. T.F. Scott Darling, III, Acting Administrator. [FR Doc. 2015–31336 Filed 12–10–15; 4:15 pm] BILLING CODE 4910–EX–P E:\FR\FM\16DER2.SGM 16DER2

Agencies

[Federal Register Volume 80, Number 241 (Wednesday, December 16, 2015)]
[Rules and Regulations]
[Pages 78291-78416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31336]



[[Page 78291]]

Vol. 80

Wednesday,

No. 241

December 16, 2015

Part II





Department of Transportation





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Federal Motor Carrier Safety Administration





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49 CFR Parts 385, 386, 390, and 395





Electronic Logging Devices and Hours of Service Supporting Documents; 
Final Rule

Federal Register / Vol. 80 , No. 241 / Wednesday, December 16, 2015 / 
Rules and Regulations

[[Page 78292]]


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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.

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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)

[[Page 78293]]

    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 v. 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:
    1. 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.
    2. Technical Specifications--Two of the options for the required 
electronic data transfer included in the SNPRM (Quick Response (QR) 
codes and TransferJet) \1\ have been removed. Electronic data transfer 
must be made by either (1) wireless Web services and email or (2) 
Bluetooth[supreg] 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.
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    \1\ 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.''
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    3. 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.
    4. ELD Certification--To ensure that ELD providers \2\ 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.
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    \2\ ``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.
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    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.

[[Page 78294]]

    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 Sec.  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
                                                                                 -------------------------------
                                                        3%              7%              3%              7%
----------------------------------------------------------------------------------------------------------------
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.....................               2               2               2               2
    HOS Compliance Costs........................             936             929             797             790
    CMV Driver Training Costs...................               9              10               7               8
    Enforcement Training Costs..................               1               2               1               2
    Enforcement Equipment Costs.................               1               1               1               1
                                                 ---------------------------------------------------------------
        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 2:
                                                   Option 1:     RODS
                                                    all HOS     drivers
                                                    drivers      only
------------------------------------------------------------------------
Crashes Avoided.................................       2,217       1,844
Injuries Avoided................................         675         562
Lives Saved.....................................          31          26
------------------------------------------------------------------------

III. Public Participation

    To view comments, as well as any documents identified in this 
preamble as available in the docket, go to https://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 Sec.  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 Sec.  395.8(a)(1)(iii) from 
installing and using ELDs and may continue to use ``paper'' RODS: \3\
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    \3\ ``Paper RODS'' means RODS that are not kept on an ELD or 
AOBRD, but instead are either recorded manually in accordance with 
Sec.  395.8(f) or on a computer not synchronized to the vehicle or 
that otherwise does not qualify as an ELD or AOBRD.
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     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.

[[Page 78295]]

     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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  395.2, today's rule defines ``supporting 
document.'' To be considered supporting documents, they need to meet 
certain criteria in Sec.  395.11(c)(2). The eight documents should 
contain these elements from Sec.  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 Sec.  
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 Sec.  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 Sec.  395.8(a)(1)(iii), 
Sec.  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, Sec.  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 Sec.  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 
Sec.  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

[[Page 78296]]

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 Sec.  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 Sec.  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.

[[Page 78297]]

    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,\4\ 
and an online commenting system pilot program called Regulation 
Room.\5\
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    \4\ 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.
    \5\ The Regulation Room is available on line at: https://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 v. 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.\6\
---------------------------------------------------------------------------

    \6\ 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.\7\
---------------------------------------------------------------------------

    \7\ 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

[[Page 78298]]

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)).\8\ 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.
---------------------------------------------------------------------------

    \8\ Available at https://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
----------------------------------------------------------------------------------------------------------------
                                                                                              Today's ELD Final
       Feature/Function        1988 AOBRD Rule     2010 EOBR Rule        2014 ELD SNPRM             rule
----------------------------------------------------------------------------------------------------------------
Integral Synchronization.....  Integral         Integral              Integral              Integral
                                synchronizatio   synchronization       synchronization       synchronization
                                n required,      required, defined     with the CMV          interfacing with
                                but term not     to specify signal     engine,* to           the CMV engine ECM,
                                defined in the   source internal to    automatically         to automatically
                                FMCSRs.          the CMV.              capture engine        capture engine
                                                                       power status,         power status,
                                                                       vehicle motion        vehicle motion
                                                                       status, miles         status, miles
                                                                       driven, engine        driven, engine
                                                                       hours.*.              hours.
                                                                      For model year 2000   (CMVs older than
                                                                       and later,            model year 2000
                                                                       interfacing with      exempted).
                                                                       engine control
                                                                       module (ECM).
Recording Location             Required at      Require automated     Require automated     Require automated
 Information.                   each change of   entry at each         entry at each         entry at each
                                duty status.     change of duty        change of duty        change of duty
                                Manual or        status and at 60-     status, at 60-        status, at 60-
                                automated.       minute intervals      minute intervals      minute intervals
                                                 while CMV in motion.  while CMV is in       while CMV is in
                                                                       motion, at engine-    motion, at engine-
                                                                       on and engine-off     on and engine-off
                                                                       instances, and at     instances, and at
                                                                       beginning and end     beginning and end
                                                                       of personal use and   of personal use and
                                                                       yard moves.           yard moves.

[[Page 78299]]

 
Graph Grid Display...........  Not required--   Not required on       An ELD must be able   An ELD must be able
                                ``time and       EOBR, digital file    to present a graph    to present a graph
                                sequence of      to generate graph     grid of driver's      grid of driver's
                                duty status      grid on enforcement   daily duty status     daily duty status
                                changes''.       official's portable   changes either on a   changes either on a
                                                 computer.             display or on a       display or on a
                                                                       printout.             printout.
HOS Driver Advisory Messages.  Not addressed..  Requires              HOS limits            HOS limits
                                                 notification at       notification not      notification not
                                                 least 30 minutes      required..            required.
                                                 before driver        ``Unassigned driving  ``Unassigned driving
                                                 reaches 24-hour and   time/miles''          time/miles''
                                                 7/8 day driving and   warning provided      warning provided
                                                 on-duty limits.       upon login.           upon login.
Device ``Default'' Duty        Not addressed..  On-duty not driving   On-duty not driving,  On-duty not driving,
 Status.                                         when the vehicle is   when CMV has not      when CMV has not
                                                 stationary (not       been in-motion for    been in-motion for
                                                 moving and the        5 consecutive         5 consecutive
                                                 engine is off) 5      minutes, and driver   minutes, and driver
                                                 minutes or more.      has not responded     has not responded
                                                                       to an ELD prompt      to an ELD prompt
                                                                       within 1 minute. No   within 1 minute. No
                                                                       other non-driver-     other non-driver-
                                                                       initiated status      initiated status
                                                                       change is allowed.    change is allowed.
Clock Time Drift.............  Not addressed..  Absolute deviation    ELD time must be      ELD time must be
                                                 from the time base    synchronized to       synchronized to
                                                 coordinated to        UTC, absolute         UTC, absolute
                                                 (UTC) Coordinated     deviation must not    deviation must not
                                                 Universal Timeshall   exceed 10 minutes     exceed 10 minutes
                                                 not exceed 10         at any point in       at any point in
                                                 minutes at any time.  time.                 time.
Communications Methods.......  Not addressed--  Wired: USB 2.0        Primary: Wireless     Two Options: 1-
                                focused on       implementing Mass     Web services or       Telematics: As a
                                interface        Storage Class 08H     Bluetooth 2.1 or      minimum, the ELD
                                between AOBRD    for driverless        Email (SMTP) or       must transfer data
                                support          operation..           Compliant Printout.   via both wireless
                                systems and     Wireless: IEEE        Backup Wired/          Web services and
                                printers.        802.11g, CMRS.        Proximity: USB 2.0    wireless email
                                                                       * and (Scannable QR  2-``Local
                                                                       codes, or             Transfer'': As a
                                                                       TransferJet *).       minimum, the ELD
                                                                      * Except for           must transfer data
                                                                       ``printout            via both USB 2.0
                                                                       alternative''.        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        Must not permit       ELD must not permit   ELD must not permit
                                support          alteration or         alteration or         alteration or
                                systems, must    erasure of the        erasure of the        erasure of the
                                be, to the       original              original              original
                                maximum extent   information           information           information
                                practical,       collected             collected             collected
                                tamperproof.     concerning the        concerning the        concerning the
                                                 driver's HOS, or      driver's ELD          driver's ELD
                                                 alteration of the     records or            records or
                                                 source data streams   alteration of the     alteration of the
                                                 used to provide       source data streams   source data streams
                                                 that information.     used to provide       used to provide
                                                                       that information.     that information.
                                                                       ELD must support      ELD must support
                                                                       data integrity        data integrity
                                                                       check functions.      check functions.
Identification of Sensor       Must identify    Device/system must    ELD must have the     ELD must have the
 Failures and Edited Data.      sensor           identify sensor       capability to         capability to
                                failures and     failures and edited   monitor its           monitor its
                                edited data.     and annotated data    compliance (engine    compliance (engine
                                                 when downloaded or    connectivity,         connectivity,
                                                 reproduced in         timing,               timing,
                                                 printed form.         positioning, etc.)    positioning, etc.)
                                                                       for detectable        for detectable
                                                                       malfunctions and      malfunctions and
                                                                       data                  data
                                                                       inconsistencies.      inconsistencies.
                                                                       ELD must record       ELD must record
                                                                       these occurrences.    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.\9\
---------------------------------------------------------------------------

    \9\ 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.\10\ The Agency asked the

[[Page 78300]]

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.
---------------------------------------------------------------------------

    \10\ 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 https://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.\11\ 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.
---------------------------------------------------------------------------

    \11\ 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 
https://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.\12\ 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.
---------------------------------------------------------------------------

    \12\ 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 
https://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    Final rule............  75 FR 17208, Apr. 5,    Established new performance
 Hours-of-Service Compliance.        RIN 2126-AA89.........   2010.                   standards for EOBRs,
                                     Docket No. 2004-18940.                           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           Notice of Regulatory    75 FR 32984, June 10,   Provided notice to the
 Supporting Documents and the Use     Guidance and Policy     2010.                   motor carrier industry and
 of Electronic Mobile Communication/  Change..                                        the public of regulatory
 Tracking Technology in Assessing    No RIN................                           guidance and policy
 Motor Carriers' and Commercial      No docket number......                           changes regarding the
 Motor Vehicle Drivers' Compliance                                                    retention of supporting
 With the Hours of Service                                                            documents and the use of
 Regulations.                                                                         electronic mobile
                                                                                      communication/tracking
                                                                                      technology in assessing
                                                                                      motor carriers' and
                                                                                      commercial motor vehicle
                                                                                      drivers' compliance with
                                                                                      the HOS regulations.
Electronic On-Board Recorders for    Final rule; Technical   75 FR 55488, Sept. 13,  Amended requirements for
 Hours-of-Service Compliance.         amendments, response    2010.                   the temperature range in
                                      to petitions for                                which EOBRs must be able
                                      reconsideration,.                               to operate, and the
                                     RIN 2126-AA89.........                           connector type specified
                                     Docket No. 2004-18940.                           for the USB interface.
Electronic On-Board Recorders and    NPRM..................  76 FR 5537, Feb. 1,     Required all motor carriers
 Hours-of-Service Supporting         RIN 2126-AB20.........   2011.                   currently required to
 Documents.                          Docket No. FMCSA-2010-                           maintain RODS for HOS
                                      0167.                                           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    NPRM; extension of      76 FR 13121, Mar. 10,   Extended the public comment
 Hours-of-Service Supporting          comment period,.        2011.                   period for the NPRM from
 Documents.                          RIN 2126-AB20.........                           April 4, 2011, to May 23,
                                     Docket No. FMCSA-2010-                           2011.
                                      0167.
Electronic On-Board Recorders and    Notice; request for     76 FR 20611, Apr. 13,   Expanded the opportunity
 Hours-of-Service Supporting          additional public       2011.                   for the public to comment
 Documents.                           comment.                                        on the issue of ensuring
                                     RIN 2126-AB20.........                           that EOBRs are not used to
                                     Docket No. FMCSA-2010-                           harass CMV drivers.
                                      0167.
Motor Carrier Safety Advisory        Notice of meeting.....  76 FR 38268, June 29,   Announced series of
 Committee (MCSAC) Series of Public  Related to RIN 2126-     2011.                   subcommittee meetings on
 Subcommittee Meetings.               AA89.                                           task 11-04, concerning
                                     Docket No. FMCSA-2006-                           technical specifications
                                      26367.                                          for an EOBR as related to
                                                                                      the April 2010 final rule.

[[Page 78301]]

 
Owner-Operator Indep. Drivers Ass'n  Judicial Decision,      Owner-Operator Indep.   Vacated the April 2010
 v. Fed. Motor Carrier Safety Admin.  United States Court     Drivers Ass'n v. Fed.   rule.
                                      of Appeals, Seventh     Motor Carrier Safety
                                      Circuit.                Admin.,
                                     Related to RIN 2126-    656 F.3d. 580 (7th
                                      AA89.                   Cir. 2011),.
                                     No docket number......  Aug. 26, 2011.........
Motor Carrier Safety Advisory        Notice of meetings      76 FR 62496, Oct. 7,    Oct. 24-27, 2011,
 Committee Series of Public           related to EOBRs.       2011.                   subcommittee review of the
 Subcommittee Meetings.              No RIN................                           functional specifications
                                     Docket No. FMCSA-2006-                           for EOBRs published by
                                      26367.                                          FMCSA as part of EOBR
                                                                                      final rule
MCSAC: Public Meeting Medical        Notice of meeting.....  77 FR 3546, Jan. 24,    Announced meeting on task
 Review Board: Joint Public Meeting  Related to RIN 2126-     2012.                   12-01, concerning issues
 With MCSAC.                          AB20.                                           relating to the prevention
                                     Docket Nos. FMCSA-2006-                          of harassment of truck and
                                      26367 and FMCSA-2011-                           bus drivers through EOBRs.
                                      0131.
Electronic On-Board Recorders and    Notice of intent......  77 FR 7562, Feb. 13,    Announced FMCSA's intent to
 Hours-of-Service Supporting         RIN 2126-AB20.........   2012.                   go forward with an SNPRM;
 Documents.                          Docket No. FMCSA-2010-                           two public listening
                                      0167.                                           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    Notice of public        77 FR 12231, Feb. 29,   Announced public listening
 Hours-of-Service Supporting          listening session,.     2012.                   session held in
 Documents.                          RIN 2126-AB20.........                           Louisville, Kentucky on
                                     Docket No. FMCSA-2010-                           March 23, 2012.
                                      0167.
Electronic On-Board Recorders and    Notice of public        77 FR 19589, Apr. 2,    Announced public listening
 Hours-of-Service Supporting          listening session.      2012.                   session held in Bellevue,
 Documents.                          RIN 2126-AB20.........                           Washington on April 26,
                                     Docket No. FMCSA-2010-                           2012.
                                      0167.
Electronic On-Board Recorders for    Final rule............  77 FR 28448, May 14,    Responded to a decision of
 Hours-of-Service Compliance;        RIN 2126-AB45.........   2012.                   the Court of Appeals for
 Removal of Final Rule Vacated by    Docket No. FMCSA-2012-                           the Seventh Circuit that
 Court.                               0006.                                           vacated the April 2010
                                                                                      final rule.
Agency Information Collection        Notice and request for  77 FR 74267, Dec. 13,   FMCSA submits an
 Activities; New Information          information.            2012.                   Information Collection
 Collection Request: Driver and      No RIN................                           Request (ICR) to Office of
 Carrier Surveys Related to          Docket No. FMCSA-2012-                           Management and Budget
 Electronic On-Board Recorders        0309.                                           (OMB) for approval. The
 (EOBRs), and Potential Harassment                                                    purpose of this new ICR is
 Deriving From EOBR Use.                                                              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        Notice and request for  78 FR 32001, May 28,    The purpose of this new ICR
 Activities; Approval of a New        comments.               2013.                   is to broadly examine, by
 Information Collection Request:     No RIN................                           the collection of survey
 Driver and Carrier Surveys Related  Docket No. FMCSA-2012-                           data, the issue of driver
 to Electronic Onboard Recorders      0309.                                           harassment and determine
 (EOBRs), and Potential Harassment                                                    the extent to which EOBRs
 Deriving From EOBR Use.                                                              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.

[[Page 78302]]

 
Electronic Logging Devices and       Supplemental notice of  79 FR 17656, Mar. 28,   Proposed minimum
 Hours of Service Supporting          proposed rulemaking;    2014.                   performance and design
 Documents.                           request for comments.                           standards for HOS ELDs,
                                     RIN 2126-AB20.........                           mandated their use by
                                     Docket No. FMCSA-2010-                           drivers currently required
                                      0167.                                           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       Evaluating the          79 FR 27040, May 12,    Announced the availability
 Hours of Service Supporting          Potential Safety        2014.                   of a new final report,
 Documents.                           Benefits of                                     ``Evaluating the Potential
                                      Electronic Hours-of-                            Safety Benefits of
                                      Service Recorders;                              Electronic Hours-of-
                                      Notice of                                       Service Recorders.'' The
                                      availability of                                 study quantitatively
                                      research report.                                evaluated whether trucks
                                     RIN 2126-AB20.........                           equipped with Electronic
                                     Docket No. FMCSA-2010-                           Hours-of-Service Recorders
                                      0167.                                           (EHSRs) have a lower (or
                                                                                      higher) crash and hours-of-
                                                                                      service (HOS) violation
                                                                                      rate than those without
                                                                                      EHSRs.
Coercion of Commercial Motor         NPRM..................  79 FR 27265, May 13,    FMCSA proposes regulations
 Vehicle Drivers; Prohibition.       RIN 2126-AB57.........   2014.                   that prohibit motor
                                     Docket No. FMCSA-2012-                           carriers, shippers,
                                      0377.                                           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       Supplemental notice of  79 FR 28471, May 16,    Extended the public comment
 Hours of Service Supporting          proposed rulemaking;    2014.                   period for the Agency's
 Documents.                           extension of comment                            March 28, 2014 SNPRM until
                                      period.                                         June 26, 2014.
                                     RIN 2126-AB20.........
                                     Docket No. FMCSA-2010-
                                      0167.
Agency Information Collection        Notice and Request for  79 FR 642848, Oct. 28,  Invited public comment on
 Activities; New Information          Comments.               2014.                   the approval of a new
 Collection Request: Electronic      No RIN................                           information collection
 Logging Device Vendor Registration. Docket No.: FMCSA-2014-                          request entitled,
                                      0377.                                           Electronic Logging Device
                                                                                      Vendor Registration. This
                                                                                      ICR will enable
                                                                                      manufacturers of ELDs to
                                                                                      register with FMCSA.
Electronic Logging Devices and       Notice of Availability  79 FR 67541, Nov. 13,   Announced the availability
 Hours of Service Supporting          of Research Report.     2014.                   of a new report:
 Documents; Research Report on       RIN 2126-AB20.........                           ``Attitudes of Truck
 Attitudes of Truck Drivers and      Docket No. FMCSA-2010-                           Drivers and Carriers on
 Carriers on the Use of Electronic    0167.                                           the Use of Electronic
 Logging Devices and Driver                                                           Logging Devices and Driver
 Harassment.                                                                          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:       Notice and Request for  80 FR 18295, Apr. 3,    Announced the FMCSA plan to
 Activities; New Information          Comments.               2015.                   submit the Information
 Collection Request: Electronic      No RIN................                           Collection Request (ICR)
 Logging Device (ELD) Registration.  Docket No. FMCSA-2014-                           described below to the
                                      0377.                                           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         Final Rule............  80 FR 74695, Nov. 30,   Prohibits motor carriers,
 Vehicle Drivers; Prohibition.       RIN 2126-AB57.........   2015.                   shippers, receivers, or
                                     Docket No. FMCSA-2012-                           transportation
                                      0377.                                           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.
----------------------------------------------------------------------------------------------------------------


[[Page 78303]]

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,

[[Page 78304]]

operated by drivers who are required to keep RODS, be equipped with 
ELDs.\13\ 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.
---------------------------------------------------------------------------

    \13\ 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 Sec.  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.\14\
---------------------------------------------------------------------------

    \14\ Transcripts of both sessions are available in the docket 
for this rulemaking, and the Web casts are archived and available at 
https://www.tvworldwide.com/events/dot/120323/ and https://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 Sec.  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

[[Page 78305]]

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: https://www.tvworldwide.com/events/dot/120323/ and https://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

[[Page 78306]]

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 (https://

[[Page 78307]]

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

[[Page 78308]]

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 Sec.  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 Sec.  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

[[Page 78309]]

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 Sec.  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., Sec. Sec.  
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

[[Page 78310]]

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

[[Page 78311]]

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 Sec.  
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

[[Page 78312]]

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 Sec.  
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 Sec.  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.

[[Page 78313]]

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 Sec.  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 Sec.  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.'' \15\ 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.
---------------------------------------------------------------------------

    \15\ 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

[[Page 78314]]

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 
Sec.  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.

[[Page 78315]]

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) \16\ 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].''
---------------------------------------------------------------------------

    \16\ 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.

[[Page 78316]]

    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 compliance at a reasonable cost to 
carriers. It recommended that two supporting documents be required per 
driver's workday--the one nearest the start of the day and the one 
nearest the end--sufficient to verify the 14-hour rule. ATA noted that, 
according to a prior FMCSA HOS rulemaking, only a small percentage of 
drivers operate near the cumulative 60/70 hour duty time limit,\17\ and 
that fact does not justify FMCSA's proposal for motor carriers to 
retain supporting documents for all mid-shift duty changes. The 
Truckload Carriers Association (TCA) also suggested that the only other 
supporting documents that should be retained are the documents closest 
to the beginning and the end of the driver's workday.
---------------------------------------------------------------------------

    \17\ Although this fact was attributed to FMCSA, the statement 
apparently reflected the commenter's view and not necessarily that 
of the Agency.
---------------------------------------------------------------------------

    The American Bus Association (ABA) proposed limiting the supporting 
document requirement to five documents from three categories. FedEx 
suggested that motor carriers should only be responsible for fuel data 
plus one other supporting document type, if one exists. Knight 
Transportation, Inc. (Knight) noted that enforcement generally relies 
on no more than two to three supporting documents. The American Moving 
& Storage Association (AMSA) noted that, in the case of household goods 
drivers, ODND time is likely to be extensive and requested that the 
required supporting documents be kept to a minimum and simplified to 
the extent possible.
    The International Foodservice Distributors Association, the Snack 
Food Association, and an individual commenter noted that the location 
and tracking functions in the ELDs should eliminate the need for 
additional paperwork. They therefore recommended elimination of 
supporting document requirements. The National Waste & Recycling 
Association suggested a total exemption from the supporting documents 
requirement for local routes.
    FedEx suggested that FMCSA wait to modify the rule on supporting 
documents until after the ELD rule has been in effect long enough to 
determine if drivers are falsifying their ODND time on ELDs and if 
crashes are occurring as a direct result of drivers improperly 
recording ODND time.
    The Institute of Makers of Explosives (IME) and the National 
Private Truck Council both asked FMCSA to continue to look at 
supporting document requirements with an eye to providing more 
flexibility and considering additional means to reduce the compliance 
burden on carriers.
    Other commenters mistakenly believed that FMCSA asserted that the 
proposed supporting document changes will reduce paperwork. Drivers and 
carriers will still have to retain certain documents for other business 
purposes.
    In terms of the 10-document cap, ATA noted that, because it is rare 
for any document to reflect all of the required elements, carriers 
would have to substitute documents containing all required elements 
except time, which are not subject to the 10-document daily cap. As 
such, the 10-document cap is a benefit in theory only and provides no 
actual relief from the HOS supporting documents requirements.
3. FMCSA Response
    As explained in the 2014 SNPRM, FMCSA made major changes to the 
proposed supporting documents regulations based upon public comments 
submitted in response to the NPRM. The Agency disagrees with commenters 
that suggest that the number of required supporting documents has been 
increased through the 2014 SNPRM. This final rule does not change the 
fundamental nature of supporting documents; they are records generated 
in the normal business rather than documents created specifically to 
verify the duty status of a driver. Because supporting documents used 
to verify driving time would no longer be required of carriers that use 
ELDs, some carriers subject to the ELD mandate would end up having 
fewer supporting documents than they were required to retain before 
today's rule. And whenever possible, FMCSA tried to reduce the costs 
and complication of retaining supporting documents without compromising 
the efficiency in ensuring HOS compliance.
    In today's rule, the definition of ``supporting document,'' makes 
clear that a document can be in ``any medium,'' consistent with the 
SNPRM. (The reference to CMV driver in HMTAA is not repeated because a 
driver's obligations are addressed in substantive provisions concerning 
supporting documents.) In addressing the frequency requirement, the 
Agency tied the cap to a driver's 24-hour period. While the SNPRM 
proposed a 10 document cap, FMCSA reduced the supporting document cap 
to eight documents in today's rule. This definition, combined with 
clearer categories, and a reduced number of required documents, will 
allow drivers and carriers to comply at a reasonable cost.
    While FMCSA appreciates the desire to eliminate supporting 
documents or to wait until after widespread ELD use before implementing 
the requirement, FMCSA does not believe that the ELD eliminates the 
need for supporting documents. Today's rule requires the retention of 
supporting documents generated or received in the normal course of 
business--an essential resource for both authorized safety officials 
and motor carriers to verify compliance with the HOS rules. Supporting 
documents are critical in checking ODND periods. FMCSA acknowledges 
that motor carriers retain supporting documents for reasons other than 
verifying compliance with the HOS rules, including complying with the 
rules of other agencies. Thus, the Agency did not project in the SNPRM 
or in today's rule any paperwork savings associated with the supporting 
documents provisions.
    In terms of the number of documents employed in on-site enforcement 
interventions or investigations, the Agency uses all types of 
supporting documents to evaluate a driver's RODS. Because of the scope 
of transportation activities and the range of documents, enforcement 
authorities cannot effectively evaluate the accuracy of a driver's RODS 
based on a maximum of two to three supporting documents per duty day. 
FMCSA recognizes the number of supporting documents obtained daily may 
vary based upon the driver's activities. By establishing a maximum of 
eight supporting documents this rule promotes safety by ensuring that 
authorized safety officials have the opportunity to evaluate 
effectively the driver's RODS and HOS compliance.
    Limiting required supporting documents to the start and end of the 
workday is not adequate for ensuring HOS compliance especially with 
regard to on-duty, not driving periods. Documents acquired throughout 
the day are important in the enforcement of the 60/70-hour rule--a 
crucial part of ensuring HOS compliance. Compliance with the 60/70-hour 
rule limits is based on how many cumulative hours an individual works 
over a period of days. Supporting documents are critical in helping to 
verify the proper duty statuses for an individual in calculating 
compliance with the 60/70 hour rules. FMCSA notes that, absent 
sufficient documents reflecting each element,

[[Page 78317]]

documents lacking time would count in applying the 8-document cap.

B. Categories

1. Comments to the 2011 NPRM
    The NPRM proposed four categories of supporting documents: (1) 
Payroll, (2) trip-related expense records and receipts, (3) FMS 
communication logs, and (4) bills of lading or equivalent documents.
    Some commenters said the four categories represented a significant 
expansion of the existing requirement. These commenters stated that the 
four categories were confusing, vague, and unjustifiably burdensome, 
and instead suggested short, specific lists of documents. FedEx said 
that a short list of supporting documents, used in the Compliance 
Review process, would hold all carriers to the same standard. ATA said 
that a short list might be more effective in getting motor carriers to 
retain supporting documents. OOIDA cautioned that small-business motor 
carriers, particularly sole proprietors, might not maintain payroll or 
expense records, or use an FMS or communications logs.
    Many commenters agreed with the Agency that EOBRs would make 
supporting documents related to driving time unnecessary. Other 
commenters, however, recommended that the Agency continue to require 
supporting documents for driving time. A driver said that supporting 
documents reflecting drive time show whether routes conformed to speed 
limits, or if a driver was speeding to achieve company productivity 
standards. The American Association for Justice wanted the Agency to 
continue requiring supporting documents for driving time to guard 
against EOBR equipment failure, drivers and motor carriers abusing the 
system, and multiple drivers using one truck. The Association also 
wanted FMCSA to require motor carriers to notify GPS providers 
immediately after a crash and to require GPS providers to retain crash-
related data for 6 months.
2. Comments to the 2014 SNPRM
    Based on comments received to the NPRM, FMCSA modified the 
description of the categories of required supporting documents in the 
SNPRM. For every 24-hour period a driver is on duty, the motor carrier 
would be required to retain a maximum number of supporting documents 
from the following five categories: (1) Bills of lading, itineraries, 
schedules, or equivalent documents that indicate the origin and 
destination of each trip; (2) dispatch records, trip records, or 
equivalent documents; (3) expense receipts related to ODND time; (4) 
electronic mobile communication records reflecting communications 
transmitted through an FMS for the driver's 24-hour duty day; and (5) 
payroll records, settlement sheets, or equivalent documents that 
indicate what and how a driver was paid. Drivers who continue to use 
paper RODS would also need to retain toll receipts.
    The ATA, the IME, and others supported FMCSA's proposal to relieve 
motor carriers of the requirement to retain supporting documents to 
verify on-duty driving time. ATA pointed out that because ELDs are 
synchronized with the vehicle, they consistently, reliably, and 
automatically capture vehicle movement, and the potential for 
underreporting driving time is minimal, if not non-existent.
    NTSB, however, noted that it has found toll information, such as EZ 
Pass data and toll receipts, to be some of the most reliable 
information in verifying HOS compliance. It recommended that FMCSA 
consider specifically listing toll receipts and electronic toll data in 
the five categories of required supporting data. As to the requirement 
that drivers who continue to use paper RODS still need to retain toll 
receipts, FedEx suggested that FMCSA allow motor carriers to retain 
either toll receipts or trip dispatch records, so long as those 
documents are created in the ordinary course of business.
3. FMCSA Response
    The role of supporting documents is to improve HOS compliance by 
providing verifiable records to compare with the RODS to ensure the 
accuracy of the information entered by the driver. Given the broad 
diversity of motor carrier and CMV operations, the Agency does not 
believe that a specific list of supporting documents is appropriate for 
verifying compliance with the HOS regulations. FMCSA intends the five 
categories of supporting documents to accommodate various sectors of 
the industry. Although ELDs eliminate the need for supporting documents 
that reflect driving time, supporting documents are important in 
reconstructing a driver's ODND time and other duty statuses--a key 
element in overall HOS compliance, most notably as it relates to the 
14-hour and weekly on-duty limits. FMCSA believes that the five 
categories proposed in the SNPRM clarified the requirement for 
supporting documents without compromising the Agency's enforcement 
abilities. FMCSA did not change the categories of documents required in 
today's rule.
    FMCSA also believes that the listed categories of supporting 
documents, combined with the reduced cap of eight documents per duty 
day, will not result in an unreasonable burden. FMCSA notes that two 
categories--electronic mobile communications and payroll records--will 
typically not be documents a driver would have to physically retain, 
and may be a part of a larger record that the carrier already has to 
retain electronically or physically at the dispatch location or 
principal place of business.
    FMCSA eliminates the requirement to retain supporting documents, 
such as toll receipts, that verify on-duty driving time for drivers 
using ELDs. Given that ELDs will adequately track driving time, 
requiring such documents would be redundant and would not further the 
purpose of this rule, which is to improve HOS compliance.
    FMCSA does not create a new requirement that GPS records be 
preserved after a crash. The Agency currently requires that RODS and 
supporting documents be retained for 6 months after receipt and this 
requirement does not change in today's rule. Crash records are 
addressed in a separate regulation.
    FMCSA emphasizes that drivers using paper RODS must also keep toll 
receipts. These drivers are not required to use ELDs, and, absent an 
ELD, this documentation of driving time is necessary. Required toll 
receipts do not count towards the eight-document cap.

C. Data Elements

1. Comments to the 2011 NPRM
    The February 2011 NPRM was based on an assumption that only one 
supporting document--containing driver name or identification number, 
date and time, and location--would be needed for the beginning and end 
of each ODND period within the duty status day. Absent a document 
containing all four elements, a carrier would have been required to 
retain sufficient individual documents from specified categories.
    Commenters suggested that the proposed requirements would demand a 
significant expansion of their current recordkeeping responsibilities. 
Commenters also stated that at least some of the proposed data elements 
are usually missing from documents created or received in the normal 
course of business. Based on its research, one commenter said that only 
drug testing control and custody forms, fuel receipts, and roadside 
inspection reports provide

[[Page 78318]]

any of the proposed data elements useful in verifying ODND activity. 
Because such a supporting document is rare, some commenters stated that 
motor carriers would be forced to retain multiple documents. 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 many--and a broad range of--documents. Another 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
    In the SNPRM, FMCSA modified the data elements that a document must 
contain to qualify as a supporting document. FMCSA agreed with ATA and 
other commenters that relying on a single document is generally 
unrealistic. Further, the SNPRM prescribed how the necessary elements 
related to the document retention cap. The proposed data elements were: 
(1) 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; (2) date; (3) location (including name of 
nearest city, town, or village); and (4) time. If sufficient documents 
containing these four data elements were not available, a motor carrier 
would be required to retain supporting documents that contain the 
driver name or motor carrier-assigned identification number, date, and 
location.
    Schneider requested clarification about whether a document that 
does not contain the four data elements would meet the definition of a 
supporting document and need to be retained. Schneider noted that the 
only documents that have all four data elements are expense receipts, 
like fueling, drug and alcohol chain-of-custody forms, and accident 
reports. Schneider also noted that bills of lading, dispatch records, 
and pay records do not contain a start time or end time and, in some 
cases, location information. As such, those documents do not verify a 
driver's duty record.
3. FMCSA Response
    FMCSA understands Schneider's comment that some categories of 
document may not contain some of the data elements. We believe, 
however, that the driver identifier, date, and location are crucial 
elements in HOS compliance. If a motor carrier has fewer than eight 
documents containing all four data elements, a document would qualify 
as a supporting document if it contains each data element, except time. 
Under this scenario, a document lacking time would nonetheless count in 
applying the 8-document cap.

D. Supporting Document Exemption for Self-Compliance System

1. Comments to the 2011 NPRM
    The NPRM included a provision to authorize, on a case-by-case 
basis, motor carrier self-compliance systems, as required by section 
113(b)(4) of HMTAA. The statute requires FMCSA to provide exemptions 
for motor carriers to use qualifying ``self-compliance systems'' 
instead of retaining supporting documents. FMCSA proposed using the 
procedures already in 49 CFR part 381, subpart C, Exemptions, to 
consider requests for exemption from the retention and maintenance 
requirements for supporting documents. In the NPRM, the Agency asked 
commenters to describe their current self-compliance systems or the 
systems they might anticipate developing.
    Klapec and Werner said they had self-compliance systems. One 
provided some details on its auditing procedures. Several commenters 
were concerned that the number of companies seeking exemptions for 
self-compliance systems could severely test the Agency's ability to 
respond. The Truck Safety Coalition and Advocates recommended 
rulemaking to provide minimum requirements for self-compliance systems. 
Advocates also wanted an explanation of how parts 381 and 395 would 
interact. A motor carrier recommended an expedited system for approval 
of a carrier's self-compliance exemption. Although ATA believed that 
using the part 381 process made sense, it was skeptical that FMCSA 
intends to consider such applications seriously.
2. Comments to the 2014 SNPRM
    The SNPRM re-proposed the same self-compliance system proposed in 
the NPRM. ATA and the Ohio Trucking Association (OTA) commented on the 
self-compliance systems proposal. ATA stated that it supports the 
proposed self-compliance system process and appreciates the non-
prescriptive approach and flexibility it provides. However, the OTA 
stated that FMCSA should develop and write requirements for the self-
compliance system process with comments from the public and the 
industry rather than forcing each individual carrier to develop its own 
proposal. OTA stated that with no guidance, motor carriers will be in 
the position of guessing what FMCSA might find acceptable and going 
through a long and often costly process of responding to FMCSA 
questions and public comment.
3. FMCSA Response
    In today's rule, the Agency retains the self-compliance option as 
it appeared in the NPRM and SNPRM. In 49 CFR 395.11(h), FMCSA 
authorizes, on a case-by-case basis, motor carrier self-compliance 
systems. A motor carrier may apply for an exemption under existing part 
381 provisions for additional relief from the requirements for 
retaining supporting documents. Because part 381 rules and procedures 
were developed in response to Congressional direction contained in 
section 4007 of the Transportation Equity Act for the 21st Century \18\ 
and already contain detailed requirements concerning the application 
and review processes for exemptions,\19\ the Agency does not create a 
separate process for exemptions related to part 395 regulations. In 
response to commenters who asked if this would test FMCSA's resources, 
FMCSA is confident that the Agency would be able to comply with the 
requirements of HMTAA. Given the diversity of the industry, FMCSA 
continues to believe that a non-prescriptive, flexible standard to 
achieve compliance is appropriate, and does not establish minimum 
standards for a self-compliance system.
---------------------------------------------------------------------------

    \18\ Public Law 105-178, 112 Stat. 107 (June 9, 1998).
    \19\ See 63 FR 67608, December 8, 1998.
---------------------------------------------------------------------------

E. Supporting Document Management

1. Comments to the 2011 NPRM
    FMCSA's NPRM proposal would require motor carriers and CMV drivers 
to share responsibility for complying with the proposed supporting 
document requirements. The NPRM proposed that drivers submit supporting 
documents to a motor carrier within 3 days or, in the case of 
electronic records, within a single day. A motor carrier would be 
required to maintain an HOS management system to detect violations of 
the HOS rules. The motor carrier would be required to retain supporting 
documents for its drivers for a period of 6 months.
    A commenter objected to any requirement that a motor carrier 
collect from the CMV driver documents of a personal nature generated 
during the course of business to be used as supporting documents. The 
commenter also objected to any obligation on the driver or the motor 
carrier ``to alter, annotate or assemble documents from

[[Page 78319]]

the form in which they are generated in the normal course of 
business.'' OOIDA noted that small carriers may not keep certain 
records that would qualify as supporting documents. OOIDA asked FMCSA 
to clarify the requirements, including whether drivers or motor 
carriers would be required ``to note the missing information on these 
documents.''
2. Comments to the 2014 SNPRM
    Like the NPRM, the SNPRM would require motor carriers and CMV 
drivers to share responsibility for complying with the proposed 
supporting document requirements. However, based on comments to the 
NPRM, the supporting document provisions were changed. The proposed HOS 
management system was among the provisions eliminated in the SNPRM. The 
definition and requirements governing ``supporting document'' were 
clarified. FMCSA extended the proposed time in which a driver would be 
required to submit his or her supporting documents to the employing 
carrier to 8 days, consistent with the proposed submission period for 
RODS. Proposed Sec.  395.11(e) required a motor carrier to retain 
supporting documents in a way that allows them to be ``effectively 
matched'' to the corresponding driver's RODS. However, a motor carrier 
would still need to retain supporting documents received in the course 
of business for 6 months.
    ATA opposed the requirement that carriers retain supporting 
documents in a way that allows them to be effectively matched to the 
corresponding driver's RODS. Although ATA believed it was reasonable to 
expect that carriers not deliberately make matching difficult or 
frustrate investigators, it noted that ``to require that carriers go 
beyond `retaining' records (keeping them in the manner in which they 
receive them) to `maintaining' them (by ensuring that they can be 
easily matched by an investigator) goes a step too far.'' ATA stated 
that responsible motor carriers should not have to manipulate the 
manner in which a supporting document is retained or be held 
accountable for not facilitating such matching if there is no evidence 
of HOS violations. ATA also noted that the requirement that drivers 
submit supporting documents to their employing carriers within 8 days 
creates an imbalance with the existing regulation that requires drivers 
who keep paper logs to submit those logs and supporting documentation 
to their employing carriers within 13 days. ATA suggested that all 
drivers should be required to submit supporting documents within 13 
days of receipt.
    FedEx asked that FMCSA clarify whether a carrier would be out of 
compliance with the regulation if it had no supporting documents kept 
in the carrier's ordinary course of business that fit the description 
of a supporting document under the rule. FedEx also suggested that 
FMCSA clarify what it means for a supporting document to be 
``effectively matched'' to the corresponding driver's HOS records.
    CVSA recommended that FMCSA require CMV drivers to keep the 
proposed supporting documents for the current and past 7 days with them 
in the vehicle, so that roadside inspectors could have access to the 
documents to verify location, time, and date of all driver duty status 
entries.
3. FMCSA Response
    In today's rule, FMCSA expanded the deadline for drivers to submit 
supporting documents to the motor carrier from 8 days to 13 days, 
consistent with the current period for submission of RODS. While FMCSA 
does not require that drivers retain supporting documents in the CMV 
for a prescribed period, it does require that a driver make any 
supporting document in the vehicle available to an authorized safety 
official if requested during roadside inspections. FMCSA believes this 
approach achieves a reasonable and workable balance between the needs 
of enhanced enforcement during roadside inspections and not requiring 
that motor carriers modify their current document management practices.
    FMCSA notes that a motor carrier is not required to create 
supporting documents not otherwise generated or received in the normal 
course of business or to annotate such documents in any manner. But a 
motor carrier or driver may not obscure, deface, destroy, mutilate, or 
alter existing information found on a supporting document.
    Today's rule does not require establishment of a new record 
management system specifically for supporting documents. However, the 
rule retains the requirement that supporting documents be retained in a 
manner that allows them to be effectively matched to the driver's RODS. 
This is a long-existing requirement, well documented in the Agency's 
administrative decisions. The purpose is to enable a motor carrier, as 
well as authorized safety officials, to verify a driver's RODS. (See 
e.g., In the Matter of Bridgeways, Inc., Docket No. FMCSA-2001-9803-
0009 (Final Order June 1, 2004)).\20\ Agency decisions make clear that 
a motor carrier cannot take supporting documents that permit 
identification of a driver, but then store them in a manner or sanitize 
them so the ability to link individual documents to the driver is lost. 
See Darrell Andrews Trucking, Inc. Docket No. FMCSA-2001-8686-21 (Final 
Order Under 49 CFR 385.15, January 19, 2001), aff'd in part, vacated in 
part, Darrell Andrews Trucking, Inc. v. Fed. Motor Carrier Safety 
Admin., 296 F.3d 1120 (D.C. Cir. 2002), remanded to Docket No. FMCSA-
2001-8686-26 (Final Order on Remand, Mar. 14, 2003); see also In the 
Matter of A.D. Transport Express, Inc., Docket No. FMCSA-2002-11540-1 
(Final Order Under 49 CFR 385.15, May 22, 2000), aff'd, A.D. Transport 
Express, Inc. v. Fed. Motor Carrier Safety Admin., 290 F.3d 761 (6th 
Cir. 2002).
---------------------------------------------------------------------------

    \20\ Available at https://www.regulations.gov.
---------------------------------------------------------------------------

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

1. Comments to the 2014 SNPRM
    Greyhound Lines, Inc. (Greyhound) and Schneider National, Inc., 
asked for clarification on various parts of the proposed rule. 
Greyhound asked FMCSA to make it clear that States may not impose 
supporting document standards that are more specific than, or different 
from, the Federal standard. Schneider requested clarification on 
whether toll receipts would be expected for days where a driver is 
completing a paper ROD due to an ELD malfunction. Schneider noted that, 
given the size of its fleet, it will experience regular device 
malfunctions, and it will consequently have to keep all toll receipts 
for all drivers to ensure it is in compliance on those days where 
malfunctions occur.
2. FMCSA Response
    State laws or regulations addressing supporting documents are not 
necessarily preempted by Federal law. The FMCSRs are ``not intended to 
preclude States or subdivisions . . . from establishing or enforcing 
State or local laws relating to safety, the compliance with which would 
not prevent full compliance with [the FMCSRs] by the person subject 
thereto.'' 49 CFR 390.9. However, as a condition of Federal funding 
under the MCSAP, a State must have rules in place compatible to Federal 
regulations adopted under the 1984 Act, subject to certain exceptions. 
See parts 350 and 355 of 49 CFR. Subject to permissible variances, a 
State law or regulation found by the Secretary of Transportation to be 
less stringent than its Federal counterpart cannot be enforced; a State 
law or regulation more stringent than its

[[Page 78320]]

Federal counterpart may be enforced unless the Secretary decides the 
State law or regulation has no safety benefit, is incompatible with the 
Federal regulation, or would cause an unreasonable burden on interstate 
commerce. 49 U.S.C. 31141(c). A motor carrier such as Greyhound that 
believes a State law or regulation is incompatible with the FMCSRs may 
petition FMCSA for review of the matter and the State's eligibility of 
MCSAP funding. 49 CFR 350.335(d). Therefore, the Agency does not 
address the preemption of State supporting document requirements in 
this rulemaking.
    Today's rule requires a motor carrier to retain toll receipts for a 
driver who keeps paper RODS in lieu of using an ELD. However, the 
Agency does not expect a carrier to modify its supporting document 
retention policy whenever a driver who regularly uses an ELD needs to 
complete paper RODS for a brief period due to an ELD malfunction.

IX. Discussion of Comments Related to Harassment

A. Background and 2011 NPRM

1. Background
    In enacting the Truck and Bus Safety and Regulatory Reform Act of 
1988, Congress required that regulations addressing onboard monitoring 
devices on CMVs ensure that the devices not be used to harass CMV 
drivers. However, the devices may be used to monitor productivity.\21\ 
In its challenge to the April 2010 EOBR rule in the U.S. Court of 
Appeals for the Seventh Circuit, OOIDA raised several issues, including 
the Agency's failure to ensure that electronic recorders not be used to 
harass CMV drivers. While the Seventh Circuit litigation was pending, 
FMCSA published the February 2011 NPRM. By notice published on March 
10, 2011 (76 FR 13121), the Agency extended the public comment period 
for the 2011 NPRM to May 23, 2011.
---------------------------------------------------------------------------

    \21\ Public Law 100-690, Title IX, Subtitle B, sec. 9104(b), 102 
Stat. 4527, 4529 (November 18, 1988). This provision was 
subsequently revised and codified at 49 U.S.C. 31137(a) by Public 
Law 103-272, 108 Stat. 745, 1004 (July 5, 1994).
---------------------------------------------------------------------------

2011 Notice and Request for Additional Public Comment
    The Agency believed that it appropriately addressed the issue of 
harassment in accordance with the statute, both in the April 2010 rule 
that was the subject of litigation and the subsequent February 2011 
NPRM, focusing on harassment in the context of drivers' privacy 
concerns. However, in reaction to the litigation and to public comments 
in response to the NPRM, on April 13, 2011, the Agency published a 
notice requesting additional comments on harassment (76 FR 20611). 
FMCSA wanted to ensure that interested parties had a full opportunity 
to address this issue. The notice explicitly requested information 
about driver experiences with harassment. The notice asked if the same 
activities considered harassing might also be considered monitoring for 
productivity. It questioned if these same activities might be barred by 
other existing provisions, and if additional regulations were needed. 
The notice also asked about the role that electronic recorders might 
play in the ability of carriers, shippers, and others to pressure 
drivers to violate HOS regulations.
Seventh Circuit Decision
    On August 26, 2011, the court vacated the April 2010 rule (Owner-
Operator Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656 
F.3d 580 (7th Cir. 2011)). The court held that, contrary to the 
statutory requirement, the Agency failed to address the issue of driver 
harassment, namely, how the Agency would distinguish between harassment 
and productivity, how harassment occurs, and how harassment would be 
prevented.
    On May14, 2012, following the court's decision, FMCSA issued a rule 
that removed the vacated language from 49 CFR (77 FR 28448). Motor 
carriers relying on electronic devices to monitor HOS compliance are 
currently governed by the rules addressing the use of AOBRDs in effect 
immediately before the court's ruling (49 CFR 395.15). These provisions 
were not affected by the Seventh Circuit's decision.
Public Listening Sessions
    FMCSA conducted two public listening sessions to better understand 
drivers' concerns about harassment. The first was in Louisville, 
Kentucky, on March 23, 2012, at the Mid-America Truck Show. The second 
was in Bellevue, Washington, on April 26, 2012, at the CVSA Workshop. 
FMCSA heard from commenters, both those in attendance and those 
participating through the Internet, who offered varied opinions on the 
implementation and use of electronic recorders. Commenters at the 
Louisville session included drivers, representatives of motor carriers, 
owner-operators, and representatives of OOIDA. At the Bellevue session, 
FMCSA specifically sought the input of State MCSAP agencies because of 
their role in enforcing the HOS rules and familiarity with electronic 
recording devices and other technical issues. Additional participants 
in the Bellevue public listening session included drivers, 
representatives of motor carriers and other business entities, 
representatives of the motor carrier industry organizations, authorized 
safety officials, and other State agency representatives. Transcripts 
of both sessions are available in the docket for this rulemaking. Web 
casts are archived at: https://www.tvworldwide.com/events/dot/120323/ 
and https://www.tvworldwide.com/events/dot/120426/, respectively.\22\
---------------------------------------------------------------------------

    \22\ In addition to the formal comment process and listening 
sessions, FMCSA also conducted a survey of drivers and motor 
carriers to better understand perceptions on the harassment issue, 
See Section XII. L of this preamble.
---------------------------------------------------------------------------

MAP-21
    In July 2012, Congress enacted MAP-21, mandating that the Agency 
adopt regulations requiring that certain CMVs be equipped with 
ELDs.\23\ As part of this legislation, Congress defined ``electronic 
logging device'' and required that regulations ``ensur[e] that an 
electronic logging device is not used to harass a vehicle operator.'' 
49 U.S.C. 31137(a)(2) and (f)(1). The legislation eliminated the prior 
reference to ``productivity.''
---------------------------------------------------------------------------

    \23\ Public Law 112-141, sec. 32301(b), 126 Stat. 405, 786-788 
(July 6, 2012) (amending 49 U.S.C. 31137).
---------------------------------------------------------------------------

2. Comments to the 2011 NPRM
    Given the intervening events between issuance of the NPRM and the 
SNPRM, including the Seventh Circuit decision and enactment of MAP-21, 
and the fact that the SNPRM regulatory text superseded the text 
included in the NPRM, FMCSA's comment analysis focuses on comments 
submitted to the SNPRM.

B. General

1. Comments to the 2014 SNPRM
    In accordance with the MAP-21 mandate, the 2014 SNPRM addressed 
harassment, in part, through the new technical specifications. Among 
the technical specifications intended to address harassment, the Agency 
included a mute function available during sleeper berth periods, edit 
rights, and requirements addressing transparency and driver control 
over editing. The complaints of drivers focused mainly on pressures 
from motor carriers. Based on their concerns, the Agency also proposed 
procedural provisions aimed at protecting CMV drivers from actions 
resulting from information generated by ELDs, since not every type of 
complaint suggested a technical solution.
    Several commenters stated that the SNPRM provisions adequately 
addressed the issue of driver

[[Page 78321]]

harassment. Advocates wrote that the SNPRM fulfilled the Agency's 
obligation following the decision of the U.S. Court of Appeals. 
Continental stated that the SNPRM has adequately addressed the issues 
of data privacy. The National Shippers Strategic Transportation Council 
supported FMCSA's approach.
    Some commenters wrote that ELDs actually improved the relationship 
between drivers and dispatchers and decreased tension. Commenters 
pointed out that ELDs provide transparency, ensure that both drivers 
and motor carriers have the same information, and keep a record of 
interactions. OOIDA, however, commented that Congress told the 
Secretary to ensure that ELDs are not used to harass and that OOIDA 
believes the SNPRM fell far short of implementing this mandate. In its 
comments to the NPRM, which are incorporated by reference into OOIDA's 
comments to the SNPRM, OOIDA suggested specific proposals to address 
driver harassment.\24\ OOIDA also criticized the Agency for addressing 
the issue of coercion and harassment in separate rulemakings and 
addressing only harassment related to ELDs required under today's rule.
---------------------------------------------------------------------------

    \24\ OOIDA suggested the following specific proposals to address 
driver harassment: (1) Establish guidelines for the appropriate use 
of EOBRs to improve productivity; (2) promulgate a regulation to 
make it unlawful for motor carriers to use EOBRs to harass drivers; 
(3) establish procedures for drivers to complain about harassment 
and create a unit in FMCSA to review and act on complaints; (4) 
promulgate a regulation protecting drivers who complain about 
harassment from retaliation; (5) make harassment a factor considered 
in compliance reviews; (6) permit drivers to participate in 
compliance reviews involving harassment; and (7) provide for driver 
compensation for time spent under out-of-service orders where 
harassment is implicated in the violation.
---------------------------------------------------------------------------

    Some commenters believed ELDs are not intended to improve safety, 
but only serve as a management tool to track drivers. Some commenters 
reported the use of FMSs to direct drivers to do unsafe or even illegal 
things. Other commenters complained that neither FMCSA nor the ELD 
could prevent harassment by motor carriers. Many drivers complained 
that the ELD would limit their flexibility, and cause them to drive 
while tired or stressed.
2. FMCSA Response
    FMCSA believes today's rule appropriately implements MAP-21's 
mandate requiring certain CMV drivers to use ELDs while addressing the 
concerns expressed about the potential for harassment resulting from 
ELD use. The rule adopts a clear prohibition against driver harassment, 
subject to a civil penalty in addition to the penalty for the 
underlying violation. ELD technologies, including related technologies 
often employed in FMS, do not necessarily result in driver harassment; 
nor do they preclude actions that drivers might view as harassing. 
However, the Agency believes that, on balance, the use of ELDs will 
protect drivers from pressures to violate the HOS rules by ensuring a 
better record of drivers' time. As the court noted in the litigation on 
the 2010 EOBR rule, the term ``harass'' is not defined by statute and 
requires amplification. 656 F.3d at 588. In order to better understand 
the nature and context of drivers' harassment concerns, the Agency 
undertook extensive outreach. The provisions proposed in the SNPRM, and 
reflected in today's rule, are largely reflective of this outreach. 
Today's rule includes the definition of ``harassment'' proposed in the 
SNPRM, that is, ``. . . an action by a motor carrier toward a driver 
employed by the motor carrier (including an independent contractor 
while in the course of operating a [CMV] on behalf of the motor 
carrier) involving the use of information available to the motor 
carrier through an ELD . . . or through other technology used in 
combination with and not separable from the ELD, that the motor carrier 
knew, or should have known, would result in the driver violating Sec.  
392.3 or part 395 [of 49 CFR].''
    FMCSA acknowledges that harassment and coercion may often appear 
related. However, it is important to recognize that the statutory basis 
for each requirement differs. While the harassment provision is linked 
specifically to ELDs as defined in MAP-21, Congress required that the 
Agency, in adopting regulations under the 1984 Act, prohibit motor 
carriers, shippers, receivers, and transportation intermediaries from 
coercing CMV drivers in violation of specified regulatory provisions. 
See FMCSA's rule on coercion, published November 30, 2015 (80 FR 
74695). The Agency notes, however, that Sec.  395.30(e) of today's rule 
does prohibit a motor carrier from coercing (as that term is defined in 
80 FR 74695) a driver to falsely certify the driver's data entries or 
RODS.
    The Agency encourages any driver who feels that she or he was the 
subject of harassment to consider the potential application of the 
harassment provisions adopted today, as well as FMCSA's coercion rule 
and the remedies available through the Department of Labor, in 
determining which approach to pursue in light of the specific facts.
    The Agency included some of OOIDA's specific proposals to address 
harassment in today's rule, such as making it unlawful for carriers to 
use ELDs to harass drivers and establishing procedures for drivers to 
submit harassment complaints directly to FMCSA. Some of its suggestions 
went beyond FMCSA's authority, such as the suggestion that we provide 
for driver compensation for time spent under out-of-service orders in 
cases where harassment is implicated in the violation. With regard to 
the suggestion that we promulgate a regulation protecting drivers who 
complain about harassment from retaliation, we note that such 
protections already exist under current law. Retaliation protections 
available to CMV drivers are set forth in 49 U.S.C. 31105, which is 
administered by the Department of Labor. The Agency declines to link 
harassment violations to the safety rating process, consistent with the 
Agency's approach in the coercion rulemaking (80 FR 74695, November 30, 
2015). We therefore also decline to adopt OOIDA's suggestion that 
drivers be permitted to participate in compliance reviews involving 
harassment. FMCSA believes that harassment complaints can be 
effectively addressed through the complaint process established through 
today's rule and through the civil penalty structure.

C. Privacy; Ownership and Use of ELD Data

1. Comments to the 2014 SNPRM
    In development of the proposed technical performance requirements, 
the Agency took into account drivers' privacy interests in the 
collection and maintenance of data. For example, the proposed 
requirements included industry standards affecting the handling of data 
and access requirements, ensuring only authenticated individuals could 
access an ELD system. These provisions are part of today's rule.
    Several commenters expressed concern about how the data collected 
from ELDs will be used. For example, questions were posed about who 
owns the data recorded by an ELD, who will see that data, and whether 
that data will be retained. Commenters also raised concerns about the 
use of data in private civil litigation. One commenter asked what would 
preclude law enforcement from using data gleaned from ELDs to charge 
truck drivers with other violations such as speeding, illegal parking, 
and driving on restricted routes. Another commenter stated that

[[Page 78322]]

FMCSA must ensure that data collected for HOS enforcement purposes will 
not be provided to other government agencies for other purposes.
2. FMCSA Response
    An ELD record reflecting a driver's RODS is the driver's record. 
However, under the FMCSRs, motor carriers are responsible for 
maintenance of these records for a 6-month period. Thus, drivers and 
carriers share responsibility for the record's integrity. FMCSA does 
not presently plan to retain any data captured by an ELD absent 
documentation of violations during investigations.
    In addition to other statutory privacy protections, MAP-21 limits 
the way FMCSA may use ELD data and requires that enforcement personnel 
use information collected from ELDs only to determine HOS compliance. 
See 49 U.S.C. 31137 (e)(1) and (3).\25\ U.S. Department of 
Transportation regulations govern the release of private information, 
including requests for purposes of civil litigation. 49 CFR parts 7 and 
9. Today's rule includes industry standards for protecting electronic 
data; it also regulates access to such data and requires motor carriers 
to protect drivers' personal data in a manner consistent with sound 
business practices. However, FMCSA has limited authority to ensure 
total protection of information in the custody of third parties.
---------------------------------------------------------------------------

    \25\ These measures will be included in the ELD implementation 
and training protocol currently under development within FMCSA.
---------------------------------------------------------------------------

    MAP-21 also requires that the Agency institute appropriate measures 
to preserve the confidentiality of personal data recorded by an ELD 
that is disclosed in the course of an FMCSR enforcement proceeding (49 
U.S.C. 31137(e)(2)). To protect data of a personal nature unrelated to 
business operations, the Agency would redact such information included 
as part of the administrative record before a document was made 
available in the public docket.
    Finally, the Agency notes that Federal law addresses the protection 
of individual's personally identifiable information maintained by 
Federal agencies. See the Privacy Impact Assessment for today's rule 
available in the rulemaking docket.

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

1. Comments to the 2014 SNPRM
    Location recording is a critical component of HOS enforcement. The 
SNPRM addressed drivers' concerns about the level of data collected for 
HOS enforcement. FMCSA did not propose a requirement for real-time 
tracking of CMVs or the recording of precise location information. 
Instead, location data available to authorized safety officials would 
be recorded at specified intervals; that is, when the driver changes 
duty status, 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. During on-duty driving periods, FMCSA proposed to limit 
the location accuracy for HOS enforcement to approximately a 1-mile 
radius. When a driver operates a CMV for personal use, the position 
reporting accuracy would be further reduced to an approximate 10-mile 
radius. The SNPRM did not propose that the ELD record and transmit any 
CMV location data either to the motor carrier or to authorized safety 
officials in real time.
    ATA stated that the proposed precision requirements for monitoring 
vehicle location are quite reasonable. ATA believed that these 
requirements should stave off any concern by drivers that records 
available to law enforcement during roadside inspections will present 
an intrusion on their privacy, especially since this limited level of 
location monitoring will prevent law enforcement from knowing the exact 
location a driver has visited. ATA wrote that respecting this 
confidentiality may be important in some circumstances, such as when a 
driver visits a medical specialist. Provided that law enforcement can 
still reasonably verify HOS compliance, the needs of both parties will 
be met.
    Other commenters, however, asked who would have access to the 
tracking data. These commenters believed that the tracking was a form 
of harassment in that it would allow carriers to harass the driver 
about his or her performance. Other commenters viewed tracking as an 
invasion of privacy in violation of their constitutional rights.
    The NPGA stated that technologies similar to ELDs have previously 
been under consideration by the Pipeline and Hazardous Materials Safety 
Administration as one type of technology that can be used in HM 
transportation security. In comments submitted to an advance notice of 
proposed rulemaking concerning the need for enhanced security 
requirements for the motor carrier transportation of HM, put out by the 
Research and Special Programs Administration and FMCSA (67 FR 46622, 
July 16, 2002), NPGA opposed location-tracking systems as a requirement 
for HM security. Its concerns focused on ease of access to data on CMVs 
carrying propane and the harm it could cause if the vehicle fell into 
the wrong hands. Specifically, anyone who wished to cause harm through 
a coordinated attack could hack the system to learn the whereabouts of 
any transport vehicle that is loaded with propane. NPGA commented that 
an outright requirement to install an ELD on these vehicles, 
particularly for a motor carrier with no demonstrated violations, not 
only fails to improve safety, but lessens the security of the transport 
of the fuel.
    Knight stated that carriers must be allowed to track vehicle 
position of the CMVs they own to a proximity closer than 10 miles, even 
when in personal conveyance. Though the driver may be using the vehicle 
for personal use, the fleet still has an interest in and responsibility 
for the vehicle. The commenter wrote that nothing within the rule 
should impair the ability of the owner of a CMV to track its location, 
which should not be considered ``harassment.''
    ATA believed the needs of carriers to monitor CMV location outweigh 
the impact on driver privacy. The commenter stated that in the 
interests of safety, security, and efficiency, motor carriers must be 
able to monitor their equipment and cargoes.
    PeopleNet sought confirmation that GPS precision is only to be 
limited in the ELD application and that other enterprise solution 
applications will not be required to reduce GPS accuracy in efforts to 
support optimization processes and IFTA requirements. Eclipse Software 
Systems asked for a clarification providing that the system will be 
allowed to store data in greater position for fleet records (such as 
highly accurate fuel tax reporting), but that when that data is 
divulged to law enforcement it will be rounded or truncated to the 
number of decimal places specified in section 4.3.1.6. The commenter 
noted that current FMSs store data in far greater detail (often four or 
more decimal points) for legitimate business purposes.
2. FMCSA Response
    FMCSA acknowledges the concern about dispatchers and motor carriers 
using real-time data in order to require drivers to fully utilize their 
driving time to the allowed limits. However, FMCSA has not proposed, 
nor does it include in today's rule, any requirement for ELDs to track 
CMV drivers in real time. As long as a motor carrier is not compelling 
a driver to drive while ill or fatigued in violation of Sec.  392.3 or 
in violation of the HOS limits of part 395, there is no

[[Page 78323]]

violation of the FMCSRs. Authorized safety officials will not have 
access to information during roadside inspections except the data 
required by today's final rule that is related to HOS compliance.
    The SNPRM proposed limitations concerning the ELD data in order to 
protect drivers from motor carrier harassment, all of which are 
reflected in today's rule. The Agency believes that the enhanced 
security controls and provisions protecting drivers from inappropriate 
pressures to violate the HOS rules will address many of the concerns 
raised by drivers concerning ELDs. Although ELDs might be viewed 
primarily as tools for HOS recordkeeping, the data certainly can be 
used by motor carriers to document their operations more accurately 
than they could by using paper RODS.
    Further, for systems that include both ELD functionality and real-
time tracking and communications capabilities, the device may capture 
what is transpiring between a driver and a motor carrier or dispatcher. 
Although this technology is not required under today's rule, such 
technology also protects drivers from inappropriate pressures to 
violate the HOS rules.
    Today's rule limits the data that may be transferred from an ELD to 
authorized safety officials. FMCSA, however, did not propose, nor does 
it include in today's rule, any limitation on a motor carrier's use of 
technology to track its CMVs at a more precise level than that shared 
with authorized safety officials, including tracking of CMVs in real 
time for the purposes of the motor carrier's business. A motor carrier 
is free to use such data as long as it does not engage in harassment or 
otherwise violate the FMCSRs. See 49 CFR 390.17.
    Given the limited requirements in terms of required location 
tracking, FMCSA does not agree that the risks suggested by the NPGA 
outweigh the benefits of ELDs.
    Some commenters viewed tracking of vehicles as an invasion of 
privacy. While a legal basis for their position was not always stated, 
some of these commenters focused on their Fourth Amendment rights. 
FMCSA addresses this position under Section XII, M, Legal Issues--
Constitutional Rights: Fourth and Fifth Amendments, of this preamble.

E. Mute Function

1. Comments to the 2014 SNPRM
    To protect a driver from disrupting communications during rest 
periods, the SNPRM proposed that, if a driver indicates a sleeper-berth 
status, an ELD must allow the driver to either mute, turn off, or turn 
down the volume, or the device must do so automatically. This 
requirement would only apply to FMSs or other technology that includes 
an ELD function and that includes a communications function. Given 
drivers' concerns about interrupted rest periods, this is the single 
area in which the Agency believed it necessary to address an issue that 
extends beyond the provisions of a minimally-compliant ELD. However, 
this protection does not apply if a team driver is logged onto the ELD 
as on-duty, driving.
    Numerous commenters complained of repeated contact by dispatchers, 
even during breaks and sleeper-berth time. One commenter wrote that the 
mute function should be the decision of the driver rather than 
automatic. She stated that not all companies abuse their drivers as the 
enforced automatic mute implies.
    The IME stated that it did not oppose ELD features that allow a 
driver to mute, reduce volume, or turn off a device during sleeper 
berth status. Eclipse Software Systems stated that the audible alarm 
required by section 4.1.5 of the appendix is very important and should 
not be muted if the vehicle is moving. Eclipse recommended that the 
rule be amended to say the mute function does not apply when the engine 
is running and the vehicle is in motion.
2. FMCSA Response
    The complaint from drivers about being contacted during sleeper 
berth time was a common one and FMCSA responds to that concern by 
requiring in section 4.7.1 of the technical specifications of today's 
rule, that the mute function either be engaged automatically when the 
driver enters sleeper berth status or that it allows the driver to 
manually select that function. (However, this function would not be 
available if a co-driver was logged in as on-duty, driving.) In the 
event the CMV started moving, the ELD would default to on-duty, driving 
status, thereby overriding the mute function. FMCSA believes this 
addition of a mute function is important to allow drivers to obtain 
adequate rest during sleeper berth or off-duty periods.

F. Drivers' Access to Own Records

1. Comments to the 2014 SNPRM
    The SNPRM provided that a driver has a right to access the driver's 
ELD data during the period a carrier must keep these records. During 
the period that the data is accessible through the ELD, a driver must 
have a right to the records without requesting access from the motor 
carrier.
    The IME agreed that drivers should have access to their ELD data, 
including options for a motor carrier to provide the data to drivers 
upon request. The IBT also supported giving drivers the ability to 
obtain copies of their own ELD records available on or through an ELD. 
IBT believed that it is critical that drivers or driver representatives 
have, upon request, immediate access to, and copies of driver ELD 
records for the 6 months that the motor carrier is required to retain 
the records.
    XRS, Verigo, and Zonar noted that obtaining the logs from the ELD 
will limit drivers' access to 7 days. Commenters wrote that drivers 
require records for numerous reasons, including comparing logs to 
settlement records, providing records required for tax purposes, 
providing evidence in loss prevention claims, and qualification for 
safety awards. It may be necessary for a driver to have access to more 
than 12 months of records. Commenters believed that access to driver's 
records is best achieved as a function of the carriers' support system 
most carriers already have in place rather than as a function of the 
ELD. XRS asked whether there could be an alternative method, such as a 
Web-based login, to retrieve the required information. It recommended 
that, when a driver leaves a carrier, the RODS be supplied on a jump 
drive in a PDF format to keep costs at a minimum and not cause a 
security risk by giving access to individuals who no longer have a 
relationship with the carrier. The commenter questioned what amount of 
data may be requested by drivers if they have been employed by the 
carrier for at least 6 months. Extracting 6 months of data through the 
ELD would be costly.
    Verigo stated that the electronic or printout format of the 
driver's records must be compliant with section 4.8.2.1, which is the 
comma separated values (CSV) file output format for peer-to-peer record 
exchange. The format will be of no value to the driver. The commenter 
believed that records retrievable by the driver should be a PDF copy of 
the standard paper format in use today because graph-grid logs can be 
read, understood, printed, distributed, and checked with ease by the 
driver without a requirement to provide a utility function for the 
driver to display the data. The commenter recommended the requirement 
to access records from ELDs connected to backend servers be eliminated 
and that records be retrieved from support systems connected to the 
ELD.

[[Page 78324]]

2. FMCSA Response
    FMCSA acknowledges that a driver's ability to access his or her 
records through an ELD without requesting them from the carrier will 
vary depending on the ELD system employed. In some cases, immediate 
access is limited to the 7 previous days. Thus, we did not prescribe an 
exact time during which a driver could independently access the 
records. If the driver cannot independently access the records, the 
motor carrier must provide a means of access on request. However, the 
right of access is limited to a 6-month period, consistent with the 
time period during which a motor carrier must retain drivers' RODS.
    The SNPRM proposed a single data format that applies to all the 
data elements and the file format. This is adopted in today's rule. The 
ELD data file output will not vary dependent on the ELD used. The data 
output is a comma delimited file that can be easily imported into 
Microsoft Excel, Word, notepad, or other common tools that a driver may 
access. A driver will also be able to access her or his ELD records 
through either the screen display or a printout, depending on the 
design of the ELD.

