[Federal Register: April 5, 2010 (Volume 75, Number 64)]
[Rules and Regulations]
[Page 17207-17252]
[DOCID:fr05ap10-14]

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Part II

Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Parts 350, 385, 395, et al.

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

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 385, 395, and 396

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

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

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

ACTION: Final rule.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends
the Federal Motor Carrier Safety Regulations (FMCSRs) to incorporate
new performance standards for electronic on-board recorders (EOBRs)
installed in commercial motor vehicles (CMVs) manufactured on or after
June 4, 2012. On-board hours-of-service (HOS) recording devices meeting
FMCSA's current requirements and installed in CMVs manufactured before
June 4, 2012 may continue to be used for the remainder of the service
life of those CMVs.
    Motor carriers that have demonstrated serious noncompliance with
the HOS rules will be subject to mandatory installation of EOBRs
meeting the new performance standards. If FMCSA determines, based on
HOS records reviewed during a compliance review, that a motor carrier
has a 10 percent or greater violation rate (``threshold rate
violation'') for any HOS regulation listed in the new Appendix C to
part 385, FMCSA will issue the carrier an EOBR remedial directive. The
motor carrier will then be 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 automatic on-board recording devices
(AOBRDs) meeting the Agency's current requirements under 49 CFR 395.15
prior to the finding, and (ii) demonstrates to FMCSA that its drivers
understand how to use the devices.
    The FMCSA also changes the safety fitness standard to take into
account a remedial directive when determining fitness. Additionally, to
encourage industry-wide use of EOBRs, FMCSA revises its compliance
review procedures to permit examination of a random sample of drivers'
records of duty status after the initial sampling, and provides partial
relief from HOS supporting documents requirements, if certain
conditions are satisfied, for motor carriers that voluntarily use
compliant EOBRs.
    Finally, because FMCSA recognizes that the potential safety risks
associated with some motor carrier categories, such as passenger
carriers, hazardous materials transporters, and new motor carriers
seeking authority to conduct interstate operations in the United
States, are such that mandatory EOBR use for such operations might be
appropriate, the Agency will initiate a new rulemaking to consider
expanding the scope of mandatory EOBR use beyond the ``1 x 10''
carriers that would be subject to a remedial directive as a result of
today's rule.

DATES: Effective Date: This final rule is effective on June 4, 2010.
    Compliance Date: Motor carriers must comply with this final rule by
June 4, 2012. The incorporation by reference of certain publications
listed in the rule is approved by the Director of the Federal Register
as of June 4, 2010.

ADDRESSES:
    Docket: For access to the docket to read background documents
including those referenced in this document, or to read comments
received, go to http://www.regulations.gov at any time or to the ground
floor, room W12-140, DOT Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday,
except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form for all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review U.S.
Department of Transportation's (DOT) complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19476) or you
may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations,<PHONE_NUMBER>, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: This rulemaking notice is organized as
follows:

Table of Contents

I. Table of Abbreviations
II. Legal Basis for the Rulemaking
III. Executive Summary
IV. Discussion of Comments to the Notice of Proposed Rulemaking
V. Rulemaking Analyses and Notices

I. Table of Abbreviations

    Following is a list of abbreviations used in this document.

Advocates Advocates for Highway and Auto Safety
AMSA American Moving and Storage Association
ANPRM Advance Notice of Proposed Rulemaking
ANSI American National Standards Institute
AOBRDS Automatic On-Board Recording Devices
ASCII American Standard Code for Information Interchange
ATA American Trucking Associations
ATRI American Transportation Research Institute
Boyle Boyle Transportation
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
CR Compliance Review
CSA 2010 Comprehensive Safety Analysis 2010
CVSA Commercial Vehicle Safety Alliance
D Driving
DOE U.S. Department of Energy
DOT U.S. Department of Transportation
EA Environmental Assessment
ECM Electronic Control Module
E.O. Executive Order
EOBR Electronic On-Board Recorder
EU European Union
FedEx FedEx Corporation
FHWA Federal Highway Administration
FIPS Publications Federal Information Processing Standards
Publications
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FMI Food Marketing Institute
FOIA Freedom of Information Act
FONSI Finding of No Significant Impact
FR Federal Register
GAO Government Accountability Office
GNIS Geographic Names Information System
GPS Global Positioning System
Hazmat Hazardous Materials
HMTAA Hazardous Materials Transportation Authorization Act of 1994
HOS Hours of Service
IBT International Brotherhood of Teamsters
ICC Interstate Commerce Commission
ICCTA ICC Termination Act of 1995
ICR Information Collection Request
IEEE Institute of Electrical and Electronic Engineers
IIHS Insurance Institute for Highway Safety
IRFA Initial Regulatory Flexibility Analysis
ITEC International Truck and Engine Corporation
J.B. Hunt J.B. Hunt Transport, Inc.
KonaWare KonaWare Transportation and Logistics
LH Long Haul
Maryland SHA Maryland State Highway Administration
Maverick Maverick Transportation, LLC
MCMIS Motor Carrier Management Information System
MCSAP Motor Carrier Safety Assistance Program
MCSIA Motor Carrier Safety Improvement Act of 1999

MTA Minnesota Trucking Association
NEPA National Environmental Policy Act
NHTSA National Highway Traffic Safety Administration
1984 Act Motor Carrier Safety Act of 1984
1935 Act Motor Carrier Act of 1935
NPGA National Propane Gas Association
NPRDA Notice of Potential Remedial Directive Applicability
NPRM Notice of Proposed Rulemaking
NPTC National Private Truck Council, Incorporated
NTSB National Transportation Safety Board
NRMCA National Ready Mixed Concrete Association
OBD On-Board Diagnostic
ODND On Duty Not Driving
OFF Off Duty
Ohio PUC Public Utilities Commission of Ohio
OIG Office of the Inspector General
OMB Office of Management and Budget
ON On Duty
OOIDA Owner-Operator Independent Drivers Association, Inc.
PDA Personal Digital Assistant
PII Personally Identifiable Information
PIA Privacy Impact Assessment
PMAA Petroleum Marketers Association of America
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
Qualcomm Qualcomm Wireless Business Solutions
RapidLog RapidLog Corporation
RF Radio Frequency
RIA Regulatory Impact Analysis
RITA Research and Innovative Technology Administration
RODS Records of Duty Status
RP Recommended Practice
SafeStat Motor Carrier Safety Status Measuring System
SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users
SB Sleeper Berth
SBA Small Business Association
SC&RA Specialized Carriers & Rigging Association
SEA Safety Evaluation Area
SEISNOSE Significant Economic Impact on a Substantial Number of
Small Entities
SFRM Safety Fitness Rating Methodology
SH Short Haul
Siemens Siemens AG
SNPRM Supplemental Notice of Proposed Rulemaking
Stat. Statutes
TCA Truckload Carriers Association
TEA-21 Transportation Equity Act for the 21st Century
TMC TPA Technology and Maintenance Council's Technical Policy
Advisory Tripmaster Tripmaster Corporation
UMTRI University of Michigan Transportation Institute
U.S.C. United States Code
UTC Coordinated Universal Time
Verigo Verigo Incorporated
VSL Value of a Statistical Life
Werner Werner Enterprises, Incorporated
XATA XATA Corporation
Xora Xora, Incorporated

II. Legal Basis for the Rulemaking

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August
9, 1935, now codified at 49 U.S.C. 31502(b)) (the 1935 Act) provides
``the Secretary of Transportation may prescribe requirements for (1)
qualifications and maximum hours of service of employees of, and safety
of operation and equipment of, a motor carrier; and (2) qualifications
and maximum hours of service of employees of, and standards of
equipment of, a motor private carrier, when needed to promote safety of
operation.'' This final rule addresses ``safety of operation and
equipment'' of motor carriers and ``standards of equipment'' of motor
private carriers and, as such, is well within the authority of the 1935
Act. Today's final rule allows motor carriers to use Electronic On-
Board Recorders (EOBRs) in their commercial motor vehicles (CMVs) to
document drivers' compliance with the HOS requirements; requires some
noncompliant carriers to install, use, and maintain EOBRs for this
purpose; and updates existing performance standards for on-board
recording devices.
    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984) (the 1984 Act) provides concurrent
authority to regulate drivers, motor carriers, and vehicle equipment.
It requires the Secretary to ``prescribe regulations on commercial
motor vehicle safety. The regulations shall prescribe minimum safety
standards for commercial motor vehicles. At a minimum, the regulations
shall ensure that--(1) Commercial motor vehicles are maintained,
equipped, loaded, and operated safely; (2) the responsibilities imposed
on operators of commercial motor vehicles do not impair their ability
to operate the vehicles safely; (3) the physical condition of operators
of commercial motor vehicles is adequate to enable them to operate the
vehicles safely * * *; and (4) the operation of commercial motor
vehicles does not have a deleterious effect on the physical condition
of the operators'' (49 U.S.C. 31136(a)).
    Section 211(b) of the 1984 Act also grants the Secretary broad
power, in carrying out motor carrier safety statutes and regulations,
to ``prescribe recordkeeping and reporting requirements'' and to
``perform other acts the Secretary considers appropriate'' (49 U.S.C.
31133(a)(8) and (10)).
    The HOS regulations are designed to ensure that driving time--one
of the principal ``responsibilities imposed on operators of commercial
motor vehicles''--does ``not impair their ability to operate the
vehicles safely.'' (49 U.S.C. 31136(a)(2)). EOBRs that are properly
designed, used, and maintained will enable motor carriers to track
their drivers' on-duty driving hours accurately, thus minimizing
regulatory violations or excessive driving, and schedule vehicle and
driver operations more efficiently. Driver compliance with the HOS
rules helps ensure ``the physical condition of operators of commercial
motor vehicles is adequate to enable them to operate the vehicles
safely'' (49 U.S.C. 31136(a)(3)). To assist in the enforcement of the
HOS regulations generally, FMCSA is requiring EOBR use by motor
carriers with the most serious HOS compliance deficiencies (``threshold
rate violations''), as described elsewhere in this final rule. The
Agency considered whether this final rule would impact driver health
under 49 U.S.C. 31136(a)(3) and (a)(4). To the extent the final rule
has any effect on the physical condition of drivers, because the rule
is expected to increase compliance with the HOS regulations the effect
is unlikely to be deleterious. (See the discussion regarding health
impacts at section 8.4. and Appendix A in the Environmental Assessment
(EA).)
    The requirements in 49 U.S.C. 31136(a)(1) concerning safe motor
vehicle maintenance, equipment, and loading are not germane to this
final rule, as EOBRs influence driver operational safety rather than
vehicular and mechanical safety. Consequently, the Agency has not
explicitly assessed the final rule against that requirement. However,
to the limited extent 49 U.S.C. 31136(a)(1) pertains specifically to
driver safety and safe operation of commercial vehicles, the Agency has
taken this statutory requirement into account throughout the final
rule. Also, before prescribing any regulations, FMCSA must also
consider their ``costs and benefits.'' (49 U.S.C. 31136 (c)(2)(A) and
31502(d)). The Agency has taken these statutory requirements into
account throughout the final rule.
    In addition, section 408 of the ICC Termination Act of 1995 (Pub.
L. 104-88, 109 Stat. 803, 958, December 29, 1995) (ICCTA) requires the
Agency to issue an advance notice of proposed rulemaking (ANPRM)
``dealing with a variety of fatigue-related issues pertaining to
commercial motor vehicle safety (including * * * automated and tamper-
proof recording devices * * *) not later than March 1, 1996.'' The
original ANPRM under section 408 of ICCTA was published on November 5,

