[Federal Register Volume 80, Number 241 (Wednesday, December 16, 2015)]
[Rules and Regulations]
[Pages 78291-78416]
[FR Doc No: 2015-31336]

Vol. 80

Wednesday,

No. 241

December 16, 2015

Part II

Department of Transportation

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

Federal Motor Carrier Safety Administration

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

49 CFR Parts 385, 386, 390, and 395

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

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

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, and 395

[Docket No. FMCSA-2010-0167]
RIN 2126-AB20

Electronic Logging Devices and Hours of Service Supporting
Documents

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

ACTION: Final rule.

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

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends
the Federal Motor Carrier Safety Regulations (FMCSRs) to establish:
Minimum performance and design standards for hours-of-service (HOS)
electronic logging devices (ELDs); requirements for the mandatory use
of these devices by drivers currently required to prepare HOS records
of duty status (RODS); requirements concerning HOS supporting
documents; and measures to address concerns about harassment resulting
from the mandatory use of ELDs. The requirements for ELDs will improve
compliance with the HOS rules.

DATES: Effective Date: February 16, 2016.
    Compliance Date: December 18, 2017.
    Petitions for Reconsideration: The deadline for submitting
petitions for reconsideration is January 15, 2016.
    The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Office of the
Federal Register as of February 16, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001 or by telephone at 202
366-5370.

SUPPLEMENTARY INFORMATION: The Agency organizes the final rule as
follows:

I. Abbreviations and Acronyms
II. Executive Summary
III. Public Participation
IV. Overview
    A. Today's Final Rule
    B. Regulatory History
    C. Provisions of Previous Rulemaking Proposals That Are Not
Included in Today's Rule
    D. Coordination With the U.S. Department of Labor
    E. MCSAC Recommendations
    F. Table Summary
V. Legal Basis for the Rulemaking
    A. Motor Carrier Act of 1935
    B. Motor Carrier Safety Act of 1984
    C. Truck and Bus Safety and Regulatory Reform Act
    D. Hazardous Materials Transportation Authorization Act of 1994
    E. MAP-21
VI. Discussion of Comments--Overview
    A. Terminology in This Rulemaking
    B. An Overview of Comments
VII. Discussion of Comments Related to Scope and Exceptions to the
Mandate
    A. Scope
    B. Exceptions to the Requirement To Use ELDs--the 8 in 30-Day
Threshold
    C. Requests for Exemption for Driveaway-Towaway Operations,
Dealers, and Pre-Model Year 2000 Vehicles
    D. Requests for Exceptions From the ELD Mandate for Certain
Segments of the CMV Industry
    E. Exceptions for Small Business
    F. Exceptions for CMVs Under 26,001 Pounds or Carrying Between 9
and 15 Passengers (Including the Driver)
    G. ELDs Only for Unsafe Carriers or Drivers
VIII. Discussion of Comments Related to Supporting Documents
    A. Definition and Number
    B. Categories
    C. Data Elements
    D. Supporting Document Exemption for Self-Compliance System
    E. Supporting Document Management
    F. Requirements When ELDs Malfunction and Requests for
Clarification Regarding State Laws
IX. Discussion of Comments Related to Harassment
    A. Background and 2011 NPRM
    B. General
    C. Privacy; Ownership and Use of ELD Data
    D. Tracking of Vehicle Location; Real Time Transmission of Data
    E. Mute Function
    F. Drivers' Access to Own Records
    G. Drivers' Control Over RODS
    H. Harassment Complaints
    I. Matters Outside FMCSA's Authority
X. Discussion of Comments Related to the Technical Specifications
    A. Performance and Design Specifications
    B. Specific Performance Requirements
    C. Security
    D. External Operating Factors and Failure Rate of ELDs
    E. Automatic Duty Status
    F. CMV Position
    G. Special Driving Categories
    H. Data Automatically Recorded
    I. Driver's Annotation/Edits of Records
    J. Driver's Data Transfer Initiation Input
    K. ELD Data File
    L. Engine Power Up and Shut Down
    M. Engine Synchronization Compliance Monitoring
    N. Engine Miles
    O. Records Logged Under the Unidentified Driver Profile
    P. Power-On Status Time
    Q. Time
    R. User List
    S. ELD Vehicle Interfaces
    T. Vehicle Miles
    U. Vehicle Motion Status
    V. Wireless Electronic Transfer
    W. Pre-2000 Model Year CMVs
    X. Authenticated User and Account Management
    Y. ODND Time
    Z. Data Transfer
    AA. USB2
    BB. Wireless Data Transfer Through Web Services
    CC. Wireless Services via E-Mail
    DD. Bluetooth
    EE. QR Codes and Transfer Jet
    FF. Other Communications and Technology Options
    GG. Data Reporting During Roadside Inspections
    HH. Data Transfer Compliance Monitoring
    II. Printing
    JJ. Portable ELDs
XI. Discussion of Comments Related to Costs and Benefits
    A. Cost and Analysis--General
    B. Costs Associated With ELDs
    C. Cost and Analysis--Updating Existing Systems
    D. Paperwork Analysis
    E. Small Business
    F. Cost of a Printer
    G. Tax Credits and Relief To Off-Set Costs
    H. Basis for Evaluating Safety Benefits
XII. Discussion of Comments Related to Procedures, Studies, Etc.
    A. Registration and Certification
    B. Compliance Date and Grandfather Period
    C. Penalties and Enforcement
    D. Enforcement Proceedings
    E. FMCSA Should Not Provide Mexican Motor Carriers With ELDs
    F. International Issues
    G. Effects of ELDs on Current Business Practices
    H. Leased and Rented Vehicles
    I. Business Relationships With Owner-Operators
    J. Carrier Liability
    K. Safety Study
    L. Harassment Survey
    M. Legal Issues--Constitutional Rights: Fourth and Fifth
Amendments
    N. Short Movements or Movements Under a Certain Speed and
Personal Use of a CMV
    O. Statutory Definition of ELD
    P. Roadside Enforcement
    Q. Out of Scope Comments
XIII. Section-by-Section Analysis
    A. Part 385--Safety Fitness Procedures
    B. Part 386--Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous
Materials Proceedings
    C. Part 390--Federal Motor Carrier Safety Regulations: General
    D. Part 395--Hours of Service of Drivers
XIV. Regulatory Analyses
    A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review)
and DOT Regulatory Policies and Procedures
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Executive Order 12988 (Civil Justice Reform)
    E. Executive Order 13045 (Protection of Children)