G. Drivers' Control Over RODS

1. Comments to the 2014 SNPRM
    Recognizing that ELD data reflect a driver's data, the proposal 
required that any edits made by a motor carrier would require the 
driver's approval. FMCSA's proposal was intended to protect the 
integrity of a driver's records and prevent harassment attributable to 
unilateral changes by motor carriers.
    In the SNPRM, FMCSA used the word ``edit'' to mean a change to an 
ELD record that does not overwrite the original record. A driver may 
edit and the motor carrier may request edits to electronic RODS. 
Drivers have a full range of edit abilities and rights over their own 
records (except as limited by the rule), while a carrier may propose 
edits for a driver's approval or rejection. All edits, whether made by 
a driver or the motor carrier, need to be annotated to document the 
reason for the change.
    Saucon Technologies asked about drivers editing their logs using a 
support system other than the recording device: Specifically, what 
drivers are permitted to change versus what safety administrators are 
allowed to change. The commenter wrote that the safety administrator 
should be advised when drivers make corrections to their logs and have 
the opportunity to approve the change. XRS stated that FMCSA needs to 
allow a process for the driver to accept edits and certify the logs on 
the ELD prior to transfer to enforcement to be consistent with Sec.  
395.30.
    A number of commenters, including the Alliance for Driver Safety & 
Security, Knight, and J.B. Hunt, stated that employers should not be 
held responsible if a driver makes a false or inaccurate entry onto an 
ELD and refuses to change the entry when the employer requests it be 
done. Knight asked whether a carrier can force a driver to make an edit 
when it is clear the driver failed to log something properly. Knight 
wrote that, though the carrier is attempting to get the driver to 
comply with the rules, the driver may be able circumvent compliance and 
make a false allegation that the carrier is ``coercing'' him or her. 
Knight believed that FMCSA ought to allow carriers to make edits and 
allow the driver to either approve or not approve them when made by the 
carrier.
    Knight commented that the rule should clearly allow drivers to edit 
their ELD records at any time before, during, or after having confirmed 
a record. Knight wrote that FMCSA should allow drivers to flag personal 
conveyance or yard moves segments even after they occur. Knight 
believed the most common error made with ELDs is that drivers forget to 
change duty status. Therefore, FMCSA should allow drivers to make duty 
status change designations as edits at any time. Such an allowance will 
better serve drivers and alleviate concerns about an ELD intruding upon 
an individual's privacy.
    TCA wrote that employers should be allowed to make minor edits to 
correct driver ELD records, limited to instances that do not pertain to 
compliance with driving or on-duty time.
    ATA stated that the proposed rule on edits will complicate 
compliance and enforcement, and could raise the potential for fraud. 
ATA identified several problems it perceived as the result of requiring 
driver acceptance of edits. The commenter wrote that FMCSA must 
consider what an employer should do if a driver refuses to accept the 
changes. Similarly, ATA asked what happens if the erroneous record is 
identified during an internal review weeks or months after the fact and 
the driver cannot be contacted for approval because he has since left 
the company? For these reasons, and because the carrier is ultimately 
responsible for maintaining accurate records, ATA stated that FMCSA 
should permit carriers to make edits. At a minimum, the Agency should 
allow changes that would not disguise driving time violations or 
otherwise make such violations possible. ATA indicated that minor 
recordkeeping errors that do not reflect driving time violations 
comprise the vast majority of HOS violations. ATA recommended that 
FMCSA allow carriers to correct them, unhindered by the need to seek 
driver approval, would more efficiently help both carriers and 
authorized safety officials focus on those comparatively few 
discrepancies that reflect material fraud (i.e., false logs) and 
driving time violations.
    J.B. Hunt wrote that the final rule should clearly say that 
corrective action taken by a carrier against a driver for false entries 
is not harassment.
    BigRoad Inc. (BigRoad) stated that, although section 4.3.2.8.2 (2) 
allows for the correction of errors related to team driver switching, 
it does not allow for the correction of errors commonly found in slip-
seat operations, where drivers do not always drive the same truck each 
day. In such operations, drivers occasionally forget to sign out when 
their shift in the truck ends or forget to sign in when their shift 
begins. This can cause drive time to be incorrectly assigned to the 
driver who was last signed in instead of the current driver of the 
truck, essentially the same type of error experienced by team drivers 
who are signed-in incorrectly. ABA stated that there was some confusion 
with respect to the SNPRM requirement that only drivers are able to 
``edit'' their HOS records. While ABA agreed that drivers should have 
the ability to revise a duty status designation, it asked whether the 
SNPRM meant to allow drivers to revise records that do not reflect a 
change in duty status. ABA contended that the driver should be allowed 
to revise only the duty status designation and that the final rule 
should reflect that determination.
    Schneider National supported the proposal that the driver must 
approve edits made by the motor carrier to ensure accuracy. However, 
since any edit made on a record from more than the preceding 8 days 
will not impact the current duty cycle, the requirement for driver 
approval should be removed. Schneider listed several operational 
reasons why an edit would be made on a record that is more than 8 days 
old.
    Roehl Transport stated that the proposed process will complicate 
compliance and enforcement. Allowing the company to edit a driver's ELD 
record would, they argued, facilitate its ability to correct a 
potential falsification. Roehl Transport wrote that the motor carrier 
is ultimately responsible for maintaining accurate RODS and FMCSA 
should permit motor carriers to make edits to drivers' RODS.
    Verigo commented that the proposal to allow editing of ODND records 
does

[[Page 78325]]

not indicate any time limit, or address edits that trigger a violation 
on subsequent records that have already been certified. Verigo believed 
that the proposal indicated that, when edits, additions, or annotations 
are necessary, the driver must use the ELD. Commenter believed the rule 
should allow editing and recertification of records outside of the ELD 
provided all other proposed protocols are followed.
    The IBT supported allowing a driver to edit, enter missing 
information, or annotate their ELD record when the vehicle is stopped. 
It was concerned with the motor carrier's ability to propose changes 
directly to the driver's record within the electronic interface because 
it would create an opportunity for driver coercion and harassment. It 
supported the inclusion of edit notes as detailed in the appendix to 
subpart B of part 395, section 4: Functional requirements. The IBT 
proposed that, if a driver record is changed, the source of the change 
be documented.
    The IME indicated that any change of a driver's records made by a 
motor carrier should require the driver's approval.
    The OTA stated that some provision needs to be made to allow the 
carrier to correct RODS without the driver's approval. Given the high 
turnover in the industry, it is common for a driver to have moved to 
another carrier and no longer be responsive to the carrier attempting 
to correct the record. Commenter wrote that even a clear, obvious error 
could remain unchanged if the driver simply refuses to respond to the 
carrier's request, resulting in a false log charge against the company.
    Although PeopleNet thought that carriers are better suited to 
provide comments concerning the handling of ``unassigned driver 
events'' and making corrections to ELD records, it recommended that the 
final rule provide some additional guidance on how to manage carrier-
initiated corrections that the driver opts to reject. Zonar recommended 
adding a section addressing the certification of records for law 
enforcement. Commenter believed that the driver should be required to 
certify the records prior to giving them to law enforcement. In 
addition, law enforcement should allow the driver sufficient time to 
certify his or her ELD records before a citation is given for not 
having them available.
2. FMCSA Response
    While FMCSA appreciates carrier management concerns about requiring 
driver re-certification of any edits made subsequent to the driver's 
initial certification, today's rule retains this concept. The ELD 
reflects the driver's RODS, although integrity of the records is both a 
driver and carrier responsibility. The driver certification is 
intended, in part, to protect drivers from unilateral changes--a factor 
that drivers identified as contributing to harassment. In fact, the 
rule prohibits a carrier from coercing a driver into making a false 
certification. See Sec.  395.30(e) of today's rule.
    Edits are permitted of a driver's electronic record except as 
limited by the rule's technical specifications. See 4.3.2.8.2 of the 
technical specifications. Each edit must be accompanied by an 
annotation. See Sec.  395.30(b)(2) of today's rule. However, if the 
driver was unavailable or unwilling to recertify the record, the 
proposed edit and annotation made by a carrier would remain as part of 
the record. The Agency would expect that a carrier and driver would 
ordinarily resolve any disputes in this regard. Changes initiated after 
the period during which records were accessible through the ELD (i.e., 
minimum of 8 days) would likely be initiated by a carrier; however, 
driver re-certification would still be required. See Sec.  395.30(b)(4) 
of today's rule. FMCSA recognizes that the need for edits will 
sometimes arise at a time when the driver's record will no longer be 
accessible through the ELD. The process to edit records at this point 
will vary depending on the ELD system used. However, any edit and 
annotation will still require recertification of that record by the 
driver.
    Today's rule does not specifically address the ``slip-seat'' 
scenario raised by BigRoad. However, FMCSA expects the motor carrier to 
resolve the issue by proposing edits that would adequately attribute 
the driving time and provide an annotation describing the 
circumstances. In terms of roadside inspections, the rule would not 
modify current practice where a driver normally certifies her or his 
record at the close of the day. See Sec.  395.30(b)(2) of today's rule.

H. Harassment Complaints

1. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA proposed a new complaint process under which a 
driver who felt that she or he was subject to harassment, as defined in 
the SNPRM, could file a complaint with the FMCSA Division Administrator 
for the State where the incident is occurring or had occurred. Provided 
the complaint was not deemed frivolous, an investigation would result. 
FMCSA's finding of a harassment violation could result in a notice of 
violation under 49 CFR 386.11(b) or a notice of claim under 49 CFR 
386.11(c).
    OOIDA noted that proposed Sec.  390.36 requires that harassment 
complaints be based upon violations of Sec.  392.3 or part 395. It 
wrote that the statutory provision on harassment is not so limited and 
the SNPRM does not explain or defend this limitation. In its view, the 
approach of tying harassment problems to driver violations of part 395 
or Sec.  392.3 is flawed. Requiring that driver harassment complaints 
be based upon regulatory violations creates a giant loophole through 
which acts of harassment will pass with impunity. It also stated that 
FMCSA has assigned itself a passive role with no duty to investigate or 
take any action on its own and criticized the Agency's reference to 
alternative remedies. Although OOIDA noted that the reference to 
``productivity'' was eliminated in MAP-21, it nevertheless criticized 
the Agency's failure to follow the Seventh Circuit's direction that the 
Agency define how ELDs may be used to monitor driver productivity. It 
also argued that the statutory requirement to address harassment under 
49 U.S.C. 31137(a)(2) applies to any electronic logging device and is 
distinct from the ELD mandate under section 31137(a)(2). OOIDA further 
suggested that the Agency defined ELD in a manner so as to minimize the 
requirement that the Agency ensure that ELDs do not result in 
harassment.
    ABA stated that Sec.  386.12, regarding complaints of substantial 
violations, requires that a complaint against a carrier for a 
``violation may be filed with the FMCSA Division Administrator for the 
State where the incident . . . occurred.'' It questioned whether the 
complaint may be transferred to the FMCSA Division Administrator for 
the State where the motor carrier is domiciled. For the small business 
bus operator, ABA commented that the costs associated with defending 
any complaint can be substantial. The defense would be significantly 
more costly if the carrier is required to hire an out-of-State attorney 
and bear the costs of the proceeding in a State that could be thousands 
of miles away from home.
2. FMCSA Response
    In mandating the use of ELDs for CMV drivers required to keep RODS, 
Congress embraced ELDs as a tool to enhance compliance with the HOS 
rules. The statute restricts FMCSA's use of ELD-generated data for 
purposes unrelated to motor carrier safety enforcement. Thus, in 
today's rule the Agency tied the definition of ``harassment'' to 
violations of the HOS

[[Page 78326]]

rules set forth in part 395 and a related regulation, Sec.  392.3, 
prohibiting carriers from requiring drivers to drive when their ability 
or alertness is impaired due to fatigue, illness or other causes that 
compromise safety.
    FMCSA believes the effective enforcement of the harassment 
prohibition requires that harassment be defined by objective criteria. 
Linking the definition of harassment to underlying violations of 
specified FMCSRs will enhance the Agency's ability, through its 
Division Administrators located throughout the country, to respond to 
driver harassment complaints filed under Sec.  390.36(c) in a 
consistent manner and within a reasonable period of time. However, the 
Agency simply lacks the resources necessary to investigate every 
possible circumstance that a driver might consider as harassment.
    OOIDA's suggestion that the Agency defined the term ``ELD'' to 
include only recording functions in order to minimize its obligation to 
address harassment is without merit. The Agency's requirements for an 
ELD of limited functionality, which are consistent with MAP-21's 
definition, were developed in order to minimize the cost of required 
technology. Furthermore, today's rule addresses ELD-related 
functionality, other than recording, to require that ELDs have a mute 
function available during sleeper berth periods. This technical 
specification was adopted directly in response to concerns raised by 
commenters.
    In addition, FMCSA notes that Sec.  390.36 is not the sole remedy 
available to drivers who believe they have been subjected to 
harassment. Drivers may alternatively seek relief by filing a coercion 
complaints with FMCSA under Sec.  386.12(c), a process adopted in the 
recent coercion rulemaking (80 FR 74695, November 30, 2015), or by 
filing complaints with the Department of Labor pursuant to 49 U.S.C. 
31105, depending on the underlying facts. The Agency notes that certain 
examples of harassment offered by commenters fall squarely within the 
realm of labor-management relations rather than the application of the 
HOS rules and are therefore outside the scope of this rulemaking.
    The Agency does not address the distinction between productivity 
and harassment, because, as part of the MAP-21 legislation, Congress 
eliminated the statutory provision expressly permitting carriers to use 
ELDs to monitor the productivity of drivers. In light of that revision, 
we do not infer congressional intent that the Agency establish 
guidelines in this rule for the appropriate use of ELDs to improve 
productivity. FMCSA simply makes clear that, for the protection of 
drivers, productivity measures undertaken by carriers cannot be used to 
harass drivers, as that term is defined in the regulations.
    The procedures governing the filing of a complaint, including with 
whom the complaint must be filed, and the procedures addressing the 
Agency's handling of a harassment complaint have been modified from 
those proposed in the SNPRM in order to track the procedures governing 
complaints alleging coercion in a recent FMCSA rulemaking (80 FR 74695, 
November 30, 2015). Similarly, the complaint process for substantial 
violations is modified to track, in part, procedures under the coercion 
rule. Complaints alleging a substantial violation can be filed by any 
person through the National Consumer Complaint Database or with any 
FMCSA Division Administrator; the Agency will then refer the complaint 
to the Division Administrator it believes is best able to handle the 
complaint.
    As further indication of the seriousness with which FMCSA's viewed 
drivers' harassment concerns, the Agency conducted a survey of drivers 
and motor carriers concerning their attitudes and experiences related 
to harassment and its relationship to ELDs. FMCSA placed the harassment 
survey report in the public docket with a request for comment, to which 
OOIDA subsequently responded. The survey and related comments, which 
are part of the record of this rulemaking, are discussed in Section 
XII, L, of this preamble.

I. Matters Outside FMCSA's Authority

    Several commenters submitted recommendations that would require new 
statutory authorities for FMCSA before action could be taken to address 
the issue. For example, commenters suggested changes in methods by 
which drivers are paid, admissibility of ELD data in litigation, and 
further protections of ELD data beyond current law. The Agency will not 
consider taking actions beyond its current authority and will not 
commit to seeking such authority.

X. Discussion of Comments Related to the Technical Specifications

A. Performance and Design Specifications

    The detailed performance and design requirements for ELDs included 
in today's rule ensure that providers are able to develop compliant 
devices and systems, and that motor carriers are able to make informed 
decisions before purchasing them. The requirements ensure that drivers 
have effective recordkeeping systems, which provide them control over 
access to their records. The technical specifications also address, in 
part, statutory requirements pertaining to prevention of harassment, 
protection of driver privacy, compliance certification procedures, and 
resistance to tampering. Furthermore, they establish methods for 
providing authorized safety officials with drivers' ELD data when 
required.
1. Comments to the 2011 NPRM
    The 2011 NPRM relied entirely upon the now-vacated 2010 rule. 
Though comments were submitted to the 2011 NPRM concerning the 
technical specifications, they were out of the scope of the 2011 
proposal, as those specifications had already been finalized in the 
April 2010 rule and subsequent amendments to address petitions for 
reconsideration of the rule.
2. Comments to the 2014 SNPRM
    FMCSA proposed new technical specifications in the SNPRM, which 
included detailed design and performance standards for ELDs that 
address statutory requirements. FMCSA proposed specific standard data 
formats and outputs that ELD providers would need to use to transfer, 
initialize, or upload data between systems or to authorized safety 
officials. These proposed technical specifications are intended to be 
performance-based, in order to accommodate evolving technology and 
standards, and to afford ELD providers the flexibility to offer 
compliant products that meet the needs of both drivers and motor 
carriers. In the SNPRM, FMCSA asked the following questions 
specifically about interoperability.
    1. Should FMCSA require that every ELD have the capability to 
import data produced by other makes and brands of ELDs?
    2. To what extent would these additional required capabilities for 
full interoperability increase the cost of the ELDs and the support 
systems?
    3. While full interoperability could lower the cost of switching 
between ELDs for some motor carriers, are there a large number of motor 
carriers who operate or plan to operate with ELDs from more than one 
vendor? How would full interoperability compare to the proposed level 
of standardized output? If carriers wanted to operate ELDs from more 
than one vendor, would this be a barrier? Would this issue be impacted

[[Page 78327]]

by the market-share of the ELD manufacturer?
    4. Would motor carriers and individual drivers have broad-based use 
or need for such capability? Is there a better way to structure 
standardized output to lower cost or encourage flexibility without 
requiring full interoperability?
    Providers raised questions about many of the technical 
specifications and suggested changes. NTSB asked FMCSA to consider 
adding crash survivability for ELD and ELD data.
    EROAD Inc. (EROAD) stated that the easiest and fairest way for 
FMCSA to provide standards that guarantee high performance is to use 
general hardware and software technical and security standards. It 
recommended a requirement for ELD providers to meet appropriate FIPS, 
Common Criteria, or other equivalent standards.
    BigRoad stated that codifying the technical specifications, as part 
of the regulatory requirements, is undesirable because the regulatory 
process would impede the development of the technical specifications. 
Instead, FMCSA should remove technical specifications from the 
regulatory requirements and create a technical standards open working 
group consisting of industry and government representatives that is 
able to work collaboratively through the interoperability issues. 
BigRoad was concerned that the complexity of the ELD specifications, 
particularly in support of roadside inspection information transfer, 
would result in ELD systems that are more expensive and less reliable 
than necessary to meet the requirements of MAP-21. Interoperability 
issues between ELD providers and roadside inspection systems could 
result in an unintended bias toward drivers producing printed paper 
logs during an inspection. Providing simpler roadside data transfer 
options, with specific requirements for both ELD providers and 
authorized safety officials, would allow technology providers to deploy 
the necessary systems more quickly.
    Continental stated that the ELD regulation and associated standards 
should include a clear security specification, using standard IT 
industry processes and endorsed by the National Institute of Standards 
and Technology (NIST) and standardized interfaces. This would assist 
with the identification of drivers, the transmission of drivers' data 
from one vehicle to another and easy access to and downloading of data 
by enforcement personnel and vehicle operators.
    PeopleNet requested clarification on how to manage data for those 
drivers that transition between a compliant AOBRD device and a 
compliant ELD. Eclipse Software Systems stated that it would be useful 
for any driver to have access to non-authenticated driving time so they 
are aware of it, since it will be displayed to roadside inspectors. It 
asked for a clarification that displaying co-driver names (perhaps 
automatically from other driver's data on the ELD) is allowed.
3. FMCSA Response
    The Agency is not requiring crash survivability standards for ELDs 
because of the costs involved. Crash survivability is a complicated and 
expensive requirement, and would mean that the ELD has to withstand 
high impact or crash forces and be water resistant and withstand 
exposure to open flames for some period of time. FMCSA does not believe 
this is necessary.
    FMCSA agrees that some level of standardization is necessary. 
Whenever possible, FMCSA used NIST, or other commonly available 
technical standards, including those incorporated by reference in 
today's rule in Sec.  395.38, Incorporation by Reference.
    FMCSA has elected to codify the technical specification standards 
in the appendix to part 395 in today's rule rather than establish a new 
working group. Though FMCSA acknowledges that including the technical 
requirements in the regulations makes changing them more difficult, 
FMCSA believes this is the best way to provide transparency and ensure 
that all interested parties are aware of the requirements and any 
proposed changes to the standards. FMCSA notes that adopting technical 
specifications by regulation is the only way to make them binding. 
Additionally, though the Agency did not create a workgroup, the MCSAC 
subcommittee, which included members from the ELD technical community, 
gave a recommendation to FMCSA on task 11-04, which the Agency 
considered in lieu of a workgroup's recommendations.
    Today's rule requires standardized output and standardized data 
sets. FMCSA has decided not to require full interoperability between 
all ELDs. Although full interoperability would have some benefits, it 
would also be complicated and costly. FMCSA believes that requiring 
standardized data output and requiring that drivers have access to 
their own records will achieve some of the goals of the commenters 
advocating for full interoperability.
    The motor carrier and the driver are responsible for ensuring that 
all the RODS information required by the HOS rules is available for 
review by authorized safety officials at the roadside. If the driver 
works for multiple employers with multiple ELD or AOBRD systems that 
are not compatible (e.g., the data file from one system cannot be 
uploaded into the other system), the driver must either manually enter 
the missing duty status information or provide a printout from the 
other system so that an accurate accounting of the duty status for the 
current and previous 7 days is available for authorized safety 
officials.

B. Specific Performance Requirements

1. Comments to the SNPRM
    Commenters had comments or questions on specific design elements in 
the proposed appendix to part 395.
Comments Requesting New Requirements
    FedEx stated that ELDs should be programmed to acknowledge that a 
driver is using the 100-air-mile exception. While taking the exception, 
the driver should only need to enter start time and end time into the 
ELD. Omnitracs, LLC (Omnitracs) asked for a definition of minimum duty 
status duration. Paper logs are to a granularity of 15 minutes, but 
there is no specification for RODS recorded by the ELD. Omnitracs 
believed the customer should be able to configure the duration.
    CVSA and the United Motorcoach Association (UMA) stated that the 
ELD should alert a driver when he or she is approaching the HOS limits.
Number of Required Features
    The IFDA recommended eliminating the requirement for a single-step 
interface and graphic display or printout. The commenter wrote that 
there is not a sufficient safety benefit to justify the 60-minute 
requirement for recording the location, communications methods, and 
indications of sensor failure, which it wrote are not currently 
standard technology.
    XRS stated that FMCSA needs to clarify why the engine hours are a 
requirement. FMCSA should identify what other methods would accurately 
acquire engine hours without an ECM available.
    ATA raised concerns about the requirement to synchronize devices to 
Coordinated Universal Time (UCT) periodically and to ensure that a 
device's deviation from UCT not exceed 10 minutes at any point in time. 
To ensure such synchronization will

[[Page 78328]]

require cell or satellite service (depending on the device) and such 
service is not always available. ATA also questioned if ELDs would be 
able to produce the volume of data that FMCSA proposes (e.g., last 6 
months' records, all drivers who previously used the device). ATA 
believed that such requirements will cause devices to need large memory 
capacity that will add to cost, reduce design flexibility, and 
ultimately impact the ability of some existing hardware to be upgraded 
to meet new specifications. ATA recommended limiting the requirement to 
the same level of detail that drivers currently must provide during 
roadside inspections.
    With the requirement for ELD records to resolve latitude and 
longitude to a place name, as well as the distance and direction to the 
place name, Verigo stated that it is questionable why locations need to 
be resolved to an accuracy of two decimal places. This level of 
granularity does not appear to provide a higher level of safety and is 
inconsistent with the accuracy in use today. The 10-mile accuracy of 
single decimal coordinates is consistent with the distance that could 
reasonably be traveled within the 15-minute interval in use.
    Eclipse Software Systems stated that the transaction numbering 
system, along with the odometer capture (vehicle miles) provides very 
strong security that makes tampering extremely difficult. Adding engine 
hours, ignition on/off and VIN detection add very little additional 
security. Another issue Eclipse asked FMCSA to consider is that the 
serial and CAN buses of ECMs broadcast the odometer and wheel speed 
without intervention from an ELD. The ELD can sit in ``listen mode'' 
and obtain this information. Conversely, to get engine hours and VIN, 
the ELD must transmit on the ECM bus, and send requests for this 
information. Eclipse commented that it was aware of some EOBRs 
improperly transmitting on vehicle buses, causing erratic behavior on 
the electrical bus. Given that an ELD mandate is likely to draw lots of 
new providers to this market (who may be inexperienced with ECM 
interfacing), it seems safer that ELD providers operate in ``listen 
only'' mode, where they are less likely to interfere with vehicle 
operation by broadcasting on the engine bus.
2. FMCSA Response
    FMCSA is aware that there is no current device on the market that 
meets every standard in today's rule. However, the intent of this rule 
is to set a standard that the Agency believes is secure, useful, and 
can be met at a reasonable cost. FMCSA has been careful to consider the 
cost of developing new components of an ELD, and has purposefully set 
standards that can be met by re-programming many existing devices with 
little cost to the providers.
Requesting New Requirements
    FMCSA does not require ELDs to accommodate any statuses other than 
those that are currently required to complete paper RODS, including 
excepted and exempted statuses. However, section 4.3.3.1.2. (c) states 
that an exemption must be proactively configured for an applicable 
driver account by the motor carrier. The ELD must prompt the motor 
carrier to annotate the record and provide an explanation for the 
configuration of the exemption.
    FMCSA does not require a minimum duty status duration. The ELD will 
capture all duty statuses entered; there is no minimum amount of time 
these statuses must be engaged. While longstanding industry and 
enforcement practices may have relied upon minimum intervals of 15 
minutes in the handwritten RODS, the ELD provides for a more accurate 
accounting of drivers' time. This should not be construed to be an 
indicator that the activities that are electronically recorded as less 
than 15 minutes are suspect, only that the time actually required to 
complete the task may be less that what had been traditionally noted in 
the paper RODS.
    FMCSA allows, but does not require, any notification of the driver 
when they are nearing their HOS limits. While an ELD will automatically 
record on-duty driving time, a driver is still responsible to record 
other duty statuses based on the driver's actual work time.
Number of Required Features
    FMCSA agrees that data transmission is complex, and roadside 
enforcement and review will likely play a large role, especially in the 
transition phase of the implementation of today's rule. For this 
reason, FMCSA has standardized the information on the printout and the 
display screen to contain the same data set. FMCSA believes that the 
modifications made from the SNPRM in today's rule to require a 
standardized backup of a display or printout will increase the ease of 
users.
    FMCSA acknowledges the commenter's concerns about 60-minute 
location but the Agency believes ELD devices can easily be programmed 
to record at 60 minute intervals.
    FMCSA believes it is necessary to record engine hours, as a check 
with the other data contained on the ELD. A record of engine hours, 
when compared with the ECM odometer readings, verifies the accuracy of 
periods other than drive time. Because today's rule is not applicable 
to vehicles older than model year 2000, and ELD providers can work-
around vehicles using OBD-II, which might not capture engine hours, the 
concern about engines without ECMs should be eliminated. However, 
should a driver of a CMV with a non-ECM engine wish to install an ELD, 
Appendix B sections 4.2(b) and 4.3.1.2(b) provide specifications for an 
ELD when there is no ECM or ECM connectivity.
    With current technology, it should be rare for an ELD's time to 
drift more than 10 minutes. In addition, the technical specifications 
require the ELD to (1) periodically cross-check its compliance with the 
requirement specified in section 4.3.1.5 of the Appendix with respect 
to an accurate external UTC source and (2) record a timing compliance 
malfunction when it can no longer meet the underlying compliance 
requirement.
    FMCSA clarifies that the ELD in the CMV only needs to retain the 
data for the current 24 hour period and the previous 7 consecutive 
days. Carrier (or private driver) record keeping systems could retain 
more data for the purposes of historical data storage. FMCSA does not 
prohibit any ELD from retaining more data than 8 days, but it is not 
required. The carrier is required to keep data for 6 months in case of 
an FMCSA inspection. This information can be kept on the device itself 
or in the carrier's office. These electronic files are not large. FMCSA 
estimates that 6 months of data, for one ELD, would not require more 
than 10 MB of storage. Therefore, in this rule, FMCSA does not reduce 
the data set that needs to be retained.
    FMCSA needs to capture latitude and longitude because it is more 
reliable for computers to process than place names. However, FMCSA also 
needs place names to allow drivers to verify that the location is 
correct and safety officials to recognize the location quickly. Data 
collected in addition to odometer, such as engine hours, are necessary 
as a cross check to verify that data has not been manipulated. Location 
resolved to an accuracy of two decimal places when drivers are on-duty 
driving provides a clear history of where the driver and vehicle have 
been. In today's rule, FMCSA does not require an ELD to be able to 
communicate with the motor carrier. FMCSA disagrees that the location 
information does not have a safety reason; location information will 
make falsification of HOS records more

[[Page 78329]]

difficult. Additionally, FMCSA believes this level of specificity can 
provide accurate time information, and that this is not a difficult 
level of location information to meet.
    In response to concerns about improper transmittal, the industry 
will be driven by customer requirements to provide safe and non-
interfering connectivity of the ELDs to the engine ECM or ECM 
connectivity. Additionally, the use of industry standards in the 
regulation, and the requirement that ELD providers register and certify 
their ELDs on FMCSA's Web site, should reduce the potential for this 
type of issue.

C. Security

1. Comments to the 2014 SNPRM
    The SNPRM proposed incorporating by reference several industry 
standards for privacy and encryption including NIST standards.
    Continental stated that ELDs should be tested and certified to 
comply with security standards by independent laboratories that follow 
processes endorsed by NIST. In the absence of a precise requirement for 
a specific tamper resistance level, FMCSA should at least ensure that 
ELD software cannot be accessed and modified by end users. As drafted, 
Continental stated the rule may lead to the proliferation of hacked or 
cloned apps for smartphones and tablets that exactly mimic the displays 
of compliant systems. As a minimum security requirement, FMCSA should 
only allow ELDs that prohibit user access to the software environment 
on the device. The provider of the ELD should demonstrate during the 
certification process that the software environment on the device 
cannot be easily accessed and modified by the end user. While the 
industry has shown an interest in using smart devices for operational 
management, the current market penetration of smart device-based ELDs 
is very low. Therefore, there will be only a minimal financial impact 
to the industry by prohibiting open-software devices. As the number and 
sophistication of tampering attempts will grow with time, the overall 
tamper resistance level could be significantly enhanced by requiring 
that the data delivered by ELDs be digitally signed. Continental noted 
that FMCSA proposes to require that ELDs provide data in the format of 
an electronic file. Lacking enforceable security requirements, however, 
it will be extremely easy to perform undetectable modifications on 
those files.
    XRS stated that many suppliers of AOBRD portable devices or 
handheld devices that are AOBRD compliant and moving to an ELD have 
been employing security measures through the use of Mobile Device 
Management software, which provides for security of the device.
    BigRoad stated that the series of checksums that are required on 
event logs, output file lines, and the entire output file itself are 
calculated in a manner that would be trivial to recalculate should any 
data be altered. However, in proposed sections 7.1.20, 7.1.26, and 
7.1.31 (7.21, 7.27, and 7.32 in this rule), these values have the 
stated purpose to identify cases where an ELD file or event record may 
have been inappropriately modified after its original creation. BigRoad 
stated that, for security against purposeful tampering, only a 
cryptographically robust signature of the data in question is effective 
in practice.
    Omnitracs also questioned the value of these and stated that as 
proposed they provide no security. PeopleNet recommended the use of a 
proven industry standard, MD5 Hash.
2. FMCSA Response
    FMCSA follows all DOT Security guidelines which includes NIST 
standards for access to any FMCSA system or network. In this rule, 
FMCSA has expressly prohibited any modification at the user level. 
FMCSA believes that the security standards of ELDs have appropriately 
balanced industry standards, privacy, the need for accurate HOS 
monitoring, and the cost of security measures. FMCSA notes that it has 
only established minimally compliant standards in this rule, and there 
could be a market for more security features on an ELD. ELD providers 
are not prohibited from using additional security measures, so long as 
the data can still be transferred to authorized safety officials as 
required by the today's rule.
    In addition, the commenter's concern about mobile devices is 
misplaced. Security on mobile devices is well-understood. Banks, 
governments, and retailers all provide apps which require security. 
There is no reason to believe that consumer mobile devices cannot be an 
adequate platform for ELDs. FMCSA believes the specifications and 
privacy standards and protocols are sufficient to respond to reasonable 
concerns about hackers.
    FMCSA does not prohibit the use of Mobile Device Management 
software, but believes it is too costly to include as a minimum ELD 
specification.
    The intent of the checksums is to provide a simple method of 
detecting data manipulation to help prevent a novice user or rogue 
script programmer from easily modifying the data and gaming the system. 
The checksum algorithms are sufficiently robust to prevent a novice 
user from simple data manipulation. Although MD5 is a well-known and 
more robust checksum algorithm, in this instance it is no better than 
the simple scheme provided in this rule. Someone changing the data 
could simply apply the MD5 checksum to each line as there is no 
independent source to verify its accuracy. The MD5 checksum has the 
additional disadvantage of adding significantly more data to each line, 
thus increasing the size of the overall file.

D. External Operating Factors and Failure Rate of ELDs

1. Comments to the 2014 SNPRM
    The SNPRM did not address the effect of external operating factors, 
such as dirt or vibration, on the failure rate of ELDs.
    The National Ground Water Association stated that FMCSA should 
ensure that providers understood that ELDs had to perform when 
subjected to vibration from heavy equipment. The Association of General 
Contractors stated that the off-road conditions construction vehicles 
operate under may be problematic for ELDs. Its members indicate at 
least a 10 percent failure rate.
2. FMCSA Response
    In today's rule, FMCSA continues to allow the marketplace to 
address developing roadworthy ELDs. As with other electronic device 
manufacturers (mobile phones and laptop computers for example), the 
market should drive ELD providers to respond to CMV operating 
situations where a high level of durability is required. CMVs that 
operate only on the highway may not need the robustness of design that 
the construction and utility industries require.

E. Automatic Duty Status

1. Comments to the 2014 SNPRM
    If the driver's duty status is Driving, an ELD would only have 
allowed the driver who is operating the CMV to change the driver's duty 
status to another duty status. A stopped vehicle would have to maintain 
zero (0) miles per hour speed to be considered stationary for purposes 
of information entry into an ELD. Additionally, an ELD would have to 
switch to driving mode automatically once the vehicle is moving at up 
to a set speed threshold of 5 miles per hour.

[[Page 78330]]

    XRS stated that FMCSA should indicate whether the drive time should 
be set back to the beginning of the on duty period when 5 minutes has 
expired. Zonar stated that the safety, effectiveness, efficiency, and 
reliability of the ELD and FMS will be significantly limited by not 
allowing automatic duty-status changes when the system finds specific 
criteria for an event have been met. Zonar commented that automatic 
changes include providing the driver the ability to change the event; 
if the driver does not respond, then the automatic duty status occurs. 
Automatic duty status records must include an annotation to describe 
the system action taken, so the original record is retained.
    XRS stated that FMCSA should reconsider ``Other Automatic Duty-
Status Setting Actions Prohibited'' since the driver will have the 
ability to edit and annotate other changes. Section 395.2 (definition 
of ``on-duty time'') allows a co-driver to be off duty for up to 2 
hours in the passenger seat of a moving vehicle before or after at 
least 8 hours in the sleeper berth and then the co-driver must revert 
to on duty. Allowing an automatic duty status change from off to on 
duty when the 2 hours expires, would make ELD records more accurate and 
avoid additional transactions by the driver without compromising 
safety.
2. FMCSA Response
    FMCSA purposefully did not require drive time to set back 
automatically. FMCSA believes that the driver of a CMV has a 
responsibility to ensure the accuracy of his or her own HOS records. 
FMCSA considers that, in most cases, status changes should be directly 
linked to an action taken by a driver.
    An ELD must prompt the driver to input information into the ELD 
only when the CMV is stationary and the driver's duty status is not on-
duty driving, except for the automatic setting of duty status to ODND. 
The driver still has the option to edit and switch that time after it 
has elapsed, as long as it is not driving time. Limited editing rights, 
coupled with the ability of the driver and motor carrier to annotate, 
should ensure that records are accurate. FMCSA does not believe this 
will result in an unreasonable number of edits or complicated data for 
enforcement.

F. CMV Position

1. Comments to the 2014 SNPRM
    The SNPRM provided that an ELD must have the capability to 
automatically determine the position of the CMV in standard latitude/
longitude (proposed section 4.3.1.6. of the SNPRM). The ELD must obtain 
and record this information without any external input or interference 
from a motor carrier, driver, or any other person. CMV position 
measurement must be accurate to 0.5 mile of absolute 
position of the CMV when an ELD measures a valid latitude/longitude 
coordinate value.
    FMCSA proposed that position information be obtained in or 
converted into standard signed latitude and longitude values and must 
be expressed as decimal degrees to hundreds of a degree precision 
(i.e., a decimal point and two decimal places).
    XRS stated that FMCSA needs to clarify the accuracy of the GPS as 
to rounding up or truncating on the 1-decimal and 2-decimal accuracy. 
Eclipse Software Systems stated that FMCSA is requiring that the ELD 
determine date, time, and location ``[w]ithout allowing external input 
or interference.'' Given that this data comes from GPS, and GPS can be 
interfered with (by obscuring the GPS antenna, for example), the 
wording should be changed to reflect that the carrier, driver, or other 
individuals are not allowed to set the date, time, and location 
manually. Eclipse commented that other parts of the SNPRM already make 
it clear that interfering with GPS is a violation, but the 
responsibility lies with the individual, not the ELD provider.
    Zonar asked for guidance on the maximum characteristics to be 
displayed. A customer may choose to have more precise information than 
3 to 6 or 3 to 7 characters. As an FMS has reports and tools that are 
supported by the precise GPS location of the vehicle, this will have a 
major impact on the system.
2. FMCSA Response
    Geo-location rounding to a 1-decimal (approximately within a 10 
mile radius) will provide sufficient granularity to the data without 
providing an excessive amount of specificity; this granularity remains 
of limited specificity when reduced to 2-decimal accuracy. Because the 
date, time, and location will be determined by the ELD without 
modification by the driver, motor carrier, or any other individual, any 
alterations to these records would be considered tampering with an ELD 
under Sec.  395.8(e)(2).
    The output values for GPS location for the purpose of enforcement 
and compliance to the ELD rule may be 3 to 6 characters. If a carrier 
has more character requirements for its FMS there is no prohibition on 
having more precise information.

G. Special Driving Categories

1. Comments to the 2014 SNPRM
    The SNPRM proposed to add a requirement for the ELD to provide the 
capability for a driver to indicate the beginning and end of two 
specific categories, namely, personal use of a CMV and yard moves, as 
allowed by the motor carrier. In these cases, the CMV may be in motion 
but a driver is not necessarily in a ``driving'' duty status. This 
would record the necessary information in a consistent manner for the 
use of drivers, motor carriers, and authorized safety officials.
    In the data structures as defined in the SNPRM, XRS saw no 
allowance for identification for items such as adverse conditions, or 
16-hour short haul exemption and requested guidance on how these should 
be identified or indicated in the files. Zonar asked for clarification 
on the special driving categories: How does FMCSA expect this to be 
displayed in ``Off-Duty'' and ``On-Duty Not Driving'' or is there no 
requirement?
    While Omnitracs agreed with resetting the special driving situation 
to ``none'' if the ELD or CMV's engine goes through a power off cycle, 
it suggested that the same confirmation be allowed during yard driving 
that is allowed for authorized personal use of the CMV. This would 
enable the driver to turn off the engine when connecting or 
disconnecting a trailer when operating within a company's facility 
without the requirement to re-enter the annotation of yard driving each 
time the engine goes through a power cycle.
2. FMCSA Response
    FMCSA does not require special identification to be built into an 
ELD for specific exceptions or adverse condition status. FMCSA expects 
drivers and motor carriers to use the annotation ability on the ELD to 
record these statuses.
    Today's rule permits the driver to indicate the beginning and end 
of yard moves and personal conveyance, as allowed by the motor carrier. 
All other special driving categories, such as adverse driving 
conditions (Sec.  395.1(b)) or oilfield operations (Sec.  395.1(d)), 
would be annotated by the driver, similar to the way they are now.
    The Agency feels that the allowance of multiple power off cycles 
would not provide a substantive reduction in inputs required by the 
driver during yard moves. In addition, this may create a potential for 
misuse of the off duty yard-move status.

[[Page 78331]]

H. Data Automatically Recorded

1. Comments to the 2014 SNPRM
    The SNPRM proposed that the ELD would automatically record the 
following data elements: (1) Date; (2) time; (3) CMV geographic 
location information; (4) engine hours; (5) vehicle miles; (6) driver 
or authenticated user identification data; (7) vehicle identification 
data; and (8) motor carrier identification data.
    Eclipse Software Systems stated that it had concerns that items (6) 
driver, and (8) motor carrier information cannot truly be 
``automatically recorded.'' The ELD can make note of the current driver 
and carrier, but these values have been manually entered or selected by 
a human at some point. Unlike items 1 through 5, and 7, they are not 
provided by external sensors.
    Inthinc Technology Solutions, Inc. (inthinc) stated that a driver 
may log out and then turn off the engine. It asked if engine shutdown 
should be recorded on the ELD record even though the driver is logged 
out.
    Schneider requested confirmation that in Sec.  395.32(a), where the 
words ``as soon as the vehicle is in motion'' occur, that the 
definition of `motion' is the one found in the appendix, in section 
4.3.1.2.
2. FMCSA Response
    Today's rule provides that driver and motor carrier information 
will be the responsibility of the motor carrier, as reflected in Sec.  
395.22. After a driver's unique login to the ELD, this information will 
be available to the ELD and will be recorded by the ELD, with all the 
other data elements, at each change of duty status and at intermediate 
recording times.
    With regard to comments about the engine status, FMCSA notes the 
ELD will automatically capture the engine on and engine off activities, 
including the date, time, and location of these activities. FMCSA 
expects the driver to enter a new duty status before turning the 
vehicle off. For example, if the driver intends to remain on duty, then 
the driver would enter that information and then turn the vehicle off. 
If the driver plans to switch from driving time to a sleeper-berth 
period, the new duty status would be entered before the vehicle is shut 
down. The precision of the data collected by an ELD is not intended to 
override the practical sequence of events needed to reduce to the 
greatest extent possible annotations and corrections.
    The ELD will indicate the vehicle is in motion once the vehicle 
begins moving at a set speed threshold of up to 5 miles per hour.

I. Driver's Annotation/Edits of Records

1. Comments to the 2014 SNPRM
    The SNPRM proposed that a driver may edit and a motor carrier may 
request edits to electronic RODS. All edits would have to be annotated 
to document the reason for the change. The SNPRM did not allow any 
driving time to be edited into non-driving time.
    BigRoad noted that the annotation requires a 4-character minimum. 
Its database of logs includes hundreds of thousands of 3-letter notes 
that are meaningful. It stated that the restriction should be removed. 
Omnitracs stated that the term ``source data streams'' is too vague and 
should be changed to ``recorded data.'' Omnitracs recommended the 
process outlined in sections 4.3.2.8.1 and in 4.4.4.2 be amended to 
track only the original and the driver-approved final edit since they 
comprise the final record set. It also stated that the requirements 
regarding edits to driver ELD records do not sufficiently detail that 
only the original and final edits are to be maintained and are too 
restrictive regarding automatically recorded drive time edits. 
PeopleNet stated that the specifications in section 4.4.1.2 mean that 
if the driver is in Driving, gets to the destination, and turns off the 
ignition, he will remain in Driving, which is incorrect, but the ELD 
cannot reduce drive time.
2. FMCSA Response
    The term ``source data streams'' has a broader meaning than 
``recorded data.'' It includes all the information, recorded or not, 
that the ELD receives. FMCSA does not find that there is a reason to 
include 3-letter notes as acceptable annotations, and continues to 
require 4-character minimum codes. The Agency thinks that a code with a 
minimum of four characters will provide better quality information and 
specificity.
    When the duty status is set to driving, and the CMV has not been 
in-motion for 5 consecutive minutes, the ELD must prompt the driver to 
confirm continued driving status or enter the proper duty status. If 
the driver does not respond to the ELD prompt within one-minute, the 
ELD must automatically switch the duty status to ODND. The time 
thresholds for purposes of this section must not be configurable. 
Accordingly, the driver status will most likely change to ODND under 
the PeopleNet scenario.
    FMCSA declines to limit the record to only the original record and 
driver-approved edits. While an edit by a motor carrier normally 
requires recertification of the record by the driver, the Agency 
acknowledges that there will be instances where a driver is no longer 
available at the time of an edit. Although the edit and annotation 
would lack the required certification, retaining the carrier edits may 
provide a more complete picture of what occurred.

J. Driver's Data Transfer Initiation Input

1. Comments to the 2014 SNPRM
    The rule indicates that a screen icon must be clearly marked and 
visible when the vehicle is stopped. Verigo asked for clarification 
regarding the required visibility of this icon at all times when the 
vehicle is stopped.
2. FMCSA Response
    The icon is a function that allows the driver to easily transfer 
data at roadside. The supported single-step data transfer initiation 
mechanism (such as a switch or an icon on a touch-screen display) must 
be clearly marked and visible to the driver when the vehicle is stopped 
and data transfer is required. We expect that the ELD makers will meet 
the regulation requirements by incorporating user friendly and useful 
features to maintain market share.

K. ELD Data File

1. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA provided that an ELD must have the capability 
to generate an electronic file output, compliant with the format 
described in section 4.8.2, to facilitate the transfer, processing and 
standardized display of ELD data sets on the authorized safety 
officials' computing environments. FMCSA required that all output files 
be standardized on ELDs according to American Standard Code for 
Information Interchange (ASCII), which the Agency proposed 
incorporating by reference.
    Zonar asked where the output file comment should be stored--within 
the driver records on the ELD, just in the support system, or both? If 
stored on the ELD only, when the ELD records are purged after the 7 or 
8 days they are required to be retained, should it then be stored 
within the support system?
    Omnitracs recommended replacing the word ``ELD'' in section 4.8.2 
with the phrase, ``ELD or a support system used in conjunction with 
ELDs,'' the same language used in section 4.9.2. The commenter believed 
that use of the additional term would allow for closer alignment within 
the rules. Omnitracs also stated that there is nothing in the output 
file standard that specifies how to handle non-ASCII character sets 
such

[[Page 78332]]

as special characters that may be used either by Canadian cities/
provinces or even in driver names.
    In section 4.8.2.1 of the appendix to part 395, the SNPRM proposed 
that the ELD must produce a standard ELD data output file for transfer 
purposes, regardless of the particular database architecture used for 
recording the ELD events in electronic format. This ELD data output 
file must be generated according to the standard specified in section 
4.8.2.1.
    Omnitracs stated that all of the ``supporting'' elements (e.g. 
annotations, certifications, malfunctions, etc.) reference the event 
sequence ID number as the only means to associate to the actual driver 
duty change event (refer to 4.8.2.1.5, which contains the format for 
Event annotations or comments). If a driver's duty cycle consists of 
data recorded from multiple ELDs, these sequence IDs may overlap and 
may not be unique on the current ELD. It recommended that a secondary 
reference to the original duty status, which could include an ELD 
unique identifier, or even a date/time reference, be used. Omnitracs 
requested that there be further clarification on how to handle event 
sequence IDs when data on the ELD are a mix of data that have been 
recorded from different ELDs. The current language has no provision on 
how to handle data from different ELDs when there could be a sequence 
conflict.
    Inthinc recommended that UTF-8 be used for output rather than 
ASCII. It also asked for examples of how output code should be parsed.
    BigRoad stated that the comma-separated format described in the 
SNPRM is not based on any contemporary standard for structured data and 
already fails to accommodate some data requirements fully (see Table 6, 
Event Type 4). BigRoad wrote the format also fails to account for field 
values that might include inline commas or  characters. The 
commenter also noted that a file format based on standards like 
extensible markup language (XML) would allow for more flexibility for 
future changes and could be paired with any character set encoding, 
including Unicode, to allow any character data to be captured correctly 
without loss of precision. BigRoad wrote that to restrict future 
flexibility of the data format to support a minority of devices seems 
shortsighted.
    Since ELD data that are transmitted to FMCSA Web services are 
formatted as XML, BigRoad believed that XML should be used as the 
format for all transmission options. BigRoad wrote that using XML along 
with a formal XSD schema is beneficial when trying to ensure 
interoperability between disparate systems and would reduce the number 
of file format incompatibility issues when transferring data between 
systems.
    BigRoad stated that the ELD data file specifications are not 
explicit about how to display and transfer data from drivers that 
produce records on multiple ELDs. The requirements to display multi-day 
data imply that data must be aggregated across all ELDs the driver 
uses. None of the ELD data files contains an identifier for the 
specific ELD that created the record, so if the records from multiple 
ELDs are aggregated the event sequence number ranges throughout the 
file could be discontinuous. If the intention is to produce data files 
containing ELD data aggregated across several ELDs, BigRoad believed 
adding an ELD identifier would mean that each separate ELD could be 
easily disambiguated.
2. FMCSA Response
    In today's rule, section 4.8.2 is largely the same as proposed. 
Some changes have been made to accommodate comments and to clarify the 
rule. In response to the comment asking how the output file comment 
should be stored, it must be recorded in the output file and 
transferred to roadside enforcement or inspectors. All captured 
elements from the output file must be retained by the carrier for 6 
months.
    FMCSA understands that some capabilities of an ELD may not be 
located on the same physical device, or even in the CMV, but rather in 
a support system. FMCSA has provided flexibility in this rule for all 
provider types and their respective ELDs.
    FMCSA requires that all information in the output file be 
standardized and only include ASCII characters. ASCII is a widely 
available standard within the United States, and is appropriate for the 
data required. Although ASCII does not provide for special characters, 
FMCSA feels that identification of proper names and cities can be clear 
without the insertion special characters.
    The ELD technology option for any data transfers will require that 
the standard ELD CSV data file outlined in part 395 would be packaged 
into XML format. FMCSA will provide and manage ELD XML schema and all 
related instructions outlined in guidance, ``ELD Interface Control 
Document (ICD),'' to be placed on its Third Party Development site 
(3PDP). There is no prohibition on using an XML format internally. 
However, ELD output files have a standardized format. The format method 
accounts for the suggested needs, including that for Table 7, Event 
Type 4. In the respective section, only Event code is necessary as 
event type is implied by the section. Field values including inline 
commas or  characters can be controlled for or pre-processed by the 
ELD provider. FMCSA has updated section 4.8.2.1. to accommodate a comma 
or carriage return by adding: ``(3) Any field value that may contain 
comma (``,'') or carriage return () must be replaced with a 
semicolon (`;') before generating the compliant CSV output file.''
    The concern about HOS records from multiple ELDs is appropriate. 
FMCSA added data and time stamp fields to annotations to allow an 
improved method of disambiguation. There may still be rare situations 
where one or more drivers could have data in multiple ELDs that get 
combined into a single file having identical event IDs and slightly 
unsynchronized time stamps. The probability of this occurring is low, 
but not zero, and the consequences are minimal. An ELD Identifier data 
element that BigRoad mentions is already defined in the rule.
    While today's rule does not include requirements concerning 
compatibility of files between ELD systems or the ability to upload 
drivers' duty status files from multiple systems, there is nothing in 
the rule that prevents collaboration among the providers to produce 
compatible products. In the absence of a compatibility standard, if a 
driver's duty cycle consists of data recorded from multiple ELDs, then 
the records will be in multiple files. If the ELD is set to combine 
them, then a provider could opt to use an additional field as a 
database element in order to keep them separated. In today's rule, 
FMCSA has added a secondary reference to the original duty status to 
include a date and time field. There are multiple methods to handle 
combining data from more than one source and FMCSA has purposely left 
this open for the innovation and flexibility of ELD providers.

L. Engine Power Up and Shut Down

1. Comments to the 2014 SNPRM
    The SNPRM proposed that an ignition power on cycle refers to the 
engine power sequence changing from ``off to on and then off.'' This 
refers to a continuous period when a CMV's engine is powered.
    Omnitracs asked if, since CMV ignition can be in the ``on'' 
position without the engine running, the ELD must capture when the 
ignition is in the on position without the engine running. The same 
commenter recommended

[[Page 78333]]

that the 1-minute time for power up be relaxed to 3 minutes to allow 
for a cold boot situation. Zonar asked what constitutes ``Ignition 
power on cycle'' when connected to a hybrid truck? A hybrid truck will 
not produce a RPM of greater than 0 until driven.
2. FMCSA Response
    The technical specification included a capture for when the engine 
goes from on to off, but the intended data capture was for when the 
driver intended to drive the CMV. Though propulsion variations can be 
defined, FMCSA wants the specification to capture when the CMV is put 
into a state where it can be driven. Likewise, ignition on/engine on 
for a hybrid vehicle will be the status of vehicle ready to drive--the 
equivalent to ``engine on'' for an internal combustion engine. FMCSA 
continues to require the capture of the engine on data.
    FMCSA does not accept the suggestion to relax the power up status 
to 3 minutes because the Agency believes that 1 minute is sufficient. 
Any cold boot event records that would be captured could be annotated, 
or would be clear from the type of activity that occurred. A 3 minute 
cold start would be a rare occasion, and would be captured as a 
diagnostic event, not as a fault, and should not impact driving time.

M. Engine Synchronization Compliance Monitoring

1. Comments to the 2014 SNPRM
    The SNPRM proposed that an ELD monitor the data it receives from 
the engine ECM or alternative sources to record history to identify 
instances and durations of its non-compliance with the ELD engine 
synchronization, and establish a link to the ECM, as well as set an 
engine synchronization compliance malfunction if connectivity to any of 
the required data sources is lost for more than 30 minutes during a 24-
hour period aggregated across all driver profiles, including the 
unidentified driver profile.
    FMCSA also proposed that engine synchronization must be functional 
for all but 30 minutes in a 24-hour period. If it is not, an engine 
synchronization compliance malfunction must be logged.
    If the vehicle ECM becomes unresponsive, XRS asked what value 
should be inserted into these fields to record the malfunction. There 
are other cases of failure that could prevent significant data being 
available to record (e.g., Driver interface unit failing. . . . ``Data 
recording compliance'' malfunction). The ECM could recover at a later 
point and the system will be fully functional.
    XRS wanted FMCSA to clarify the 30 minutes mentioned in this 
section. This could easily exceed 30 minutes in a 24 -hour period 
especially with many jurisdictions around the country prohibiting CMV 
drivers from idling their engines. There is the possibility that a 
vehicle bus under particular stress may not respond for more than 5 
seconds. Clarification on the 24-hour period as well as the aggregate 
of the 30 minutes against all profiles may be difficult or give false 
errors.
    Verigo noted that, given the wide variety of computer processor 
speeds and other sequencing events that may be encountered, the 5-
second limit may introduce a significantly higher level of error 
reporting than necessary to promote safe operation. There have been 
several instances where the OBD-II interface does not become active 
when the ignition is switched on, but only after the vehicle is 
started. Without additional conditions to be checked, it seems likely 
that there will be invalid logs of engine sync failure for these 
vehicles (i.e. driver turns on ignition and listens to the radio). It 
would be useful if the Engine Sync Compliance Monitoring is not 
required to log a failure until after engine ignition is detected and 
motion is detected (via GPS) and vehicle data are not available.
    Eclipse Software Systems stated engine synchronization must be 
functional for all but 30 minutes in a 24-hour period. If it is not, an 
engine synchronization compliance fault must be logged. This is 
problematic in that the engine bus is not always operational. When the 
engine is not powered and a cab door is not open, there is usually no 
activity on the engine bus. This is indistinguishable from the wires to 
the engine bus being disconnected. One action is harmless, the other is 
tampering.
2. FMCSA Response
    Table 4 of the appendix explains the malfunction codes that must be 
listed for a variety of issues including engine synchronization 
compliance malfunctions. If the ECM or ECM connectivity is unresponsive 
for more than 5 seconds, or if the failure cannot be recorded until the 
ELD is fully functional again, Table 4 in the appendix outlines how to 
capture these malfunctions. These conditions are not expected to be 
occurring frequently but FMCSA acknowledges that on occasion that a 
malfunction or disconnection anomalies will occur, but still requires 
the ELD to adhere to the standard of consistent connectivity expected 
of the ELD product.
    In regards to the concern about the aggregate 30 minute period in a 
24 hour period, FMCSA believes that this is a generous standard for HOS 
compliance. If a driver is concerned about this malfunction, there are 
several ways, including a simple pre-boot, to ensure that the ELD is 
ready to receive data as soon as the ECM or ECM connection sends it. 
Additionally, when an ELD displays a malfunction, the authorized safety 
official should be able to see what the problem is and take that into 
consideration. There would be enough data in this instance to see what 
the issue was, and what the real driving time is. When the engine is 
not powered, the ELD does not have to capture data. The 30 minutes 
verifies that additional miles and movement has not taken place in the 
24 hour period.
    FMCSA clarifies that the ECM data or ECM connectivity data must 
only be captured when the engine is powered, but the ELD is not 
prohibited from recording information, if desired, when the engine is 
off. If the CMV is older than model year 2000, then the driver is not 
required to use an ELD. However, if that driver is voluntarily using an 
ELD in a vehicle older than model year 2000 with the connections 
required in section 4 of the appendix, then the interface should become 
active when the engine is on, not just when the switch is turned on.

N. Engine Miles

1. Comments to the 2014 SNPRM
    The SNPRM proposed that engine miles be retrieved from an ECM if 
the CMV had an ECM. If a vehicle was older than model year 2000, and 
did not have an ECM, then the vehicle miles would have to be derived.
    Zonar stated that there are multiple sources of engine miles. 
Because of widespread variability among CMVs with respect to what data 
can actually be readily extracted by ELD providers, Zonar believed 
FMCSA should consider a version of ELD that substitutes GPS-derived 
data (such as mileage) for data that cannot be readily obtained from a 
vehicle ECU or a vehicle data bus. Modern GPS fleet tracking devices 
can be wired securely and permanently into a vehicle, can be programmed 
to uniquely identify individual vehicles, and can provide very accurate 
mileage data and truck run time data to validate driver records.
2. FMCSA Response
    Because today's rule is only mandatory for motor carriers operating

[[Page 78334]]

CMVs that are model year 2000 or newer, all engine miles must be 
derived from the ECM or ECM connection. Synchronization with a 
satellite for the receipt of GPS-derived data is not the same as being 
integrally synchronized with the engine of the CMV, as required in 
today's rule. Engine synchronization for purposes of ELD compliance 
means the monitoring of the vehicle's engine operation to automatically 
capture data, including: the engine's power status, vehicle's motion 
status, miles driven value, and engine hours value.

O. Records Logged Under the Unidentified Driver Profile

1. Comments to the 2014 SNPRM
    The SNPRM proposed that all records logged be recorded on the ELD. 
If a driver did not respond to prompts to log in, that time became 
unassigned driving time, and would be visible to any authorized safety 
official viewing the ELD records.
    Omnitracs stated that it was unclear how to handle unclaimed, 
unassigned driving time. It recommended that the persistence of 
unclaimed unassigned driving time only be kept on an ELD for 8 days 
(maximum duty cycle). After such time, the ELD may delete any recorded 
yet unclaimed unassigned drive time. In addition, unassigned driving 
time should be sent to any ELD support system (e.g., host system) for 
future assignment if the driver does not claim unassigned driving time 
on the ELD directly.
    Omnitracs recommended an exception to this requirement in the case 
of unit maintenance where the ELD may be completely ``reset'' and all 
data purged from the ELD. In this situation, the ELD is allowed to act 
as a ``new'' ELD with no driver history. In addition, Omnitracs 
recommended that any ELD support system not be required to maintain 
this information and then ``push'' back to the ELD post maintenance.
2. FMCSA Response
    All data for the last 8 days, including unassigned driving time, 
must be available at roadside. There is no requirement that unassigned 
driving time be available at roadside after 8 days. All data older than 
8 days can be purged from the ELD, but all data, including unassigned 
driving time, must be available to inspectors at the motor carrier's 
principal place of business for 6 months.

P. Power-On Status Time

1. Comments to the 2014 SNPRM
    The SNPRM stated that an ELD must be powered within 15 seconds of 
the vehicle's engine receiving power and must remain powered for as 
long as the vehicle's engine stays powered.
    XRS stated that FMCSA needs to clarify the definition of power on 
the device within 15 seconds referencing Fig 1. XRS asked if this is 
for internal processing or is this for all input and outputs? There are 
portable devices commercially available that can take much longer than 
15 seconds to be available; these are tablets, ruggedized handheld 
computers, and smart phones that can meet all other ELD recording 
requirements. Omnitracs raised the same issue. It stated that a better 
solution would be for the system to read and retain data from the ECM; 
a 180-second time frame would better accommodate existing hardware that 
could have slower cold boot capabilities. Omnitracs and inthinc noted 
that the rule does not indicate what ELD functionality is required.
2. FMCSA Response
    As part of the ELD User Guide or a driver Standard Operating 
Procedure on proper use of the ELD, FMCSA will recommend that the 
driver turn on the engine and then power on and start up the ELD, 
before moving the vehicle. However, the requirement remains the same; 
the device must receive power within 15 seconds, and the driver should 
pre-boot the equipment prior to powering up the vehicle. Similarly, at 
power off and shutdown, FMCSA will recommend driver certifications of 
records, followed by ELD log off, followed by engine shutdown. By not 
following these recommendations, malfunction codes and annotations will 
be needed in order to explain unaccounted odometer changes and 
suspicious driving activity.
    This 15 second start up time is not unreasonable, compared with 
other start up times for similar technology. However, in response to 
the concern from commenters, FMCSA extends the requirement to a period 
of 1 minute for full functionality in today's rule. Additionally, any 
reboots that take longer would already be logged as power diagnostic 
events.

Q. Time

1. Comments to the 2014 SNPRM
    The SNPRM proposed that the ELD automatically record the time at 
changes of duty status and certain intervals (Sec.  395.26(b)(2)). As 
described in the proposed data elements dictionary (proposed section 
7.1.39; section 7.40 in this rule), even though time must be captured 
in UTC, event records must use time converted to the time zone in 
effect at the driver's home terminal.
    Proposed section 4.6.1.3, timing compliance monitoring, would have 
required an ELD to periodically cross-check the automatically acquired 
date and time with an accurate external UTC source.
    Zonar asked FMCSA to clarify all sections that reference time 
format. Zonar commented that it can be very difficult to calculate a 
true 24 hours and accurately record time unless there is a one 
consistent format; multiple formats cause inconsistencies in data. If 
one event needs to be recorded as HH:MM:SS then all clocks within an 
ELD need to run on this format. If the HH:MM:SS clock needs to record 
an HH:MM for a different event, the commenter asked how the ELD should 
handle the seconds--does it round up or down. Zonar asked for specific 
examples within guidance to this question and suggested an HH:MM clock 
to eliminate the need to round the seconds.
    Eclipse Software Systems stated that it had seen many projects in 
the past where storing time in the local format leads to problems, 
particularly when at or near daylight savings changeovers. While it is 
only 1 hour per year, when daylight savings occurs in the fall, there 
are two periods from 1am to 2am. All events during those 2 hours are 
ambiguous. It recommended that all times be stored and reported in UTC, 
which is what is reported by GPS systems by default.
    Omnitracs stated a concern about recording a qualifying 34-hour 
restart. With respect to timing compliance monitoring, Eclipse stated 
that aside from GPS, it is difficult to obtain other reliable sources 
of the precise time. It has seen cell towers (which are not accessible 
from all proposed ELDs) have time stamps that are years off. The ELD 
could watch for backdating, if a time stamp from GPS is ever before 
another received timestamp from GPS, but other validation would be 
quite difficult.
2. FMCSA Response
    In response to comments, FMCSA changes the time to be captured in 
today's rule to include seconds. Today's rule requires an ELD to 
convert and track date and time--captured in UTC standard--to the time 
standard in effect at driver's home terminal, taking the daylight 
savings time changes into account. An ELD must record the driver's RODS 
using the time standard

[[Page 78335]]

in effect at the driver's home terminal for a 24-hour period beginning 
with the time specified by the motor carrier for that driver's home 
terminal.
    The data element ``Time Zone Offset from UTC'' must be included in 
the ``Driver's Certification of Own Records'' events as specified in 
section 4.5.1.4. Time must be stored in UTC, and reported in carrier's 
local time. If an ELD stored it in a different format that was 
translated to UTC, this would be acceptable.
    In today's rule, FMCSA does not require the ELD to record State 
time. FMCSA does not believe that it is necessary for the ELD to record 
State time for HOS compliance. However, FMCSA does not prevent ELD 
providers from including State time as part of a compliant ELD.
    In regard to the comment on timing compliance monitoring, this 
section of the rule has been clarified per the requester's suggestion 
and the rule no longer requires the ELD to cross check time if it uses 
GPS.

R. User List

1. Comments to the 2014 SNPRM
    In section 4.8.2.1.2, the SNPRM proposed that the ELD should 
provide a ``user list.'' In chronological order, this user list shows 
all drivers and co-drivers with driving time records on the most recent 
CMV operated by the inspected driver or motor carrier's support 
personnel who requested edits within the time period for which this 
file is generated.
    If ELDs are swapped on a CMV, Omnitracs believed that the new ELD 
should not be required to know the driver list for the CMV prior to the 
ELD being installed in the CMV. XRS stated that FMCSA needs to describe 
how this user list would be used at roadside and if there could be a 
validation process for its use. Depending on the time of day, there may 
be users who will not be in the CMV user list from the support system 
due to last time the CMV communicated with the host.
2. FMCSA Response
    For a reset or replaced ELD, today's rule requires data or 
documents showing the driver's RODS history in the vehicle. This data 
would include the driver's past 7 days of RODS either loaded into the 
``new'' ELD or in paper format to be provided at roadside. There is no 
requirement that the ELD have a wireless connection.
    In the case of ELDs that include a wireless connection, a user list 
must be available up to the date from the last time the CMV or ELD 
communicated with the host or back office system.

S. ELD Vehicle Interfaces

1. Comments to the 2014 SNPRM
    In the SNPRM, section 4.2 of the technical specifications proposed 
that an ELD must be integrally synchronized with the engine of the CMV. 
Engine synchronization means monitoring the vehicle's engine operation 
to automatically capture engine's power status, vehicle's motion 
status, miles driven value, and engine hours value. An ELD used while 
operating a 2000 or later model year CMV, as indicated by the tenth 
character in the VIN, that has an engine ECM, must establish a link to 
the engine ECM and receive this information automatically through the 
serial or Control Area Network communication protocols supported by the 
vehicle's engine ECM. The SNPRM proposed that if a CMV is older than 
model year 2000 and does not have an ECM, an ELD may use alternative 
sources to obtain or estimate these vehicle parameters with the listed 
accuracy requirements under section 4.3.1.
    XRS asked FMCSA to clarify if a link to the ECM is the only method 
for the ELD to receive information or could information be received 
from specific ECUs in the vehicle; e.g., can the ELD interface with 
other components on the bus including the instrument cluster and the 
vehicle management system. Because there is not Fstandardization on the 
OBD that is published with the Society for Automotive Engineers for 
odometer and other elements that could be captured, XRS asked what 
FMCSA would expect manufacturers to capture for light duty vehicles. 
The same commenter wrote that FMCSA needs to coordinate with National 
Highway Transportation Safety Administration concerning the 
requirements of the capturing of ECM data. For light duty vehicles that 
may be required to use an ELD, FMCSA should require providers of OBD-II 
to supply proprietary or public information to satisfy the regulation 
requirements for ECM data capture. XRS also believed that ECM data 
capture of specific OBD-II data requirements may increase the overall 
cost of ELD solutions.
2. FMCSA Response
    FMCSA agrees that mandatory transfer through the OBD-II could 
require additional information transfer or equipment. In today's rule, 
FMCSA does not require drivers of CMVs manufactured before model year 
2000 to use ELDs. However, if a driver of one of those vehicles 
voluntarily uses an ELD, they must do so in compliance with section 4.2 
of the technical specifications in today's rule. As indicated in that 
section, if an ELD is being used voluntarily in a vehicle older than 
model year 2000, it may use alternative sources to obtain or estimate 
the required vehicle parameters with the listed accuracy requirements 
under section 4.3.1. However, any CMV manufactured beginning model year 
2000 must use an ELD that connects to the ECM.
    FMCSA believes that the ECM or ECM connectivity is the best and 
most cost-efficient source of data. However, FMCSA understands that 
drivers with non-ECM engines might see benefits from the use of an ELD. 
Today's rule requires a reasonable proxy for the data if the ECM or ECM 
connectivity is not providing it. So although a connection to the ECM 
or ECM connectivity is preferable, voluntary use of an ELD could be 
used with any CMV, provided the accuracy specifications are met.

T. Vehicle Miles

1. Comments to the 2014 SNPRM
    Section 4.3.1.3 of the SNPRM proposed that an ELD must monitor 
vehicle miles as accumulated by a CMV over the course of an ignition 
power on cycle (accumulated vehicle miles) and over the course of CMV's 
operation (total vehicle miles). If the ELD is required to have a link 
to the vehicle's engine ECM (as specified in section 4.2), the ELD must 
monitor the ECM's odometer message broadcast and use it to log total 
vehicle miles information and determine accumulated vehicle miles since 
engine's last power on instance. Otherwise, the accumulated vehicle 
miles indication must be obtained or estimated from an accurate source 
(within 10 percent of miles accumulated by the CMV over a 
24-hour period, as indicated on the vehicle's odometer display).
    XRS suggested that FMCSA define specifics of odometer use that are 
acceptable. XRS questioned if the odometer may be used from the 
instrument cluster. XRS believed that the proposed method is 
inconsistent.
    Zonar stated that heavy-duty vehicles may have more than one 
controller on the data bus that provides odometer value in verifying 
levels of precision. Zonar suggested pulling the mileage from the dash 
as this is more accurate than the engine and is in-sync with what will 
be on the dash.
    Eclipse Software Systems stated that it would avoid calculating and 
storing the mileages for each on/off pair. It is simpler to record the 
odometer at the required intervals (duty status changes and hourly). 
The elapsed miles can be

[[Page 78336]]

calculated (perhaps by eRODS) for each driving segment (and hour) using 
only that data.
2. FMCSA Response
    By definition, an ELD means a device or technology that 
automatically records a driver's driving time and facilitates the 
accurate recording of the driver's HOS, and that meets the requirements 
of subpart B of this part. The data received from the ECM is more 
accurate than the data that is displayed on the dash. However, when 
there is no ECM or ECM connectivity in the CMV, and an ELD is being 
used voluntarily, vehicle miles can be derived from either engine or 
dash odometer, provided that method of transfer meets the accuracy 
specification in section 4 of the technical specifications. If the 
reading of the mileage meets the accuracy specification required in 
section 4 of the appendix, although it could be slightly different in 
the ECM than on the odometer, the reading ensures the vehicle mileage 
data is of value. In the case of large anomalies between the two 
readings, the authorized safety official will decide whether further 
investigation would be required.

U. Vehicle Motion Status

1. Comments to the 2014 SNPRM
    In section 4.3.1.2, the SNPRM proposed that an ELD must 
automatically determine whether a CMV is in motion or stopped by 
comparing the vehicle speed information to a set speed threshold. If an 
ELD is linked to the ECM, vehicle speed information must be acquired 
from the engine ECM. Otherwise, accurate vehicle speed information must 
be acquired using an independent source--apart from the positioning 
services described under section 4.3.1.6.
    Omnitracs recommended a second distance threshold as an additional 
means to automatically detect and transition into driving status. This 
commenter believed that simply using a speed threshold could 
potentially reduce accuracy in determining an actual driving event. 
Ongoing verification of this accuracy would require an alternate source 
of speed detection and is not feasible during normal operation. In 
addition, Omnitracs believed this level of accuracy (+/-3 miles per 
hour tolerance) should only be required at the bottom end of the speed 
values used for motion detection and not be required at higher speed 
readings (e.g. at 75 mph).
2. FMCSA Response
    FMCSA continues to believe that a speed threshold is the best way 
to determine accurate motion. FMCSA declines to create an alternate 
threshold that relies upon distance; the data files and the actual 
location will show how far the CMV has moved. Any additional threshold 
that captures vehicle motion before the speed threshold required by the 
rule is met is acceptable. However, as soon as the required speed 
threshold is met, the ELD must record, even if the alternate threshold 
is not met.
    In today's rule, once the vehicle speed exceeds the set speed 
threshold of no more than 5 miles per hour, it must be considered in 
motion until its speed falls to 0 miles per hour and stays at 0 miles 
per hour for 3 consecutive seconds, at which point it will be 
considered stopped. FMCSA has established this requirement to determine 
the initiation of vehicle motion, which is at a very low speed of no 
greater than 5 miles per hour. The accuracy does not apply to highway 
speed.

V. Wireless Electronic Transfer

1. Comments to the 2014 SNPRM
    Proposed section 4.10.1 provided that ELDs must transmit records 
electronically in accordance with a specified file format and must be 
capable of a one-way transfer of these records to authorized safety 
officials upon request. Proposed section 4.10.1.1 described the 
standards for transferring ELD data to FMCSA via Web services.
    BigRoad stated that section 4.10.1.1 describes how an ELD provider 
must obtain a public/private key pair compliant with NIST SP 800 32. 
Using a private key in this scenario is not ideal since it would have 
to be stored on every ELD that might create the email and is therefore 
exploitable via memory inspection or code disassembly.
2. FMCSA Response
    All required security measures for data transfer with the Agency, 
public or private, will require strict adherence to NIST for all data 
in transit or `handshakes' between Government and private systems. DOT 
guidelines follow NIST 820. The exact Public Key Infrastructure (PKI) 
for ELD data transfers will be distributed once ELD providers register 
and certify ELDs.

W. Pre-2000 Model Year CMVs

1. Comments to the 2014 SNPRM
    FMCSA sought comments on issues related to installing and using an 
ELD on CMVs manufactured prior to model year 2000. The SNPRM required 
all drivers using RODS to use an ELD, regardless of the CMV the drivers 
operate.
    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.
    For vehicles that do not have a diagnostics port, but have an 
electronic speedometer, Continental stated that the ELD can use the 
analog speed signal to calculate the odometer and engine hours. This 
functionality is already integrated in some existing AOBRDs at no 
additional cost. For vehicles that do not have a diagnostics port and 
that have a mechanical speedometer (mostly built before 1992), 
Continental wrote that a speed sensor must be added to convert the 
mechanical signal into an electronic pulse signal.
    XRS stated that the GPS solutions and related costs for black boxes 
could have 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. When a connection 
to the ECM is not available, it recommended that GPS be used to 
determine vehicle speed. The commenter wrote that non-GPS options to 
determine vehicle speed include ranging laser, accelerometer, 
revolution counter (tire); or camera. PeopleNet did not believe any of 
these options could ensure accuracy within (plus or minus) 3 miles per 
hour of the CMV's true ground speed.
    Zonar supported using GPS-based ELDs for older CMVs. It stated that 
modern GPS fleet tracking devices can be wired into a vehicle, be 
programmed to identify individual vehicles, and provide very accurate 
mileage data and truck run-time data.
    The Truck and Engine Manufacturers Association raised questions 
about whether FMCSA was referring to model years or calendar years. The 
commenter believed that 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 stated that OBD-II ports data could not be shared if 
they are already dedicated for another purpose. Another problem is that 
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.

[[Page 78337]]

2. FMCSA Response
    When FMCSA developed the technical specifications, the Agency 
considered whether ELDs could be easily installed in the full range of 
CMVs operated by drivers subject to the HOS requirements. The Agency 
determined that the most practical and cost-effective means of 
achieving compliance is the use of the ECM or ECM connectivity or OBD-
II ports. Generally, these options are available in all the vehicles 
manufactured beginning with model year 2000 and on many pre-2000 
vehicles. After reviewing the comments in response to the SNPRM, the 
Agency believes that imposing a requirement for ELDs on pre-model year 
2000 vehicles is not feasible in all cases and that trying to 
distinguish when it is a viable option is too difficult in this 
rulemaking and next to impossible at the roadside.
    Some private-sector publications, such as the IHS Inc.'s March 2014 
publication ``Quarterly Commercial Vehicle Report,'' suggest that the 
population of pre-2000 Class 3 through Class 8 CMVs (CMVs with a gross 
vehicle weight rating greater than 10,000 pounds) is approximately 35 
percent of the registered CMVs in operation (4,178,000 pre-2000 versus 
7,723,000 2000-current). These vehicles will have been in operation 
more than 17 years by the compliance date of this rule. Therefore, the 
percentage of these vehicles operated by drivers who are required to 
use ELDs is likely to be small.
    The Agency decided not to use alternate technology for vehicles 
without ECMs, ECM connectivity or OBD-II ports. While FMCSA is aware 
that there are technologies that would make this possible, it does not 
mandate their use. In the RIA for today's rule, FMCSA estimates that 
there will be approximately 209,000 pre-2000 model year vehicles in 
2017. FMCSA has decided to exempt this relatively small population of 
CMVs.
    Concerning the comment from XRS, part 395 does not require black 
boxes nor is there anything in the SNPRM related to `black box' 
modification. Each ELD provider supports proprietary communications via 
satellite, code division multiple access or CDMA, Bluetooth, etc. The 
market dictates these products and their communication needs.