1996 (61 FR 57252), the notice of proposed rulemaking (NPRM) on May 2,
2000 (65 FR 25540), and the final rule on April 28, 2003 (68 FR 22456).
For a number of reasons, including lack of adequate cost and benefit
data, FMCSA decided not to adopt EOBR regulations in 2003. FMCSA noted,
however, that it planned ``to continue research on EOBRs and other
technologies, seeking to stimulate innovation in this promising area''
(68 FR 22456, 22488, April 28, 2003).
    Section 113(a) of the Hazardous Materials Transportation
Authorization Act of 1994 (Pub. L. 103-311, 108 Stat. 1673, 1676,
August 26, 1994) (HMTAA) required the Secretary to prescribe
regulations to improve (A) compliance by commercial motor vehicle
drivers and motor carriers with HOS requirements; and (B) the
effectiveness and efficiency of Federal and State enforcement officers
reviewing such compliance. HMTAA section 113(b)(1) states that such
regulations must allow for a written or electronic document ``* * * to
be used by a motor carrier or by an enforcement officer as a supporting
document to verify the accuracy of a driver's record of duty status.''
Today's rule sets forth performance standards, incentives measures, and
remedial requirements for use of devices that generate electronic
documents, and addresses the HMTAA mandate.
    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act
(Pub. L. 100-690, title IX, subtitle B, 102 Stat. 4181, 4529, November
18, 1988) also anticipates the Secretary prescribing ``a regulation
about the use of monitoring devices on commercial motor vehicles to
increase compliance by operators of the vehicles with HOS
regulations,'' and requires the Agency to ensure any such device is not
used to ``harass vehicle operators'' (49 U.S.C. 31137(a)). Section 4012
of the Transportation Equity Act for the 21st Century (Pub. L. 105-
178), 112 Stat. 107, 408-409, June 9, 1998) (TEA-21) makes inapplicable
to drivers of utility service vehicles, during an emergency period of
not more than 30 days, regulations issued under 49 U.S.C. 31502 or
31136 regarding ``the installation of automatic recording devices
associated with establishing the maximum driving and on-duty times''
(49 U.S.C. 31502(e)(1)(C)). The Agency has taken these statutory
requirements into account throughout the final rule.
    Based on the legislative framework reviewed previously, FMCSA has
statutory authority to adopt an industry-wide requirement that all
motor carriers subject to HOS requirements under 49 CFR part 395
install and use EOBR-based systems. The Agency has adopted a more
targeted approach in this final rule, consistent with the scope of the
NPRM which limits the current rulemaking proceeding to compliance-based
regulatory approaches implemented through a remedial directive.
However, the Agency will publish a separate notice initiating a new
rulemaking in the near future to consider expanding the scope of
mandatory EOBR use beyond the standard set in this rule, consistent
with its full authority and based upon new data and analyses.
    In this final rule, the Agency establishes criteria for identifying
carriers with threshold rates of HOS violations. We also establish
changes to the safety fitness standard to ensure imposition of a
remedial directive to install, use and maintain EOBRs is taken into
account when determining a carrier's safety fitness.
    The determination of a carrier's safety fitness is well within the
Secretary's authority. Section 215 of the 1984 Act requires the
Secretary to ``determine whether an owner or operator is fit to operate
safely commercial motor vehicles,'' (49 U.S.C. 31144(a)(1)) and to
``maintain by regulation a procedure for determining the safety fitness
of an owner or operator'' (49 U.S.C. 31144(b)). The procedure must
include ``specific initial and continuing requirements with which an
owner or operator must comply to demonstrate safety fitness'' (49
U.S.C. 31144(b)(1)).
    Section 4009 of TEA-21 prohibits motor carriers found to be unfit,
according to a safety fitness determination, from operating commercial
motor vehicles in interstate commerce. With limited exceptions, owners
and operators determined to be unfit may not operate commercial motor
vehicles in interstate commerce beginning on the 61st day after the
date of such fitness determination, or the 46th day after such
determination in the case of carriers transporting passengers or
hazardous materials, ``and until the Secretary determines such owner or
operator is fit'' (49 U.S.C. 31144(c)).
    Section 4104 of the Safe, Accountable, Flexible, Efficient
Transportation Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144,
August 10, 2005) (SAFETEA-LU) directs FMCSA to revoke the registration
of a motor carrier that has been prohibited from operating in
interstate commerce for failure to comply with the safety fitness
requirements of 49 U.S.C. 31144. Section 4114(b) of SAFETEA-LU expands
FMCSA jurisdiction into intrastate operations by amending 49 U.S.C.
31144(c) to further prohibit owners or operators of CMVs prohibited
from operating in interstate commerce because FMCSA has determined they
do not meet the safety fitness requirement, from operating any CMV that
affects interstate commerce until the Secretary determines that such
owner or operator is fit.

III. Executive Summary

    In its January 18, 2007 NPRM (72 FR 2340), FMCSA proposed three
related elements to address on-board electronic devices for recording
HOS information: (1) An updated equipment standard in light of
technological advances; (2) mandated use of EOBRs for motor carriers
that demonstrated a history of severe noncompliance with the HOS
regulations; and (3) certain incentives to encourage EOBR use by all
motor carriers. The second element, concerning the mandated use of
EOBRs, was of greatest concern to commenters.
    The FMCSA acknowledges the safety concerns of Congress, the
National Transportation Safety Board (NTSB), and the many organizations
and individuals that submitted comments to the NPRM in support of a
broader EOBR mandate. The Agency has begun work to evaluate regulatory
options for significantly expanding the population of carriers covered
by an EOBR mandate.
    However, the Agency cannot extend the EOBR mandate beyond those
covered by this final rule because the scope of the current rulemaking
proceeding is limited to compliance-based regulatory approaches,
implemented through a remedial directive. Therefore, FMCSA will examine
the issue of a broader mandate under a new rulemaking proceeding in
response to the safety concerns raised by Congress, the NTSB, and
commenters to the docket.
    As part of this activity, FMCSA also intends to gather more
information on the voluntary use of EOBRs and to assess how increases
in the number of units installed are influencing the costs of purchase
and operation.
    In the meantime, focusing on motor carriers with significant HOS
compliance problems is likely to improve the safety of the motoring
public on the highways in the near term. Consistent with the scope of
the NPRM, we are therefore adopting procedures for issuance of remedial
directives requiring EOBR installation, maintenance, and use by those
motor carriers with serious HOS noncompliance.
    As discussed in the EOBR Remedial Directives section of this
preamble, FMCSA examined a variety of

parameters that might be used to establish subpopulations of motor
carriers with poor HOS compliance to which an EOBR mandate might apply.
In focusing on the most severe violations and the most chronic
violators, we are adopting a mandatory-installation ``trigger''
designed to single out motor carriers that have a demonstrated record
of poor compliance with HOS regulations. In today's rule, as proposed
in the NPRM, we adopt an EOBR mandatory-use requirement with a
compliance-based trigger. It applies to motor carriers across all
sectors that have demonstrated poor compliance with the HOS
regulations. The NPRM details the history of this rulemaking and the
alternatives considered (72 FR 2343).
    Previously, an Agency proposal to mandate EOBRs for CMVs used in
long-haul and regional operations was withdrawn (68 FR 22456, Apr. 28,
2003). The 2004 ANPRM (69 FR 53386) invited comment on a sector-based
mandate (e.g., long-haul carriers only). FMCSA considered such broader
mandates and discussed them again in the NPRM, although they were not
ultimately pursued as regulatory options. Instead, the NPRM focused on
which remedial directive option to adopt (72 FR 2372-2374).
    The Agency proposed mandating EOBR installation, maintenance, and
use for a relatively small population of companies and drivers with a
recurrent HOS compliance problem. EOBRs would be required for those
carriers determined--based on HOS records reviewed during each of two
compliance reviews conducted within a 2-year period--to have had a 10
percent or greater violation rate (``pattern violation'') for any
regulation in the proposed Appendix C to 49 CFR part 385 (``2 x 10''
Remedial Directive Carriers). As described in more detail in this
preamble, in the final rule the Agency has chosen the more stringent 1
x 10 remedial approach--whereby motor carriers with a 10 percent
violation rate of any Appendix C HOS regulation in any single
compliance review would be subject to a remedial directive (``1 x 10''
Remedial Directive Carriers)--instead of the 2 x 10 approach proposed
in the NPRM.
    In the development of this final rule, the Agency found the overall
crash rates of 1 x 10 and 2 x 10 motor carriers are considerably higher
than the crash rates of the general motor carrier population. Using
data from the FMCSA Motor Carrier Management Information System (MCMIS)
database and compliance review databases, crash rates were computed by
dividing total crashes by each carrier's number of power units. Crash
rates were compared between the 1 x 10 and 2 x 10 motor carrier
population and motor carriers in the general population. The 1 x 10
motor carriers were found to have a 40 percent higher crash rate than
the general motor carrier population, and 2 x 10 motor carriers a 90
percent higher crash rate than the general motor carrier population.
Many elements of the analyses of benefits and costs of this rule use
estimates that were derived from FMCSA's 2003 estimates concerning the
effects of HOS rules. This was done to provide analytical continuity
through the 2004-2010 timeframe of the EOBR rulemaking actions.\1\
Also, due to data limitation, FMCSA used outdated studies in the
analysis for this rule. For future HOS rulemakings, FMCSA will use
updated studies and reports to analyze impacts.
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    \1\ Estimates of benefits and costs that will be developed for
future HOS-related rulemaking actions will use more recent baseline
data.
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    Numerous commenters to the NPRM stated that the proposal still
would not require EOBR use by enough carriers to make a meaningful
difference in highway safety, relative to the total carrier population.
The FMCSA acknowledges the safety concerns of the commenters. In
response to those concerns, the Agency will explore the safety benefits
of a broader EOBR mandate in a new rulemaking proceeding that will
begin in the near future. In the meantime, the final rule's application
of a remedial directive to the 1 x 10 motor carriers makes the best
immediate use of Agency resources and provides immediate safety
benefits to society.
    The number of motor carriers that will be required to install, use
and maintain EOBRs is significantly greater under this final rule than
was proposed in the NPRM. If FMCSA determines, based on HOS records
reviewed during a single compliance review, that a motor carrier had a
10 percent or greater violation rate for any regulation in the new
Appendix C to Part 385 (``threshold rate violation''), FMCSA will issue
the carrier an EOBR remedial directive. The motor carrier will be
required to install EOBRs meeting the performance requirements of this
final rule in all of the carrier's CMVs, regardless of their date of
manufacture, and to use the devices for HOS recordkeeping purposes for
a period of 2 years. An exception is provided for carriers that, prior
to the compliance review determination, already equipped their vehicles
with automatic on-board recording devices (AOBRDs) meeting the Agency's
current requirements under 49 CFR 395.15 and can demonstrate to FMCSA
that their drivers understand how to use the devices.
    FMCSA amends the FMCSRs to provide new performance requirements for
EOBRs used to monitor drivers' HOS recording devices. EOBRs will be
required to automatically record the CMV's location at each change of
duty status and at intervals while the CMV is in motion. Current on-
board recorders are not required to do this. EOBRs must also conform to
specific information processing standards to ensure the security and
integrity of the data that is recorded. Drivers will be able to add
information to the EOBR record (``annotate'') while the EOBR maintains
the original recorded information and tracks these annotations. The
EOBR support system must be able to provide a digital file in a
specified format for use by motor carrier safety enforcement officials.
    FMCSA requires on-board recording devices be integrally
synchronized to the engine. Although the January 2007 NPRM proposed
allowing non-synchronized devices, the Agency decided to continue
requiring that on-board recording devices be integrally synchronized to
ensure the accuracy of electronic records of duty status.
    The Agency also adopts other performance specifications, in
response to comments that differ from specifications proposed. These
include, but are not limited to: Increasing the time interval for
recording the geographic location of a CMV in motion from 1 minute to
60 minutes; making the recording of State-line-crossing information
optional; removing the requirement to record a driver's acknowledgement
of advisory messages; reducing the amount of time a CMV is stationary
before the EOBR defaults to on-duty not driving duty status; removing
the daily ceiling on EOBR accumulated time inaccuracy or ``time
drift''; revising the requirements to allow a driver to enter
annotations to denote use of a CMV as a personal conveyance and for
yard movement; removing the requirement for an EOBR to display HOS data
in a graph-grid format; specifying information technology security and
integrity requirements; and adding and strengthening provisions
concerning driver and motor carrier responsibilities relating to
accurate EOBR records and support system performance. The details of
the changes are discussed later in this document.
    To ensure a smooth transition from AOBRDs to EOBRs, the final rule
requires that for CMVs manufactured

after June 4, 2012, devices installed by a manufacturer or motor
carrier to record HOS must meet the requirements of Sec.  395.16.
Commercial motor vehicles manufactured prior to June 4, 2012 may be
equipped with an HOS recording device that meets the requirements of
either Sec.  395.15 (AOBRD) or Sec.  395.16 (EOBR).
    Finally, the final rule provides incentives for motor carriers to
voluntarily use EOBRs. These include elimination of the requirement to
retain and maintain supporting documents related to driving time as
this information will be maintained and accessible from the EOBR.
Additionally, compliance reviews that reveal a proposed 10 percent or
higher violation rate based on the initial focused sample would be
expanded to assess a random sampling of the motor carrier's overall HOS
records.

Summary of FMCSA's January 2007 Proposal

    On January 18, 2007, FMCSA proposed amending the FMCSRs to
incorporate new performance standards for EOBRs installed in commercial
motor vehicles manufactured on or after the date 2 years following the
effective date of a final rule. On-board HOS recording devices meeting
FMCSA's current requirements and voluntarily installed in CMVs
manufactured before the implementation date of a final rule will be
permitted for use for the remainder of the service life of those CMVs.
    Under the proposal, motor carriers that demonstrated a pattern of
serious noncompliance with FMCSA's HOS rules would be subject to
mandatory installation of EOBRs meeting the new performance standards.
If FMCSA determined, based on HOS records reviewed during each of two
compliance reviews conducted within a 2-year period, that a motor
carrier had a 10 percent or greater violation rate (``pattern
violation'') for any regulation in proposed Appendix C to part 385 of
Title 49, CFR, FMCSA would issue the carrier an EOBR remedial
directive. The motor carrier would be required to install EOBRs in all
of its CMVs regardless of their date of manufacture and to use the
devices for HOS recordkeeping for a period of 2 years, unless the
carrier already had equipped its vehicles with AOBRDs meeting the
Agency's current requirements under 49 CFR 395.15 and could demonstrate
to FMCSA that its drivers understand how to use the devices.
    We also proposed changes to the safety fitness standard to ensure
imposition of a remedial directive to install, use and maintain EOBRs
as taken into account when determining a carrier's safety fitness.
Finally, FMCSA proposed the same incentives for motor carriers to
voluntarily use EOBRs in their CMVs as are adopted in today's final
rule: (1) Random sampling of drivers' records of duty status; and (2)
partial relief from HOS supporting documents requirements.