    F. Executive Order 12630 (Taking of Private Property)
    G. Executive Order 13132 (Federalism)
    H. Executive Order 12372 (Intergovernmental Review)
    I. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments
    J. Paperwork Reduction Act
    K. National Environmental Policy Act and Clean Air Act
    L. Executive Order 12898 (Environmental Justice)
    M. Executive Order 13211 (Energy Effects)
    N. National Technology Transfer and Advancement Act
    O. E-Government Act of 2002

I. Abbreviations and Acronyms

American Bus Association ABA
American Moving & Storage Association AMSA
American Pyrotechnics Association APA
American Trucking Association ATA
Associated General Contractors of America AGC
Automatic On-Board Recording Device AOBRD
Commercial Vehicle Safety Alliance CVSA
Commercial Driver's License CDL
Commercial Motor Vehicle CMV
Department of Transportation DOT
Electronic Control Module ECM
Electronic Logging Device ELD
Electronic On-Board Recorder EOBR
Electronic Records of Duty Status eRODs
Engine Control Unit ECU
Extensible Markup Language XML
Federal Motor Carrier Safety Administration FMCSA
Federal Motor Carrier Safety Regulations FMCSRs
Fleet Management System FMS
Global Positioning System GPS
Hazardous Materials HM
Hours of Service HOS
Information Collection Request ICR
Institute of Makers of Explosives IME
Initial Regulatory Flexibility Assessment IRFA
International Brotherhood of Teamsters IBT
International Foodservice Distributors Association IFDA
Motor Carrier Safety Advisory Committee MCSAC
Motor Carrier Safety Assistance Program MCSAP
National Federation of Independent Businesses NFIB
National Limousine Association NLA
National Motor Freight Traffic Association NMFTA
National Propane Gas Association NPGA
National Transportation Safety Board NTSB
Notice of Proposed Rulemaking NPRM
Office of Management and Budget OMB
Ohio Trucking Association OTA
On-Board Diagnostics OBD-II
On-Duty Not Driving ODND
Owner-Operator Independent Driver Association OOIDA
Quick Response QR
Record of Duty Status RODS
Regulatory Impact Analysis RIA
Supplemental Notice of Proposed Rulemaking SNPRM
Truck Rental and Leasing Association TRALA
Truckload Carriers Association TCA
United Motorcoach Association UMA
Vehicle Identification Number VIN