X. Authenticated User and Account Management

1. Comments to the SNPRM
    Section 395.22(b)(2)(i) of the SNPRM would have required that the 
motor carrier actively manage the ELD accounts. The motor carrier would 
have to include certain identification data elements in the ELD user 
account assigned to a driver (Sec.  395.22(c)). These data elements 
include the driver's license number and the name of the State that 
issued the license. Under the proposal, the motor carrier assigns the 
ELD username during the creation of a new ELD account (Sec.  
395.22(b)(2)(ii)). As proposed, the ELD username is any alphanumeric 
combination, 4 to 60 characters long, but it cannot include either the 
driver's license number or social security number. The SNPRM also 
proposed adding unique authenticated-user profiles for all users of the 
ELD and its support system, to increase transparency and responsibility 
between a motor carrier and its drivers, as well as to prevent 
fraudulent activities.
    Commenters expressed concern with the requirements for user names. 
FedEx stated that it is too restrictive. Because current usernames are 
sufficiently identifying drivers, FedEx suggested that FMCSA expand 
this requirement to allow ELD users to set the format of their own 
usernames. Concerns about the creation of multiple aliases for a single 
driver could be addressed via DOT compliance reviews.
    FedEx stated that the requirement does not accommodate all motor 
carrier structures. FedEx suggested that the user rights management 
rule require that ELD accounts are managed appropriately and that the 
motor carrier is responsible for any failures. With the carrier 
ultimately responsible, the rule need not dictate who must manage the 
account.
    ATA stated that FMCSA should consider alternatives that accomplish 
the same objectives and include the same protections against fraud. 
This alternative would prevent carriers and providers from having to 
implement new systems to assign identifiers based on CDL numbers.
    Saucon Technologies stated that requiring drivers to enter their 
entire CDL number and State presents some technical challenges. Many 
existing ELD solutions do not provide the ability to enter alphabetical 
characters, only numeric characters. Requiring the name of the State 
and entire CDL number would necessitate new hardware and increase the 
time required for drivers to sign on. Schneider asked for clarification 
on what proper identification data are as they relate to logging into 
an ELD.
    AGC stated that in its industry multiple drivers--including 
temporary employees--may use a vehicle. FMCSA should establish a more 
secure means to identify the driver operating the vehicle and tie the 
resulting ELD records to that driver.
    Several commenters stated that the requirement that a person have a 
single role (driver or support person) fails to accommodate smaller 
carriers where there is no support staff and the driver/owner fills 
both roles.
    BigRoad stated that proposed section 7.1.13 (7.13 in this rule) 
indicates that a person who is both the driver and the support person 
would need to maintain two separate accounts in the system, since each 
account can only be given a single role in the ELD account type field. 
That person would have to switch between accounts to perform different 
functions on the same system, creating an unnecessary administrative 
burden. XRS, Omnitracs, inthinc, and Zonar also raised this issue. XRS 
asked if account creation can be performed on the host and if the 
credentials can be stored on the host.
    Zonar asked how a driver can certify his or her records at the end 
of a 24-hour period if the driver has gone off duty for multiple days. 
It suggested allowing the driver to confirm the records on the driver's 
return to duty.
    Section 395.32(c) describes the carrier's responsibility to review 
unidentified driving records; however, it does not establish an 
expectation for when the motor carrier must complete the review. 
Schneider recommended that the rule specifically state the number of 
days a carrier is allowed to research and assign the unidentified 
driving segments or annotate the record explaining why the time is 
unassigned. Because the carrier has to make contact with the driver or 
research if the tractor was moved by maintenance, one commenter 
believed that 8 days is a reasonable time frame to allow for this 
research to be done.
2. FMCSA Response
    FMCSA acknowledges commenters' concerns, but emphasizes that the 
rulemaking does not impose the types of restrictions on usernames and 
passwords that the commenters described. Section 4.1.2 of the appendix 
to part 395 covers account creation with the explanation that each 
driver account must require the entry of the driver's license number 
and the State of jurisdiction that issued the driver's license into the 
ELD during the account creation process. The driver's license 
information is only required to set up the user account and verify the 
identity of the driver; it is not used as part of the daily process for 
entering duty status information.

[[Page 78338]]

    There may only be one user account per driver's license number and 
the carrier would be responsible for establishing requirements for 
unique user identifications and passwords. Therefore, the burden that 
commenters believed would be imposed by the rule was not intended and 
indeed is not a requirement in this rule.
    This rule does not differentiate between temporary and permanent 
employees, nor does it affect how many drivers may use a CMV. Each 
motor carrier that assigns a driver to operate a CMV under its DOT 
number must establish and manage an ELD user account for that driver.
    Each driver should have one account that allows him or her to login 
and perform driver-related functions specific to the driver. All other 
administrative functions should be based on the discretion of each 
company or its provider. This means a driver who is also the owner of 
the company would have a single account authorizing entries as a 
driver, and a separate account for administrative functions. Accounts 
can be created on the ELD or the ELD support system.
    In response to Zonar's comments, FMCSA emphasizes that a driver 
only needs to certify his or her records for each 24 hour duty status 
period he or she is on duty. This is the case under the HOS rule and 
the ELD rulemaking does not alter the duty status requirements under 
the HOS rule. The ELD would allow the record to be confirmed as off-
duty when the driver returns to duty. There is no prohibition on a 
driver certifying multiple days off on a single RODS. And, in the case 
where the driver has Web-based access to review the records and make 
certain edits or entries, the rule does not prohibit the driver from 
logging into the system to provide updates on the duty status when 
there are multiple days away from the CMV. This is also a means for 
drivers employed by more than one motor carrier to update records 
between carriers.
    Regarding the issue of providing carriers enough time to audit 
electronic RODS and make corrections, FMCSA does not place limits on 
when an annotation or correction may be made. The motor carrier must 
maintain the original record so that authorized safety officials can 
compare the chronology with the annotations and corrections, and 
supporting documents.

Y. ODND Time

1. Comments to the 2014 SNPRM
    The existing HOS rules require a driver to record in his or her 
RODS any ODND time, even if it is not in the truck (see Sec.  395.2, 
On-duty time). The SNPRM did not propose any changes to this underlying 
HOS requirement.
    Saucon Technologies, XRS, Zonar, and PeopleNet suggested that FMCSA 
clarify how ODND time is to be managed when the driver is not at the 
truck. PeopleNet stated that many customers use payroll integrations to 
put their drivers on duty (i.e., when the driver swipes the time clock, 
it puts the driver on duty via the AOBRD). Payroll integrations also 
allow administrators to put a group of drivers on duty to account for 
time spent at a safety meeting.
2. FMCSA Response
    FMCSA emphasizes that today's ELD rule does not change the 
underlying HOS requirements. The ELD automatically captures the date, 
time and location when the vehicle is turned on and turned off, when 
someone starts to drive the vehicle, and when the individual stops 
driving. The system also captures automatically the date, time and 
location when manual entries are made so that the driver's location and 
time are captured when manual entries (such as on-duty, not driving, or 
sleeper berth) are entered. An ELD system relies upon the driver to 
enter information about the duty status when the vehicle is stopped or 
parked. The ELD captures the same duty status options that are 
available to drivers currently relying upon paper RODS. The technical 
specifications do not prevent supervisors from having administrative 
rights to add ODND time onto drivers' ELD records.
    With regard to time a driver may spend working for another 
employer, the time must be counted as on-duty time, either driving or 
not driving. This is required by the current HOS rules, and the ELD 
mandate does not change this fact. The ELD system mandated by this rule 
provides drivers with the ability to update their RODS to account for 
time the device is not capable of generating automatically.

Z. Data Transfer

1. Comments to the 2014 SNPRM
    The SNPRM used a menu-style approach, and several of the compliant 
options would have required wireless connectivity. The SNPRM proposed 
that all ELDs would need to use one of seven combinations of USB 2.0, 
printouts of QR codes, TransferJet, wireless Web services, Web email, 
and Bluetooth for the electronic transfer of data to authorized safety 
officials. One alternative included a printout. The SNPRM also required 
an ELD to be able to present a graph grid of the driver's daily duty 
status changes either on a display unit or printout.
    Omnitracs stated that the SNPRM's technical requirements for data 
transfer mechanisms, and the options provided, use technologies that 
are not easily adaptable or readily available for enforcement to 
deploy. The IME generally supported requirements to ensure that the ELD 
would be able to communicate with officials at roadside.
    IFDA stated that the requirement that systems use a ``standardized 
single-step driver interface for compilation of driver's ELD records 
and initiation of the data transfer to authorized safety officials . . 
.'' is unnecessary and overly prescriptive. Many devices currently in 
use require the driver to perform more than a single step to display 
the information. These systems do not pose a significant burden for 
drivers or authorized safety officials and do not appear to compromise 
safety in any way. IFDA opposed the requirement for a graphic display 
or printout, and they felt that these unnecessary requirements would 
add additional costs without any commensurate safety value.
    CVSA believed that the regulation should require a practical 
standard interface for manual roadside inspections: ``A requirement for 
a printout of the HOS graph grid showing the same information contained 
in the paper logs is a proven, reliable, and cost-effective technical 
solution that would significantly enhance the enforceability of the 
regulation.''
    PeopleNet stated that providers should have to support only one 
primary and one secondary method.
    Boyle Transportation recommended FMCSA require support systems for 
ELDs, use Web services exclusively, allow display mode for inspections, 
and limit electronic submissions.
    A rural transit provider stated that connectivity is not available 
in many areas, so Internet and cellphone reception is not possible. 
ELDs that rely on such connectivity are not viable.
2. FMCSA Response
    In consideration of the comments, FMCSA revised the data transfer 
options, by establishing two options for electronic data transfer 
(option one is a telematics-type ELD with a minimum capability of 
electronically transferring data via wireless Web service, and email; 
option two is a ``local connectivity'' type ELD with a minimum 
capability of electronically transferring data via USB 2.0 and 
Bluetooth). Additionally, both types of ELDs must be capable of 
displaying a

[[Page 78339]]

standardized ELD data set in the format specified in this rule via 
printout or display to an authorized safety official on demand. FMCSA's 
changes address comments and concerns about the types of data transfer, 
as well as provide flexibility for providers and motor carriers looking 
for ELDs to suit different business needs and costs. These changes are 
discussed in more detail in the next few sections.
    Although areas within the United States where data connectivity is 
not available are shrinking, FMCSA understands that some areas of the 
country do not have such access. Today's rule allows for alternative 
methods of data transfer including Bluetooth and USB 2.0. Where data 
transfer is not practical, the driver can still show enforcement 
compliance via a printout or the ELD display. Due to potentially 
hazardous conditions (i.e., weather, traffic, etc.) during roadside 
inspections, authorized safety officials may ask drivers to hand them 
their ELD outside of the CMV so that they may examine the ELD display 
of data at a safe distance outside of the CMV. Absent a printout, an 
ELD must be designed so that its display may be reasonably viewed by an 
authorized safety officer without entering the CMV.

AA. USB 2.0

1. Comments to the 2014 SNPRM
    J.B. Hunt, Continental, and PeopleNet supported USB 2.0 as a method 
to electronically transfer data due to its low cost, and ease of 
deployment without complex IT infrastructure nor any monthly 
communication and service fees. With appropriate security software on 
the USB 2.0 device, J.B. Hunt wrote there could be safeguards to avoid 
transmission of malware. Eclipse Software Systems recommended requiring 
``at least one'' USB 2.0 port on ELDs.
    In contrast, the National School Transportation Association (NSTA), 
BigRoad, Omnitracs, inthinc, and Drivewyze Inc. (Drivewyze) did not 
fully support USB 2.0 as a required backup method for the electronic 
transfer of data due to future hardware design constraints, security/
encryption concerns, lack of availability of connections on computers, 
and probable obsolescence. J.J. Keller and Associates, Inc. (J.J. 
Keller) noted that requiring a specific technology, such as USB 2.0, 
constrains the hardware design to meet the specifications. This will 
likely cause more frequent upgrades in hardware to adapt to more modern 
USB 2.0 flash devices, increasing cost to industry. Inthinc recommended 
that the rule state that USB transfer is specifically for a drive--not 
for just a cable--and that the USB 2.0 port on the ELD can be an 
accessory to the ELD.
2. FMCSA Response
    FMCSA believes that USB 2.0 is a cost-effective, technically viable 
option for many authorized safety officials to obtain an electronic 
data file from an ELD. The Agency acknowledges that some States have IT 
security--related restrictions that would preclude their officers from 
relying on USB 2.0 drivers or USB 2.0 connections to the ELD as a means 
of retrieving the RODS information. This information was presented 
during the MCSAC's session concerning ELD technical specifications. The 
Agency continues to believe it should be included in the list of 
options for making data files available to roadside inspectors. It is 
not expected that this option would be used by every State, but 
retaining a range of capabilities required on the driver side, 
including USB 2.0 capability, will help to ensure flexibility for the 
enforcement community. In the SNPRM, the USB 2.0 as a part of almost 
every option for an ELD. In today's rule, the USB 2.0 is a requirement, 
along with Bluetooth under only the ``local data transfer '' option, 
meaning that it would be possible to have a compliant ELD that did not 
have USB 2.0 if the telematics-type ELD is selected for use.
    In regard to USB standards becoming obsolete, that is the case with 
any technical standards irrespective of whether the standards are 
referenced in a rulemaking. The criticism of the USB 2.0 standard not 
being widely used by authorized safety officials is no longer relevant, 
given that authorized safety officials will have the option, under 
today's rule, to utilize Bluetooth instead of USB 2.0 for electronic 
data transfer.

BB. Wireless Data Transfer Through Web Services

1. Comments to the 2014 SNPRM
    PeopleNet recommended using a Web Service as a primary electronic 
data transfer method, while Continental supported it as an option, but 
not a mandate.
    BigRoad recommended eliminating wireless data transfer through Web 
Services to simplify inspection requirements. Omnitracs stated there is 
a need for clarification around the use of the public/private keys in 
this section, including security provisions and the process for 
refreshing the public/private keys as a part of security best 
practices.
    Inthinc recommended Representational State Transfer (REST), noting 
that Simple Object Access Protocol (SOAP) is much more difficult and 
expensive to implement, and it is becoming archaic.
2. FMCSA Response
    FMCSA believes that Web Services will be a viable data transfer 
option for telematic ELD providers. SOAP is a standards-based Web 
services access protocol utilized for telematics data transfers. 
Therefore, today's rule retains Web Services as a valid method of data 
transfer, one of the two methods described in section 4.9.1(b) to 
transfer data as part of the telematics option, along with wireless 
email.
    FMCSA has clarified the public/private key in section 4.10.1.1. of 
the technical specifications of this rule.

CC. Wireless Services via E-Mail

1. Comments to the 2014 SNPRM
    J.B. Hunt and inthinc supported email as a viable, low cost option 
for electronically transferring ELD data. Inthinc believes that ELDs 
could have all inspection station email addresses pre-programmed or 
ELDs could automatically send emails to these addresses upon entry to 
inspection stations. Continental supported it as an option, but not a 
mandate.
    Drivewyze said that this option is redundant with Web services and 
could be cut. BigRoad recommended eliminating this option to simplify 
inspection requirements.
    Omnitracs stated there is a need for clarification around the use 
of the public/private keys, including security provisions and the 
process for refreshing the public/private keys as a part of security 
best practices.
2. FMCSA Response
    Today's rule allows the use of email as a part of the telematics 
ELD specifications in section 4.9.1(b) of the appendix to part 395, 
along with Web services. FMCSA does not believe it is redundant because 
it provides a way for enforcement to access the data without using 
FMCSA or other government systems. Authorized safety officials could 
use either Web services or wireless email to verify ELD data from an 
ELD with this telematics option.
    FMCSA agrees that inspection stations and other enforcement 
Agencies could post or share a standardized email address but does not 
require this. FMCSA believes a benefit of transferring ELD data to 
authorized safety officials by email is a viable method to submit data 
to the officer if necessary.

[[Page 78340]]

    FMCSA clarifies the public/private key requirements in 
4.10.1.1(4)(b)(2) of the technical specifications.

DD. Bluetooth

1. Comments to the 2014 SNPRM
    Drivewyze recommended Bluetooth as a viable data transfer option. 
Continental supported it as an option, but not a mandate.
    J.B. Hunt noted that Bluetooth transmissions are short-range, which 
would limit the effectiveness of this technology. Eclipse was concerned 
about Bluetooth personal area network in the roadside environment, 
commenting that Bluetooth has a typical operating range of 30 feet. 
Many officers use laptops mounted in their patrol vehicles, which sit 
behind the truck and a 52-foot trailer, making reception from the 
patrol car cab unlikely.
    Verigo and inthinc disagreed with including Bluetooth as a means of 
electronic data transfer. Garmin Ltd. (Garmin) believed the description 
of transferring ELD records using the Bluetooth transfer method in 
section 4.10.1.2 should be further clarified.
    Once the connection is successfully established, this section 
indicates that the ELD must connect to the official's technology via 
wireless PAN and transmit the required data via Web Services as 
described in section 4.10.1.1. Garmin wanted FMCSA to consider the case 
where the official's device cannot connect to the internet. In this 
scenario, it will also be possible to transfer the ELD records directly 
to the official's device over Bluetooth.
2. FMCSA Response
    FMCSA included Bluetooth as part of the local data transfer ELD 
option specifications in section 4.9.1(b), along with USB 2.0 
connectivity. FMCSA acknowledges that Bluetooth has its limitations as 
all technologies do, but, it is a widely used, reliable, short range 
non-telematic data transfer method.
    In today's rule, FMCSA changed the language in 4.10 to clarify the 
fact that the Bluetooth transfer does not occur via telematics, as was 
written in the SNPRM. If a driver is using a local data transfer method 
and the officer cannot accept the data for some reason, the officer has 
the ability to request the data in the form of a display on the ELD or 
a printout, depending on the type of ELD.
    FMCSA does not agree with the commenter who stated that Bluetooth 
is not designed for this type of transfer; the mechanism for data 
transfer does not distinguish between the types of data being 
transferred.

EE. QR Codes and Transfer Jet

1. Comments to the 2014 SNPRM
    Overall, none of the commenters supported QR codes or TransferJet 
as feasible solutions for electronically transferring ELD data for the 
purposes of roadside enforcement.
    Omnitracs, PeopleNet, XRS, inthinc, and Drivewyze did not believe 
that QR Codes are a viable ELD data transfer option at roadside. 
Omnitracs wrote that typical drivers would need to present between 6 
and well over 30 QR codes that must be scanned by an authorized safety 
official in the proper order, which does not seem to be realistic in 
the field. Issues with screen size, screen resolution, the type of 
scanner (camera versus laser), and the amount of data that needs to be 
transferred adversely impact the ability of an authorized safety 
official to successfully scan the QR codes. Drivewyze stated that on-
screen QR codes cannot be scanned, and printed QR codes are redundant 
with printing grid graphs. As a result, QR codes were recommended to be 
removed as an option.
    Drivewyz, BigRoad, PeopleNet, Continental, and J.B. Hunt questioned 
the feasibility of TransferJet as a viable method of electronically 
transferring ELD data to roadside officials. J.B. Hunt, XRS, and 
Drivewyze noted that TransferJet is not a mainstream technology. 
PeopleNet and XRS also stated that TransferJet is not widely used 
except in smartphones; and that there are limited suppliers of products 
to support current architectures. BigRoad noted TransferJet has no 
encryption mechanism built into the link layer; for security, the 
transmission should be encrypted. Continental pointed out that the 
TransferJet technology is not used today in either automotive or 
commercial vehicle applications and should be removed from the list of 
options.
    PeopleNet stated that TransferJet requires the purchase of 
additional hardware, which FMCSA did not take into consideration in the 
cost analysis. In addition, commenters were concerned that many 
suppliers would need to make modifications at the operating system 
level to take advantage of the new hardware. Commenters contended this 
solution would be prone to failure due to discrete hardware components, 
and increase both carrier and supplier support costs due to this sole 
source solution.
2. FMCSA Response
    FMCSA agrees with the commenters' technical and practical concerns 
about both QR codes and TransferJet technology as not being viable 
means of transferring electronic ELD data. Therefore, today's rule does 
not include QR codes nor TransferJet technology as options for 
electronically transferring ELD data to authorized safety officials.

FF. Other Communications and Technology Options

1. Comments to the 2014 SNPRM
    Garmin, J.B. Hunt, and Eclipse recommended use of Wi-Fi as an 
additional primary transfer option. Similar to using Bluetooth, Garmin 
wrote that Wi-Fi would enable the ELD to connect to the authorized 
safety official's device via the local area network at the inspection 
site. Alternatively, the Wi-Fi connection at the inspection site could 
be used to transfer the ELD records via Web Services. Commenters 
pointed out that Wi-Fi range is larger than the very short range within 
which Bluetooth devices communicate, and it supports higher data 
transfer speeds. Wi-Fi technology has the means to support the setup of 
security-enabled networks where users can view available devices and 
request a connection, or may receive an invitation to connect to 
another device.
    Garmin recommended that an additional alternative method to 
consider is the transfer of ELD records using a secure digital (SD) 
card, that is via a microSD card and optional microSD to SD memory card 
adaptor. The requirements for authenticating the driver, the ELD 
system, and the official's hardware when using the USB 2.0 method can 
continue to be realized and supported.
2. FMCSA Response
    FMCSA does not prohibit the use of a Wi-Fi device for intermediary 
transfer, but the data transfer to an authorized safety official must 
occur in accordance with the technical specifications. Data transfer to 
an authorized safety official must occur through wireless email, 
wireless Web services, USB 2.0, or Bluetooth. This is because 
implementation of another option would necessitate hardware changes for 
ELDs and would also increase the risks of conflicts between the 
regulatory options and the IT security regulations policies that FMCSA 
and its State partners must follow.

GG. Data Reporting During Roadside Inspections

1. Comments to the 2014 SNPRM
    CHP stated that a data exchange may present cross connectivity 
issues when using a portable computer for ELD dataset exchange because 
of the threat of

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computer viruses and malware, issues associated with encryption 
software, regional connectivity issues, operating systems 
compatibility, and data transfer best practices. Therefore, enforcement 
will continue to consist of an official physically observing the data 
on a device's electronic display.
    Omnitracs stated that Option 1 presented in Table 5 has no backup 
mechanism should the printer become disabled, and all other options 
require two separate backup mechanisms. Inthinc recommended that the 
regulation state that authorized safety officials are mandated to 
accept whichever of the seven methods of data transfer that the ELD 
provider has opted to support.
    EROAD recommended that FMCSA consider implementing a simple generic 
report format as a transition to using eRODS software. FMCSA could 
require the ELD solutions to generate and send enforcement data not 
only in a raw data format, but also in a simple generic report format--
an enforcement view of the ELD data/records. This could be a secure PDF 
file with a small number of relevant statistics. This option will be 
easily implemented in the interim while States adopt eRODS software, 
and such a report could be viewed on any device with ability to read 
PDFs. Because ELDs will have the capability to send raw data, the 
States will always be free to adopt eRODS software and develop or 
procure additional software to display the information in their own 
way.
    BigRoad stated that the only requirement is that ``an authorized 
safety official will specify which transfer mechanism the official will 
use,'' meaning that they can select any of the backup methods without 
supporting the primary method themselves. In particular, this could 
mean that although a device supports a primary mechanism such as 
Bluetooth, the safety official might only ever choose the backup USB 
2.0 mechanism. The SNPRM provides no guidance or requirements for data 
transfer support on the devices used by authorized safety officials. 
BigRoad also stated that inspections should require that the ELD 
information be shown on the display of the ELD. Verigo stated that the 
SNPRM provided too many options. The backup method of file transfer 
from the ELD in CSV format should be limited to USB 2.0, QRC, or NFC. 
Advocates cautioned against allowing the introduction of any 
unnecessary intermediaries in the process of maintaining and 
transferring HOS data. To prevent data corruption, the Agency must 
require that the most recent 24 hours as well as the previous 7 days of 
operation be stored in the ELD for immediate transfer to officers at 
the roadside. Advocates acknowledged the check value calculations, but 
did not believe that this limited security feature will thwart 
determined efforts to evade compliance. Advocates recommended that the 
Agency establish security features, which would be shared with 
certified manufacturers and shielded from those subject to the HOS 
requirements, namely drivers, carriers, and third parties servicing 
those groups.
2. FMCSA Response
    FMCSA believes the SNPRM presented an appropriate number of options 
for making the HOS data available to authorized safety officials. While 
various commenters had substantive technical concerns about the 
options, the Agency continues to believe that--with the exception of 
TransferJet technology and QR codes--the proposed options remain viable 
and cost-effective. However, FMCSA does believe that limiting the 
combinations of data transfer types to two types, local and telematics, 
and combined with a backup option, will make the data transfer to 
authorized safety officials clearer. FMCSA believes that today's rule's 
data transfer mechanism options suit the needs of many business 
operations of motor carriers, the daily needs of drivers, and the needs 
of authorized safety officials as well. Additionally, all ELDs are 
required to have a backup method for the authorized safety official to 
verify HOS compliance. FMCSA also believes that by not prescribing one 
specific standard, cost is kept lower and providers can provide ELDs 
that are able to meet the requirements of this rulemaking, including 
the security standards.
    The Agency considered IT security concerns and the potential need 
for additional hardware to implement the options. FMCSA does not 
believe that there are concerns about cross-connectivity and security 
concerns about portable devices. All ELDs will meet the same minimum 
standards; there is no reduction in security for portable devices.

HH. Data Transfer Compliance Monitoring

1. Comments to the 2014 SNPRM
    Drivewyze requested clarification on the scope of a data transfer 
test given that this test may occur without the presence of a receiving 
roadside inspection system or that the receiving system may only 
support a limited number of transfer mechanisms. Without a full suite 
of connectivity tests that cover all transfer mechanisms, there can be 
no confirmation of compliance beyond a test that only monitors the 
ability to send data, not its successful receipt by third party 
systems.
    BigRoad stated that data transfer mechanisms are only truly 
verifiable when there are two endpoints to transfer between. It is 
unclear how either the ELD or the driver could verify transfer 
mechanisms without extra hardware components to act as one of the 
endpoints in the pair. BigRoad commented that some clarification of the 
extent and character of verification is needed.
    Omnitracs recommended removing the self-monitoring requirement on 
the primary data transfer mechanism. To fully verify primary data 
transfer mechanisms, the ELD would require (1) two Bluetooth radios to 
test, transmit, and receive (in the case of Bluetooth); and (2) two USB 
2.0 connections and an interconnect cable to test, transmit, and 
receive over the USB 2.0 connections (in the case of USB 2.0). Since 
there are both primary and backup transfer mechanisms, this added 
hardware expense and complexity is not feasible.
2. FMCSA Response
    FMCSA believes the data transfer options provide a practical way to 
provide RODS information to authorized safety officials. It is expected 
that the ELD providers will be testing data transfer options before 
certifying their devices with FMCSA. If the authorized safety official 
is unable to receive or open the electronic file, this would not, in 
and of itself suggest that the ELD system that transmitted the file was 
non-compliant. The driver would then need to present the RODS 
information to the authorized safety official at roadside, either on a 
display screen or a printout. FMCSA does not remove the requirement to 
self-monitor.
    FMCSA will use its Web site to accommodate ELD testing in support 
of today's rule. This site will accommodate provider registration, 
allow approved ELD providers to register their device with the Agency 
and act as single source site for: ELD registration keys, 
authentication keys, authentication files, data formatting and 
configuration details and data testing (end to end) with approved third 
parties. This site will also include an ELD Interface Control Document, 
specifically written for ELD providers and service providers.
    FMCSA is currently in the development stage of modifying this site 
in preparation for today's rule and plans to have a registration site 
available and operational for ELD providers by rule's effective date.

[[Page 78342]]

II. Printing

1. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA explored options that would require a printer 
during roadside inspections. FMCSA also proposed to require an ELD to 
be able to present a graph grid of a driver's daily duty status 
changes--either on a display unit or on a printout--for the current 24-
hour period and the previous 7 days.
    Proposed section 4.10.2.4, Printout, (section 4.8.13 in the today's 
rule) laid out the data elements that had to be included in the printed 
reports for the authorized safety official at roadside. It also 
specified that print paper must be at least 2 inches wide and 11 inches 
in height, or on a roll of paper that could be torn when each 
individual printout was complete.
    CHP recommended that ELDs possess printer capabilities. Because of 
agencies' encryption software, signal transmission, signal coverage, 
and different operating systems, CHP stated that it may be problematic 
to use software for ELD dataset exchange. CHP anticipated that 
enforcement would continue as usual, i.e., an official physically 
observing the data on a device's electronic display or the data being 
faxed to an inspection facility. This limitation creates an enforcement 
situation that requires the official to conduct an enforcement action 
at a later time, once the faxes are received, or execute an enforcement 
action without a printout.
    BigRoad stated that portable printing devices such as photo 
printers might use non-standard paper sizes such 4'' x 6'' or 5'' x 
7''. Such printed documents would easily be as legible as the allowed 
2-inch roll, but would not be at least 11 inches in height or on a 
roll. BigRoad believed that FMCSA should modify this requirement so 
that drivers are able to choose the smallest printer that is suitable 
for printing legible ELD records with a minimum paper width of 2 
inches.
    Continental stated that a 2010 survey indicated that over 50 
percent of CVSA-certified inspectors did not have the equipment to 
receive and manage electronic files at roadside. A requirement for a 
printout of the HOS graph grid showing the same information contained 
in the paper logs is a proven, reliable, and cost-effective technical 
solution. Inthinc, OTA, and PeopleNet recommended that printing not be 
an option. PeopleNet stated that the majority of current AOBRD 
suppliers agree that the print option would be a significant cost to 
the industry and difficult to implement in a successful way, due to the 
environment of the vehicle.
2. FMCSA Response
    Today's rule requires the ELD to be able to provide certain data 
elements to an authorized safety official at roadside using either a 
display or a printout as backup methods to the electronic transfer of 
data. If drivers or motor carriers want to avoid printers, they have 
the option to present a display that includes the data elements 
required by the regulation.
    The specifications of paper size in the SNPRM were based upon the 
presence of a QR Code on the printout. Because QR codes are not an 
acceptable form of data transfer, FMCSA has removed the specification 
for minimum paper size and specified a minimum size of 6 inches by 1.5 
inches for the size of the graph grid on the printout, in today's rule. 
For the display, FMCSA has not made specifications on font or size 
requirements. Today's rule requires a performance standard specifying 
that the display must be reasonably viewed by an authorized safety 
official without entering the commercial motor vehicle.

JJ. Portable ELDs

1. Comments to the 2014 SNPRM
    The SNPRM did not address portability of ELDs. Many commenters 
addressed the possibility of allowing portable devices to serve as 
ELDs. Except for the safety advocacy groups, the commenters generally 
supported allowing the use of smartphones, tablets, or computers as 
ELDs.
    The Limousine Association and J.J. Keller noted the prevalence of 
smart devices and the cost-savings involved in using them as ELDs. J.J. 
Keller supported the rule language as currently proposed, which allows 
multi-purpose devices to be mounted, with a secure e-logging 
application that cannot be used while the vehicle is in motion. J.J. 
Keller wrote that a requirement to lock the device in its entirety, 
however, would discourage the use of multi-purpose device technology 
for e-logging.
    YRC stated that FMCSA should allow flexibility in the type of 
device used for compliance--including allowing the use of a Bluetooth 
device that would avoid monthly cellular charges and would use Wi-Fi 
networks. YRC wrote that some companies have invested heavily in a 
handheld device that, while not tethered to the engine, could be used 
to track city pickup and delivery drivers' duty status and location. 
Commenter stated that leveraging an existing device offers companies 
the opportunity to build on that investment and would limit developing 
entirely new back office technology, significantly drop training times, 
and not take trucks out of service.
    The MPAA stated that the most effective solutions to enable 
meaningful, all-electronic RODS for production drivers, and others 
similarly situated, may be either: (a) A greater emphasis on truly 
portable ELDs that accompany drivers between vehicles and motor 
carriers; or (b) a more prescriptive rule that standardizes ELD inputs 
and outputs and methods of data transfer.
    The American Pyrotechnics Association stated that, absent readily 
available ``plug and play'' devices that can be rented on a short-term 
basis, it would be extremely difficult for its members who use rentals 
for a very limited time each year for commercial purposes, to comply 
with the mandatory ELD requirements. BigRoad generally supported 
allowing portable devices. Verigo asked if the rule language covered 
netbooks and laptops. Omnitracs noted that the rule would require data 
that are not available unless the driver is logged onto a specific CMV. 
Inthinc recommended that an ELD used for oilfield equipment be 
ruggedized, and not just an ordinary tablet. Zonar asked how a portable 
device could work if it was removed from the vehicle before it was 
started. The Truck Renting and Leasing Association (TRALA) similarly 
stated that there are provisions in the rule that contradict the 
assertion that the devices will be truly portable. For example, 
proposed 49 CFR 395.26(h) would require that, when the vehicle's engine 
is powered up or powered down, the ELD would automatically record the 
data elements set out in Sec.  395.26(b)(1) through (8). But if a 
device is actually portable, there is a possibility that it would not 
be in the vehicle, or not attached to the vehicle engine, when the 
vehicle was powered up. TRALA stated that the Agency should ensure that 
the requirement that the ELD be ``integrally connected'' to the CMV's 
engine does not jeopardize the portability or transferability of ELDs 
among vehicles and/or customers.
    Generally, safety advocacy groups opposed allowing ELDs that are 
not wired to the engine. Commenters believed the use of portable ELDs 
that are not directly synchronized or connected to the vehicle engine 
reduces the effectiveness of the rule and the security of the system.
2. FMCSA Response
    FMCSA acknowledges the safety advocates' concerns about the use of 
portable devices. However, the Agency has concluded that it would be

[[Page 78343]]

inappropriate to prohibit the use of such technology in today's rule 
because all ELDs will be subject to the same technical specifications 
in the appendix of this rule.
    FMCSA relies upon a performance-based standard that allows 
flexibility in the market place, including the use of certain smart 
phones and tablets, provided they have a means of achieving integral 
synchronization.
    In its effort to create a minimum standard that is not too 
expensive or complex, FMCSA has not required ELDs to be ruggedized. 
However, the Agency does not prohibit more durable devices for 
industries that may require them.

XI. Discussion Of Comments Related to Costs and Benefits

A. Cost and Analysis--General

1. Comments to the 2011 NPRM
    The 2011 NPRM proposed a mandate for the use of an ``EOBR'' that 
met the technical specification in the 2010 EOBR rule. Under this 
proposal, FMCSA's recommended option would have required all motor 
carriers whose drivers were required to keep RODS to use EOBRs, subject 
to a limited exception for drivers requiring RODS no more than 2 days 
in any 7-day period. The NPRM, however, analyzed several options 
comparing them to the current HOS regulations as well as the then 
proposed HOS rule. The net benefits ranged from $418 million to $891 
million.
    Many commenters stated that the industry has had many financial 
challenges recently, and could not handle an added expense. Commenters 
also stated that the CMV industry has seen dramatic increases in safety 
and therefore did not need the stress of what they perceived as a 
costly rule. Referring to the new costs on the industry, OOIDA called 
the proposal the ``proverbial straw that breaks the camel's back.''
    Several commenters to Regulation Room had concerns about the cost 
to upgrade their equipment. Commenters predicted costs being passed on 
to consumers, drivers losing income and work, and the costs for goods 
being driven up, ultimately hurting the economy. Other commenters 
raised concerns about financial inequality and said that the proposal 
was lacking because it relied on a ``one-size fits all'' model. An 
OOIDA member said that there would be a decrease in service quality. A 
commenter stated that the Cost Benefit Analysis should be re-calculated 
on a true EOBR, not a technology that incorporates functions of an FMS.
    Some commenters had questions about who would pay for the EOBR if 
the driver were an owner-operator, or owned the CMV and worked for a 
motor carrier. OOIDA stated that some motor carriers require the use of 
their systems and take payment for this use from the owner-operators' 
paychecks; OOIDA believed the drivers are being over-charged for the 
use. OOIDA believed this made owner-operators function more like 
employees of a motor carrier as they would be connected to a specific 
system.
2. Comments to the SNPRM
    The 2014 SNPRM proposed a new technical standard for ELDs. It 
addressed concerns of harassment through both technical specifications 
and procedural requirements and prohibited a motor carrier from 
engaging in harassment as defined in the proposed rule. It kept the 
same population of RODS users that would need to transition to ELD use 
as was included in the NPRM, subject to a limited exception for drivers 
requiring RODS no more than 8 days in any 30-day period. This SNPRM 
analyzed several options within the proposal, resulting in annualized 
net benefits from negative $355.5 million to positive $493.9 million.
    Most of the commenters on this issue disputed some aspect of the 
analysis and its assumptions. OOIDA noted that the statute is silent 
regarding who will bear the burden of paying for mandatory ELD use--the 
driver or the motor carrier. If the burden is placed on owner-operator 
drivers or small fleet owners, OOIDA believed that the cost poses a 
very heavy burden. For owner-operators, any additional financial burden 
may make their continuation in the trucking business impossible. OOIDA 
stated that a cost-benefit analysis that does not address the crucial 
question of what type of organization will shoulder the burden of these 
costs cannot support a reasoned regulatory judgment. OOIDA also 
commented that FMCSA states, without support and unrealistically, that 
financing for the equipment costs will be available in the market. 
However, this is conditioned on ``if the carrier has good credit.''
    The AGC stated that, while FMCSA regulations apply only to 
interstate operations, most States will follow suit and adopt the rules 
for intrastate operations. If States adopt this rule, ELDs will be 
required in almost all vehicles with a rating of 10,001 pounds or more, 
which includes 1-ton pickups and 1-ton and up work trucks. Requiring 
the drivers of these vehicles to use an ELD creates an undue financial 
burden on the motor carrier. Commenter believed the cost of purchasing 
the devices, installation, monthly service fees, and driver training 
would be excessive. These costs would be incurred for all vehicles even 
though logging would only be required in limited circumstances.
    The California Construction Trucking Association questioned FMCSA's 
cost-benefit analysis as well as the estimates of CMVs and drivers that 
will ultimately be covered by this rule. Commenter wrote that FMCSA has 
calculated tens of millions of hours in savings attributable to drivers 
no longer needing to complete paper RODS, despite FMCSA being aware 
that the majority of drivers are not compensated for ODND time. The 
commenter believed that while some calculated time savings may be 
present--especially on the fleet management side of the equation--
assigning a dollar value to the time drivers spend completing paperwork 
is an example of government manipulating data to justify a regulation.
    NPGA stated that the cost impact from an ELD mandate, particularly 
for those who have demonstrated an excellent safety record, does not 
justify the benefits. Moreover, the commenter stated that it is not 
clear there is any correlation between the use of ELDs and a decrease 
in CMV crashes. It cited the decline in crashes between 2004 and 2008 
as an indication that trucking was becoming safer absent ELDs, as well 
as the safety record under waivers during the winter of 2013-14.
    For small business less-than-truckload (LTL) carriers, the NMFTA 
stated that the proposed ELD rule will require the additional cost of 
hiring more personnel to manage and maintain new information systems 
equipment and software. LTL small businesses are concerned that they do 
not have the financial wherewithal to comply with such obligations. The 
association stated that the cost/benefit assessment weighs against the 
application of the rule over a much broader segment of short-haul 
operations than acknowledged by FMCSA in the proposed rule.
3. FMCSA Response
    FMCSA emphasizes that this rulemaking does not differ from other 
rulemakings the Agency has undertaken with regard to industry 
compliance costs and how costs are accounted for in business 
relationships between motor carriers and any independent drivers 
working for them under a contract. The task before the Agency is to 
move forward with a safety regulation requiring the use of ELDs while 
leaving

[[Page 78344]]

to the private sector the contractual arrangements necessary to address 
the costs for purchasing, installing and maintaining the ELDs. The 
calculation of the cost benefit analysis does not take into account who 
bears the cost of ELD purchase and installation. In the case of 
carriers that require that their subcontractors use a particular ELD 
system, FMCSA also leaves it to the market to determine how these costs 
are shared between companies and drivers through their contractual 
agreements.
    We note, however, that to the extent carriers that purchase ELDs in 
large numbers receive volume-related discounts from the provider, those 
savings might be passed along to independent drivers who may assume 
some or all of the purchase cost.
    In today's rule, FMCSA requires a device that needs to perform only 
minimal HOS recording functions. There are several technical 
requirements focusing on the concern of driver harassment by motor 
carriers. While the standards allow manufacturers to develop and motor 
carriers to use an FMS with additional features and functions, the 
technical specifications included in today's rule allow the market to 
develop a compliant device at a low cost. FMCSA used currently 
available devices, whose functions are similar to the minimal 
requirements in the rule, to determine costs and benefits. There is no 
support for the rulemaking's more expansive impact on the industry, on 
the economy, or on service that some commenters suggested.
    Interstate CMV drivers and a subset of intrastate CMV drivers are 
subject to FMCSA HOS regulations in 49 CFR part 395. Although FMCSA 
only has the statutory authority to directly regulate interstate CMVs, 
States must adopt compatible regulations as a condition of Federal 
MCSAP funding. This rule will only impose the ELD requirement on 
interstate CMV drivers currently required to keep RODS; however, 
intrastate drivers indirectly affected were included in the final rule 
analysis of cost and benefits because they will be required to comply 
with compatible State rules. There is nothing in this ELD rule that 
requires States to extend the ELD requirement beyond motor carriers 
already required to retain RODS.
    For purposes of assessing the value of the driver's time savings as 
a result of this rule, FMCSA assumes that a driver's time is valuable 
whether or not that driver receives an hourly wage for their time. In 
the rule, we value the time when the driver should be on duty at an 
hourly wage rate for his or her time, excluding benefits. This is 
common practice in Federal cost benefit analyses.
    FMCSA does not believe that small businesses will have to add 
personnel to manage their ELDs, and the requirements for motor carriers 
to manage their drivers' time have not changed with this rulemaking. 
The basic ELD performs minimal HOS recording functions. Adoption of 
this automated process will result in simplified HOS compliance 
management.

B. Costs Associated With ELDs

1. Comments to the 2011 NPRM
    Based on extensive research and modeling, the NPRM assumed that 
``[t]he annualized cost for a motor carrier that does not currently use 
an FMS or other `EOBR-read' system ranges from $525 to $785 per power 
unit (PU).''
    A number of commenters, including OOIDA, maintained that EOBRs are 
costly, do not benefit the trucking community, and have no practical or 
safety application. Other commenters questioned if the cost is 
commensurate with the benefits from the use of the EOBR by carriers 
with a strong safety record. One commenter said that the use of the 
EOBR provides FMCSA with data, but provides minimal benefit to the 
carrier. Another commenter said that any data collection by EOBRs, 
other than what is strictly required by HOS compliance, is an 
unnecessary expense and a burden on small business owners. This 
commenter also said that any savings to truckers from collecting other 
information should not be included in DOT's cost-benefit estimates. 
Commenters believed that EOBRs might provide large motor carriers a 
financial advantage over small carriers and owner-operators.
    A number of commenters, including trade associations and carriers, 
provided specific information on the costs of an EOBR or implementing 
an EOBR mandate for their company or industry. J.B. Hunt stated that it 
thought there was opportunity for the devices to become increasingly 
affordable, while staying in compliance with the requirements of the 
2011 NPRM. Another commenter stated that EOBRs are not financially 
burdensome, and models exist that do not have real-time components. The 
National Association of Chemical Distributors, however, was concerned 
that there would not be sufficient EOBRs available, which would drive 
the cost up. Some commenters provided reasons for using an EOBR, 
including improvements in HOS compliance. Knight said, ``if you are a 
fleet or an operator who does not comply with the HOS rules, it is true 
that investing in a system to electronically monitor logs will cost you 
greater than to not comply using paper RODS.''
    Multiple commenters stated that the cost of the EOBR used in the 
cost benefit analysis was overestimated, as the market for EOBRs is 
broader than FMCSA considered in the NPRM. They maintained that the 
market will expand once there is a mandate, further driving down costs. 
One said that ``it is probable that FMS vendors will offer a logs-only 
solution,'' thus reducing the cost dramatically. ATA believed that the 
proposed rule did not require an investment beyond a basic system.
    A commenter criticized the cost estimates used, saying that they 
were too generalized, and did not account for the budget or size of the 
motor carrier. A number of commenters stated that the hourly rates used 
were too high. Another commenter stated that the useful life of an EOBR 
should be about 3 years. Many commenters compared the cost of 
purchasing an EOBR to the cost of a paper log book, which they 
estimated to be less than $10 per month. Other commenters stated that 
the cost of an EOBR would be less than the cost of other common 
equipment on CMVs, like stereos or citizen's band radios.
    OOIDA thought that including fleet management systems with EOBR 
functions in the analysis was ``simply incorrect'' as the fleet 
management systems do not necessarily incorporate the EOBR function. 
OOIDA also thought FMCSA's estimates of repair costs were too low.
2. Comments to the SNPRM
    In the SNPRM, FMCSA took a very conservative approach to the cost 
of an ELD. It analyzed the Mobile Computing Platform 50, a higher-end 
FMS, and included installation, hardware costs, and monthly fees. 
However, by relying on performance standards and prescribing minimal 
requirements, FMCSA allowed for use of a basic ELD that would satisfy 
the rule. The SNPRM estimated an average cost of $495 per CMV on an 
annualized basis where the range is from $165 to $832 per CMV on an 
annualized basis. In the SNPRM, FMCSA analyzed a range of devices, the 
most expensive one being $1,675 and the least expensive provided for 
free as part of a monthly service agreement.
    FMCSA found that time savings to drivers and carriers from filling 
out, submitting, and handling paper can exceed these annualized costs. 
FMCSA estimated that 4.6 million inter- and intra-state drivers were 
subject to HOS and 3.1 million were required to keep RODs.
    A carrier estimated the cost to install, maintain, monitor, and 
replace ELDs at

[[Page 78345]]

over $100,000 per year for its 200 trucks. This did not include the 
cost of employee's downtime when the ELD is not working, the penalties, 
and inactivity at the job site because the load does not make it. The 
Association of Independent Property Brokers and Agents stated that its 
research indicates that there are options available that range from a 
reasonable, one-time fee of a few hundred dollars to an even smaller 
set up fee with a reasonable monthly fee equal to a basic cellular 
phone service bill. It doubted that a few hundred dollars increase in 
truckers' costs would have a significant impact.
    The ABA stated that the SNPRM does not account for all of the costs 
that bus operators will bear with the implementation of the ELD rule. 
The commenter wrote that bus operators are required to pay separate 
charges for monitoring the ELD system and a per-driver fee for the 
system. Even small operators are obligated to pay a $25 monthly service 
charge and a $25 per-driver fee. The ABA commented that all bus 
operators will have to add staff to ensure that the operator is in 
compliance with the rule. The ABA predicted that costs will mount each 
year.
    AGC stated that purchase and installation of ELDs will be far more 
expensive than retaining paper RODs; anecdotal accounts from a sampling 
of members who have researched the costs suggested that FMCSA estimates 
fall short of the actual costs. While the costs of the devices 
themselves would be significant, the commenter believed that additional 
overhead would increase costs significantly. AGC wrote that FMCSA's 
estimates do not appear to include the additional costs for data plans, 
training, programming, and support. Because there tends to be 
substantial turnover of drivers in the construction industry, AGC held 
that the training costs alone will be significant.
    The NPGA estimated, based on FMCSA's figures, that the startup 
costs of purchase and installation alone would approach $8 million for 
the 9,000 trucks in their industry. For the propane industry, regular 
monitoring would add another $180,000 annually; even if three-fourths 
of the drivers of the 9,000 transport trucks needed training, it would 
cost the industry nearly $122,000. The commenter wrote that not all 
motor carriers, particularly those considered small businesses, possess 
the type of technology needed to comply with the ELD mandate. Those who 
do not would also incur significant startup costs for purchasing new 
computers, file servers, etc. Continental believed that the ELD mandate 
will increase the market from 50,000 units per year to around 3 million 
units in the mandate year and will attract additional suppliers and 
competition. This will bring costs down. In addition, Continental 
commented that the truck and bus manufacturers will offer ELDs as a 
standard product, further lowering the costs of acquisition and 
installation of the systems. Based on its experience in other 
countries, Continental wrote that highly tamper resistant ELDs can be 
made available to motor carriers for less than $500 per unit, while 
ELDs with an integrated thermal printer are already available for 
purchase in the United States for $500. It criticized FMCSA for 
including in its estimated operating costs of $25 in monthly fees per 
ELD (for wireless data extraction) since FMCSA does not require that 
ELDs include wireless communication technology. Continental wrote it is 
inappropriate to factor in costs related to features that are not 
required by the rule, thus, monthly fees should be excluded from the 
cost calculation. Similarly, a safety group noted that over 90 percent 
of carriers operate with six or fewer power units, yet FMCSA included 
the yearly cost for adding electronic HOS monitoring to an FMS. Only 
the larger carriers will use an FMS and most of them already pay for 
HOS electronic monitoring. Since this cost will only be assumed by a 
very small percentage of carriers, the commenter wrote it should not be 
added as a general cost of ELD yearly use.
    Verigo stated that the annual record keeping costs for motor 
carrier clerical staff of $120 per driver to handle and file RODS does 
not appear to include any allowance for the appropriate validation, 
measurement, and management practices to determine ongoing compliance 
of drivers. Verigo commented that examples for proper HOS compliance 
management taken from industry best practices and carrier excellence 
programs indicate a higher cost than reported in the proposal. 
Conversely, business case studies following the implementation of 
electronic log management systems have consistently revealed the cost 
of compliance management, including truck mounted data terminal 
hardware, to be 30 percent lower than manual compliance management 
procedures used for paper logs.
    A number of commenters compared the very low cost of purchasing 
paper logbooks to the cost of ELDs. They provided a wide range of 
estimates for ELD implementation, from about $800 to $6,000 per truck. 
A commenter believed that FMCSA's estimate does not account for the 
initial cost of set-up, including iPhones/tablets and activation fees. 
A driver believed that the economic factor will drive a large 
percentage of owner/operators out of business or they will sacrifice 
maintenance to meet these regulation costs. The driver wrote that the 
cost of ELD repairs included in the costs, and the economic impact of 
necessary equipment for enforcement personnel has only been ``loosely'' 
estimated.
    Knight stated that opponents' argument that the cost of using an 
ELD is higher than using a paper log is not the proper way to frame the 
issue and is intentionally misleading. The question must not be purely 
about the cost to complete a log; it must be about the cost to comply 
with the rules. For a fleet to assure a level of compliance using paper 
logs commensurate with the level of compliance assured by use of an 
ELD, Knight commented, ``it does and would cost much more to use a 
paper log.'' To assure compliance, the commenter wrote that a carrier 
must invest considerable resources to collect the logs, the supporting 
documents, and then to audit them against each other. The ELD automates 
the collection of logs and the auditing of driving activity. It is that 
automation that makes the ELD more cost effective to fleets. Knight 
wrote that a paper log is less costly than an ELD only when you do not 
invest the necessary resources to audit those paper logs, especially 
against reliable vehicle position history, which is only possible with 
some form of telematics/GPS technology on the truck. It noted that, 
even for the owner-operator, there is a cost benefit associated with 
the ELD.
    Advocates questioned whether the cost to the industry represented 
by coming into compliance with the law should be included in these 
calculations. It stated that the industry is already required to comply 
with HOS requirements and has been for many years. The costs associated 
with HOS compliance are costs that should have been borne by the 
industry regardless of the ELD requirement. Advocates held that the 
cost side of the cost-benefit analysis for this rule should not be 
encumbered simply because some in the industry have, for decades, 
violated the HOS rules, and will now be forced to act responsibly and 
in compliance with long established rules of conduct.
    Advocates also stated that FMCSA must reconsider the justification 
for including in the cost estimates for the ELD both the unquantified 
costs to a limited number of motor carriers that have FMS with no 
electronic HOS monitoring, as well as the highly overstated printer 
cost. Advocates

[[Page 78346]]

believed that those cost figures must be substantially reduced in 
accordance with the realistic use by multi-vehicle fleets and current 
pricing for inexpensive printer equipment. The failure to reflect more 
realistic cost estimates has led the Agency to conclude that certain 
options are not cost beneficial and therefore underestimate the net 
benefits of all the options presented in the SNPRM.
    The UMA stated that FMCSA should include in the cost analysis the 
adverse effects this rulemaking has on new equipment acquisition and 
fleet modernization. It commented that keeping passengers in older 
motorcoaches and compelling groups to use alternative vehicles, such as 
private passenger automobiles and vans, could delay the desired results 
and potentially increase fatalities. The George Washington University 
Regulatory Study Center wrote that FMCSA should consider the effect of 
the SNPRM on driver compensation and small carriers.
    OOIDA stated that FMCSA greatly underestimates the cost of the 
regulations, taking into account driver and equipment turnover. If a 
driver buys a new truck, OOIDA wrote, he or she will have to buy a new 
ELD or pay to transfer his existing unit. If a driver moves to another 
carrier, the driver will have to modify equipment to meet the 
requirements of a new carrier.
    OOIDA questioned FMCSA assumptions on cost savings. It stated that 
logs will still need to be checked and stored. More personnel may have 
to be added to interpret new information from the ECM and GPS 
synchronization, to maintain the equipment and software, and perform 
repairs and software updates.
    OOIDA stated that, according to FMCSA statistics, driving past the 
11th hour accounted for only 0.9 percent of HOS violations in 2009. If 
the automatic detection of the 11-hour violation is an ELD's only 
compliance and enforcement advantage over paper logbooks, this should 
be the starting point for any benefit calculation of ELDs. OOIDA 
commented, however, that FMCSA assumes, without explanation or support, 
a far greater level of benefits for HOS compliance through ELDs. OOIDA 
believed that FMCSA should acknowledge the limited capability of ELDs 
and measure the safety benefits to be derived from that limited 
capacity. If the Agency performed such an analysis, it would be clear 
that the costs of ELDs in economic, privacy, and safety terms far 
outweigh whatever marginal benefits are identified.
    Both OOIDA and the California Construction Trucking Association 
criticized the Agency's estimate of the total number of CMV operators 
who would be affected by the rule, noting that FMCSA had reduced its 
estimates of affected drivers. The California Trucking Association 
believed that FMCSA's analysis had given ``little thought to the 
totality of CMVs operated beyond freight hauling operations.''
    OOIDA claimed that FMCSA based its cost benefit analysis on an 
estimate of 4.3 million drivers in FMCSA-regulated operations. However, 
OOIDA wrote that, in the ICR for the HOS rule (79 FR 35843-44 (June 24, 
2014)), the Agency lowered the number of drivers covered under the HOS 
rules from 4.6 million to 2.84 million--a reduction of 38 percent--and 
estimated that 10 percent of those drivers currently use electronic HOS 
technology.
3. FMCSA Response
    In today's rule FMCSA estimates the annualized cost for an ELD that 
must support one of two options for electronic transfer. The first 
option is a telematics type ELD. We estimate a total annualized cost of 
$419 for an ELD with telematics. The RIA prepared for the SNPRM assumed 
an annualized device cost of $495, which FMCSA acknowledged was on the 
high end of the range of costs of existing units. The $495 figure cited 
by OOIDA is therefore no longer relied upon by the Agency. The 
reduction in the estimated annualized cost for an ELD with telematics, 
from $495 to $419, is largely attributable to the reduction in purchase 
price of the device from $799 to $500. The second option is a local 
transfer method type ELD (ELD with USB 2.0 and Bluetooth). The 
estimated annualized cost of an ELD with USB 2.0 and Bluetooth is $166. 
The lower price of these units is a reflection of their limited FMS 
functionality rather than a decline in either the manufacturing or 
component costs. For estimating the cost of the final rule, the Agency 
conservatively assumed that drivers would purchase an ELD with 
telematics, however the Agency did reduce the baseline price estimate 
of these units to reflect the market trend towards more basic FMS 
designed primarily for ELD functionality.
    Although we do not specifically account for the cost of ``driver 
turnover'' as described by OOIDA, the RIA for the final rule does 
factor in the cost of installing, removing, and repairing ELDs. The 
Agency notes that some independent drivers will have the option to 
purchase a portable ELD, which fall at the lower end of the price range 
and which typically can be removed and reinstalled in less than 30 
minutes. In addition, to the extent that OOIDA's comments concerning 
driver turnover costs are based on the premise that drivers will always 
be financially responsible for the purchase and installation of ELDs, 
we note that OOIDA did not identify the source of its information 
underlying this assumption, nor is the Agency aware of any data that 
could be reviewed independently to validate the claims.
    FMCSA made an effort to consider, and reduce, the costs of 
overhead. Because the technical requirements of this final rule have 
been changed, there is no longer a requirement to use any wireless 
communication capabilities (e.g., telematics or email), eliminating 
this monthly cost. These basic ELDs do not require monitoring, data 
plans, or programming support; FMCSA has reduced the cost of ELDs to 
reflect that. FMCSA has considered the cost of repair, fleet 
modernization, and useful life in its cost analysis.
    As explained in the RIA, the use of ELDs will significantly reduce 
the paperwork and recordkeeping burden associated with the HOS 
regulations. Drivers' time spent completing RODS and forwarding RODS to 
their employers while away from the motor carriers' terminals will be 
reduced by $558 and $65, respectively. Further, the RIA estimates that 
the savings in clerical time spent retaining paper RODS and eliminating 
the need to purchase paper log books is $144 and $42, respectively. 
This amounts to a total annual paperwork savings of $809 per driver.
    The rule does not mandate specific training requirements for 
drivers in connection with ELDs. While the RIA includes training costs 
for drivers, these are not anticipated to be different from existing 
training related to paper RODS. New drivers currently need to be 
trained on paper RODS instead of ELDs. FMCSA expects that motor 
carriers will continue to monitor their drivers' records for compliance 
with HOS. Additionally, there is no real-time requirement, and much of 
this could be done electronically. Further, electronic records are less 
expensive, and take less time to manage, compared to paper RODS.
    Some ELDs are portable and can be transferred between vehicles. For 
example, one of the least expensive devices on the market, 
Continental's VDO Roadlog which costs $500 and does not require monthly 
fees, can be simply unplugged from the ECM from one CMV and plugged 
into the ECM of another CMV. A permanently installed ELD can be sold or 
purchased with the CMV it is installed in and reflected in the sale 
price for the vehicle.

[[Page 78347]]

Additionally, as Continental pointed out in a comment, some 
manufacturers might start offering ELDs as a standard feature.
    The assertion of some commenters that the Agency reduced the number 
of CMV drivers affected by the rule is incorrect. In fact, the number 
of CMV drivers subject to the rule increased from 2.8 million, the 
number cited in the SNPRM, to 3.4 million in today's rule. The increase 
is primarily due to the inclusion of intrastate long-haul drivers 
subject to RODS, which we added due to the likelihood of state-level 
adoption of similar requirements in order to obtain MCSAP funding. The 
basis for determining the number of CMV drivers impacted by the rule is 
further explained in the Agency's discussion of the Paperwork Reduction 
Act in Section XIV, J, of today's rule.
    The Agency rejects OOIDA's premise that the automatic detection of 
the 11 hour violation is the ELD's only enforcement and compliance 
advantage over paper log books.\26\ FMCSA's Roadside Intervention 
Model, described in Appendix E of the RIA to this rule, directly 
measures the relationship between crashes and violations using roadside 
inspection, traffic enforcement, and safety data. This model represents 
a major improvement in the Agency's estimates of the safety benefits of 
ELD use.
---------------------------------------------------------------------------

    \26\ OOIDA's assertion that, according to FMCSA data, driving 
past the 11th hour accounted for only 0.9 percent of HOS violations 
in 2009 is incorrect. In fact, FMCSA stated that 11th hour 
violations are present in around 0.9 percent of total driver 
inspections. The rate of out of service violations for any reason 
related to HOS was about 5.8 percent in 2009, which implies that 
11th hour violations were present in 16 percent of inspections in 
which there was an out of service order due to HOS (0.9/5.8). Other 
data consistently indicate that 11th hour rule violations are a 
significant reason for HOS out of service violations. Therefore, the 
Agency reasonably expects that ELDs will have a significant impact 
on reducing these violations.
---------------------------------------------------------------------------

C. Cost and Analysis--Updating Existing Systems

1. Comments on the 2011 NPRM
    The NPRM proposed a 3-year compliance date and a 3-year 
grandfathering period for devices meeting the standards of 49 CFR 
395.15 that could not be updated to meet the new (now vacated) standard 
in Sec.  395.16. The NPRM assumed a cost of $92 to update an existing 
device to be compliant with those specifications.
    Though UPS voiced support for the EOBR mandate, it also ``estimates 
that the total cost of bringing . . . [its] fleets into compliance with 
the proposed rule would be approximately $25,520,000. In addition, UPS 
would need to incur the costs to install ELDs in new units it purchases 
that are manufactured after June 1, 2012.'' Werner stated that under 
the rule as proposed, carriers who voluntarily complied with the April 
2010 rule lose the benefit of having complied early.
2. Comments to the SNPRM
    In the RIA for the SNPRM, FMCSA estimated that the FMS upgrade 
would be significantly cheaper than the purchase of any new device. 
FMCSA estimated annualized costs to all voluntary adopters of AOBRD 
systems to upgrade their systems: $174 per CMV to add electronic HOS 
monitoring services to FMS that have this capability. Some carriers 
that have already adopted AOBRDs would have to replace their older 
devices 2 years after the effective date of the final rule. FMCSA 
estimates that the annualized cost of replacing an older AOBRD is $106 
per unit.
    PeopleNet agreed with FMCSA's assessment and, based on the details 
provided in the SNPRM, agreed that only software updates would need to 
be made on the majority of the deployed devices. This would include 
those manufactured before 2010 as well as those manufactured after.
3. FMCSA Response
    The RIA prepared for today's rule estimates the annualized cost of 
replacing existing devices will be between $93 per device for FMS 
upgrades and $128 per device for AOBRD replacements. Because FMCSA 
carefully studied the industry and looked at several devices 
representing a significant fraction of the AOBRDs in use, the Agency 
thinks that the majority of FMS devices that exist today could easily 
meet the minimum specifications of this rule with relatively 
inexpensive upgrades. Information materials from many providers 
indicate that ELD functionality is available for their FMS. FMCSA based 
the estimated cost to add the functionality, which it used in the RIA, 
on real price data from providers.

D. Paperwork Analysis

1. Comments to the 2011 NPRM
    The proposed rule would not have required additional reporting, 
recordkeeping, or other paperwork-related compliance requirements 
beyond those already required in the existing regulations. In fact, the 
NPRM was estimated to result in paperwork savings, particularly from 
the elimination of paper RODS. Compared to paper RODS, drivers could 
have completed, reviewed, and submitted EOBR records more rapidly. 
Furthermore, motor carriers would have experienced compensatory time-
saving and administrative efficiencies as a result of using EOBR 
records in place of paper RODS. The level of savings would have varied 
with the size of the carrier implementing the systems (larger carriers 
generally experience greater savings).
    In the NPRM, FMCSA estimated annual recordkeeping cost savings from 
the proposed rule of about $688 per driver. This was comprised of $486 
for a reduction in time drivers spend completing paper RODS and $56 
submitting those RODS to their employers; $116 for motor carrier staff 
to handle and file the RODS; and $30 for elimination of expenditures on 
blank paper RODS for drivers.
    One trade association stated that the reasonable cost stipulation 
in the HMTAA would not be met, and that the rule would cost over 1 
billion dollars. A commenter believed that the paperwork savings 
estimate is ``fictitious'' and inflated. This commenter stated that 
large fleets getting this advantage are already using EOBRs, but they 
will have to purchase new equipment to fit the new EOBR requirements, 
and small fleets ``will see nothing but increased cost and no 
savings.''
    The Specialized Carriers and Rigging Association believed the EOBR 
costs to be so large that they would not be offset by paperwork 
reductions. Other commenters wrote that that the paperwork benefits of 
the rule would not be realized because some drivers would keep a paper 
log despite it not being required. A motor carrier said that the rule 
increased the paperwork burden due to the requirement to monitor 
supporting documents and HOS compliance, cost of the EOBR, cost of 
potential violations of not maintaining a system, and the requirement 
to submit documents within 3 days.
2. Comments to the SNPRM
    The Paperwork Reduction Act analysis presented in the SNPRM was 
similar to that in the NPRM. FMCSA still assumed that under HOS 
regulations, most CMV drivers would be required to fill out RODS for 
every 24-hour period. The remaining population of CMV drivers would be 
required to fill out time cards at their workplace (reporting 
location). Motor carriers must retain the RODS (or timecards, if used) 
for 6 months. FMCSA estimated the annual recordkeeping cost savings 
from the proposed rule to be about $705 per driver. This would comprise 
$487 for a reduction in time drivers spend

[[Page 78348]]

completing paper RODS and $56 submitting those RODS to their employers; 
$120 for motor carrier clerical staff to handle and file the RODS; and 
$42 for elimination of expenditures on blank paper RODS for drivers.
    The George Washington University Regulatory Study Center stated 
that, according to the ICR submitted to OMB, the transition from paper 
RODS to ELDs will reduce the time spent complying with the HOS 
regulations by 68.33 million hours per year. The commenter maintained 
that FMCSA should commit to gathering data to evaluate whether these 
predicted time savings materialize, either through a representative 
survey of drivers and carriers, or by encouraging feedback under the 
Paperwork Reduction Act .
    Greyhound noted that this is the third rulemaking within the last 
few months in which FMCSA proposes to impose substantial new 
recordkeeping requirements on passenger motor carriers. The other two 
were the Lease and Interchange of Vehicles: Motor Carriers of 
Passengers NPRM and the Commercial Driver's License Drug and Alcohol 
Clearinghouse NPRM. Greyhound suggested ways to reduce the 
recordkeeping burdens of the proposals so that passenger carriers can 
keep an operational focus.
    FedEx did not believe that the supporting documents rule would 
create any paperwork relief. FedEx believed the proposed rule is 
burdensome and that the new requirement that carriers retain 10 
supporting documents far outweighs the reduction of one paper RODS per 
day. For a carrier like FedEx Ground, the proposed supporting documents 
rule would generate at least 80,000 documents per day (assuming that 
the carrier collects 10 supporting documents for each driver's 24-hour 
day). Over the course of 1 year, the carrier would need to collect, 
review, and file approximately 29 million documents. FedEx wrote that 
carriers will also be required to implement new systems to store a 
potentially large number of documents so that they can be ``effectively 
matched'' to the corresponding driver's HOS records. FedEx asked FMCSA 
to address what motor carriers should do with a driver's reconstructed 
logs if the ELD is repaired and the original logs are retrieved from 
the device. FedEx suggested that only the ELD-created logs should be 
retained if they can be retrieved from the device or ELD provider.
    Unless an ELD is required, Knight stated that a driver may not 
understand that he or she is saving the 10-15 minutes a day spent 
filling out the paper log. With a paper log, there really are not HOS 
limits for that kind of operator/operation.
    ATA stated that, as a result of the illusory document cap and the 
unnecessary burdens of proving mid-shift ODND time, it is not 
surprising that FMCSA does not expect this rulemaking to produce a 
reduction in the overall document collection and retention burden. ATA 
writes that this is at odds with the intent of the HMTAA. Since the 
passage of HMTAA in 1994, FMCSA has maintained a broad view of what 
constitutes a supporting document and thus continued to impose an 
unusual and uncustomary burden on the trucking industry.
    A carrier, which mistakenly believed that the paperwork reduction 
was the result of the reduced number supporting documents, noted that 
the SNPRM states a paperwork reduction in one section, and then lists 
required supporting documents that must be retained in another. 
Commenter wrote that government agencies require carriers to keep all 
documentation for IFTA, the International Registration Plan, the 
Internal Revenue Service, etc.; therefore, it believed that there is no 
reduction of paperwork overall.
3. FMCSA Response
    FMCSA believes that this rulemaking meets the HMTAA's ``reasonable 
cost'' standard for HOS supporting documents. Almost all AOBRDs and 
ELDs electronically transmit log data. This eliminates a source of 
burden associated with drivers and carrier staff handling paper 
records, and eliminates the cost of the paper. ELDs automate many of 
the steps needed to make RODS entries, thereby saving time. On a daily, 
per-driver basis, these savings may seem small, but multiplied by the 
number of drivers that would be required to use ELDs over the course of 
a year, the savings are significant. In today's rule, FMCSA extends the 
period that a driver has to submit records to a motor carrier; both 
RODS and supporting documents are to be submitted within 13 days.
    FMCSA clarifies that any ELD data that has been reconstructed is a 
part of the HOS records and must be retained as part of the record.
    Neither the NPRM nor the SNPRM claimed any paperwork reduction 
benefit related to supporting documents. The Agency understands that 
supporting documents are kept in the ordinary course of business for 
purposes other than satisfying FMCSA's regulations. The removal of the 
requirement to retain paper RODS, which will no longer be required for 
ELD users, will lead to a reduction in paperwork.
    FMCSA recognizes that short-haul drivers exempt from keeping RODS 
would get none of these savings. MAP-21 mandates the installation of 
ELDs for CMV drivers required to use RODS. FMCSA's preferred option, 
adopted in today's rule, is consistent with the statutory mandate and 
maximizes paperwork savings.
    Although not all drivers are paid by the hour, their time does have 
value, and their time saved has value. It is common practice for 
benefit/cost analyses to value either time savings or delays for 
individuals in terms of an hourly wage rate. The hourly wage a person 
requires to work reflects the value they place on their time.
    FMCSA notes that the obligation on a motor carrier to monitor its 
drivers' compliance with HOS is not new. (See In the Matter of 
Stricklin Trucking Co., Inc., Order on Reconsideration (March 20, 
2012)).\27\
---------------------------------------------------------------------------

    \27\ Available in Docket FMCSA-2011-0127, https://www.regulations.gov (Document No. FMCSA-2011-0127-0013).
---------------------------------------------------------------------------

E. Small Business

1. Comments to the 2011 NPRM
    The Agency examined its registration data and found that 96 percent 
of, or just over 19,000, interstate passenger carriers have 47 power 
units or fewer. The 2011 NPRM did not propose any exclusions or 
exceptions based upon business size. However, the Agency did request 
comment on a possible phased-in compliance date to help small 
businesses.
    OOIDA commented that 2011 NPRM RIA made assumptions about the 
safety practices of large carriers. OOIDA commented that small 
businesses could not realize any reduction in cost, as paperwork is not 
considered to be a source of cost, since their only revenue is from 
operating. Since many drivers are not paid by the hour, OOIDA believed 
that the analysis in the RIA should not use hourly estimates of the 
value of their time. OOIDA also stated that because many drivers or 
motor carriers may not trust EOBRs, they might keep manual logs anyway, 
which would mean no paperwork savings. OOIDA thought that FMCSA had not 
included an explanation of benefits in the 2011 NPRM.
    Though they support the objective of this rule, AMSA stated that it 
is too much of a burden on their segment of the industry. Commenters to 
Regulation Room stated that the cost benefit analysis included savings 
for the reduction of clerical costs, but small

[[Page 78349]]

businesses would not realize those costs. A carrier stated that 
compliance costs are two to three times as expensive for the small 
firms. Some commenters also stated that small businesses would not see 
a return on investment like larger businesses would. Several commenters 
suggested that the rule should apply only to carriers with a threshold 
number of power units. Other commenters stated that there should be a 
waiver process for small businesses to be exempted from the rule.
    The NFIB said that this was a punitive measure for small business, 
impacting them disproportionately. This organization suggested an 
exception for vehicles based on weight that they thought would benefit 
local service vehicles used by small plumbers, electricians, and other 
service providers.
2. Comments to the SNPRM
    FMCSA did not re-analyze a phased-in compliance date in the SNPRM. 
MAP-21 requires a 2 year compliance date following publication of the 
rule. The Agency did, however, increase its commitment to outreach 
among small businesses. As stated in the SNPRM, ``[t]he Agency 
recognizes that small businesses may need additional information and 
guidance in order to comply with the proposed regulation. To improve 
their understanding of the proposal and any rulemaking that would 
result from it, FMCSA proposes to conduct outreach aimed specifically 
at small businesses. . . . [The] purpose would be to describe in plain 
language the compliance and reporting requirements so they are clear 
and readily understood by the small entities that would be affected.'' 
(79 FR 17683, Mar. 28, 2014)
    ABA characterized the bus industry as small, generally family 
owned, and without the financial resources to undertake a major 
addition to their equipment. Taking the average ABA member's equipment 
roster as a guide, the commenter believed that this proposal would add 
approximately $6,600 to the cost of a small business operating a bus 
company.
    At a June 2014 meeting of ABA's Bus Industry Safety Council, the 
question was asked of approximately 100 bus operators: How many 
operators have ELDs on their coaches? About 10 operators did. Assuming 
that the percentage of operators with ELDs is the same industry-wide, 
only 10 percent of the industry uses ELDs. ELD-use is confined to the 
larger bus operators, those operators who need many ELDs for their 
buses and whose purchasing power will allow them to take delivery of 
ELDs faster than smaller operators.
    ABA believed that the majority of bus operators seeking ELDs will 
be the smaller bus operators. They will be able to obtain ELDs only 
after the larger, more financially able carriers receive them. ABA 
believed that the prices of ELDs, particularly for smaller operators 
with little purchasing power, are more likely to rise rather than fall.
3. FMCSA Response
    Because the majority of regulated entities are considered small 
businesses, FMCSA did not propose a special waiver process, a threshold 
for usage based upon size of the motor carrier, or a blanket exception 
for small businesses. FMCSA believes that there are benefits to be 
realized from this rule for businesses of all sizes, and, as with most 
technology, new uses and abilities will continue to emerge to fit the 
needs of the end users.