IV. Discussion of Comments to the NPRM

Overview of Comments

    The Agency received 752 comments on the proposed rule. Of these,
609 expressed opinions without additional supporting material.
    Organizations that provided comments included the following.
    Safety advocacy groups: Advocates for Highway and Auto Safety
(Advocates); Public Citizen; and Insurance Institute for Highway Safety
(IIHS).
    Drivers' organizations: International Brotherhood of Teamsters
(IBT) and Owner-Operator Independent Drivers Association, Inc. (OOIDA).
    National trucking industry associations: Canadian Trucking
Alliance; Truckload Carriers Association (TCA); American Trucking
Associations (ATA); National Private Truck Council, Inc. (NPTC); the
Specialized Carriers & Rigging Association (SC&RA), and the American
Moving and Storage Association (AMSA). Additionally, although several
commenters referenced a Technical Policy Advisory (TPA) developed by
the ATA Technology and Maintenance Council (TMC), TMC did not comment
independently to the docket.
    State trucking associations: Minnesota Trucking Association (MTA).
    EOBR, software, and system providers: RapidLog Corp. (RapidLog);
PeopleNet; Siemens AG (Siemens); Tripmaster Corp. (Tripmaster); Xora,
Inc. (Xora); First Advantage; Verigo Inc. (Verigo); XATA Corp. (XATA);
Qualcomm Wireless Business Solutions (Qualcomm); KonaWare
Transportation and Logistics (KonaWare), and Report on Board.
    U.S. Government agencies: National Transportation Safety Board
(NTSB) and the U.S. Department of Energy (DOE).
    CMV safety officials' organization: Commercial Vehicle Safety
Alliance (CVSA).
    State government agencies: Maryland State Police, Maryland State
Highway Administration (Maryland SHA), and Public Utilities Commission
of Ohio (Ohio PUC).
    Motor carriers: J.B. Hunt Transport, Inc. (J.B. Hunt); FedEx Corp.
(FedEx); Werner Enterprises, Inc. (Werner); Calvary Mountain Express
Inc.; River Transport, Inc.; Boyle Transportation (Boyle); OTR
Transportation; Maverick Transportation, LLC (Maverick); Metro Express
Inc.; Brenny Specialized, Inc.; Foreman Transport; Horizontal Boring &
Tunneling Co.; and N&M Transfer Co., Inc.
    National associations with transportation interests: International
Foodservice Distributors Association; National Propane Gas Association
(NPGA); National Ready Mixed Concrete Association (NRMCA); Petroleum
Transportation and Storage Association; Petroleum Marketers Association
of America (PMAA); and, the Food Marketing Institute (FMI).
    State association with transportation interests: Colorado Ready
Mixed Concrete Association.
    CMV manufacturer: International Truck and Engine Corp.

1 Industry-Wide Mandate for EOBRs

    FMCSA received 57 comments, mainly from drivers or individuals, who
believe the Agency should require the use of EOBRs. Thirty-nine
commenters supported a broader mandate than was proposed in the NPRM,
though not an industry-wide mandate. Nineteen commenters supported
mandating EOBRs for all carriers.
    Advocates commented, ``enforcement efficiencies would soar with
universal use of accurate, tamper-proof EOBRs,'' and argued that the
increased productivity of roadside inspection officials could
significantly improve motor carrier safety. Several commenters,
including CVSA, NTSB, and Public Citizen, asserted European Union
nations, Japan, and other countries that require EOBRs have seen
positive safety results.
    Ohio PUC stated a mandate would greatly increase compliance with
the HOS rules, increase safety, and reduce the potential for fraud.
    Public Citizen, Advocates, and two vendors stated the proposed rule
did not meet the statutory mandate or individual guidance concerning an
evaluation of EOBRs, and that the administrative record of FMCSA's own
rulemakings contradicted the proposal. They noted the Agency was
required to consider safety as its highest priority and to further the
highest degree of safety in motor carrier transportation.
    IIHS stated the proposed rule was ``completely at odds with the
data on truck driver fatigue.'' IIHS cited its research that found that
one in five drivers fell asleep at the wheel in the previous month.

    DOE supported the NPRM, but preferred an industry-wide mandate for
EOBR use to enhance the safety, security and cost effectiveness of the
transportation of hazardous materials. DOE believes installation of
EOBRs on all CMVs would enhance highway safety and HOS compliance of
all motor carriers, including those that DOE uses to transport
shipments of radioactive materials and waste.
    Numerous commenters argued that EOBRs are needed to improve safety,
but motor carriers will not voluntarily choose to use EOBRs. In a
related vein, CVSA, NTSB, Siemens, and Report on Board believed a
mandate for all motor carriers to use EOBRs would be necessary to
obtain the customer base and economies of scale for vendors to offer
lower-cost EOBRs.
    An individual who identified himself as a safety consultant argued
that motor carriers would not see sufficient advantages--either through
reduced instances of noncompliance or reductions in paperwork burdens--
to encourage them to use EOBRs voluntarily, especially since their
chance of being subjected to a compliance review is low. He stated many
progressive motor carriers have installed onboard systems with Global
Positioning System (GPS) tracking capabilities but do not use them for
HOS recording because drivers object to it. The consultant contended
that by not mandating universal EOBR use, the DOT is, in effect,
rewarding those who are unwilling to invest in safety.
    IIHS stated that although AOBRDs have been allowed since 1988 and a
substantial number of motor carriers use various types of on-board
systems, only a small proportion of carriers use them to collect HOS
data. As evidence that many motor carriers find EOBRs affordable and
provide many operational benefits, IIHS cited surveys of truck drivers
indicating about 45 percent of the long-distance drivers in 2005 said
there were EOBRs or other on-board computers in their trucks, up from
about 18 percent in 2003 and about 38 percent in 2004.
    Some of the commenters believed a universal EOBR mandate would
create a ``level playing field'' in the motor carrier business
environment. They also stated it would protect drivers from adverse
actions by their employers in retaliation for refusing to violate HOS
regulations. Some of the commenters also mentioned improved readability
and simplified recordkeeping associated with EOBRs when compared to
handwritten records, as well as assisting motor carrier safety
enforcement personnel in performing their roadside reviews more
efficiently and effectively.
    Advocates stated FMCSA had ignored potential health impacts of
using EOBRs and improving HOS compliance. It said FMCSA's concern about
the stress on drivers from using EOBRs distorted the research results
of several studies. Furthermore, Advocates held, by not proposing to
mandate EOBR use, the Agency was not helping ``to ameliorate the
adverse health impacts of exceptionally long working and driving hours
triggered by the Agency's final rules in 2003 and in 2005.''
    Response: We understand the concerns of ATA and J.B. Hunt, among
others, who believe the proposal did not cover enough carriers. While
FMCSA acknowledges the safety concerns of those that support an
industry-wide EOBR mandate, the Agency cannot extend the EOBR mandate
in that manner in this final rule because the scope of the current
rulemaking proceeding is limited to a compliance-based regulatory
approach, implemented through a remedial directive. However, the number
of motor carriers that will be required to install, use and maintain
EOBRs is significantly greater under this final rule--using the 1 x 10
trigger--than under the 2 x 10 trigger that was proposed in the NPRM.
    FMCSA recognizes that the potential safety risks associated with
some motor carrier categories, including passenger carriers, hazardous
materials transporters, and new entrants, are such that mandatory EOBR
use for such populations might be appropriate. However, as noted above,
in today's rule, we adopt a compliance-based trigger that focuses on
all HOS-violating motor carriers across all sectors as proposed in the
NPRM. In addition, as some commenters to the 2007 NPRM docket
indicated, a regulation that promotes voluntary use of EOBRs, but that
does not mandate it for the majority of carriers, will not persuade
many carriers to adopt the devices, even though the devices may
generate improvements in operational productivity. And, as other
commenters noted, a more universal approach to EOBR use may create a
more level playing field in the industry.
    As stated earlier in this document, the Agency will initiate a new
rulemaking to consider expanding the scope of mandatory EOBR use beyond
the ``1 x 10'' carriers that will be subject to a remedial directive as
a result of today's rule.
    FMCSA acknowledges that some foreign countries have an industry-
wide mandate for HOS recording devices. However, the Agency is not
aware of any published information that demonstrates that the specific
mandate imposed by those countries has contributed to any discernible
benefits in safety. Still, the absence of published information by
those governments should not preclude consideration of that regulatory
option for the U.S. What is clear is certain motor carriers with
threshold rates of serious HOS violations have much higher than average
crash rates, and the mandatory use of EOBRs via a remedial directive
for these high-risk carriers provides a means to compel such carriers
to achieve compliance with the HOS rules.
    In terms of the benefits to motor carriers arising from EOBR use,
FMCSA agrees that the savings in collecting, reviewing, and storing
paper-based information alone can make EOBRs (and AOBRDs) attractive to
many motor carriers. Furthermore, advances in information technology
(particularly Web-based applications) and wireless telecommunications
are making HOS monitoring applications--either in stand-alone form or
as part of fleet management systems--far less costly on a per-power-
unit basis than they were in the past.
    Until several years ago, many on-board recording systems suppliers
did not serve the small-fleet market, which, according to FMCSA's motor
carrier census, makes up most of the population of motor carriers:
approximately 90 percent of motor carriers operate fewer than 20 power
units. The picture is vastly different today. It is not only more
economical for motor carriers to use on-board recording and monitoring
systems, but there are far more suppliers of these systems to choose
from. Vendors anticipate that customers have a substantial demand that
they can meet, and they are meeting that demand without an FMCSA
mandate. The revised EOBR systems cost estimates discussed in the
Rulemaking Analyses and Notices section of this document and the RIA
reflect these advancements.
    In response to Advocates' comments on potential health impacts of
EOBR use, the Agency has addressed both positive and negative health
impacts in Appendix A of the EA for this rule, which has been placed in
the docket. The Agency carefully reviewed research on the potentially
negative impacts of electronic monitoring and concluded that use of
EOBRs required in today's final rule will not result in negative
impacts on driver health for two reasons: First, because monitoring of
HOS compliance is an existing, not a new, requirement; and second,
because

the Agency is requiring EOBRs to monitor safety, not workplace
productivity. The underlying HOS regulations are the subject of a
separate rulemaking action. Cost and benefit estimates of the HOS
regulations are included in the analysis for that separate rulemaking
(72 FR 71247, December 17, 2007).

2 General Opposition to Mandated Use of EOBRs

    One hundred thirty-six commenters, the majority of whom were
drivers or individuals, generally opposed any mandated use of EOBRs.
The SC&RA, TCA, IBT, AMSA, and a driver claimed that FMCSA had not
demonstrated EOBR use would improve highway safety. SC&RA questioned
FMCSA's estimates in the RIA, concerning relationships between
improvements in HOS compliance and improvements in safety outcomes
resulting from use of EOBRs.
    Several commenters criticized the Agency for failing to produce any
definitive studies demonstrating the safety benefits of EOBRs. Some of
these commenters cited the University of Michigan Transportation
Institute (UMTRI) or American Transportation Research Institute (ATRI)
studies which concluded that safety benefits were difficult to assess
due to lack of empirical data. SC&RA stated that a 2006 study by ATRI
did not identify safety benefits. OOIDA likewise criticized the RIA for
assuming EOBRs would improve compliance rather than demonstrating that
improvement would, in fact, occur. It also quoted a 1998 UMTRI study
concluding EOBRs would have little or no effect on safety.
    Forty of the 136 commenters stated FMCSA failed to prove that using
EOBRs reduced driver fatigue, prevented or reduced the severity of
accidents, or lowered operational costs. IBT expressed concern that
employers would use EOBR data to pressure drivers to improve their
operational productivity by driving faster and making shorter stops.
    Gantec Trucking stated FMCSA has not shown that strict compliance
with HOS limits improves safety, considering that accidents in which
the CMV driver is at fault and fatigue-related accidents make up a very
small percentage of CMV-involved accidents. Gantec criticized FMCSA for
citing a lack of evidence to support strengthening driver training
regulations but not holding itself to the same standard for proposing
EOBR use. Some drivers believe EOBRs could make drivers less safe
because they believe the accuracy of an EOBR's record would force them
to continue driving when they would prefer to take a break: With paper
Records of Duty Status (RODS), drivers can take breaks as needed but
not necessarily record them. Others questioned how EOBRs could improve
safety because they cannot automatically detect or record non-driving
activity. IBT stated because drivers would still need to enter non-
driving time, they would still falsify their electronic records,
because it is to their benefit to do so.
    Response: FMCSA disagrees with commenters that believe there are no
circumstances under which the use of EOBRs should be mandated. The
Agency believes the safety records of carriers found to have certain
threshold rates of violations of the HOS rules are a strong indicator
of the need to do more than issue civil penalties. The final rule
requires such carriers to install, use and maintain EOBRs to better
ensure their drivers comply with the applicable HOS requirements and
provides a means for prohibiting these motor carriers from continuing
to operate CMVs in interstate commerce if they fail to comply with the
remedial directive. This action is a significant first step toward
strengthening the enforcement of the HOS rules for carriers with
threshold rates of noncompliance.
    The use of electronic records allows deviations from safety and
operational norms to be made more visible because they can be detected
far more rapidly than with paper records. Also, the electronic records
will enable motor carriers to develop safety or operational
countermeasures to address these deviations more efficiently and
effectively. However, the Agency does not accept the assertion that
drivers would not take breaks from driving because those breaks would
be recorded.