II. Executive Summary

    This rule improves commercial motor vehicle (CMV) safety and
reduces the overall paperwork burden for both motor carriers and
drivers by increasing the use of ELDs within the motor carrier
industry, which will, in turn, improve compliance with the applicable
HOS rules. Specifically, this rule: (1) Requires new technical
specifications for ELDs that address statutory requirements; (2)
mandates ELDs for drivers currently using RODS; (3) clarifies
supporting document requirements so that motor carriers and drivers can
comply efficiently with HOS regulations; and (4) adopts both procedural
and technical provisions aimed at ensuring that ELDs are not used to
harass CMV operators.
    In August 2011, the United States Court of Appeals for the Seventh
Circuit vacated the April 2010 rule on electronic on-board recorders
(EOBRs), including the device performance standards. See Owner-Operator
Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580
(7th Cir. 2011) available in the docket for this rulemaking. This
rulemaking addresses issues raised by that decision.
    All of the previous rulemaking notices, as well as notices
announcing certain Motor Carrier Safety Advisory Committee (MCSAC)
meetings and public listening sessions, referred to the devices and
support systems used to record electronically HOS RODS as EOBRs.
Beginning with the supplemental notice of proposed rulemaking (SNPRM)
for this rulemaking (79 FR 17656, March 28, 2014), the term
``electronic logging device (ELD)'' was substituted for the term
``EOBR'' in order to be consistent with the term used in MAP-21. To the
extent applicable, a reference to an ELD includes a related motor
carrier or provider central support system--if one is used--to manage
or store ELD records.
    FMCSA based this rulemaking on the authority in a number of
statutes, including the Motor Carrier Act of 1935, the Motor Carrier
Safety Act of 1984, the Truck and Bus Safety and Regulatory Reform Act
of 1988, the Hazardous Materials Transportation Authorization Act of
1994 (HMTAA), and MAP-21.
    Today's rule makes changes from the SNPRM. The key changes are:
    1. Documents Requirements--The maximum number of supporting
documents that must be retained has been lowered from 10 in the SNPRM
to 8 in today's rule. In addition, the timeframe in which a driver must
submit RODS and supporting documents to a motor carrier has been
extended from 8 to 13 days.
    2. Technical Specifications--Two of the options for the required
electronic data transfer included in the SNPRM (Quick Response (QR)
codes and TransferJet) \1\ have been removed. Electronic data transfer
must be made by either (1) wireless Web services and email or (2)
Bluetooth[supreg] and USB 2.0. Furthermore, to facilitate roadside
inspections, and ensure authorized safety officials are always able to
access this data, including cases of limited connectivity an ELD must
provide either a display or printout.
---------------------------------------------------------------------------

    \1\ Quick Response (QR) codes convert information into two
dimensional barcodes that can be read using common tools such as
smart phones or hand scanners. TransferJet, the close-proximity
transfer of data, allows a large amount of data to be transmitted at
high speed when two devices are held very close together, or
``bumped.''
---------------------------------------------------------------------------

    3. Exemptions--Two optional exceptions are added from the required
use of ELDs: (1) Driveaway-towaway operations are not required to use
an ELD, provided the vehicle driven is part of the shipment; and (2)
ELDs are not required on CMVs older than model year 2000.
    4. ELD Certification--To ensure that ELD providers \2\ have the
opportunity for due process in the event that there are compliance
issues with their product, procedures are added that FMCSA would employ
if it identified problems with an ELD model before it would remove the
model from the Agency's list of certified products.
---------------------------------------------------------------------------

    \2\ ``ELD provider'' describes a manufacturer or packager of an
ELD that complies with the appendix to subpart B of part 395 that is
also responsible for registering and certifying the ELD on FMCSA's
Web site.
---------------------------------------------------------------------------

    In this rule, the Agency clarifies its supporting document
requirements, recognizing that ELD records serve as the most robust
form of documentation for on-duty driving periods. FMCSA neither
increases nor decreases the burden associated with supporting
documents. These changes are expected to improve the quality and
usefulness of the supporting documents retained, and consequently
increase the effectiveness and efficiency of the Agency's review of
motor carriers' HOS records during on-site compliance reviews and its
ability to detect HOS rules violations. The Agency is currently unable
to evaluate the impact the changes to supporting documents requirements
would have on crash reductions.

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

Cost and Benefits

    The Regulatory Impact Analysis (RIA) for today's rule retains two
of the four options put forward in the SNPRM:
     Option 1: ELDs are mandated for all CMV operations subject
to 49 CFR part 395.
     Option 2: ELDs are mandated for all CMV operations where
the driver is required to complete RODS under 49 CFR 395.8.
    In today's rule, FMCSA adopts a slight variation of Option 2 from
the SNPRM. Based on comments received on the SNPRM, Options 3 and 4 are
not included in the final rule. Unlike the SNPRM, to provide a backup
means of accessing data FMCSA will require either a display or printout
regardless of the specific data transfer technologies required, thus
rendering Options 3 and 4 unnecessary. In response to comments received
to the SNPRM, the specific data transfer technologies required under
today's rule are simplified, with QR Codes and TransferJet technologies
eliminated. In the SNPRM, the required data transfer technologies were
the same across the four options presented, with the only differences
being the population the rule would apply to and a specific requirement
for the ability to print out data. In today's rule, the required data
transfer technologies are the same across the two options presented.
The change in data transfer technologies from the SNPRM does not affect
the per unit cost of the ELD. However, in today's rule the purchase
price of the ELD was reduced from that used in the SNPRM, to reflect
the most up-to-date prices consistent with the technical requirements
of the rule. This change in data transfer technologies from the SNPRM
also simplifies and enhances uniformity of enforcement. For purposes of
comparison, the analysis from the SNPRM, including Options 3 and 4, is
available in the docket for this rulemaking.
    The RIA details the costs and benefits of this rule and discusses
the methods by which they were derived. The major elements that
contribute to the overall net benefits of the rulemaking are shown
below in Table 1. The figures presented are annualized using 7 percent
and 3 percent discount rates.