F. Cost of a Printer

1. Comments to the 2011 NPRM
    The 2011 NPRM did not propose or analyze the cost of an ELD with a 
printer.
2. Comments to the SNPRM
    The 2014 SNPRM analyzed options for ELDs that included a mandatory 
printer. FMCSA sought comment on the feasibility and accuracy of the 
benefit and cost estimates associated with this requirement. The 
requirement for printers with each ELD would increase ELD costs by 
about 40 percent. One of the two ELD-like devices that the Agency 
considered as baseline devices offers the printer function.
    Advocates stated that FMCSA erred in its estimate of how much a 
printer would increase ELD costs. It identified a recent article that 
cites a basic ELD with an integrated printer retailing at a total 
combined cost to an owner-operator of approximately $600. Advocates 
wrote that similarly low ELD-plus-printer costs, as well as low-cost 
thermal printers that are commonly found in taxi cabs and in hand-held 
portable devices used in restaurants and elsewhere, can readily be 
found by contacting suppliers and on the Internet. Advocates held that 
it is likely that some models could meet performance requirements for 
use in ELD-equipped CMVs at a far lower cost than the Agency used in 
its estimate for the SNPRM.
    Other commenters, including ATA, PeopleNet, and J.B. Hunt, were 
concerned with the costs associated with requiring a printer. To 
survive in the environment of a truck cab, an external printer would 
need to be ``ruggedized.'' PeopleNet and J.B. Hunt anticipated that 
printers would be stolen unless they are built-into the vehicle. The 
commenters believed that maintaining and storing operational supplies 
for the printer would be difficult and an added cost.
    ATA noted that the vast majority of manufacturers do not market a 
device with internal printing capability; to offer it would require 
redesigning their hardware. In addition to adding cost, ATA believed 
that requiring paper printers would put a chilling effect on voluntary 
ELD adoption in advance of an industry-wide mandate. If FMCSA were to 
require all devices to be capable of producing paper printouts, the 
``software upgrade'' claims for existing systems would no longer be 
true and those using such devices would find themselves holding 
obsolete hardware. ATA understood law enforcement's interest in 
facilitating roadside verification of HOS compliance. However, it asked 
if it makes more sense to impose a prescriptive data transfer 
requirement on close to 3,000,000 CMVs and drivers, or to require that 
approximately 13,000 certified CMV enforcement officials have the means 
to accept records electronically by one of several required options.
    To assess the cost of printers on commercial vehicles, J.B. Hunt 
and PeopleNet. considered a number of different products, including the 
HP Officejet 100 Mobile Printer, priced at $309, not ruggedized, which 
was the cheapest. Applying the cost for that printer to the 2,840,000 
CMV drivers that FMCSA stated would be affected by the ELD requirements 
of this rulemaking, the initial purchase of printers would cost the 
industry $877,560,000. If each printer used one color cartridge and one 
black cartridge annually, the costs would be an additional $164,663,200 
per year. If the printer has an expected life cycle of 5 years, the 
annualized replacement costs would be $175,512,000. The commenters 
wrote that the cost of equipping every weigh station and CMV 
enforcement cruiser in the country is minimal when compared to 
equipping CMVs with printers. While printers should be optional, these 
commenters maintained that the cost of requiring them on all CMVs is 
cost prohibitive. PeopleNet was also concerned with the security of 
printed log records, which could be lost, stolen, or damaged.
    Continental believed it would have been appropriate to add external 
printer costs to ELDs prior to the mandate taking effect. However, 
Continental wrote that it is not appropriate to do so post-mandate, 
given that industry will

[[Page 78350]]

choose to use the much more cost-effective option of installing ELDs 
with an integrated thermal printer. Continental also stated that 
FMCSA's estimated cost of $500 for an external printer is on the order 
of five times more than current market costs; there are many portable 
thermal printers available for $100. As a reference point, Continental 
noted that taximeters with an integrated thermal printer cost between 
$150 and $350. The commenter wrote that FMCSA added the cost of an 
external printer to all ELDs when looking at the Options, which was 
fundamentally flawed because carriers would acquire more cost-effective 
solutions (i.e., ELDs with an integrated printer). The cost of an 
integrated printer in an ELD is less than $10, considerably lower than 
the cost of an external printer. The VDO RoadLog ELD, currently 
available on the United States market, costs $500 and has an integrated 
printer.
    A safety coalition stated that enumerating costs for a separate 
printer is unnecessary as ELDs with an integrated printer are available 
at less than FMCSA's estimated cost for an ELD lacking an integrated 
printer. While some carriers will choose options that best fit their 
operational needs regardless of cost, the commenter believed that the 
least expensive system that complies with ELD performance requirements 
for CMVs should be used for FMCSA's cost estimates. It commented that 
inflation of costs reduces net benefit calculations, and may be used by 
some to justify slowing or preventing an expedient ELD compliance 
process.
    Knight stated that the most cost effective approach is not to 
require some kind of printout in the vehicle. The National Limousine 
Association opposed printers. Schneider opposed a requirement to supply 
printers in the vehicle because the cost will be prohibitive and far 
outweigh the benefits. Schneider wrote that the benefit of this rule is 
the paperwork reduction and requiring a printer would defeat that 
purpose. Another group stated that law enforcement officers could be 
equipped with a dedicated portable printing device that the officer 
could hold with a USB 2.0 plugged to the ELD and print the data, as 
almost all ELD manufacturers will accommodate a USB 2.0.
    The Alliance for Driver Safety and Security believed that while 
carriers certainly have the option of using an ELD with a portable 
printer, they should not be required to do so. OTA stated that relying 
on the industry to provide a printed copy is not cost effective. Adding 
the cost of printers to each CMV would raise the cost of this rule to 
the point the benefits would not outweigh the costs.
3. FMCSA Response
    In today's rule, FMCSA requires ELDs to have either the capability 
to transfer data to roadside inspectors telematically, via Web services 
and email, or the capability to transfer data locally, via Bluetooth 
and USB 2.0. The final rule also requires ELDs to have either a printer 
or display as a backup method for displaying data to law enforcement. 
FMCSA believes that leaving the decision to use a display or printout 
to the ELD providers and the motor carrier will allow individuals to 
make the most cost effective decision for their particular operations. 
By allowing alternative methods for electronic transfer of information, 
coupled with two backup mechanisms (display or printout), the Agency 
anticipates that ELD providers will offer alternative products, 
responsive to motor carrier needs.

G. Tax Credits and Relief To Off-Set Costs

1. Comments to the 2011 NPRM
    The NPRM did not propose any tax credits because the Agency does 
not have the statutory authority to deal with such matters. However, 
several commenters, including FedEx and the Specialized Carriers and 
Rigging Association, suggested that FMCSA offer a tax credit for motor 
carriers using EOBRs, to offset carriers' costs. FedEx related this 
request to the use of EOBRs by Mexican motor carriers and drivers. The 
Truckload Carriers Association wanted direct financial relief from any 
EOBR mandate.
2. Comments to the SNPRM
    The SNPRM did not propose any tax credits, nor were there comments.
3. FMCSA Response
    FMCSA does not have the authority to offer any tax credits or 
direct financial relief. While FMCSA equipped each vehicle approved for 
use in the United States-Mexico Cross-Border Long-Haul Trucking Pilot 
Program with monitoring equipment, FMCSA owned the monitoring equipment 
and had access to and control of the data. The pilot program has ended, 
and FMCSA no longer funds the cost of those electronic monitoring 
devices.

H. Basis for Evaluating Safety Benefits

1. Comments to the 2011 NPRM
    ATA believed that compliance with the HOS regulations will lead to 
better safety, stating that ``. . . data generated in the course of 
evaluating the agency's Compliance, Safety, Accountability program 
shows a strong correlation between hours of service compliance and 
favorable safety performance (e.g., low crash rates).'' CVSA commented 
that the cost benefit analysis underestimated the number of lives saved 
and overestimated the cost of the EOBR by at least 50 percent based on 
information the organization has received from providers.
    Some commenters criticized Agency studies or claimed that the 
Federal government had no evidence that EOBRs will help reduce fatigue. 
Commenters believed that more data or studies are needed, including 
studies to measure fatigue and issues related to the security of 
information. Some commenters said that there was no link between HOS 
compliance and safety. The National Limousine Association stated that 
the now-vacated 2010 final rule was based on insufficient data and that 
the information in the 2011 NPRM did not reflect enough research on the 
``non-trucking'' part of the industry.
    Commenters to the Regulation Room questioned the validity of 
existing methods for measuring fatigue. Some were concerned that 
fatigued driving is a political issue and the rule was not based on 
sound evidence. One of these commenters also requested that the cost of 
an upgrade for security reasons be included in the proposal cost.
    OOIDA stated that no published data supported the rulemaking and 
believed that the degree of non-compliance was not known. OOIDA 
commented that the Cambridge Study, commissioned by FMCSA, showed ``no 
documented improvement in compliance or safety,'' and stated that non-
driving time was being ignored. OOIDA also criticized FMCSA for relying 
on public comments when no data exist.
    OOIDA said that the RIA was based on underlying flawed research, 
and that FMCSA lacked evidence to link benefits to this rule. It 
claimed that the RIA for the NPRM was inadequate due to the use of data 
from 2003, as well as ``false assumption[s]'' made about fatigue. It 
also wanted to know the credentials of the people making assumptions 
about the 2003 data and claimed that the National Highway 
Transportation Safety Administration's Fatality Analysis Reporting 
System (FARS) data contradicted the data used in the RIA. OOIDA stated 
that FMCSA failed to

[[Page 78351]]

show the connection between fatigue-related crashes and EOBRs.
    OOIDA stated that the ``Agency has never attempted to demonstrate, 
through examples or detailed explanations, the benefits of EOBRs over 
paper logs during this rulemaking or EOBR 1.'' OOIDA also said that 
FMCSA ``use[d] assumptions/staff opinions rather than data or facts to 
try to measure safety benefits gained from EOBRs.'' OOIDA further 
stated that FMCSA had previously ignored analysis and data because they 
``[did] not show improvements in safety.''
    The Specialized Carriers and Rigging Association also believed that 
data failed to establish a link between crashes and EOBR use.
2. Comments to the SNPRM
    Several commenters addressed the benefits of ELDs. The Alliance for 
Driver Safety & Security stated that the ELD mandate will improve 
compliance with Federal HOS rules and ultimately reduce driver fatigue 
and the number of highway crashes caused by driver fatigue. Alliance 
noted that the leading freight transportation companies have found that 
the ability to record accurate driving records decreases HOS compliance 
violations, reduces driver fatigue, improves inspection reports to the 
Compliance, Safety, and Accountability program, and improves Behavior 
Analysis and Safety Improvement Category scores.
    AMSA stated that the proposed ELD requirements would significantly 
help to enhance HOS compliance, reduce paperwork for motor carriers and 
drivers, and increase CMV safety. NAFA Fleet Management stated that use 
of ELDs will improve compliance with HOS regulations, which is 
important because of the strong correlation between compliance with HOS 
regulations and safe operations. ELD provider BigRoad, Inc. stated that 
is has found that drivers and motor carriers who use electronic HOS 
solutions have increased awareness of, and compliance with, HOS 
requirements.
    J.B. Hunt pointed out that many of the opponents of mandatory ELDs 
commented about the ``flexibility'' of paper logs and how they will not 
be able to run as many miles and earn as much money if they are held 
accountable for their driving time and breaks. J.B. Hunt stated that 
these opponents are acknowledging that they are not complying with the 
current regulation, which provides justification for mandating ELDs. 
Knight stated that electronic logs that record drive time and are 
tamper proof, to the degree proposed by the SNPRM, do not allow drivers 
to cheat on driving time. Knight pointed out that paper logs are often 
exploited and that the industry is in urgent need of a universal ELD 
mandate to ensure compliance with existing rules. Knight did 
acknowledge, however, that ELDs cannot prevent crashes or prevent 
drivers from violating HOS rules. The carrier noted that drivers must 
be individually accountable for following the rules and safe driving.
    Several drivers spoke from personal experience about how the use of 
ELDs improves safety and compliance with HOS requirements. One driver 
stated that the system will remind him to take a break an hour in 
advance. The driver noted that this helps with safety by allowing him 
enough time to find a safe place to stop. The driver also pointed out 
that with electronic logs, his fleet manager can see the hours he has 
and better plan his loads. Another driver noted that his ELD keeps him 
from having log violations because it notifies him of his exact time 
status. The driver also stated that the ELD provides a definite benefit 
in trip planning and load booking, and enables him to determine if he 
has enough time to complete a load legally. The driver also stated that 
he is more productive. Another driver stated that the electronic log 
system forces drivers to be better trip planners, which makes them 
better drivers. The driver also pointed out that ELDs improve safety by 
giving drivers reminders of when they need to take a 30-minute break 
and when the end of their 14-hour tour-of-duty is approaching.
    Numerous commenters stated that the use of ELDs will not improve 
safety or HOS compliance. OOIDA noted that the primary criticism of 
paper logbooks is the ease with which a driver can ``falsify'' time, 
which can lead to fatigue and unsafe driver. OOIDA believed an ELD is 
unable to provide any appreciable improvement to the accuracy of a 
driver's RODS and compliance with the HOS rules over paper logbooks, 
and submitted several hypothetical RODS constructed to demonstrate why, 
in its view, the use of ELDs does not result in improved HOS compliance 
because drivers would still be able to mask HOS violations by manually 
entering false duty status into the ELD. OOIDA stated that the ability 
of ELDs to automatically record the length of time a truck has been 
driven has no appreciable value over paper logbooks if drivers can 
continue to enter an incorrect duty status while they are not driving. 
OOIDA further stated that only an accurate record of both a driver's 
driving and non-driving activities will enable a determination of 
whether the driver is complying with HOS rules. OOIDA stated that ELDs 
will give inspectors and people concerned about highway safety a false 
sense of safety and driver compliance when, in fact, ELDs will permit 
up to 11 hours of unlawful driving a day without showing a violation. 
In addition, OOIDA argued that the safety analysis did not take into 
account that ELD use will increase pressure on drivers to violate 
speeding and other local ordinances and engage in other unsafe 
behavior. Advocates stated that a poorly crafted ELD regulation would 
provide drivers and carriers with the opportunity to continue to 
falsify logs electronically, thus enabling drivers to work, or to be 
forced to work, excessive hours resulting in fatigue and the associated 
increase in crashes, injuries and fatalities. Advocates expressed 
concern that the proposed rule does not ensure that drivers or carriers 
cannot manipulate the process of securing the data and transferring it 
from the ELD to roadside inspectors and enforcement officers, thus 
circumventing the purpose and intent of the regulation.
    Quoting from FMCSA's April 2014 report on the safety benefits of 
ELDs,\28\ the UMA noted the American Transportation Research Institute 
stated that the correlation between EOBRs and safety is weak. The UMA 
pointed out that the ELD mandate is a significant proposal for 
passenger carriers, and that a direct and measurable correlation 
between reducing crashes is a necessity that goes to the very core of 
the Agency's mission. Freightlines of America, Inc., stated that 
putting ELDs in CMVs will not get to the root of the problems in the 
industry, but instead make drivers and carriers more desperate to 
survive and endanger themselves, their businesses, and the public 
safety.
---------------------------------------------------------------------------

    \28\ In the docket for this rulemaking, docket number FMCSA-
2010-0167-0900. https://www.regulations.gov/#!documentDetail;D=FMCSA-
2010-0167-0900.
---------------------------------------------------------------------------

    An individual commenter pointed out that FMCSA has yet to show any 
direct correlation between ELD use and reduced crashes, or any other 
kinds of safety benefit. The commenter also pointed to OOIDA's comments 
that the proposed rule as written will not improve highway safety, does 
not fully address the issue of driver harassment, and does not fulfill 
the requirements prescribed by Congress. Another individual pointed out 
that ELDs will not prevent drivers from lane deviation, following too 
closely, or any other poor driving habits. The commenter

[[Page 78352]]

recommended better driver training regulations, infrastructure 
maintenance, and improvements to the national highway system, ``share 
the road'' education for both commercial drivers and passenger vehicle 
drivers, and a greater focus on truck parking and increasing the number 
of rest stations. Implementing ELDs without addressing these issues 
would strain an industry that is already seeing a major shortage in 
drivers. The commenter pointed out that shippers and receivers detain 
trucks during loading and unloading without consideration for HOS 
requirements because they have no oversight over their actions.
    Several commenters pointed to what they believe is the real reason 
for the ELD mandate--i.e., big trucking companies trying to put smaller 
trucking companies out of business. The California Construction 
Trucking Association stated that mandating ELDs will not achieve the 
safety benefits calculated by the Agency, and that the only true 
beneficiaries of an ELD mandate would be those intent on chasing 
competitors from the market under the guise of safety. Herbi-Systems, a 
lawn care company, stated that there is no public demand for ELDs, and 
that some large trucking firms want to raise the cost of doing business 
for small trucking firms in order to minimize competition. An 
individual commenter stated that ELDs are not necessary for medium and 
small carriers because the drivers do not alter their paper RODS due to 
potential penalties. The commenter also stated that the big trucking 
companies who are pushing for the ELD mandate have sister companies 
with stock ownership in companies that produce ELDs.
    Klapec commented that ELDs are no more reliable than paper 
logbooks, and the ``safest thing to put into a truck is a well-trained, 
experienced driver.'' Klapec noted that experienced drivers will leave 
the industry, causing an increase in crash and fatality rates. It 
believed the Agency is discriminating against small carriers, and 
stated that large carriers know that the ELD mandate will cause an exit 
of many small carriers from the marketplace because they will be unable 
to sustain the high costs of doing business. Klapec said that the Vice 
President of ELD provider XATA Corporation sits on two of the three 
boards for FMCSA and that XATA Corporation stands to gain a potential 
windfall of business if the ELD mandate goes through. Klapec also 
pointed out that ATA's members include big, national carriers that are 
eager to see small carriers, like Klapec, become extinct. Klapec urged 
the Agency to be careful about who is on its advisory boards, who is 
giving advice on the potential benefits of ELDs, and who stands to 
benefit from the passage the proposed ELD mandate.
3. FMCSA Response
    In the SNPRM, FMCSA used a different approach from that in the 2011 
NPRM to estimate the number of crashes mandatory ELD use will prevent. 
Based on an analysis of carriers using ELDs, and using the peer-
reviewed Roadside Intervention Model,\29\ FMCSA was able to estimate 
the reduction in crashes from mandatory ELD use. This estimate used a 
sample period from January 2005 through September 2007, which contained 
9.7 million interventions.
---------------------------------------------------------------------------

    \29\ See Appendix E of the RIA to today's rule, available in the 
docket.
---------------------------------------------------------------------------

    Generally, ELDs bring about improvements in safety by making it 
difficult for drivers and carriers to falsify drivers' duty status 
which in turn deters violations of the HOS rules. And increased 
compliance with the HOS rules will reduce the risks of fatigue-related 
crashes attributable, in whole or in part, to patterns of violations of 
the HOS rules. Part of the improvement in safety also involves motor 
carriers accepting the responsibility of reviewing the electronic 
records and supporting documents. Motor carriers are required to ensure 
their drivers comply with applicable safety regulations and motor 
carriers that strive to do so will now have a more effective tool for 
reviewing drivers' RODS.
    A more detailed explanation of the process FMCSA employed to 
determine crash reduction benefits, with a clear, full accounting of 
assumptions and procedures, is in the RIA for this rulemaking. In 
response to these comments, FMCSA also undertook a study about the 
potential safety benefits of the ELD, and discusses that study and 
comments received about it in today's rule, in Section XII, K, of this 
preamble.
    OOIDA submitted several hypothetical RODS constructed to 
demonstrate why, in its view, the use of ELDs does not result in 
improved HOS compliance because drivers would still be able to mask HOS 
violations by manually entering false duty status into the ELD. We note 
that the examples OOIDA provides rely on the premise that drivers using 
paper RODS accurately record their driving time and location. FMCSA's 
enforcement experience demonstrates that is not always the case. 
Contrary to OOIDA's assertion that ``knowing how long a driver has 
operated a truck rarely helps identify whether the driver is in 
compliance with the HOS rules'', the Agency's field inspection 
personnel report that the bulk of their time spent on enforcement is in 
determining whether or not the driver has accurately entered driving 
time on the paper log. The use of ELDs would minimize this concern.
    Rather than respond directly to OOIDA's hypothetical scenarios, we 
think it is more useful to illustrate how ELD use could have easily 
detected actual HOS violations recently documented in FMCSA's field 
reports. For example, an FMCSA inspector reviewed a driver's paper log, 
which showed that he was within the permitted HOS and that he had taken 
the required breaks. However, when the inspector compared the paper log 
to the driver's time/date stamped toll receipts, it was apparent that 
the driver was at least 500 miles from the location shown on his log 
for a particular day. The inspector concluded that the driver simply 
could not have reached that location by taking the required 10-hours of 
off-duty driving time and by travelling at a speed of 60 miles per 
hours as ``documented'' on the log. Had an ELD been installed in this 
driver's truck, the device, by automatically capturing driving time, 
mileage and location, would have made this HOS violation readily 
apparent to the FMCSA inspector.
    Another recent example of an actual HOS violation involved a driver 
leaving Arkansas just before noon on a Saturday to reach the first of 
several retail delivery locations in California the following Monday 
morning. The driver's paper RODS showed 30 hours of driving time, 
arranged to accommodate the required 10-hour breaks. The log also 
showed that the driver spent about an hour unloading at each of the 
retail locations in California. However, when the FMCSA inspector 
compared the GPS-based asset tracking record with the driver's log, it 
was apparent that, between Arkansas and California, the driver stopped 
for only brief periods, most of which ranged from 15 minutes to 75 
minutes. The longest period the driver stopped driving did not exceed 3 
hours during a total of 34 hours of actual driving time. Asset tracking 
also showed that the periods of unloading took longer than the hour 
that the driver logged.
    As with the previous example, an ELD would have immediately 
revealed the falsification of the driver's RODS. The Agency thus 
believes it is reasonable to conclude that drivers would be less likely 
to engage in, and carriers would be less likely to encourage, the types 
of

[[Page 78353]]

HOS subterfuge that ELDs would readily detect. We also believe that 
ELDS will facilitate better trip planning by drivers and carriers, 
resulting in fewer unintentional HOS violations. While FMCSA 
acknowledges that ELDs will not prevent every crash or ensure that 
every driver will follow the HOS rules to the letter, we do believe 
that by reducing HOS violations, ELDs will result in less fatigued and 
less dangerous drivers, thereby achieving the statutory mandate of MAP-
21.
    In addition, to the extent that OOIDA focuses on ELDs as the sole 
means of monitoring HOS compliance, that focus is misguided. In 
addition to retaining RODS, motor carriers have long been required to 
retain supporting documents. Today's rule continues that requirement 
while also providing specific guidance as to the type of documentation 
that must be retained. In addition, today's rule requires drivers to 
make available supporting documents in their possession upon request 
during a roadside inspection. Enforcement personnel as well as carriers 
rely on these documents along with driver's RODS, to provide a more 
comprehensive view of a driver's workday.
    Finally, we also note that, in addition to HOS violations, certain 
aspects of the behavior OOIDA describes in its hypothetical RODS are 
currently prohibited under the FMCSRs. For example, FMCSA could cite a 
motor carrier under 49 CFR 392.6 for scheduling a run between points in 
a way that would necessitate speeding. Similarly, Sec.  392.2 requires 
that CMVs be operated in accordance with local laws; Sec.  392.3 
prohibits driving, and prohibits the carrier from requiring driving, 
while the driver is fatigued, ill or the driver's ability to remain 
alert is otherwise impaired.

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

A. Registration and Certification

1. Comments to the SNPRM
    FMCSA proposed that ELD providers would have to register with 
FMCSA, certifying that their devices meet the requirements and 
providing information on how the ELD works and how it was tested. FMCSA 
would make much of that information available on an FMCSA Web site that 
would list the registered providers. FMCSA would develop optional test 
procedures, which providers could use to ensure their ELDs meet the 
requirements. In the SNPRM, FMCSA sought comments on the certification 
issue and the ability of carriers and providers to meet the 
requirements in the time provided.
    Although ATA, UMA, and CVSA supported the certification process, 
OTA opposed it, arguing that it would expose carriers to considerable 
risk. If a device is later held to be non-compliant, the carrier would 
have a fleet of vehicles that might need to be taken off the road. OTA 
stated that FMCSA should provide assurance that a carrier is not at 
risk of having to replace a registered product or have its logs 
declared invalid. OTA was concerned that FMCSA might refine the 
regulations, which could require expensive modifications, 
reprogramming, or replacement of the first equipment purchased.
    Drivewyze noted that FMCSA has not anticipated the use of 
intermediaries to support ELD providers' internet-connected data 
transfer needs; the intermediaries may also need to register and 
conform to FMCSA standards. ATA stated that providers contend that the 
cost of the upgrades will be high and that the existing hardware will 
need to be tested.
    FedEx, UMA, CVSA, and an ELD provider stated that FMCSA should 
require each registering providers to use FMCSA-prescribed test 
procedures to provide carriers with some assurance that the devices 
meet the specific requirements. CVSA stated that the certification 
process must include resistance against tampering with the device/
system.
    Several providers raised concerns about the information that has to 
be submitted. Some stated that only major releases should be reported 
to FMCSA--not every update. Zonar asked if ``version'' refers to 
hardware or includes software, and whether providers will be able to 
update information posted on the FMCSA Web page, and stated that 
providers should be listed in random order.
    Some providers questioned the requirement to provide the user 
manual. XRS stated that the Enforcement Instruction Card should be 
sufficient; the user manual may contain proprietary information that 
should not be publicly available. Omnitracs recommended providing a 
link to the provider's Web site rather than the manual; this would make 
it easier to ensure that carriers had access to the most recent 
version.
2. FMCSA Response
    In today's rule, FMCSA includes procedures for provider 
registration of an ELD as they were proposed in the SNPRM. However, in 
response to comments, FMCSA is adding section 5.4 to the technical 
specifications--a procedure to remove a listed certification from the 
Web site--in order to provide additional assurance to motor carriers 
that that the ELDs listed on the provider registration Web site are 
compliant. The procedure includes as a preliminary step an opportunity 
for the ELD provider to cure any deficiency. It also protects an ELD 
provider's interest in its product.
    Today's rule provides the specifications for the data elements and 
related HOS data transfers that are mandatory to develop a compliant 
ELD in the appendix to subpart B of part 395. This includes all aspects 
of the file structure, formatting, and naming conventions. However, 
FMCSA understands that providers and motor carriers need assurance that 
an ELD meets FMCSA's requirements. FMCSA will provide guidance to 
providers that will contain the tools providers will need to ensure 
that their ELD meets the technical specifications. However, it will be 
the responsibility of each provider to ensure that its product complies 
with the RODS file data definitions FMCSA provides.
    While FMCSA does not mandate third party software requirements, it 
allows for them, and will provide guidance so that providers can 
evaluate whether they are in compliance with part 395. Any agents 
acting on behalf of a motor carrier must comply with FMCSA's 
regulations as well.
    FMCSA provides more information about this process, and the 
mandatory elements that providers will have to submit to FMCSA in order 
to be listed on the public Web site, in the ICR notices related to ELD 
provider registration. FMCSA released the related Paperwork Reduction 
Act ICR notice for public comment on October 28, 2014 (79 FR 64248).
    The elements that providers have to submit are adopted as proposed 
in section 5.2.1, Online Certification. User manuals are generally 
available to the public. Given required submission, FMCSA does not 
believe that providers would include proprietary information that the 
manufacturer does not want to make available to the public.
    The elements that providers may have to submit are limited to those 
included in the ICR for ELD certification. The ICR process is separate 
from the rulemaking process, and FMCSA responds to comments on the ELD 
certification ICR in the notice issued in accordance with the Paperwork 
Reduction Act on April 3, 2015 (80 FR 18295).

[[Page 78354]]

B. Compliance Date and Grandfather Period

1. Comments to the 2011 NPRM
    The NPRM proposed a compliance date 3 years after the effective 
date of the anticipated final rule. Motor carriers would have been 
required to install EOBRs in CMVs manufactured on or after June 4, 
2012. Motor carriers that installed AOBRDs before the compliance date 
of the final rule would have been allowed to continue to use those 
devices for 3 years beyond the compliance date, for a total of 6 years 
after the publication of a final rule.
    The Agency asked for comments on factors it should consider to 
determine if the compliance date should be adjusted (76 FR 5544, 
February 1, 2011). It asked if EOBRs should be phased-in, based on the 
number of power units in a motor carrier's fleet.
    Several commenters, including CVSA, supported a 3-year 
implementation period with a single effective date for EOBR use. The 
Insurance Institute for Highway Safety believed that the compliance 
date should not be later than 3 years. Several commenters contended 
that the 3-year period is too long; others believed that the proposed 
3-year compliance period was too short.
    Some commenters, including AMSA, NSTA, and NPGA, asked for a 5-year 
compliance period. While a large motor carrier recommended that large 
motor carriers have additional time, several large carriers, as well as 
TCA and ATA, opposed different compliance dates. AMSA recommended that 
FMCSA conduct a 2-3 year operational test of EOBRs, providing EOBRs to 
United States-based motor carriers under a program similar to the 
Agency's North American Free Trade Agreement pilot program.
2. Comments to the 2014 SNPRM
    Subsequent to the NPRM, Congress enacted MAP-21, which required 
that the ELD regulations apply to a CMV beginning 2 years following 
publication of the rule (49 U.S.C. 31137(b)(1)(C)). In the SNPRM, FMCSA 
proposed an effective date of 30 days after publication of a rule in 
the Federal Register and a compliance date of 2 years thereafter. FMCSA 
proposed that motor carriers that installed AOBRDs, as described in 
current Sec.  395.15, before the compliance date of the ELD rule be 
allowed to continue to use those devices for 2 years beyond the 
compliance date.
Two-Year Compliance Date
    Four commenters, including the NTSB, expressed support for the 
proposed effective and compliance dates. Knight the Alliance for Driver 
Safety & Security, and the NTSB urged FMCSA to implement the rule 
quickly. The American Moving & Storage Association stated that the 
compliance schedule for mandated ELDs and related requirements are 
appropriate.
    The majority of commenters on this issue, however, stated that the 
proposed 2-year compliance date should be extended. CHP recommended 
collaboration with private and public stakeholders to ensure compliance 
dates are realistic. The UMA stated that FMCSA should consider an 
incremental approach.
    The ABA stated that 3 years is the absolute minimum needed for ELD 
implementation in the motorcoach industry. YRC estimated that under a 
2-year implementation schedule, it would have to take approximately 500 
trucks a month out of service for installation and train 700 to 1,000 
drivers a month on the new devices. The National Propane Gas 
Association stated that a 3- to 5-year compliance deadline is necessary 
to ensure sufficient availability of devices and that there is enough 
time to install them.
    CVSA and an ELD provider stated that the grandfather clause should 
be eliminated, and that a 3-year compliance deadline should be applied 
to all CMVs. CVSA stated that having multiple compliance deadlines 
would complicate roadside enforcement and undermine uniformity. 
Omnitracs was concerned that there could be confusion with enforcing 
the grandfather period and, therefore recommended a 3-year compliance 
deadline for ELD use.
    Four commenters stated that the compliance deadline should be 
extended to 4 years from the effective date. MPAA suggested that FMCSA 
delay initial enforcement of its all-electronic roadside inspection 
requirement or apply the ELD mandate to production drivers either 1 
year after FMCSA confirms that sufficient RODS transfer functionality 
is available in the market, or 2 years after the initial implementation 
of the rule (i.e., 4 years after publication).
Two-Year Grandfather Period
    Most of the commenters on this issue, including Roehl Transport, 
the International Foodservice Distributors Association, the Snack Food 
Association, UMA, TCA, ATA, and OTA, stated that the proposed 2-year 
grandfather period for AOBRDs installed prior to the compliance date is 
too short. Many recommended that carriers be permitted to use installed 
AOBRDs for the remainder of the service life of the vehicle in which 
they are installed. ATA and TCA both stated that failure to extend the 
grandfather period for the life of the vehicle would discourage fleets 
from making an early investment in ELDs. A non-profit transit provider 
noted that it has already invested in Mobile Data Terminals and tablets 
for some of its vehicles, and asked that FMCSA allow flexibility to 
upgrade current devices to meet the proposed requirements.
    The NAFA Fleet Management Association agreed with FMCSA's proposed 
2-year grandfather period. However, an ELD provider and the Alliance 
for Driver Safety & Security recommended eliminating the 2-year 
grandfather provision. The ELD provider stated that it would 
unnecessarily extend the use of noncompliant systems, incentivize some 
carriers to circumvent HOS enforcement, and undermine the ability of 
law enforcement to enforce the ELD mandate and the HOS rules. The 
provider believed it would be difficult to determine if an AOBRD was 
installed before or after the compliance date. Law enforcement will 
need to be trained to use both AOBRDs and ELDs, which will also 
increase the cost of enforcement.
    Knight recommended that FMCSA be more specific in identifying the 
conditions for eligibility for the 2-year grandfather provision. It 
believed that a ``high percentage'' of the fleet should be so equipped 
to be eligible.
3. FMCSA Response
    In enacting MAP-21, Congress required the Agency to use a 
compliance date 2 years after publication of the rule. This means that 
a CMV driver required to use an ELD will be required to use a certified 
ELD 2 years after this rule is published unless the grandfathering 
provision is met. Until this date, existing AOBRD devices or paper logs 
will be acceptable. In today's rule, FMCSA clarifies that the 
compliance date, as well as the grandfather period, is calculated to 
run from today's publication rather than from the effective date of the 
rule, consistent with the requirement of MAP-21.
    For 2 years after the compliance date, today's rule requires a 
driver subject to this regulation to use either an ELD or an AOBRD, 
i.e., a device that meets the requirements of Sec.  395.15, which was 
installed and that a motor carrier required its drivers to use before 
the rule compliance date. FMCSA clarifies that the grandfather 
provision is vehicle-based, not fleet-based.
    While FMCSA proposed a 3-year grandfathering date in the NPRM, 
mirroring the 3-year compliance date in

[[Page 78355]]

that proposal, FMCSA does not believe the intent of the statute would 
allow for a grandfathering date longer than the compliance date. 
Therefore, the rule allows drivers to continue to use grandfathered 
AOBRDs for 2 years after the rule's compliance date. FMCSA declines to 
remove or shorten the grandfathering period beyond what was proposed in 
the SNPRM. The Agency believes that some transitional time is necessary 
for ELD providers to produce a sufficient quantity of ELDs to meet the 
needs of the motor carrier industry.
    FMCSA does not think that the 2-year grandfather period will 
penalize early adopters of logging technology. Motor carriers currently 
using AOBRDs will have 4 years of use of the devices, starting from the 
publication date of this rule; these devices have an estimated useful 
service life of 5 years. FMCSA notes that it has heard from ELD 
providers during the rulemaking process, as well as through the MCSAC 
subcommittee on ELD technology, about their current technologies. The 
Agency kept current systems in mind while developing the technical 
specifications, and believes that many existing AOBRDs can become ELDs.
    Given the obstacles and cost of converting AOBRDs operated under 49 
CFR 395.15, FMCSA believes that it will be necessary to have some 
overlap in time where both AOBRD and ELD devices are acceptable. The 
Agency does not think that this will lead to a delayed enforcement 
program or inconsistency. Other than grandfathering current AOBRDs, the 
Agency does not provide a phased or incremental compliance period.
    The Agency notes that, in today's rule, it corrects references to 
the compliance and grandfather date. The clock starts at the rule 
publication date, rather than the effective date, consistent with MAP-
21.

C. Penalties and Enforcement

1. Comments to the 2011 NPRM
    An individual commenter asked who would be responsible for paying 
the penalty for disconnecting an EOBR device. Another commenter said 
that EOBR records should provide drivers the same authorities as a 
ship's logs and have the same rules against fraudulent entries. A 
commenter stated that the EOBR will now make it ``institutionalized'' 
that driving during a break period is a violation of the HOS, no matter 
the circumstances. The commenter stated that this would lead to drivers 
getting HOS violations and losing their livelihoods.
2. Comments to the 2014 SNPRM
    FMCSA proposed a new prohibition against harassment, subject to a 
civil penalty, for a motor carrier that engages in harassment. 
Harassment would be considered in cases where a motor carrier is 
alleged to have required a driver to violate the HOS rules involving 
the use of the ELD.
    Some commenters recommended enhanced penalties for repeated 
violations of the ELD requirements. Advocates stated that there is no 
provision for specific or enhanced penalties to be imposed for 
violations of the requirement to use ELDs. Advocates believed the 
Agency must specify strong penalties for intentional and unintentional 
violations that progressively increase with a subsequent violation and 
permit an out of service order for a carrier, and provide for 
disqualification of a driver found to have committed a third violation 
of the ELD requirements.
    A coalition of safety groups (Truck Safety Coalition, Parents 
Against Tired Truckers and Citizens for Reliable and Safe Highways) 
stated that carriers and drivers must have a strong motivation to 
comply with the new ELD regulation, and serious and meaningful 
penalties should be identified as part of the rulemaking to ensure that 
the cost of a violation is not merely part of doing business. These 
commenters wrote that, unfortunately, there is no provision for 
penalties in the ELD regulation. They believed that FMCSA must remedy 
this oversight and include strong penalties for offenders, with an 
escalation for repeat offenders such that, by the third violation, an 
order to cease operation is issued.
    EROAD supported FMCSA's approach. It commented that the proposed 
regulation leaves States with the flexibility to continue their own 
commercial vehicle policies and enforcement approaches while allowing 
private companies to support the requirements in an open market 
environment.
    FedEx commented that it is possible that law enforcement will be 
inclined to write violations for failing to use an ELD if the driver 
cannot prove at roadside that he or she did not complete a log more 
than 8 times in the last 30 days. In effect, this rule would require 
these occasional drivers to carry their HOS records for the previous 30 
days in their vehicles, directly conflicting with the requirement that 
drivers retain logs only for the previous 7 days.
    IBT supported heavy penalties for carriers who harass and coerce 
drivers to violate HOS regulations. IBT would also like FMCSA to 
include language in the rule that defines penalties for carriers and 
drivers when evidence of tampering is detected. It supported heavy 
penalties issued to carriers who tamper with or otherwise alter a ELDs 
ability to operate per FMCSA specifications.
    IBT commented that the SNPRM provides that a motor carrier may 
request an extension of time from FMCSA to repair, replace, or service 
an ELD. Unless an extension is granted, a driver could receive a 
citation for the malfunctioning ELD. The IBT does not support this 
language, as it would unjustly penalize the driver for the motor 
carrier's failure to apply for a service extension correctly. IBT 
believed that the driver should only be responsible for having manually 
prepared RODS for the current 24-hour period and the previous 7 days. 
Any citation issued by law enforcement should be directed to the 
carrier, not the driver where the driver can produce evidence, via the 
driver vehicle inspection report (DVIR) or other acceptable means, that 
he/she notified the motor carrier of the malfunction within the 
specified 24-hour period.
    Inthinc recommended that the regulations state that law enforcement 
officers must ask carriers, not drivers, for non-authenticated driver 
logs.
3. FMCSA Response
    FMCSA adopts an approach that increases drivers' control over their 
own HOS records in order to maximize transparency and ownership of 
edits being made. All edits to ELD records will appear with clear 
authorship. FMCSA clearly prohibits any kind of ELD tampering or 
altering.
    The Agency prescribes penalties for non-compliance with the 
requirements in today's rule. Civil penalties for violations of 
regulations addressing ELDs will be assessed under Appendix B to 49 CFR 
part 386, and numerous factors, including culpability and history of 
prior offenses, are taken into account. 49 CFR 386.81. Tampering with 
an ELD is also an acute violation under FMCSA's safety rating process 
under today's rule. Section VII of Appendix B to 49 CFR part 385. FMCSA 
includes a provision that allows penalties for harassment to be 
enforced at the maximum levels in order to discourage motor carriers 
and drivers from committing violations. In assessing the amount of a 
civil penalty, however, the Agency is required by statute to take 
certain factors into account. See 5 U.S.C. 521(b)(2)(D). Thus, the 
Agency intends to apply this provision through its Uniform Fine 
Assessment software to

[[Page 78356]]

assure civil penalties are assessed in individual cases in a fair 
manner while addressing the gravity of harassment violations at an 
appropriate level.
    Both motor carriers and drivers are prohibited from committing 
violations of the FMCSRs. FMCSA acknowledges, through today's rule, 
concerns of harassment of drivers by motor carriers through the use of 
ELDs and related technologies, and believes provisions addressing 
harassment appropriately target motor carriers for actions affecting 
drivers they control. The use of an ELD makes a driver's HOS records 
more transparent. Furthermore, carriers using ELDs with related 
communication components generate records documenting carrier/driver 
interactions. These electronic records generated in the ordinary course 
of business are covered by the supporting documents provisions in 
today's rule.
    During investigations, inspections, and safety audits, FMCSA and 
its State partners will evaluate the 8 out of 30 day threshold for ELD 
use under today's rule. Drivers currently allowed to use timecards may 
continue to do so under the provisions of 49 CFR 395.1(e). Authorized 
safety officials may request the time cards from the motor carrier 
supporting the exception. Section 395.1(e)(2)(v) requires a motor 
carrier to maintain ``accurate and true time records'' for each driver. 
These records must show the time the driver goes on and off duty, as 
well as the total number of hours on duty, each day. The lack of a time 
record for a driver under this exception on any given day would 
ordinarily suggest that the driver was not on duty that day. If an 
authorized safety official discovers that the driver was in fact on 
duty, despite the absence of a time record, the motor carrier has 
violated Sec.  395.1(e), because it has not retained ``true and 
accurate time records.'' Appropriate enforcement action may then be 
taken. FMCSA recognizes that records relevant to the evaluation of the 
8 out of 30-day exception will not ordinarily be available during 
roadside inspections. However, this factor does not differ from 
enforcement of the short-haul exception at roadside, where similarly, 
on-site confirmation generally is not available from records inspection 
or otherwise.

D. Enforcement Proceedings

1. Comments to the 2014 SNPRM
    The SNPRM included a new procedural provision, Sec.  395.7, 
Enforcement proceedings. The proposed provision encompassed three 
concepts, providing that: (1) A motor carrier is liable for an 
employee's acting or failing to act in a manner that violates the HOS 
rules if the action is within the course of the motor carrier's 
operation; (2) the burden of proof in demonstrating that an employee's 
action was outside the course of the motor carrier's operation is on 
the carrier; and (3) knowledge of a document in a motor carrier's 
possession, or available to the motor carrier, that could be used to 
enforce the HOS rules is imputed to the motor carrier.
    Given drivers' autonomy, ATA stated that a carrier ought to be held 
liable only in cases where the carrier encouraged a violation or, for 
undetected violations by an employee, where the government can show 
that the carrier failed to perform due diligence in providing 
instruction and training to the driver on HOS compliance. ATA indicated 
that the burden of proof ought to be on the government for proving HOS 
violations.
    With respect to the proposed provision imputing knowledge of a 
document to the carrier, OTA asked what ``available to the motor 
carrier'' means, and to what extent the motor carrier is required to 
pursue such documents. OTA suggested that the carrier should only be 
charged with knowledge of a document if the carrier receives that 
document in the regular course of business. J.B. Hunt stated that the 
Agency must define the term ``available'' and present a cost benefit 
analysis addressing the paperwork burden the new standards place on 
carriers. J.B. Hunt also recommended that certain statements in the 
SNPRM be modified to make it clear that carriers are responsible only 
for documents generated and maintained during the normal course of 
business.
2. FMCSA Response
    The provisions originally proposed as Sec.  395.7 in the SNPRM, 
addressing part 395 enforcement proceedings, are included as Sec.  
386.30 in today's rule. The provisions are moved to codify the 
enforcement provisions with other rules of practice.
    Motor carriers and drivers share the responsibility for complying 
with HOS requirements under part 395. A motor carrier's responsibility 
for an employee's violation of the HOS rules is not a new concept; it 
dates back to the Interstate Commerce Commission. Under 49 CFR 390.11, 
a motor carrier is required to have its drivers observe any duty or 
prohibition on drivers under the FMCSRs. Section 386.30(a) reiterates a 
carrier's liability with respect to the HOS rules. The FMCSA and its 
predecessor agencies have consistently held carriers liable for their 
drivers' actions that violate the HOS regulations. This addition, 
however, does not in any way modify a carrier's liability under 49 CFR 
390.11.
    Carriers are deemed to have knowledge of regulatory violations if 
the means were present to detect the violation. (See In the Matter of 
Goya Foods, Inc., Final Order (July 7, 2014).\30\ Section 386.30(a) 
codifies administrative case law addressing a motor carrier's 
responsibility for an employee acting within the course of the motor 
carrier's operations. For example, in the case of a driver providing 
false logs, a carrier is responsible for the driver's violation 
regardless of the systems it has established to prevent violations or 
whether it actually detected the violation. (In the Matter of Holland 
Enterprises, Inc., Order Appointing Administrative Law Judge p. 4 
(February 13, 2013)).\31\ This is consistent with the principle of 
respondent superior. Id. However, this concept does not result in 
strict liability in that a carrier could argue the driver was acting 
outside the scope of employment. (See In the Matter of Stricklin 
Trucking Co., Inc., Docket No. FMCSA-2011-0127 (Order on 
Reconsideration Mar. 20, 2012)).\32\
---------------------------------------------------------------------------

    \30\ Available in Docket FMCSA-2011-0156, https://www.regulations.gov (Document No. FMCSA-2011-0156-0004).
    \31\ Available in Docket FMCSA-2008-0233, https://www.regulations.gov (Document No. FMCSA-2008-0233-0006).
    \32\ Available in Docket FMCSA-2011-0127, https://www.regulations.gov (Document No. FMCSA-2011-0127-0013).
---------------------------------------------------------------------------

    In terms of the applicable burden of proof under Sec.  386.30(b), a 
motor carrier claiming that a driver was acting outside the carrier's 
operations is in the best position to establish this fact and will need 
to raise the issue as an affirmative defense under the rule.
    Section 386.30(c), providing that a motor carrier is deemed to have 
knowledge of any document in its possession or available to the motor 
carrier for purposes of enforcement proceedings, is written to preclude 
a motor carrier from ignoring documents that would assist in monitoring 
its drivers. Questions of imputed knowledge are more likely to arise in 
enforcement of false log violations than violations of provisions 
governing supporting documents. The concept of imputed knowledge is 
material in determining the effectiveness of a motor carrier's efforts 
in monitoring its drivers. Generally, a carrier has imputed knowledge 
if it could have discovered violations had it reviewed its internal 
records. (See In the Matter of Transland,

[[Page 78357]]

Inc., Decision of Chief Administrative Law Judge (February 16, 
2010)).\33\
---------------------------------------------------------------------------

    \33\ Available in Docket FMCSA-2006-25348, https://regulations.gov (Document No. FMCSA-2006-25348-0133).
---------------------------------------------------------------------------

    Nevertheless, available documents are not necessarily limited to 
documents a carrier actually uses in its normal course of business in 
ensuring compliance with the HOS rules. Rather, the standard is whether 
the documents could be used to determine compliance. (See In the Matter 
of Roadco Transportation Services, Inc., Decision on Petition for 
Review of Safety Rating (December 4, 2003); \34\ see also In the Matter 
of Stricklin Trucking Co., Inc., Order on Reconsideration (March 20, 
2012)).\35\ Section 386.30(c), prescribing the imputed knowledge 
concept applicable to enforcement proceedings, is not intended to 
modify a motor carrier's current obligations under the Agency's 
administrative case law. Thus, in response to J.B. Hunt's comment, no 
new paperwork burden results. In terms of the impact on motor carriers, 
today's rule neither increases nor decreases the burden associated with 
supporting documents.
---------------------------------------------------------------------------

    \34\ Available in Docket FMCSA-2002-13667, https://regulations.gov (Document No. FMCSA-2002-13667-0005).
    \35\ Available in Docket FMCSA-2011-0127, https://regulations.gov 
(Document No. FMCSA-2011-0127-0013).
---------------------------------------------------------------------------

E. FMCSA Should Not Provide Mexican Motor Carriers With ELDs

1. Comments to the 2011 NPRM
    Between October 14, 2011, and October 10, 2014, FMCSA conducted the 
United States-Mexico Cross-Border Long-Haul Trucking Pilot Program 
(Pilot Program). The Pilot Program evaluated the ability of Mexico-
domiciled motor carriers to operate safely in the United States beyond 
the municipalities and commercial zones along the United States-Mexico 
border. The Pilot Program was part of FMCSA's implementation of the 
North American Free Trade Agreement cross-border long-haul trucking 
provisions. As part of FMCSA's information gathering process, FMCSA 
equipped each vehicle approved for use by a Mexico-domiciled motor 
carrier in the Pilot Program with an electronic monitoring device.
    Numerous commenters strongly objected to FMCSA's funding of 
electronic monitoring devices for CMVs in the Cross-Border Pilot 
Program. Klapec, AMSA, and FedEx believed that the United States 
government was providing Mexican-based carriers with an advantage not 
available to domestic carriers. AMSA suggested FMCSA institute a 2 to 
3-year long pilot program, for which FMCSA would fund the EOBRs, to 
test the integration of EOBRs into the CMV fleet nationwide. FedEx felt 
that FMCSA's agreement to pay for EOBRs in Mexican trucks bolstered its 
suggestion that the United States government provide tax credits to 
purchasers of EOBRs to offset their costs.
2. Comments to the 2014 SNPRM
    A number of commenters objected to FMCSA paying for electronic 
monitoring devices for foreign carriers. Some suggested that FMCSA fund 
ELDs for domestic carriers.
3. FMCSA Response
    FMCSA acknowledges commenters' concerns about the Agency purchase 
of ELDs for foreign motor carriers. The Agency emphasizes that the 
purchase was an essential step to ensuring appropriate levels of 
oversight during a pilot program. FMCSA used electronic monitoring 
devices with GPS capabilities to monitor the operation of vehicles used 
in the Pilot Program and used the data to identify potential 
violations. This approach addressed concerns expressed by members of 
Congress and others.
    FMCSA owned the monitoring equipment and had near real-time access 
to and control of the data provided by the electronic monitoring 
devices and GPS units, 24 hours per day, every day of the week. This 
will not be the case with the ELDs required through this rulemaking.
    The Pilot Program ended in October 2014 and FMCSA discontinued the 
subscription service used in connection with the devices. FMCSA no 
longer funds the cost of electronic monitoring devices for Mexico-
domiciled carriers authorized to operate in the United States.
    The suggestion that ELD's acquired during the Pilot Program provide 
foreign carriers with a competitive advantage is without merit. The 
number of vehicles equipped with ELDs was limited, with approximately 
55 vehicles operating at the conclusion of the pilot program. Also, 
foreign carriers are prohibited from making domestic point-to-point 
deliveries within the U.S. FMCSA is not in a position to fund ELDs for 
domestic carriers and implementing a domestic pilot program is 
inconsistent with the Congressional mandate that the Agency require 
certain drivers to use ELDs.

F. International Issues

1. Comments to the 2011 NPRM
    Under existing regulations, drivers from Canada and Mexico who 
drive in the United States need to be in full compliance with our HOS 
rules once they cross the border--just like any domestic driver. Under 
this rulemaking, Canadian and Mexican drivers would keep their RODS 
using an ELD in the same way that United States drivers would, unless 
they qualified for one of the exceptions.
    The Regulation Room received a remark suggesting that an EOBR 
helped ``keep a driver straight'' in the face of complex rules, and 
allowed the driver to change from Canadian to United States rules with 
the flip of a switch. However, Verigo, a Canadian wireless logbook 
provider, recommended that FMCSA allow companies in the oil and gas 
sector, which operate under an equivalent level of safety required by a 
Canadian Oil Well Service Vehicle Permit, be exempt from mandatory use 
of EOBRs. CVSA commented that Canada is pursuing the development of an 
EOBR standard. It recommended that FMCSA make every effort to work with 
Canada to develop a harmonized standard across North America.
    OOIDA believed that there might be a need for a dual mandate for 
both paper RODS and EOBRs, absent a Canadian mandate. This would add to 
the costs of the United States mandate for those drivers. The Air and 
Expedited Motor Carriers Association, the National Association of Small 
Trucking Companies, and The Expedite Association of North America 
(TEANA), responding together, were concerned about the compatibility of 
United States and Canadian requirements for EOBRs because Canada 
required EOBRs to print and present a paper log.
2. Comments to the 2014 SNPRM
    Klapec stated that Mexican and Canadian trucking companies are 
already taking a share of the trucking business from small United 
States carriers, and believed that the ELD mandate would make 
competition between small carriers and foreign carriers impossible. An 
individual commenter stated that FMCSA wants American truckers to 
operate like truckers in Europe, despite the different economic 
situation between Europe and the United States. A number of commenters 
questioned how the rule will apply to Mexican or Canadian drivers.
    Several commenters emphasized the importance of harmonizing the 
proposed regulation with Canadian and Mexican standards. Greyhound 
pointed out that the SNPRM does not address the compatibility of the 
proposed ELD standards with Canada and Mexico, and noted that 
compatibility among the

[[Page 78358]]

three countries is critically important for carriers like Greyhound who 
operate a large number of daily trips between the United States and 
Canada or Mexico. UMA pointed out that there is significant 
international traffic (between the United States and Mexico and Canada) 
involving passenger carriers and recommended FMCSA complete regulatory 
harmonization prior to full implementation of the proposed rule. ABA 
noted that Canadian motor carrier authorities have not instituted a 
change in their regulations in line with the United States ELD proposed 
rule. ABA further noted its understanding that Canadian authorities 
will wait for FMCSA to issue its rule before considering any changes to 
Canadian laws and regulations. It stated that the 2-year compliance 
period may be an insufficient period of time for Canadian-domiciled 
carriers to obtain ELDs.
    A Canadian owner-operator stated that FMCSA should exempt Canadian 
owned and operated CMVs from ELD regulations because FMCSA is not 
adopting Canada's HOS regulations. The commenter asserted that the 
imposition of ELD regulations forces the Canadian Federal 
Transportation Ministry to enforce United States law on Canadians 
operating in the United States.
    ELD provider PeopleNet requested further clarification as to how to 
manage harmonization of data for those drivers who transition between 
United States Federal regulations and Canadian or intrastate 
regulations. XRS pointed out that there are additional data elements 
for each duty status change, as well as several additional events, such 
as ignition on, which will need to be captured in the harmonization 
required for drivers who travel between Canada and the United States.
    Two individual commenters addressed the issue of drivers traveling 
between Alaska and the lower 48 states through British Columbia and the 
Yukon Territory. One commenter noted that there are different HOS 
requirements for each jurisdiction through which he travels. The 
commenter stated that it would be impossible for an ELD to function 
properly under these circumstances. The other commenter pointed out 
that there are many areas between Alaska and the lower 48 states in 
which GPS devices do not show accurate locations. That commenter noted 
that he has researched several ELDs and found that none would work for 
his situation.
    A recruiter who hires owner-operators for a small carrier in Canada 
was concerned about the impact the ELD mandate will have on the 
expedite business from Canada to the United States. The recruiter 
pointed out that Canadian owner-operators who agree to install ELDs in 
their trucks to do this expedite work to the United States will also be 
required to use the ELDs for local work to be compliant with the United 
States regulations. The recruiter noted that most of the owner-
operators he spoke to in Canada stated that if the ELD mandate goes 
into effect they will stop doing expedite work and either do local work 
only or retire from trucking entirely.
3. FMCSA Response
    The Agency emphasizes that this rule does not alter the underlying 
HOS regulations or the obligation of drivers to comply with the 
applicable rules of the jurisdiction in which they are operating. 
Though FMCSA agrees that complying with several sets of regulations can 
be complex and challenging, the applicable requirements have not been 
altered. FMCSA requires that Canada- and Mexico-domiciled drivers 
comply with the Federal HOS rules while operating in the United States.
    While FMCSA agrees with the commenter that regulatory harmonization 
would be ideal, North American HOS harmonization is not an option at 
this time. However, the Agency understands that there are electronic 
monitoring devices currently on the market that have been programmed to 
accommodate the HOS rules of multiple jurisdictions. Further, under 
today's rule, a driver operating in multiple jurisdictions would be 
able to annotate the driver's record of duty status on the ELD to 
reflect information about periods outside the United States. Regarding 
the concern raised by several entities that Canada requires a printout 
of an electronic log, today's rule includes a printer option. FMCSA 
declines to exempt through this rulemaking specialized equipment or 
vehicles tied to specific industrial sector, including CMVs subject to 
safety regulation under a Canadian Oil Well Service Vehicle Permit.

G. Effects of ELDs on Current Business Practices

1. Comments to the 2011 NPRM
    Several commenters stated that the impact of ELDs would unevenly 
fall on smaller carriers. OOIDA provided an example of a current 
practice by a carrier that instructs drivers to falsify HOS records 
kept on EOBR-like devices, and said there was no reason for current 
illegal practices to change with the use of EOBRs. Advocates, and 
others, also noted that current practices often involve violating the 
HOS rules; however, in their view, ELDs could help stop those 
violations. A commenter stated, ``[a] lot of the fear of EOBRs seems to 
stem from a lack of good practices following the HOS [rules] in the 
first place.''
2. Comments to the 2014 SNPRM
    A number of commenters were concerned that the rule would affect 
their current business practices. Continental stated that some carriers 
are opposed to an ELD mandate because they anticipate that the costs 
for ELDs will be high; they relate the problems associated with today's 
complex FMS (e.g., system-to-system incompatibility, complex handling, 
or data privacy concerns) to ELDs; and they fear that ELDs may be a 
capable tool to enforce the HOS regulation (a rule they fundamentally 
oppose). Continental said it is likely that the majority of carriers 
will accept ELDs, assuming FMCSA adequately addresses some concerns. 
The commenter said that FMCSA effectively addressed cost and data 
privacy concerns. Continental also noted fleets that would not benefit 
from the use of FMS functionalities will not be required to use real-
time communications and will be able to use ELDs without monthly fees.
    Three commenters addressed the proposed requirements, in Sec. Sec.  
395.8 (a)(2)(ii) and 395.11(b), that RODS and supporting documents be 
transferred from the vehicle to the carrier's office within 8 days. 
Current regulations in Sec.  395.8(i) require a driver to submit RODS 
within 13 days. FedEx stated that, like the 13-day time period, an 8-
day time period is too long, especially given that the vast majority of 
logs will be created using ELDs and the proposed ELD rule requires that 
drivers certify their daily record ``immediately after the final 
required entry has been made or corrected for the 24-hour period.'' To 
allow carriers to better manage HOS and ensure they are not at risk of 
allowing a driver to operate in violation of Sec.  395.3, FedEx 
recommended drivers should be required to certify and submit their HOS 
records to carriers within 24 hours of the end of their day. FedEx 
suggested that FMCSA carve out an exception for logs showing only off 
duty time and only require that they be turned over to the motor 
carrier prior to the driver performing any on duty work for the 
carrier.
    Where trucks do not return to the main office every 8 days, 
Continental was concerned that this shorter timeframe may force 
carriers to use cell phone or satellite wireless communication for data 
transfer,

[[Page 78359]]

creating additional costs. Continental stated the requirement to send 
RODS to the back office should remain at 13 days.
    Eclipse Software Systems stated that the requirement to file logs 
within 8 days will be onerous to carriers wanting to use low-cost ELDs 
that do not support wireless connections for data transfer, and 
problematic for drivers who are away from their home terminal for more 
than 8 days. The commenter noted that the gains in safety from such a 
requirement would also seem to be minimal because the most pressing 
compliance issues occur in real-time, when a driver is tired. According 
to the commenter, carriers have been operating under the 13-day 
submission rule for many years, and continuing with that limitation 
would mirror current operational patterns without penalizing users of 
low-cost ELD systems that experience longer trips.
    The MPAA stated that FMCSA should confirm that industries in which 
drivers work for multiple carriers, such as the motion picture and 
television industry, may employ third-party administrators to 
coordinate ELD information and technology. The commenter believed that 
this approach may support the unique characteristics of production 
drivers better than a carrier-by-carrier approach. MPAA suggested an 
amendment to proposed Sec.  395.20(c). The National Private Truck 
Council appreciated that the Agency clarified that carriers may use 
ELDs ``to improve productivity or for other appropriate business 
practices,'' and that the rulemaking will not ``ban or impose 
significant new restrictions on those functionalities.''
3. FMCSA Response
    FMCSA intentionally created technical specifications that allow an 
ELD of limited complexity, at lower cost, and without monthly charges. 
Today's rule does not require real-time data transferor wireless 
submission of data. Based on the comments to the SNPRM, FMCSA changed 
some parts of the proposal to address data transfer and other issues, 
in order to increase the flexibility of the ELD and address multiple 
motor carrier business models and price points without compromising 
safety or data integrity.
    Based on comments that reducing submission timeframes from the 
currently required 13 days to 8 days will interfere with current 
business practices, today's rule requires submission of both RODS and 
supporting documents to the motor carrier within 13 days. A motor 
carrier that wants a shorter time frame than 13 days for the submission 
of RODS or supporting documents already has the ability to make this 
request of its drivers, and today's rule does not change that. Motor 
carriers can require different policies so long as they are not less 
rigorous than the FMCSRs.
    As a point of clarification, if a driver is off-duty for multiple 
days, the motor carrier may annotate the driver's ELD records to 
reflect that, subject to the driver's certification. As stated before, 
the only prohibition is that no time that a driver spent driving can be 
converted into non-driving time. Another acceptable method of noting 
time spent off duty would be to have the driver add this time 
retroactively with an annotation, at the beginning of his or her first 
day back on duty. Drivers who have responsibilities outside of driving 
should note those job-related functions in their ELDs as ODND time at 
the start of their driving the CMV.
    Nothing in the today's rule prohibits third parties from being 
engaged by a motor carrier to help with HOS compliance. If the third 
party is engaged as an agent of the motor carrier and is involved in 
HOS compliance through ELD use, that person will be required to have a 
unique login on ELD systems. The requirement for HOS compliance 
ultimately lies with the motor carrier, so FMCSA does not make the 
suggested change to the regulatory language.
    FMCSA has eliminated language that was proposed in Sec.  395.20(c) 
to avoid confusion as evidenced by comments. FMCSA recognizes that 
different ELDs will employ different technologies, including back 
office systems. FMCSA does not intend to limit alternative 
technologies, provided that the ELD operates in a manner that satisfies 
the technical specifications in today's rule.

H. Leased and Rented Vehicles

1. Comments to the 2011 NPRM
    Commenters asked how rented and leased trucks would be treated 
(e.g., would a truck rental company be required to install EOBRs for 
its customers). A commenter explained that the occasional or seasonal 
use of rental vehicles is a key part of many businesses.
2. Comments to the 2014 SNPRM
    The IFDA wrote that while rental units can be equipped with ELDs, 
they may not be the same as the system in use in other company 
vehicles. The commenter noted this situation raises issues concerning 
training and maintaining records for drivers who are using multiple 
systems within the same week. IFDA urged the Agency to recognize that 
such events are a routine aspect of daily fleet operations and allow 
flexibility for companies and drivers in the rule.
    ATA said that FMCSA should consider the real-world challenges an 
ELD mandate would create for fleets using rented and leased vehicles. 
In the event of a breakdown, ATA explained that a motor carrier will 
call on its truck rental and leasing company to provide a replacement 
truck. It is not reasonable to expect the provider will have one with 
an ELD that matches the carrier's HOS management system. ATA noted that 
the carrier will be unable to populate the device in the replacement 
vehicle with the driver's RODS for the prior 7 days. Even if the driver 
manually populates the device, the motor carrier will not have the 
means to communicate and read data from it. ATA suggested that fleets 
using short-term replacement vehicles should be permitted to use paper 
RODS for more than 8 days.
    Similarly, the NMFTA commented that its members are concerned about 
the complications and costs ELDs present when the carrier routinely 
requires drivers to use different pieces of equipment. LTLs often rely 
on the short-term use of rental equipment, and LTL carriers must 
constantly manage and shuffle drivers in and out of both company and 
temporary equipment to meet business needs. NMFTA stated different 
truck manufacturers install different types of data equipment, 
connections, and software. NMFTA noted this situation requires carriers 
who wish to maintain the flexibility of bringing in outside equipment 
on a temporary basis to invest in different types of cables and 
software to ensure that their office systems can integrate with it.
    TRALA expressed concern about proposed Sec.  395.26(d)(2), which 
requires that ELDs capture personal miles operated in a CMV. TRALA 
asked how the recording of personal miles of a regulated motor carrier 
employee will be reconciled with the personal use of rental vehicles by 
unregulated consumer customers or motor carrier drivers who are not 
subject to the ELD requirements because they are under one of the 
short-haul exemptions in 49 CFR 395.1(e). The commenter asserted that 
trip data of rental customers who are not subject to the ELD 
requirements, either because they are using the CMV for non-commercial 
purposes or are exempt short-haul operators, should not be recorded nor 
be available for FMCSA or State inspection.
    TRALA noted that transferability allows TRALA members to use ELDs 
on vehicles where use is required, and to

[[Page 78360]]

avoid the cost of employing that technology where it is not. TRALA is 
concerned that its member companies may disclose their unregulated 
customers' geographic location as a mandatory ELD data element, or 
violate the proprietary nature of the HOS data recorded and stored on 
the ELDs by and on behalf of their regulated customers, the motor 
carriers. With multiple users of a single vehicle, TRALA companies 
could be liable for unlawful disclosure or access to such data. TRALA 
recommended allowing portable devices that have unique logins for each 
driver and strict protocols for device accessibility and information 
capture to alleviate this concern.
    In light of the significant concerns raised by the TRALA, IFDA, and 
others, the American Truck Dealers Division of the National Automobile 
Dealers Association urged FMCSA to clarify in the rule that lessors and 
rental companies bear no responsibility for providing or installing 
ELDs in leased or rented CMVs operated by CDL holders employed by 
unrelated motor carriers.
3. FMCSA Response
    Because today's rule provides a performance-based standard for 
ELDs, motor carriers will have a number of options to choose from the 
market place of ELD providers. This includes portable units that stay 
with the driver as opposed to being installed in the vehicle. Motor 
carriers that rely upon long-term leases of CMVs can work with the 
leasing companies to identify options and implement solutions to the 
challenge of using ELDs with leased vehicles. Therefore, the Agency has 
not included in today's rule an exception for leased or rented CMVs.
    If a driver who is not required to use an ELD were to operate a 
motor vehicle that is equipped with an ELD, that driver would not have 
to use the ELD. This would apply to a driver operating under the short-
haul exception in Sec.  395.1(e) or to a private individual using a 
rented truck to move his or her own household goods. A company renting 
a truck to an unregulated consumer could protect that customer's 
information by removing the ELD or removing any recorded information 
from the ELD.
    FMCSA does not regulate truck-rental companies. There is no 
requirement or prohibition for a rental agreement or short-term lease 
to include an ELD. A rental company might choose to include an ELD as a 
part of the agreement, just as they might include another piece of 
equipment.

I. Business Relationships With Owner-Operators

1. Comments to the 2011 NPRM
    In addition to concerns related to harassment (addressed elsewhere 
in this preamble), commenters believed that ELDs could affect the 
relationship between motor carriers and the owner-operators with whom 
they contract. An owner-operator said that the devices allow 
corporations to micromanage. Another owner-operator said that the use 
of EOBRs could lead to drivers being paid by the hour rather than the 
mile. One commenter stated ``absent uniform compatibility profiles and 
mandates, EOBRs installed on owner-operator units would only 
necessitate additional installation costs and the incurring of unused 
vendor contracts as owner-operators elect to move from one carrier to 
another which is their right to do so in a free market on a regular 
basis.'' Another commenter wanted to know what system would be required 
if the driver contracted to multiple motor carriers.
2. Comments to the 2014 SNPRM
    United Van Lines, LLC (United) and Mayflower Transit, LLC 
(Mayflower), responding together, and AMSA, said a carrier's 
obligations related to the use of ELDs should not be a factor in 
determining whether a lessor is an independent contractor or an 
employee for Agency determination purposes and recommended that FMCSA 
amend Sec.  395.20 to reflect that.
    United's/Mayflower's disclosed household goods agents may typically 
contract with non-employee, owner-operators (``drivers'') who own or 
lease their CMVs. United/Mayflower did not believe that their companies 
bear any responsibility for the drivers' compliance with HOS 
regulations when the drivers are not driving under their respective 
authorities.
    United/Mayflower believed the proposed rules would require them to 
install ELDs in drivers' CMVs when operating under their authorities 
and, subsequently, to remove the ELDs. United/Mayflower believed that 
the proposed rules permit them to require drivers operating under their 
operating authorities to install ELDs owned by United/Mayflower, even 
if the drivers have already installed and are using their own ELDs in 
their CMVs.
3. FMCSA Response
    The Agency understands that there are many types of relationships 
between owner-operators and motor carriers. This rule does not change 
the relationship between employee and employer or carrier and 
contractor. This rule does not change the underlying requirement to 
comply with HOS. The responsibility for complying with HOS, including 
through the use of an ELD, lies with both the driver and the motor 
carrier.
    FMCSA declines to amend the language of Sec.  395.20, as suggested 
by the commenters. The independent contractor relationship is outside 
the scope of this rulemaking.

J. Carrier Liability

1. Comments to the 2011 NPRM
    Several commenters to the NPRM, including J.B. Hunt, stated that 
EOBR use would help motor carriers lower risk and liability because 
they would record more information and lower the crash risk. Commenters 
also stated that access to a driver's records through an EOBR would 
help decrease liability, as the carrier and driver could plan routes 
together to avoid delays. Other commenters spoke of benefits as a 
result of minimizing the carrier's liability while the CMV is being 
used for personal purposes.
2. Comments to the 2014 SNPRM
    AMSA and United/Mayflower stated that ELDs will be required to 
automatically record a limited set of data points. However, ELDs being 
marketed to the trucking industry by ELD system providers are able to, 
and do, collect significantly more data than required under the rule. 
Examples of source data streams include, but are not limited to, 
measurements of a driver's speeding, hard braking, and idling. These 
data are recorded even when the drivers are not under dispatch for a 
carrier. The proposed rule forbids carriers from altering or erasing 
the original source data. This means that even if a carrier elects not 
to view reports including data points that are not required by the 
rules, it must not seek or permit the destruction of the extraneous 
data collected by the devices.
    AMSA and United/Mayflower were concerned that the mandated 
retention of the additional data will lead to an unintended increase in 
carrier liability. These commenters anticipated that certain lawyer 
groups will second-guess FMCSA's judgment and carriers' reliance on the 
information requirements imposed by the proposed regulations by arguing 
that carriers had a ``duty'' to access and use the additional data 
created by ELDs. United/Mayflower proposed that FMCSA add new language 
that clarifies

[[Page 78361]]

that the motor carrier would not be responsible for accessing such 
data.
    These commenters also asked that FMCSA provide guidance that 
removes any ambiguity concerning the application of proposed 
regulations prohibiting alteration or destruction of data streams and 
reaffirm that drivers not placed out of service are authorized for use.
3. FMCSA Response
    FMCSA believes that transparency and increased control over a 
driver's records by the driver is beneficial to the carrier-driver 
relationship. FMCSA notes that commenters appear to focus on a device 
that goes beyond the minimum requirements of this rulemaking, but is 
still part of an ELD-like device, such as an FMS. Though it does not 
have a regulatory definition, any device that has the capabilities of 
an ELD, like an FMS, is bound by the same recording and editing 
requirements and prohibitions as an ELD in terms of required data 
elements. While an extended data set might be recorded by an FMS, the 
items in it are not part of the driver's electronic RODS that are 
required to be transferred to an authorized safety official. 
Information like hard braking or other events would not be a part of 
that required data set. See also Section IX, C, Privacy; Ownership and 
Use of ELD Data, for information on the use of data provided by an ELD.
    Today's rule does not change motor carriers' existing obligation to 
ensure its drivers' comply with HOS regulations. The Agency does not 
believe that this requirement is ambiguous. However, the Agency does 
not address data elements that are not required as part of the minimal 
technical standards for an ELD. Nor does the Agency have the authority 
to address through its regulations the use of evidence in civil 
litigation.