3 EOBR Remedial Directive

3.1. Applicability of the Remedial Directive
    The Minnesota Trucking Association, AMSA, and one individual
supported requiring EOBRs only for motor carriers with a demonstrated a
history of serious noncompliance with the HOS rules.
    In contrast, J.B. Hunt and many other commenters stated the
proposed threshold would not capture enough carriers to serve as a
meaningful deterrent to noncompliance or to positively influence
highway safety outcomes. ATA stated that the method described in the
NPRM for determining whether a remedial directive should be issued is
not likely to dissuade the bulk of the egregious or defiant HOS
offenders. ATA recommended focusing on at least the top 10 percent most
egregious HOS violators. This population could be determined by use of
valid compliance review data and, potentially, driver out-of-service
rates for HOS violations from roadside inspection data. ATA further
recommended, prior to taking remedial action, FMCSA provide motor
carriers an adequate warning period to give them an opportunity to
institute improved safety management controls. If improvement
benchmarks were not adequately attained, then more severe enforcement
action would be warranted.
    OOIDA stated the proposed rule would punish only those carriers
that keep accurate records of their noncompliance and would not punish
the worst offenders who do not comply and who disguise their
violations.
    Numerous commenters including Maverick and Werner stated the
requirement should apply to the driver rather than to the carrier. Such
commenters argued that if most of a carrier's drivers are not in
violation, mandating an EOBR for the carrier penalizes compliant
drivers, which increases the cost. Also, if the remedial directive is
applied to a carrier, the non-compliant drivers will simply go to
another carrier to avoid using the EOBR, which effectively nullifies
the potential benefits from mandating EOBR use.
    Werner stated carriers are limited to taking after-the-fact
compliance and enforcement actions against their drivers. The carrier
should not be penalized for the actions of non-compliant drivers whom
it no longer employs if the carrier has made an effort to deal with the
drivers' HOS issues during their employment. ATA stated a record of HOS
noncompliance should follow the driver and should only be considered in
assessing the compliance status of the motor carrier where the driver
is currently employed. ATA argued, ``Penalties for EOBR violations
should be proportional for all responsible parties, with special
attention for tampering with the devices and the data.''
    The National Propane Gas Association (NPGA)) asserted motor
carriers transporting placardable quantities of hazardous materials,
taken as a whole, do not represent a risk greater than non-hazmat
carriers and should not be required to use EOBRs. Conversely, Advocates
believes the inherently higher safety and security risks posed by
hazardous materials transportation and the special safety concerns
related to passenger motorcoach transportation, justify mandatory EOBR
use for both categories of motor carriers.

    OOIDA and three individuals objected to the trigger for imposition
of a remedial directive because they believe the directives would
disproportionately affect smaller companies. The individuals noted a
company with very few trucks could be required to install EOBRs if only
one driver is put out-of-service, while a large company could have many
such drivers and not be targeted. Moreover, where a minority of drivers
is out of compliance, the innocent majority of the carrier's drivers
would be punished by a company-wide mandate. OOIDA asked if new entrant
safety audits would be included in the compliance reviews (CRs)
considered for the trigger; if so, it argued, small businesses would be
severely affected because most new entrants are small operations. J.B.
Hunt suggested FMCSA consider requiring new entrants to use EOBRs for a
minimum period.
    NTSB stated encouraging carriers to view EOBRs as a means of
punishment would undermine the goal of industry-wide acceptance; such
broad acceptance would result in greater safety for all motorists.
Boyle Transportation agreed the punitive nature of the remedy would be
a disincentive for carriers to install them.
    Some commenters focused on the perceived underlying problem--the
need for stronger HOS enforcement. According to Public Citizen, the
onus is still on the Agency to commit to improving enforcement of HOS
compliance. Advocates stated the rule would not address the pervasive
nature of HOS violations. It stated RoadCheck 2006 found there was an
upward trend in the number of HOS violations even though the new HOS
rules adopted in 2003 allowed drivers to work longer hours. CVSA agreed
that a more effective option for dealing with the habitual HOS
offenders is stronger enforcement. They also noted HOS noncompliance is
indicative of a systemic management problem within the carrier's
operation, and the mere installation of EOBRs will not correct this
problem. Finally, CVSA noted that government resources needed to
monitor carriers subject to mandatory EOBR use will be substantial, and
the benefits will not outweigh the costs.
    Response: In its September 2004 ANPRM (69 FR 53386), the Agency
requested commenters to address the scope of the EOBR requirement.
Specifically, the Agency requested comment on whether it should:
``Propose requiring that motor carriers in general, or only certain
types of motor carrier operations, use EOBRs.'' 69 FR 53395. The Agency
received numerous comments on this issue. In the 2007 NPRM the Agency
noted it had the legal authority to adopt an industry-wide standard
that all motor carriers subject to the HOS requirements use EOBRs. The
Agency announced it would not exercise ``the full extent of its
authority at this time, however, and [would] instead propose a more
targeted approach of mandating EOBR use for only those carriers with
deficient safety management controls, as demonstrated by repeated
patterns of hours-of-service violations.'' 72 FR 2341. The final rule,
similarly, does not require all carriers to install and use EOBRs, but,
consistent with the NPRM, targets only those carriers with substantial
HOS noncompliance and associated deficient safety management controls.
This final rule makes one significant change to the remedial directive
provisions in the proposed rule, concerning the HOS noncompliance
threshold triggering a remedial directive for a motor carrier. The NPRM
proposed a so-called ``2 x 10'' approach as the ``trigger'' for a
remedial directive. That approach would have required a final
determination of one or more ``pattern violations'' of any regulation
in proposed new Appendix C to part 385 (``Appendix C regulations'')
during a CR, followed by the discovery of one or more pattern
violations of any Appendix C regulation during a CR completed within 2
years after the closing date of the CR that produced the first
determination. We explained in the NPRM that a pattern violation would
be ``a violation rate equal to or greater than 10 percent of the number
of records reviewed. For example, 25 violations out of 100 records
reviewed would be a 25 percent violation rate and therefore a pattern
violation. This trigger, if adopted, would result in the issuance of
approximately 465 remedial directives to install EOBRs annually.'' 72
FR 2364. The Agency justified mandating EOBRs on this subpopulation of
carriers, given that these carriers' ``severe'' HOS compliance
deficiencies ``pose a disproportionate risk to public safety.'' Id.
    After reconsidering the alternatives discussed in the NPRM (72 FR
2374) including the proposed ``2 x 10'' remedial directives trigger,
and based on comments received, the Agency adopts the considerably more
stringent ``1 x 10'' requirement. As discussed in more detail below, we
agree with the numerous commenters, including government agencies,
carriers, industry associations, and safety groups, that the proposed 2
x 10 trigger would not mandate EOBR use by enough carriers, given the
total population. Under the requirement adopted today, carriers with a
10 percent violation rate of any HOS Appendix C regulations in any
single CR will be subject to a remedial directive. Approximately 5,419
carriers and 104,428 power units on average will be subject to this
directive per year. This represents a substantial increase in the
number of remediated carriers compared to the 2 x 10 proposal, as
further explained in the RIA and section 8, below. The crash rate for
such carriers is more than double the industry average, (although the
crash rate is slightly lower for the entire 1 x 10 group than it was
for the 2 x 10 group because of the larger pool of carriers subject to
the remedial directive). However, FMCSA anticipates the 1 x 10 approach
finalized today will result in greatly increased HOS compliance, and
therefore safety, in a cost-effective manner.
    The Agency is revising the new 49 CFR 385.803 definitions and
acronyms section and other affected rule text to replace the term
``pattern'' violation with the term ``threshold rate'' violation.
Concern was raised that use of the term ``pattern violation'' in the
final rule might lead to confusion with other ``patterns'' of
violations in the FMCSRs and the Agency's enforcement structure. In
addition, the Agency believes the term ``pattern'' is more aptly
applied to the proposed 2 x 10 trigger, which required a finding of
serious HOS violations in multiple CRs. Under the final rule, the
finding of a 10 percent violation rate for an Appendix C regulation in
a single CR will serve as the trigger for issuance of a remedial
directive.
    Two factors that were not operative in the NPRM analysis influenced
the final rule. First, section 4114 of SAFETEA-LU was codified in the
FMCSRs on July 5, 2007, approximately 6 months after the EOBR NPRM was
published (72 FR 36762 (preamble) and 36788 (regulatory text) amending
49 CFR 385.7(c), (d), (f), and (g)). Prior to the enactment of section
4114, although motor carriers were required under 49 CFR 390.15 to
record intrastate accidents on their accident registers, FMCSA did not
take intrastate accidents or safety violations into account when
determining motor carriers' safety ratings. Under section 4114, FMCSA
must now utilize interstate motor carriers' accident and safety
inspection data from intrastate operations (and from operations in
Mexico or Canada if the carrier also has U.S. operations) in
determining carriers' safety fitness under 49 U.S.C. 31144. This
includes safety inspection data on HOS violations while operating in
intrastate commerce. As a result of this larger universe of violations
under

consideration in the safety fitness determination process, the number
of carriers subject to the 1 x 10 remedial directive is now slightly
higher than it would have been prior to enactment of section 4114.
    Second, after issuance of the NPRM, DOT made an important change to
its evaluation of safety benefits for all safety rules. This policy has
caused the Agency to revisit the cost benefit analyses for all rules
being developed, including the EOBR rule. Specifically, on February 5,
2008, DOT issued a memorandum to its modal agencies instructing them to
estimate the economic value of preventing a human fatality at $5.8
million. See ``Economic Value of a Statistical Life in Departmental
Analyses'' (available at http://ostpxweb.dot.gov/policy/reports/
080205.htm). FMCSA also published a notice in the Federal Register
describing this policy change (73 FR 35194, June 20, 2008). The
previous value of a statistical life (VSL), which was used in the RIA
for the EOBR NPRM, was $3.0 million. Given that the VSL nearly doubled,
the net benefits of this rule, as well as those of other FMCSA rules
under development, were recalculated using the new figures. This
recalculation resulted in a reappraisal of all appropriate alternatives
by the Agency, taking into account Agency analyses concerning safety
impacts, enforcement resources, and data and comments received.
    We fundamentally disagree with OOIDA's comment that this rule
mandates EOBRs merely for those carriers who keep records. In addition
to other HOS violations, failure to maintain and preserve records of
duty status in accordance with part 395 and falsification of records
are among the 24 separate violations in new Appendix C that will
trigger a remedial directive if violated at the threshold rate of 10
percent or greater. Other issues related to supporting documents are
discussed under the heading ``Incentives,'' section 7, below. Also, the
revised trigger applies to the same carriers as proposed in the NPRM,
namely those that fail to meet their part 395 compliance obligations.
But we anticipate the final rule will result in the issuance of a
significantly larger number of remedial directives because directives
can be triggered after a single compliance review in which the motor
carrier is found to meet or exceed the violation rate threshold, rather
than after a second CR that would take place as much as 24 months after
the initial set of threshold violations are found.
    As previously mentioned, some carriers objected to having EOBRs
imposed based on the actions of HOS-noncompliant drivers who might no
longer be employed at the motor carrier affected. FMCSA disagrees with
this position. A key to addressing the issue of non-compliant drivers
is for motor carriers to exercise proper management controls. These
controls should include, for example, a process for conducting adequate
background checks prior to employing a new driver and ensuring that new
drivers are adequately trained. Likewise, if a carrier has adequate
management controls over driving operations, HOS violations at a rate
greater than 10 percent should not occur in the first place. To ensure
consistent oversight, FMCSA and its State enforcement partners must
conduct compliance reviews based on the drivers employed during the
review period in question. Subsequent adjustments in a non-compliant
driver's employment status or a motor carrier's pool of employees
should not influence the remedial directive determination.
    At this time, the Agency elects not to require EOBRs for all new
entrants or hazardous material (hazmat) carriers because these
regulatory options are beyond the compliance-based scope of the current
rulemaking proceeding. The Agency acknowledges the concerns of
commenters, and plans to consider these options in preparation for a
new rulemaking examining the expansion the EOBR mandate.
    The remedial directive element of this final rule treats hazmat
carriers, along with passenger carriers, differently from other
carriers, consistent with our authority to determine safety fitness of
carriers under 49 U.S.C. 31144 (c)(2)-(3) and 49 CFR part 385. As
discussed in our NPRM (72 FR 2376) and set forth in this final rule,
passenger and hazmat carriers will have only 45 days to install EOBRs
after receiving a remedial directive under Sec.  385.807(b)(1). As with
the current regulations under part 385, the shorter period reflects the
relatively higher risk to the traveling public (passenger carriers) and
to safety and security (hazmat) of these carriers' operations. Non-
hazmat property carriers will have 60 days to comply under Sec.
385.807(b)(2). Both provisions are adopted as proposed.
    As to applicability of the rule to new entrant carriers, CRs are
not normally conducted on new entrant carriers, which are subject to a
safety audit within the 18-month duration of the new entrant program.
However, enforcement personnel have the discretion to follow up on a
poor safety audit by conducting a separate CR. Therefore, new entrants,
like other carriers that must comply with part 395, can be subject to a
remedial directive under a scenario where the audit leads to a CR.
    We disagree with the characterization of a remedial directive to
install EOBRs company-wide as a ``punishment'' for the innocent drivers
who had no violations. The directive is intended to correct a
demonstrated deficiency in the motor carrier's safety management
controls and is therefore remedial, not punitive, in nature. This rule
does not revise or impose any new civil penalties, including penalties
for HOS violations. Moreover, drivers required to use EOBRs will
actually benefit from a technology that allows for automation of a
manual task that would otherwise burden the driver. As noted elsewhere,
this rule also does not ``target'' any specific industry sector or
particular size of motor carrier operation; instead, it focuses on
carriers with substantial HOS compliance issues.
    We respectfully disagree that this final rule on EOBRs will have no
impact on HOS enforcement, since the rule improves the means of
detecting HOS violations within a problem motor carrier population and
thus enhances HOS enforcement.
3.2 Trigger for Remedial Directive
    J.B. Hunt stated that, although the idea of mandating the least
compliant and least safe carriers to use an EOBR appears to be a
logical approach, there are problems with this method. It relies on the
premise that all of the ``least compliant'' carriers have undergone, or
soon will undergo, a CR. They disagreed with this premise, noted many
carriers are unrated, and asserted the NPRM approach assumes the Agency
is uncovering the least safe carriers through its log book sampling.
However, according to J.B. Hunt, the Agency is merely selecting from a
group of drivers, not carriers, who have had past compliance problems.
    NTSB objected to using CRs to trigger remedial directives because
so few CRs are done relative to the number of carriers and because
carriers may be rated Satisfactory despite long and consistent
histories of violations. Advocates and Public Citizen also cited the
limited number of CRs conducted each year, which they said meant that
the ``pattern of violations'' cannot be meaningful. Siemens agreed with
this position.
    Advocates added that carriers are selected for CRs using data from
SafeStat, which is deficient in several ways, as noted by the DOT
Office of the Inspector General (OIG) and the Government Accountability
Office (GAO). Advocates contend that relying