                                Table 1--Summary of Annualized Costs and Benefits
                                                [2013 $ millions]
----------------------------------------------------------------------------------------------------------------
                                                     Option 1: all HOS drivers       Option 2: (adopted) RODS
                                                 --------------------------------          drivers only
                                                                                -------------------------------
                                                        3%              7%              3%              7%
----------------------------------------------------------------------------------------------------------------
Total Benefits..................................          $3,150          $3,124          $3,035          $3,010
    Safety (Crash Reductions)...................             694             687             579             572
    Paperwork Savings...........................           2,456           2,438           2,456           2,438
Total Costs.....................................           2,298           2,280           1,851           1,836
    New ELD Costs...............................           1,348           1,336           1,042           1,032
    AOBRD Replacement Costs.....................               2               2               2               2
    HOS Compliance Costs........................             936             929             797             790
    CMV Driver Training Costs...................               9              10               7               8
    Enforcement Training Costs..................               1               2               1               2
    Enforcement Equipment Costs.................               1               1               1               1
                                                 ---------------------------------------------------------------
        Net Benefits............................             852             844           1,184           1,174
----------------------------------------------------------------------------------------------------------------

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

                Table 2--Estimated Reductions in Crashes
------------------------------------------------------------------------
                                                               Option 2:
                                                   Option 1:     RODS
                                                    all HOS     drivers
                                                    drivers      only
------------------------------------------------------------------------
Crashes Avoided.................................       2,217       1,844
Injuries Avoided................................         675         562
Lives Saved.....................................          31          26
------------------------------------------------------------------------

III. Public Participation

    To view comments, as well as any documents identified in this
preamble as available in the docket, go to http://www.regulations.gov.
Insert the docket number, FMCSA-2010-1067, in the keyword box, and
click ``Search.'' Next, click the ``Open Docket Folder'' button and
choose the document to review. If you do not have access to the
Internet, you may view the docket online by visiting the Docket
Management Facility in Room W12-140 on the ground floor of the DOT West
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

IV. Overview

A. Today's Final Rule

    Today's rule mandates ELD use for HOS compliance. It applies to
most motor carriers and drivers who are currently required to prepare
and retain paper RODS to comply with HOS regulations under part 395.
Today's rule allows limited exceptions to the ELD mandate. As indicated
in Sec.  395.1(e), drivers who operate using the timecard exception are
not required to keep RODS and will not be required to use ELDs. The
following drivers are excepted in Sec.  395.8(a)(1)(iii) from
installing and using ELDs and may continue to use ``paper'' RODS: \3\
---------------------------------------------------------------------------

    \3\ ``Paper RODS'' means RODS that are not kept on an ELD or
AOBRD, but instead are either recorded manually in accordance with
Sec.  395.8(f) or on a computer not synchronized to the vehicle or
that otherwise does not qualify as an ELD or AOBRD.
---------------------------------------------------------------------------

     Drivers who use paper RODS for not more than 8 days during
any 30 day period.
     Drivers who conduct driveaway-towaway operations, where
the vehicle being driven is the commodity being delivered.