K. Safety Study

1. Comments to the 2014 SNPRM
    On May 12, 2014, FMCSA announced the availability of a study 
concerning the safety benefits of ELD-like devices: ``Evaluating the 
Potential Safety Benefits of Electronic Hours-of-Service Recorders'' 
(Safety Study). It quantitatively evaluated whether trucks equipped 
with devices like ELDs had a lower (or higher) crash and HOS violation 
rate than those without such devices (May 12, 2014, 79 FR 27040). The 
study is available in the docket for this rulemaking.\36\
---------------------------------------------------------------------------

    \36\ In the docket for this rulemaking, docket number FMCSA-
2010-0167-0900, https://www.regulations.gov/#!documentDetail;D=FMCSA-
2010-0167-0900.
---------------------------------------------------------------------------

    An ELD provider was the only commenter who agreed with the Safety 
Study's finding that ELDs provide safety benefits. The remaining 21 
commenters criticized the Safety Study. One commenter provided crash 
and fatality data for motor carriers that use ELDs, and noted that 
carriers with ELDs are still involved in crashes. Another commenter 
claimed that most traffic fatalities are not caused by large trucks, 
therefore, the ELD mandate is unnecessary. OOIDA provided a detailed 
critique of the Safety Study's data and concluded that, ``FMCSA has no 
credible data on the relationship between the use of ELDs and actual 
HOS compliance, and even less data on the relationship between HOS 
compliance and highway safety.''
    According to OOIDA, the 2014 Safety Study lacks reliability for 
numerous reasons, including because it is taken from the records of 
carriers with differing recording criteria. OOIDA criticized the study 
for failing to provide sufficiently detailed information about how the 
data inconsistencies were reconciled and for including crashes that 
OOIDA believed could not have been avoided by drivers. OOIDA wrote that 
the number of HOS violations included in the 2014 Safety Study is not 
consistent with the violation data in FMCSA's Safety Measurement 
System. OOIDA claimed that the Safety Study data did not include on-
board recording device violations. OOIDA also criticized the study for 
the small sample size, failure to include small carriers, and failure 
to account for how trucks are selected for inspection. OOIDA noted that 
although 97 percent of all carriers have fleets with 20 or fewer 
trucks, 9 of the 11 carriers in the Study maintained fleets with more 
than 1000 trucks while the remaining two carriers had fleets with 
between 100 and 500 trucks.
    OOIDA stated that the Safety Study's failure to control for the 
effects of ELD use on inspection frequency biased the results. Based on 
its own survey and the anecdotal evidence it collected, OOIDA claimed 
that trucks with ELDs are less likely to be inspected for HOS 
violations than trucks without ELDs. In OOIDA's survey, 39 percent of 
the 2,347 respondents reported seeing ``a law enforcement official 
passing on inspecting another driver's logs because the truck was 
equipped with an EOBR/ELD. Further, numerous responders reported that 
in addition to just passing on inspection, officers did not know how to 
operate EOBRs/ELDs.'' According to OOIDA, trucks in the study with ELDs 
had lower HOS violation rates because they were less likely to be 
selected for inspection than trucks without ELDs.
    OOIDA objected to the study's conclusion that ELDs have clear 
safety benefits. OOIDA cited one of its own surveys that compared the 
safety record of carriers with speed limiters and electronic logging 
devices to carriers without those monitoring devices. Using FMCSA/CSA 
data, OOIDA concluded that carriers without electronic monitoring had a 
better crash ratio than monitored carriers.
2. FMCSA Response
    While the Agency acknowledges commenters' concerns about the study, 
we did not rely on its conclusions to establish the safety benefits of 
ELDs relative to paper logs. The Safety Benefits Analysis in the RIA 
uses a different measure of HOS violation rates, a different data set 
and a different study design to demonstrate a reduction in HOS 
violations attributable to ELD use. The Safety Study did, however, 
provide corroborative data to support the crash reduction estimates 
used in this rulemaking.
    FMCSA notes that the crash data in the Safety Study were vetted by 
analysts to ensure consistency across carriers. The Safety Study 
received two types of crash files from participating carriers--those 
with only crashes and those with crashes plus claims data. To ensure 
the crash data was comparable across carriers, data analysts removed 
all claims data according to procedures described in the study. The 
report includes examples of claims. However, the report does not 
separately describe each specific claim in the original carrier data.
    As indicated in the report, all of the HOS violations from the 
participating carriers were collected from FMCSA's Safety Measurement 
System Web site during a short portion of 2010 and all of 2011 and 
2012. All categories of HOS violations were included in the analysis, 
although some HOS violations that could not be linked to a specific 
truck in the study were dropped from the analysis.
    The study clearly acknowledged that its sample was skewed toward 
large, for-hire carriers. However, because the study was designed to 
compare trucks with and without ELDs owned by the same carrier, large 
carriers provided the best set from which to obtain this data. Any bias 
toward a specific carrier or type of carrier would equally affect 
trucks with and without ELDs.
    The study applied statistical techniques to identify and measure 
the

[[Page 78362]]

effects of ELD use separately from the many other factors that affect 
crash rates. As with any study, the Safety Study could not completely 
eliminate all potential sources of bias. Although the study was able to 
control for carrier factors that might affect selection for roadside 
inspection, the study did not address the relationship between ELD use 
and the likelihood a truck would be selected for inspection. The Safety 
Study measured HOS violation rates as the ratio of HOS violations to 
millions of vehicle miles travelled. If trucks with ELDs were less 
likely to be inspected per mile traveled then the study would 
overestimate the reduction in HOS violations due to ELD use. By 
contrast, the safety benefits analysis in the RIA measured HOS 
violations per inspection and found a significant reduction in HOS 
violations in a before and after comparison in a group of carriers that 
had implemented ELDs at a certain time. OOIDA's claim that the Safety 
Study data did not include on-board recording device violations is 
incorrect; the Safety Study did include these violations.
    In reviewing the data presented by OOIDA, FMCSA notes that those 
studies did not control for numerous other factors that affect crash or 
violation rates. In addition, OOIDA's survey data showing that roadside 
inspections of ELD-equipped CMVs are routinely waived is subject to its 
own selection bias. FMCSA continues to believe that the safety benefits 
estimates presented with the SNPRM were appropriate and supported by 
the research the Agency sponsored.
    The Safety Study focused on estimating the effects of ELDs on 
outcome measures of safety, such as crash rates, rather than process 
measures, such as violation rates and fatigue. The study found a 
significant reduction in the overall crash rate and the preventable 
crash rate for trucks with ELDs compared to trucks without ELDs. Due to 
limited data, the study could not evaluate the effect of ELDs on DOT-
reportable and fatigue-related crashes.

L. Harassment Survey

1. Comments to the Survey
    FMCSA conducted a survey to examine the issue of driver harassment 
and to determine the extent to which ELDs are used to either harass 
drivers or monitor driver productivity. The research explored the 
relevant issues from the perspective of both drivers and carriers. On 
November 13, 2014, FMCSA published a notice of availability for the 
survey in the Federal Register (79 FR 67541). In that notice, FMCSA re-
opened the public docket for this rulemaking for the limited purpose of 
soliciting comment on this survey.
    The report titled, ``Attitudes of Truck Drivers and Carriers on the 
Use of Electronic Logging Devices and Driver Harassment'' (the 
Harassment Survey),\37\ summarized the survey findings. The survey 
explored driver's attitudes about harassment and whether harassment is 
more prevalent for drivers using ELDs. The survey had seven major 
findings in the following areas:
---------------------------------------------------------------------------

    \37\ The Harassment Survey is available in the docket for this 
rulemaking; it is docket number FMCSA-2010-0167-2256. It is also 
available on line at: https://ntl.bts.gov/lib/54000/54100/54178/RRR-14-009-Attitudes_of_Truck_Drivers_and_Carriers_on_the_Use_of_ELDs_and_Harassment-V11-FINAL.pdf.
---------------------------------------------------------------------------

    1. Interactions which drivers consider harassment.
    2. Frequency of experiencing interactions considered harassment.
    3. Whether harassing experiences are associated with ELDs.
    4. Whether drivers who use ELDs have different experiences than 
those who use paper.
    5. Nature of attitudes toward ELDs.
    6. Whether the perspectives of carriers are substantially different 
from drivers.
    7. Reactions to FMCSA definitions of harassment and coercion.
    Of the 13 comments that FMCSA received in response to the notice of 
availability, 9 commenters did not address the report; rather, they 
expressed their opposition to the ELD mandate, the HOS rules, or both. 
Advocates and ATA agreed that the data indicates that drivers' 
experience of harassment is unlikely to be affected by ELD use. ATA 
also stated that the survey's findings that instances of harassment are 
uncommon are consistent with ATA members' experiences. However, ATA 
expressed concern that in the report FMCSA represented some scenarios 
as harassment, such as waiting time delays and driver compensation 
issues, that are, in fact, not related to harassment. ATA further noted 
that FMCSA's definition of harassment does not refer to waiting time or 
how drivers are paid, nor has Congress suggested that harassment should 
include delays caused by customers.
    The Snack Food Association addressed concerns about the driver 
harassment and coercion rulemakings. The commenter stated the results 
of FMCSA's survey report suggest ``that coercion or harassment of 
drivers is not a significant issue impacting motor carrier safety,'' 
thereby undermining the need for regulation. Should the Agency 
establish a connection between driver harassment or coercion and motor 
carrier safety in the future, the Snack Food Association recommended 
that FMCSA use enforcement tools under existing regulations to address 
the issue.
    In its comments on the Harassment Survey, OOIDA raised several 
issues concerning the ELD rulemaking, including FMCSA's responsibility 
to ensure ELD's are not used to harass drivers and the demonstrated use 
of ELDs by motor carriers to harass drivers. OOIDA cited language in 
the ``Notice'' section, on page 2 of the report, that indicates the 
report does ``not necessarily reflect the official policy of the 
USDOT,'' nor does it ``constitute a standard, specification or 
regulation,'' as suggesting that the Agency has distanced itself from 
the results of the study and ``disavows responsibility for the accuracy 
of the data in the report.'' The commenter pointed out that the report 
did not provide information on the background or qualifications of the 
contractor or the authors of the report, information about the Agency's 
direction to the contractor regarding the research, and the raw data 
from the survey. OOIDA also noted the report is not peer reviewed and 
FMCSA has not made any official statement recognizing or adopting any 
findings of the study.
    OOIDA contended the survey framework and terminology differ from 
the statutory requirements for ELDs set forth in 49 U.S.C. 31137(a) 
(2012). For example, OOIDA stated FMCSA's duty to ensure ELDs are not 
used to harass drivers does not require the finding of any particular 
level of harassment, or a comparison of the level of driver harassment 
by motor carriers using ELDs versus instances of harassment when paper 
log books are used. However, the commenter stated the survey compares 
reports of harassment between AOBRD users and paper log users. Although 
language related to the use of ELDs to monitor productivity is not 
included in the current version of the law, OOIDA wrote ``the survey 
report spends excessive time on productivity issues.'' The commenter 
also took issue with the definitions of ``harassment'' and ``coercion'' 
used in the survey, stating that the statute does not require that 
harassment result in any driver violation. Similarly, OOIDA noted the 
survey definition of coercion requires the offending conduct be based 
on the denial of business or work, but the statute does not include 
such a requirement.
    OOIDA asserted the survey methodology likely resulted in under 
reporting instances of driver harassment. One source of under

[[Page 78363]]

reporting is the result of the survey being based on self-reporting 
rather than direct observation. OOIDA noted motor carriers are not 
likely to admit to unlawful driver harassment, and drivers are unlikely 
to admit that they were a victim of harassment, particularly when it 
might implicate them in a violation.
    OOIDA also contended large motor carriers are strong supporters of 
ELDs and, therefore, more likely to report positive results with 
respect to ELD use. OOIDA argued that large motor carriers were the 
subject of the survey. According to OOIDA, although motor carriers with 
10 or fewer trucks make up 92 percent of registered motor carriers, 
they made up only 2 percent of the survey.
    OOIDA expressed concern about the quality of the survey data, 
stating that the survey only partially focused on driver harassment. 
The commenter explained that of the total of 14 questions asked of 
respondents, 7 questions have no connection to ELDs or harassment, 3 
other questions relate to harassment, but have no relationship to ELDs, 
and only 4 questions relate to motor carrier use of ELDs to harass 
drivers. However, OOIDA stated, the four relevant questions were asked 
in generic terms that suggested unlawful behavior, but they were not 
presented in the context of a real-world example that might be 
meaningful to drivers. OOIDA said comparing the data associated with 
responses to generically worded questions to data associated with 
responses to questions that used more specific language supports its 
concern.
    Although the report characterized the instances of driver 
harassment as few on a percentage basis, OOIDA believed the evidence 
shows significant use of ELDs to harass drivers in terms of raw 
numbers. Applying the report's percentages to the 2.3 million drivers 
who would be covered by the proposed ELD rulemaking, OOIDA's analysis 
showed, at least once a month, motor carriers changing the duty status 
of more than 98,000 drivers, contacting more than 206,000 drivers and 
asking why their truck was not moving, and asking 276,000 drivers to 
operate when fatigued. OOIDA asserted this data illustrates that motor 
carriers would use ELDs as a tool to ask drivers to operate longer 
hours than the driver's professional judgment will support. 
Furthermore, OOIDA believed the study documents the serious problem of 
harassment requiring a serious regulatory response.
    OOIDA contended FMCSA's proposed rules do not take into account the 
record it has made on the current use of ELDs to harass drivers. It 
stated it expects FMCSA to review its pending proposed ELD rules to 
address the record it has now made with this study.
    OOIDA stated that the record for the proposed rulemaking is 
deficient because it lacks information and analysis on the survey, and 
because the public has not had an opportunity to react to, and comment 
on, the survey. As described in the SNPRM, OOIDA noted that FMCSA 
initiated a survey of drivers and motor carriers regarding the use of 
e-logging devices to harass drivers, but a report on the results of 
that survey is not due until 2 months after the close of the comment 
period for the SNPRM. OOIDA asserted that it was this type of defect in 
a rulemaking process that caused the U.S. Court of Appeals for the DC 
Circuit to overturn the HOS rules in July 2007. OOIDA stated that to 
remedy this problem and comply with the Administrative Procedure Act, 
FMCSA must be prepared to publish the data collected by the survey and 
its analysis of that data, and welcome another round of comments so 
that interested parties may properly address the driver harassment 
issue.
3. FMCSA Response
    In accordance with the Paperwork Reduction Act of 1995, FMCSA 
announced its plan to submit an ICR to OMB and asked for comments in 
Federal Register notices on December 13, 2012 (77 FR 74267) and May 28, 
2013 (78 FR 32001). Both of these notices provided the name and 
complete contact information for the contractors who conducted the 
survey. That information is also in the study report itself, and 
available at: https://ntl.bts.gov/lib/54000/54100/54178/RRR-14-009-Attitudes_of_Truck_Drivers_and_Carriers_on_the_Use_of_ELDs_and_Harassment-V11-FINAL.pdf .
    The study objectives are set out in the report. In addition the 
December 13, 2012, and May 28, 2013, notices spelled out the objectives 
clearly and provided opportunity for comment. Two peer reviews were 
conducted--the first on the study design and methodology and the second 
on the actual findings and presentation. Further, the study methodology 
was reviewed through the OMB Paperwork Reduction Act and ICR processes.
    OOIDA contended that the survey framework and terminology and the 
definitions of ``harassment'' and ``coercion'' used in the survey 
differ from the statutory requirements. The harassment element of the 
survey was premised on the opinion of the United States Court of 
Appeals for the Seventh Circuit, addressing this matter. Owner-Operator 
Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580, 
588-89 (7th Cir. 2011). The Agency's obligation to consider coercion in 
certain rulemakings was subsequently enacted as part of MAP-21. 49 
U.S.C. 31136(a)(5). Neither term is defined by statute. Although OOIDA 
objected to survey time spent on productivity issues, those issue were 
included because the circuit court explicitly addressed productivity. 
FMCSA responded to OOIDA's concerns about the definitions of harassment 
and coercion in the May 28, 2013, notice addressing the Agency's ICR 
under the Paperwork Reduction Act (78 FR 32001).\38\ Further, Congress 
eliminated the statutory reference to productivity in enacting MAP-21 
and the Agency does not regulate productivity in this rule (other than 
to clarify that productivity measures undertaken by carriers cannot be 
used to harass drivers).
---------------------------------------------------------------------------

    \38\ OOIDA's comment on the December 13, 2012, notice is 
available in docket FMCSA-2012-0309.
---------------------------------------------------------------------------

    FMCSA acknowledges OOIDA's concern that neither drivers nor motor 
carriers may disclose harassment when it might implicate them in a 
violation. However, every reasonable step was taken in the survey to 
ensure the anonymity of drivers. They were assured that no one would be 
told of their participation or their answers. The sheet they signed 
acknowledging questionnaire topics was kept separate from the surveys. 
Participation was not mandatory, which was explained to the drivers and 
written on the sheet. Carrier personnel were included in the survey 
because they interact with drivers and because their perspective on 
harassment is relevant to FMCSA.
    OOIDA criticized the survey questions because, in their view, only 
four questions relate directly to the use of an ELD by a motor carrier 
to harass a driver. The questions were formulated to include a list of 
interactions which includes items seen as both positive and negative, 
which helped to ensure that the list was not biased. Second, the 
opinions of what is beneficial can vary. The wording of questions was 
pre-tested in a series of in-depth interviews with a random set of 
drivers. Comprehension of the items was confirmed, and drivers were 
also asked whether there was anything else they considered harassment 
that was not on the list of what had been asked.
    The report characterized instances of driver harassment as ``few'' 
when considered on a percentage basis. Based on an estimate of 2.3 
million drivers, OOIDA applied the percentages in the report to the 
affected population of

[[Page 78364]]

drivers and concluded that many drivers are affected by harassment. 
This extrapolation may or may not be accurate, since confidence 
intervals were not provided for the incidence of harassment.
    OOIDA recommended that FMCSA identify current Federal and State 
enforcement practices and rules that protect drivers from harassment 
and coercion. At least nine questions in the survey addressed this very 
issue, including question 32, which specifically asked drivers to rate 
the effectiveness of Federal regulations.
    FMCSA conducted the Harassment Survey to better understand drivers' 
and carriers' perceptions of harassment. FMCSA posted the report on the 
survey in the rulemaking's public docket and opened the rulemaking for 
public comment on the report (November 13, 2014, 79 FR 67541). The 
Agency considered the results of the survey, as well as comments on the 
report, as part of the rulemaking process. The Agency relied on both 
the survey results and the responsive comments to inform this rule.

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

1. Fourth Amendment
Comments to the 2011 NPRM
    Numerous commenters to the NPRM claimed that the proposed rule 
violates the Fourth Amendment of the United States Constitution in that 
the required use of an electronic recorder results in an unreasonable 
search and seizure and an invasion of a driver's right of privacy.
Comments to the 2014 SNPRM
    Similar Fourth Amendment arguments were submitted in response to 
the SNPRM. A majority of these commenters stated that the ELD mandate 
would be an invasion of privacy rights. Comments included statements 
such as one noting that requiring an ELD results in a sustained illegal 
search without a warrant and a search of property (including data and 
personal information) without permission or reasonable cause. One 
commenter noted that, when an agent of a government can stop your 
vehicle and download your whereabouts over the last several weeks, you 
have lost your privacy. Two commenters pointed out that the Supreme 
Court recently ruled that authorities must have a warrant to obtain 
cellular phone data. Those commenters noted that mandatory tracking and 
monitoring of CMV drivers with ELDs is the same thing and should 
require a warrant. Several commenters pointed out that the ELD mandate 
is particularly invasive because most drivers spend a significant 
amount of time in their trucks and view them more as homes. Commenters 
pointed out that 24-hour audio and visual monitoring would be 
particularly offensive to husband and wife teams who live in their 
trucks.
    Another commenter stated that there needs to be a way for 
enforcement personnel to view logs from outside of trucks, because he 
would not give enforcement personnel permission to enter his truck 
without a search warrant. Another commenter pointed out that the 
government does not drug test every citizen to ensure compliance with 
drug laws, or put GPS trackers on all vehicles on the highway, or put 
ignition interlocks on all vehicles to deter driving while intoxicated, 
or read every piece of mail or listen to every phone call, because it 
would be unconstitutional to do so; likewise, required use of an ELD is 
unconstitutional. Commenters stated that the government should not 
mandate ELDs on CMVs unless it is willing to mandate such devices for 
every form of transportation.
    OOIDA provided the most extensive analysis addressing why, in its 
view, the required use of ELDs runs afoul of the Fourth Amendment. 
OOIDA noted that the Fourth Amendment applies to both criminal and 
civil cases and proscribes unreasonable searches and seizures. OOIDA 
pointed to Federal case law to support the conclusion that prolonged 
and systematic tracking of drivers using ELDs constitutes a search 
under the Fourth Amendment. OOIDA first pointed to a Supreme Court 
case, United States v. Knotts, 460 U.S. 276 (1983), in which the Court 
held that the short term use of a simple beeper device to track the 
movement by truck of a 5-gallon drum of chloroform used in drug 
manufacturing was not a search. OOIDA noted that the Knotts case 
presents a very narrow ruling under facts that are easily distinguished 
from the proposed use of ELDs. OOIDA also cited to subsequent case law 
where Federal courts declined to apply the Knotts ruling beyond the 
narrow confines of the facts presented in that case.
    OOIDA next stated that the use of ELDs to monitor driver behavior 
is not covered by the ``pervasively regulated business'' exception to 
the warrant requirement articulated by the Supreme Court in New York v. 
Burger, 482 U.S. 691, 702-703 (1987). OOIDA explained that the Supreme 
Court concluded in Burger that where (1) the business in question is 
closely regulated, and (2) the warrantless inspections are necessary to 
further the regulatory scheme, then (3) compliance with the Fourth 
Amendment turns on whether the inspection program, in terms of the 
certainty and regularity of its application, provides a 
constitutionally adequate substitute for a warrant.
    OOIDA stated that the proposed use of ELDs does not involve the 
inspection of ``commercial premises,'' but, rather, involves the 
systematic tracking of the movement of individual drivers over extended 
periods of time by the use of sophisticated electronic devices in order 
to enforce compliance with HOS regulations. OOIDA pointed out that 
neither Burger nor any of the cases implementing the pervasively 
regulated industry exception stand for the proposition that individuals 
working in a pervasively regulated industry may be personally subjected 
to continuous surveillance by sophisticated monitoring devices over 
long periods of time without a warrant.
    OOIDA also argued that the proposed use of ELDs does not fall 
within the pervasively regulated industry exception because it does not 
satisfy the second prong of the Burger test--i.e., that the search be 
necessary to accomplish regulatory goals. In support of its argument, 
OOIDA noted that, according to FMCSA, government interests at issue in 
this rulemaking are to improve compliance with various HOS rules; to 
make the operation of CMVs safer; and to improve drivers' opportunities 
for rest. OOIDA asserted that the record presented does not support the 
conclusion that FMCSA's regulatory goals are furthered by the ELD 
mandate, arguing that drivers must manually enter changes in duty 
status into an ELD, which makes the device no better than paper logs. 
OOIDA also stated that FMCSA is completely unable to support its safety 
claims with current, reliable data.
FMCSA Response
    FMCSA disagrees that the required use of ELDs violates the Fourth 
Amendment. For more than 75 years, CMV drivers engaged in interstate 
commerce have been required to keep paper logbooks as part of their 
compliance with HOS rules. Under current regulations, the log must 
show, among other information, the driver's duty status (on duty, on-
duty driving, sleeper berth, off duty) and the general location of any 
change in duty status. Although an ELD will record driving time 
information automatically (including date, time and location for any 
transition into or out of driving time) and collect location 
information at intermediate intervals, only the methodology changes; 
the fundamental

[[Page 78365]]

data and the purpose of data collection remains unchanged. To be sure, 
an ELD collects additional data elements (such as engine on, engine 
hours), but the minimal expansion is aimed at ensuring the authenticity 
of the driver's data. While technology such as GPS can generate a 
``precise comprehensive record of a person's public movements'' that 
reflects a wealth of personal information (United States v. Jones, __ 
U.S. __, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring)), the 
rule does not provide for presentation of this level of precision to 
authorized safety officials. Rather, the Agency has deliberately 
limited the location information shared with authorized safety 
officials to avoid specific proximities, and is recorded at varying 
prescribed intervals rather than real time reporting--measures taken to 
address drivers' privacy concerns. While ELDs would generally replace 
paper logs, a change required by statute, the basic premise, that is, 
prescribing a method of policing a driver's compliance with HOS 
regulations, remains unchanged. An ELD records data only during 
operation of a CMV and drivers have no reasonable expectation of 
privacy in the data captured during that period.
    The Fourth Amendment provides, in part, that, ``[t]he right of the 
people to be secure in their persons, houses, papers, and effects, 
against unreasonable searches and seizures, shall not be violated.'' A 
Fourth Amendment search occurs when the government invades a person's 
privacy interests that society recognizes as reasonable or seeks to 
obtains information by physically intruding on a constitutionally 
protected area. United States v. Jones, __U.S. __, 132 S. Ct. 945 
(2012). Commenters argued that required use of an ELD results in an 
unconstitutional search. (No commenter argued the use of ELDs involved 
a seizure.) However, commenters arguing that a Fourth Amendment 
violation results from the required use of ELDs rely largely on case 
law addressing law enforcement's use of technology for surveillance 
purposes, thus without the subject's knowledge, or searches of property 
conducted incident to arrests. FMCSA believes these cases are 
inapposite. Given that ELDs are employed by motor carriers pursuant to 
a Federal regulatory requirement and drivers are aware of their use, 
there is no trespass or infringement of a reasonable expectation of 
privacy. Thus, there is no search for purposes of the Fourth Amendment. 
Cf. El-Nahal v. Yassky, 993 F.Supp.2d 460 (S.D.N.Y. 2014) (required use 
of technology, including GPS, under municipal regulatory scheme 
governing taxicabs did not result in a search under Fourth Amendment).
    Commenters also referenced a recent Supreme Court decision holding 
that authorities required a warrant to view data captured on a cell 
phone that they compared to an ELD. The case referenced, Riley v. 
California, __U.S. __, 134 S. Ct. 2473 (2014), involved searches of 
cell phone data incident to arrests; thus, it is clearly 
distinguishable from the required use of ELDs.
    Even if we assumed that requiring the collection of data through an 
ELD and sharing that information with authorized safety officials 
qualified as a search, the commenters fail to recognize that not every 
search is unreasonable for purposes of the Fourth Amendment. 
Notwithstanding comments to the contrary, it is well established that 
interstate commercial trucking is a pervasively regulated industry. See 
United States v. Castelo, 415 F.3d 407, 410 (5th Cir. 2005), and United 
States v. Maldonado, 356 F.3d 130, 135 (1st Cir. 2004) (applying New 
York v. Burger, 482 U.S. 691 (1987)), concluding that interstate 
commercial trucking is a pervasively regulated industry, capable of 
supporting recourse to an administrative search exception. The nature 
of its regulation justifies treating motor carriers and CMV drivers 
differently from the population at large. Although some commenters draw 
an analogy between a driver's truck and the driver's home, the Supreme 
Court has long recognized that an individual's expectation to privacy 
in a private vehicle is less than that in a home (Preston v. United 
States, 376 U.S. 364, 366-367 (1964)). The privacy interests of CMV 
drivers are clearly diminished given the nature of the commercial 
trucking industry (Int'l Bhd. of Teamsters v. Dep't of Transp., 932 
F.2d 1292, 1300 (9th Cir. 1991) (upholding DOT drug testing 
regulations)). OOIDA notes that case law addressing the pervasively 
regulated industry does not support the proposition that individuals 
working in the industry may be subject to continuous surveillance over 
long periods of time absent a warrant. However, that argument ignores 
that ELD-related monitoring is limited, tied to a driver's compliance 
with HOS rules while operating a CMV. Although the methodology is new, 
the required monitoring of hours has been in place over 75 years.\39\
---------------------------------------------------------------------------

    \39\ OOIDA also argued that the ELD requirement does not satisfy 
an exception to the warrant requirement applicable to situations 
involving special needs beyond the needs of ordinary law 
enforcement. Given the Agency's position that required use of an ELD 
is not a ``search'' for purposes of the Fourth Amendment but, even 
if it were considered a search, it is justified under the exception 
for administrative searches in a pervasively regulated industry, we 
do not address this argument.
---------------------------------------------------------------------------

    As to the concern about authorized safety officials entering the 
CMV, the technical specifications in today's rule require that an ELD 
without a printer be designed so that its display may be reasonably 
viewed by an authorized safety official outside of the vehicle. Some 
commenters' Fourth Amendment concerns reflected a misunderstanding of 
the rule. For example, at no point did the Agency propose constant 
audio and visual monitoring of drivers. In sum, the Agency believes 
that commenters' Fourth Amendment objections are not supported by the 
relevant case law as applied to today's rule.
2. Fifth Amendment
Comments to the 2011 NPRM
    Several commenters said that requiring the use of EOBRs violates 
drivers' rights under the Fifth Amendment of the United States 
Constitution.
Comments to the 2014 SNPRM
    In responding to the SNPRM, OOIDA elaborated on its Fifth Amendment 
concerns, claiming that the required use of ELDs violates drivers' 
right of due process through an imposition of ``an unconstitutional 
deprivation of a driver's freedom of movement.'' It described the SNPRM 
as ``provid[ing] for electronic monitoring combined with, effectively, 
a curfew.'' According to OOIDA, electronic monitoring is imposed 
without any determination of an individual driver's risk to public 
safety. OOIDA notes that the ``right of procedural due process requires 
an individual hearing for each person to determine whether electronic 
monitoring plus a curfew (restricting the accuser's [sic] right to 
freedom of movement) was reasonable and necessary to meet the 
government's interest.'' In support of its position, OOIDA relies on a 
series of Federal district court cases finding that automatic 
electronic monitoring and curfews imposed as a condition of bail, 
required under the Adam Walsh Child Protection and Safety Act of 2006 
\40\ for certain violations involving minors, are unconstitutional.
---------------------------------------------------------------------------

    \40\ Public Law 109-248, Title II, sec. 216, 120 Stat. 587, 617 
(July 27, 2006).

---------------------------------------------------------------------------

[[Page 78366]]

FMCSA Response
    OOIDA and other commenters stated that the ELD mandate is akin to a 
criminal penalty that unlawfully restricts a driver's freedom of 
movement. OOIDA's reliance on cases under the Adam Walsh Child 
Protection and Safety Act is misplaced. That Act requires continuous 
electronic monitoring by the government of individuals who have been 
charged, but not convicted, of certain crimes involving minors. The 
statute's very purpose is to track and restrict the individual's 
movement without any procedural review of the risk posed by the 
individual charged. In contrast, today's rule requiring ELDs, 
applicable to certain individuals electing to operate CMVs as part of a 
pervasively regulated industry, does not require constant monitoring of 
individual drivers. It simply replaces a long-standing existing process 
under which drivers have been required to manually track their time to 
demonstrate compliance with HOS rules with an electronic recording 
system. There is no automatic electronic monitoring once a driver steps 
out of the CMV.
    Although other comments did not fully explain how the Fifth 
Amendment would be violated, it appears that their concerns related to 
access to the HOS records and the right against self-incrimination. The 
commenters, however, ignored established law that provides an exception 
to the Fifth Amendment privilege against self-incrimination for records 
that are required to be kept by law such as the HOS rules. Driver HOS 
records, whether in the form of a paper log book or data captured by an 
ELD, fall under this exception. By engaging in a regulated industry, a 
driver waives any privilege related to the production of required 
records (Thomas v. Tyler, 841 F. Supp. 1119 (D. Kan. 1993)).
    In sum, commenters' Fifth Amendment arguments lack merit.

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

1. Comments to the 2011 NPRM
    The NPRM relied upon the technical specifications from the April 
2010 rule. Those specifications did not address the issue of short 
movements or movements under a certain speed and for personal use.
2. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA sought comments on how short movement, such as 
movements within a terminal, similar slow movements, and yard movements 
by other drivers, should be logged. FMCSA proposed that the ELD would 
provide the capability for a driver to indicate the beginning and end 
of two specific categories: Personal use of a CMV and yard moves, where 
the CMV may be in motion but a driver is not necessarily in a 
``driving'' duty status. If a motor carrier allowed drivers to use a 
CMV for personal conveyance or yard moves, the SNPRM proposed that a 
driver's indication of the start and end of such occurrences would 
record a dataset; but the ELD would not indicate these as separate duty 
statuses. If a driver used a CMV for personal conveyance, the ELD would 
not record that time as on-duty driving.
    FMCSA did not define a specific threshold of distance or time 
traveled for a driver to be able to use the personal conveyance or the 
yard movement provisions. Instead, authorized motor carrier safety 
personnel and authorized safety officials would use the ELD data to 
further explore and determine whether the driver appropriately used the 
indicated special category.
    ATA stated that FMCSA's modified proposal represents a reasonable 
middle ground. Carriers will have a record of all vehicle movements but 
will be able to distinguish those that should be legitimately recorded 
as driving time from those should not. Further, it will help law 
enforcement identify true driving time violations, while at the same 
time providing visibility to yard and personal conveyance movements in 
the event they are unreasonable or excessive.
Defining Yard Moves and Personal Conveyance
    Schneider recommended ``yard moves'' be defined, as did inthinc. 
Schneider noted this term, which is used in Sec.  395.28 under 
``special driving categories--other driving statuses,'' requires a 
clear definition. Without a definition, Schneider asserted, there will 
be inconsistency in the use of this status that will create issues 
during roadside enforcement. Schneider suggested defining ``yard move'' 
to mean ``an on-duty not driving activity where all driving is done 
within an area that does not allow for any public access.''
    CVSA recommended that FMCSA define the term ``personal conveyance'' 
in 49 CFR 395.2 as ``an unladen commercial motor vehicle (CMV) . . . 
used by a driver, while in an ``off-duty'' status and when the 
utilization of a motor carrier's CMV is necessary for personal 
transportation, and for a short distance.'' CVSA would consider ``short 
distance'' travel to and from the nearest lodging or restaurant 
facilities in the immediate vicinity. ``Personal conveyance'' would 
also include use of a motor carrier's CMV to travel from a driver's 
home to his/her terminal (normal work reporting location), or from a 
driver's terminal (normal work reporting location) to his/her home. In 
any case, this distance could not exceed the lesser of 25 miles or 30 
minutes. Schneider supported this definition.
Comments on the Practical Application of the Rule
    Through testing with hundreds of drivers, Schneider found that 
having driving status trigger only off of a speed threshold without an 
additional mileage threshold is detrimental to the ELD. It recommended 
that FMCSA change the appendix to subpart B of part 395, section 
4.3.1.2, paragraph (1) to read ``[o]nce the vehicle speed exceeds the 
set speed threshold OR the vehicle travels more than 1.5 miles, it is 
considered in motion.'' The commenter believed this avoids the 
potential for a tractor to move 20 miles at 2 miles per hour without 
showing any driving time. Also, in section 4.3.1.2, paragraph (2), 
Schneider suggested the vehicle should be considered stopped when the 
speed reaches 0 miles per hour AND the unit stays at 0 miles per hour 
for 5 minutes, rather than the proposed ``3 consecutive seconds.'' 
Commenter wrote that to leave the threshold at 3 seconds as the rule 
proposes will result in invalid duty status changes.
    AGC urged the Agency to include a provision allowing short vehicle 
movements within a closed facility (e.g., less than 2 miles in the 
aggregate) to be recorded as ODND time. Saucon Technologies recommended 
allowing the driver to indicate yard movement by selecting an 
appropriate comment on the device. Once yard movement is selected, the 
driver would be allowed to move the CMV within the confines of the 
yard, (minimum amount of distance should be clearly defined), before 
the status would automatically change to On-Duty Driving.
    While the driver is to indicate manually the beginning and ending 
of yard moves, XRS stated that there is no guidance on how the ELD 
should indicate a yard move is beyond appropriate limits, such as a 
warning if the ELD indicates Yard Move and the CMV exceeds the normal 
safe yard speed or distance. Geo-fencing of yards would be costly and 
time consuming and not an effective practice.
    XRS asked FMCSA to clarify the process of reviewing unassigned 
driver moves of the CMV with an ELD device

[[Page 78367]]

installed. XRS believed the language in proposed Sec.  395.32(c) seems 
to contradict the driver identification process as later described in 
Sec.  395.32(c)(1)(ii). Commenter believed that the SNPRM made the 
carrier responsible for the final determination of ownership of 
unidentified driving. XRS suggested an edit process that would give the 
driver the opportunity to reject the unidentified hours in the edit 
review. XRS asked for direction concerning which ELD records under the 
unidentified driver profile need to be presented to the driver.
    Coach USA stated that support personnel, rather than drivers, often 
make yard moves, for example, when they wash buses. The result is many 
short movements within the facility by personnel who are not drivers 
and never operate a bus outside of the facility. Under FMCA's proposed 
ELD specifications, Coach USA wrote that it appears that all of these 
yard moves by support personnel would be recorded as ``unidentified 
driving,'' and the carrier would be responsible for annotating each of 
these records to explain why they are not assigned to a driver. This 
would create a substantial administrative burden for large carriers. 
Coach USA suggested that FMCSA allow ELDs to be designed to recognize, 
using GPS, when they are being operated within the carrier's facility 
and could be set to automatically record any unassigned operation 
within the facility of a duration of less than 15 minutes as ``yard 
moves by support personnel.'' Such a system would effectively annotate 
all of the unassigned yard moves automatically. If a driver were to 
engage in yard moves, Coach USA wrote that driver could still log in 
and set the ELD to record the yard moves under his or her account. The 
Alliance for Driver Safety and Security stated that there is no 
guidance for the common situations whereby the truck leaves the 
property briefly, increases speed for a mile and returns to the yard.
    Eclipse Software Systems asked FMCSA to allow automated yard moves. 
The point at which a vehicle comes to rest for more than 5 minutes 
becomes its anchor point. As long as the vehicle does not move, say, 
outside a half-mile radius of that anchor point, these moves could be 
logged automatically as yard moves. This prevents any significant 
vehicle use, while reducing the likely number of unauthenticated 
driving events. Eclipse also stated that sometimes drivers need to move 
their trucks short distances at a truck stop. It would be fair if they 
could log this as a yard-move, rather than having to switch to personal 
use, or trigger unauthenticated driving time. Truck stops are not 
technically ``yards'' so a clarification may be warranted in the 
rulemaking.
    TRALA stated that, at the very least, there is some confusion as to 
whether all miles, including personal and yard miles, must be recorded. 
Zonar stated that an ELD must provide the means for a driver to 
indicate the beginning and end of a period when the driver uses the CMV 
for personal use or yard moves. Zonar asked how the driver will end the 
yard move if the CMV is moved in the yard and then continues out of the 
yard to a road move.
    While the SNPRM does not subscribe to a specific threshold of miles 
or time, the TCA stated that it is important that personal conveyance 
be distinguished from true driving time. TCA wrote that FMCSA should 
more clearly define the principals and parameters of personal 
conveyance so that it can avoid any misinterpretation. ATA supported 
FMCSA's proposed treatment and recording of personal conveyance and 
movements within closed facilities (i.e., yards). NAFA Fleet Management 
Association concurred that authorized use of a CMV for personal 
conveyance would not be recorded as driving, but rather off-duty time. 
Eclipse Software Systems agreed that the driver needs to indicate when 
he or she begins personal use. However, just as the proposed rules 
allow the driver to be placed in ODND after 5 minutes with no vehicle 
movement, Eclipse would like to enable the same automatic functionality 
for the end of Personal Use time. A number of individual commenters 
asked FMCSA to clarify when it is appropriate to use a CMV for personal 
conveyance. One asked that the guidance be rewritten. Another commenter 
suggested that personal conveyance could be used to disguise moves in 
the local delivery area of a terminal. Several individual commenters 
asked that allowances be made for maintenance driving, for example, 
when a CMV was being tested.
3. FMCSA Response
    FMCSA acknowledges and agrees with the commenters who stated that 
ELDs, by virtue of recording all movements, will create a visible 
consistent record of all actions taken in the CMV.
    The Agency is aware that there are concerns about personal 
conveyance and yard moves, as some commenters would like clear-cut 
limits on the mileage or time thresholds for CMV usage acceptable under 
personal conveyance and yard moves. However, the Agency does not think 
it is appropriate to include these definitions in the ELD rulemaking, 
as both clearly fall under the HOS rules and are applicable to a wide 
variety of CMV operations, not just those using ELDs. Thus, the Agency 
declines to address these matters at this time.
    Additionally, the Agency does not create any new provisions for 
either status, instead requiring only that they each be recorded. By 
making specific requirements on how these statuses must be recorded, 
but not specifying limits in mileage or time, FMCSA has purposely left 
these guidelines as open as they are today, to suit the diversity of 
operations across the country.
    FMCSA wishes to clarify that all miles driven, regardless of the 
status the driver has selected, are recorded. However, when a personal 
conveyance status is selected, the CMV's location is recorded with a 
lower level of precision, i.e., an approximate 10-mile radius. FMCSA 
believes that the recording of these miles is essential to HOS 
compliance, but balances this requirement with protections on the 
privacy of location data when drivers are not on-duty.
    If a driver selects the yard moves status and then begins regular 
driving, the driver simply switches statuses. If there is no break, and 
the driver forgets to add the new status, the driver can annotate his 
or her record to explain this, and can switch the time between the two 
statuses, as both are driving statuses.
    At the end of a personal conveyance status, FMCSA does not require 
that the ELD automatically switch to an off-duty status. Again, the 
driver can annotate his or her record to explain if the driver forgets 
to record an off-duty status at the end of the driving time.
    FMCSA understands the potential for abuse of the personal 
conveyance status, and has purposely required that all movements of the 
CMV be recorded (with a less precise location requirement). The rules 
do not allow driving statuses, including off-duty driving, to be edited 
to say they are non-driving time. These protections will directly 
address the falsification of HOS records, making it significantly 
harder. FMCSA believes that recording all the time that a CMV is in 
motion will limit significantly the amount of falsified time.
    Commenters asked about mechanics or maintenance personnel operating 
CMVs, or driving done by employees who are not listed CMV drivers. 
Today's rule allows any employee of the motor carrier that operates the 
vehicle to have a unique login. If a CMV is operated by someone without 
a CDL within a yard, the mileage could be attributed to the

[[Page 78368]]

individual. Generally, the short-haul exception for RODS would mean 
these individuals would not be expected to use an ELD and there is 
nothing in this rulemaking that would preclude the ELD system from 
having entry categories to capture occasional movements of an ELD-
equipped vehicle by individuals who are not required to prepare RODS.
    FMCSA agrees that the carrier should have the opportunity to review 
unassigned driver miles, as they are ultimately responsible for the 
records. There is no prohibition on the motor carrier reviewing these 
records. FMCSA does not believe that this will be a significant 
administrative burden, especially if all employees who have the 
potential to operate CMVs on company property or beyond are given 
unique identifiers.
    Today's rule does not allow ``anchoring'' or any location-based 
operational exemption. Drivers have the option to select a yard moves 
status in this case, and their operational history would need to be 
consistent with that status, which may look different depending on 
different types of operations.

O. Statutory Definition of ELD

1. Comments to the 2014 SNPRM
    Subsequent to the NPRM, Congress enacted MAP-21, requiring 
regulations mandating the use of ELDs by drivers of CMVs required to 
keep RODS. The statute defines an electronic logging device as a 
``device that . . . is capable of recording a driver's [HOS] and duty 
status accurately and automatically . . . and . . . meets the 
requirements established by the Secretary through regulation.'' 49 
U.S.C. 31137(f)(1).
    Focusing on the statutory definition of an ELD, OOIDA commented 
that FMCSA failed to comply with the statutory directive enacted as 
part of MAP-21 in that an ELD is not ``capable of recording a driver's 
hours of service and duty status accurately and automatically.'' 49 
U.S.C. 31137(f)(1)(A). OOIDA viewed the Agency's action as ``arbitrary, 
capricious and reason enough for any court to overturn the . . . 
rule.'' Furthermore, OOIDA emphasized that the majority of HOS 
violations result from the miscoding of non-driving duty status.
2. FMCSA Response
    The Agency acknowledges that technical specifications in this rule 
do not include ELDs that automatically record a driver's duty status, 
other than on-duty driving time. Although technology currently exists 
that could track a driver's every movement, including whether a driver 
is sleeping, this type of technology is not regularly employed in 
electronic recorders used to record drivers' HOS. FMCSA does not 
believe that Congress, in directing the Agency to require use of ELDs, 
envisioned this level of monitoring and the inherent privacy invasion 
that would occur. Indeed, given the privacy concerns raised by OOIDA 
and other commenters, we find it difficult to reconcile OOIDA's 
argument that the ELD functionality required in today's rule is not 
sufficiently broad because it does not record all of a driver's duty 
statuses.
    In order to support its claim that FMCSA willfully ignores the 
definition of an ELD set forth in MAP-21, OOIDA reads the statutory 
definition in isolation. However, a fundamental rule of statutory 
construction requires that a statutory provision be read in the context 
of the statutory scheme and that no subsection be read in isolation. 2A 
Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory 
Construction Sec.  46.5 (7th ed. 2007). As part of the MAP-21 enactment 
addressing ELDs, Congress addressed the role of supporting documents, 
requiring the Agency to ``consider how [the] regulations may . . . 
reduce or eliminate . . . supporting document[s] associated with paper-
based [RODS] if . . . data contained in an [ELD] supplants such 
documentation . . . and . . . using such data without paper-based 
records does not diminish the Secretary's ability to audit and review 
compliance with [HOS] regulations[.]'' 49 U.S.C. 31137(d)(1). 
Supporting documents serve a critical role in monitoring a driver's 
ODND time. Had Congress envisioned that the ELD could automatically 
track every duty status, it would have simply eliminated the need for 
supporting documents.
    FMCSA finds further support for its position in the applicable 
legislative history. In developing the ELD provisions incorporated into 
MAP-21, including the statutory definition, the Senate Committee on 
Commerce, Science, and Transportation considered EOBRs then in use and 
referenced the Agency's February 1, 2010, NPRM, as to the type of 
electronic recorders it envisioned. S. Rep. No. 112-238 at 4 (2012). In 
prescribing the ELD mandate, Congress was clearly aware that neither 
existing technology nor the Agency's 2010 NPRM contemplated devices 
that would ``automatically'' monitor a driver's non-driving hours.
    In response to OOIDA's comment that HOS violations result primarily 
from the miscoding of non-driving duty time, FMCSA notes that the data 
captured by ELDs, such as time, location, and mileage, combined with 
required supporting documents, will result in a more accurate record of 
a driver's duty status than paper RODS currently provide.

P. Roadside Enforcement

1. Comments to the SNPRM
    The SNPRM specified how the ELD would transmit data to authorized 
safety officials at roadside. The proposed primary method of data 
transmission was Wireless Web Services or Bluetooth 2.1 or Email (SMTP) 
or compliant printout. The proposed backup methods were USB 2.0, 
Scannable QR codes, or TransferJet. An ELD must be able to present a 
graph grid of driver's daily duty status changes either on a display 
unit or on a printout.
    Commenters believed that authorized safety officials at road side 
do not have the training or equipment to inspect vehicles with ELDs. 
FedEx stated that there is concern in the industry about uneven 
acceptance and use of the data transfer mechanisms by law enforcement. 
Particularly, there is concern that some law enforcement officers will 
feel more comfortable reviewing paper records and will thus demand 
paper from drivers. If the driver's ELD cannot print, then the officer 
may write a violation for failure to produce the required HOS 
documents. To prevent this type of uneven enforcement, FedEx suggested 
that FMCSA make clear in Sec.  395.24 that a driver can provide his or 
her records to law enforcement by printouts or by data transfer.
    The UMA stated that it is essential that enforcement personnel are 
able to evaluate the accuracy of compliance in the field. UMA has heard 
that a number of field interventions do not include reviewing 
electronic logs. UMA suggested that expedited uniform standards and 
training are critical to achieving the desired benefits of compliance.
    OOIDA conducted a survey regarding the frequency with which State 
roadside inspections passed trucks monitored with EOBRs/ELDs through 
the inspection process without checking the trucker's logs. OOIDA 
received over 2,687 responses. Of those, 69 percent (2,069) reported 
that many trucks carry a sticker stating that it has an EOBR/ELD 
installed on the truck. The survey found that many responders reported 
that a law enforcement official declined to inspect the driver's logs 
because the official saw that the truck had a sticker. Many responders 
also stated that they

[[Page 78369]]

saw a law enforcement official passing on inspecting another driver's 
logs because the truck was equipped with an EOBR/ELD. Further, numerous 
responders reported that officers did not know how to operate the 
EOBRs/ELDs. Responders to the survey reported the practice of passing 
on inspection of such trucks was evident throughout the country, with 
no particular area singled out.
    A driver said he had heard similar reports. He asked if poorly 
maintained vehicles are also being overlooked.
2. FMCSA Response
    FMCSA recognizes the potential challenges during the transition 
from the current use of AOBRDs and paper logs to ELDs. Starting on the 
mandatory compliance date of this rule, FMCSA expects standardized 
data--shared with authorized safety officials by both electronic and 
non-electronic methods--to make enforcement more efficient by 
increasing the ease of reading and interpreting data presented by ELDs. 
Today's rule makes clear that either the standard display or printout 
will be available to ensure that CMVs with ELDs can be inspected absent 
an electronic data transfer.
    To support a smooth transition period for the upcoming 
technological changes, FMCSA has initiated early planning to implement 
today's rule that will facilitate comprehensive, consistent 
enforcement. Today's rule standardizes the data transfer and display 
options on ELDs. This standardization facilitates the ability of 
roadside officers to use the ELD technology. While there will still be 
some unique functionality between systems and vendors, the underlying 
information and data will be communicated to roadside officers in a 
consistent manner across all ELDs, which will enhance roadside 
officers' ability to enforce HOS rules during roadside inspections.
    Authorized safety officials also will receive standardized 
training, which will be scenario-driven and activity-based and focused 
on reading and interpreting standardized data. The Agency believes that 
training focused on efficiently reading ELD data in a standardized 
format will improve the ability of authorized safety officials to 
conduct inspections and investigations.

Q. Out of Scope Comments

1. 2011 NPRM and 2014 SNPRM
    Commenters to both the 2011 NPRM and the SNPRM brought up a number 
of issues that are outside the scope of this rulemaking. Issues are out 
of scope if they cannot be addressed or changed in this rulemaking, 
though they may be related in some way to ELDs. For example, a number 
of comments are now out of scope because they dealt with the technical 
specifications of the (now vacated) April 2010 rule.
    Commenters asked FMCSA to address a number of issues, such as 
changes to or elimination of HOS rules--a matter outside the scope of 
this rulemaking. Commenters had suggestions about how drivers should be 
paid, including payment by the hour and overtime after 40 hours. 
Commenters asked that shippers and receivers be held accountable for 
HOS-related violations, detention times, or loading issues.
    A commenter asked FMCSA to raise the minimum insurance liability 
limits that truck drivers are required to carry, and to implement 
requirements for improved underride guards. A commenter asked FMCSA to 
impose speed limiters; another opposed them. A commenter also asked 
FMCSA to concentrate on maintenance issues.
    Commenters recommended that FMCSA focus on all motorists, not just 
on commercial vehicles. A motor carrier wrote that whenever there is a 
crash involving a commercial vehicle, it goes on the history of that 
driver and company even if they were not at fault. The commenter asked 
why we are not getting this needed change accomplished first and then 
looking at the fatality numbers.
    Commenters wrote that this rulemaking fails to address the parking 
shortage, and the problems drivers face when they cannot find a safe 
place to park at the end of their shift, when they are delayed, or when 
they run out of hours and are forced off property by a customer. 
Numerous commenters emphasized that adequate training is essential for 
drivers, or criticized existing training. Some commenters suggested 
that FMCSA go after inadequate driving schools or chameleon carriers. A 
commenter suggested that drivers have a panic button in the sleeper 
berth area to allow them to call law enforcement for help.
2. FMCSA Response
    FMCSA is aware of the ongoing concerns, as reflected in these 
comments, concerning drivers' HOS, including parking issues, detention 
time, and hourly versus mileage payments. However, many of the issues 
raised are either outside the Agency's authority or outside the scope 
of today's rule.

XIII. Section-By-Section Analysis

    This rulemaking establishes technical specifications for ELDs and 
sets forth requirements pertaining to the use of ELDs, the maintenance 
of supporting documents and the potential for ELD-related harassment of 
drivers.
    Any substantive changes from the SNPRM are noted. The SNPRM tied 
compliance to the effective date of the final rule. However, in order 
to reflect the requirements of MAP-21, this rule ties compliance to the 
publication date.

A. Part 385--Safety Fitness Procedures

    In Section VII of appendix B of part 385, the list of acute and 
critical regulations is modified to reflect changes in part 395 (HOS). 
The Agency removes the reference to a violation of Sec.  390.36(b)(1) 
that appeared in the SNPRM to make this rule consistent with the 
treatment of violations under the recent coercion rulemaking (80 FR 
74695, November 30, 2015). This deletion does not affect the treatment 
under appendix B of part 385 of any underlying violation in a carrier's 
safety fitness determination.

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

1. Section 386.1 (Scope of the Rules in This Part)
    FMCSA modifies this section to reflect the handling of substantial 
violations and harassment violations by the appropriate Division 
Administrator, rather than the Division Administrator for the State 
where the incident occurs as was proposed. Paragraph (c) of this 
section was changed from the language of the SNPRM to make today's rule 
consistent with the recently published coercion rule (80 FR 74695, 
November 30, 2015), including the revision to and changes in 
codification in Sec.  386.12.
Section 386.12 (Complaints)
    All of Sec.  386.12, including the heading, is changed and 
recodified to reflect the recently published coercion rulemaking (80 FR 
74695, November 30, 2015). What was proposed in Sec.  386.12 is now 
included in paragraph (a) of that section, ``complaint of substantial 
violation.'' FMCSA changes this paragraph to provide that substantial 
violation complaints must be filed through the National Consumer 
Complaint Database and will be referred to the Division Administrator 
who the Agency believes will be best able to handle the complaint. 
(Because any person may file a complaint alleging a substantial 
violation, references to a driver's State of employment found in Sec.  
386.12(b) and (c) are not included in this paragraph.) The time for 
filing a

[[Page 78370]]

complaint is extended from 60 to 90 days and the procedures are 
modified to closely track the procedures governing complaints under the 
coercion rule (80 FR 74695, November 30, 2015).
    In a new paragraph (b), ``complaint of harassment,'' FMCSA adds the 
material that was proposed in Sec.  386.12a. Harassment complaints are 
to be filed through the National Consumer Complaint Database or with 
the Division Administrator for the State where the driver is employed. 
Paragraph (b) identifies the information that a driver needs to include 
in a written complaint alleging harassment by a motor carrier, as well 
as procedures that the appropriate Division Administrator follows in 
handling complaints. The language in this paragraph was changed from 
the SNPRM to reflect the language in paragraph (c) of this section, 
adopted as part of the coercion rulemaking (80 FR 74695, November 30, 
2015).
    Paragraph (c), complaint of coercion, of this section was 
originally published on November 30, 2015 as part of the coercion 
rulemaking (80 FR 74695). Only changes are stylistic.
3. Section 386.12a
    Proposed Sec.  386.12a is not included in today's rule. Instead, 
the procedures proposed in Sec.  386.12a are moved to Sec.  386.12(b).
4. Section 386.30
    Today's rule adds Sec.  386.30--a provision that appeared as Sec.  
395.7 in the SNPRM. The only changes are stylistic. This section adds 
procedural provisions that apply during any proceeding involving the 
enforcement of 49 CFR part 395. Specifically, it provides that a motor 
carrier is liable for an employee acting or failing to act in a manner 
that violates part 395 as long as the action is within the course of 
the motor carrier's operations. The burden of proof is on the motor 
carrier to show that the employee acted outside the scope of the motor 
carrier's operation. Finally, knowledge of any document in the motor 
carrier's possession, or available to the motor carrier, that could be 
used to ensure compliance with part 395 is imputed to the motor 
carrier.
5. Appendix B to Part 386 (Penalty Schedule: Violations and Monetary 
Penalties)
    FMCSA adds new paragraph (a)(7) granting the Agency discretion to 
consider the gravity of the driver harassment violation in the 
imposition of penalties up to the maximum permitted by law. The 
addition of this paragraph reflects the Agency's intention to 
appropriately address findings of driver harassment. In assessing the 
amount of a civil penalty, however, the Agency is required by statute 
to take certain factors into account. See 5 U.S.C. 521(b)(2)(D). Thus, 
the Agency will apply this provision through its Uniform Fine 
Assessment software to assure civil penalties are assessed in 
individual cases in a fair manner while addressing the gravity of 
harassment violations.

C. Part 390--Federal Motor Carrier Safety Regulations; General

    FMCSA adds a new Sec.  390.36 to define harassment by a motor 
carrier toward a driver employed by the motor carrier and to prohibit 
motor carriers from engaging in the harassment of drivers. This section 
also identifies the process under which a driver who believes he or she 
was subjected to harassment by a motor carrier may file a written 
complaint.

D. Part 395--Hours of Service of Drivers

    Today's rule divides part 395 into two subparts. Subpart A, 
General, includes Sec. Sec.  395.1 through 395.19. Subpart B, ELDs, 
addresses the design and use of ELDs and consists of Sec. Sec.  395.20 
through 395.38. FMCSA provides detailed performance specifications 
applicable to ELDs in the appendix to subpart B.

Subpart A--General

1. Section 395.1 (Scope of Rules in This Part)
    FMCSA amends Sec.  395.1(e) to reflect that drivers who qualify to 
use the short-haul exceptions under 49 CFR 395.1(e)(1) or (2) are not 
required to keep supporting documents under Sec.  395.11.
2. Section 395.2 (Definitions)
    In this section, FMCSA adds three new definitions. ``ELD record'' 
is added to mean a record of duty status, recorded on an ELD, that 
reflects the data elements that must be captured by an ELD under the 
technical specifications in the Appendix to subpart B of part 395. 
``Electronic Logging Device (ELD)'' is added to mean a device or 
technology that automatically records driving time and facilitates the 
accurate recording of HOS and that meets the requirements of subpart B 
of part 395. FMCSA also adds a definition of ``supporting document'' 
similar to the definition in the HMTAA. Substantive provisions 
pertaining to supporting documents are in Sec.  395.11.
3. Section 395.7 (Enforcement Proceedings)
    Section 395.7, as proposed in the SNPRM, is included in today's 
rule as Sec.  386.30. The only changes are stylistic.
4. Section 395.8 (Driver's Record of Duty Status)
    This section addresses general requirements for HOS RODS. Subject 
to limited exceptions, it requires motor carriers to install and use 
ELDs that comply with the technical specifications no later than 2 
years following the date of publication of today's rule.
    Subject to limited exceptions, under paragraph (a)(1), motor 
carriers must require drivers that keep RODS to use ELDs. The rule 
allows a motor carrier that installs, and requires its drivers to use, 
AOBRDs before the compliance date of this rule to continue to use 
AOBRDs until December 16, 2019 thereby providing a 2-year grandfather 
period for devices installed prior to the compliance date.
    Paragraph (a)(1)(iii) reflects a change from the SNPRM. The SNPRM 
would have allowed the use of paper RODS only by drivers requiring RODS 
not more than 8 days in a 30-day period. Today's rule allows drivers in 
a driveway-towaway operation--when the vehicle being driven is part of 
the shipment being delivered--as well as drivers of vehicles that were 
manufactured before model year 2000 to also use paper RODS.
    Paragraph (a)(1)(iv) provides that, until the compliance date of 
this rule, motor carriers must require their drivers to keep RODS 
manually or by using either an ELD or an AOBRD.
    Paragraph (a)(2)(ii) is also changed from the SNPRM. The SNPRM 
would have required drivers to use the recording method required by 
their motor carrier and to submit their RODS to their carrier within 8 
days. Today's rule requires drivers to submit their RODS within 13 
days.
    Proposed paragraph (a)(3) is eliminated because operating a CMV 
while the ELD is malfunctioning is addressed in Sec.  395.34(d).
    Paragraph (e) prohibits a motor carrier or driver from making a 
false report in connection with duty status and from tampering with, or 
allowing another person to tamper with, an AOBRD or ELD to prevent it 
from recording or retaining accurate data.
    Paragraph (i) (Filing driver's record of duty status) is eliminated 
because it duplicates the requirements of Sec.  395.8(a)(2)(ii). 
Paragraph (k)(1) continues to require a motor carrier to retain RODS 
and supporting documents for a 6-month period.

[[Page 78371]]

5. Section 395.11 (New Section--Supporting Documents)
    The detailed requirements concerning supporting documents are set 
forth in Sec.  395.11. Paragraph (a) provides that the new supporting 
document provisions take effect 2 years after the publication date of 
the rule. Until this date, the June 10, 2010 policy on the retention of 
supporting documents and the use of electronic mobile communication/
tracking technology remains in place (75 FR 32984).
    Paragraph (b) addresses the drivers' obligation to submit 
supporting documents to their employers. While the SNPRM would have 
required the driver to submit supporting documents within 8 days, 
today's rule specifies 13 days. (The term ``employer'' is defined in 
Sec.  390.5.) The phrase ``required to be retained under [Sec.  
395.11]'' is eliminated in today's rule to avoid the erroneous 
implication that the driver, rather than the motor carrier, determines 
what records are retained.
    Paragraph (c) describes five categories of supporting documents 
generated or received in the normal course of business. These 
categories include: (1) Bills of lading, itineraries, schedules, or 
equivalent documents indicating the origin and destination of a trip; 
(2) dispatch records, trip records, or equivalent documents; (3) 
expense receipts related to ODND time; (4) electronic mobile 
communication records reflecting communications transmitted through an 
FMS (e.g., text messages, email messages, instant messages, or pre-
assigned coded messages); and (5) payroll records, settlement sheets, 
or equivalent documents reflecting driver payments.
    Paragraph (c)(2) identifies the four data elements that a document 
must contain in order to qualify as a supporting document: Driver 
identification, date, vehicle location and time. The SNPRM provided 
that, for a driver who had fewer than 10 supporting documents 
containing those four data elements, documents containing the first 
three specified elements (i.e., all elements except time) would be 
considered supporting documents for purposes of paragraph (d) of this 
section (discussed below). In this rule, FMCSA reduces the number of 
supporting documents to eight.
    Paragraph (d) generally requires a motor carrier to retain a 
maximum of eight documents for an individual driver's 24-hour duty day. 
While the SNPRM proposed a 10-document cap, today's rule reduces that 
number to eight. Paragraph (d)(2) describes how FMCSA will treat 
electronic mobile communication records in applying the eight-document 
cap. Under paragraph (d)(3), if a motor carrier has more than eight 
documents for a driver's 24-hour period, the motor carrier needs to 
retain the documents containing the earliest and latest time 
indications. Under paragraph (d)(4), drivers who continue to use paper 
RODS must retain all toll receipts, irrespective of the eight-document 
requirement. The Agency interprets the reference to ``toll receipts'' 
to include electronic records.
    Paragraph (e) requires a motor carrier to retain supporting 
documents in a way that allows the documents to be matched to a 
driver's RODS.
    Paragraph (f) prohibits motor carriers and drivers from obscuring, 
defacing, destroying, mutilating, or altering information in a 
supporting document.
    Paragraph (g) requires that, during a roadside inspection, drivers 
must make available to an authorized official, any supporting document 
in the driver's possession. In today's rule, a paragraph heading is 
added for clarification.
    Paragraph (h) describes the process for submitting requests for 
self-compliance systems that FMCSA may authorize on a case-by-case 
basis, as required by HMTAA.
6. Section 395.15 (Automatic On-Board Recording Devices)
    Paragraph (a) describes how FMCSA will sunset the authority to use 
AOBRDs 2 years after the rule's publication date. However, those motor 
carriers that have installed AOBRDs prior to the sunset date are 
allowed to continue using AOBRDs for an additional 2 years (i.e., up to 
4 years after the publication date of the final rule).

Subpart B--Electronic Logging Devices (ELDS)

7. Section 395.20 (New Section--ELD Applicability and Scope)
    Section 395.20 paragraph (a) states that this subpart applies to 
ELDs used to record a driver's HOS.
    Paragraph (b) describes the applicability of technical 
specifications required for ELDs under subpart B, effective 2 years 
after the rule's publication date.
    In order to avoid confusion, proposed paragraph (c) was removed to 
eliminate language referencing support systems.
8. Section 395.22 (New Section--Motor Carrier Responsibilities--In 
General)
    Section 395.22 outlines motor carriers' responsibilities related to 
the use of ELDs. Paragraph (a) requires motor carriers to use only ELDs 
registered and certified with FMCSA and listed on the Agency's Web 
site: www.fmcsa.dot.gov/devices.
    Paragraph (b) outlines the responsibilities of a motor carrier and 
its support personnel authorized to access ELD records.
    Paragraph (c) lists the required driver identification data.
    Paragraph (d) details the identification data for motor carrier 
support personnel.
    Paragraph (e) states that a motor carrier must require its drivers 
and support personnel to use the proper log-in process for an ELD.
    Paragraph (f) requires a motor carrier to calibrate and maintain 
ELDs.
    Paragraph (g) contains the requirements for mounting portable ELDs.
    Paragraph (h) lists the information a motor carrier is required to 
provide to its drivers who are using ELDs in their CMVs.
    Paragraph (i) requires a motor carrier to retain a driver's ELD 
records so as to protect the driver's privacy in a manner consistent 
with sound business practices. This paragraph also requires that the 
motor carrier retain a separate back-up copy of ELD records for six 
months.
    Paragraph (j) requires a motor carrier to provide 6 months of ELD 
records electronically to authorized safety officials when requested 
during an enforcement activity or, if the motor carrier has multiple 
offices or terminals, within the time permitted under Sec.  390.29.
9. Section 395.24 (New Section--Driver Responsibilities--In General)
    Paragraph (a) requires a driver to provide data as prompted by the 
ELD and as required by the motor carrier.
    Paragraph (b) lists the duty statuses that a driver may choose 
from, corresponding to the duty status categories currently listed on 
paper RODS.
    Paragraph (c) lists other data that a driver may sometimes need to 
enter manually into the ELD, such as annotations, file comments, 
verification, CMV number, trailer numbers, and shipping numbers, as 
applicable.
    Paragraph (d) requires a driver to produce and transfer the 
driver's HOS data to an authorized safety official on request.
10. Section 395.26 (New Section--ELD Data Automatically Recorded)
    Paragraph (a) notes that the data elements listed in this section 
are in accordance with the requirements of the appendix to subpart B of 
part 395.
    Paragraph (b) lists the data elements recorded when an ELD logs an 
event.