on CR data results in severe underestimation of HOS violations.
Advocates cite OIG's 2006 conclusion that without the critical data,
FMCSA cannot accurately identify the high-risk motor carriers for CRs
and enforcement actions (see ``Significant Improvements in Motor
Carrier Safety Program Since 1999 Act But Loopholes For Repeat
Violators Need Closing,'' FMCSA Report Number MH-2006-046, issued April
21, 2006). They also noted small carriers are not included in SafeStat,
yet may be at high risk of safety violations. Advocates also assert
that the 2 x 10 criterion further reduces the pool of potential
carriers subject to mandatory use of EOBRs.
    A safety consultant stated CRs are an inadequate basis for
identifying non-compliant carriers. Most carriers are not rated. Safety
inspectors miss violations because of the volume of CRs they need to
conduct. He also objected to the distinction between intentional and
non-intentional errors in logs. He noted ``DOT's own HOS study in
2004'' suggested as many as 70 percent of long-haul carriers may have
utilized false logs; his experience as auditor indicates that the
figure may be accurate.
    J.B. Hunt argued the methodology for selecting drivers in a CR does
not reflect the overall compliance of the carrier. Rather, it indicates
noncompliance among the particular drivers selected (from a population
previously identified as having problems): It does not ensure that the
least safe and compliant companies are required to install EOBR units.
The NPRM states, ``The overall safety posture of the motor carrier is
not being measured during the CR.'' J.B. Hunt is concerned this means
the desired safety impact of EOBR installations will not be maximized.
    Maryland SHA asked that roadside inspection data be used to augment
data obtained through a CR. If a carrier fails a CR, a second CR should
not be needed before the remedial directive is imposed. Advocates
supported this position. An individual supported using inspection data,
suggesting FMCSA should set a threshold ratio for HOS violations found
during inspections as the trigger. One individual recommended applying
the requirement to carriers that are over 75 percent on SafeStat. J.B.
Hunt recommended targeting at least carriers in categories A and B in
SafeStat or some other reasonable measure that would impact a larger
population.
    OOIDA also stated until FMCSA completes its revision of SafeStat
and issues a supporting document final rule, it will be nearly
impossible for OOIDA to comment on the impact. OOIDA believes the
public should have another chance to comment on the trigger when the
new scoring system is in place. In OOIDA's view, the Initial Regulatory
Flexibility Analysis (IRFA) must also be revised at that time.
    Response: Consistent with our NPRM, the Agency will use CR results
to determine whether to issue remedial directives to carriers,
requiring them to utilize EOBRs. The CR, typically conducted at the
carrier's place of business, focuses on carrier management control as a
metric for determining carrier safety fitness under 49 U.S.C. 31144. 72
FR 2373. As stated in part 385, noncompliance with critical
regulations, which include all 24 HOS violations in the new Appendix C
to part 385, ``are quantitatively linked to inadequate safety
management controls and usually higher than average accident rates.
FMCSA has used noncompliance with acute regulations and patterns of
noncompliance with critical regulations since 1989 to determine motor
carriers' adherence to the Safety fitness standard in Sec.  385.5''
Part 385, App. B II(e). The rationale for using HOS violations under
new Appendix C is consistent with the current safety fitness
determination process and logically related to current part 385.
    FMCSA believes the CR is the best assessment method to determine
which carriers should be required to install EOBRs, since, rather than
focusing on single violations, FMCSA is looking for threshold rates of
noncompliance. The new definition of threshold rate violation at Sec.
385.803, applicable to remedial directives, is entirely consistent with
our current rules governing safety fitness determinations in part 385.
The current regulations also require ``more than one violation'' for a
``pattern of noncompliance,'' and, where a number of documents are
reviewed, a finding of violations in 10 percent or more documents
reviewed. Part 385 App. B II(g). Obtaining this large sampling of
records can be best accomplished during a CR at the carrier's place of
business. Such an overview of carrier management and operational safety
oversight is not possible during a roadside inspection, as the review
is confined to a single CMV and its driver (or team of drivers), at a
single point in time. Indeed, CRs are designed to provide a sweeping
assessment of carrier operations and safety management controls, and
the assessments conducted, based on the Safety Fitness Rating
Methodology (SFRM), form the basis for carrier safety ratings. Given
the serious nature of the remedial directive and its potential to place
a financial burden on the carrier, we believe such a directive should
be issued only after a broad operational examination and extensive
record review inherent to the CR process. 72 FR 2373.
    A number of commenters criticized the use of CR results as the
trigger for a remedial directive. Many contended the use of the CR was
inappropriate because the SafeStat algorithm used as part of the
process of selecting carriers for CRs does not reliably predict high-
risk carriers. These commenters believe other data, such as that
received from roadside inspections, should be more fully utilized to
determine which carriers receive CRs at the outset. In fact, SafeStat
does incorporate motor carriers' roadside inspection outcomes, accident
involvement, CR results, and enforcement history.
    We cannot agree with J.B. Hunt's assertion that our basic
methodology for selecting carriers for CRs is flawed. The SafeStat
program continues to be upgraded to address issues raised by the GAO
and the OIG. According to OIG, ``FMCSA has made improvements in the
data relied upon in SafeStat.'' (See letter from Calvin L. Scovel III,
Inspector General, Department of Transportation, to the Honorable
Thomas E. Petri, U.S. House of Representatives, June 19, 2007. http://
www.oig.dot.gov/item.jsp?id=2072.) Moreover, a 2007 report from GAO,
while suggesting improvements, nonetheless noted that SafeStat does a
better job of identifying motor carriers that pose high crash risks
than does a random selection. (See ``Motor Carrier Safety: A
Statistical Approach Will Better Identify Commercial Carriers That Pose
High Crash Risks Than Does the Current Federal Approach, U.S.
Government Accountability Office,'' June 2007, http://www.gao.gov/
new.items/d07585.pdf.) FMCSA likewise disagrees with the Advocates'
comment that SafeStat does not include small motor carriers. To the
contrary, SafeStat does not exclude carriers based on size, and the
system currently reflects data on even 1- and 2-truck operators.
    As noted in our NPRM, we considered and rejected using only
roadside inspection data for the remedial directives trigger because
roadside inspections fail to measure carrier operations as
comprehensively as CRs. Nevertheless, we acknowledge that far more
roadside inspections are conducted compared to CRs, and they are a key
and voluminous source of HOS compliance data. We will continue to use
this valuable roadside data indirectly in the remedial directives
selection process to inform SafeStat

selection rankings (72 FR at 2373 n. 5). Some commenters urged the
Agency to use the Driver Safety Evaluation Area (SEA) component of
SafeStat, which is based on roadside data, for a remedial directives
trigger. The Driver SEA, however, combines both HOS and non-HOS
violations, rendering its current use infeasible for a remedial
directives trigger based exclusively on HOS violations. The Agency is
actively exploring additional ways to tap into the enormous wealth of
roadside data through its Comprehensive Safety Analysis (CSA) 2010
initiative.\2\ In summary, CR findings will be the only direct basis to
trigger a remedial directive under today's final rule. However, the
follow-on rulemaking, discussed earlier, will explore this and other
methodologies for determining whether a motor carrier would be required
to install and use EOBRs.
---------------------------------------------------------------------------

    \2\ The goal of CSA 2010 is to develop and implement more
effective and efficient ways for FMCSA, its State partners and
industry to reduce commercial motor vehicle crashes, fatalities, and
injuries. CSA 2010 will help FMCSA and its State partners contact
more carriers and drivers, use improved data to better identify high
risk carriers and drivers and apply a wider range of interventions
to correct high risk behavior. See http://www.fmcsa.dot.gov/safety-
security/csa2010/home.htm.
---------------------------------------------------------------------------

3.3 Implementation of Remedial Directives
    Maryland State Police commented the remedial directives concept
will work only if there are follow-up actions for failure to comply
with a directive. Report on Board stated the remedial directive would
have no impact on problem drivers because police would not know which
carriers are required to use an EOBR.
    Others described the challenges of measuring impacts. For instance,
Boyle Transportation contended, any benefits gained could not be
extrapolated to the population at large because only bad carriers would
be included. Public Citizen declared the number of carriers affected by
the EOBR requirement is too small a sample to make statistically
significant statements about the effectiveness of the number of devices
installed. Maryland SHA stated imposing the requirement should affect
the carrier's safety fitness determination. They noted carriers'
ratings are affected by crashes for which they are not at fault.
    J.B. Hunt, AMSA, and two individuals supported the two-year period
for which a remedial directive would be required. These commenters
generally did not provide detailed rationales for their support;
however, generally, they deemed the two-year period adequate to enable
carriers to come into compliance. AMSA also added that this period
would allow for carriers to adopt management controls and corrective
action. Advocates opposed the two-year period, since once the period
expired carriers could remove the devices; consequently, carriers will
view EOBR not as an asset, but as a punishment.
    Maryland SHA and Advocates stated the 60-day period (with a
possible 60-day extension) to require EOBR installation once a remedial
directive has been issued is too long. Carriers could continue unsafe
practices during this period. Werner and an individual commenter
thought the 60-day period was too short. Werner stated for all but the
smallest carriers, the 60-day period would be used to locate a vendor,
negotiate contracts, obtain delivery, route all trucks to the terminal
for installation, and train the drivers. Some of these factors are
beyond the carrier's control. Flexibility is needed to give more than
60 days if the carrier is making a good faith effort to comply.
    Response: In response to the Maryland State Police's assertion that
follow-up action is needed to enforce remedial directives, proof of
compliance will be required (e.g., receipts), and FMCSA will
disseminate information to enforcement personnel nationwide identifying
which carriers are required to use EOBRs. Carriers who do not comply
with a remedial directive will be ordered out of service. We believe
the prospect of such an order will ensure compliance for carriers
subject to a remedial directive.
    We appreciate that issuance of a remedial directive requiring
installation of EOBRs for an entire fleet of CMVs within 60 days may
place a serious burden on certain carriers. Consequently, we appreciate
Werner's concern that some factors, such as picking a vendor, are
sometimes beyond a carrier's control, and, therefore, flexibility is
needed where a carrier is making a good faith effort to comply. We note
that, as proposed, today's rule allows FMCSA to extend the period
during which carriers subject to a remedial directive may operate
without EOBRs for up to an additional 60 days where the Agency
determines a carrier is making a good faith effort to comply with a
remedial directive. As a result, while the Agency expects compliance
within 60 days, some carriers may have up to 120 days, at the Agency's
discretion. Passenger and hazmat carriers, however, are limited to a
single, non-extendable 45-day period.
    We disagree with ATA's suggestion to provide a warning opportunity
to allow for compliance improvements prior to issuing a remedial
directive. Such improvements, in practice, are difficult to assess. For
instance, would simply hiring a new safety officer be sufficient? Or
would merely hiring a consultant for a short time period to conduct a
``quick fix'' assessment of the situation be adequate? And how quickly
would improvement need to be initiated and implemented, and for how
long would it need to be sustained? These questions illustrate some of
the challenges to the Agency of verifying if such mitigation measures
are adopted and, if so, measuring their effectiveness at addressing the
underlying safety concerns. Discovery of HOS threshold rate violations
indicates a carrier has serious management control issues which need to
be addressed promptly and decisively. If the Agency has made an
erroneous finding, that finding can be challenged under the
administrative review process proposed in the NPRM and finalized today.
    Because the 1 x 10 approach requires the finding of an HOS Appendix
C threshold rate violation in only a single CR, the proposed notice of
potential remedial directive applicability (NPRDA) is no longer
necessary and thus is not included in this final rule. The
administrative review procedures apply only upon issuance of a remedial
directive. Otherwise, the administrative review process proposed in the
NPRM is adopted without change in today's final rule.
    If a motor carrier believes the Agency committed an error in
issuing a notice of remedial directive and proposed unfitness
determination, the carrier may request administrative review under
Sec.  385.817. Challenges to the notice of remedial directive and
proposed unfitness determination should be brought within 15 days of
the date of the notice of remedial directive. This timeframe will allow
FMCSA to issue a written decision before the prohibitions in Sec.
385.819 go into effect. The filing of a request for administrative
review under Sec.  385.817 within 15 days of the notice of remedial
directive will stay the finality of the proposed unfitness
determination until the Agency rules on the request. Failure to
petition the Agency within the 15-day period may prevent FMCSA from
ruling on the request before the prohibitions go into effect. The
carrier may still file a request for administrative review within 90
days of the date of issuance of the notice of remedial directive and
proposed unfitness determination, although if such request is not filed
within the first 15 days, the Agency may not necessarily issue a final
determination before the prohibitions go into effect. Challenges to