     Drivers of vehicles manufactured before model year 2000.
    This exception is limited to the ELD requirement only; these
drivers are still bound by the RODS requirements in 49 CFR part 395 and
must prepare paper logs when required unless they voluntarily elect to
use an ELD.
    As required by MAP-21, Sec.  395.8(a)(1) directs a motor carrier
operating CMVs to install and require each of its drivers to use an ELD
to record the driver's duty status no later than December 18, 2017.
Drivers and motor carriers currently using Sec.  395.15-compliant
Automatic Onboard Recorders (AOBRDs), however, are allowed to continue
to use AOBRDs for an additional 2 years after that date.
1. Supporting Documents
    Under Sec.  395.11(d), motor carriers must retain up to 8
supporting documents for every 24-hour period a driver who uses ELDs is
on duty. Section 395.8(k) continues to require that motor carriers
retain RODS and supporting documents for 6 months. New Sec.  395.11(b)
specifies that drivers must submit supporting documents to the motor
carrier no later than 13 days after receiving them. While ELDs are
highly effective at monitoring compliance with HOS rules during driving
periods, supporting documents are still needed to verify on-duty not
driving time (ODND). In Sec.  395.2, today's rule defines ``supporting
document.'' To be considered supporting documents, they need to meet
certain criteria in Sec.  395.11(c)(2). The eight documents should
contain these elements from Sec.  395.11(c)(2)(i):
     Driver name or carrier-assigned identification number,
either on the document or on another document enabling the carrier to
link the document to the driver, or the vehicle unit number if that
number can be linked to the driver;
     Date;
     Location (including name of nearest city, town, or
village); and
     Time.
    FMCSA acknowledges that sometimes drivers will not receive
documents that meet all these criteria. If a driver has fewer than
eight documents that include the four elements under Sec.
395.11(c)(2)(ii), a document that contains all of the elements except
``time'' is considered a supporting document; otherwise, it is not
considered a supporting document. FMCSA notes that there is no
obligation on a motor carrier to create or annotate documents that it
did not otherwise generate or receive in its normal course of business.
    If a driver submits more than eight documents to the motor carrier
for a single day, paragraph (d)(3) requires that the motor carrier must
include the first and last documents for that day among the eight
documents that must be retained. If a driver submits fewer than eight
documents, the motor carrier must keep each document.
    Supporting documents consist of the following five categories,
described in Sec.  395.11(c):
     Bills of lading, itineraries, schedules, or equivalent
documents that indicate the origin and destination of each trip;
     Dispatch records, trip records, or equivalent documents;
     Expense receipts;
     Electronic mobile communication records, reflecting
communications transmitted through a fleet management system (FMS); and
     Payroll records, settlement sheets, or equivalent
documents that indicates payment to a driver.
    Except for drivers who use paper RODS, there is no requirement for
drivers or motor carriers to retain other types or categories of
documents. If a driver keeps a paper RODS under Sec.  395.8(a)(1)(iii),
Sec.  395.11(d)(4) states that toll receipts must be retained as well.
For drivers using paper RODS, the toll receipts do not count in
applying the eight-document cap. In applying the limit on the number of
documents, Sec.  395.11(d)(2) states that all information contained in
an electronic mobile communication record, such as communication
records kept by an FMS, will be counted as one document per duty status
day.
    Section 395.11(e) requires motor carriers to retain supporting
documents in a way that allows them to be matched to a driver's RODS.
Section 395.11 (f) prohibits drivers or carriers from destroying or
defacing a supporting document or altering information on a document.
Section 395.11(g) requires the driver to make supporting documents in
his or her possession available to an authorized Federal, State, or
local official on request. However, the driver only has to provide the
documents in the format in which the driver has them available.
    Self-compliance systems. On a case-by-case basis, FMCSA may
authorize exemptions to allow a motor carrier to use a supporting
document self-compliance system, as required by section 113 of HMTAA.
Using the procedures already in 49 CFR part 381, subpart C, FMCSA will
consider requests for exemption from the retention and maintenance
requirements for supporting documents. This alternative system would
ensure compliance with the HOS regulations. Section 395.11(h)
references the procedures for applying for an exemption for a self-
compliance system.
2. Harassment
    Today's rule includes a definition of ``harassment,'' which covers
an action by a motor carrier toward one of its drivers that the motor
carrier knew, or should have known, would result in the driver
violating Sec.  392.3, which prohibits an ill or fatigued driver from
operating a CMV, or part 395, the HOS rules. Harassment must involve
information available to the motor carrier through an ELD or other
technology used in combination with and not separable from an ELD. In
Sec.  390.36(b), FMCSA explicitly prohibits a motor carrier from
harassing a driver.
    Today's rule adopts a regulatory prohibition on harassment, as
defined, subject to a civil penalty in addition to the penalty for the
underlying violation. The rule also has other provisions intended to
ensure that ELDs are not used to harass drivers. Some of these are
technical provisions intended to guard against harassment. Others are
procedural, to give drivers recourse when they are harassed.
    Among the technical solutions addressing harassment is a required
mute function for FMSs with ELD functionality that would be used to
comply with this rule. The mute function ensures that a driver is not
interrupted by an FMS that includes an ELD function when the driver is
in the sleeper berth. FMCSA emphasizes that a minimally compliant ELD
is not required to have voice or text message communication
capabilities or to produce audible alerts or alarms. For ELDs that have
the ability to generate audible signals, however, today's rule requires
that the devices have volume control. This control must either
automatically engage, or allow the driver to turn off or mute the ELD's
audible output when the driver puts the ELD into a sleeper berth
status, and, in the case of co-drivers, when no other driver has logged
into the ELD in an on-duty driving status.
    The design of the ELD allows only limited edits of an ELD record by
both the driver and the motor carrier's agents and in either case the
original record generated by the device cannot be changed. Drivers may
edit, enter missing information into, and annotate the ELD records but
the original record will be retained. The ELD prevents electronically-
recorded driving time from being shortened. A motor carrier may request
edits to a driver's RODS to

