80 FR 78291 - Electronic Logging Devices and Hours of Service Supporting Documents
DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration
Federal Register Volume 80, Issue 241 (December 16, 2015)
Page Range
78291-78416
FR Document
2015-31336
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.
Federal Register, Volume 80 Issue 241 (Wednesday, December 16, 2015)
[Federal Register Volume 80, Number 241 (Wednesday, December 16, 2015)]
[Rules and Regulations]
[Pages 78291-78416]
From the Federal Register Online [www.thefederalregister.org]
[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]
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Option 1: all HOS drivers Option 2: (adopted) RODS
-------------------------------- drivers only
-------------------------------
3% 7% 3% 7%
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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
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Net Benefits............................ 852 844 1,184 1,174
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Under today's rule, FMCSA estimates 1,844 crashes avoided annually
and 26 lives saved annually.
Table 2--Estimated Reductions in Crashes
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Option 2:
Option 1: RODS
all HOS drivers
drivers only
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Crashes Avoided................................. 2,217 1,844
Injuries Avoided................................ 675 562
Lives Saved..................................... 31 26
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III. Public Participation
To view comments, as well as any documents identified in this
preamble as available in the docket, go to http://www.regulations.gov.
Insert the docket number, FMCSA-2010-1067, in the keyword box, and
click ``Search.'' Next, click the ``Open Docket Folder'' button and
choose the document to review. If you do not have access to the
Internet, you may view the docket online by visiting the Docket
Management Facility in Room W12-140 on the ground floor of the DOT West
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.
IV. Overview
A. Today's Final Rule
Today's rule mandates ELD use for HOS compliance. It applies to
most motor carriers and drivers who are currently required to prepare
and retain paper RODS to comply with HOS regulations under part 395.
Today's rule allows limited exceptions to the ELD mandate. As indicated
in 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\
---------------------------------------------------------------------------
\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: http://archive.regulationroom.org/eobr, last accessed January 2, 2015.
---------------------------------------------------------------------------
In June 2010, the Owner-Operator Independent Drivers Association
(OOIDA) filed a petition in the U.S. Court of Appeals for the Seventh
Circuit seeking a review of the 2010 rule (Owner-Operator Indep.
Drivers Ass'n 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\
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\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 http://www.regulations.gov.
---------------------------------------------------------------------------
The Agency eliminated the suggestion that a single supporting
document could satisfy the motor carrier's obligation. The Agency
agreed with comments submitted at the NPRM stage that this suggestion
was not realistic and did not include it in the SNPRM. Similarly, the
Agency eliminated the requirement that a motor carrier certify the
unavailability of supporting documents based on comments received in
response to the NPRM.
2. Technical Specifications
The 2011 NPRM relied upon the technical specifications in the EOBR
1 rule, which the Seventh Circuit vacated and which are now obsolete.
The 2014 SNPRM proposed new technical specifications, and today's rule
makes some modifications to those technical specifications. Below is a
comparison of the technical specifications in the existing 1988 AOBRD
rule, the 2010 EOBR 1 rule, the 2014 SNPRM, and today's rule. Motor
carriers that have installed compliant AOBRDs before the compliance
date of today's rule (2 years from today's publication date) may
continue use of these devices for an additional 2 years after the
compliance date.
Table 3--Comparison of Technical Specifications
----------------------------------------------------------------------------------------------------------------
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 http://mcsac.fmcsa.dot.gov/documents/July2011/task_statement_11-04.pdf.
---------------------------------------------------------------------------
The MCSAC created the EOBR Implementation Subcommittee, which met
numerous times in late 2011. The MCSAC also held public meetings on
August 30-31 and December 5-6, 2011, to discuss the subcommittee's
recommendations. In its notice announcing the subcommittee meetings (76
FR 62496, Oct. 7, 2011), FMCSA stated, ``[t]he Agency will consider the
MCSAC report in any future rulemaking to reestablish functional
specifications for EOBRs.''
The MCSAC report was delivered to the Administrator on December 16,
2011.\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
http://mcsac.fmcsa.dot.gov/meeting.htm.
---------------------------------------------------------------------------
Under Task 12-01, FMCSA tasked the MCSAC to present information the
Agency should consider as it develops ways to address potential
harassment of drivers related to the use of EOBRs. This report was
delivered to the Administrator on February 8, 2012.\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
http://mcsac.fmcsa.dot.gov/Reports.htm.
---------------------------------------------------------------------------
FMCSA considered the MCSAC recommendations submitted under Task 11-
04 and Task 12-01 during the rulemaking process. Many of the new
requirements in today's rule are consistent with the MCSAC
recommendations.
F. Table Summary
Table 4--Timeline of Regulatory and Judicial Actions Since the 2010 Rule
----------------------------------------------------------------------------------------------------------------
Title Type of action, RIN Citation, date Synopsis
----------------------------------------------------------------------------------------------------------------
Electronic On-Board Recorders for 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
http://www.tvworldwide.com/events/dot/120323/ and http://www.tvworldwide.com/events/dot/120426/, respectively (last accessed
May 30, 2013).