issuance of the remedial directive and proposed unfitness determination
are limited to findings of error relating to the CR immediately
preceding the notice of remedial directive.
    The final rule does not affect current procedures under Sec.
385.15 for administrative review of proposed and final safety ratings
issued in accordance with Sec.  385.11. The Agency is adopting non-
substantive revisions to Sec.  385.15(a), however, solely to correct
two typographical errors.
    A motor carrier subject to a remedial directive will not be
permitted to request a change to the remedial directive or proposed
determination of unfitness based upon corrective actions. In contrast
to Sec.  385.17, under which the Agency considers corrective actions
taken in reviewing a carrier's request for a safety rating change, the
only ``corrective action'' the Agency will take into account in
conditionally rescinding a proposed unfitness determination under
subpart J will be the carrier's installation of Sec.  395.16-compliant
EOBRs and satisfaction of the other conditions of the remedial
directive. The Agency takes this position due to the severity of the
violations upon which the remedial directive is based, the need for
certainty in remediation of the motor carrier's proven safety
management deficiencies, the challenges of ongoing monitoring of
corrective action, the likely added deterrent effect, and the Agency's
desire to promote use of EOBRs in the motor carrier industry generally.
    The Agency may, nevertheless, consider a carrier's installation and
use of EOBRs as relevant information that could, under certain
circumstances, contribute to an improvement of a carrier's safety
rating under Sec.  385.17(d). An upgraded safety rating based upon
corrective action under Sec.  385.17 will have no effect, however, on
an otherwise applicable remedial directive or proposed unfitness
determination. As noted above, a carrier may be found unfit based on
either failing to meet the safety rating component of the safety
fitness standard under Sec. Sec.  385.5(a) and 385.9, or under Sec.
385.5(b), by failing to install, use or maintain an EOBR, when subject
to a remedial directive under Sec.  385.807.
    Appeal rights and administrative review, and the relationship
between the modified fitness determination rule in Sec.  385.5 and the
existing SFRM in Appendix B to part 385, were discussed at length in
the NPRM. See 72 FR 2376-2378. Except for the elimination of the notice
of potential remedial directive applicability, caused by the shift from
a 2 x 10 to 1 x 10 trigger, the administrative review procedures in the
final rule are unchanged from those in the proposed rule. The
relationship between the safety fitness determination and the SFRM
likewise is not modified by any changes made between the proposed and
final rules.
    The Agency adds a new paragraph (e) to Sec.  385.13 to clarify that
motor carriers receiving a final determination of unfit or a final
unsatisfactory safety rating will receive notice that their motor
carrier registration under 49 U.S.C. 13902 is being revoked.

4 Transition From an AOBRD to EOBR System

    Several commenters, including a motor carrier and two system
providers, addressed potential challenges for motor carriers currently
using AOBRDs and other automated HOS monitoring systems. They were
concerned with how the compliance dates would affect their use of
current AOBRD systems and expressed concern that the proposed EOBR
regulation would prevent transferring proprietary systems to new trucks
manufactured after the proposed compliance date.
    Commenters predicted the period of transitioning could adversely
affect fleets' adoption of the new devices. For this reason, a provider
suggested the phase-in period should be fleet-based rather than
vehicle-based, and that ``breaks'' should be offered to early adopters
of EOBRs.
    Response: It is not the Agency's intention to make AOBRDs obsolete
or to require compliant motor carriers to replace their current systems
of maintaining RODS. Only motor carriers that are subject to a remedial
directive will be required to install, use, and maintain EOBRs--and
those EOBRs will need to comply with the new performance requirements.
Any carrier that voluntarily installs an EOBR after the compliance date
must use a device that meets FMCSA's new requirements. Therefore, the
Agency does not consider it appropriate or practical to institute a
``fleet based'' compliance schedule for motor carriers that currently
use AOBRDs and are not subject to a remedial directive. The Agency does
not wish to penalize HOS-compliant motor carriers by setting an
arbitrary phase-out date for AOBRDs.
    FMCSA is aware of many current systems with capabilities and
features that exceed those required for AOBRDs and likely meet most if
not all of the new EOBR requirements. Additionally, AOBRDs and EOBRs
record the same key information and use the same duty-status codes, so
FMCSA does not believe drivers or motor carriers will require a long
transition period. In any event, FMCSA will monitor developments
related to EOBR system availability associated with the implementation
of this rule.

5 Privacy

    Numerous commenters expressed concerns about non-HOS uses of the
data being collected by EOBRs. Some commenters suggested the rule have
more restrictions on access to and use of the data. Some of these
commenters (primarily carriers or carrier associations) said the rule
should prohibit law enforcement from using the data for any purposes
other than enforcing HOS rules, such as issuing speeding tickets. They
also said agencies not involved in enforcing HOS should be denied
access to EOBR data unless they obtain the consent of the carrier or
driver. Werner Enterprises said the rule should clarify how long law
enforcement agencies may retain EOBR data and whether the agencies may
disclose the data to other parties. ATA, the Canadian Trucking
Alliance, and AMSA suggested carriers are unlikely to voluntarily adopt
EOBRs unless there are restrictions on the use of data for purposes
other than enforcing HOS rules. ATA recommended statutory protections
be provided to carriers pertaining to the control, ownership, and
admissibility/discoverability of data generated and derived from EOBRs,
and to assure the privacy rights of drivers.
    Some commenters expressed concern competitors would gain access to
data recorded by EOBRs. One of them was also concerned shippers or
receivers would start demanding real-time monitoring of shipments as
part of any contract. Another commenter was concerned employers would
use the data recorded by EOBRs to push drivers to drive when it may not
be safe to do so.
    Some parties raised the concern that data recorded by an EOBR could
be used in post-accident litigation. One commenter favored using EOBR
data to investigate accidents involving tractor-trailers, including
vehicle speed, braking, and steering for the last 30-60 seconds of
vehicle travel. The Maryland SHA said only the following entities
should have access to EOBR data for investigating tractor-trailers
accidents: The Secretary of the U.S. Department of Transportation,
FMCSA, the enforcement agency that investigates the crash, the carrier,
and the driver or the driver's personal representative.
    Several commenters contended EOBRs would violate the privacy of
drivers. Some of these commenters said

the proposed EOBR requirement would be unconstitutional in that use of
EOBRs would violate the Fourth Amendment's prohibition against searches
absent a warrant or probable cause. Company drivers employed by
carriers with high HOS violation rates would find themselves subject to
EOBR monitoring because of the actions of others, which would not
satisfy a requirement of probable cause.
    OOIDA provided extensive comments asserting that required use of
EOBRs would constitute an unconstitutional invasion of privacy as
drivers have a legitimate expectation of privacy when they sleep, eat,
and conduct personal business in their truck while not driving. OOIDA
said despite FMCSA's assurances to the contrary, EOBRs would capture,
store, and make available a variety of personal and proprietary
information on drivers and carriers (e.g., routes, customer locations,
etc.) not captured or not accessible through paper logs. The proposed
rule would require EOBRs to capture the location and time of a truck in
motion every minute. This information would be electronically
transferable and capable of being stored for later retrieval. Because a
driver can operate a truck for personal conveyance, the EOBR would
record where the driver spends his private time. OOIDA asserted the
contemplated use of EOBRs fails to meet the legal requirements for a
warrantless search. Such constant electronic surveillance would amount
to a search of the driver as defined by the Fourth Amendment.
Therefore, the use of EOBRs implicates core privacy interests,
including the right to privacy in personal information and in
associations. OOIDA further asserted it is impossible to understand the
full impact of the proposed EOBR rule on privacy without knowing more
about the pending rulemaking on HOS supporting documents.
    OOIDA said the data captured by EOBRs is at far greater risk for
dissemination and misuse than data recorded by log books. It said any
data created by an EOBR that are collected by the government for
investigation or enforcement or any other reason would be subject to
requests under the Freedom of Information Act (FOIA) and could be
available by request to anyone, including the general public. OOIDA
said the U.S. Department of Transportation's Research and Innovative
Technology Administration (RITA) Volpe Center's report
(``Recommendations Regarding the Use of Electronic On-Board Recorders
(EOBRs) for Reporting Hours of Service,'' September 26, 2005, available
at http://www.regulations.gov, ID FMCSA-2004-18940-0351) agreed with
this conclusion. A commenter said because data collected by Federal
agencies are subject to FOIA, carriers should not have to report GPS
location data. ATA asked FMCSA to work with the trucking industry to
seek enactment of Federal statutory protections of EOBR data. ATA said
Federal law should support and clarify that motor carriers are the
owners of the data recorded by EOBRs and thus they should have
exclusive control over the data.
    Response: This final rule does not change the Agency's treatment of
HOS records concerning access, use and retention. FMCSA's predecessor
agencies have had the authority to review drivers' and motor carriers'
documents since 1937, when the first HOS regulations were promulgated
(3 MCC 665, Dec. 29, 1937; 3 FR 7, Jan. 4, 1938). From the Motor
Carrier Act of 1935 onward, Congress has recognized the Federal
Government's interest in providing a higher level of safety oversight
to CMV drivers. CMV driver licensing, driver's physical qualifications,
training, and performance of driving and other safety sensitive duties
are subject to Federal regulation. The Federal Government also requires
records to document the results of various types of assessments (such
as assessment of physical qualifications and controlled substances and
alcohol testing) and compliance with regulations concerning CMV
operations (such as RODS to document HOS).
    The HOS information recorded on EOBRs will be examined by Federal
and State enforcement personnel when they conduct compliance reviews or
roadside inspections. Motor carriers will not be required to upload
this HOS information into Federal or State information system
accessible to the public. Furthermore, enforcement agencies will
request and retain copies of HOS information to document violations and
will not disclose private personal or proprietary information.
    The final rule maintains current uses of HOS data to determine
compliance with the HOS regulations. While we recognize the important
privacy concerns raised by carriers and drivers, we believe this final
rule carefully fulfills the Agency's need for accurate compliance data
without creating any undue intrusion upon a CMV driver's privacy. The
only information FMCSA is requiring EOBRs to collect is that
information necessary to determine driver and motor carrier compliance
with the HOS regulations. Consequently, FMCSA did not propose in the
NPRM, nor will it require in the final rule, that EOBRs record data on
vehicle speed, braking action, steering function, or other vehicle
performance parameters necessary for accident reconstruction. Regarding
the concern over potential use of EOBR data in post-crash litigation,
this rule does not affect the rights of private litigants to seek
discovery. Similarly, existing provisions governing FMCSA disclosure of
motor carrier and driver information under FOIA are not affected by
this rulemaking.
    The Agency understands some drivers view their off-duty time and
related information pertaining to their CMV's location as being
sensitive information. Although the Agency does not find a legitimate
expectation of privacy in the public location of a commercial motor
vehicle, it will require automatic recording of CMV location
information only to the level of precision (State, county, and
Populated Place) shown in the Geographic Names Information System
(GNIS) maintained by the United States Geological Survey. FMCSA is also
declining to require locational tracking more frequently than once
every 60 minutes while the truck is in motion. The main reason
enforcement personnel would need to determine a history of a CMV's
location would be to verify the driver's HOS compliance. This can
normally be accomplished by reference to the name of the nearest city,
town, or village, without the precise geographic coordinates necessary
to identify, for example, a particular restaurant where a driver
stopped for a meal. This is the requirement today with AOBRDs, and it
also will be required under new Sec.  395.16(f)(4). Except in the
context of an investigation of a crash or a complaint of alleged FMCSR
violations (when the Agency might inquire into off-duty time to learn
if a driver was working for another motor carrier or performing other
work during an alleged off-duty period), FMCSA generally does not
inquire into a driver's off-duty activities. The Agency's interest in
records of duty status that identify the date, time, and location at
each change of duty status is based on its need to reconstruct the
sequence of events for trips to determine compliance with the HOS
regulations, including whether the driver was provided an off-duty
period that could be used to obtain restorative sleep. If during this
enforcement process FMCSA found evidence of vehicle activity during a
claimed off-duty period, we would inquire further to establish the
veracity of the RODS.
    Briefly described are new provisions previously proposed in the
January 2007