ensure accuracy. However, for the carrier-proposed changes, the driver
must confirm them and certify and submit the updated RODS. Section
395.30(c)(2) requires all edits, whether made by a driver or the motor
carrier, be annotated to document the reason for the change. All of
these procedures and design features will help a driver retain control
of the RODS, and ensure against harassment.
    The rule requires that anyone making edits to an ELD record have a
unique login ID. Drivers must have access to their own ELD records
without having to request access through their motor carriers, ensuring
that drivers can review the ELD record and determine whether
unauthorized edits/annotations have been entered.
    Section Sec.  395.26 describes ELD data records, including location
data, when the driver changes duty status, when a driver indicates
personal use or yard moves, when the CMV engine powers up and shuts
down, and at 60-minute intervals when the vehicle is in motion. FMCSA
emphasizes that it does not require real-time tracking of CMVs or the
recording of precise location information in today's rule.
    For the purposes of HOS enforcement, FMCSA requires all ELDs to
record location in a way that provides an accuracy of approximately a
1-mile radius during on-duty driving periods. However, when a CMV is
operated for authorized personal use, the position reporting accuracy,
as required by section <IP_ADDRESS>(f), is reduced to an approximate 10-mile
radius, to further protect the driver's privacy. While a motor carrier
could employ technology that provides more accurate location
information internally, when the ELD transmits data to authorized
safety officials, the location data will be limited to the reduced
proximities.
    Today's rule includes a new process for driver complaints related
to harassment involving ELDs.
    Civil penalties against motor carriers found to be harassing
drivers are governed under Appendix B to Part 386 and today's rule
addresses how penalties for harassment will be assessed (Part 386,
Appendix B, (a)(7)). Because harassment will be considered in cases of
alleged HOS violations, the penalty for harassment is in addition to
the underlying violation under 49 CFR 392.3 or part 395. An underlying
violation must be found in order for a harassment penalty to be
assessed.
3. Technical Specifications; Implementation Period
    Today's rule includes technical specifications for an ELD device.
All ELDs must meet standard requirements which include recording
certain information related to a driver's HOS status, but they are not
required to track a CMV or driver in real time. ELDs are not required
to include a capability to communicate between the driver and the motor
carrier. All ELDs, however, must capture and transfer identical data
regarding a driver's HOS status to authorized safety officials.
Although an ELD may be part of an FMS, the ELD functions required by
this rule are limited to automatically recording all driving time, and
intermittently recording certain other information. The ELD functions
will make it easy for the driver to record off duty, sleeper berth, and
ODND time, and transfer that information to authorized safety officials
and motor carriers.
    Section 395.26 provides that the ELD automatically record the
following data elements at certain intervals: date; time; location
information; engine hours; vehicle miles; and identification
information for the driver, the authenticated user, the vehicle, and
the motor carrier. Unless the driver has indicated authorized personal
use of the vehicle, those data elements are automatically recorded when
the driver indicates a change of duty status or a change to a special
driving category. When the driver logs into or out of the ELD, or there
is a malfunction or data diagnostic event, the ELD records all the data
elements except geographic location. When the engine is powered up or
down, the ELD records all the data elements required by Sec.  395.26.
When a CMV is in motion and the driver has not caused some kind of
recording in the previous hour, the ELD will automatically record the
data elements. However, if a record is made during a period when the
driver has indicated authorized personal use, some elements will be
left blank and location information will be logged with a resolution of
only a single decimal point (approximately 10-mile radius).
    In addition to the information that the ELD records automatically,
both the motor carrier and the driver must input manually some
information in the ELD. The driver may select on the ELD an applicable
special driving category, or annotate the ELD record to explain driving
under applicable exceptions, including personal conveyance if
configured by the motor carrier.
    FMCSA will provide a list of provider-certified ELDs on its Web
site. Today's rule requires interstate motor carriers to use only an
ELD that appears on that list of registered ELDs. ELD providers must
register through a FMCSA Web site, and certify through the Web site
that their products meet the technical specifications in today's rule.
FMCSA will publish compliance test procedures to assist providers in
determining whether their products meet the requirements. ELD providers
are not required to use FMCSA's compliance test procedures. They may
use any test procedures they deem appropriate, but FMCSA will use the
compliance test procedures during any investigation and rely upon the
results from that procedure in making any preliminary determinations of
whether a system satisfies the requirements of today's rule.
    If the Agency believes an ELD model does not meet the required
standards, new section 5.4 of the technical specifications prescribes a
process of remedying the problem, or, if necessary, removing that model
from FMCSA's registration Web site.
    To meet roadside electronic data reporting requirements, under
section 4.9.1 of the technical specifications, an ELD must support one
of two options for different types of electronic data transfer. The
first option is a telematics-type ELD. At a minimum, it must
electronically transfer data to an authorized safety official on demand
via wireless Web services and email. The second option is a local
transfer method-type ELD. At a minimum, it must electronically transfer
data to an authorized safety official on demand via USB2.0 and
Bluetooth. Additionally, both types of ELDs must be capable of
displaying a standardized ELD data set in the format specified in this
rule to an authorized safety official on demand. To ensure that
authorized safety officials are always able to receive the HOS data
during a roadside inspection, a driver must be able to provide either
the display or a printout when an authorized safety official requests a
physical display of the information. Display and printouts will each
contain the same standardized data set identified in section <IP_ADDRESS> of
the technical specifications. Motor carriers will be able to select an
ELD that works for their business needs since both types of ELDs will
transfer identical data sets to law enforcement.
4. Enforcement
    A driver must submit supporting documents to the driver's employer
within 13 days. Today's rule does not require the driver to keep any
supporting documents in the vehicle. However, FMCSA notes that any
supporting documents that are in a vehicle during a roadside inspection
must be shown to an authorized safety official on request.