[[Page 78372]]

    Paragraph (c) describes requirements for data recording during a 
change of duty status event.
    Paragraph (d) describes what an ELD records during an intermediate 
recording when the CMV is in motion and there has been no change of 
duty status entered into the ELD and no other intermediate status 
recorded in an hour.
    Paragraph (e) describes what an ELD records when a driver selects a 
special driving category, i.e., personal use or yard moves.
    Paragraph (f) describes what an ELD records when a driver certifies 
a daily log.
    Paragraph (g) describes what an ELD records when there is a log in/
log off event.
    Paragraph (h) describes what an ELD records when the CMV's engine 
powers on or off.
    Paragraph (i) describes an ELD's recording of location information 
during authorized personal use of a CMV.
    Paragraph (j) describes what an ELD records when it detects a 
malfunction or data diagnostic event.
11. Section 395.28 (New Section--Special Driving Categories; Other 
Driving Statuses)
    Paragraph (a) allows motor carriers to configure an ELD to 
authorize a driver to indicate that he or she is operating a CMV under 
one of the special driving categories identified in this paragraph. 
This paragraph also lists a driver's responsibilities related to ELD 
use when operating under one of these special driving categories.
    Paragraph (b) allows a motor carrier to configure an ELD to show 
that a driver is exempt from ELD use.
    Paragraph (c) requires a driver excepted under Sec.  390.3(f) or 
Sec.  395.1 to annotate the ELD record to explain why the driver is 
excepted.
12. Section 395.30 (New Section--ELD Record Submissions, Edits, 
Annotations and Data Retention)
    Paragraph (a) states that both drivers and motor carriers are 
responsible for ensuring that drivers' ELD records are accurate.
    Paragraph (b) requires a driver to review and certify that the 
driver's ELD records are accurate and explains how to use the 
certification function of the ELD.
    Paragraph (c) allows a driver, within the edit limits of an ELD, to 
edit, add missing information, and annotate ELD recorded events. This 
paragraph states that a driver must use an ELD and follow the ELD's 
prompts when making such changes or annotations. It also explains how 
mistakes involving team drivers may be corrected.
    Paragraph (d) permits a motor carrier to request edits to a 
driver's RODS in order to ensure accuracy. It explains the process by 
which a driver implements motor carrier-proposed edits, requiring that 
a driver must confirm or reject any edits made to his or her record by 
anyone other than the driver.
    Paragraph (e) prohibits a motor carrier from coercing a driver to 
falsely certify the driver's data entries or RODS. FMCSA defined the 
term ``coerce'' in a separate rulemaking (80 FR 74695, November 30, 
2015).
    Paragraph (f) prohibits a motor carrier from altering or deleting 
original ELD records concerning the driver's HOS, the source data used 
to provide that information or related driver HOS information contained 
in any ELD. Language referencing support systems proposed in the SNPRM 
was removed to avoid confusion.
13. Section 395.32 (New Section--Non-Authenticated Driver Logs)
    This section describes how the ``non-authenticated'' operation of a 
CMV is accounted for in the ELD record.
    Paragraph (a) describes how the ELD tracks non-authenticated use of 
a CMV as soon as the vehicle is in motion.
    Paragraph (b) requires a driver to review any unassigned driving 
time listed under the account upon login to the ELD. If the unassigned 
records are not attributable to the driver, the driver must indicate 
that fact in the ELD record. If driving time logged under this 
unassigned account belongs to the driver, the driver must add that 
driving time to his or her own record.
    Paragraph (c) lists the requirements for a motor carrier to explain 
or assign ``non-authenticated driver log'' time. The motor carrier must 
retain unidentified driving records for at least six months as a part 
of its HOS ELD records and make them available to authorized safety 
officials.
14. Section 395.34 (New Section--ELD Malfunction and Data Diagnostic 
Events)
    Paragraph (a) sets forth a driver's recordkeeping requirements in 
the event of an ELD malfunction. It specifies that the driver would 
need to provide written notice to the motor carrier of an ELD 
malfunction within 24 hours.
    Paragraph (b) explains what a driver is required to do if the 
driver's HOS records are inspected during a malfunction.
    Paragraph (c) requires a driver to follow the ELD provider's and 
the motor carrier's recommendations to resolve data inconsistencies 
that generate an ELD data diagnostic event.
    Paragraph (d) requires that a motor carrier take corrective action 
within 8 days of discovering the malfunction of an ELD, or notification 
of the malfunction by the driver, whichever comes first. If a motor 
carrier needs additional time to repair, replace, or service one or 
more ELDs, paragraph (d) also provides a process for requesting an 
extension of time from FMCSA.
15. Section 395.36 (New Section--Driver Access to Records)
    Paragraph (a) makes clear that drivers must have access to their 
own ELD records. A motor carrier may not require that its drivers 
access their own ELD records by requesting them through the motor 
carrier if those records are otherwise available on or retrievable 
through the ELD operated by the driver.
    Paragraph (b) requires a motor carrier to provide a driver with 
access to the driver's own ELD records, upon request, if they are 
unavailable through the ELD.
16. Section 395.38 (New Section--Incorporation by Reference)
    Section 395.38 describes materials that are incorporated by 
reference (IBR) in subpart B of part 395 and addresses where the 
materials are available. Whenever FMCSA, or any Federal agency, wants 
to refer in its rules to materials or standards published elsewhere, it 
needs approval from the Director of the Office of the Federal Register. 
FMCSA describes the process it needs to follow in this section.
    Industry best practices rely upon these standards. FMCSA updated 
the standards proposed in the SNPRM in order to make the most recent, 
easily available versions of the applicable standards part of the final 
rule. None of these is a major version change; most are revisions to 
the standards that should not be complicated or onerous for those ELD 
providers already working in this field. Additionally, these standards 
are technical in nature, and focus on the function of the device. The 
only parties who will need to purchase these standards are parties who 
wish to become ELD providers.
    The following provides a brief description of each standard. All 
the standards are available for low cost or free, as noted below. In 
order to provide better access, FMCSA includes Web addresses where the 
user can find more information about the standard or download it. 
Complete contact information is included as part of Sec.  395.38. These 
standards are also available for review at FMCSA headquarters.
    Paragraph (b)(1), American National Standard Institute `s (ANSI) 
``4-1986

[[Page 78373]]

(R2012) Information Systems--Coded Character Sets--7-Bit American 
National Standard Code for Information Interchange (7-Bit ASCII),'' 
describes a character set code to convert digits to alphabet, number, 
and symbol characters used in computing. This code set is used to 
create ELD files. IBR in section 4.8.2.1, Appendix to subpart B of part 
395. As of October 20, 2015, this standard was available for $60, and 
information about it can be found at https://webstore.ansi.org/RecordDetail.aspx?sku=INCITS+4-1986%5bR2012%5d.
    Paragraph (b)(2), ANSI's ``ANSI INCITS 446-2008 (R2013), American 
National Standard for Information Technology--Identifying Attributes 
for Named Physical and Cultural Geographic Features (Except Roads and 
Highways) of the United States, Its Territories, Outlying Areas, and 
Freely Associated Areas and the Waters of the Same to the Limit of the 
Twelve-Mile Statutory Zone (10/28/2008),'' covers geographic names and 
locations stored in the U.S. Geological Survey (USGS) Geographic Names 
Information System (GNIS). This information is required to populate the 
location database of compliant ELDs. IBR in section 4.4.2, Appendix to 
subpart B of part 395. As of October 20, 2015, this standard was 
available for $60, and information about it can be found at https://webstore.ansi.org/RecordDetail.aspx?sku=INCITS+446-2008%5bR2013%5d.
    Paragraph (c)(1) describes ``Specification of the Bluetooth System: 
Wireless Connections Made Easy,'' the Bluetooth Special Interest 
Group's standard for short range wireless network communication. Under 
today's rule, the standard could be used for a transfer of ELD data. 
IBR in sections 4.9.1, 4.9.2, 4.10.1.4, 4.10.2, Appendix to subpart B 
of 395. As of October 20, 2015, this standard was available at no cost, 
and information about it can be found at https://www.bluetooth.org/Technical/Specifications/adopted.htm.
    Paragraph (d)(1), Institute of Electric and Electronic Engineers' 
(IEEE) ``Standard for Authentication in Host Attachments of Transient 
Storage Devices,'' describes a trust and authentication protocol for 
USB 2.0 flash drives and other storage devices that can be used for a 
possible transfer of ELD data according to the specifications of this 
rule. IBR in section 4.10.1.3, Appendix to subpart B of part 395. As of 
October 20, 2015, this standard was available for $185, and information 
about it can be found at https://standards.ieee.org/findstds/standard/1667-2009.html.
    Paragraph (e)(1) contains the standard for ``Use of the Advanced 
Encryption Standard (AES) Encryption Algorithm in Cryptographic Message 
Syntax (CMS)'' This standard relates to wireless data transfer through 
email. IBR in section 4.10.1.2, Appendix to subpart B of 395. As of 
October 20, 2015, this standard was available at no cost, and can be 
found at https://tools.ietf.org/html/rfc3565.
    Paragraph (e)(2) references ``Use of the RSASSA-PSS Signature 
Algorithm in Cryptographic Message Syntax (CMS).'' This standard 
relates to wireless data transfer through email. IBR in section 
4.10.1.2, Appendix to subpart B of 395 of title 49 of the CFR. As of 
October 20, 2015, this standard was available at no cost, and can be 
found at https://tools.ietf.org/html/rfc4056.
    Paragraph (e)(3), IETF's ``Simple Mail Transfer Protocol,'' is an 
industry standard for a computer networking protocol to send and 
receive electronic mail (email) containing ELD data. IBR in section 
4.10.1.2, Appendix to subpart B of part 395. As of October 20, 2015, 
this standard was available at no cost, and can be found at https://www.rfc-editor.org/rfc/rfc5321.txt.
    Paragraph (e)(4) contains ``Secure/Multipurpose Internet Mail 
Extensions (S/MIME).'' This standard relates to wireless data transfer 
through email. IBR in section 4.10.1.2, Appendix to subpart B of 395. 
As of October 20, 2015, this standard was available at no cost, and can 
be found at https://tools.ietf.org/html/rfc5751.
    Paragraph (e)(5), IETF's ``Internet Message Format,'' describes an 
industry standard for the formatting of email, (i.e. address, header 
information, text, and attachments), including those emails containing 
ELD data. IBR in section 4.10.1.2, Appendix to subpart B of part 395. 
As of October 20, 2015, this standard was available at no cost, and can 
be found at https://tools.ietf.org/html/rfc5322.
    Paragraphs (e)(6), IETF's RFC 7230, Hypertext Transfer Protocol--
HTTP/1.1 Message Syntax and Routing, and (e)(7), IETF RFC 7231, 
Hypertext Transfer Protocol--HTTP/1.1 Semantics and Content, both 
describe a computer networking protocol that is the foundation for the 
World Wide Web. These standards will be used if ELD files are 
transferred using the Web. They are both incorporated by reference in 
section 4.10.1.1, Appendix to subpart B of part 395. As of October 20, 
2015, standard RFC 7230 was available at no cost, and can be found at 
https://tools.ietf.org/html/rfc7230. As of October 20, 2015, standard 
RFC 7231 was available at no cost, and can be found at https://tools.ietf.org/html/rfc7231.
    Paragraph (e)(8) incorporates IETF's ``The Transport Layer Security 
(TLS) Protocol Version 1.2,'', a security mechanism standard for 
information that is being transmitted over a network. This standard is 
best known for use with Web sites that start with ``https://'' rather 
than just ``https://''. This standard will be used to secure data when 
ELD files are transferred using the Web. IBR in section 4.10.1.1, 
Appendix to subpart B of part 395. As of October 20, 2015, this 
standard was available at no cost and it can be found at https://tools.ietf.org/html/rfc5246.
    Paragraph (f)(1),''Federal Information Processing Standards (FIPS) 
Publication 197, November 26, 2001, Announcing the ADVANCED ENCRYPTION 
STANDARD (AES),'' describes the National Institute of Standards and 
Technology's (NIST) Federal government standard for encrypting data in 
order to protect its confidentiality and integrity. This standard may 
be used to encrypt emailed data derived from the ELD. IBR in sections 
4.10.1.2 and 4.10.1.3, Appendix to subpart B of 395. As of October 20, 
2015, this standard is available at no cost at https://csrc.nist.gov/publications/fips/fips197/fips-197.pdf.
    Paragraph (f)(2) describes ``Special Publication (SP) 800-32, 
February 26, 2001, Introduction to Public Key Technology and the 
Federal PKI Infrastructure,'' NIST's guidance document for securely 
exchanging sensitive information, including some ELD data. IBR in 
section 4.10.1.2, Appendix to subpart B of 395. As of October 20, 2015, 
this standard is available at no cost at https://csrc.nist.gov/publications/nistpubs/800-32/sp800-32.pdf.
    Paragraph (g)(1) contains Universal Serial Bus Implementers Forum's 
(USBIF) ``Universal Serial Bus Specification'' or USB 2.0, which is an 
industry standard for communication between two computing devices. The 
USB 2.0 allows a driver to transfer the record of duty status data to a 
safety official using a small device commonly called a ``flash drive.'' 
IBR in sections 4.9.1, 4.9.2, 4.10.1.3, and 4.10.2, Appendix to subpart 
B of part 395. As of October 20, 2015, this standard was available at 
no cost and it can be found at https://www.usb.org/developers/docs/usb20_docs/.
    Paragraph (h)(1) describes ``Simple Object Access Protocol (SOAP) 
Version 1.2 Part 1: Messaging Framework (Second Edition), W3C 
Recommendation 27 April 2007,''

[[Page 78374]]

W3C's specification for a computer networking protocol for Web 
services. This protocol will be used if ELD files are transferred using 
the Web. IBR in section 4.10.1.1, Appendix to subpart B of 395. As of 
October 20, 2015, this standard was available at no cost, and can be 
found at https://www.w3.org/TR/soap12-part1/.
17. Appendix A to Subpart B of Part 395 (New Section)
    Appendix A to subpart B of part 395 contains the technical 
requirements for ELDs. It consists of seven sections.
    Section 1 outlines the purpose and content of the rest of the 
appendix. Section 1 was recodified by adding letters and numbers to 
each paragraph for ease of reference.
    Section 2 lists the abbreviations used throughout this appendix. 
FMCSA removes the abbreviation ``QR'' for ``quick response'' because 
that technology is not included in today's rule.
    Section 3 provides definitions for terms and notations used in this 
appendix. In the today's rule, FMCSA codified section 3 throughout, 
adding letters and numbers to each paragraph as necessary for ease of 
reference. FMCSA clarifies section 3.1.4 by adding a specific reference 
to the display or printout required in section 4.I
    Section 4 lists all the functional requirements for an ELD. This 
section provides a detailed description of the technical specifications 
for an ELD, including security requirements, internal engine 
synchronization, ELD inputs, manual entries of data, and drivers' use 
of multiple vehicles. FMCSA provides descriptions specific enough to 
allow the ELD provider to determine whether an ELD would meet the 
requirements for certification.
    FMCSA made numerous changes to proposed section 4, which reflect 
the simplified data transfer requirements in today's rule. FMCSA 
recodified section 4 throughout, due to changes in the text and for 
ease of reference. FMCSA has eliminated language referencing support 
systems that was proposed in Sec.  395.20(c) to avoid confusion. 
Throughout section 4, FMCSA made conforming changes.
    In section 4.2, FMCSA adds a specific reference to the information 
that the ELD must receive automatically, and clarifies that the use of 
non-ECM data is only acceptable when there is no other option. In 
section 4.5, FMCSA changed the references to section 7 to reflect the 
codification changes in section 7. In section 4.6.1.4, FMCSA changed 
the phrase ``within the past 5 miles of the CMV's movement'' to read 
``within 5 miles of the CMV's movement'' to clarify how the regulation 
applies FMCSA revised proposed section 4.6.3.1 to remove the last two 
paragraphs because they are redundant. In section 4.7.2(b), FMCSA 
changed the reference to ``hours-of-service records'' to ``ELD 
records,'' to clarify which records are meant.
    FMCSA revises proposed section 4.8.1 to describe the compliant 
report that the ELD must be able to generate either as a printout or on 
a display. In addition, FMCSA corrected the data elements in sections 
4.8.2.1.5 and 4.8.2.1.9.
    Proposed section 4.9.1 is revised to remove the references to the 
proposed roadside data transfer capabilities and add new methods for 
meeting roadside electronic data reporting requirements. The new 
methods require transferring electronic data using either Option 1, 
wireless Web services and email, or Option 2, USB 2.0 and Bluetooth. In 
section 4.9.2(c), FMCSA replaces the term ``ELD data file or files'' 
with the term ``ELD records.'' In paragraph (c), FMCSA also adds 
Bluetooth to the transfer mechanisms already specified.
    Proposed section 4.10 is reorganized. FMCSA revises proposed 
section 4.10.1 to remove the word ``Wireless'' in the heading, and add 
a reference to a ``data transfer mechanism'' to reflect the new methods 
of transferring electronic data. Proposed section 4.10.1.2, which 
described wireless data transfer via Bluetooth, is moved to new section 
4.10.1.4. Proposed section 4.10.1.3, which described wireless data 
transfer through email, is moved to 4.10.1.2. In addition, in new 
section 4.10.1.2(b), FMCSA adds three new encryption standards: The 
Secure/Multipurpose Internet Mail Extensions as described in RFC 5751, 
the RSA algorithm as described in RFC 4056, and RFC 3565. Proposed 
section 4.10.2.1, which covers USB 2.0, becomes new section 4.10.1.3, 
but the rest of proposed section 4.10.2 is removed as part of the 
reorganization. Proposed sections 4.10.2.2, which pertained to 
scannable QR codes, and 4.10.2.3, which described TransferJet, are both 
removed because those technologies are not included in today's rule. 
The rest of 4.10.2, as appropriate, is moved to section 4.8.1. Proposed 
section 4.10.3 becomes section 4.10.2. FMCSA adds a new paragraph to 
section 4.10.2(d) to describe Bluetooth.
    Section 5 describes the ELD certification and registration process. 
FMCSA numbered the paragraphs in Section 5 for ease of reference and 
made related conforming changes. In section 5.2.2, the phrase 
``institute an'' is corrected to read ``identify its.'' FMCSA adds 
section 5.4 to the appendix, which describes the process that FMCSA 
uses to remove an ELD model or version from the list of ELDs on the 
FMCSA Web site. The administrative review process available to an ELD 
provider is described in section 5.4.5. The administrative review 
process consists of a two steps. First, an ELD provider will have an 
opportunity to either cure any deficiency that the Agency identified or 
explain to the Agency why, in the ELD provider's view, the Agency's 
determination is wrong. If the ELD provider fails to respond, fails to 
convince the Agency that its decision is erroneous, or fails to cure 
any defect to the Agency's satisfaction, within prescribed time 
periods, the Agency will then remove the ELD model or version from its 
list of certified products. Second, in the event of removal, the ELD 
provider will have an additional opportunity to challenge the Agency's 
decision through an administrative post-deprivation review.
    Section 6 lists references cited throughout this appendix. Section 
6 is changed to conform with the new codification in the rest of the 
appendix. Section 6 matches Sec.  395.38 exactly. It is repeated in the 
appendix to provide a convenient guide for these standards within the 
Appendix to Subpart B itself. To conform to Sec.  395.38, FMCSA adds 
several new references to section 6, and updates others to the current 
versions. FMCSA also removes several references that are no longer 
relevant to the rulemaking.
    Section 7 provides a data elements dictionary for each data element 
referenced in the appendix. In today's rule, FMCSA adds a new data 
element to section 7, ``ELD provider,'' to clarify what is meant by 
that term. Section 7 is recodified to conform with the codification 
used in the rest of the appendix.

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

    FMCSA has determined that this rulemaking is an economically 
significant regulatory action under Executive Order (E.O.) 12866, 
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 
3821, January 21, 2011). It also is significant under Department of 
Transportation regulatory policies and procedures because the economic 
costs and benefits of the rule exceed the $100 million annual threshold 
and because of the substantial congressional and public

[[Page 78375]]

interest concerning the crash risks associated with driver fatigue.
    FMCSA mandates the installation and use of ELDs by drivers 
currently required to prepare HOS RODS.\41\ However, the costs and 
benefits of such a broad mandate are not identical across both options 
evaluated in the RIA. The Agency has chosen to evaluate options that 
reflect public comments regarding past ELD and HOS rulemakings and the 
Agency's safety priorities. The RIA associated with this rule examined 
two options:
---------------------------------------------------------------------------

    \41\ This rule does not require short-haul drivers who would 
need to keep RODS for not more than 8 days in any 30-day period to 
use an ELD. Although FMCSA cannot quantify the costs to carriers, 
the Agency believes that extending the ELD mandate to these drivers 
would not be cost beneficial.
---------------------------------------------------------------------------

     Option 1: ELDs are mandated for all CMV operations subject 
to 49 CFR part 395.
     Option 2 (Adopted): ELDs are mandated for all CMV 
operations where the driver is required to complete RODS under 49 CFR 
395.8.
    FMCSA adopted Option 2. The costs and benefits resulting from the 
adoption of Option 2 are presented in the table below:

                                Table 5--Summary of Annualized Costs and Benefits
                                               [7% discount rate]
----------------------------------------------------------------------------------------------------------------
                                                  Annualized
                                                  total value
                                                    (2013 $                           Notes
                                                   millions)
----------------------------------------------------------------------------------------------------------------
Cost element:
    New ELD Costs............................          $1,032.2  For all long-haul (LH) and short-haul (SH)
                                                                  drivers that use RODS, to pay for new devices
                                                                  and FMS upgrades.
    Automatic On-Board Recording Device                     2.0  Carriers that purchased AOBRDs for their CMVs
     (AOBRD) Replacement Costs.                                   and can be predicted to still have them in
                                                                  2019 and would need to replace or update them
                                                                  with ELDs.
    Enforcement Equipment Costs..............               1.3  The final rule does not require inspectors to
                                                                  purchase QR code scanners. Instead, inspectors
                                                                  would have Bluetooth capability and USB 2.0.
    Enforcement Training Costs...............               1.6  Costs include travel to training sites, as well
                                                                  as training time, for all inspectors in the
                                                                  first year and for new inspectors each year
                                                                  thereafter.
    CMV Driver Training Costs................               8.0  Costs of training new drivers in 2017, and new
                                                                  drivers each year thereafter.
HOS Compliance Costs.........................             790.4  Extra drivers and CMVs needed to ensure that no
                                                                  driver exceeds HOS limits.
                                              ------------------
        Total Costs..........................             1,836  ...............................................
----------------------------------------------------------------------------------------------------------------
Benefit element:
    Paperwork Savings (Total of three parts            $2,437.6  ...............................................
     below).
    (1) Driver Time..........................           1,877.2  Reflects time saved as drivers no longer have
                                                                  to fill out and submit paper RODS.
    (2) Clerical Time........................             433.9  Reflects time saved as office staff no longer
                                                                  have to process paper RODS.
    (3) Paper Costs..........................             126.6  Purchases of paper logbooks are no longer
                                                                  necessary.
Safety (Crash Reductions)....................             572.2  Although the predicted number of crash
                                                                  reductions is lower for SH than LH drivers,
                                                                  both should exhibit less fatigued driving if
                                                                  HOS compliance increases. Complete HOS
                                                                  compliance is not assumed.
                                              ------------------
        Total Benefits.......................             3,010  ...............................................
                                              ------------------
        Net Benefits.........................             1,174  ...............................................
----------------------------------------------------------------------------------------------------------------

    Modifications to the rule analysis resulted in moderate changes to 
the cost and benefit estimates for the rule from what was included in 
the SNPRM. For example, the purchase price of the ELD was reduced to 
reflect the most up-to-date prices consistent with the technical 
requirements of the rule, the population estimates were adjusted to 
update the universe of drivers subject to the requirements of the rule, 
and equipment requirements for inspectors were adjusted to no longer 
include QR scanners. The population changes had the effect of 
increasing costs, while adjustments to the ELD purchase price and 
equipment needs resulted in a decrease in costs. Overall, the total 
costs are somewhat higher than what was projected in the SNPRM. In 
addition, the total benefits of the rule increased due to updated wage 
estimates and adjustments to the projection of the cost of a crash. 
This resulted in an increase in the overall net benefits for the rule 
from what was proposed in the SNPRM. These revisions are discussed in 
more detail throughout the RIA.

B. Regulatory Flexibility Act

1. Introduction
    The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat. 
1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, March 
29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 
September 27, 2010), requires Federal agencies to consider the effects 
of the regulatory action on small business and other small entities and 
to minimize any significant economic impact. The term ``small 
entities'' comprises small businesses and not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. Accordingly, DOT policy requires an

[[Page 78376]]

analysis of the impact of all regulations on small entities, and 
mandates that agencies strive to lessen any adverse effects on these 
businesses.
    A Final Regulatory Flexibility Analysis must contain the following:
     A statement of the need for, and objectives of, the rule.
     A statement of the significant issues raised by the public 
comments in response to the Initial Regulatory Flexibility Act (IRFA), 
a statement of the assessment of the agency of such issues, and a 
statement of any changes made in the proposed rule as a result of such 
comments.
     The response of the agency to any comments filed by the 
Chief Counsel for Advocacy of the Small Business Administration in 
response to the proposed rule, and a detailed statement of any change 
made to the proposed rule in the final rule as a result of the 
comments.
     A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available.
     A description of the projected reporting, recordkeeping, 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities which will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record.
     A description of the steps the agency has taken to 
minimize the significant economic impact on small entities consistent 
with the stated objectives of applicable statutes, including a 
statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.
     For a covered agency, as defined in section 609(d)(2), a 
description of the steps the agency has taken to minimize any 
additional cost of credit for small entities.
2. Statement of the Need for and Objectives of This Rule
    The Agency is issuing this rule to mandate the use of ELDs by the 
majority of CMV operations. The objective is to reduce the number of 
crashes caused by driver fatigue that could have been avoided had the 
driver complied with the HOS rules.
    The Agency is required by statute (MAP-21) to adopt regulations 
requiring that CMVs operated in interstate commerce by drivers required 
to keep RODS, be equipped with ELDs. FMCSA amends part 395 of the 
FMCSRs to require the installation and use of ELDs for CMV operations 
for which RODS are required. CMV drivers are currently required to 
record their HOS (driving time, on- and off-duty time) in paper RODS, 
although some carriers have voluntarily adopted an earlier standard for 
HOS recording using devices known as AOBRDs. The HOS regulations are 
intended to ensure that driving time ``do[es] not impair their ability 
to operate the vehicles safely'' (49 U.S.C. 31136(a)(2)). 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)). FMCSA 
believes that properly designed, used, and maintained ELDs would enable 
motor carriers to track their drivers' on-duty driving hours 
accurately, thus preventing regulatory violations or excessive driver 
fatigue.
    Improved HOS compliance would prevent commercial vehicle operators 
from driving for long periods without opportunities to obtain adequate 
rest. Sufficient rest is necessary to ensure that a driver is alert 
behind the wheel and able to respond appropriately to changes in the 
driving environment.
    Substantial paperwork and recordkeeping burdens are also associated 
with HOS rules, including time spent by drivers filling out and 
submitting paper RODS and time spent by motor carrier staff reviewing, 
filing, and retaining these RODS. ELDs would eliminate all of the 
driver's clerical tasks associated with the RODS and significantly 
reduce the time drivers spend recording their HOS. These paperwork 
reductions offset most of the costs of the devices.
3. Public Comment on the IRFA, FMCSA Assessment and Response
    Although public comment on the SNPRM for this rule was extensive, 
there were no comments specific to the Initial Regulatory Flexibility 
Analysis.
4. FMCSA Response to Comments by the Chief Counsel for Advocacy of the 
Small Business Administration on the IRFA
    The FMCSA did not receive comments from the Chief Counsel for 
Advocacy of the Small Business Administration on the IRFA included with 
the SNPRM for this rule.
5. Description and Numerical Estimate of Small Entities Affected by the 
Rulemaking
    The motor carriers regulated by FMCSA operate in many different 
industries, and no single Small Business Administration (SBA) size 
threshold is applicable to all motor carriers. Most for-hire property 
carriers operate under North American Industrial Classification System 
\42\ (NAICS) code 484, truck transportation (see: https://www.bls.gov/iag/tgs/iag484.htm), although some for-hire carriers categorize 
themselves as ``express delivery services'' (NAICS 492110) or ``local 
delivery'' (NAICS 492210) or operate primarily in other modes of 
freight transportation. As shown in Table 6 below, the SBA size 
standard for truck transportation and local delivery services is 
currently $27.5 million in revenue per year and 1,500 employees for 
express delivery services. For other firms in other modes that may also 
be registered as for-hire motor carriers, the size standard is 500 or 
1,500 employees. As Table 6 also shows, for-hire passenger operations 
that FMCSA regulates have a size standard of $15 million in annual 
revenue.
---------------------------------------------------------------------------

    \42\ More information about NAICS is available at: https://www.census.gov/eos/www/naics/.

                               Table 6--SBA Size Standards for Selected Industries
                                                    [2014 $]
----------------------------------------------------------------------------------------------------------------
                                                                                      Annual
                NAICS codes                       NAICS industry description          revenue        Employees
                                                                                    (millions)
----------------------------------------------------------------------------------------------------------------
481112 and 481212..........................  Freight Air Transportation.........  ..............           1,500
482111.....................................  Line-Haul Railroads................  ..............           1,500
483111 through 483113......................  Freight Water Transportation.......  ..............             500
484110 through 484230......................  Freight Trucking...................           $27.5

[[Page 78377]]

 
492110.....................................  Couriers and Express Delivery......  ..............           1,500
492210.....................................  Local Messengers and Local Delivery            27.5  ..............
485210 through 485510......................  Bus Transportation.................            15.0  ..............
445110.....................................  Supermarkets and Grocery Stores....            32.5  ..............
452111.....................................  Department Stores (except Discount             32.5  ..............
                                              Department Stores).
452112.....................................  Discount Department Stores.........            29.5  ..............
452910.....................................  Warehouse Clubs and Superstores....            29.5  ..............
452990.....................................  Other General Merchandise Stores...            32.5  ..............
453210.....................................  Office Supplies and Stationery                 32.5  ..............
                                              Stores.
236115 through 236220......................  Building Construction..............            36.5  ..............
237110.....................................  Water and Sewer Line and Related               36.5  ..............
                                              Structures Construction.
237120.....................................  Oil and Gas Pipeline and Related               36.5  ..............
                                              Structures Construction.
237130.....................................  Power and Communication Line and               36.5  ..............
                                              Related Structures Construction.
237210.....................................  Land Subdivision...................            27.5  ..............
237310.....................................  Highway, Street, and Bridge                    36.5  ..............
                                              Construction.
237990.....................................  Other Heavy and Civil Engineering              36.5  ..............
                                              Construction.
238110 through 238990......................  Specialty Trade Contractors........            15.0  ..............
111110 through 111998......................  Crop Production....................            0.75  ..............
112111.....................................  Beef Cattle Ranching and Farming...            0.75  ..............
112112.....................................  Cattle Feedlots....................             7.5  ..............
112120.....................................  Dairy Cattle and Milk Production...            0.75  ..............
112210.....................................  Hog and Pig Farming................            0.75  ..............
112310.....................................  Chicken Egg Production.............            15.0  ..............
112320 through 112990......................  All Other Animal Production........            0.75  ..............
113310.....................................  Logging............................  ..............             500
211111 through 213111......................  Oil and Gas Extraction and Mining..  ..............             500
----------------------------------------------------------------------------------------------------------------

    This rulemaking will also affect private motor carriers. These 
carriers use CMVs they own or lease to ship their own goods (such as a 
motor carrier that is operated by a retail department store chain to 
distribute goods from its warehouses to its store locations) or in 
other regulated transportation activities related to their primary 
business activities (for example, dump trucks used by construction 
companies). The latter category also includes the provision of 
passenger transportation services not available to the general public. 
FMCSA does not have NAICS codes for motor carriers and therefore cannot 
determine the appropriate size standard to use for each case. As shown, 
the size standards vary widely, from $0.75 million for many types of 
farms to $36.5 million for building construction firms.
    For for-hire motor carriers, FMCSA examined data from the 2007 
Economic Census \43\ to determine the percentage of firms that have 
revenue at or below SBA's thresholds. Although boundaries for the 
revenue categories used in the Economic Census do not exactly coincide 
with the SBA thresholds, FMCSA was able to make reasonable estimates 
using these data. According to the Economic Census, about 99 percent of 
trucking firms had annual revenue less than $27.5 million; the Agency 
concluded that the percentage would be approximately the same using the 
SBA threshold of $25.5 million as the boundary. For passenger carriers, 
the $15 million SBA threshold falls between two Economic Census revenue 
categories, $10 million and $25 million. The percentages of passenger 
carriers with revenue less than these amounts were 96.7 percent and 
98.9 percent. Because the SBA threshold is closer to the lower of these 
two boundaries, FMCSA has assumed that the percentage of passenger 
carriers that are small will be closer to 96.7 percent, and is using a 
figure of 97 percent.
---------------------------------------------------------------------------

    \43\ U.S. Census Bureau, ``2007 Economic Census.'' https://www.census.gov/econ/census/.
---------------------------------------------------------------------------

    For private carriers, the Agency constructed its estimates under 
the assumption that carriers in the 99th percentile in terms of number 
of CMVs of for-hire property carriers will be large. In the case of 
for-hire property carriers, we assumed that carriers in the 97th 
percentile will also be large. That is, any company of sufficient size 
to maintain a fleet large enough to be considered a large truck or bus 
company will be large within its own industry. This could overestimate 
the number of small, private carriers. However, the Agency is confident 
that no small private carrier would be excluded. The Agency found that 
for property carriers, the threshold was 194 CMVs, and that for 
passenger carriers, it was 89 CMVs. FMCSA identified 195,818 small 
private property carriers (99.4 percent of this group), and 6,000 small 
private passenger carriers (100.0 percent of this group).
    The table below shows the complete estimates of the number of small 
carriers. All told, FMCSA estimates that 99.1 percent of regulated 
motor carriers are small businesses according to SBA size standards.

[[Page 78378]]



                                                     Table 7--Estimates of Numbers of Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             For-hire        For-hire
                                                              general       specialized      For-hire         Private         Private          Total
                                                              freight         freight        passenger       property        passenger
--------------------------------------------------------------------------------------------------------------------------------------------------------
Carriers................................................         176,000         152,000           8,000         197,000           6,000         539,000
Percentage of Small Carriers............................           98.9%           98.9%           97.0%           99.4%          100.0%           99.1%
Number of Small Carriers................................         174,064         150,328           7,760         195,818           6,000         533,970
--------------------------------------------------------------------------------------------------------------------------------------------------------

6. Description of Reporting, Recordkeeping and Other Compliance 
Requirements of the Rule
    FMCSA believes that implementation of the rule will not require 
additional reporting, recordkeeping, or other paperwork-related 
compliance requirements beyond what are already required in the 
existing regulations. In fact, the rule is estimated to result in 
paperwork savings, particularly from the elimination of paper RODS. 
Furthermore, the carriers will experience compensatory time-saving or 
administrative efficiencies as a result of using ELD records in place 
of paper RODS. The level of savings will vary with the size of the 
carrier implementing the systems (larger carriers generally experience 
greater savings).
    Under current regulations, most CMV drivers are required to fill 
out RODS for every 24-hour period. The remaining population of CMV 
drivers is required to fill out time cards at their workplace 
(reporting location). Motor carriers must retain the RODS (or 
timecards, if used) for 6 months. FMCSA estimates annual recordkeeping 
cost savings from this rule of about $805 per driver. This comprises 
$558 for a reduction in time drivers spend completing paper RODS and 
$65 submitting those RODS to their employers; $144 for motor carrier 
clerical staff to handle and file the RODS; and $38 for elimination of 
expenditures on blank paper RODS for drivers. One of the options 
discussed in the rule (Option 1) would extend the ELD mandate to 
carrier operations that are exempt from the RODS requirements. 
Paperwork savings would not accrue to drivers engaged in these 
operations.
    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. This rule makes regulatory changes to several parts of the 
FMCSRs, but only those applicable to part 395, ``Hours of Service of 
Drivers,'' will alter or impose ICR. The ICR of this rule will affect 
OMB Control Number 2126-0001, which is currently approved through May 
31, 2018, at 127,600,000 burden hours.
7. Steps To Minimize Adverse Economic Impacts on Small Entities
    Of the population of motor carriers that FMCSA regulates, 99 
percent are considered small entities under SBA's definition. Because 
small businesses constitute a large part of the demographic the Agency 
regulates, providing exemptions to small business to permit 
noncompliance with safety regulations is not feasible and not 
consistent with good public policy. The safe operation of CMVs on the 
Nation's highways depends on compliance with all of FMCSA's safety 
regulations. Accordingly, the Agency will not allow any motor carriers 
to be exempt from coverage of the rule based solely on a status as a 
small entity. Furthermore, exempting small businesses from coverage 
would be inconsistent with the explicit statutory mandate contained in 
MAP-21.
    The Agency recognizes that small businesses may need additional 
information and guidance in order to comply with the regulation. To 
improve their understanding of the rule, FMCSA intends to conduct 
outreach aimed specifically at small businesses, including webinars and 
other presentations upon request as needed and at no charge to the 
participants. These sessions will be held after the rule has published 
and before the rule's compliance date. To the extent practicable, these 
presentations will be interactive. They will describe in plain language 
the compliance and reporting requirements so they are can be readily 
understood by the small entities that will be affected.
    ELDs can lead to significant paperwork savings that can offset the 
costs of the devices. The Agency, however, recognizes that these 
devices entail an up-front investment that can be burdensome for small 
carriers. At least one provider, however, provides free hardware and 
recoups the cost of the device over time in the form of higher monthly 
operating fees. The Agency is also aware of lease-to-own programs that 
allow carriers to spread the purchase costs over several years. 
Nevertheless, the typical carrier will likely be required to spend 
about $584 per CMV to purchase and install ELDs. In addition to 
purchase costs, carriers will also likely spend about $20 per month per 
CMV for monthly service fees.
8. Description of Steps Taken by a Covered Agency To Minimize Costs of 
Credit for Small Entities
    FMCSA is not a covered agency as defined in section 609(d)(2) of 
the Regulatory Flexibility Act, and has taken no steps to minimize the 
additional cost of credit for small entities.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires 
Agencies to evaluate whether an Agency action would result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $155 million or more (which is $100 
million in 1995, adjusted for inflation) in any 1 year, and, if so, to 
take steps to minimize these unfunded mandates. As Table 8 shows, this 
rulemaking would result in private sector expenditures in excess of the 
$155 million threshold for each of the options. Gross costs, however, 
are expected to be more than offset in savings from paperwork burden 
reductions.
    The Agency is required by statute to adopt regulations requiring 
that CMVs, operated in interstate commerce by drivers required to keep 
RODS, be equipped with ELDs (49 U.S.C. 31137). To the extent this rule 
implements the direction of Congress in mandating the use of ELDs, a 
written statement under the Unfunded Mandates Reform Act is not 
required.\44\ However, the Agency

[[Page 78379]]

provides its projection of the annualized costs to the private sector 
in Table 8 below. Additionally the Agency's adopted option provides the 
lowest cost and highest net benefits of the options considered.
---------------------------------------------------------------------------

    \44\ Unfunded Mandates Reform Act of 1995. Title II, Section 
201. https://www.gpo.gov/fdsys/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf.

         Table 8--Annualized Net Expenditures by Private Sector
                            [2013 $ millions]
------------------------------------------------------------------------
        Cost or Savings Category             Option 1        Option 2
------------------------------------------------------------------------
New ELD Costs...........................          $1,336          $1,032
AOBRD Replacement Costs.................               2               2
HOS Compliance Costs....................             929             790
Driver Training Costs...................              10               8
                                         -------------------------------
    Total Costs.........................           2,278           1,833
                                         -------------------------------
    Total Savings (Paperwork)...........           2,438           2,438
                                         -------------------------------
    Net Expenditure by Private Sector...            -160            -605
------------------------------------------------------------------------

D. Executive Order 12988 (Civil Justice Reform)

    This rulemaking meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

E. Executive Order 13045 (Protection of Children)

    FMCSA analyzed this action under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. FMCSA determined that 
this rulemaking would not pose an environmental risk to health or 
safety that might affect children disproportionately.

F. Executive Order 12630 (Taking of Private Property)

    This rulemaking would not effect a taking of private property or 
otherwise have takings implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

G. Executive Order 13132 (Federalism)

    A rulemaking has implications for Federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on State or local governments. FMCSA analyzed 
this action in accordance with E.O. 13132. The rule would not have a 
substantial direct effect on States or local governments, nor would it 
limit the policymaking discretion of States. Nothing in this rulemaking 
would preempt any State law or regulation.

H. Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
action.

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

    FMCSA analyzed this rulemaking in accordance with the principles 
and criteria in E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments. This rulemaking is required by law and does not 
significantly or uniquely affect the communities of the Indian tribal 
governments or impose substantial direct compliance costs on tribal 
governments. Thus, the funding and consultation requirements of E.O. 
13175 do not apply and no tribal summary impact statement is required.

J. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) 
requires Federal agencies to obtain OMB approval of each information 
collection (IC) they conduct, sponsor, or require through agency 
regulations. Information-collection requests (ICRs) submitted to OMB by 
agencies must estimate the burden hours imposed by their information-
collection (IC) requirements. Part 395 of the Federal Motor Carrier 
Safety Regulations, ``Hours of Service of Drivers,'' requires drivers 
and motor carriers to collect, transmit and maintain information about 
driver daily activities. The part 395 ICR is assigned OMB Control 
Number 2126-0001. On May 21, 2015, OMB approved the Agency's estimate 
of 127.6 million burden hours as the annual IC burden of part 395 as it 
existed at that time, prior to this final rule. This rulemaking 
substantially amends the IC requirements of part 395.
    For the SNPRM of this rulemaking (79 FR 17656, March 28, 2014), the 
Agency excluded the IC burden of drivers operating purely in intrastate 
commerce, but following discussions with OMB, decided the burden of 
these drivers should be included in future part 395 estimates. The 
intrastate burden was included in the estimate approved by OMB on May 
21, 2015, and is included in the Agency's burden estimate for this 
final rule.
    FMCSA estimates that 3.37 million interstate and intrastate CMV 
drivers are subject to the IC requirements of part 395 as of 2013. OMB 
regulations require that Agencies estimate IC burdens over a period of 
3 years. This rule has a compliance date 2 years from the date of its 
publication. Thus, during the first 2 years of this PRA estimate, 
drivers and motor carriers will not be required to employ ELDs. The 
Agency has incorporated estimates of the number of drivers who will be 
voluntarily employing electronic HOS recording devices during each of 
the first 2 years. For year three, the Agency's estimate is based upon 
all drivers using electronic logging devices. FMCSA estimates that the 
part 395 amendments of this final rule will reduce the IC burden an 
average of 21,373,653 hours annually for the 3-year period.

K. National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this rulemaking for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and 
determined under DOT Environmental Procedures Order 5610.1, issued 
March 1, 2004 (69 FR 9680), that this action would have a minor impact 
on the environment. The Environmental Assessment is available for 
inspection or copying at the Regulations.gov Web site listed under 
Section II.A of this preamble. There were two notable changes to data 
input values used in section 3.2.1 of the Environmental Assessment for 
today's rule as compared to the equivalent values used in the 
Environmental

[[Page 78380]]

Assessment for the SNPRM. First, in the calculation of emissions from 
additional idling, the number of affected long-haul tractors with 
sleeper berths was increased from 665,000, which was based on year 2002 
data, to a revised estimate of 976,889 to reflect growth in the number 
of truck tractors from 2002 to 2012 as reported by the Federal Highway 
Administration. For additional details, see section 3.2.1 of the 
Environmental Assessment. Second, in the calculation of the reduction 
of emissions from crash prevention, the emission rates per crash for 
the six Environmental Protection Agency criteria pollutants and for 
carbon dioxide were updated from values that were previously based on 
FMCSA research from 2004 regarding the environmental impacts of truck 
crashes, to revised emission rate values that are based on more recent 
FMCSA research from 2013 regarding the environmental impacts of truck 
crashes. For additional details, see section 3.2.1 of the Environmental 
Assessment.
    FMCSA also analyzed this action under section 176(c) of the Clean 
Air Act (CAA), as amended (42 U.S.C. 7506(c)), and the U.S. 
Environmental Protection Agency's implementing regulations, 40 CFR part 
93. Pursuant to 40 CFR 93.153, a conformity determination is required 
``for each criteria pollutant or precursor where the total of direct 
and indirect emissions of the criteria pollutant or precursor in a 
nonattainment or maintenance area caused by a Federal action would 
equal or exceed any of the rates in paragraphs (b)(1) or (2) of this 
section.'' FMCSA recognizes that the action taken in this rulemaking 
could slightly affect emissions of criteria pollutants from CMVs. FMCSA 
discusses the air emissions analysis in section 3.2.1 of the 
Environmental Assessment for this rule.
    As discussed in section 3.1.2 of the Environmental Assessment, the 
CAA requires additional analysis to determine if this action impacts 
air quality. In determining whether this action conforms to CAA 
requirements in areas designated as nonattainment under section 107 of 
the CAA and maintenance areas established under section 175A of the 
CAA, FMCSA is required (among other criteria) to determine if the total 
direct and indirect emissions are at or above de minimis levels. In the 
case of the alternatives in this rulemaking, as discussed in section 
3.2.1 of the Environmental Assessment (except for the No-Action 
Alternative), FMCSA considers the change in emissions to be an indirect 
result of the rulemaking action. FMCSA is requiring drivers and motor 
carriers to use ELDs that would lead to greater compliance with the HOS 
regulations, which does not directly result in additional emissions 
releases.
    Although emissions from idling are foreseeable and an indirect 
result of the rulemaking, in order for the idling emissions to qualify 
as `indirect emissions' pursuant to 40 CFR 93.152, they must meet all 
four criteria in the definition: (1) The emissions are caused or 
initiated by the Federal action and originate in the same nonattainment 
or maintenance area but occur at a different time or place as the 
action; (2) they are reasonably foreseeable; (3) FMCSA can practically 
control them; and (4) FMCSA has continuing program responsibility for 
them. FMCSA does not believe the increase of emissions of some criteria 
pollutants or their precursors from the proposed rulemaking meet two of 
the criteria: That FMCSA can practically control the emissions, and 
that FMCSA has continuing program responsibility. FMCSA's statutory 
authority limits its ability to require drivers to choose alternatives 
to idling while taking a rest period. If FMCSA had authority to control 
CMV emissions, the Agency could prohibit idling or require drivers to 
choose an alternative such as electrified truck stops or use of 
auxiliary power units, both of which reduce idling emissions. Moreover, 
based on FMCSA's analysis, it is reasonably foreseeable that this 
rulemaking would not significantly increase total CMV mileage, nor 
would it change the routing of CMVs, how CMVs operate, or the CMV fleet 
mix of motor carriers. Therefore, because the idling emissions do not 
meet the definition of direct or indirect emissions in 40 CFR 93.152, 
FMCSA has determined it is not required to perform a CAA general 
conformity analysis, pursuant to 40 CFR 93.153.\45\
---------------------------------------------------------------------------

    \45\ Additionally, the EPA General Conformity regulations 
provide an exemption for rulemaking activities. See 40 CFR 
93.153(c)(2)(iii).
---------------------------------------------------------------------------

L. Executive Order 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this rulemaking in 
accordance with E.O. 12898 and determined that there are neither 
environmental justice issues associated with its provisions nor any 
collective environmental impact resulting from its promulgation. 
Environmental justice issues would be raised if there were 
``disproportionate''' and ``high and adverse impact'' on minority or 
low-income populations. None of the alternatives analyzed in the 
Agency's deliberations would result in high and adverse environmental 
justice impacts.

M. Executive Order 13211 (Energy Effects)

    FMCSA analyzed this action under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. FMCSA determined that it is not a ``significant energy action'' 
under that E.O. because, although this rulemaking is economically 
significant, it is not likely to have an adverse effect on the supply, 
distribution, or use of energy.

N. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) requires agencies to ``use technical standards that are developed 
or adopted by voluntary consensus standards bodies'' to carry out 
policy objectives determined by the agencies, unless the standards are 
``inconsistent with applicable law or otherwise impractical.'' This 
requirement pertains to ``performance-based or design-specific 
technical specifications and related management systems practices.'' 
MAP-21 also requires that the Agency adopt a ``standard security level 
for an electronic logging device and related components to be tamper 
resistant by using a methodology endorsed by a nationally recognized 
standards organization'' (49 U.S.C. 31137(b)(2)(C)).
    FMCSA is not aware of any technical standards addressing ELDs. 
However, in today's rule, the Agency employs several publicly-available 
consensus standards consistent with these statutory mandates, including 
standards adopted by the World Wide Web Consortium to facilitate secure 
Web based communications, American National Standards Institute (ANSI) 
codes for identification of geographic locations and for standard 
information display, Institute of Electrical and Electronic Engineers 
(IEEE) Standards Association standards addressing secure transfer of 
data with a portable storage device, Bluetooth Special Interest Group 
(SIG) standards addressing short-range wireless information transfer, 
and the USB Specification (Revision 2.0). In addition, although not 
developed by a private sector consensus standard body, FMCSA also 
employs the National Institute of Standards and Technology (NIST) 
standards concerning data encryption. A complete list of standards that 
FMCSA proposes for adoption is found in 49 CFR 395.38.

[[Page 78381]]

O. E-Government Act of 2002

    The E-Government Act of 2002, Public Law 107-347, section 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a privacy impact assessment for new or substantially changed technology 
that collects, maintains, or disseminates information in an 
identifiable form. FMCSA completed an assessment in connection with 
today's rule addressing the handling of PII. The assessment is a 
documented assurance that privacy issues have been identified and 
adequately addressed, ensures compliance with laws and regulations 
related to privacy, and demonstrates the DOT's commitment to protect 
the privacy of any personal information we collect, store, retrieve, 
use, and share. Additionally, the publication of the assessment 
demonstrates DOT's commitment to provide appropriate transparency in 
the ELD rulemaking process. A copy of the privacy impact assessment is 
available in the docket for this rulemaking.

List of Subjects

49 CFR Part 385

    Administrative practice and procedure, Highway safety, Mexico, 
Motor carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements

49 CFR Part 386

    Administrative practice and procedure, Brokers, Freight forwarders, 
Hazardous materials transportation, Highway safety, Motor carriers, 
Motor vehicle safety, Penalties

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements

49 CFR Part 395

    Highway safety, Incorporation by reference, Motor carriers, 
Reporting and recordkeeping requirements

    In consideration of the foregoing, FMCSA amends 49 CFR chapter III, 
parts 385, 386, 390, and 395 as follows:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 is revised to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5123, 
13901-13905, 31133, 31135, 31136, 31137, 31144, 31148, and 31502; 
Sec. 113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88, 109 Stat. 
803, 958; and 49 CFR 1.87.


0
2. Amend Appendix B to part 385, section VII, by removing the entries 
for Sec. Sec.  395.8(a), 395.8(e), and 395.8(i), and the two entries 
for Sec.  395.8(k)(1); and adding entries for Sec.  395.8(a)(1), Sec.  
395.8(a)(2)(ii), Sec.  395.8(e)(1), Sec.  395.8(e)(2), Sec.  
395.8(k)(1), Sec.  395.11(b), Sec.  395.11(c), Sec.  395.11(e), Sec.  
395.11(f), and Sec.  395.30(f) in numerical order to read as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  395.8(a)(1) Failing to require a driver to prepare a 
record of duty status using appropriate method (critical).
    Sec.  395.8(a)(2)(ii) Failure to require a driver to submit 
record of duty status in a timely manner (critical).
    Sec.  395.8(e)(1) Making, or permitting a driver to make, a 
false report regarding duty status (critical).
    Sec.  395.8(e)(2) Disabling, deactivating, disengaging, jamming, 
or otherwise blocking or degrading a signal transmission or 
reception; tampering with an automatic on-board recording device or 
ELD; or permitting or requiring another person to engage in such 
activity (acute).
    Sec.  395.8(k)(1) Failing to preserve a driver's record of duty 
status or supporting documents for 6 months (critical).
    Sec.  395.11(b) Failing to require a driver to submit supporting 
documents in a timely manner (critical).
    Sec.  395.11(c) Failing to retain types of supporting documents 
as required by Sec.  395.11(c) (critical).
    Sec.  395.11(e) Failing to retain supporting documents in a 
manner that permits the effective matching of the documents to the 
driver's record of duty status (critical).
    Sec.  395.11(f) Altering, defacing, destroying, mutilating, or 
obscuring a supporting document (critical).
    Sec.  395.30(f) Failing to retain ELD information (acute).
* * * * *

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT 
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS 
PROCEEDINGS

0
3. The authority citation for part 386 is revised to read as follows:

    Authority:  49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5123, 
13901-13905, 31133, 31135, 31136, 31137, 31144, 31148, and 31502; 
Sec. 113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88, 109 Stat. 
803, 958; and 49 CFR 1.87.


0
4. Amend Sec.  386.1 by revising paragraph (a) and adding paragraph (c) 
to read as follows:


Sec.  386.1  Scope of rules in this part.

    (a) Except as provided in paragraph (c) of this section, the rules 
in this part govern proceedings before the Assistant Administrator, who 
also acts as the Chief Safety Officer of the Federal Motor Carrier 
Safety Administration, under applicable provisions of the Federal Motor 
Carrier Safety Regulations (49 CFR parts 350-399), including the 
commercial regulations (49 CFR parts 360-379), and the Hazardous 
Materials Regulations (49 CFR parts 171-180).
* * * * *
    (c)(1) The rules in Sec.  386.12(a) govern the filing of a 
complaint of a substantial violation and the handling of the complaint 
by the appropriate Division Administrator.
    (2) The rules in Sec.  386.12(b) govern the filing by a driver and 
the handling by the appropriate Division Administrator of a complaint 
of harassment in violation of Sec.  390.36 of this subchapter.
    (3) The rules in Sec.  386.12(c) govern the filing by a driver and 
the handling by the appropriate Division Administrator of a complaint 
of coercion in violation of Sec.  390.6 of this subchapter.

0
5. Revise Sec.  386.12 to read as follows:


Sec.  386.12  Complaints.

    (a) Complaint of substantial violation. (1) Any person alleging 
that a substantial violation of any regulation issued under the Motor 
Carrier Safety Act of 1984 is occurring or has occurred must file a 
written complaint with FMCSA stating the substance of the alleged 
substantial violation no later than 90 days after the event. The 
written complaint, including the information below, must be filed with 
the National Consumer Complaint Database at https://nccdb.fmcsa.dot.gov 
or any FMCSA Division Administrator. The Agency will refer the 
complaint to the Division Administrator who the Agency believes is best 
able to handle the complaint. Information on filing a written complaint 
may be obtained by calling 1-800-DOT-SAFT (1-800-368-7238). A 
substantial violation is one which could reasonably lead to, or has 
resulted in, serious personal injury or death. Each complaint must be 
signed by the complainant and must contain:
    (i) The name, address, and telephone number of the person who files 
it;
    (ii) The name and address of the alleged violator and, with respect 
to each alleged violator, the specific provisions of the regulations 
that the complainant believes were violated; and
    (iii) A concise but complete statement of the facts relied upon to 
substantiate each allegation, including the date of each alleged 
violation.

[[Page 78382]]

    (2) Upon the filing of a complaint of a substantial violation under 
paragraph (a)(1) of this section, the Division Administrator shall 
determine whether the complaint is non-frivolous and meets the 
requirements of paragraph (a)(1) of this section. If the Division 
Administrator determines the complaint is non-frivolous and meets the 
requirements of paragraph (a)(1), the Division Administrator shall 
investigate the complaint. The complainant shall be timely notified of 
findings resulting from the investigation. The Division Administrator 
shall not be required to conduct separate investigations of duplicative 
complaints. If the Division Administrator determines the complaint is 
frivolous or does not meet the requirements of paragraph (a)(1), the 
Division Administrator shall dismiss the complaint and notify the 
complainant in writing of the reasons for the dismissal.
    (3) Notwithstanding the provisions of 5 U.S.C. 552, the Division 
Administrator shall not disclose the identity of complainants unless it 
is determined that such disclosure is necessary to prosecute a 
violation. If disclosure becomes necessary, the Division Administrator 
shall take every practical means within the Division Administrator's 
authority to ensure that the complainant is not subject to coercion, 
harassment, intimidation, disciplinary action, discrimination, or 
financial loss as a result of such disclosure.
    (b) Complaint of harassment. (1) A driver alleging a violation of 
Sec.  390.36(b)(1) of this subchapter (harassment) must file a written 
complaint with FMCSA stating the substance of the alleged harassment by 
a motor carrier no later than 90 days after the event. The written 
complaint, including the information described below, must be filed 
with the National Consumer Complaint Database at https://nccdb.fmcsa.dot.gov or the FMCSA Division Administrator for the State 
where the driver is employed. The Agency may refer a complaint to 
another Division Administrator who the Agency believes is best able to 
handle the complaint. Information on filing a written complaint may be 
obtained by calling 1-800-DOT-SAFT (1-800-368-7238). Each complaint 
must be signed by the driver and must contain:
    (i) The driver's name, address, and telephone number;
    (ii) The name and address of the motor carrier allegedly harassing 
the driver; and
    (iii) A concise but complete statement of the facts relied upon to 
substantiate each allegation of harassment, including:
    (A) How the ELD or other technology used in combination with and 
not separable from the ELD was used to contribute to harassment;
    (B) The date of the alleged action; and
    (C) How the motor carrier's action violated either Sec.  392.3 or 
part 395.


Each complaint may include any supporting evidence that will assist the 
Division Administrator in determining the merits of the complaint.
    (2) Upon the filing of a complaint of a violation under paragraph 
(b)(1) of this section, the appropriate Division Administrator shall 
determine whether the complaint is non-frivolous and meets the 
requirements of paragraph (b)(1) of this section.
    (i) If the Division Administrator determines the complaint is non-
frivolous and meets the requirements of paragraph (b)(1) of this 
section, the Division Administrator shall investigate the complaint. 
The complaining driver shall be timely notified of findings resulting 
from the investigation. The Division Administrator shall not be 
required to conduct separate investigations of duplicative complaints.
    (ii) If the Division Administrator determines the complaint is 
frivolous or does not meet the requirements of paragraph (b)(1) of this 
section, the Division Administrator shall dismiss the complaint and 
notify the complainant in writing of the reasons for the dismissal.
    (3) Because prosecution of harassment in violation of Sec.  
390.36(b)(1) of this subchapter will require disclosure of the driver's 
identity, the Agency shall take every practical means within its 
authority to ensure that the driver is not subject to coercion, 
harassment, intimidation, disciplinary action, discrimination, or 
financial loss as a result of the disclosure. This will include 
notification that 49 U.S.C. 31105 includes broad employee protections 
and that retaliation for filing a harassment complaint may subject the 
motor carrier to enforcement action by the Occupational Safety and 
Health Administration.
    (c) Complaint of coercion. (1) A driver alleging a violation of 
Sec.  390.6(a)(1) or (2) of this subchapter must file a written 
complaint with FMCSA stating the substance of the alleged coercion no 
later than 90 days after the event. The written complaint, including 
the information described below, must be filed with the National 
Consumer Complaint Database at https://nccdb.fmcsa.dot.gov or the FMCSA 
Division Administrator for the State where the driver is employed. The 
Agency may refer a complaint to another Division Administrator who the 
Agency believes is best able to handle the complaint. Information on 
filing a written complaint may be obtained by calling 1-800-DOT-SAFT 
(1-800-368-7238). Each complaint must be signed by the driver and must 
contain:
    (i) The driver's name, address, and telephone number;
    (ii) The name and address of the person allegedly coercing the 
driver;
    (iii) The provisions of the regulations that the driver alleges he 
or she was coerced to violate; and
    (iv) A concise but complete statement of the facts relied upon to 
substantiate each allegation of coercion, including the date of each 
alleged violation.
    (2) Action on complaint of coercion. Upon the filing of a complaint 
of coercion under paragraph (c)(1) of this section, the appropriate 
Division Administrator shall determine whether the complaint is non-
frivolous and meets the requirements of paragraph (c)(1).
    (i) If the Division Administrator determines that the complaint is 
non-frivolous and meets the requirements of paragraph (c)(1) of this 
section, the Division Administrator shall investigate the complaint. 
The complaining driver shall be timely notified of findings resulting 
from such investigation. The Division Administrator shall not be 
required to conduct separate investigations of duplicative complaints.
    (ii) If the Division Administrator determines the complaint is 
frivolous or does not meet the requirements of paragraph (c)(1) of this 
section, the Division Administrator shall dismiss the complaint and 
notify the driver in writing of the reasons for the dismissal.
    (3) Protection of complainants. Because prosecution of coercion in 
violation of Sec.  390.6 of this subchapter will require disclosure of 
the driver's identity, the Agency shall take every practical means 
within its authority to ensure that the driver is not subject to 
coercion, harassment, intimidation, disciplinary action, 
discrimination, or financial loss as a result of the disclosure. This 
will include notification that 49 U.S.C. 31105 includes broad employee 
protections and that retaliation for filing a coercion complaint may 
subject the alleged coercer to enforcement action by the Occupational 
Safety and Health Administration.

0
6. Add Sec.  386.30 to subpart D to read as follows:

[[Page 78383]]

Sec.  386.30  Enforcement proceedings under part 395.

    (a) General. A motor carrier is liable for any act or failure to 
act by an employee, as defined in Sec.  390.5 of this subchapter, that 
violates any provision of part 395 of this subchapter if the act or 
failure to act is within the course of the motor carrier's operations. 
The fact that an employee may be liable for a violation in a proceeding 
under this subchapter, based on the employee's act or failure to act, 
does not affect the liability of the motor carrier.
    (b) Burden of proof. Notwithstanding any other provision of this 
subchapter, the burden is on a motor carrier to prove that the employee 
was acting outside the scope of the motor carrier's operations when 
committing an act or failing to act in a manner that violates any 
provision of part 395 of this subchapter.
    (c) Imputed knowledge of documents. A motor carrier shall be deemed 
to have knowledge of any document in its possession and any document 
that is available to the motor carrier and that the motor carrier could 
use in ensuring compliance with part 395 of this subchapter. 
``Knowledge of any document'' means knowledge of the fact that a 
document exists and the contents of the document.

0
7. Amend appendix B to part 386 by adding paragraph (a)(7) to read as 
follows:

Appendix B to Part 386--Penalty Schedule; Violations and Monetary 
Penalties

* * * * *
    (a) * * *
    (7) Harassment. In instances of a violation of Sec.  
390.36(b)(1) of this subchapter the Agency may consider the 
``gravity of the violation,'' for purposes of 49 U.S.C. 
521(b)(2)(D), sufficient to warrant imposition of penalties up to 
the maximum permitted by law.
* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
8. The authority citation for part 390 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 
31137, 31144, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 
1673, 1677-1678; sec. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 
1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 
and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 
1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; 
sections 32101(d) and 34934, Pub. L. 112-141, 126 Stat. 405, 778, 
830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; and 49 CFR 1.87.

0
9. Add Sec.  390.36 to read as follows:


Sec.  390.36  Harassment of drivers prohibited.

    (a) Harass or harassment defined. As used in this section, harass 
or harassment means an action by a motor carrier toward a driver 
employed by the motor carrier (including an independent contractor 
while in the course of operating a commercial motor vehicle on behalf 
of the motor carrier) involving the use of information available to the 
motor carrier through an ELD, as defined in Sec.  395.2 of this 
chapter, or through other technology used in combination with and not 
separable from the ELD, that the motor carrier knew, or should have 
known, would result in the driver violating Sec.  392.3 or part 395 of 
this subchapter.
    (b) Prohibition against harassment. (1) No motor carrier may harass 
a driver.
    (2) Nothing in paragraph (b)(1) of this section shall be construed 
to prevent a motor carrier from using technology allowed under this 
subchapter to monitor productivity of a driver provided that such 
monitoring does not result in harassment.
    (c) Complaint process. A driver who believes he or she was the 
subject of harassment by a motor carrier may file a written complaint 
under Sec.  386.12(b) of this subchapter.

PART 395--HOURS OF SERVICE OF DRIVERS

0
10. The authority citation for part 395 continues to read as follows:

    Authority:  49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132, 
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. 
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; 
and 49 CFR 1.87.


0
11. Redesignate Sec.  395.1 through Sec.  395.15 as subpart A, and add 
a new subpart heading to read as follows:

Subpart A--General

0
12. Amend Sec.  395.1 by revising the introductory text of paragraphs 
(e)(1) and (e)(2) to read as follows:


Sec.  395.1  Scope of rules in this part.

* * * * *
    (e) * * *
    (1) 100 air-mile radius driver. A driver is exempt from the 
requirements of Sec.  395.8 and Sec.  395.11 if:
* * * * *
    (2) Operators of property-carrying commercial motor vehicles not 
requiring a commercial driver's license. Except as provided in this 
paragraph, a driver is exempt from the requirements of Sec. Sec.  
395.3(a)(2), 395.8, and 395.11 and ineligible to use the provisions of 
Sec.  395.1(e)(1), (g), and (o) if:
* * * * *

0
13. Amend Sec.  395.2 by adding definitions for Electronic logging 
device (ELD), ELD record, and Supporting document, in alphabetical 
order, to read as follows:


Sec.  395.2  Definitions.

* * * * *
    Electronic logging device (ELD) means a device or technology that 
automatically records a driver's driving time and facilitates the 
accurate recording of the driver's hours of service, and that meets the 
requirements of subpart B of this part.
    ELD record means a record of duty status, recorded on an ELD, that 
reflects the data elements that an ELD must capture.
* * * * *
    Supporting document means a document, in any medium, generated or 
received by a motor carrier in the normal course of business as 
described in Sec.  395.11 that can be used, as produced or with 
additional identifying information, by the motor carrier and 
enforcement officials to verify the accuracy of a driver's record of 
duty status.
* * * * *

0
14. Amend Sec.  395.8 by:
0
a. Revising paragraphs (a) and (e),
0
b. Removing and reserving paragraph (i), and
0
c. Revising the heading of paragraph (k), and paragraph (k)(1) to read 
as follows:


Sec.  395.8  Driver's record of duty status.

    (a)(1) Except for a private motor carrier of passengers 
(nonbusiness), as defined in Sec.  390.5 of this subchapter, a motor 
carrier subject to the requirements of this part must require each 
driver used by the motor carrier to record the driver's duty status for 
each 24-hour period using the method prescribed in paragraphs (a)(1)(i) 
through (iv) of this section, as applicable.
    (i) Subject to paragraphs (a)(1)(ii) and (iii) of this section, a 
motor carrier operating commercial motor vehicles must install and 
require each of its drivers to use an ELD to record the driver's duty 
status in accordance with subpart B of this part no later than December 
18, 2017.
    (ii) A motor carrier that installs and requires a driver to use an 
automatic on-board recording device in accordance

[[Page 78384]]

with Sec.  395.15 before December 18, 2017 may continue to use the 
compliant automatic on-board recording device no later than December 
16, 2019.
    (iii)(A) A motor carrier may require a driver to record the 
driver's duty status manually in accordance with this section, rather 
than require the use of an ELD, if the driver is operating a commercial 
motor vehicle:
    (1) In a manner requiring completion of a record of duty status on 
not more than 8 days within any 30-day period;
    (2) In a driveaway-towaway operation in which the vehicle being 
driven is part of the shipment being delivered; or
    (3) That was manufactured before model year 2000.
    (B) The record of duty status must be recorded in duplicate for 
each 24-hour period for which recording is required. The duty status 
shall be recorded on a specified grid, as shown in paragraph (g) of 
this section. The grid and the requirements of paragraph (d) of this 
section may be combined with any company form.
    (iv) Subject to paragraphs (a)(1)(i) through (iii) of this section, 
until December 18, 2017, a motor carrier operating commercial motor 
vehicles shall require each of its drivers to record the driver's 
record of duty status:
    (A) Using an ELD that meets the requirements of subpart B of this 
part;
    (B) Using an automatic on-board recording device that meets the 
requirements of Sec.  395.15; or
    (C) Manually, recorded on a specified grid as shown in paragraph 
(g) of this section. The grid and the requirements of paragraph (d) of 
this section may be combined with any company form. The record of duty 
status must be recorded in duplicate for each 24-hour period for which 
recording is required.
    (2) A driver operating a commercial motor vehicle must:
    (i) Record the driver's duty status using one of the methods under 
paragraph (a)(1) of this section; and
    (ii) Submit the driver's record of duty status to the motor carrier 
within 13 days of the 24-hour period to which the record pertains.
* * * * *
    (e)(1) No driver or motor carrier may make a false report in 
connection with a duty status.
    (2) No driver or motor carrier may disable, deactivate, disengage, 
jam, or otherwise block or degrade a signal transmission or reception, 
or reengineer, reprogram, or otherwise tamper with an automatic on-
board recording device or ELD so that the device does not accurately 
record and retain required data.
    (3) No driver or motor carrier may permit or require another person 
to disable, deactivate, disengage, jam, or otherwise block or degrade a 
signal transmission or reception, or reengineer, reprogram, or 
otherwise tamper with an automatic on-board recording device or ELD so 
that the device does not accurately record and retain required data.
* * * * *
    (i) [Reserved]
* * * * *
    (k) Retention of driver's record of duty status and supporting 
documents. (1) A motor carrier shall retain records of duty status and 
supporting documents required under this part for each of its drivers 
for a period of not less than 6 months from the date of receipt.
* * * * *

0
15. Add Sec.  395.11 to read as follows:


Sec.  395.11  Supporting documents.

    (a) Effective date. This section takes effect December 18, 2017.
    (b) Submission of supporting documents to motor carrier. Except 
drivers for a private motor carrier of passengers (nonbusiness), a 
driver must submit to the driver's employer the driver's supporting 
documents within 13 days of either the 24-hour period to which the 
documents pertain or the day the document comes into the driver's 
possession, whichever is later.
    (c) Supporting document retention. (1) Subject to paragraph (d) of 
this section, a motor carrier must retain each supporting document 
generated or received in the normal course of business in the following 
categories for each of its drivers for every 24-hour period to verify 
on-duty not driving time in accordance with Sec.  395.8(k):
    (i) Each bill of lading, itinerary, schedule, or equivalent 
document that indicates the origin and destination of each trip;
    (ii) Each dispatch record, trip record, or equivalent document;
    (iii) Each expense receipt related to any on-duty not driving time;
    (iv) Each electronic mobile communication record, reflecting 
communications transmitted through a fleet management system; and
    (v) Each payroll record, settlement sheet, or equivalent document 
that indicates payment to a driver.
    (2)(i) A supporting document must include each of the following 
data elements:
    (A) On the document or on another document that enables the carrier 
to link the document to the driver, the driver's name or personal 
identification number (PIN) or a unit (vehicle) number if the unit 
number can be associated with the driver operating the unit;
    (B) The date, which must be the date at the location where the date 
is recorded;
    (C) The location, which must include the name of the nearest city, 
town, or village to enable Federal, State, or local enforcement 
personnel to quickly determine a vehicle's location on a standard map 
or road atlas; and
    (D) Subject to paragraph (c)(2)(ii) of this section, the time, 
which must be convertible to the local time at the location where it is 
recorded.
    (ii) If a driver has fewer than eight supporting documents 
containing the four data elements under paragraph (c)(2)(i) of this 
section for a 24-hour period, a document containing the data elements 
under paragraphs (c)(2)(i)(A) through (C) of this section is considered 
a supporting document for purposes of paragraph (d) of this section.
    (d) Maximum number of supporting documents. (1) Subject to 
paragraphs (d)(3) and (4) of this section, a motor carrier need not 
retain more than eight supporting documents for an individual driver's 
24-hour period under paragraph (c) of this section.
    (2) In applying the limit on the number of documents required under 
paragraph (d)(1) of this section, each electronic mobile communication 
record applicable to an individual driver's 24-hour period shall be 
counted as a single document.
    (3) If a motor carrier has more than eight supporting documents for 
a driver's 24 hour period, the motor carrier must retain the supporting 
documents containing the earliest and the latest time indications among 
the eight supporting documents retained.
    (4) In addition to other supporting documents required under this 
section, and notwithstanding the maximum number of documents under 
paragraph (d)(1) of this section, a motor carrier that requires a 
driver to complete a paper record of duty status under Sec.  
395.8(a)(1)(iii) must maintain toll receipts for any period when the 
driver kept paper records of duty status.
    (e) Link to driver's record of duty status. A motor carrier must 
retain supporting documents in such a manner that they may be 
effectively matched to the corresponding driver's record of duty 
status.
    (f) Prohibition of destruction. No motor carrier or driver may 
obscure, deface, destroy, mutilate, or alter existing information 
contained in a supporting document.
    (g) Supporting documents at roadside. (1) Upon request during a 
roadside inspection, a driver must make available

[[Page 78385]]

to an authorized Federal, State, or local official for the official's 
review any supporting document in the driver's possession.
    (2) A driver need not produce a supporting document under paragraph 
(g)(1) of this section in a format other than the format in which the 
driver possesses it.
    (h) Self-compliance systems. (1) FMCSA may authorize on a case-by-
case basis motor carrier self-compliance systems.
    (2) Requests for use of a supporting document self-compliance 
system may be submitted to FMCSA under the procedures described in 49 
CFR part 381, subpart C (Procedures for Applying for Exemptions).
    (3) FMCSA will consider requests concerning types of supporting 
documents retained by a motor carrier under Sec.  395.8(k)(1) and the 
method by which a driver retains a copy of the record of duty status 
for the previous 7 days and makes it available for inspection while on 
duty in accordance with Sec.  395.8.

0
16. Amend Sec.  395.15 by revising paragraph (a) to read as follows:


Sec.  395.15  Automatic on-board recording devices.

    (a) Authority to use. (1) A motor carrier that installs and 
requires a driver to use an automatic on-board recording device in 
accordance with this section before December 18, 2017 may continue to 
use the compliant automatic on-board recording device no later than 
December 16, 2019. Otherwise, the authority to use automatic on-board 
recording devices under this section ends on December 18, 2017.
    (2) In accordance with paragraph (a)(1) of this section, a motor 
carrier may require a driver to use an automatic on-board recording 
device to record the driver's hours of service.
    (3) Every driver required by a motor carrier to use an automatic 
on-board recording device shall use such device to record the driver's 
hours of service.
* * * * *


Sec. Sec.  395.16-395.19  [Added and Reserved]

0
17. Add and reserve Sec. Sec.  395.16 through 395.19 in subpart A.

0
18. Amend part 395 by adding a new subpart B, consisting of Sec. Sec.  
395.20 through 395.38, and Appendix A to Subpart B of Part 395, to read 
as follows:
Subpart B--Electronic Logging Devices (ELDs)
Sec.
395.20 ELD applicability and scope.
395.22 Motor carrier responsibilities--In general.
395.24 Driver responsibilities--In general.
395.26 ELD data automatically recorded.
395.28 Special driving categories; other driving statuses.
395.30 ELD record submissions, edits, annotations, and data 
retention.
395.32 Non-authenticated driver logs.
395.34 ELD malfunctions and data diagnostic events.
395.36 Driver access to records.
395.38 Incorporation by reference.
Appendix A to Subpart B of Part 395--Functional Specifications for 
All Electronic Logging Devices (ELDS)

Subpart B--Electronic Logging Devices (ELDs)


Sec.  395.20  ELD applicability and scope.

    (a) Scope. This subpart applies to ELDs used to record a driver's 
hours of service under Sec.  395.8(a).
    (b) Applicability. An ELD used after December 18, 2017 must meet 
the requirements of this subpart.


Sec.  395.22  Motor carrier responsibilities--In general.

    (a) Registered ELD required. A motor carrier required to use an ELD 
must use only an ELD that is listed on the Federal Motor Carrier Safety 
Administration's registered ELDs list, accessible through the Agency's 
Web site, www.fmcsa.dot.gov/devices.
    (b) User rights management. (1) This paragraph applies to a motor 
carrier whose drivers use ELDs and to the motor carrier's support 
personnel who have been authorized by the motor carrier to access ELD 
records and make or suggest authorized edits.
    (2) A motor carrier must:
    (i) Manage ELD accounts, including creating, deactivating, and 
updating accounts, and ensure that properly authenticated individuals 
have ELD accounts with appropriate rights;
    (ii) Assign a unique ELD username to each user account with the 
required user identification data;
    (iii) Ensure that a driver's license used in the creation of an ELD 
driver account is valid and corresponds to the driver using the ELD 
account; and
    (iv) Ensure that information entered to create a new account is 
accurate.
    (c) Driver identification data. (1) The ELD user account assigned 
by the motor carrier to a driver requires the following data elements:
    (i) A driver's first and last name, as reflected on the driver's 
license;
    (ii) A unique ELD username selected by the motor carrier;
    (iii) The driver's valid driver's license number; and
    (iv) The State or jurisdiction that issued the driver's license.
    (2) The driver's license number or Social Security number must not 
be used as, or as part of, the username for the account created on an 
ELD.
    (d) Motor carrier support personnel identification data. The ELD 
user account assigned by a motor carrier to support personnel requires 
the following data elements:
    (1) The individual's first and last name, as reflected on a 
government issued identification; and
    (2) A unique ELD username selected by the motor carrier.
    (e) Proper log-in required. The motor carrier must require that its 
drivers and support personnel log into the ELD system using their 
proper identification data.
    (f) Calibration. A motor carrier must ensure that an ELD is 
calibrated and maintained in accordance with the provider's 
specifications.
    (g) Portable ELDs. If a driver uses a portable ELD, the motor 
carrier shall ensure that the ELD is mounted in a fixed position during 
the operation of the commercial motor vehicle and visible to the driver 
when the driver is seated in the normal driving position.
    (h) In-vehicle information. A motor carrier must ensure that its 
drivers possess onboard a commercial motor vehicle an ELD information 
packet containing the following items:
    (1) A user's manual for the driver describing how to operate the 
ELD;
    (2) An instruction sheet for the driver describing the data 
transfer mechanisms supported by the ELD and step-by-step instructions 
for the driver to produce and transfer the driver's hours-of-service 
records to an authorized safety official;
    (3) An instruction sheet for the driver describing ELD malfunction 
reporting requirements and recordkeeping procedures during ELD 
malfunctions; and
    (4) A supply of blank driver's records of duty status graph-grids 
sufficient to record the driver's duty status and other related 
information for a minimum of 8 days.
    (i) Record backup and security. (1) A motor carrier must retain for 
6 months a back-up copy of the ELD records on a device separate from 
that on which the original data are stored.
    (2) A motor carrier must retain a driver's ELD records so as to 
protect a driver's privacy in a manner consistent with sound business 
practices.
    (j) Record production. When requested by an authorized safety 
official, a motor carrier must produce ELD records in an electronic 
format either at the time of the request or, if the motor carrier has 
multiple offices or terminals, within the time permitted under Sec.  
390.29 of this subchapter.

[[Page 78386]]

Sec.  395.24  Driver responsibilities--In general.

    (a) In general. A driver must provide the information the ELD 
requires as prompted by the ELD and required by the motor carrier.
    (b) Driver's duty status. A driver must input the driver's duty 
status by selecting among the following categories available on the 
ELD:
    (1) ``Off duty'' or ``OFF'' or ``1'';
    (2) ``Sleeper berth'' or ``SB'' or ``2'', to be used only if 
sleeper berth is used;
    (3) ``Driving'' or ``D'' or ``3''; or
    (4) ``On-duty not driving'' or ``ON'' or ``4''.
    (c) Miscellaneous data. (1) A driver must manually input the 
following information in the ELD:
    (i) Annotations, when applicable;
    (ii) Driver's location description, when prompted by the ELD; and
    (iii) Output file comment, when directed by an authorized safety 
officer.
    (2) A driver must manually input or verify the following 
information on the ELD:
    (i) Commercial motor vehicle power unit number;
    (ii) Trailer number(s), if applicable; and
    (iii) Shipping document number, if applicable.
    (d) Driver use of ELD. On request by an authorized safety official, 
a driver must produce and transfer from an ELD the driver's hours-of-
service records in accordance with the instruction sheet provided by 
the motor carrier.


Sec.  395.26  ELD data automatically recorded.

    (a) In general. An ELD provides the following functions and 
automatically records the data elements listed in this section in 
accordance with the requirements contained in appendix A to subpart B 
of this part.
    (b) Data automatically recorded. The ELD automatically records the 
following data elements:
    (1) Date;
    (2) Time;
    (3) CMV geographic location information;
    (4) Engine hours;
    (5) Vehicle miles;
    (6) Driver or authenticated user identification data;
    (7) Vehicle identification data; and
    (8) Motor carrier identification data.
    (c) Change of duty status. When a driver indicates a change of duty 
status under Sec.  395.24(b), the ELD records the data elements in 
paragraphs (b)(1) through (8) of this section.
    (d) Intermediate recording. (1) When a commercial motor vehicle is 
in motion and there has not been a duty status change or another 
intermediate recording in the previous 1 hour, the ELD automatically 
records an intermediate recording that includes the data elements in 
paragraphs (b)(1) through (8) of this section.
    (2) If the intermediate recording is created during a period when 
the driver indicates authorized personal use of a commercial motor 
vehicle, the data elements in paragraphs (b)(4) and (5) of this section 
(engine hours and vehicle miles) will be left blank and paragraph 
(b)(3) of this section (location) will be recorded with a single 
decimal point resolution (approximately within a 10-mile radius).
    (e) Change in special driving category. If a driver indicates a 
change in status under Sec.  395.28(a)(2), the ELD records the data 
elements in paragraphs (b)(1) through (8) of this section.
    (f) Certification of the driver's daily record. The ELD provides a 
function for recording the driver's certification of the driver's 
records for every 24-hour period. When a driver certifies or 
recertifies the driver's records for a given 24-hour period under Sec.  
395.30(b)(2), the ELD records the date, time and driver identification 
data elements in paragraphs (b)(1), (2), and (6) of this section.
    (g) Log in/log out. When an authorized user logs into or out of an 
ELD, the ELD records the data elements in paragraphs (b)(1) and (2) and 
(b)(4) through (8) of this section.
    (h) Engine power up/shut down. When a commercial motor vehicle's 
engine is powered up or powered down, the ELD records the data elements 
in paragraphs (b)(1) through (8) of this section.
    (i) Authorized personal use. If the record is created during a 
period when the driver has indicated authorized personal use of a 
commercial motor vehicle, the data element in paragraph (b)(3) of this 
section is logged with a single decimal point resolution (approximately 
within a 10-mile radius).
    (j) Malfunction and data diagnostic event. When an ELD detects or 
clears a malfunction or data diagnostic event, the ELD records the data 
elements in paragraphs (b)(1) and (2) and (b)(4) through (8) of this 
section.