NPRM regarding default status for EOBRs and audit trails. FMCSA will
require the ``default'' status for an EOBR be on-duty not driving
(ODND) when the vehicle is stationary (not moving and the engine is
off) for 5 minutes or more. When the CMV is stationary and the driver
is in a duty status other than the ODND default setting, the driver
would need to enter the duty status manually on the EOBR. The
performance requirements of Sec.  395.16 add a provision for
automatically recording the location of the CMV. The Agency believes
this requirement strikes an appropriate balance between improving the
accuracy and reliability of ODND status information and off-duty
information without intruding unnecessarily upon the privacy of the
driver. Drivers would still be required to record the location of each
change of duty status, as currently required under Sec. Sec.  395.8 and
395.15. Finally, as stated in the NPRM (72 FR 2352), the Agency
recognizes the need for a verifiable EOBR audit trail--a detailed set
of records to verify time and physical location data for a particular
CMV--must be counterbalanced by privacy considerations. See also the
discussion on FMCSA's Privacy Impact Assessment under preamble section
V. Rulemaking Analyses and Notices.
    We disagree with two assertions made by OOIDA based on the premise
that ``any EOBR data collected by the Federal Government is subject to
FOIA and may be available to any entity or the general public.''
OOIDA's statement is an overly simplistic interpretation of our
responsibilities under FOIA and DOT regulations. See 49 CFR part 7. The
Volpe Center statement relied upon by OOIDA is not the official legal
opinion of FMCSA. The Agency rejects OOIDA's interpretation based on
the two scenarios raised.
    First, FMCSA rejects the OOIDA argument that EOBRs will allow a
competitor to obtain access to information that would be deemed
proprietary, such as carrier routes. If the information was indeed
proprietary, the information would be exempt from FOIA disclosure under
5 U.S.C. 552(b)(4). Given that the Agency is only requiring EOBRs to
collect locational data at each change of duty status and at intervals
of no greater than 60 minutes while the CMV is in motion, and given
that the locational data need only identify the nearest city, town, or
village, the information gathered is not likely to be precise enough to
allow routes or customers to be determined. It is also likely that
competitors could, to some extent, discern motor carriers' routes by
other means. No commenter has provided information demonstrating
competitive harm--a showing mandated by FOIA--would occur from
disclosure of EOBR data as proposed in the NPRM. In the absence of such
a showing, the Agency has determined today's final rule, in conjunction
with existing legal authorities, properly balances the need to
safeguard proprietary information against the need to enforce safety
statutes and regulations.
    Second, OOIDA alleges that FOIA could be used to obtain personal
information, including truck location. As a preliminary matter, the
Agency does not agree that the location of a CMV in a public place
qualifies as ``personal information.'' Moreover, with respect to
genuinely personal identifying information, FOIA's exception for
personnel, medical and similar information at 5 U.S.C. 552(b)(6)
severely restricts the Agency from disclosing such information. In
response to past FOIA requests for driver RODS from a carrier, the
Agency has redacted all information that would reveal the identity of
an individual driver. The Agency need not, and will not, disclose the
name of a driver when the sec. 552(b)(6) exemption allows the Agency to
disclose the HOS records in a redacted form. The Agency has also denied
FOIA requests seeking individual driving records in the Agency's
possession. OOIDA's characterization does not accurately reflect
applicable judicial standards for the disclosure or withholding of
private personal information.
    We also disagree with OOIDA's claim that required use of EOBRs
amounts to an illegal search under the Fourth Amendment. It is well-
established that the collection and inspection of documents and
information pursuant to regulatory guidelines do not violate the Fourth
Amendment. The data that compliant EOBRs will gather are comparable in
most respects to the data already required on RODS. Further, there is
no reasonable expectation of privacy in the location of a CMV, which
can be monitored by the naked eye. The installation and use of the EOBR
will also be known to the driver, and thus any expectation of privacy
that might exist in the location of the CMV is significantly
diminished.

6 Performance-Oriented Standards for EOBR Technology

6.1 Use of Detailed Design Specifications
    A number of commenters disagreed with FMCSA's approach of using
performance oriented standards in the NPRM, and advocated using
detailed design specifications instead. Three asked for prescriptive
guidance on how EOBRs must record HOS for drivers who work for multiple
carriers or who drive multiple CMVs. CMV manufacturer ITEC stressed the
need for interoperability between EOBRs and the equipment used by law
enforcement officials, including both hardware connections and software
compatibility. Siemens criticized the proposed performance-based
approach, advocating instead a ``single technical solution'' to account
for HOS for drivers who operate more than one CMV during any given day.
Siemens believes, based upon its experience with international
requirements for HOS monitoring, that an EOBR system's technical
concept should be ``tailored for the specific needs and goals of the
region in which they are being considered.''
    Several other commenters, including XATA, SC&RA, and ATA expressed
concerns with FMCSA's approach. They seek specific, uniform, and
consistent EOBR requirements related to EOBR utility, reliability,
tamper-resistance, accuracy, durability, and effectiveness. Because
electronic equipment technologies and industry consensus standards and
recommended practices evolve over time, they questioned whether FMCSA's
regulation would provide sufficiently clear direction to suppliers and
users of EOBR systems. ATA asserted motor carriers would not adopt
EOBRs until their ``compliance'' was assured. Until that point, ATA
believed motor carriers would not be able to accurately assess
potential benefits and costs of EOBRs, and the potential for improving
EOBR technology would be constrained. ATA recommended FMCSA publish an
SNRPM to revise its proposed performance specifications.
    Siemens and PeopleNet expressed concern about a need for design
specifications to promote implementation of EOBR data integrity
requirements. Siemens focused on EOBR data integrity through
operational and legal chains of custody. Although it did not elaborate
on its reasoning, Siemens contended neither AOBRDs nor the proposed
EOBRs would protect data from falsification and called on FMCSA to
standardize file formats, download protocols, and user interfaces.
Siemens also recommended FMCSA reference a ``defined'' [published]
security standard such as the Common Criteria to define the level of
tamper resistance.
    Response: As the commenters point out, information technology
standards evolve over time; performance standards allow EOBR suppliers
to implement

solutions that will improve users' ability to enter, review, and use
data efficiently and effectively without constraining innovation or
improvements.
    Responding to comments concerning prescriptive requirements to
ensure data integrity during transfers, Appendix A to part 395
addresses requirements for hardware, software, and communications
related to transfer of data from an EOBR to a safety official's
portable computer. As will be discussed later in this section, FMCSA
has substantially revised these requirements in response to the
comments on the NPRM.
    Responding to Siemens'comments about the necessity for a ``single
technical solution'' for all EOBR applications, FMCSA disagrees. A full
set of design specifications for hardware, software, and communications
methods would impose unnecessary restrictions on the design of EOBRs
and support systems, limit the ability to adopt emerging technologies,
and constrain motor carriers with different operational characteristics
from implementing EOBR applications. However, the data element
dictionary will serve as a guide to developers of EOBR and support
systems to foster the use of compatible data structures for the benefit
of both motor carriers and safety oversight agencies.
    Responding to comments concerning cross-referencing European Union
(EU) standards, FMCSA notes that the EU Council regulation No. 2135/98
requires a ``driver card'' for recording and transferring HOS data. It
does not include provisions for wireless data transfer. In contrast,
many North American suppliers of AOBRD systems currently provide
wireless data transfer capabilities between a CMV and the motor
carrier's information management systems via satellite or cellular
transmission. FMCSA does not agree that data transfer methods requiring
the use of physically removable media should be mandated, because
wireless data transfer (1) provides motor carriers considerably more
flexibility to implement HOS and other motor carrier operational
oversight systems, and (2) does not have an adverse effect on the
quality and integrity of the HOS data.
    With respect to data integrity, although FMCSA is not requiring
specific information technology structures, the Agency expects motor
carriers and their EOBR system providers to use appropriate methods and
procedures in the development, testing, and operation of HOS
information systems to ensure data and information integrity. However,
after reviewing the ``Common Criteria'' cited by Siemens, ``Common
Criteria for Information Technology Security Evaluation,'' the Agency
understands that these requirements were developed primarily for use
with national security and defense communities and would go far beyond
what is necessary for monitoring HOS compliance.
6.2 Information and Display Requirements
6.2.1 Information Content Requirements
    Several commenters objected to the proposed requirement for EOBRs
to record information currently required by the HOS regulations,
including shipping information, motor carrier name and USDOT Number,
and a time and location entry at each change of duty status. One
supplier contended an EOBR would need a ``full keyboard'' to enter this
information. Seven commenters objected to the proposed requirement to
include State line crossing information, questioning its relevance to
HOS compliance assurance.
    Werner asked for clarification of the ``24-hour start time,''
because it believes the 24-hour period of the underlying HOS regulation
is affected by the ``split break'' and would vary. Although it noted
the ATA Technology and Maintenance Council's (TMC) Technical Policy
Advisory (TPA) (collectively, TMC TPA) recommended the use of the four
codes (i.e., OFF, SB, D, and ON), Werner asked for flexibility to allow
use of other duty status codes. Conversely, Siemens held the four codes
should be unique to avoid inconsistencies. ITEC asked if there was a
potential inconsistency between the diagnostic event codes and the code
words in Table 3, EOBR Diagnostic Event Codes.
    ITEC and a motor carrier asked for flexibility in coding of
latitude and longitude values to allow software users to operate
outside of North America. Werner stated its system calculates the name
of the nearest city or town from latitude/longitude coordinates.
    Response: As noted earlier, this rulemaking updates and revises the
requirements for use of technological methods to record HOS. It does
not change the underlying HOS regulations. With the exception of the
requirement to record CMV location hourly while the CMV is in motion,
it does not change the basic requirements for documenting HOS-related
information (such as motor carrier identification).
    FMCSA disagrees that an EOBR would need a ``full''--presumably a
full-sized--keyboard. Some of the earliest AOBRDs did not have full
keyboards, leading to the requirement in Sec.  395.15(d)(2) for a
listing of location codes. Many contemporary devices have full
keyboards (although the dimensions are considerably smaller than those
used with desktop computers). Others use partial keypads or touch-
sensitive screens. Information such as the carrier name, USDOT Number,
and shipping document references can also be entered automatically
through centralized or administrative applications. These entries
continue to be necessary to identify the motor carrier, CMV, and other
information related to the transportation. EOBRs must accommodate
recordkeeping for drivers who operate multiple CMVs, as AOBRDs are
required to do.
    FMCSA agrees that display of State line crossing information is not
necessary for HOS compliance assurance purposes and has removed the
requirement from the rule. Collection of State line crossing
information for fuel tax reporting purposes will continue to be
optional, as in the current AOBRD rule.
    Responding to Werner's question about the start time for a 24-hour
period, this regulation has not changed. Both Sec. Sec.  395.8(d) and
395.15(c)(10) of the current rules allow the motor carrier to select
the 24-hour period starting time.
    Responding to comments on duty status coding, the identifiers will
remain ``driving'' or ``D,'' ``on-duty, not driving'' or ``ON,'' ``off-
duty'' or ``OFF,'' and ``sleeper berth'' or ``SB.'' This maintains
consistency with current regulation and for the transition from AOBRDs
to EOBRs. Also, a driver could enter explanations concerning duty
status activities (such as a period of ON time spent loading a trailer
or performing maintenance on a power unit) in the Remarks section.
    In response to ITEC's question about event codes, the labels for
the event codes are 6 characters, but the codes themselves would be 2
characters (bytes) in length.
    In response to the questions about latitude and longitude codes,
the proposed rule was written with North American users in mind. FMCSA
recognizes some CMVs may travel outside North America, and other
nations might want to adapt the FMCSR requirement. In the interests of
international harmonization, the final rule makes a nominal revision to
the data dictionary to accommodate a field for east/west latitude (``E/
W'') and north/south longitude (``N/S''). EOBR and system suppliers may
set these fields to default to ``N'' and ``E'' entries.
    As to the use of an algorithm to identify the nearest city, town,
or