---------------------------------------------------------------------------
In the 2014 SNPRM, the Agency stated that the proposed regulatory
text should be read to replace that proposed in the 2011 NPRM. Some
issues in the NPRM were addressed at the SNPRM stage. FMCSA discusses
comments to the 2011 NPRM that remain relevant to this rulemaking in
the appropriate sections of this comment summary. However, the Agency
generally does not address comments to the 2011 NPRM that have been
rendered obsolete by changes in the Agency's proposal and events
subsequent to the 2011 NPRM, such as the enactment of MAP-21, or that
were also submitted to the SNPRM. Obsolete provisions are discussed in
Section IV, Overview, above. Similarly, we do not generally respond to
comments related to cost and benefit assumptions that the Agency relied
on in the NPRM because the SNPRM and this rule largely rely on
different data and methodologies.
At the NPRM stage, FMCSA and the Department of Transportation (DOT)
participated in a pilot program intended to increase effective public
involvement in this rulemaking by using the Cornell eRulemaking
Initiative, called ``Regulation Room.'' Regulation Room is not an
official DOT Web site; therefore, a summary of discussions introduced
in Regulation Room was prepared collaboratively on the site and
submitted to DOT as a public comment to the docket. Regulation Room
commenters were informed that they could also submit individual
comments to the rulemaking docket.
A. Terminology in This Rulemaking
1. A Note on the Terms ``EOBR,'' ``EOBR Technology,'' and ``ELD'' as
Used by Commenters
To the best of the Agency's knowledge, no devices or technologies
for HOS compliance in the marketplace to date comply fully with the
vacated 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: http://www.tvworldwide.com/events/dot/120323/ and http://www.tvworldwide.com/events/dot/120426/, respectively. The comments made at these listening
sessions are incorporated into the comments addressed here.
2. Comments to the 2014 SNPRM
FMCSA received 1,750 unique and germane comments to the SNPRM.
Comments Generally in Support of the SNPRM
More than 200 commenters expressed general support for the SNPRM.
In addition, the Agency received a submission from the Karth family
providing a copy of ``The AnnaLeah & Mary Karth Petition: STAND UP FOR
TRUCK SAFETY,'' which had 11,389 electronic signatures as of May 27,
2014, when it was submitted to the docket. Some of the commenters who
expressed general support had additional comments or reservations that
FMCSA discusses in the relevant sections elsewhere in this comment
summary. A number of motor carriers, providers of FMSs and related
technologies, trade associations, and labor unions stated their general
support for the goals of the rulemaking. Safety advocacy organizations
generally supported a requirement for ELDs. The Truck Safety Coalition,
Parents Against Tired Truckers, and Citizens for Reliable and Safe
Highways, responding together, noted some concerns, but indicated their
organizations and the safety community support the rulemaking.
The California Highway Patrol (CHP) supported FMCSA's efforts to
document driver HOS and duty status via ELDs. The NTSB supported
expanding the number of motor carriers and drivers required to use ELDs
and indicated that it is vitally important that FMCSA expeditiously
issue a final rule to increase compliance with HOS regulations and
prevent future crashes, injuries, and deaths.
Individual commenters wrote that they supported ELDs because they
make keeping logs easier, there is less paperwork, and logs are
orderly, clear, and accurate. Some commenters wrote that ELDs make both
drivers and motor carriers operate legally and hold both accountable
for compliance. Commenters also noted that ELDs will speed up roadside
inspections and simplify enforcement.
Comments Generally Opposed to the SNPRM
FMCSA received 1,357 comments that expressed general opposition to
the
[[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 (http://
[[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 http://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.
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\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: http://www.tvworldwide.com/events/dot/120323/
and http://www.tvworldwide.com/events/dot/120426/, respectively.\22\
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\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.
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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.
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\25\ These measures will be included in the ELD implementation
and training protocol currently under development within FMCSA.
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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
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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, http://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. http://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\
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\30\ Available in Docket FMCSA-2011-0156, http://www.regulations.gov (Document No. FMCSA-2011-0156-0004).
\31\ Available in Docket FMCSA-2008-0233, http://www.regulations.gov (Document No. FMCSA-2008-0233-0006).
\32\ Available in Docket FMCSA-2011-0127, http://www.regulations.gov (Document No. FMCSA-2011-0127-0013).
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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\
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\33\ Available in Docket FMCSA-2006-25348, http://regulations.gov (Document No. FMCSA-2006-25348-0133).
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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, http://regulations.gov (Document No. FMCSA-2002-13667-0005).
\35\ Available in Docket FMCSA-2011-0127, http://regulations.gov
(Document No. FMCSA-2011-0127-0013).
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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\
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\36\ In the docket for this rulemaking, docket number FMCSA-
2010-0167-0900, http://www.regulations.gov/#!documentDetail;D=FMCSA-
2010-0167-0900.
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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:
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\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: http://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.
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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: http://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.
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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 http://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 http://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 http://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 ``http://''. 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 http://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 http://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 http://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 http://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: http://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: http://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.'' http://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. http://www.thefederalregister.org/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 http://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 http://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 http://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 http://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, http://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, http://standards.ieee.org/index.html, (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, http://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, http://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, http://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.
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[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
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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)