    Authorized safety officials who conduct roadside enforcement
activities (i.e., traffic enforcement and inspections) or compliance
safety investigations will be able to select a minimum of one method of
electronic data transfer from each type of ELD. States will have the
option of choosing a minimum of one ``telematics'' electronic data
transfer method (wireless Web services or email) and one ``local''
electronic data transfer method (USB 2.0 or Bluetooth) for the
electronic transfer of ELD data.
5. Implementation Period
    The Agency will make its compliance test available and its Web site
available for ELD providers to register and certify ELDs on or shortly
following the effective date of today's rule. A motor carrier may then
elect to voluntarily use ELDs listed on the Web site. Prior to the
rule's effective date, February 16, 2016, the Agency will issue a
policy addressing how ELDs will be handled for HOS enforcement purposes
during this voluntary period. Beginning on the rule's compliance date,
December 18, 2017, the Agency will apply today's rule in its
enforcement activities. If a motor carrier elects to voluntarily use
ELDs in advance of the rule's compliance date, the provisions of the
rule prohibiting harassment of drivers apply. However, those motor
carriers that have installed a compliant AOBRD before the compliance
date will have the option to continue using an AOBRD through December
16, 2019.
    The supporting document provisions of today's rule also take effect
as of the rule's compliance date. The effective date of provisions
addressing harassment is tied to the use of an ELD.

B. Regulatory History

    For a more extensive regulatory history and background of
electronic logging device regulations, please see the April 5, 2010
Final Rule (75 FR 17208), February 1, 2011 NPRM (76 FR 5537), and the
March 28, 2014 SNPRM (79 FR 17656). See also the table titled,
``Timeline of Regulatory and Judicial Actions after 2010 Related to
this Rulemaking,'' in Section IV, F, below.
    The 2010 EOBR 1 rule established technical specifications for an
electronic logging device, but the rule concerned only remedial and
voluntary use of EOBRs (75 FR 17208, Apr. 5, 2010). The rule would have
required that motor carriers with demonstrated serious noncompliance
with the HOS rules be subject to mandatory installation of EOBRs
meeting the new performance standards included in the 2010 rule. If
FMCSA determined, based on HOS records reviewed during a compliance
review, that a motor carrier had a 10 percent or greater violation rate
(``threshold rate violation'') for any HOS regulation listed in a new
Appendix C to part 385, FMCSA would have issued the carrier an EOBR
remedial directive. The motor carrier would then have been required to
install EOBRs in all of its CMVs regardless of their date of
manufacture and use the devices for HOS recordkeeping for a period of 2
years, unless the carrier (i) already equipped its vehicles with AOBRDs
meeting the Agency's current requirements under 49 CFR 395.15 prior to
the finding, and (ii) demonstrated to FMCSA that its drivers understand
how to use the devices. At that time, the Agency estimated that the
remedial directive aspect of 2010 rule would be applicable to about
2,800 motor carriers in the first year and 5,700 motor carriers each
year thereafter.
    The 2010 rule would have also changed the safety fitness standard
to take into account a remedial directive when determining fitness.
Additionally, to encourage industry-wide use of EOBRs, FMCSA revised
its compliance review procedures to permit examination of a random
sample of drivers' records of duty status after the initial sampling,
and provided partial relief from HOS supporting documents requirements,
if certain conditions were satisfied, for motor carriers that
voluntarily use compliant EOBRs.
    On February 1, 2011, FMCSA published an NPRM to expand the
electronic logging requirements from the 2010 rule to a much broader
population of motor carriers (76 FR 5537). There were several
opportunities for public input, including a notice inviting comment on
the issue of harassment, public listening sessions, MCSAC meetings,\4\
and an online commenting system pilot program called Regulation
Room.\5\
---------------------------------------------------------------------------

    \4\ The MCSAC provides advice and recommendations to the
Administrator of FMCSA on motor carrier safety programs and motor
carrier safety regulations. MCSAC members are appointed by the
Administrator for two-year terms and includes representatives of the
motor carrier safety advocacy, safety enforcement, industry, and
labor communities.
    \5\ The Regulation Room is available on line at: http://archive.regulationroom.org/eobr, last accessed January 2, 2015.
---------------------------------------------------------------------------

    In June 2010, the Owner-Operator Independent Drivers Association
(OOIDA) filed a petition in the U.S. Court of Appeals for the Seventh
Circuit seeking a review of the 2010 rule (Owner-Operator Indep.
Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580 (7th
Cir. 2011) (decision available in the docket for this rulemaking)). On
August 26, 2011, the Seventh Circuit vacated the April 2010 rule. The
court held that, contrary to a statutory requirement, the Agency failed
to address the issue of driver harassment.\6\
---------------------------------------------------------------------------