village, Question 3 of the Regulatory Guidance to Sec.  395.15 allows
this. FMCSA intends to allow EOBR systems to use this method as well.
The Regulatory Guidance is added as Sec.  395.16 (f)(4). However, the
Agency has not accepted and will not accept only latitude-longitude
codes as location records because they do not provide a safety official
with a way to quickly determine a geographic location on a standard map
or road atlas. (See Sec. Sec.  395.15(d) and 395.16(f)(2).) Although
the provision for location codes in Sec.  395.16(f)(5) is specific to
the United States, EOBR and system suppliers may augment their
location-tracking capabilities to include locations outside the United
States.
6.2.2 Driver Acknowledgement of HOS Limits Alerts Sec.  395.16(o)(4))
    Qualcomm and the TMC TPA oppose the proposal to require a driver to
acknowledge warnings of HOS limits. The TMC TPA recommends the EOBR
include configurable alert capabilities so a driver could receive
several alerts before reaching the regulatory limits of HOS. Qualcomm
stated it was unclear what would be required if the driver failed to
acknowledge warnings. Werner was concerned about a conflict between the
reporting time for position histories and the ability to record a 30-
minute warning. In contrast, Maryland SHA stated the warning should be
recorded in the EOBR and made part of the driver's record.
    Response: The proposed ``response'' provision would have required
the driver to interact with the EOBR while the CMV is in motion, and it
is not part of the final rule. FMCSA does not believe it is appropriate
to require the driver to interact with the EOBR while the vehicle is in
motion. However, the requirement for the minimum, 30-minute alert
remains in the final rule.
6.3 Duty Status Category When Vehicle Is Not Moving (Sec.  395.16(d))
6.3.1 EOBR Must Default to On-Duty/Not-Driving When Vehicle Is
Stationary for 15 Minutes or More
    Werner and the Maryland State Police agreed with the proposed 15-
minute default to on-duty/not-driving (ODND). In contrast, Qualcomm and
Siemens asserted the 15-minute period was too long and that the
determination of driving/non-driving time should be more flexible and
should also reflect motor carriers' operational practices in recording
driving time. Siemens recommended switching to ODND whenever a CMV
stops, contending that the interpretation of stops should be part of
the compliance software, rather than the data record.
    Commenters suggested two distance thresholds for an EOBR to record
a CMV in motion as ``D.'' Werner suggested a 2-mile threshold, while
Qualcomm and the TMC TPA recommended a 1-mile threshold. For changing a
default status from D to ODND, Werner recommended if a vehicle moves
less than 1 mile, a 5-minute stop would reset the movement threshold.
The ``driving stop'' situation should alert the driver of duty status
change and allow the driver to override the default. For example, the
duty status would remain D if the CMV were stopped in traffic or when
the driver operated auxiliary vehicle functions while seated at the
driving controls.
    Response: FMCSA agrees that a 15-minute period is too long. Section
395.16(d) has been revised to require that an EOBR automatically record
driving time, and the EOBR's entry must change to on-duty not driving
when the CMV is stationary for 5 minutes or more. The driver must then
enter the proper duty status. If the CMV is being used as a personal
conveyance, the driver must affirmatively enter an annotation before
the CMV begins to move.
    FMCSA agrees with the TMC TPA's interpretation concerning the entry
of the time of a duty status change: it must be done when the change
takes place.
6.3.2 Recording and Confirmation of On-Duty Not Driving and Driving
Status
    Several commenters, including Werner, Qualcomm, ATA, the MTA, and
the authors of the TMC TPA asked FMCSA to clarify how to record duty
status information when the CMV is in motion, but the driver is not in
a ``driving'' status. These situations include a maintenance technician
repositioning a CMV in a motor carrier's yard and a driver using a CMV
as a personal conveyance. Commenters also cited the draft TMC TPA's
treatment of situations where a driver fails to log on to the EOBR,
prompting the driver and continuing to record driving time if the
driver ignores the prompt, and allowing a driver to confirm previous
driving time, and generating a system error if a driver ignores
prompts.
    Response: As is the case with AOBRDs, the driver would need to
select and enter the proper duty status and make the appropriate entry
in the ``Remarks'' section of the record. This rule does not change the
way FMCSA defines ODND activities. In response to the questions
concerning use of a CMV as a personal conveyance, FMCSA has revised
Sec. Sec.  395.16(d)(1) and 395.16(h)(3). If a CMV is being used as a
personal conveyance, the driver must affirmatively enter an annotation
before the CMV begins to move.
6.3.3 Other Comments on Duty Status Defaults
    IBT, OOIDA, TCA and 23 other commenters stated that the need for
manual entry of non-driving status creates the same potential for
violations of the HOS rules as the present system. For many drivers,
ODND time may account for a substantial proportion of their work
schedules. Because drivers may receive less pay for hours ODND than for
driving time--or no pay at all--they have an economic incentive to
under-report the number of those hours. OOIDA contends if drivers were
compensated for this time most deficiencies in drivers' recording their
ODND time would disappear.
    Response: FMCSA is not aware of any devices currently available
that would enable automatic recording of all categories of duty status,
nor did any commenters suggest that such devices are available. Given
concerns about personal privacy in general, we do not believe proposing
the use of personal activity monitors for HOS compliance purposes would
be appropriate. Despite the need to require the driver to manually
enter some kinds of information, FMCSA believes the automatic recording
of CMV location information will assist the Agency in investigating
potential violations of part 395.
    As to drivers' compensation for ODND time, driver compensation is
not within FMCSA's jurisdiction.
6.4 Malfunction Alert System
    Several commenters opposed the proposed requirement for an EOBR to
provide an audible and visual signal when it ceases to function
properly (Sec.  395.16(o)(6)). KonaWare, Qualcomm, TMC, Werner, and
FedEx believe the requirement for a failure-alert system would add to
the costs of an EOBR. Qualcomm expressed concern that driver alerts for
minor interruptions in device operation, such as loss of mobile
communications network coverage for very short periods of time should
not be required while the CMV is being driven. Instead, Qualcomm
believes they should be indicated only when the vehicle is stopped or
if they affect required data capture, requiring the driver to enter
remarks or amend a record.
    The TMC TPA and Qualcomm recommended FMCSA allow the driver to fill
in missing data for non-critical sensor failure. The data would be
``annotated'' as driver-added information, and a record of the sensor

failure would be included in the log data. ATA said more specificity
was needed on driver reporting, carrier correction, and sensor
failures.
    Response: FMCSA continues to believe it is necessary to require the
malfunction alert system required for EOBRS in Sec.  395.16 remain
essentially the same as that currently required for AOBRDs in Sec.
395.15(i)(4). FMCSA agrees with the commenters that certain types of
brief interruptions in operation should not be considered an ``EOBR
device failure.'' In particular, the Agency acknowledges location
information can be momentarily lost due to signal blockages, such as
from bridges or geographic features. The Agency revises Sec.  395.16(o)
to clarify subsystem and sensor failure alert.
6.5 Synchronization of EOBR to Vehicle (Sec.  395.16(e) and (g))
    Most commenters strongly disagreed with the proposal to allow EOBRs
without integral synchronization with the vehicle. Vendor commenters
XATA, Qualcomm, Tripmaster, Siemens, and PeopleNet, motor carriers
Boyle Transportation, Fil-Mor Express, and J.B. Hunt, safety advocacy
groups IIHS and Advocates, and CVSA and TMC provided extensive comments
opposing the Agency's proposal to allow the use of EOBRs that are not
synchronized with the CMV. Various commenters addressed both the need
for integral synchronization and the inability of GPS technologies to
provide driving time and CMV travel-distance information with
sufficient accuracy.
    XATA commented that a duty status other than D is difficult to
automate, so the D status must be as accurate as possible. A connection
to the engine makes it possible to automatically enter the vehicle
identification, so only the driver's identification must be entered
manually. XATA suggested entering both items of identification manually
increases opportunities for falsification and difficulty of auditing.
    Tripmaster was concerned non-synchronized EOBRs could not be
designed to prevent tampering and manipulation. Tripmaster recommended
synchronization include obtaining power from the vehicle, obtaining
distance from vehicle-based sensors or networks, and ensuring the
device could not be deactivated without visible signs of tampering.
Tripmaster also believed FMCSA could generate more realistic
performance standards for synchronized than for non-synchronized EOBRs.
Tripmaster and the TMC TPA noted the inherent inaccuracies of GPS-based
distance measurement (citing a University of Oregon study that found
GPS-based distance accuracy to range from 75 percent to 94 percent of
actual distance traveled). Tripmaster added that non-synchronized
devices could provide location data from the driver carrying the device
on his/her person, well beyond what is required to verify the accuracy
of the RODS and that auditing the electronic RODS records for non-
synchronized EOBRs would be problematic, particularly if there would be
no supporting documents to verify driving time.
    IIHS and Advocates stated FMCSA failed to provide evidence the non-
synchronized EOBRs can provide secure and accurate records, be made
tamper-resistant, or ensure records will be related to a unique truck,
driver, and carrier. Advocates was particularly concerned FMCSA's
proposed approach would eliminate the Agency's ability to assess the
design and operational integrity of EOBRs.
    With respect to use of GPS technologies substituting for integral
synchronization, Qualcomm, ITEC, and other commenters cited problems
associated with losing the GPS signal. GPS technology suffers from
``canyon effect'' in urban areas, where tall buildings and tunnels can
block the communications pathways to the GPS satellites, and even
relying on GPS signals for distance traveled on a minute-by-minute
basis may not achieve the accuracy FMCSA desired in the NPRM.
Furthermore, the straight line point-to-point distances computed
between recording intervals is less than actual travel distances over
curved segments of highway. For this reason, Boyle Transportation
favored a requirement for EOBRs to have GPS capability and to be
synchronized to the engine, to improve both tamper-resistance and the
ability to calibrate the device.
    A number of commenters stated non-synchronized systems would be
vulnerable to tampering and manipulation. Tripmaster, J.B. Hunt, and
PeopleNet noted non-tethered devices can be turned on and off or
removed from the vehicle and left behind, leading to falsification of
travel distance and duty status information. J.B. Hunt, Tripmaster,
PeopleNet and the TMC TPA noted physically blocking a GPS receiver's
antenna (such as by covering it with aluminum foil) was completely
effective in blocking the signal, and the signal could be corrupted by
a noisy radio frequency (RF) transmitter. Siemens added that
unsynchronized EOBRs would be useless for enforcement if used by
drivers willing to cheat because their data integrity would be no
better than with manual RODS. Additionally, safety officials would not
have an enhanced tool to detect falsification; and, if EOBRs were to be
mandated only in the context of a remedial action, this flaw would be
magnified. Siemens added that there is no way to prevent interruption
of signal availability (for example, in tunnels or when the driver
turns it off purposefully).
    Only a few commenters supported the proposal to allow non-
integrally- synchronized EOBRs. Verigo described its PDA-based
electronic logbook and questioned the justification for a more complex
system. Xora supported non-integrally synchronized EOBRs on the basis
of their lower costs and potential wider adoption. ATA stated it would
support unsynchronized EOBRs only if: (1) Effective controls could be
developed to prevent or minimize system weakness, especially deliberate
blockage or loss of data; or (2) sufficiently severe penalties could
deter these violations. CVSA believed untethered EOBRs might be
possible in the future.
    Response: After considering the comments on this issue, FMCSA
decided to require EOBRs to be integrally synchronized with the CMV in
which it is installed. This parallels the current requirement for
AOBRDs in Sec.  395.15. The definition of an ``integrally
synchronized'' device in the final rule is as proposed in the January
2007 NPRM. The current definition of AOBRD in Sec.  395.2 calls for the
device to be ``integrally synchronized with specific operations of the
commercial motor vehicle in which it is installed.'' It implicitly
defines synchronization through a performance-based requirement: ``At a
minimum, the device must record engine use, road speed, miles driven,
the date, and time of day.'' The final rule is explicit in its
definition: an integrally-synchronized AOBRD or EOBR must receive and
record the engine use status for the purpose of deriving on-duty
driving status from a source or sources internal to the CMV.
    The NPRM based the proposed use of non-synchronized devices upon
the assumed accuracy of those devices to measure the distance traveled
by a CMV. After reviewing the comments that questioned those
assumptions, FMCSA decided it would be prudent to conduct a limited
field test of several of these devices. The Agency entered into an
interagency agreement with the Volpe Center to perform this work. The
results of this effort are documented in the report, ``Evaluation of
the Accuracy and Reliability of GPS-Based Methods for Measuring Vehicle
Driving

Distance,'' which has been placed in the docket for this rulemaking.
    The study assessed the performance of commercial off-the-shelf GPS
receivers using various types of antennas and antenna mount