Sec.  395.28  Special driving categories; other driving statuses.

    (a) Special driving categories--(1) Motor carrier options. A motor 
carrier may configure an ELD to authorize a driver to indicate that the 
driver is operating a commercial motor vehicle under any of the 
following special driving categories:
    (i) Authorized personal use; and
    (ii) Yard moves.
    (2) Driver's responsibilities. A driver operating a commercial 
motor vehicle under one of the authorized categories listed in 
paragraph (a)(1) of this section:
    (i) Must select on the ELD the applicable special driving category 
before the start of the status and deselect when the indicated status 
ends; and
    (ii) When prompted by the ELD, annotate the driver's ELD record 
describing the driver's activity.
    (b) Drivers exempt from ELD use. A motor carrier may configure an 
ELD to designate a driver as exempt from ELD use.
    (c) Other driving statuses. A driver operating a commercial motor 
vehicle under any exception under Sec.  390.3(f) of this subchapter or 
Sec.  395.1 who is not covered under paragraph (a) or (b) of this 
section must annotate the driver's ELD record to explain the applicable 
exemption.


Sec.  395.30  ELD record submissions, edits, annotations, and data 
retention.

    (a) Accurate record keeping. A driver and the motor carrier must 
ensure that the driver's ELD records are accurate.
    (b) Review of records and certification by driver. (1) A driver 
must review the driver's ELD records, edit and correct inaccurate 
records, enter any missing information, and certify the accuracy of the 
information.
    (2) Using the certification function of the ELD, the driver must 
certify the driver's records by affirmatively selecting ``Agree'' 
immediately following a statement that reads, ``I hereby certify that 
my data entries and my record of duty status for this 24-hour period 
are true and correct.'' The driver must certify the record immediately 
after the final required entry has been made or corrected for the 24-
hour period.
    (3) The driver must submit the driver's certified ELD records to 
the motor carrier in accordance with Sec.  395.8(a)(2).
    (4) If any edits are necessary after the driver submits the records 
to the motor carrier, the driver must recertify the record after the 
edits are made.
    (c) Edits, entries, and annotations. (1) Subject to the edit 
limitations of an ELD, a driver may edit, enter missing information, 
and annotate ELD recorded events. When edits, additions, or annotations 
are necessary, a driver must use the ELD and respond to the ELD's 
prompts.
    (2) The driver or support personnel must annotate each change or 
addition to a record.
    (3) In the case of team drivers, if there were a mistake resulting 
in the wrong driver being assigned driving-time hours

[[Page 78387]]

by the ELD, and if the team drivers were both indicated in each other's 
records for that period as co-drivers, driving time may be edited and 
reassigned between the team drivers following the procedure supported 
by the ELD.
    (d) Motor carrier-proposed edits. (1) On review of a driver's 
submitted records, the motor carrier may request edits to a driver's 
records of duty status to ensure accuracy. A driver must confirm or 
reject any proposed change, implement the appropriate edits on the 
driver's record of duty status, and recertify and resubmit the records 
in order for any motor carrier-proposed changes to take effect.
    (2) A motor carrier may not request edits to the driver's 
electronic records before the records have been submitted by the 
driver.
    (3) Edits requested by any system or by any person other than the 
driver must require the driver's electronic confirmation or rejection.
    (e) Coercion prohibited. A motor carrier may not coerce a driver to 
make a false certification of the driver's data entries or record of 
duty status.
    (f) Motor carrier data retention requirements. A motor carrier must 
not alter or erase, or permit or require alteration or erasure of, the 
original information collected concerning the driver's hours of 
service, the source data streams used to provide that information, or 
information contained in any ELD that uses the original information and 
HOS source data.


Sec.  395.32  Non-authenticated driver logs.

    (a) Tracking non-authenticated operation. The ELD must associate 
the non-authenticated operation of a commercial motor vehicle with a 
single account labeled ``Unidentified Driver'' as soon as the vehicle 
is in motion, if no driver has logged into the ELD.
    (b) Driver. When a driver logs into an ELD, the driver must review 
any unassigned driving time when prompted by the ELD and must:
    (1) Assume any records that belong to the driver under the driver's 
account; or
    (2) Indicate that the records are not attributable to the driver.
    (c) Motor carrier. (1) A motor carrier must ensure that records of 
unidentified driving are reviewed and must:
    (i) Annotate the record, explaining why the time is unassigned; or
    (ii) Assign the record to the appropriate driver to correctly 
reflect the driver's hours of service.
    (2) A motor carrier must retain unidentified driving records for 
each ELD for a minimum of 6 months from the date of receipt.
    (3) During a safety inspection, audit or investigation by an 
authorized safety official, a motor carrier must make available 
unidentified driving records from the ELD corresponding to the time 
period for which ELD records are required.


Sec.  395.34  ELD malfunctions and data diagnostic events.

    (a) Recordkeeping during ELD malfunctions. In case of an ELD 
malfunction, a driver must do the following:
    (1) Note the malfunction of the ELD and provide written notice of 
the malfunction to the motor carrier within 24 hours;
    (2) Reconstruct the record of duty status for the current 24-hour 
period and the previous 7 consecutive days, and record the records of 
duty status on graph-grid paper logs that comply with Sec.  395.8, 
unless the driver already possesses the records or the records are 
retrievable from the ELD; and
    (3) Continue to manually prepare a record of duty status in 
accordance with Sec.  395.8 until the ELD is serviced and brought back 
into compliance with this subpart.
    (b) Inspections during malfunctions. When a driver is inspected for 
hours of service compliance during an ELD malfunction, the driver must 
provide the authorized safety official the driver's records of duty 
status manually kept as specified under paragraphs (a)(2) and (3) of 
this section.
    (c) Driver requirements during ELD data diagnostic events. If an 
ELD indicates that there is a data inconsistency that generates a data 
diagnostic event, the driver must follow the motor carrier's and ELD 
provider's recommendations in resolving the data inconsistency.
    (d) Motor carrier requirements for repair, replacement, or service. 
(1) If a motor carrier receives or discovers information concerning the 
malfunction of an ELD, the motor carrier must take actions to correct 
the malfunction of the ELD within 8 days of discovery of the condition 
or a driver's notification to the motor carrier, whichever occurs 
first.
    (2) A motor carrier seeking to extend the period of time permitted 
for repair, replacement, or service of one or more ELDs shall notify 
the FMCSA Division Administrator for the State of the motor carrier's 
principal place of business within 5 days after a driver notifies the 
motor carrier under paragraph (a)(1) of this section. Each request for 
an extension under this section must be signed by the motor carrier and 
must contain:
    (i) The name, address, and telephone number of the motor carrier 
representative who files the request;
    (ii) The make, model, and serial number of each ELD;
    (iii) The date and location of each ELD malfunction as reported by 
the driver to the carrier; and
    (iv) A concise statement describing actions taken by the motor 
carrier to make a good faith effort to repair, replace, or service the 
ELD units, including why the carrier needs additional time beyond the 8 
days provided by this section.
    (3) If FMCSA determines that the motor carrier is continuing to 
make a good faith effort to ensure repair, replacement, or service to 
address the malfunction of each ELD, FMCSA may allow an additional 
period.
    (4) FMCSA will provide written notice to the motor carrier of its 
determination. The determination may include any conditions that FMCSA 
considers necessary to ensure hours-of-service compliance. The 
determination shall constitute a final agency action.
    (5) A motor carrier providing a request for extension that meets 
the requirements of paragraph (d)(2) of this section is deemed in 
compliance with Sec.  395.8(a)(1)(i) and (a)(2) until FMCSA makes an 
extension determination under this section, provided the motor carrier 
and driver continue to comply with the other requirements of this 
section.


Sec.  395.36  Driver access to records.

    (a) Records on ELD. Drivers must be able to access their own ELD 
records. A motor carrier must not introduce a process that would 
require a driver to go through the motor carrier to obtain copies of 
the driver's own ELD records if such records exist on or are 
automatically retrievable through the ELD operated by the driver.
    (b) Records in motor carrier's possession. On request, a motor 
carrier must provide a driver with access to and copies of the driver's 
own ELD records unavailable under paragraph (a) of this section during 
the period a motor carrier is required to retain the records under 
Sec.  395.8(k).


Sec.  395.38  Incorporation by reference.

    (a) Incorporation by reference. Certain materials are incorporated 
by reference in part 395, with the approval of the Director of the 
Office of the Federal Register under 5 U.S.C. 552(a), and 1 CFR part 
51. To enforce any edition other than that specified in this section, 
the Federal Motor Carrier Safety Administration must publish notice of 
the change in the Federal Register, and

[[Page 78388]]

the material must be available to the public. All approved material is 
available for inspection at the Federal Motor Carrier Safety 
Administration, Office of Analysis, Research and Technology, (800) 832-
5660, and is available from the sources listed below. It is also 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030 or go to https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) American National Standards Institute (ANSI). 11 West 42nd 
Street, New York, New York 10036, https://webstore.ansi.org, (212) 642-
4900.
    (1) ANSI INCITS 4-1986 (R2012), American National Standard for 
Information Systems--Coded Character Sets--7-Bit American National 
Standard Code for Information Interchange (7-Bit ASCII), approved June 
14, 2007, IBR in section 4.8.2.1, Appendix A to subpart B.
    (2) ANSI INCITS 446-2008 (R2013), American National Standard for 
Information Technology--Identifying Attributes for Named Physical and 
Cultural Geographic Features (Except Roads and Highways) of the United 
States, Territories, Outlying Areas, and Freely Associated Areas, and 
the Waters of the Same to the Limit of the Twelve-Mile Statutory Zone, 
approved October 28, 2008, IBR in section 4.4.2, Appendix A to subpart 
B.
    (c) Bluetooth SIG, Inc. 5209 Lake Washington Blvd. NE., Suite 350, 
Kirkland, WA 98033, https://www.bluetooth.org/Technical/Specifications/adopted.htm, (425) 691-3535.
    (1) Bluetooth SIG, Inc., Specification of the Bluetooth System: 
Wireless Connections Made Easy, Covered Core Package version 2.1 + EDR, 
volumes 0 through 4, approved July 26, 2007, IBR in sections 4.9.1, 
4.9.2, 4.10.1.4, 4.10.2, Appendix A to subpart B.
    (2) [Reserved]
    (d) Institute of Electrical and Electronic Engineers (IEEE) 
Standards Association. 445 Hoes Lane, Piscataway, NJ 08854-4141, https://standards.ieee.org/, (732) 981-0060.
    (1) IEEE Std 1667-2009, IEEE Standard for Authentication in Host 
Attachments of Transient Storage Devices, approved 11 November 2009, 
IBR in section 4.10.1.3, Appendix A to subpart B.
    (2) [Reserved]
    (e) Internet Engineering Task Force (IETF). C/o Association 
Management Solutions, LLC (AMS) 48377 Freemont Blvd., Suite 117, 
Freemont, CA 94538, (510) 492-4080.
    (1) IETF RFC 3565, Use of the Advanced Encryption Standard (AES) 
Encryption Algorithm in Cryptographic Message Syntax (CMS), approved 
July 2003, IBR in section 4.10.1.2, Appendix A to subpart B.
    (2) IETF RFC 4056, Use of the RSASSA-PSS Signature Algorithm in 
Cryptographic Message Syntax (CMS), approved June 2005, IBR in section 
4.10.1.2, Appendix A to subpart B.
    (3) IETF RFC 5246, The Transport Layer Security (TLS) Protocol 
Version 1.2, approved August 2008, IBR in section 4.10.1.1, Appendix A 
to subpart B.
    (4) IETF RFC 5321, Simple Mail Transfer Protocol, approved October 
2008, IBR in section 4.10.1.2, Appendix A to subpart B.
    (5) IETF RFC 5322, Internet Message Format, approved October 2008, 
IBR in section 4.10.1.2, Appendix A to subpart B.
    (6) IETF RFC 5751, Secure/Multipurpose Internet Mail Extensions (S/
MIME) Version 3.2, Message Specification, approved January 2010, IBR in 
section 4.10.1.2, Appendix A to subpart B.
    (7) IETF RFC 7230, Hypertext Transfer Protocol (HTTP/1.1): Message 
Syntax and Routing, approved June 2014, IBR in section 4.10.1.1, 
Appendix A to subpart B.
    (8) IETF RFC 7231, Hypertext Transfer Protocol (HTTP/1.1): 
Semantics and Content, approved June 2014, IBR in section 4.10.1.1, 
Appendix A to subpart B.
    (f) National Institute of Standards and Technology (NIST). 100 
Bureau Drive, Stop 1070, Gaithersburg, MD 20899-1070, https://www.nist.gov, (301) 975-6478.
    (1) Federal Information Processing Standards Publication (FIPS PUB) 
197, Advanced Encryption Standard (AES), approved November 26, 2001, 
IBR in sections 4.10.1.2 and 4.10.1.3, Appendix A to subpart B.
    (2) SP 800-32, Introduction to Public Key Technology and the 
Federal PKI Infrastructure, approved February 26, 2001, IBR in section 
4.10.1.2, Appendix A to subpart B.
    (g) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 153rd 
Drive, Beaverton, Oregon 97006, https://www.usb.org, (503) 619-0426.
    (1) USB Implementers Forum, Inc., Universal Serial Bus 
Specification, Revision 2.0, approved April 27, 2000, as revised 
through April 3, 2015, IBR in sections 4.9.1, 4.9.2, 4.10.1.3, and 
4.10.2, Appendix A to subpart B.
    (2) [Reserved]
    (h) World Wide Web Consortium (W3C). 32 Vassar Street, Building 32-
G514, Cambridge, MA 02139, https://www.w3.org, (617) 253-2613.
    (1) W3C Recommendation 27, SOAP Version 1.2 Part 1: Messaging 
Framework (Second Edition), including errata, approved April 2007, IBR 
in section 4.10.1.1, Appendix A to subpart B.
    (2) [Reserved]

Appendix A to Subpart B of Part 395--Functional Specifications for All 
Electronic Logging Devices (ELDs)

Table of Contents

1. Scope and Description Scope
    1.1. ELD Function
    1.2. System Users
    1.3. System Architecture
    1.4. System Design
    1.5. Sections of Appendix
2. Abbreviations
3. Definitions; Notations
    3.1. Definitions
    3.1.1. Databus
    3.1.2. ELD Event
    3.1.3. Exempt Driver
    3.1.4. Geo-Location
    3.1.5. Ignition Power Cycle, Ignition Power On Cycle, Ignition 
Power Off Cycle
    3.1.6. Unidentified Driver
    3.2. Notations
4. Functional Requirements
    4.1. ELD User Accounts
    4.1.1. Account Types
    4.1.2. Account Creation
    4.1.3. Account Security
    4.1.4. Account Management
    4.1.5. Non-Authenticated Operation
    4.2. ELD-Vehicle Interface
    4.3. ELD Inputs
    4.3.1. ELD Sensing
    4.3.1.1. Engine Power Status
    4.3.1.2. Vehicle Motion Status
    4.3.1.3. Vehicle Miles
    4.3.1.4. Engine Hours
    4.3.1.5. Date and Time
    4.3.1.6. CMV Position
    4.3.1.7. CMV VIN
    4.3.2. Driver's Manual Entries
    4.3.2.1. Driver's Entry of Required Event Data Fields
    4.3.2.2. Driver's Status Inputs
    4.3.2.2.1. Driver's Indication of Duty Status
    4.3.2.2.2. Driver's Indication of Situations Impacting Driving 
Time Recording
    4.3.2.3. Driver's Certification of Records
    4.3.2.4. Driver's Data Transfer Initiation Input
    4.3.2.5. Driver's Entry of an Output File Comment
    4.3.2.6. Driver's Annotation of Records
    4.3.2.7. Driver's Entry of Location Information
    4.3.2.8. Driver's Record Entry/Edit
    4.3.2.8.1 Mechanism for Driver Edits and Annotations
    4.3.2.8.2 Driver Edit Limitations
    4.3.3. Motor Carrier's Manual Entries
    4.3.3.1. ELD Configuration
    4.3.3.1.1. Configuration of Available Categories Impacting 
Driving Time Recording

[[Page 78389]]

    4.3.3.1.2. Configuration of Using ELDs
    4.3.3.1.3. Motor Carrier's Post-Review Electronic Edit Request
    4.4. ELD Processing and Calculations
    4.4.1. Conditions for Automatic Setting of Duty Status
    4.4.1.1. Automatic Setting of Duty Status to Driving
    4.4.1.2. Automatic Setting of Duty Status to On-Duty Not Driving
    4.4.1.3. Other Automatic Duty-Status Setting Actions Prohibited
    4.4.2. Geo-Location Conversions
    4.4.3. Date and Time Conversions
    4.4.4. Setting of Event Parameters in Records, Edits, and 
Entries
    4.4.4.1. Event Sequence Identifier (ID) Number
    4.4.4.2. Event Record Status, Event Record Origin, Event Type 
Setting
    4.4.4.2.1. Records Automatically Logged by ELD
    4.4.4.2.2. Driver Edits
    4.4.4.2.3. Driver Entries
    4.4.4.2.4. Driver's Assumption of Unidentified Driver Logs
    4.4.4.2.5. Motor Carrier Edit Suggestions
    4.4.4.2.6. Driver's Actions Over Motor Carrier Edit Suggestions
    4.4.5. Data Integrity Check Functions
    4.4.5.1. Event Data Check
    4.4.5.1.1. Event Checksum Calculation
    4.4.5.1.2. Event Data Check Calculation
    4.4.5.2. Line Data Check
    4.4.5.2.1. Line Checksum Calculation
    4.4.5.2.2. Line Data Check Calculation
    4.4.5.2.3. Line Data Check Value Inclusion in Output File
    4.4.5.3. File Data Check
    4.4.5.3.1. File Checksum Calculation
    4.4.5.3.2. File Data Check Value Calculation
    4.4.5.3.3. File Data Check Value Inclusion in Output File.
    4.5. ELD Recording
    4.5.1. Events and Data To Record
    4.5.1.1. Event: Change in Driver's Duty Status
    4.5.1.2. Event: Intermediate Logs
    4.5.1.3. Event: Change in Driver's Indication of Allowed 
Conditions that Impact Driving Time Recording
    4.5.1.4. Event: Driver's Certification of Own Records
    4.5.1.5. Event: Driver's Login/Logout Activity
    4.5.1.6. Event: CMV's Engine Power Up and Shut Down Activity
    4.5.1.7. Event: ELD Malfunction and Data Diagnostics Occurrence
    4.6. ELD's Self-Monitoring of Required Functions
    4.6.1. Compliance Self-Monitoring, Malfunctions and Data 
Diagnostic Events
    4.6.1.1. Power Compliance Monitoring
    4.6.1.2. Engine Synchronization Compliance Monitoring
    4.6.1.3. Timing Compliance Monitoring
    4.6.1.4. Positioning Compliance Monitoring
    4.6.1.5. Data Recording Compliance Monitoring
    4.6.1.6. Monitoring Records Logged under the Unidentified Driver 
Profile
    4.6.1.7. Data Transfer Compliance Monitoring
    4.6.1.8. Other Technology-Specific Operational Health Monitoring
    4.6.2. ELD Malfunction Status Indicator
    4.6.2.1. Visual Malfunction Indicator
    4.6.3. ELD Data Diagnostic Status Indicator
    4.6.3.1. Visual Data Diagnostics Indicator
    4.7. Special Purpose ELD Functions
    4.7.1. Driver's ELD Volume Control
    4.7.2. Driver's Access To Own ELD Records
    4.7.3. Privacy Preserving Provision for Use During Personal Uses 
of a CMV
    4.8. ELD Outputs
    4.8.1. Printout or Display
    4.8.1.1. Print Paper Requirements
    4.8.1.2. Display Requirements
    4.8.1.3. Information To Be Shown on the Printout and Display at 
Roadside
    4.8.2. ELD Data File
    4.8.2.1. ELD Output File Standard
    4.8.2.1.1. Header Segment
    4.8.2.1.2. User List
    4.8.2.1.3. CMV List
    4.8.2.1.4. ELD Event List for Driver's Record of Duty Status
    4.8.2.1.5. Event Annotations, Comments, and Driver's Location 
Description
    4.8.2.1.6. ELD Event List for Driver's Certification of Own 
Records
    4.8.2.1.7. Malfunction and Diagnostic Event Records
    4.8.2.1.8. ELD Login/Logout Report
    4.8.2.1.9. CMV's Engine Power-Up and Shut Down Activity
    4.8.2.1.10. ELD Event Log List for the Unidentified Driver 
Profile
    4.8.2.1.11. File Data Check Value
    4.8.2.2. ELD Output File Name Standard
    4.9. Data Transfer Capability Requirements
    4.9.1. Data Transfer During Roadside Safety Inspections
    4.9.2. Motor Carrier Data Reporting
    4.10. Communications Standards for the Transmittal of Data Files 
From ELDs
    4.10.1. Data Transfer Mechanisms
    4.10.1.1. Wireless Data Transfer via Web Services
    4.10.1.2. Wireless Data Transfer Through E-Mail
    4.10.1.3. Data Transfer via USB 2.0
    4.10.1.4 Wireless Data Transfer via Bluetooth[supreg]
    4.10.2. Motor Carrier Data Transmission
5. ELD Registration and Certification
    5.1. ELD Provider's Registration
    5.1.1. Registering Online
    5.1.2. Keeping Information Current
    5.1.3. Authentication Information Distribution
    5.2. Certification of Conformity With FMCSA Standards
    5.2.1. Online Certification
    5.2.2. Procedure To Validate an ELD's Authenticity
    5.3. Publicly Available Information
    5.4. Removal of Listed Certification
    5.4.1. Removal Process
    5.4.2. Notice
    5.4.3. Response
    5.4.4. Agency Action
    5.4.5. Administrative Review
6. References
7. Data Elements Dictionary
    7.1. 24-Hour Period Starting Time
    7.2. Carrier Name
    7.3. Carrier's USDOT Number
    7.4. CMV Power Unit Number
    7.5. CMV VIN
    7.6. Comment/Annotation
    7.7. Data Diagnostic Event Indicator Status
    7.8. Date
    7.9. Distance Since Last Valid Coordinates
    7.10. Driver's License Issuing State
    7.11. Driver's License Number
    7.12. Driver's Location Description
    7.13. ELD Account Type
    7.14. ELD Authentication Value
    7.15. ELD Identifier
    7.16. ELD Provider
    7.17. ELD Registration ID
    7.18. ELD Username
    7.19. Engine Hours
    7.20. Event Code
    7.21. Event Data Check Value
    7.22. Event Record Origin
    7.23. Event Record Status
    7.24. Event Sequence ID Number
    7.25. Event Type
    7.26. Exempt Driver Configuration
    7.27. File Data Check Value
    7.28. First Name
    7.29. Geo-Location
    7.30. Last Name
    7.31. Latitude
    7.32. Line Data Check Value
    7.33. Longitude
    7.34. Malfunction/Diagnostic Code
    7.35. Malfunction Indicator Status
    7.36. Multiday Basis Used
    7.37. Order Number
    7.38. Output File Comment
    7.39. Shipping Document Number
    7.40. Time
    7.41. Time Zone Offset from UTC
    7.42. Trailer Number(s)
    7.43. Vehicle Miles

1. Scope and Description

    (a) This appendix specifies the minimal requirements for an 
electronic logging device (ELD) necessary for an ELD provider to 
build and certify that its technology is compliant with this 
appendix.

1.1. ELD Function

    The ELD discussed in this appendix is an electronic module 
capable of recording the electronic records of duty status for CMV 
drivers using the unit in a driving environment within a CMV and 
meets the compliance requirements in this appendix.

1.2. System Users

    Users of ELDs are:
    (a) CMV drivers employed by a motor carrier; and
    (b) Support personnel who have been authorized by the motor 
carrier to:
    (1) Create, remove, and manage user accounts;
    (2) Configure allowed ELD parameters; and
    (3) Access, review, and manage drivers' ELD records on behalf of 
the motor carrier.

1.3. System Architecture

    An ELD may be implemented as a stand-alone technology or within 
another electronic module. It may be installed in a CMV or may be 
implemented on a handheld unit that may be moved from vehicle to 
vehicle. The functional requirements are the same for all types of 
system architecture that may be used in implementing the ELD 
functionality.

[[Page 78390]]

1.4. System Design

    (a) An ELD is integrally synchronized with the engine of the CMV 
such that driving time can be automatically recorded for the driver 
operating the CMV and using the ELD.
    (b) An ELD allows for manual inputs from the driver and the 
motor carrier support personnel and automatically captures date and 
time, vehicle position, and vehicle operational parameters.
    (c) An ELD records a driver's electronic RODS and other 
supporting events with the required data elements specified in this 
appendix and retains data to support the performance requirements 
specified in this appendix.
    (d) An ELD generates a standard data file output and transfers 
it to an authorized safety official upon request.
    (e) This appendix specifies minimally required data elements 
that must be part of an event record such that a standard ELD output 
file can be produced by all compliant ELDs.
    (f) Figure 1 provides a visual layout of how this appendix is 
generally organized to further explain the required sub-functions of 
an ELD.
[GRAPHIC] [TIFF OMITTED] TR16DE15.000

1.5. Sections of Appendix

    (a) Section 2 lists the abbreviations used throughout this 
appendix.
    (b) Section 3 provides definitions for terms and notations used 
in this document.
    (c) Section 4 lists functional requirements for an ELD. More 
specifically, section 4.1 describes the security requirements for 
account management within an ELD system and introduces the term 
``Unidentified Driver'' account. Section 4.2 explains internal 
engine synchronization requirements and its applicability when used 
in recording a driver's record of duty status in CMVs. Section 4.3 
describes the inputs of an ELD which includes automatically measured 
signals by the ELD as covered in section 4.3.1, and manual entries 
by the authenticated driver as covered in section 4.3.2 and by the 
motor carrier as covered in section 4.3.3. The ELD requirements for 
internal processing and tracking of information flow are described 
in section 4.4, which includes conditions for and prohibitions 
against automatic setting of duty-status in section 4.4.1, required 
geo-location and date and time conversion functions in sections 
4.4.2 and 4.4.3, respectively, use of event attributes for tracking 
of edit and entry history in section 4.4.4, and the use of data 
check functions in the recording of ELD logs in section 4.4.5 as 
standard security measures for all ELDs. Section 4.5 describes the 
events an ELD must record and the data elements each type of event 
must include. Section 4.6 introduces device self-monitoring 
requirements and standardizes the minimal set of malfunctions and 
data diagnostic events an ELD must be able to detect. Section 4.7 
introduces technical functions that are intended to guard a driver 
against harassment and introduces a privacy preserving provision 
when a driver operates a CMV for personal purposes. Section 4.8 
explains ELD outputs, which are the information displayed to a user 
and the standard data output file an ELD must produce. Sections 4.9 
and 4.10, respectively, describe the data reporting requirements and 
the communications protocols.
    (d) Section 5 describes the ELD certification and registration 
process.
    (e) Section 6 lists the cited references throughout this 
appendix.
    (f) Section 7 provides a data elements dictionary referencing 
each data element identified in this appendix.

[[Page 78391]]

2. Abbreviations

3pDP Third-Party Developers' Partnership
ASCII American Standard Code for Information Interchange
CAN Control Area Network
CMV Commercial Motor Vehicle
ECM Electronic Control Module
ELD Electronic Logging Device
FMCSA Federal Motor Carrier Safety Administration
HOS Hours of Service
HTTP Hypertext Transfer Protocol
HTTPS Hypertext Transfer Protocol Secure
ICD Interface Control Document
SAFER Safety and Fitness Electronic Records
RFC Request for Comments
RODS Records of Duty Status
TLS Transport Layer Security
UCT Coordinated Universal Time
USB Universal Serial Bus
WSDL Web Services Definition Language
XML Extensible Markup Language
XOR Exclusive Or {bitwise binary operation{time} 

3. Definitions; Notations

3.1. Definitions

3.1.1. Databus

    A vehicle databus refers to an internal communications network 
that interconnects components inside a vehicle and facilitates 
exchange of data between subsystems typically using serial or 
control area network protocols.

3.1.2. ELD Event

    An ELD event refers to a discrete instance in time when the ELD 
records data with the data elements specified in this appendix. The 
discrete ELD events relate to the driver's duty status and ELD's 
operational integrity. They are either triggered by input from the 
driver (driver's duty status changes, driver's login/logout 
activity, etc.) or triggered by the ELD's internal monitoring 
functions (ELD malfunction detection, data diagnostics detection, 
intermediate logs, etc.). ELD events and required data elements for 
each type of ELD event are described in detail in section 4.5.1 of 
this appendix.

3.1.3. Exempt Driver

    As specified in further detail in section 4.3.3.1.2 of this 
appendix, an ELD must allow a motor carrier to configure an ELD for 
a driver who may be exempt from the use of the ELD. An example of an 
exempt driver would be a driver operating under the short-haul 
exemption in Sec.  395.1(e) of this part (100 air-mile radius driver 
and non-CDL 150-air mile radius driver). Even though exempt drivers 
do not have to use an ELD, in operations when an ELD equipped CMV 
may be shared between exempt and non-exempt drivers, motor carriers 
can use this allowed configuration to avoid issues with unidentified 
driver data diagnostics errors.

3.1.4. Geo-Location

    Geo-location is the conversion of a position measurement in 
latitude/longitude coordinates into a description of the distance 
and direction to a recognizable nearby location name. Geo-location 
information is used on an ELD's display or printout.

3.1.5. Ignition Power Cycle, Ignition Power On Cycle, Ignition Power 
Off Cycle

    (a) An ignition power cycle refers to the engine's power status 
changing from ``on to off'' or ``off to on'', typically with the 
driver controlling engine power status by switching the ignition key 
positions.
    (b) An ignition power on cycle refers to the engine power 
sequence changing from ``off to on and then off''. This refers to a 
continuous period when a CMV's engine is powered.
    (c) An ignition power off cycle refers to the engine power 
sequence changing from ``on to off and then on''. This refers to a 
continuous period when a CMV's engine is not powered.

3.1.6. Unidentified Driver

    ``Unidentified Driver'' refers to the operation of a CMV 
featuring an ELD without an authenticated driver logging in the 
system. Functional specifications in this appendix require an ELD to 
automatically capture driving time under such conditions and 
attribute such records to the unique ``Unidentified Driver 
account,'' as specified in section 4.1.5 of this appendix, until the 
motor carrier and the driver review the records and they are 
assigned to the true and correct owner, as described in Sec.  395.32 
of this part.

3.2. Notations

    Throughout this appendix the following notations are used when 
data elements are referenced.
    (a) < . > indicates a parameter an ELD must track. For example 
refers to the unique  or identifier specified during 
the creation of an ELD account with the requirements set forth in 
section 7.18 of this appendix.
    (b) { .{time}  indicates which of multiple values of a parameter 
is being referenced. For example  refers specifically to the ELD username for the co-
driver.
    (c)  indicates a carriage return or new line or end of the 
current line. This notation is used in section 4.8.2 of this 
appendix, which describes the standard ELD output file.

4. Functional Requirements

4.1. ELD User Accounts

4.1.1. Account Types

    An ELD must support a user account structure that separates 
drivers and motor carrier's support personnel (i.e. non-drivers).

4.1.2. Account Creation

    (a) Each user of the ELD must have a valid active account on the 
ELD with a unique identifier assigned by the motor carrier.
    (b) Each driver account must require the entry of the driver's 
license number and the State or jurisdiction that issued the 
driver's license into the ELD during the account creation process. 
The driver account must securely store this information on the ELD.
    (c) An ELD must not allow creation of more than one driver 
account associated with a driver's license for a given motor 
carrier.
    (d) A driver account must not have administrative rights to 
create new accounts on the ELD.
    (e) A support personnel account must not allow recording of ELD 
data for its account holder.
    (f) An ELD must reserve a unique driver account for recording 
events during non-authenticated operation of a CMV. This appendix 
will refer to this account as the ``unidentified driver account.''

4.1.3. Account Security

    (a) An ELD must provide secure access to data recorded and 
stored on the system by requiring user authentication during system 
login.
    (b) Driver accounts must only have access to data associated 
with that driver, protecting the authenticity and confidentiality of 
the collected information.

4.1.4. Account Management

    (a) An ELD must be capable of separately recording and retaining 
ELD data for each individual driver using the ELD.
    (b) An ELD must provide for and require concurrent 
authentication for team drivers.
    (c) If more than one ELD unit is used to record a driver's 
electronic records within a motor carrier's operation, the ELD in 
the vehicle the driver is operating most recently must be able to 
produce a complete ELD report for that driver, on demand, for the 
current 24-hour period and the previous 7 consecutive days.

4.1.5. Non-Authenticated Operation

    (a) An ELD must associate all non-authenticated operation of a 
CMV with a single ELD account labeled unidentified driver.
    (b) If a driver does not log onto the ELD, as soon as the 
vehicle is in motion, the ELD must:
    (1) Provide a visual or visual and audible warning reminding the 
driver to stop and log in to the ELD;
    (2) Record accumulated driving and on-duty, not-driving, time in 
accordance with the ELD defaults described in section 4.4.1 of this 
appendix under the unidentified driver profile; and
    (3) Not allow entry of any information into the ELD other than a 
response to the login prompt.

4.2. ELD-Vehicle Interface

    (a) An ELD must be integrally synchronized with the engine of 
the CMV. Engine synchronization for purposes of ELD compliance means 
the monitoring of the vehicle's engine operation to automatically 
capture the engine's power status, vehicle's motion status, miles 
driven value, and engine hours value when the CMV's engine is 
powered.
    (b) An ELD used while operating a CMV that is a model year 2000 
or later model year, as indicated by the vehicle identification 
number (VIN), that has an engine electronic control module (ECM) 
must establish a link to the engine ECM when the CMV's engine is 
powered and receive automatically the engine's power status, 
vehicle's motion status, miles driven value, and engine hours value 
through the serial or Control Area Network communication protocols 
supported by the vehicle's engine ECM. If the vehicle does not have 
an ECM, an ELD may use alternative sources to obtain or estimate 
these

[[Page 78392]]

vehicle parameters with the listed accuracy requirements under 
section 4.3.1 of this appendix.

4.3. ELD Inputs

4.3.1. ELD Sensing

4.3.1.1. Engine Power Status

    An ELD must be powered and become fully functional within 1 
minute of the vehicle's engine receiving power and must remain 
powered for as long as the vehicle's engine stays powered.

4.3.1.2. Vehicle Motion Status

    (a) An ELD must automatically determine whether a CMV is in 
motion or stopped by comparing the vehicle speed information with 
respect to a set speed threshold as follows:
    (1) Once the vehicle speed exceeds the set speed threshold, it 
must be considered in motion.
    (2) Once in motion, the vehicle must be considered in motion 
until its speed falls to 0 miles per hour and stays at 0 miles per 
hour for 3 consecutive seconds. Then, the vehicle will be considered 
stopped.
    (3) An ELD's set speed threshold for determination of the in-
motion state for the purpose of this section must not be 
configurable to greater than 5 miles per hour.
    (b) If an ELD is required to have a link to the vehicle's engine 
ECM, vehicle speed information must be acquired from the engine ECM. 
Otherwise, vehicle speed information must be acquired using an 
independent source apart from the positioning services described 
under section 4.3.1.6 of this appendix and must be accurate within 
3 miles per hour of the CMV's true ground speed for 
purposes of determining the in-motion state for the CMV.

4.3.1.3. Vehicle Miles

    (a) An ELD must monitor vehicle miles as accumulated by a CMV 
over the course of an ignition power on cycle (accumulated vehicle 
miles) and over the course of CMV's operation (total vehicle miles). 
Vehicle miles information must use or must be converted to units of 
whole miles.
    (b) If the ELD is required to have a link to the vehicle's 
engine ECM as specified in section 4.2 of this appendix:
    (1) The ELD must monitor the engine ECM's odometer message 
broadcast and use it to log total vehicle miles information; and
    (2) The ELD must use the odometer message to determine 
accumulated vehicle miles since engine's last power on instance.
    (c) If the ELD is not required to have a link to the vehicle's 
engine ECM as specified in section 4.2 of this appendix, the 
accumulated vehicle miles indication must be obtained or estimated 
from a source that is accurate to within 10% of miles 
accumulated by the CMV over a 24-hour period as indicated on the 
vehicle's odometer display.

4.3.1.4. Engine Hours

    (a) An ELD must monitor engine hours of the CMV over the course 
of an ignition power on cycle (elapsed engine hours) and over the 
course of the total engine hours of the CMV's operation. Engine 
hours must use or must be converted to hours in intervals of a tenth 
of an hour.
    (b) If an ELD is required to have a link to the vehicle's engine 
ECM, the ELD must monitor the engine ECM's total engine hours 
message broadcast and use it to log total engine hours information. 
Otherwise, engine hours must be obtained or estimated from a source 
that monitors the ignition power of the CMV and must be accurate 
within 0.1 hour of the engine's total operation within a 
given ignition power on cycle.

4.3.1.5. Date and Time

    (a) The ELD must obtain and record the date and time information 
automatically without allowing any external input or interference 
from a motor carrier, driver, or any other person.
    (b) The ELD time must be synchronized to Coordinated Universal 
Time (UCT) and the absolute deviation from UCT must not exceed 10 
minutes at any point in time.

4.3.1.6. CMV Position

    (a) An ELD must determine automatically the position of the CMV 
in standard latitude/longitude coordinates with the accuracy and 
availability requirements of this section.
    (b) The ELD must obtain and record this information without 
allowing any external input or interference from a motor carrier, 
driver, or any other person.
    (c) CMV position measurement must be accurate to 0.5 
mile of absolute position of the CMV when an ELD measures a valid 
latitude/longitude coordinate value.
    (d) Position information must be obtained in or converted to 
standard signed latitude and longitude values and must be expressed 
as decimal degrees to hundreds of a degree precision (i.e., a 
decimal point and two decimal places).
    (e) Measurement accuracy combined with the reporting precision 
requirement implies that position reporting accuracy will be on the 
order of 1mile of absolute position of the CMV during 
the course of a CMV's commercial operation.
    (f) During periods of a driver's indication of personal use of 
the CMV, the measurement reporting precision requirement is reduced 
to tenths of a degree (i.e., a decimal point and single decimal 
place) as further specified in section 4.7.3 of this appendix.
    (g) An ELD must be able to acquire a valid position measurement 
at least once every 5 miles of driving; however, the ELD records CMV 
location information only during ELD events as specified in section 
4.5.1 of this appendix.

4.3.1.7. CMV VIN

    The vehicle identification number (VIN) for the power unit of a 
CMV must be automatically obtained from the engine ECM and recorded 
if it is available on the vehicle databus.

4.3.2. Driver's Manual Entries

    (a) An ELD must prompt the driver to input information into the 
ELD only when the CMV is stationary and driver's duty status is not 
on-duty driving, except for the condition specified in section 
4.4.1.2 of this appendix.
    (b) If the driver's duty status is driving, an ELD must only 
allow the driver who is operating the CMV to change the driver's 
duty status to another duty status.
    (c) A stopped vehicle must maintain zero (0) miles per hour 
speed to be considered stationary for purposes of information entry 
into an ELD.
    (d) An ELD must allow an authenticated co-driver who is not 
driving, but who has logged into the ELD prior to the vehicle being 
in motion, to make entries over his or her own records when the 
vehicle is in motion. The ELD must not allow co-drivers to switch 
driving roles when the vehicle is in motion.

4.3.2.1. Driver's Entry of Required Event Data Fields

    (a) An ELD must provide a means for a driver to enter 
information pertaining to the driver's ELD records manually, e.g., 
CMV power unit number, as specified in section 7.4 of this appendix; 
trailer number(s), as specified in section 7.42; and shipping 
document number, as specified in section 7.39.
    (b) If the motor carrier populates these fields automatically, 
the ELD must provide means for the driver to review such information 
and make corrections as necessary.

4.3.2.2. Driver's Status Inputs

4.3.2.2.1. Driver's Indication of Duty Status

    (a) An ELD must provide a means for the authenticated driver to 
select a driver's duty status.
    (b) The ELD must use the ELD duty status categories listed in 
Table 1 of this appendix.

[[Page 78393]]

[GRAPHIC] [TIFF OMITTED] TR16DE15.001

4.3.2.2.2. Driver's Indication of Situations Impacting Driving Time 
Recording

    (a) An ELD must provide the means for a driver to indicate the 
beginning and end of a period when the driver may use the CMV for 
authorized personal use or for performing yard moves. The ELD must 
acquire this status in a standard format from the category list in 
Table 2 of this appendix. This list must be supported independent of 
the duty status categories described in section 4.3.2.2.1 of this 
appendix.
[GRAPHIC] [TIFF OMITTED] TR16DE15.002

    (b) An ELD must allow a driver to select only categories that a 
motor carrier enables by configuration for that driver, as described 
in section 4.3.3.1.1 of this appendix.
    (c) An ELD must only allow one category to be selected at any 
given time and use the latest selection by the driver.
    (d) The ELD must prompt the driver to enter an annotation upon 
selection of a category from Table 2 of this appendix and record the 
driver's entry.
    (e) A driver's indication of special driving situation must 
reset to none if the ELD or CMV's engine goes through a power off 
cycle (ELD or CMV's engine turns off and then on) except if the 
driver has indicated authorized personal use of CMV. If the driver 
has indicated authorized personal use of the CMV, the ELD must 
require confirmation of continuation of the authorized personal use 
of CMV condition by the driver. If not confirmed by the driver and 
the vehicle is in motion, the ELD must default to none.

4.3.2.3. Driver's Certification of Records

    (a) An ELD must include a function whereby a driver can certify 
the driver's records at the end of a 24-hour period.
    (1) This function, when selected, must display a statement that 
reads ``I hereby certify that my data entries and my record of duty 
status for this 24-hour period are true and correct.''
    (2) An ELD must prompt the driver to select ``Agree'' or ``Not 
ready.'' An ELD must record the driver's affirmative selection of 
``Agree'' as an event.
    (b) An ELD must only allow the authenticated driver to certify 
records associated with that driver.
    (c) If any edits are necessary after the driver certifies the 
records for a given 24-hour period, the ELD must require and prompt 
the driver to re-certify the updated records.
    (d) If there are any past records on the ELD (excluding the 
current 24-hour period) that require certification or re-
certification by the driver, the ELD must indicate the required 
driver action on the ELD's display and prompt the driver to take the 
necessary action during the login and logout processes.

4.3.2.4. Driver's Data Transfer Initiation Input

    (a) An ELD must provide a standardized single-step driver 
interface for compilation of driver's ELD records and initiation of 
the data transfer to authorized safety officials when requested 
during a roadside inspection.
    (b) The ELD must input the data transfer request from the 
driver, require confirmation, present and request selection of the 
supported data transfer options by the ELD, and prompt for entry of 
the output file comment as specified in section 4.3.2.5 of this 
appendix. Upon confirmation, the ELD must generate the compliant 
output file and perform the data transfer.
    (c) The supported single-step data transfer initiation mechanism 
(such as a switch or an icon on a touch-screen display) must be 
clearly marked and visible to the driver when the vehicle is 
stopped.

4.3.2.5. Driver's Entry of an Output File Comment

    An ELD must accommodate the entry of an output file comment up 
to 60 characters long. If an authorized safety official provides a 
key phrase or code during an inspection to be included in the output 
file comment, it must be entered and embedded in the electronic ELD 
records in the exchanged dataset as specified in section 4.8.2.1.1 
of this appendix. The default value for the output file comment must 
be blank. This output file comment must be used only for the 
creation of the related data files for the intended time, place, and 
ELD user.

4.3.2.6. Driver's Annotation of Records

    (a) An ELD must allow a driver to add annotations in text format 
to recorded, entered, or edited ELD events.
    (b) The ELD must require annotations to be 4 characters or 
longer, including embedded spaces if driver annotation is required 
and driver is prompted by the ELD.

4.3.2.7. Driver's Entry of Location Information

    (a) An ELD must allow manual entry of a CMV's location by the 
driver in text format in support of the driver edit requirements 
described in section 4.3.2.8 of this appendix.
    (b) The driver's manual location entry must be available as an 
option to a driver only when prompted by the ELD under allowed 
conditions as described in section 4.6.1.4 of this appendix.
    (c) A manual location entry must show ``M'' in the latitude/
longitude coordinates fields in ELD records.

[[Page 78394]]

4.3.2.8. Driver's Record Entry/Edit

    (a) An ELD must provide a mechanism for a driver to review, 
edit, and annotate the driver's ELD records when a notation of 
errors or omissions is necessary or enter the driver's missing ELD 
records subject to the requirements specified in this section.
    (b) An ELD must not permit alteration or erasure of the original 
information collected concerning the driver's ELD records or 
alteration of the source data streams used to provide that 
information.

4.3.2.8.1. Mechanism for Driver Edits and Annotations

    (a) If a driver edits or annotates an ELD record or enters 
missing information, the act must not overwrite the original record.
    (b) The ELD must use the process outlined in section 4.4.4.2 of 
this appendix to configure required event attributes to track the 
edit history of records.
    (c) Driver edits must be accompanied by an annotation. The ELD 
must prompt the driver to annotate edits.

4.3.2.8.2. Driver Edit Limitations

    (a) An ELD must not allow or require the editing or manual entry 
of records with the following event types, as described in section 
7.25 of this appendix:

------------------------------------------------------------------------
               Event type                          Description
------------------------------------------------------------------------
2......................................  An intermediate log,
5......................................  A driver's login/logout
                                          activity,
6......................................  CMV's engine power up/shut
                                          down, or
7......................................  ELD malfunctions and data
                                          diagnostic events.
------------------------------------------------------------------------

    (b) An ELD must not allow automatically recorded driving time to 
be shortened or the ELD username associated with an ELD record to be 
edited or reassigned, except under the following circumstances:
    (1) Assignment of Unidentified Driver records. ELD events 
recorded under the ``Unidentified Driver'' profile may be edited and 
assigned to the driver associated with the record; and
    (2) Correction of errors with team drivers. In the case of team 
drivers, the driver account associated with the driving time records 
may be edited and reassigned between the team drivers if there was a 
mistake resulting in a mismatch between the actual driver and the 
driver recorded by the ELD and if both team drivers were 
respectively indicated in each other's records as a co-driver. The 
ELD must require each co-driver to confirm the change for the 
corrective action to take effect.

4.3.3. Motor Carrier's Manual Entries

    An ELD must restrict availability of motor carrier entries 
outlined in this section only to authenticated ``support personnel'' 
account holders.

4.3.3.1. ELD Configuration

    If an ELD or a technology that includes an ELD function offers 
configuration options to the motor carrier or the driver that are 
not otherwise addressed or prohibited in this appendix, the 
configuration options must not affect the ELD's compliance with the 
requirements of this rule for each configuration setting of the ELD.

4.3.3.1.1. Configuration of Available Categories Impacting Driving Time 
Recording

    (a) An ELD must allow a motor carrier to unilaterally configure 
the availability of each of the three categories listed on Table 2 
of this appendix that the motor carrier chooses to authorize for 
each of its drivers. By default, none of these categories must be 
available to a new driver account without the motor carrier 
proactively configuring their availability.
    (b) A motor carrier may change the configuration for the 
availability of each category for each of its drivers. Changes to 
the configuration setting must be recorded on the ELD and 
communicated to the applicable authenticated driver during the ELD 
login process.

4.3.3.1.2. Configuration of Using ELDs

    (a) An ELD must provide the motor carrier the ability to 
configure a driver account exempt from use of an ELD.
    (b) The ELD must default the setting of this configuration 
option for each new driver account created on an ELD to ``no 
exemption.''
    (c) An exemption must be proactively configured for an 
applicable driver account by the motor carrier. The ELD must prompt 
the motor carrier to annotate the record and provide an explanation 
for the configuration of exemption.
    (d) If a motor carrier configures a driver account as exempt
    (1) The ELD must present the configured indication that is in 
effect for that driver during the ELD login and logout processes.
    (2) The ELD must continue to record ELD driving time but suspend 
detection of missing data elements data diagnostic event for the 
driver described in section 4.6.1.5 of this appendix and data 
transfer compliance monitoring function described in section 4.6.1.7 
when such driver is authenticated on the ELD.

4.3.3.1.3 Motor Carrier's Post-Review Electronic Edit Requests

    (a) An ELD may allow the motor carrier (via a monitoring 
algorithm or support personnel) to screen, review, and request 
corrective edits to the driver's certified (as described in section 
4.3.2.3 of this appendix) and submitted records through the ELD 
system electronically. If this function is implemented by the ELD, 
the ELD must also support functions for the driver to see and review 
the requested edits.
    (b) Edits requested by anyone or any system other than the 
driver must require the driver's electronic confirmation or 
rejection.

4.4. ELD Processing and Calculations

4.4.1. Conditions for Automatic Setting of Duty Status

4.4.1.1. Automatic Setting of Duty Status to Driving

    An ELD must automatically record driving time when the vehicle 
is in motion by setting duty status to driving for the driver 
unless, before the vehicle is in motion, the driver:
    (a) Sets the duty status to off-duty and indicates personal use 
of CMV, in which case duty status must remain off-duty until 
driver's indication of the driving condition ends; or
    (b) Sets the duty status to on-duty not driving and indicates 
yard moves, in which case duty status must remain on-duty not 
driving until driver's indication of the driving condition ends.

4.4.1.2. Automatic Setting of Duty Status to On-Duty Not Driving

    When the duty status is set to driving, and the CMV has not been 
in-motion for 5 consecutive minutes, the ELD must prompt the driver 
to confirm continued driving status or enter the proper duty status. 
If the driver does not respond to the ELD prompt within 1-minute 
after receiving the prompt, the ELD must automatically switch the 
duty status to on-duty not driving. The time thresholds for purposes 
of this section must not be configurable.

4.4.1.3. Other Automatic Duty-Status Setting Actions Prohibited

    An ELD must not feature any other automatic records of duty 
setting mechanism than those described in sections 4.4.1.1 and 
4.4.1.2 of this appendix. Duty status changes that are not initiated 
by the driver, including duty status alteration recommendations by 
motor carrier support personnel or a software algorithm, are subject 
to motor carrier edit requirements in section 4.3.3.1.3.

4.4.2. Geo-Location Conversions

    (a) For each change in duty status, the ELD must convert 
automatically captured vehicle position in latitude/longitude 
coordinates into geo-location information, indicating approximate 
distance and direction to an identifiable location corresponding to 
the name of a nearby city, town, or village, with a State 
abbreviation.
    (b) Geo-location information must be derived from a database 
that contains all cities, towns, and villages with a population of 
5,000 or greater and listed in ANSI INCITS 446-2008 (R2013) 
(incorporated by reference, see Sec.  395.38).
    (c) An ELD's viewable outputs (such as printouts or display) 
must feature geo-location information as place names in text format.

4.4.3. Date and Time Conversions

    (a) An ELD must have the capability to convert and track date 
and time captured in UTC standard to the time standard in effect at 
driver's home terminal, taking the daylight savings time changes 
into account by using the parameter ``Time Zone Offset from UTC'' as 
specified in section 7.41 of this appendix.
    (b) An ELD must record the driver's record of duty status using 
the time standard in effect at the driver's home terminal for a 24-
hour period beginning with the time specified by the motor carrier 
for that driver's home terminal.
    (c) The data element ``Time Zone Offset from UTC'' must be 
included in the ``Driver's Certification of Own Records'' events as 
specified in section 4.5.1.4 of this appendix.

4.4.4. Setting of Event Parameters in Records, Edits, and Entries

    This section describes the security measures for configuring and 
tracking event

[[Page 78395]]

attributes for ELD records, edits, and entries in a standardized 
manner.

4.4.4.1. Event Sequence Identifier (ID) Number

    (a) Each ELD event must feature an event sequence ID number.
    (1) The event sequence ID number for each ELD event must use 
continuous numbering across all users of that ELD and across engine 
and ELD power on and off cycles.
    (2) An ELD must use the next available event sequence ID number 
(incremented by one) each time a new event log is recorded.
    (3) The event sequence ID number must track at least the last 
65,536 unique events recorded on the ELD.
    (b) The continuous event sequence ID numbering structure used by 
the ELD must be mapped into a continuous hexadecimal number between 
0000 (Decimal 0) and FFFF (Decimal 65535).

4.4.4.2. Event Record Status, Event Record Origin, Event Type Setting

    (a) An ELD must retain the original records even when allowed 
edits and entries are made over a driver's ELD records.
    (b) An ELD must keep track of all event record history, and the 
process used by the ELD must produce the event record status, event 
record origin, and event type for the ELD records in the standard 
categories specified in sections 7.23, 7.22, and 7.25 of this 
appendix, respectively for each record as a standard security 
measure. For example, an ELD may use the process outlined in 
sections 4.4.4.2.1-4.4.4.2.6 to meet the requirements of this 
section.

4.4.4.2.1. Records Automatically Logged by ELD

    At the instance an ELD creates a record automatically, the ELD 
must:
    (a) Set the ``Event Record Status'' to ``1'' (active); and
    (b) Set the ``Event Record Origin'' to ``1'' (automatically 
recorded by ELD).

4.4.4.2.2. Driver Edits

    At the instance of a driver editing existing record(s), the ELD 
must:
    (a) Identify the ELD record(s) being modified for which the 
``Event Record Status'' is currently set to ``1'' (active);
    (b) Acquire driver input for the intended edit and construct the 
ELD record(s) that will replace the record(s) identified in 
paragraph 4.4.4.2.2(a) of this appendix;
    (c) Set the ``Event Record Status'' of the ELD record(s) 
identified in paragraph 4.4.4.2.2(a) of this appendix, which is 
being modified, to ``2'' (inactive-changed);
    (d) Set the ``Event Record Status'' of the ELD record(s) 
constructed in paragraph 4.4.4.2.2(b) of this appendix to ``1'' 
(active); and
    (e) Set the ``Event Record Origin'' of the ELD record(s) 
constructed in paragraph 4.4.4.2.2(b) of this appendix to ``2'' 
(edited or entered by the driver).

4.4.4.2.3. Driver Entries

    When a driver enters missing record(s), the ELD must:
    (a) Acquire driver input for the missing entries being 
implemented and construct the new ELD record(s) that will represent 
the driver entries;
    (b) Set the ``event record status'' of the ELD record(s) 
constructed in paragraph 4.4.4.2.3(a) of this appendix to ``1'' 
(active); and
    (c) Set the ``event record origin'' of the ELD record(s) 
constructed in paragraph 4.4.4.2.3(a) of this appendix to ``2'' 
(edited or entered by the driver).

4.4.4.2.4. Driver's Assumption of Unidentified Driver Logs

    When a driver reviews and assumes ELD record(s) logged under the 
unidentified driver profile, the ELD must:
    (a) Identify the ELD record(s) logged under the unidentified 
driver profile that will be reassigned to the driver;
    (b) Use elements of the unidentified driver log(s) from 
paragraph 4.4.4.2.4(a) of this appendix and acquire driver input to 
populate missing elements of the log originally recorded under the 
unidentified driver profile, and construct the new event record(s) 
for the driver;
    (c) Set the event record status of the ELD record(s) identified 
in paragraph 4.4.4.2.4(a) of this appendix, which is being modified, 
to ``2'' (inactive-changed);
    (d) Set the event record status of the ELD record(s) constructed 
in paragraph 4.4.4.2.4(b) of this appendix to ``1'' (active); and
    (e) Set the event record origin of the ELD record(s) constructed 
in paragraph 4.4.4.2.4(b) of this appendix to ``4'' (assumed from 
unidentified driver profile).

4.4.4.2.5. Motor Carrier Edit Suggestions

    If a motor carrier requests an edit on a driver's records 
electronically, the ELD must:
    (a) Identify the ELD record(s) the motor carrier requests to be 
modified for which the ``event record status'' is currently set to 
``1'' (active);
    (b) Acquire motor carrier input for the intended edit and 
construct the ELD record(s) that will replace the record identified 
in paragraph 4.4.4.2.5(a) of this appendix--if approved by the 
driver;
    (c) Set the event record status of the ELD record(s) in 
paragraph 4.4.4.2.5(b) of this appendix to ``3'' (inactive-change 
requested); and
    (d) Set the event record origin of the ELD record constructed in 
paragraph 4.4.4.2.5(b) of this appendix to ``3'' (edit requested by 
an authenticated user other than the driver).

4.4.4.2.6. Driver's Actions Over Motor Carrier Edit Suggestions

    (a) If edits are requested by the motor carrier, the ELD must 
allow the driver to review the requested edits and indicate on the 
ELD whether the driver confirms or rejects the requested edit(s).
    (b) If the driver approves the motor carrier's edit suggestion 
the ELD must:
    (1) Set the event record status of the ELD record(s) identified 
under paragraph 4.4.4.2.5 (a) of this appendix being modified, to 
``2'' (inactive-changed); and
    (2) Set the ``event record status'' of the ELD record(s) 
constructed in paragraph 4.4.4.2.5 (b) of this appendix to ``1'' 
(active).
    (c) If the driver disapproves the motor carrier's edit(s) 
suggestion, the ELD must set the ``event record status'' of the ELD 
record(s) identified in paragraph 4.4.4.2.5 (b) of this appendix to 
``4'' (inactive-change rejected).

4.4.5. Data Integrity Check Functions

    (a) An ELD must support standard security measures that require 
the calculation and recording of standard data check values for each 
ELD event recorded, for each line of the output file, and for the 
entire data file to be generated for transmission to an authorized 
safety official or the motor carrier.
    (b) For purposes of implementing data check calculations, the 
alphanumeric-to-numeric mapping provided in Table 3 of this appendix 
must be used.
    (c) Each ELD event record type specified in sections 4.5.1.1 and 
4.5.1.3 of this appendix must include an event data check value, 
which must be calculated as specified in section 4.4.5.1. An event 
data check value must be calculated at the time of the following 
instances and must accompany that event record thereafter:
    (1) When an event record is automatically created by the ELD;
    (2) When an authorized edit is performed by the driver on the 
ELD;
    (3) When an electronic edit proposal is created by the motor 
carrier through the ELD system.
    (d) Each line of the ELD output file must include a line data 
check value, which must be calculated as specified in section 
4.4.5.2 of this appendix.
    (e) Each ELD report must also include a file data check value, 
which must be calculated as specified in section 4.4.5.3 of this 
appendix.

4.4.5.1. Event Data Check

    The event data check value must be calculated as follows.

4.4.5.1.1. Event Checksum Calculation

    (a) A checksum calculation includes the summation of numeric 
values or mappings of a specified group of alphanumeric data 
elements. The ELD must calculate an event checksum value associated 
with each ELD event at the instance of the event record being 
created.
    (b) The event record elements that must be included in the 
checksum calculation are the following:
    (1) ,
    (2) ,
    (3) ,
    (4) ,
    (5) ,
    (6) ,
    (7) ,
    (8) ,
    (9) , and
    (10) .
    (c) The ELD must sum the numeric values of all individual 
characters making up the listed data elements using the character to 
decimal value coding specified in Table 3 of this appendix, and use 
the 8-bit lower byte of the hexadecimal representation of the summed 
total as the event checksum value for that event.

4.4.5.1.2. Event Data Check Calculation

    The event data check value must be the hexadecimal 
representation of the output 8-bit byte, after the below bitwise 
operations

[[Page 78396]]

are performed on the binary representation of the event checksum 
value, as set forth below:
    (a) Three consecutive circular shift left (rotate no carry -
left) operations; and
    (b) A bitwise exclusive OR (XOR) operation with the hexadecimal 
value C3 (decimal 195; binary 11000011).

4.4.5.2. Line Data Check

    A line data check value must be calculated at the time of the 
generation of the ELD output file, to transfer data to authorized 
safety officials or to catalogue drivers' ELD records at a motor 
carrier's facility. A line data check value must be calculated as 
follows.

4.4.5.2.1. Line Checksum Calculation

    (a) The ELD must calculate a line checksum value associated with 
each line of ELD output file at the instance when an ELD output file 
is generated.
    (b) The data elements that must be included in the line checksum 
calculation vary as per the output data file specified in section 
4.8.2.1 of this appendix.
    (c) The ELD must convert each character featured in a line of 
output using the character to decimal value coding specified on 
Table 3 of this appendix and sum the converted numeric values of 
each character listed on a given ELD output line item (excluding the 
line data check value being calculated), and use the 8-bit lower 
byte value of the hexadecimal representation of the summed total as 
the line checksum value for that line of output.

4.4.5.2.2. Line Data Check Calculation

    The line data check value must be calculated by performing the 
following operations on the binary representation of the line 
checksum value as follows:
    (a) Three consecutive circular shift left (rotate no carry -
left) operations on the line checksum value; and
    (b) A bitwise XOR operation with the hexadecimal value 96 
(decimal 150; binary 10010110).

4.4.5.2.3. Line Data Check Value Inclusion in Output File

    The calculated line data check value must be appended as the 
last line item of each of the individual line items of the ELD 
output file as specified in the output file format in section 
4.8.2.1 of this appendix.

4.4.5.3. File Data Check

    A file data check value must also be calculated at the time of 
the creation of an ELD output file. A file data check value must be 
calculated as follows.

4.4.5.3.1. File Checksum Calculation

    (a) The ELD must calculate a single 16-bit file checksum value 
associated with an ELD output file at the instance when an ELD 
output file is generated.
    (b) The file data check value calculation must include all 
individual line data check values contained in that file.
    (c) The ELD must sum all individual line data check values 
contained in a data file output created, and use the lower two 8-bit 
byte values of the hexadecimal representation of the summed total as 
the ``file checksum'' value.

4.4.5.3.2. File Data Check Value Calculation

    (a) The file data check value must be calculated by performing 
the following operations on the binary representation of the file 
checksum value:
    (1) Three consecutive circular shift left (aka rotate no carry -
left) operations on each 8-bit bytes of the value; and
    (2) A bitwise XOR operation with the hexadecimal value 969C 
(decimal 38556; binary 1001011010011100).
    (b) The file data check value must be the 16-bit output obtained 
from the above process.

4.4.5.3.3. File Data Check Value Inclusion in Output File

    The calculated 16-bit file data check value must be converted to 
hexadecimal 8-bit bytes and must be appended as the last line item 
of the ELD output file as specified in the output file format in 
section 4.8.2.1.11 of this appendix.
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4.5. ELD Recording

4.5.1. Events and Data To Record

    An ELD must record data at the following discrete events:

4.5.1.1. Event: Change in Driver's Duty Status

    When a driver's duty status changes, the ELD must associate the 
record with the driver, the record originator--if created during an 
edit or entry--the vehicle, the motor carrier, and the shipping 
document number and must include the following data elements:
    (a)  as described in section 7.24 of 
this appendix;
    (b)  as described in section 7.23;
    (c)  Origin as described in section 7.22;
    (d)  as described in section 7.25;
    (e)  as described in section 7.8;
    (g) <{Event{time}  Time> as described in section 7.40;
    (h) <{Accumulated{time}  Vehicle Miles> as described in section 
7.43;
    (i) <{Elapsed{time} > Engine Hours as described in section 7.19;
    (j) <{Event{time} > Latitude as described in section 7.31;
    (k) <{Event{time} > Longitude as described in section 7.33;
    (l)  as described in 
section 7.9;
    (m)  as described 
in section 7.35;
    (n)  
as described in section 7.7;
    (o) <{Event{time} > Comment/Annotation as described in section 
7.6;
    (p)  as described in section 
7.12; and
    (q)  as described in section 7.21.

4.5.1.2. Event: Intermediate Logs

    (a) When a CMV is in motion, as described in section 4.3.1.2 of 
this appendix, and there has not been a duty status change event or 
another intermediate log event recorded in the previous 1-hour 
period, the ELD must record a new intermediate log event.
    (b) The ELD must associate the record to the driver, the 
vehicle, the motor carrier, and the shipping document number, and 
must include the same data elements outlined in section 4.5.1.1 of 
this appendix except for item (p) in section 4.5.1.1.

4.5.1.3. Event: Change in Driver's Indication of Allowed Conditions 
That Impact Driving Time Recording

    (a) At each instance when the status of a driver's indication of 
personal use of CMV or yard moves changes, the ELD must record a new 
event.
    (b) The ELD must associate the record with the driver, the 
vehicle, the motor carrier, and the shipping document number, and 
must include the same data elements outlined in section 4.5.1.1 of 
this appendix.

4.5.1.4. Event: Driver's Certification of Own Records

    (a) At each instance when a driver certifies or re-certifies 
that the driver's records for a given 24-hour period are true and 
correct, the ELD must record the event.
    (b) The ELD must associate the record with the driver, the 
vehicle, the motor carrier, and the shipping document number and 
must include the following data elements:
    (1) as described in section 7.24 of 
this appendix;
    (2) as described in section 7.25;
    (3) as described in section 7.20;
    (4) as described in section 7.41.
    (5) <{Event{time}  Date> and  as described in section 7.8; and
    (6) <{Event{time}  Time> as described in section 7.40.

4.5.1.5. Event: Driver's Login/Logout Activity

    (a) At each instance when an authorized user logs in and out of 
the ELD, the ELD must record the event.
    (b) The ELD must associate the record with the driver, the 
vehicle, the motor carrier, and the shipping document number, and 
must include the following data elements:
    (1)  as described in section 7.24 of 
this appendix;
    (2)  as described in section 7.25;
    (3)  as described in section 7.20;
    (4) <{Event{time}  Date> as described in section 7.8;
    (5) <{Event{time}  Time> as described in section 7.40;
    (6) <{Total{time}  Vehicle Miles> as described in section 7.43; 
and
    (7) <{Total{time}  Engine Hours> as described in section 7.19.

4.5.1.6. Event: CMV's Engine Power Up and Shut Down Activity

    (a) When a CMV's engine is powered up or shut down, an ELD must 
record the event within 1 minute of occurrence and retain the 
earliest shut down and latest power-up event if the CMV has not 
moved since the last ignition power on cycle.
    (b) The ELD must associate the record with the driver or the 
unidentified driver profile, the vehicle, the motor carrier, and the 
shipping document number, and must include the following data 
elements:
    (1)  as described in section 7.24 of 
this appendix;
    (2)  as described in section 7.25;
    (3)  as described in section 7.20;
    (4) <{Event{time}  Date> as described in section 7.8;
    (5) <{Event{time}  Time> as described in section 7.40;
    (6) <{Total{time}  Vehicle Miles> as described in section 7.43;
    (7) <{Total{time}  Engine Hours> as described in section 7.19;
    (8) <{Event{time}  Latitude> as described in section 7.31;
    (9) <{Event{time}  Longitude> as described in section 7.33; and
    (10)  as described in 
section 7.9.

4.5.1.7. Event: ELD Malfunction and Data Diagnostics Occurrence

    (a) At each instance when an ELD malfunction or data diagnostic 
event is detected or cleared by the ELD, the ELD must record the 
event.
    (b) The ELD must associate the record with the driver, the 
vehicle, the motor carrier, and the shipping document number, and 
must include the following data elements:
    (1)  as described in section 7.24 of 
this appendix;
    (2)  as described in section 7.25;
    (3)  as described in section 7.20;
    (4)  as described in section 7.34;
    (5) <{Event{time}  Date> as described in section 7.8;
    (6) <{Event{time}  Time> as described in section 7.40;
    (7) <{Total{time}  Vehicle Miles> as described in section 7.43; 
and
    (8) <{Total{time}  Engine Hours> as described in section 7.19.

4.6. ELD's Self-Monitoring of Required Functions

    An ELD must have the capability to monitor its compliance with 
the technical requirements of this section for the detectable 
malfunctions and data inconsistencies listed in Table 4 of this 
appendix and must keep records of its malfunction and data 
diagnostic event detection.

[[Page 78398]]

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4.6.1. Compliance Self-Monitoring, Malfunctions and Data Diagnostic 
Events

4.6.1.1. Power Compliance Monitoring

    (a) An ELD must monitor data it receives from the engine ECM or 
alternative sources as allowed in sections 4.3.1.1-4.3.1.4 of this 
appendix, its onboard sensors, and data record history to identify 
instances when it may not have complied with the power requirements 
specified in section 4.3.1.1, in which case, the ELD must record a 
power data diagnostics event for the corresponding driver(s), or 
under the unidentified driver profile if no drivers were 
authenticated at the time of detection.
    (b) An ELD must set a power compliance malfunction if the power 
data diagnostics event described in paragraph 4.6.1.1(a) of this 
appendix indicates an aggregated in-motion driving time 
understatement of 30 minutes or more on the ELD over a 24-hour 
period across all driver profiles, including the unidentified driver 
profile.

4.6.1.2. Engine Synchronization Compliance Monitoring

    (a) An ELD must monitor the data it receives from the engine ECM 
or alternative sources as allowed in sections 4.3.1.1-4.3.1.4 of 
this appendix, its onboard sensors, and data record history to 
identify instances and durations of its non-compliance with the ELD 
engine synchronization requirement specified in section 4.2.
    (b) An ELD required to establish a link to the engine ECM as 
described in section 4.2 must monitor its connectivity to the engine 
ECM and its ability to retrieve the vehicle parameters described 
under section 4.3.1 of this appendix and must record an engine-
synchronization data diagnostics event when it no longer can acquire 
updated values for the ELD parameters required for records within 5 
seconds of the need.
    (c) An ELD must set an engine synchronization compliance 
malfunction if connectivity to any of the required data sources 
specified in section 4.3.1 of this appendix is lost for more than 30 
minutes during a 24-hour period aggregated across all driver 
profiles, including the unidentified driver profile.

4.6.1.3. Timing Compliance Monitoring

    The ELD must periodically cross-check its compliance with the 
requirement specified in section 4.3.1.5 of this appendix with 
respect to an accurate external UTC source and must record a timing 
compliance malfunction when it can no longer meet the underlying 
compliance requirement.

4.6.1.4. Positioning Compliance Monitoring

    (a) An ELD must continually monitor the availability of valid 
position measurements meeting the listed accuracy requirements in 
section 4.3.1.6 of this appendix and must track the distance and 
elapsed time from the last valid measurement point.
    (b) ELD records requiring location information must use the last 
valid position measurement and include the latitude/longitude 
coordinates and distance traveled, in miles, since the last valid 
position measurement.
    (c) An ELD must monitor elapsed time during periods when the ELD 
fails to acquire a valid position measurement within 5 miles of the 
CMV's movement. When such elapsed time exceeds a cumulative 60 
minutes over a 24 hour period, the ELD must set and record a 
positioning compliance malfunction.
    (d) If a new ELD event must be recorded at an instance when the 
ELD had failed to acquire a valid position measurement within the 
most recent elapsed 5 miles of driving, but the ELD has not yet set 
a positioning compliance malfunction, the ELD must record the 
character ``X'' in both the latitude and longitude fields, unless 
location is entered manually by the driver, in which case it must 
log the character ``M'' instead. Under the circumstances listed in 
this paragraph, if the ELD event is due to a change in duty status 
for the driver, the ELD must prompt the driver to enter location 
manually in accordance with section 4.3.2.7 of this appendix. If the 
driver does not enter the location information and the vehicle is in 
motion, the ELD must record a missing required data element data 
diagnostic event for the driver.
    (e) If a new ELD event must be recorded at an instance when the 
ELD has set a positioning compliance malfunction, the ELD must 
record the character ``E'' in both the latitude and longitude fields 
regardless of whether the driver is prompted and manually enters 
location information.

4.6.1.5. Data Recording Compliance Monitoring

    (a) An ELD must monitor its storage capacity and integrity and 
must detect a data recording compliance malfunction if it can no 
longer record or retain required events or

[[Page 78399]]

retrieve recorded logs that are not otherwise catalogued remotely by 
the motor carrier.
    (b) An ELD must monitor the completeness of the ELD event record 
information in relation to the required data elements for each event 
type and must record a missing data elements data diagnostics event 
for the driver if any required field is missing at the time of 
recording.

4.6.1.6. Monitoring Records Logged Under the Unidentified Driver 
Profile

    (a) When there are ELD records involving driving time logged on 
an ELD under the unidentified driver profile, the ELD must prompt 
the driver(s) logging in with a warning indicating the existence of 
new unassigned driving time.
    (b) The ELD must provide a mechanism for the driver to review 
and either acknowledge the assignment of one or more of the 
unidentified driver records attributable to the driver under the 
authenticated driver's profile as described in paragraph 
4.3.2.8.2(b)(1) of this appendix or indicate that these records are 
not attributable to the driver.
    (c) If more than 30 minutes of driving in a 24-hour period show 
unidentified driver on the ELD, the ELD must detect and record an 
unidentified driving records data diagnostic event and the data 
diagnostic indicator must be turned on for all drivers logged in to 
that ELD for the current 24-hour period and the following 7 days.
    (d) An unidentified driving records data diagnostic event can be 
cleared by the ELD when driving time logged under the unidentified 
driver profile for the current 24-hour period and the previous 7 
consecutive days drops to 15 minutes or less.

4.6.1.7. Data Transfer Compliance Monitoring

    (a) An ELD must implement in-service monitoring functions to 
verify that the data transfer mechanism(s) described in section 
4.9.1 of this appendix are continuing to function properly. An ELD 
must verify this functionality at least once every 7 days. These 
monitoring functions may be automatic or may involve manual steps 
for a driver.
    (b) If the monitoring mechanism fails to confirm proper in-
service operation of the data transfer mechanism(s), an ELD must 
record a data transfer data diagnostic event and enter an 
unconfirmed data transfer mode.
    (c) After an ELD records a data transfer data diagnostic event, 
the ELD must increase the frequency of the monitoring function to 
check at least once every 24-hour period. If the ELD stays in the 
unconfirmed data transfer mode following the next three consecutive 
monitoring checks, the ELD must detect a data transfer compliance 
malfunction.

4.6.1.8. Other Technology-Specific Operational Health Monitoring

    In addition to the required monitoring schemes described in 
sections 4.6.1.1-4.6.1.7 of this appendix, the ELD provider may 
implement additional, technology-specific malfunction and data 
diagnostic detection schemes and may use the ELD's malfunction 
status indicator and data diagnostic status indicator (described in 
sections 4.6.2.1 and 4.6.3.1) to communicate the ELD's malfunction 
or non-compliant state to the operator(s) of the ELD.

4.6.2. ELD Malfunction Status Indicator

    ELD malfunctions affect the integrity of the device and its 
compliance; therefore, active malfunctions must be indicated to all 
drivers who may use that ELD. An ELD must provide a recognizable 
visual indicator, and may provide an audible signal, to the operator 
as to its malfunction status.

4.6.2.1. Visual Malfunction Indicator

    (a) An ELD must display a single visual malfunction indicator 
for all drivers using the ELD on the ELD's display or on a stand-
alone indicator. The visual signal must be visible to the driver 
when the driver is seated in the normal driving position.
    (b) The ELD malfunction indicator must be clearly illuminated 
when there is an active malfunction on the ELD.
    (c) The malfunction status must be continuously communicated to 
the driver when the ELD is powered.

4.6.3. ELD Data Diagnostic Status Indicator

    ELD data diagnostic status affects only the authenticated user; 
therefore, an ELD must only indicate the active data diagnostics 
status applicable to the driver logged into the ELD. An ELD must 
provide a recognizable visual indicator, and may provide an audible 
signal, to the driver as to its data diagnostics status.

4.6.3.1. Visual Data Diagnostics Indicator

    (a) An ELD must display a single visual data diagnostics 
indicator, apart from the visual malfunction indicator described in 
section 4.6.2.1 of this appendix, to communicate visually the 
existence of active data diagnostics events for the applicable 
driver.
    (b) The visual signal must be visible to the driver when the 
driver is seated in the normal driving position.

4.7. Special Purpose ELD Functions

4.7.1. Driver's ELD Volume Control

    (a) If a driver selects the sleeper-berth state for the driver's 
record of duty status, and no co-driver has logged into the ELD as 
on-duty driving, and if the ELD outputs audible signals, the ELD 
must either:
    (1) Allow the driver to mute the ELD's volume or turn off the 
ELD's audible output, or
    (2) Automatically mute the ELD's volume or turn off the ELD's 
audible output.
    (b) For purposes of this section, if an ELD operates in 
combination with another device or other hardware or software 
technology that is not separate from the ELD, the volume controls 
required herein apply to the combined device or technology.

4.7.2. Driver's Access to Own ELD Records

    (a) An ELD must provide a mechanism for a driver to obtain a 
copy of the driver's own ELD records on demand, in either an 
electronic or printout format compliant with inspection standards 
outlined in section 4.8.2.1 of this appendix.
    (b) The process must not require a driver to go through the 
motor carrier to obtain copies of the driver's own ELD records if 
driver's records reside on or are accessible directly by the ELD 
unit used by the driver.
    (c) If an ELD meets the requirements of this section by making 
data files available to the driver, it must also provide a utility 
function for the driver to display the data on a computer, at a 
minimum, as specified in Sec.  395.8(g).

4.7.3. Privacy Preserving Provision for Use During Personal Uses of a 
CMV

    (a) An ELD must record the events listed in section 4.5.1 of 
this appendix under all circumstances. However, when a driver 
indicates that the driver is temporarily using the CMV for an 
authorized personal purpose, a subset of the recorded elements must 
either be omitted in the records or recorded at a lower precision 
level, as described in further detail below. The driver indicates 
this intent by setting the driver's duty status to off-duty, as 
described in section 4.3.2.2.1, and indicating authorized personal 
use of CMV as described in section 4.3.2.2.2.
    (b) During a period when a driver indicates authorized personal 
use of CMV, the ELD must:
    (1) Record all new ELD events with latitude/longitude 
coordinates information rounded to a single decimal place 
resolution; and
    (2) Omit recording vehicle miles and engine hours fields in new 
ELD logs by leaving them blank, except for events corresponding to a 
CMV's engine power-up and shut-down activity as described in section 
4.5.1.6 of this appendix.
    (c) A driver's indication that the CMV is being operated for 
authorized personal purposes may span more than one CMV ignition on 
cycle if the driver proactively confirms continuation of the 
personal use condition prior to placing the vehicle in motion when 
the ELD prompts the driver at the beginning of the new ignition 
power on cycle.

4.8. ELD Outputs

4.8.1. Printout or Display

    The ELD must be able to generate a compliant report as specified 
in this section, either as a printout or on a display.

4.8.1.1. Print Paper Requirements

    Print paper must be able to accommodate the graph grid 
specifications as listed in section 4.8.1.3 of this appendix.

4.8.1.2. Display Requirements

    (a) This section does not apply if an ELD produces a printout 
for use at a roadside inspection.
    (b) An ELD must be designed so that its display may be 
reasonably viewed by an authorized safety official without entering 
the commercial motor vehicle. For example, the display may be 
untethered from its mount or connected in a manner that would allow 
it to be passed outside of the vehicle for a reasonable distance.

4.8.1.3. Information To Be Shown on the Printout and Display at 
Roadside

    (a) The printout and display must show reports for the inspected 
driver's profile and the unidentified driver profile separately. If

[[Page 78400]]

there are no unidentified driver records existing on the ELD for the 
current 24-hour period and for any of the previous 7 consecutive 
days, an ELD does not need to print or display unidentified driver 
records for the authorized safety official. Otherwise, both reports 
must be printed or displayed and provided to the authorized safety 
official.
    (b) The printout and display must show the following information 
for the current 24-hour period and each of the previous 7 
consecutive days: (Items in < . > are data elements.)

Date: 
24-hour Starting Time, Time Zone Offset from UTC: <24-Hour Period 
Starting Time>, 
Carrier: ,
Driver Name: <{Driver{time}  Last Name>, <{Driver{time}  First Name>
Driver ID < ELD username{for the driver{time}  >
Driver License State <{Driver{time}  Driver License Issuing State>
Driver License Number: <{Driver{time}  Driver License Number>
Co-Driver: <{Co-Driver's{time}  Last Name>, <{Co-Driver's{time}  
First Name>
Co-Driver ID: < ELD username{for the co-driver{time} >
Current Odometer: <{Current{time} {Total{time}  Vehicle Miles>
Current Engine Hours: <{Current{time} {Total{time}  Engine Hours>
ELD ID: 
ELD Provider: 
Truck Tractor ID: 
Truck Tractor VIN: 
Shipping ID: 
Current Location: <{Current{time}  Geo-location>
Unidentified Driving Records: <{Current{time}  Data Diagnostic Event 
Indicator Status {for ``Unidentified driving records data 
diagnostic'' event{time} >
Exempt Driver Status: 
ELD Malfunction Indicators: 
Driver's Data Diagnostic Status: 
Date: 
Change of Duty Status, Intervening Interval Records and Change in 
Driver's Indication of Special Driving Conditions:
,,,<{Event{time}  Date>, <{Event{time}  
Time>,<{Accumulated{time}  Vehicle Miles>,<{Elapsed{time}  Engine 
Hours>,^#,<{Event{time}  Comment/Annotation>
,,,,,<{Event{time}  
Date>,<{Event{time}  Time>,<{Accumulated{time}  Vehicle 
Miles>,<{Elapsed{time}  Engine Hours>,^#,<{Event{time}  Comment/Annotation>
# `` must be substituted with ``'' field for manual entries and with ``<{blank{time} >'' 
field for intervening logs.
[GRAPHIC] [TIFF OMITTED] TR16DE15.005

24 Hours [Print/Display Graph Grid]
Total hours 
Off duty 
Sleeper Berth 
Driving 
On duty not driving 
Miles Today 
[GRAPHIC] [TIFF OMITTED] TR16DE15.006

[For Each Row of Driver's Record Certification Events]
Time: <{Event{time}  Time>
Location: #
Odometer: <{Total{time}  Vehicle Miles>
Engine Hours: <{Total{time}  Engine Hours>
Event: 
Origin: Driver
Comment: <{Event{time}  Comment/Annotation>

[For Each Row of Malfunctions and Data Diagnostic Events]
Time: <{Event{time}  Time>
Location: #
Odometer: <{Total{time} Vehicle Miles>
Engine Hours: <{Total{time} Engine Hours>
Event: 
Origin: 
Comment: <{Event{time}  Comment/Annotation>

[For Each Row of ELD Login/Logout Events]
Time: <{Event{time}  Time>
Location: #
Odometer: <{Total{time} Vehicle Miles>
Engine Hours: <{Total{time} Engine Hours>
Event: 
Origin: 
Comment: <{Event{time}  Comment/Annotation>

[For Each Row of CMV Engine Power up/Shut Down Events]
Time: <{Event{time}  Time> (24 hours)

[[Page 78401]]

Location: #
Odometer: <{Total{time} Vehicle Miles>
Engine Hours: <{Total{time} Engine Hours>
Event: 
Origin: Auto
Comment/Annotation>
    \1\ Printout report must only list up to 10 most recent ELD 
malfunctions and up to 10 most recent data diagnostics events within 
the time period for which the report is generated.
[GRAPHIC] [TIFF OMITTED] TR16DE15.007


[[Page 78402]]


[GRAPHIC] [TIFF OMITTED] TR16DE15.008

    (c) The printout and display must show a graph-grid consistent 
with Sec.  395.8(g) showing each change of duty status.
    (1) On the printout, the graph-grid for each day's RODS must be 
at least 6 inches by 1.5 inches in size.
    (2) The graph-grid must overlay periods of driver's indications 
of authorized personal use of CMV and yard moves using a different 
style line (such as dashed or dotted line) or shading. The 
appropriate abbreviation must also be indicated on the graph-grid.

4.8.2. ELD Data File

    An ELD must have the capability to generate a consistent 
electronic file output compliant with the format described herein to 
facilitate the transfer, processing, and standardized display of ELD 
data sets on the authorized safety officials' computing 
environments.

4.8.2.1. ELD Output File Standard

    (a) Regardless of the particular database architecture used for 
recording the ELD events in electronic format, the ELD must produce 
a standard ELD data output file for transfer purposes, which must be 
generated according to the standard specified in this section.
    (b) Data output must be provided in a single comma-delimited 
file outlined in this section using American National Standard Code 
for Information Exchange (ASCII) character sets meeting the 
standards of ANSI INCITS 4-1986 (R2012) (incorporated by reference, 
see Sec.  395.38). It must include:
    (1) A header segment, which specifies current or non-varying 
elements of an ELD file; and
    (2) Variable length comma-delimited segments for the drivers, 
vehicles, ELD events, ELD malfunction and data diagnostics records, 
ELD login and logout activity, and unidentified driver records.
    (3) Any field value that may contain a comma (``,'') or a 
carriage return () must be replaced with a semicolon (`;') 
before generating the compliant CSV output file.

4.8.2.1.1. Header Segment

    This segment must include the following data elements and 
format:

ELD File Header Segment: 

<{Driver's{time}  Last Name>,<{Driver's{time}  First Name>,< ELD 
username{for the driver{time} >,< {Driver's{time}  Driver's License 
Issuing State>,<{Driver's{time}  Driver's License Number>, 
<{Co-Driver's{time}  Last Name>,<{Co-Driver's{time}  First 
Name>,, 
,,, 
,,,<24-
Hour Period Starting Time>,, ,, 
<{Current{time}  Date,< {Current{time}  Time>, < {Current{time}  
Latitude>,<{Current{time}  Longitude,< {Current{time}  {Total{time}  
Vehicle Miles,< {Current{time}  {Total{time}  Engine Hours>, 
,,,, 

4.8.2.1.2. User List

    This segment must list all drivers and co-drivers with driving 
time records on the most recent CMV operated by the inspected driver 
and motor carrier's support personnel who requested edits within the 
time period for which this file is generated. The list must be in 
chronological order with most recent user of the ELD on top, and 
include the driver being inspected, the co-driver, and the 
unidentified driver profile. This segment has a variable number of 
rows depending on the number of profiles with activity over the time 
period for which this file is generated. This section must start 
with the following title:

User List: 

    Each subsequent row must have the following data elements:

<{Assigned User{time}  Order Number>,<{User's{time}  ELD Account 
Type,<{User's{time}  Last Name>,<{User's{time}  First Name>, 

4.8.2.1.3. CMV List

    This segment must list each CMV that the current driver operated 
and that has been recorded on the driver's ELD records within the 
time period for which this file is generated. The list must be rank 
ordered in accordance with the time of CMV operation with the most 
recent CMV being on top. This segment has a variable number of rows 
depending on the number of CMVs operated by the driver over the time 
period for which this file is generated. This section must start 
with the following title:

CMV List: 

    Each subsequent row must have the following data elements:

<{Assigned CMV{time}  Order Number>,,, 

4.8.2.1.4. ELD Event List for Driver's Record of Duty Status

    This segment must list ELD event records tagged with event types 
1 (a change in duty status as described in section 4.5.1.1 of this 
appendix), 2 (an intermediate log as described in section 4.5.1.2), 
and 3 (a change in driver's indication of conditions impacting 
driving time recording as described in section 4.5.1.3). The segment 
must list all event record status types and all event record origins 
for the driver, rank ordered with the most current log on top in 
accordance with the date and time fields of the record. This segment 
has a variable number of rows depending on the number of ELD events 
recorded for the driver over the time period for which this file is 
generated. This section must start with the following title:

[[Page 78403]]

ELD Event List: 

    Each subsequent row must have the following data elements:

,,,, ,<{Event{time}  
Date>,<{Event{time} Time>,<{Accumulated{time}  Vehicle 
Miles>,<{Elapsed{time}  Engine Hours>, {Event{time}  
,<{Event{time} Longitude>,, <{Corresponding CMV{time}  Order Number>,<{User{time}  
Order Number {for Record Originator{time} >,,,, 

4.8.2.1.5. Event Annotations, Comments, and Driver's Location 
Description

    This segment must list only the elements of the ELD event list 
created in section 4.8.2.1.4 of this appendix that have an 
annotation, comment, or a manual entry of location description by 
the driver. This segment has a variable number of rows depending on 
the number of ELD events under section 4.8.2.1.4 that feature a 
comment, annotation, or manual location entry by the driver. This 
section must start with the following title:

ELD Event Annotations or Comments: 

    Each subsequent row must have the following data elements:

,,<{Event{time}  Comment Text or 
Annotation>,<{Event{time}  Date>,<{Event{time}  Time>, , 

4.8.2.1.6. ELD Event List for Driver's Certification of Own Records

    This segment must list ELD event records with event type 4 
(driver's certification of own records as described in section 
4.5.1.4 of this appendix) for the inspected driver for the time 
period for which this file is generated. It must be rank ordered 
with the most current record on top. This segment has a variable 
number of rows depending on the number of certification and re-
certification actions the authenticated driver may have executed on 
the ELD over the time period for which this file is generated. This 
section must start with the following title:

Driver's Certification/Recertification Actions: 

    Each subsequent row must have the following data elements:

,,<{Event{time}  
Date>,<{Event{time}  Time>,,<{Corresponding CMV{time}  Order Number>, 

4.8.2.1.7. Malfunction and Diagnostic Event Records

    This segment must list all malfunctions that have occurred on 
this ELD during the time period for which this file is generated. It 
must list diagnostic event records related to the driver being 
inspected, rank ordered with the most current record on top. This 
segment has a variable number of rows depending on the number of ELD 
malfunctions and ELD diagnostic event records recorded and relevant 
to the inspected driver over the time period for which this file is 
generated. This section must start with the following title:

Malfunctions and Data Diagnostic Events: 

    Each subsequent row must have the following data elements:

,,,<{Event{time}  Date>,<{Event{time}  Time>,<{Total{time}  
Vehicle Miles>,<{Total{time}  Engine Hours>, <{Corresponding 
CMV{time}  Order Number>, 

4.8.2.1.8. ELD Login/Logout Report

    This segment must list the login and logout activity on the ELD 
(ELD events with event type 5 (A driver's login/logout activity)) 
for the inspected driver for the time period for which this file is 
generated. It must be rank ordered with the most recent activity on 
top. This section must start with the following title:

ELD Login/Logout Report: 

    Each subsequent row must have the following data elements:

,,,<{Event{time}  Date>,<{Event{time}  Time>,<{Total{time}  
Vehicle Miles>,<{Total{time}  Engine Hours>, 


4.8.2.1.9. CMV's Engine Power-Up and Shut Down Activity

    This segment must list the logs created when a CMV's engine is 
powered up and shut down (ELD events with event type 6 (CMV's engine 
power up/shut down)) for the time period for which this file is 
generated. It must be rank ordered with the latest activity on top. 
This section must start with the following title:

CMV Engine Power-Up and Shut Down Activity: 

Each subsequent row must have the following data elements:

,,<{Event{time}  
Date>,<{Event{time}  Time>,<{Total{time}  Vehicle 
Miles>,<{Total{time}  Engine Hours>,<{Event{time}  
Latitude>,<{Event{time}  Longitude>,,,,, 

4.8.2.1.10. ELD Event Log List for the Unidentified Driver Profile

    This segment must list the ELD event records for the 
Unidentified Driver profile, rank ordered with most current log on 
top in accordance with the date and time fields of the logs. This 
segment has a variable number of rows depending on the number of 
Unidentified Driver ELD records recorded over the time period for 
which this file is generated. This section must start with the 
following title:

Unidentified Driver Profile Records: 

    Each subsequent row must have the following data elements:

,,,,,<{Event{time}  
Date>,<{Event{time}  Time>,< {Accumulated{time}  Vehicle Miles>,< 
{Elapsed{time}  Engine Hours>,<{Event{time}  
Latitude>,<{Event{time}  Longitude>,, <{Corresponding CMV{time}  Order Number>,,, 

4.8.2.1.11. File Data Check Value

    This segment lists the file data check value as specified in 
section 4.4.5.3 of this appendix. This part includes a single line 
as follows:

End of File: 

 

4.8.2.2. ELD Output File Name Standard

    If the ELD output is saved in a file for transfer or maintenance 
purposes, it must follow the 25 character-long filename standard 
below:
    (a) The first five position characters of the filename must 
correspond to the first five letters of the last name of the driver 
for whom the file is compiled. If the last name of the driver is 
shorter than five characters, remaining positions must use the 
character ``_'' [underscore] as a substitute character. For example, 
if the last name of the driver is ``Lee'', the first five characters 
of the output file must feature ``Lee_ _''.
    (b) The sixth and seventh position characters of the filename 
must correspond to the last two digits of the driver's license 
number for the driver for whom the file is compiled.
    (c) The eighth and ninth position characters of the filename 
must correspond to the sum of all individual numeric digits in the 
driver's license number for the driver for whom the file is 
compiled. The result must be represented in two-digit format. If the 
sum value exceeds 99, use the last two digits of the result. For 
example, if the result equals ``113'', use ``13''. If the result is 
less than 10, use 0 as the first digit. For example, if the result 
equals ``5'', use ``05''.
    (d) The tenth through fifteenth position characters of the 
filename must correspond to the date the file is created. The result 
must be represented in six digit format ``MMDDYY'' where ``MM'' 
represents the month, ``''DD'' represents the day, and ``YY'' 
represents the last two digits of the year. For example, February 5, 
2013, must be represented as ``020513''.
    (e) The sixteenth position character of the filename must be a 
hyphen ``-''.
    (f) The seventeenth through twenty-fifth position characters of 
the filename must, by default, be ``000000000'' but each of these 
nine digits can be freely configured by the motor carrier or the ELD 
provider to be a number between 0 and 9 or a character between A and 
Z to be able to produce distinct files--if or when necessary--that 
may otherwise be identical in filename as per the convention 
proposed in this section. ELD providers or motor carriers do not 
need to

[[Page 78404]]

disclose details of conventions they may use for configuring the 
seventeenth through twenty-fifth digits of the filename.

4.9. Data Transfer Capability Requirements

    An ELD must be able to present the captured ELD records of a 
driver in the standard electronic format as described below, and 
transfer the data file to an authorized safety official, on demand, 
for inspection purposes.

4.9.1. Data Transfer During Roadside Safety Inspections

    (a) On demand during a roadside safety inspection, an ELD must 
produce ELD records for the current 24-hour period and the previous 
7 consecutive days in electronic format, in the standard data format 
described in section 4.8.2.1 of this appendix.
    (b) When a driver uses the single-step driver interface, as 
described in section 4.3.2.4 of this appendix, to indicate that the 
ELD compile and transfer the driver's ELD records to authorized 
safety officials, the ELD must transfer the generated ELD data 
output to the computing environment used by authorized safety 
officials via the standards referenced in this section. To meet 
roadside electronic data transfer requirements, an ELD must do at 
least one of the following:
    (1) Option 1--Telematics transfer methods. Transfer the 
electronic data using both:
    (i) Wireless Web services, and
    (ii) Email, or
    (2) Option 2--Local transfer methods. Transfer the electronic 
data using both:
    (i) USB2 (incorporated by reference, see Sec.  395.38), and
    (ii) Bluetooth (incorporated by reference, see Sec.  395.38).
    (c) The ELD must provide an ELD record for the current 24-hour 
period and the previous 7 consecutive days as described in section 
4.8.1.3 either on a display or on a printout.
    (d) An ELD must support one of the two options for roadside data 
transfer in paragraph (b) of this section, and must certify proper 
operation of each element under that option. An authorized safety 
official will specify which transfer mechanism the official will use 
within the certified transfer mechanisms of an ELD.

4.9.2. Motor Carrier Data Reporting

    (a) An ELD must be capable of retaining copies of electronic ELD 
records for a period of at least 6 months from the date of receipt.
    (b) An ELD must produce, on demand, a data file or a series of 
data files of ELD records for a subset of its drivers, a subset of 
its vehicles, and for a subset of the 6-month record retention 
period, to be specified by an authorized safety official, in an 
electronic format standard described in section 4.8.2.1 of this 
appendix or, if the motor carrier has multiple offices or terminals, 
within the time permitted under Sec.  390.29.
    (c) At a minimum, an ELD must be able to transfer the ELD 
records electronically by one of the following transfer mechanisms:
    (1) Web Services as specified in section 4.10.1.1 of this 
appendix (but not necessarily wirelessly), and Email as specified 
4.10.1.2 (but not necessarily wirelessly); or
    (2) USB 2.0 as specified in section 4.10.1.3 of this appendix 
and Bluetooth, as specified in section 4.10.1.4 (both incorporated 
by reference, see Sec.  395.38).

4.10. Communications Standards for the Transmittal of Data Files from 
ELDs

    ELDs must transmit ELD records electronically in accordance with 
the file format specified in section 4.8.2.1 of this appendix and 
must be capable of a one-way transfer of these records to authorized 
safety officials upon request as specified in section 4.9.

4.10.1. Data Transfer Mechanisms

    For each type of data transfer mechanism, an ELD must follow the 
specifications in this section.

4.10.1.1. Wireless Data Transfer via Web Services

    (a) Transfer of ELD data to FMCSA via Web Services must follow 
the following standards:
    (1) Web Services Description Language (WSDL) 1.1.
    (2) Simple Object Access Protocol (SOAP) 1.2 (incorporated by 
reference, see Sec.  395.38).
    (3) Extensible Markup Language (XML) 1.0 5th Edition.
    (b) If an ELD provider plans to use Web Services, upon ELD 
provider registration as described in section 5.1 of this appendix,
    (1) FMCSA will provide formatting files necessary to convert the 
ELD file into an XML format and upload the data to the FMCSA 
servers. These files include FMCSA's Rules of Behavior, XML Schema, 
WSDL file, Interface Control Document (ICD), and the ELD Web 
Services Development Handbook, and
    (2) ELD Providers must obtain a Public/Private Key pair 
compliant with the NIST SP 800-32, Introduction to Public Key 
Technology and the Federal PKI Infrastructure (incorporated by 
reference, see Sec.  395.38), and submit the public key with their 
registration.
    (3) ELD Providers will be required to complete a test procedure 
to ensure their data is properly formatted before they can begin 
submitting driver's ELD data to the FMCSA server.
    (c) ELD data transmission must be accomplished in a way that 
protects the privacy of the driver(s).
    (d) At roadside, if both the vehicle operator and law 
enforcement have an available data connection, the vehicle operator 
will initiate the transfer of ELD data to an authorized safety 
official. In some cases, an ELD may be capable of converting the ELD 
file to an XML format using an FMCSA-provided schema and upload it 
using information provided in the WSDL file using SOAP via RFC 7230, 
RFC 7231, and RFC 5246, Transport Layer Security (TLS) Protocol 
Version 1.2 (incorporated by reference, see Sec.  395.38).

4.10.1.2. Wireless Data Transfer Through Email

    (a) The ELD must attach a file to an email message to be sent 
using RFC 5321 Simple Mail Transfer Protocol (SMTP) (incorporated by 
reference, see Sec.  395.38), to a specific email address, which 
will be shared with the ELD providers during the technology 
registration process.
    (b) The file must have the format described in section 4.8.2.1 
of this appendix and must be encrypted using the Secure/Multipurpose 
Internet Mail Extensions as described in RFC 5751 (incorporated by 
reference, see Sec.  395.38), and the RSA algorithm as described in 
RFC 4056 (incorporated by reference, see Sec.  395.38), with the 
FMCSA public key compliant with NIST SP 800-32 (incorporated by 
reference, see Sec.  395.38) to be provided to the ELD provider at 
the time of registration. The content must be encrypted using AESin 
FIPS Publication 197 (incorporated by reference, see Sec.  395.38), 
and RFC 3565 (incorporated by reference, see Sec.  395.38).
    (c) The email must be formatted using the RFC 5322 Internet 
Message Format (incorporated by reference, see Sec.  395.38), as 
follows:

------------------------------------------------------------------------
             Element                               Format
------------------------------------------------------------------------
To :.............................  
From :...........................  
Subject :........................  ELD records from <':'>
                                   
Body :...........................  
Attachment:......................  MIME encoded AES-256 encrypted file
                                    with ...aes
------------------------------------------------------------------------

    (d) A message confirming receipt of the ELD file will be sent to 
the address specified in the email. The filename must follow the 
convention specified in section 4.8.2.2 of this appendix.

4.10.1.3 Data Transfer via USB 2.0

    (a) ELDs certified for the USB data transfer mechanism must be 
capable of transferring ELD records using the Universal Serial Bus 
Specification (Revision 2.0) (incorporated by reference, see Sec.  
395.38).
    (b) Each ELD technology must implement a single USB-compliant 
interface with the necessary adaptors for a Type A connector. The 
USB interface must implement the Mass Storage class (08h) for 
driverless operation, to comply with IEEE standard 1667-2009, 
(incorporated by reference, see Sec.  395.38).
    (c) The ELD must be capable of providing power to a standard 
USB-compatible drive.
    (d) An ELD must re-authenticate the driver prior to saving the 
driver's ELD file to an external device.
    (e) On initiation by an authenticated driver, an ELD must be 
capable of saving ELD file(s) to USB-compatible drives (AES, in FIPS 
Publication 197, incorporated by reference, see Sec.  395.38) that 
are provided by authorized safety officials during an inspection. 
Prior to initiating this action, ELDs must be capable of reading a 
text file from an authorized safety officials' drive and verifying 
it against a file provided to ELD providers who have registered 
their technologies as described in section 5.1 of this appendix.

4.10.1.4. Data Transfer via Bluetooth[supreg]

    (a) Bluetooth SIG Specification of the Bluetooth System covering 
core package

[[Page 78405]]

version 2.1 + EDR (incorporated by reference, see Sec.  395.38) must 
be followed. ELDs using this standard must be capable of displaying 
a Personal Identification Number generated by the Bluetooth 
application profile for bonding with other devices(incorporated by 
reference, see Sec.  395.38).
    (b) Upon request of an authorized official, the ELD must become 
discoverable by the authorized safety officials' Bluetooth-enabled 
computing platform, and generate a random code, which the driver 
must share with the official (incorporated by reference, see Sec.  
395.38).
    (c) The ELD must connect to the roadside authorized safety 
officials' technology via wireless personal area network and 
transmit the required data via Web Services as described in section 
4.10.1.1 of this appendix.

4.10.2. Motor Carrier Data Transmission

    Regardless of the roadside transmission option supported by an 
ELD, ELD records are to be retained and must be able to transmit 
enforcement-specified historical data for their drivers using one of 
the methods specified under section 4.9.2 of this appendix.
    (a) Web services option must follow the specifications described 
under section 4.10.1.1 of this appendix.
    (b) The email option must follow the specifications described 
under section 4.10.1.2 of this appendix.
    (c) The USB option must follow the specifications of Universal 
Serial Bus Specification, revision 2.0 (incorporated by reference, 
see Sec.  395.38) and described in section 4.10.1.3 of this 
appendix.
    (d) Bluetooth must follow the specifications incorporated by 
reference (see Sec.  395.38) and described in section 4.10.1.4 of 
this appendix.

5. ELD Registration and Certification

    As described in Sec.  395.22(a) of this part, motor carriers 
must only use ELDs that are listed on the FMCSA Web site. An ELD 
provider must register with FMCSA and certify each ELD model and 
version for that ELD to be listed on this Web site.

5.1. ELD Provider's Registration

5.1.1. Registering Online

    (a) An ELD provider developing an ELD technology must register 
online at a secure FMCSA Web site where the ELD provider can 
securely certify that its ELD is compliant with this appendix.
    (b) Provider's registration must include the following 
information:
    (1) Company name of the technology provider/manufacturer.
    (2) Name of an individual authorized by the provider to verify 
that the ELD is compliant with this appendix and to certify it under 
section 5.2 of this appendix.
    (3) Address of the registrant.
    (4) Email address of the registrant.
    (5) Telephone number of the registrant.

5.1.2. Keeping Information Current

    The ELD provider must keep the information in section 5.1.1(b) 
of this appendix current through FMCSA's Web site.

5.1.3. Authentication Information Distribution

    FMCSA will provide a unique ELD registration ID, authentication 
key(s), authentication file(s), and formatting and configuration 
details required in this appendix to registered providers during the 
registration process.

5.2. Certification of Conformity With FMCSA Standards

    A registered ELD provider must certify that each ELD model and 
version has been sufficiently tested to meet the functional 
requirements included in this appendix under the conditions in which 
the ELD would be used.

5.2.1. Online Certification

    (a) An ELD provider registered online as described in section 
5.1.1 of this appendix must disclose the information in paragraph 
(b) of this section about each ELD model and version and certify 
that the particular ELD is compliant with the requirements of this 
appendix.
    (b) The online process will only allow a provider to complete 
certification if the provider successfully discloses all of the 
following required information:
    (1) Name of the product.
    (2) Model number of the product.
    (3) Software version of the product.
    (4) An ELD identifier, uniquely identifying the certified model 
and version of the ELD, assigned by the ELD provider in accordance 
with section 7.15 of this appendix.
    (5) Picture and/or screen shot of the product.
    (6) User's manual describing how to operate the ELD.
    (7) Description of the supported and certified data transfer 
mechanisms and step-by-step instructions for a driver to produce and 
transfer the ELD records to an authorized safety official.
    (8) Summary description of ELD malfunctions.
    (9) Procedure to validate an ELD authentication value as 
described in section 7.14 of this appendix.
    (10) Certifying statement describing how the product was tested 
to comply with FMCSA regulations.

5.2.2. Procedure To Validate an ELD's Authenticity

    Paragraph 5.2.1(b)(9) of this appendix requires that the ELD 
provider identify its authentication process and disclose necessary 
details for FMCSA systems to independently verify the ELD 
authentication values included in the dataset of inspected ELD 
outputs. The authentication value must include a hash component that 
only uses data elements included in the ELD dataset and datafile. 
ELD authentication value must meet the requirements specified in 
section 7.14 of this appendix.

5.3. Publicly Available Information

    Except for the information listed under paragraphs 5.1.1(b)(2), 
(4), and (5) and 5.2.1(b)(9) of this appendix, FMCSA will make the 
information in sections 5.1.1 and 5.2.1 for each certified ELD 
publicly available on a Web site to allow motor carriers to 
determine which products have been properly registered and certified 
as ELDs compliant with this appendix.

5.4. Removal of Listed Certification

5.4.1. Removal Process

    FMCSA may remove an ELD model or version from the list of ELDs 
on the FMCSA Web site in accordance with this section.

5.4.2. Notice

    FMCSA shall initiate the removal of an ELD model or version from 
the list of ELDs on the FMCSA Web site by providing the ELD provider 
written notice stating:
    (a) The reasons FMCSA proposes to remove the model or version 
from the FMCSA list; and
    (b) Any corrective action that the ELD provider must take for 
the ELD model or version to remain on the list.

5.4.3. Response

    An ELD provider that receives notice under section 5.4.2 of this 
appendix may submit a response to the Director, Office of Carrier 
Driver, and Vehicle Safety Standards no later than 30 days after 
issuance of the notice of proposed removal, explaining:
    (a) The reasons why the ELD provider believes the facts relied 
on by the Agency, in proposing removal, are wrong; or
    (b) The action the ELD provider will take to correct the 
deficiencies that FMCSA identified.

5.4.4. Agency Action

    (a) If the ELD provider fails to respond within 30 days of the 
date of the notice issued under section 5.4.2 of this appendix, the 
ELD model or version shall be removed from the FMCSA list.
    (b) If the ELD provider submits a timely response, the Director, 
Office of Carrier, Driver, and Vehicle Safety Standards, shall 
review the response and withdraw the notice of proposed removal, 
modify the notice of proposed removal, or affirm the notice of 
proposed removal, and notify the ELD provider in writing of the 
determination.
    (c) Within 60 days of the determination, the ELD provider shall 
take any action required to comply. If the Director determines that 
the ELD provider failed to timely take the required action within 
the 60 day period, the ELD model or version shall be removed from 
the FMCSA list.
    (d) The Director, Office of Carrier, Driver, and Vehicle Safety 
Standards may request from the ELD provider any information that the 
Director considers necessary to make a determination under this 
section.

5.4.5. Administrative Review

    (a) Within 30 days of removal of an ELD model or version from 
the FMCSA list of certified ELDs under section 5.4.4 of this 
appendix, the ELD provider may request administrative review.
    (b) A request for administrative review must be submitted in 
writing to the FMCSA Associate Administrator for Policy. The request 
must explain the error committed in removing the ELD model or 
version from the FMCSA list, identify all factual, legal, and 
procedural issues in dispute, and include any supporting information 
or documents.

[[Page 78406]]

    (c) The Associate Administrator may ask the ELD provider to 
submit additional information or attend a conference to discuss the 
removal. If the ELD provider does not submit the requested 
information or attend the scheduled conference, the Associate 
Administrator may dismiss the request for administrative review.
    (d) The Associate Administrator will complete the administrative 
review and notify the ELD provider of the decision in writing. The 
decision constitutes a final Agency action.

6. References

    (a) American National Standards Institute (ANSI). 11 West 42nd 
Street, New York, New York 10036, https://webstore.ansi.org, (212) 
642-4900.
    (1) ANSI INCITS 4-1986 (R2012), American National Standard for 
Information Systems--Coded Character Sets--7-Bit American National 
Standard Code for Information Interchange (7-Bit ASCII), approved 
June 14, 2007, IBR in section 4.8.2.1, Appendix A to subpart B.
    (2) ANSI INCITS 446-2008 (R2013), American National Standard for 
Information Technology--Identifying Attributes for Named Physical 
and Cultural Geographic Features (Except Roads and Highways) of the 
United States, Territories, Outlying Areas, and Freely Associated 
Areas, and the Waters of the Same to the Limit of the Twelve-Mile 
Statutory Zone, approved October 28, 2008, IBR in section 4.4.2, 
Appendix A to subpart B.
    (b) Bluetooth SIG, Inc. 5209 Lake Washington Blvd. NE., Suite 
350, Kirkland, WA 98033, https://www.bluetooth.org/Technical/Specifications/adopted.htm, (425) 691-3535.
    (1) Bluetooth SIG, Inc., Specification of the Bluetooth System: 
Wireless Connections Made Easy, Covered Core Package version 2.1 + 
EDR, volumes 0 through 4, approved July 26, 2007, IBR in sections 
4.9.1, 4.9.2, 4.10.1.4, 4.10.2, Appendix A to subpart B.
    (2) [Reserved]
    (c) Institute of Electrical and Electronic Engineers (IEEE) 
Standards Association. 445 Hoes Lane, Piscataway, NJ 08854-4141, 
https://standards.ieee.org/, (732) 981-0060.
    (1) IEEE Std 1667-2009, IEEE Standard for Authentication in Host 
Attachments of Transient Storage Devices, approved 11 November 2009, 
IBR in section 4.10.1.3, Appendix A to subpart B.
    (2) [Reserved]
    (d) Internet Engineering Task Force (IETF). C/o Association 
Management Solutions, LLC (AMS) 48377 Freemont Blvd., Suite 117, 
Freemont, CA 94538, (510) 492-4080.
    (1) IETF RFC 3565, Use of the Advanced Encryption Standard (AES) 
Encryption Algorithm in Cryptographic Message Syntax (CMS), approved 
July 2003, IBR in section 4.10.1.2, Appendix A to subpart B.
    (2) IETF RFC 4056, Use of the RSASSA-PSS Signature Algorithm in 
Cryptographic Message Syntax (CMS), approved June 2005, IBR in 
section 4.10.1.2, Appendix A to subpart B.
    (3) IETF RFC 5246, The Transport Layer Security (TLS) Protocol 
Version 1.2, approved August 2008, IBR in section 4.10.1.1, Appendix 
A to subpart B.
    (4) IETF RFC 5321, Simple Mail Transfer Protocol, approved 
October 2008, IBR in section 4.10.1.2, Appendix A to subpart B.
    (5) IETF RFC 5322, Internet Message Format, approved October 
2008, IBR in section 4.10.1.2, Appendix A to subpart B.
    (6) IETF RFC 5751, Secure/Multipurpose Internet Mail Extensions 
(S/MIME) Version 3.2, Message Specification, approved January 2010, 
IBR in section 4.10.1.2, Appendix A to subpart B.
    (7) IETF RFC 7230, Hypertext Transfer Protocol (HTTP/1.1): 
Message Syntax and Routing, approved June 2014, IBR in section 
4.10.1.1, Appendix A to subpart B.
    (8) IETF RFC 7231, Hypertext Transfer Protocol (HTTP/1.1): 
Semantics and Content, approved June 2014, IBR in section 4.10.1.1, 
Appendix A to subpart B.
    (e) National Institute of Standards and Technology (NIST). 100 
Bureau Drive, Stop 1070, Gaithersburg, MD 20899-1070, https://www.nist.gov, (301) 975-6478.
    (1) Federal Information Processing Standards Publication (FIPS 
PUB) 197, Advanced Encryption Standard (AES), approved November 26, 
2001, IBR in sections 4.10.1.2 and 4.10.1.3, Appendix A to subpart 
B.
    (2) SP 800-32, Introduction to Public Key Technology and the 
Federal PKI Infrastructure, approved February 26, 2001, IBR in 
section 4.10.1.2, Appendix A to subpart B.
    (f) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 
153rd Drive, Beaverton, Oregon 97006, https://www.usb.org, (503) 619-
0426.
    (1) USB Implementers Forum, Inc., Universal Serial Bus 
Specification, Revision 2.0, approved April 27, 2000, as revised 
through April 3, 2015, IBR in sections 4.9.1, 4.9.2, 4.10.1.3, and 
4.10.2, Appendix A to subpart B.
    (2) [Reserved]
    (g) World Wide Web Consortium (W3C). 32 Vassar Street, Building 
32-G514, Cambridge, MA 02139, https://www.w3.org, (617) 253-2613.
    (1) W3C Recommendation 27, SOAP Version 1.2 Part 1: Messaging 
Framework (Second Edition), including errata, approved April 2007, 
IBR in section 4.10.1.1, Appendix A to subpart B.
    (2) [Reserved]

7. Data Elements Dictionary

7.1. 24-Hour Period Starting Time

    Description: This data element refers to the 24-hour period 
starting time specified by the motor carrier for driver's home 
terminal.
    Purpose: Identifies the bookends of the work day for the driver; 
makes ELD records consistent with Sec.  395.8 requirements, which 
require this information to be included on the form.
    Source: Motor carrier.
    Used in: ELD account profile; ELD outputs.
    Data Type: Programmed or populated on the ELD during account 
creation and maintained by the motor carrier to reflect true and 
accurate information for drivers.
    Data Range: 000000 to 235959; first two digits 00 to 23; middle 
two digits and last two digits 00 to 59.
    Data Length: 6 characters.
    Data Format:  Military time format, where ``HH'' refers 
to hours,
    ``MM'' refers to minutes, and ``SS'' refers to seconds; 
designation for start time expressed in time standard in effect at 
the driver's home terminal.
    Disposition: Mandatory.
    Examples: [060000], [073000], [180000].

7.2. Carrier Name

    Description: This data element refers to the motor carrier's 
legal name for conducting commercial business.
    Purpose: Provides a recognizable identifier about the motor 
carrier on viewable ELD outputs; provides ability to cross check 
against USDOT number.
    Source: FMCSA's Safety and Fitness Electronic Records (SAFER) 
System.
    Used in: ELD account profile.
    Data Type: Programmed on the ELD or entered once during the ELD 
account creation process.
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: 4; Maximum: 120 characters.
    Data Format:  as in  to .
    Disposition: Mandatory.
    Example: [CONSOLIDATED TRUCKLOAD INC.].

7.3. Carrier's USDOT Number

    Description: This data element refers to the motor carrier's 
USDOT number.
    Purpose: Uniquely identifies the motor carrier employing the 
driver using the ELD.
    Source: FMCSA's Safety and Fitness Electronic Records (SAFER) 
System.
    Used in: ELD account profiles; ELD event records; ELD output 
file.
    Data Type: Programmed on the ELD or entered once during the ELD 
account creation process.
    Data Range: An integer number of length 1-8 assigned to the 
motor carrier by FMCSA (9 position numbers reserved).
    Data Length: Minimum: 1; Maximum: 9 characters.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [1], [1000003].

7.4. CMV Power Unit Number

    Description: This data element refers to the identifier the 
motor carrier uses for their CMVs in their normal course of 
business.
    Purpose: Identifies the vehicle a driver operates while a 
driver's ELD records are recorded; Makes ELD records consistent with 
Sec.  395.8 requirements, which require the truck or tractor number 
to be included on the form.
    Source: Unique CMV identifiers a motor carrier uses in its 
normal course of business and includes on dispatch documents, or the 
license number and the licensing State of the power unit.
    Used in: ELD event records; ELD output file.
    Data Type: Programmed on the ELD or populated by motor carrier's 
extended ELD system or entered by the driver.
    Data Range: Any alphanumeric combination.

[[Page 78407]]

    Data Length: Minimum: 1; Maximum: 10 characters.
    Data Format:  as in  to .
    Disposition: Mandatory for all CMVs operated while using an ELD.
    Examples: [123], [00123], [BLUEKW123], [TX12345].

7.5. CMV VIN

    Description: This data element refers to the manufacturer-
assigned vehicle identification number (VIN) for the CMV powered 
unit.
    Purpose: Uniquely identifies the operated CMV not only within a 
motor carrier at a given time but across all CMVs sold within a 30-
year rolling period.
    Source: A robust unique CMV identifier standardized in North 
America.
    Used in: ELD event records; ELD output file.
    Data Type: Retrieved from the engine ECM via the vehicle 
databus.
    Data Range: Either blank or 17 characters long as specified by 
NHTSA in 49 CFR part 565, or 18 characters long with first character 
assigned as ``-'' (dash) followed by the 17 character long VIN. 
Check digit, i.e., VIN character position 9, as specified in 49 CFR 
part 565 must imply a valid VIN.
    Data Length: Blank or 17-18 characters.
    Data Format:  or <``-''>  or <{blank{time} > 
as in , or <-CCCCCCCCCCCCCCCCC> or <>.
    Disposition: Mandatory for all ELDs linked to the engine ECM and 
when VIN is available from the engine ECM over the vehicle databus; 
otherwise optional. If optionally populated and source is not the 
engine ECM, precede VIN with the character ``-'' in records.
    Examples: [1FUJGHDV0CLBP8834], [-1FUJGHDV0CLBP8896], [].

7.6. Comment/Annotation

    Description: This is a textual note related to a record, update, 
or edit capturing the comment or annotation a driver or authorized 
support personnel may input to the ELD.
    Purpose: Provides ability for a driver to offer explanations to 
records, selections, edits, or entries.
    Source: Driver or authorized support personnel.
    Used in: ELD events; ELD outputs.
    Data Type: Entered by the authenticated user via ELD's 
interface.
    Data Range: Free form text of any alphanumeric combination.
    Data Length: 0-60 characters if optionally entered; 4-60 
characters if annotation is required and driver is prompted by the 
ELD.
    Data Format:  as in <{blank{time} > or  
to .
    Disposition: Optional in general; Mandatory if prompted by ELD.
    Examples: [], [Personal Conveyance. Driving to Restaurant in 
bobtail mode], [Forgot to switch to SB. Correcting here].

7.7. Data Diagnostic Event Indicator Status

    Description: This is a Boolean indicator identifying whether the 
used ELD unit has an active data diagnostic event set for the 
authenticated driver at the time of event recording.
    Purpose: Documents the snapshot of ELD's data diagnostic status 
for the authenticated driver at the time of an event recording.
    Source: ELD internal monitoring functions.
    Used in: ELD events; ELD outputs.
    Data Type: Internally monitored and managed.
    Data Range: 0 (no active data diagnostic events for the driver) 
or 1 (at least one active data diagnostic event set for the driver).
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [0] or [1].

7.8. Date

    Description: In combination with the variable ``Time'', this 
parameter stamps records with a reference in time; even though date 
and time must be captured in UTC, event records must use date and 
time converted to the time zone in effect at the driver's home 
terminal as specified in section 4.4.3.
    Purpose: Provides ability to record the instance of recorded 
events.
    Source: ELD's converted time measurement.
    Used in: ELD events; ELD outputs.
    Data Type: UTC date must be automatically captured by ELD; date 
in effect at the driver's home terminal must be calculated as 
specified in section 4.4.3.
    Data Range: Any valid date combination expressed in  
format where ``MM'' refers to months, ``DD'' refers to days of the 
month and ``YY'' refers to the last two digits of the calendar year.
    Data Length: 6 characters.
    Data Format:  where  must be between 01 and 12,  
must be between 01 and 31, and  must be between 00 and 99.
    Disposition: Mandatory.
    Examples: [122815], [010114], [061228].

7.9. Distance Since Last Valid Coordinates

    Description: Distance in whole miles traveled since the last 
valid latitude, longitude pair the ELD measured with the required 
accuracy.
    Purpose: Provides ability to keep track of location for recorded 
events in cases of temporary position measurement outage.
    Source: ELD internal calculations.
    Used in: ELD events; ELD outputs.
    Data Type: Kept track of by the ELD based on position 
measurement validity.
    Data Range: An integer value between 0 and 6; If the distance 
traveled since the last valid coordinate measurement exceeds 6 
miles, the ELD must enter the value as 6.
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [0], [1], [5], [6].

7.10. Driver's License Issuing State

    Description: This data element refers to the issuing State, 
Province or jurisdiction of the listed Driver's License for the ELD 
account holder.
    Purpose: In combination with ``Driver's License Number'', it 
links the ELD driver account holder uniquely to an individual with 
driving credentials; ensures that only one driver account can be 
created per individual.
    Source: Driver's license.
    Used in: ELD account profile(s); ELD output file.
    Data Type: Entered (during the creation of a new ELD account).
    Data Range: To character abbreviation listed on Table 5 of this 
appendix.
    Data Length: 2 characters.
    Data Format:  as in .
    Disposition: Mandatory for all driver accounts created on the 
ELD; optional for ``non-driver'' accounts.
    Example: [WA].
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7.11. Driver's License Number

    Description: This data element refers to the unique Driver's 
License information required for each driver account on the ELD.
    Purpose: In combination with driver's license issuing State, it 
links the ELD driver account holder to an individual with driving 
credentials; ensures that only one driver account can be created per 
individual.
    Source: Driver's license.
    Used in: ELD account profile(s); ELD output file.
    Data Type: Entered (during the creation of a new ELD account).
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: 1; Maximum: 20 characters.
    Data Format:  as in  to 
. For ELD record keeping purposes, ELD must 
only retain characters in a Driver's License Number entered during 
an account creation process that are a number between 0-9 or a 
character between A-Z (non-case sensitive).
    Disposition: Mandatory for all driver accounts created on the 
ELD; optional for ``non-driver'' accounts.
    Examples: [SAMPLMJ065LD], [D000368210361], [198], 
[N02632676353666].

7.12. Driver's Location Description

    Description: This is a textual note related to the location of 
the CMV input by the driver upon ELD's prompt.
    Purpose: Provides ability for a driver to enter location 
information related to entry of missing records; provides ability to 
accommodate temporary positioning service interruptions or outage 
without setting positioning malfunctions.
    Source: Driver, only when prompted by the ELD.
    Used in: ELD events; ELD outputs.
    Data Type: Entered by the authenticated driver when ELD solicits 
this information as specified in section 4.3.2.7.

[[Page 78410]]

    Data Range: Free form text of any alphanumeric combination.
    Data Length: 5-60 characters.
    Data Format:  to .
    Disposition: Mandatory when prompted by ELD.
    Examples: [], [5 miles SW of Indianapolis, IN], [Reston, VA].

7.13. ELD Account Type

    Description: An indicator designating whether an ELD account is 
a driver account or support personnel (non-driver) account.
    Purpose: Enables authorized safety officials to verify account 
type specific requirements set forth in this document.
    Source: ELD designated.
    Used in: ELD outputs.
    Data Type: Specified during the account creation process and 
recorded on ELD.
    Data Range: Character ``D'', indicating account type ``Driver'', 
or ``S'', indicating account type ``motor carrier's support 
personnel'' (i.e. non-driver); ``Unidentified Driver'' account must 
be designated with type ``D''.
    Data Length: 1 character.
    Data Format: .
    Disposition: Mandatory.
    Examples: [D], [S].

7.14. ELD Authentication Value

    Description: An alphanumeric value that is unique to an ELD and 
verifies the authenticity of the given ELD.
    Purpose: Provides ability to cross-check the authenticity of an 
ELD used in the recording of a driver's records during inspections.
    Source: ELD provider-assigned value; includes a certificate 
component and a hashed component; necessary information related to 
authentication keys and hash procedures disclosed by the registered 
ELD provider during the online ELD certification process for 
independent verification by FMCSA systems.
    Used in: ELD outputs.
    Data Type: Calculated from the authentication key and 
calculation procedure privately distributed by the ELD provider to 
FMCSA during the ELD registration process.
    Data Range: Alphanumeric combination.
    Data Length: 16-32 characters.
    Data Format: .
    Disposition: Mandatory.
    Example: [D3A4506EC8FF566B506EC8FF566BDFBB].

7.15. ELD Identifier

    Description: An alphanumeric identifier assigned by the ELD 
provider to the ELD technology that is certified by the registered 
provider at FMCSA's Web site.
    Purpose: Provides ability to cross-check that the ELD used in 
the recording of a driver's records is certified through FMCSA's 
registration and certification process as required.
    Source: Assigned and submitted by the ELD provider during the 
online certification of an ELD model and version.
    Used in: ELD outputs.
    Data Type: Coded on the ELD by the ELD provider and disclosed to 
FMCSA during the online certification process.
    Data Range: A six character alphanumeric identifier using 
characters A-Z and number 0-9.
    Data Length: 6 characters.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [1001ZE], [GAM112], [02P3P1].

7.16. ELD Provider

    Description: An alphanumeric company name of the technology 
provider as registered at the FMCSA's Web site.
    Purpose: Provides ability to cross-check that the ELD used in 
the recording of a driver's records is certified through FMCSA's 
registration and certification process as required.
    Source: Assigned and submitted by the ELD provider during the 
online registration process.
    Used in: ELD outputs.
    Data Type: Coded on the ELD by the ELD provider and disclosed to 
FMCSA during the online registration process.
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: 4; Maximum 120 characters.
    Data Format:  as in  to .
    Disposition: Mandatory.
    Examples: [ELD PROVIDER INC].

7.17. ELD Registration ID

    Description: An alphanumeric registration identifier assigned to 
the ELD provider that is registered with FMCSA during the ELD 
registration process.
    Purpose: Provides ability to cross-check that the ELD provider 
has registered as required.
    Source: Received from FMCSA during online provider registration.
    Used in: ELD outputs.
    Data Type: Coded on the ELD by the provider.
    Data Range: A four character alphanumeric registration 
identifier using characters A-Z and numbers 0-9.
    Data Length: 4 characters.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [ZA10], [QA0C], [FAZ2].

7.18. ELD Username

    Description: This data element refers to the unique user 
identifier assigned to the account holder on the ELD to authenticate 
the corresponding individual during an ELD login process; the 
individual may be a driver or a motor carrier's support personnel.
    Purpose: Documents the user identifier assigned to the driver 
linked to the ELD account.
    Source: Assigned by the motor carrier during the creation of a 
new ELD account.
    Used in: ELD account profile; event records; ELD login process.
    Data Type: Entered (during account creation and user 
authentication).
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: 4; Maximum: 60 characters.
    Data Format:  as in  to .
    Disposition: Mandatory for all accounts created on the ELD.
    Examples: [smithj], [100384], [sj2345], [john.smith].

7.19. Engine Hours

    Description: This data element refers to the time the CMV's 
engine is powered in decimal hours with 0.1 hr (6-minute) 
resolution; this parameter is a placeholder for <{Total{time}  
Engine Hours>, which refers to the aggregated time of a vehicle's 
engine's operation since its inception, and used in recording 
``engine power on'' and ``engine shut down'' events, and also for 
<{Elapsed{time}  Engine Hours>, which refers to the elapsed time in 
the engine's operation in the given ignition power on cycle, and 
used in the recording of all other events.
    Purpose: Provides ability to identify gaps in the operation of a 
CMV, when the vehicle's engine may be powered but the ELD may not; 
provides ability to cross check integrity of recorded data elements 
in events and prevent gaps in the recording of ELD.
    Source: ELD measurement or sensing.
    Used in: ELD events; ELD outputs.
    Data Type: Acquired from the engine ECM or a comparable other 
source as allowed in section 4.3.1.4.
    Data Range: For <{Total{time}  Engine Hours>, range is between 
0.0 and 99,999.9; for <{Elapsed{time}  Engine Hours>, range is 
between 0.0 and 99.9.
    Data Length: 3-7 characters.
    Data Format:  as in  to .
    Disposition: Mandatory.
    Examples: [0.0], [9.9], [346.1], [2891.4].

7.20. Event Code

    Description: A dependent attribute on ``Event Type'' parameter 
that further specifies the nature of the change indicated in ``Event 
Type''; this parameter indicates the new status after the change.
    Purpose: Provides ability to code the specific nature of the 
change electronically.
    Source: ELD internal calculations.
    Used in: ELD event records; ELD outputs.
    Data Type: ELD recorded and maintained event attribute in 
accordance with the type of event and nature of the new status being 
recorded.
    Data Range: Dependent on the ``Event Type'' as indicated on 
Table 6 of this appendix.
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [0], [1], [4], [9].
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7.21. Event Data Check Value

    Description: A hexadecimal ``check'' value calculated in 
accordance with the procedure outlined in section 4.4.5.1 of this 
appendix and attached to each event record at the time of recording.
    Purpose: Provides ability to identify cases where an ELD event 
record may have been inappropriately modified after its original 
recording.
    Source: ELD internal.
    Used in: ELD events; ELD output file.
    Data Type: Calculated by the ELD in accordance with section 
4.4.5.1 of this appendix.
    Data Range: A number between hexadecimal 00 (decimal 0) and 
hexadecimal FF (decimal 255).
    Data Length: 2 characters.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [05], [CA], [F3].

7.22. Event Record Origin

    Description: An attribute for the event record indicating 
whether it is automatically recorded, or edited, entered or accepted 
by the driver, requested by another authenticated user, or assumed 
from unidentified driver profile.
    Purpose: Provides ability to track origin of the records.
    Source: ELD internal calculations.
    Used in: ELD event records; ELD outputs.
    Data Type: ELD recorded and maintained event attribute in 
accordance with the procedures outlined in sections 4.4.4.2.2, 
4.4.4.2.3, 4.4.4.2.4, 4.4.4.2.5, and 4.4.4.2.6 of this appendix.
    Data Range: 1, 2, 3 or 4 as described on Table 7 of this 
appendix.
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [1], [2], [3], [4].

[[Page 78412]]

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7.23. Event Record Status

    Description: An attribute for the event record indicating 
whether an event is active or inactive and further, if inactive, 
whether it is due to a change or lack of confirmation by the driver 
or due to a driver's rejection of change request.
    Purpose: Provides ability to keep track of edits and entries 
performed over ELD records while retaining original records.
    Source: ELD internal calculations.
    Used in: ELD event records; ELD outputs.
    Data Type: ELD recorded and maintained event attribute in 
accordance with the procedures outlined in sections 4.4.4.2.2, 
4.4.4.2.3, 4.4.4.2.4, 4.4.4.2.5, and 4.4.4.2.6 of this appendix.
    Data Range: 1, 2, 3 or 4 as described on Table 8 of this 
appendix.
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [1], [2], [3], [4].
    [GRAPHIC] [TIFF OMITTED] TR16DE15.013
    
7.24. Event Sequence ID Number

    Description: This data element refers to the serial identifier 
assigned to each required ELD event as described in section 4.5.1 of 
this appendix.
    Purpose: Provides ability to keep a continuous record, on a 
given ELD, across all users of that ELD.
    Source: ELD internal calculations.
    Used in: ELD event records; ELD outputs.
    Data Type: ELD maintained; incremented by 1 for each new record 
on the ELD; continuous for each new event the ELD records regardless 
of owner of the records.
    Data Range: 0 to FFFF; initial factory value must be 0; after 
FFFF hexadecimal (decimal 65535), the next Event Sequence ID number 
must be 0.
    Data Length: 1-4 characters.
    Data Format:  as in  to .
    Disposition: Mandatory.
    Examples: [1], [1F2C], p2D3], [BB], [FFFE].

7.25. Event Type

    Description: An attribute specifying the type of the event 
record.
    Purpose: Provides ability to code the type of the recorded event 
in electronic format.
    Source: ELD internal calculations.
    Used in: ELD event records; ELD outputs.
    Data Type: ELD recorded and maintained event attribute in 
accordance with the type of event being recorded.
    Data Range: 1-7 as described on Table 9 of this appendix.
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [1], [5], [4], [7].

[[Page 78413]]

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7.26. Exempt Driver Configuration

    Description: A parameter indicating whether the motor carrier 
configured a driver's profile to claim exemption from ELD use.
    Purpose: Provides ability to code the motor carrier-indicated 
exemption for the driver electronically.
    Source: Motor carrier's configuration for a given driver.
    Used in: ELD outputs.
    Data Type: Motor carrier configured and maintained parameter in 
accordance with the qualification requirements listed in Sec.  
395.1.
    Data Range: E (exempt) or 0 (number zero).
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [E], [0].

7.27. File Data Check Value

    Description: A hexadecimal ``check'' value calculated in 
accordance with the procedure outlined in section 4.4.5.3 of this 
appendix and attached to each ELD output file.
    Purpose: Provides ability to identify cases where an ELD file 
may have been inappropriately modified after its original creation.
    Source: ELD internal.
    Used in: ELD output files.
    Data Type: Calculated by the ELD in accordance with section 
4.4.5.3 of this appendix.
    Data Range: A number between hexadecimal 0000 (decimal 0) and 
hexadecimal FFFF (decimal 65535).
    Data Length: 4 characters.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [F0B5], [00CA], [523E].

7.28. First Name

    Description: This data element refers to the given name of the 
individual holding an ELD account.
    Purpose: Links an individual to the associated ELD account.
    Source: Driver's license for driver accounts; driver's license 
or government-issued ID for support personnel accounts.
    Used in: ELD account profile(s); ELD outputs (display and file).
    Data Type: Entered (during the creation of a new ELD account).
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: 2; Maximum: 30 characters.
    Data Format:  as in  to  where ``C'' 
denotes a character.
    Disposition: Mandatory for all accounts created on the ELD.
    Example: [John].

7.29. Geo-Location

    Description: A descriptive indicator of the CMV position in 
terms of a distance and direction to a recognizable location derived 
from a GNIS database at a minimum containing all cities, towns and 
villages with a population of 5,000 or greater.
    Purpose: Provide recognizable location information on a display 
or printout to users of the ELD.
    Source: ELD internal calculations as specified in section 4.4.2 
of this appendix.
    Used in: ELD display or printout.
    Data Type: Identified from the underlying latitude/longitude 
coordinates by the ELD.
    Data Range: Contains four segments in one text field; a 
recognizable location driven from GNIS database containing--at a 
minimum--all cities, towns and villages with a population of 5,000 
in text format containing a location name and the State 
abbreviation, distance from this location and direction from this 
location.
    Data Length: Minimum: 5; Maximum: 60 characters.
    Data Format:  
<'mi `>  <' `> 
 <' `>  where:

 must either be 
<{blank{time} > or  or  where the up-to two character number 
specifies absolute distance between identified geo-location and 
event location;
 must either be 
<{blank{time} > or  or  or , must represent direction of 
event location with respect to the identified geo-location, and must 
take a value listed on Table 10 of this appendix; must take values listed on Table 
5;  must be the text 
description of the identified reference location;
Overall length of the ``Geo-location'' parameter must not be longer 
than 60 characters long.

    Disposition: Mandatory.
    Examples: [2mi ESE IL Darien], [1mi SE TX Dallas], [11mi NNW IN 
West Lafayette].

[[Page 78414]]

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7.30. Last Name

    Description: This data element refers to the last name of the 
individual holding an ELD account.
    Purpose: Links an individual to the associated ELD account.
    Source: Driver's license for driver accounts; driver's license 
or government-issued ID for support personnel accounts.
    Used in: ELD account profile(s); ELD outputs (display and file).
    Data Type: Entered (during the creation of a new ELD account).
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: 2; Maximum: 30 characters.
    Data Format:  as in  to .
    Disposition: Mandatory for all accounts created on the ELD.
    Example: [Smith].

7.31. Latitude

    Description: An angular distance in degrees north and south of 
the equator.
    Purpose: In combination with the variable ``Longitude'', this 
parameter stamps records requiring a position attribute with a 
reference point on the face of the earth.
    Source: ELD's position measurement.
    Used in: ELD events; ELD outputs.
    Data Type: Latitude and Longitude must be automatically captured 
by the ELD.
    Data Range: -90.00 to 90.00 in decimal degrees (two decimal 
point resolution) in records using conventional positioning 
precision; -90.0 to 90.0 in decimal degrees (single decimal point 
resolution) in records using reduced positioning precision when 
allowed; latitudes north of the equator must be specified by the 
absence of a minus sign (-) preceding the digits designating 
degrees; latitudes south of the Equator must be designated by a 
minus sign (-) preceding the digits designating degrees.
    Data Length: 3 to 6 characters.
    Data Format: First character: [<`-'> or <{blank{time} >]; then 
[ or ]; then <`.'>; then [ or ].
    Disposition: Mandatory.
    Examples: [-15.68], [38.89], [5.07], [-6.11], [-15.7], [38.9], 
[5.1], [-6.1].

7.32. Line Data Check Value

    Description: A hexadecimal ``check'' value calculated in 
accordance with procedure outlined in section 4.4.5.2 and attached 
to each line of output featuring data at the time of output file 
being generated.
    Purpose: Provides ability to identify cases where an ELD output 
file may have been inappropriately modified after its original 
generation.
    Source: ELD internal.
    Used in: ELD output file.
    Data Type: Calculated by the ELD in accordance with 4.4.5.2.
    Data Range: A number between hexadecimal 00 (decimal 0) and 
hexadecimal FF (decimal 255) .
    Data Length: 2 characters.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [01], [A4], [CC].

7.33. Longitude

    Description: An angular distance in degrees measured on a circle 
of reference with respect to the zero (or prime) meridian; The prime 
meridian runs through Greenwich, England.
    Purpose: In combination with the variable ``Latitude'', this 
parameter stamps records requiring a position attribute with a 
reference point on the face of the earth.
    Source: ELD's position measurement.
    Used in: ELD events; ELD outputs.
    Data Type: Latitude and Longitude must be automatically captured 
by the ELD.
    Data Range: -179.99 to 180.00 in decimal degrees (two decimal 
point resolution) in records using conventional positioning 
precision; -179.9 to 180.0 in decimal degrees (single decimal point 
resolution) in records using reduced positioning precision when 
allowed; longitudes east of the prime meridian must be specified by 
the absence of a minus sign (-) preceding the digits designating 
degrees of longitude; longitudes west of the prime meridian must be 
designated by minus sign (-) preceding the digits designating 
degrees.
    Data Length: 3 to 7 characters.
    Data Format: First character: [<`-'> or <{blank{time} >]; then 
[,  or ]; then <`.'>; then [ or ].
    Disposition: Mandatory.
    Examples: [-157.81], [-77.03], [9.05], [-0.15], [-157.8], [-
77.0], [9.1], [-0.2].

7.34. Malfunction/Diagnostic Code

    Description: A code that further specifies the underlying 
malfunction or data diagnostic event.

[[Page 78415]]

    Purpose: Enables coding the type of malfunction and data 
diagnostic event to cover the standardized set in Table 4 of this 
appendix.
    Source: ELD internal monitoring.
    Used in: ELD events; ELD outputs.
    Data Type: Recorded by ELD when malfunctions and data diagnostic 
events are set or reset.
    Data Range: As specified in Table 4 of this appendix.
    Data Length: 1 character.
    Data Format: .
    Disposition: Mandatory.
    Examples: [1], [5], [P], [L].

7.35. Malfunction Indicator Status

    Description: This is a Boolean indicator identifying whether the 
used ELD unit has an active malfunction set at the time of event 
recording.
    Purpose: Documents the snapshot of ELD's malfunction status at 
the time of an event recording.
    Source: ELD internal monitoring functions.
    Used in: ELD events; ELD outputs.
    Data Type: Internally monitored and managed.
    Data Range: 0 (no active malfunction) or 1 (at least one active 
malfunction).
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [0] or [1].

7.36. Multiday Basis Used

    Description: This data element refers to the multiday basis (7 
or 8 days) used by the motor carrier to compute cumulative duty 
hours.
    Purpose: Provides ability to apply the HOS rules accordingly.
    Source: Motor carrier.
    Used in: ELD account profile; ELD outputs.
    Data Type: Entered by the motor carrier during account creation 
process.
    Data Range: 7 or 8.
    Data Length: 1 character.
    Data Format:  as in .
    Disposition: Mandatory.
    Examples: [7], [8].

7.37. Order Number

    Description: A continuous integer number assigned in the forming 
of a list, starting at 1 and incremented by 1 for each unique item 
on the list.
    Purpose: Allows for more compact report file output generation 
avoiding repetitious use of CMV identifiers and usernames affected 
in records.
    Source: ELD internal.
    Used in: ELD outputs, listing of users and CMVs referenced in 
ELD logs.
    Data Type: Managed by ELD.
    Data Range: Integer between 1 and 99.
    Data Length: 1-2 characters.
    Data Format:  as in  or .
    Disposition: Mandatory.
    Examples: [1], [5], [11], [28].

7.38. Output File Comment

    Description: A textual field that may be populated with 
information pertaining to the created ELD output file; An authorized 
safety official may provide a key phrase or code to be included in 
the output file comment, which may be used to link the requested 
data to an inspection, inquiry, or other enforcement action; if 
provided to the driver by an authorized safety official, it must be 
entered into the ELD and included in the exchanged dataset as 
specified.
    Purpose: The output file comment field provides an ability to 
link submitted data to an inspection, inquiry, or other enforcement 
action, if deemed necessary; further, it may also link a dataset to 
a vehicle, driver, carrier, and/or ELD that may participate in 
voluntary future programs that may involve exchange of ELD data.
    Source: Enforcement personnel or driver or motor carrier.
    Used in: ELD outputs.
    Data Type: If provided, output file comment is entered or 
appended to the ELD dataset prior to submission of ELD data to 
enforcement.
    Data Range: Blank or any alphanumeric combination specified and 
provided by an authorized safety official.
    Data Length: 0-60 characters.
    Data Format: <{blank{time} >, or  thru .
    Disposition: Mandatory.
    Examples: [], [3BHG701015], [113G1EFW02], [7353930].

7.39. Shipping Document Number

    Description: Shipping document number the motor carrier uses in 
their system and dispatch documents.
    Purpose: Links ELD data to the shipping records; makes ELD 
dataset consistent with Sec.  395.8 requirements.
    Source: Motor carrier.
    Used in: ELD outputs.
    Data Type: Entered in the ELD by the authenticated driver or 
motor carrier and verified by the driver.
    Data Range: Any alphanumeric combination.
    Data Length: 0-40 characters.
    Data Format: <{blank{time} >, or  thru .
    Disposition: Mandatory if a shipping number is used on motor 
carrier's system.
    Examples: [], [B 75354], [FX334411707].

7.40. Time

    Description: In combination with the variable ``Date'', this 
parameter stamps records with a reference in time; even though date 
and time must be captured in UTC, event records must use date and 
time converted to the time zone in effect at the driver's home 
terminal as specified in section 4.4.3 of this appendix.
    Purpose: Provides ability to record the instance of recorded 
events.
    Source: ELD's converted time measurement.
    Used in: ELD events; ELD outputs.
    Data Type: UTC time must be automatically captured by ELD; time 
in effect at the driver's home terminal must be calculated as 
specified in section 4.4.3 of this appendix.
    Data Range: Any valid date combination expressed in  
format where ``HH'' refers to hours of the day, ``MM'' refers to 
minutes, and ``SS'' refers to seconds.
    Data Length: 6 characters.
    Data Format:  where  must be between 00 and 23,  
and  must be between 00 and 59.
    Disposition: Mandatory.
    Examples: {070111{time} , {001259{time} , {151522{time} , 
{230945{time} .

7.41. Time Zone Offset from UTC

    Description: This data element refers to the offset in time 
between UTC time and the time standard in effect at the driver's 
home terminal.
    Purpose: Establishes the ability to link records stamped with 
local time to a universal reference.
    Source: Calculated from measured variable <{UTC{time}  Time> and 
<{Time Standard in Effect at driver's home terminal{time}  Time>; 
Maintained together with ``24-hour Period Starting Time'' parameter 
by the motor carrier or tracked automatically by ELD.
    Used in: ELD account profile; ELD event: Driver's certification 
of own records.
    Data Type: Programmed or populated on the ELD during account 
creation and maintained by the motor carrier or ELD to reflect true 
and accurate information for drivers. This parameter must adjust for 
Daylight Saving Time changes in effect at the driver's home 
terminal.
    Data Range: 04 to 11; omit sign.
    Data Length: 2 characters.
    Data Format:  as in  where ``HH'' 
refer to hours in difference.
    Disposition: Mandatory.
    Examples: {04{time} , {05{time} , {10{time} .

7.42. Trailer Number(s)

    Description: This data element refers to the identifier(s) the 
motor carrier uses for the trailers in their normal course of 
business.
    Purpose: Identifies the trailer(s) a driver operates while a 
driver's ELD records are recorded; makes ELD records consistent with 
Sec.  395.8 which requires the trailer number(s) to be included on 
the form.
    Source: Unique trailer identifiers a motor carrier uses in their 
normal course of business and includes on dispatch documents, or the 
license number and licensing State of each towed unit; trailer 
number(s) must be updated each time hauled trailers change.
    Data Type: Automatically captured by the ELD or populated by 
motor carrier's extended ELD system or entered by the driver; must 
be updated each time the hauled trailer(s) change.
    Data Range: Any alphanumeric combination.
    Data Length: Minimum: blank; Maximum: 32 characters (3 trailer 
numbers each maximum 10 characters long, separated by spaces).
    Data Format: Trailer numbers; separated by space in case of 
multiple trailers hauled at one time; field to be left ``blank'' for 
non-combination vehicles (such as a straight truck or bobtail 
tractor).

<' `> <' `> as in 
<{blank{time} > to

[[Page 78416]]

.

    Disposition: Mandatory when operating combination vehicles.
    Examples: {987{time} , {00987 PP2345{time} , {BX987 POP712 
10567{time} , {TX12345 LA22A21{time} .

7.43. Vehicle Miles

    Description: This data element refers to the distance traveled 
using the CMV in whole miles; this parameter is a placeholder for 
<{Total{time}  Vehicle Miles>, which refers to the odometer reading 
and is used in recording ``engine power on'' and ``engine shut 
down'' events, and also for <{Accumulated{time}  Vehicle Miles>, 
which refers to the accumulated miles in the given ignition power on 
cycle and is used in the recording of all other events.
    Purpose: Provides ability to track distance traveled while 
operating the CMV in each duty status. Total miles traveled within a 
24-hour period is a required field in Sec.  395.8.
    Source: ELD measurement or sensing.
    Used in: ELD events; ELD outputs.
    Data Type: Acquired from the engine ECM or a comparable other 
source as allowed in section 4.3.1.3.
    Data Range: For <{Total{time}  Vehicle Miles>, range is between 
0 and 9,999,999; for <{Accumulated{time}  Vehicle Miles>, range is 
between 0 and 9,999.
    Data Length: 1-7 characters.
    Data Format:  as in  to .
    Disposition: Mandatory.
    Examples: [99], [1004566], [0], [422].

    Issued under authority delegated in 49 CFR 1.87 on: November 23, 
2015.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2015-31336 Filed 12-10-15; 4:15 pm]
BILLING CODE 4910-EX-P

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