    \6\ 656 F.3d at 589. At the time of the court's decision, 49
U.S.C. 31137(a) read as follows: ``Use of Monitoring Devices.--If
the Secretary of Transportation prescribes a regulation about the
use of monitoring devices on commercial motor vehicles to increase
compliance by operators of the vehicles with hours of service
regulations of the Secretary, the regulation shall ensure that the
devices are not used to harass vehicle operators. However, the
devices may be used to monitor productivity of the operators.'' MAP-
21 revised section 31137, which no longer expressly refers to
``productivity.'' However, FMCSA believes that, as long as an action
by a motor carrier does not constitute harassment that would be
prohibited under this rulemaking, a carrier may legitimately use the
devices to improve productivity or for other appropriate business
practices.
---------------------------------------------------------------------------

    On February 13, 2012, FMCSA announced its intent to move forward
with an SNPRM that would propose technical standards for electronic
logging devices, address driver harassment issues, and propose revised
requirements on HOS supporting documents (77 FR 7562). Additionally,
the Agency stated it would hold public listening sessions and task the
MCSAC to make recommendations related to the proposed rulemaking.
    On May 14, 2012, FMCSA published a rule (77 FR 28448) to rescind
both the April 5, 2010, rule (75 FR 17208) and subsequent corrections
and modifications to the technical specifications (75 FR 55488, Sept.
13, 2010), in response to the Seventh Circuit's decision to vacate the
2010 EOBR rule.
    As a result of the Seventh Circuit's vacatur, the technical
specifications that were to be used in the 2011 NPRM were rescinded.
Because the requirements for AOBRDs were not affected by the Seventh
Circuit's decision, motor carriers relying on electronic devices to
monitor HOS compliance are currently governed by the Agency's rules
regarding the use of AOBRDs in 49 CFR 395.15, originally published in
1988. There are no new standards currently in effect to replace these
dated technical specifications. Furthermore, because the entire rule
was vacated, FMCSA was unable to grant relief from supporting document
requirements to motor carriers voluntarily using EOBRs.\7\
---------------------------------------------------------------------------

    \7\ The Agency's June 2010 guidance, ``Policy on the Retention
of Supporting Documents and the Use of Electronic Mobile
Communication/Tracking Technology,'' which granted certain motor
carriers limited relief from the requirement to retain certain
supporting documents, was not affected by the Seventh Circuit
decision.
---------------------------------------------------------------------------

    FMCSA proposed new technical standards for ELDs and requiring the

use of ELDs on March 28, 2014 in the SNPRM (79 FR 17656). These
technical standards were in response to the vacatur of the 2010 rule,
the MCSAC's recommendations (December 16, 2011 and February 8, 2012
reports), the public listening sessions (March 12, 2012 and April 26,
2012), and the enactment of MAP-21. The Agency also proposed new
requirements for supporting documents and ways to ensure that ELDs are
not used to harass drivers. The regulatory text proposed in the 2014
SNPRM superseded the regulatory text proposed in the 2011 NPRM.
    FMCSA conducted a study of the potential for safety benefits with
the use of ELDs, and published the results of this study in the docket
on May 12, 2014.
    FMCSA also conducted a survey of drivers and motor carriers
concerning the potential for the use of ELDs to result in harassment,
and docketed the results of this survey on November 13, 2014.

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

1. Supporting Document Provisions
    A number of provisions relating to a motor carrier's obligations
concerning supporting documents that were included in the 2011 NPRM
were not re-proposed in the SNPRM. For example, given the comments
received in response to the NPRM and additional information brought to
the Agency's attention, FMCSA decided not to require an HOS management
system as part of this rulemaking.
    The NPRM also proposed that a single supporting document would be
sufficient for the beginning and end of each ODND period if that
document contained the required elements. In addition, the NPRM also
proposed a motor carrier to certify the lack of any required supporting
document for prescribed periods. Given commenters overwhelming
opposition to the HOS Management System, these requirements were not
re-proposed in the 2014 SNPRM and are not included in the final rule.
    It is a paramount responsibility, however, of all motor carriers to
monitor their drivers' HOS compliance. As explained in prior
administrative decisions of the Agency, a motor carrier has an
obligation to verify HOS compliance of its drivers (See, e.g., In the
Matter of Stricklin Trucking Co., Inc., Docket No. FMCSA-2011-0127-
0013, at 10-13 (Order on Reconsideration Mar. 20, 2012)).\8\ Motor
carriers have a duty to ensure that their drivers are complying with
the requirements and prohibitions imposed on them in the HOS
regulations, just as they are responsible for complying with other
elements of the FMCSRs. The elimination of the HOS Management System
proposed in the NPRM does not alter this obligation.
---------------------------------------------------------------------------

    \8\ Available at http://www.regulations.gov.
---------------------------------------------------------------------------

    The Agency eliminated the suggestion that a single supporting
document could satisfy the motor carrier's obligation. The Agency
agreed with comments submitted at the NPRM stage that this suggestion
was not realistic and did not include it in the SNPRM. Similarly, the
Agency eliminated the requirement that a motor carrier certify the
unavailability of supporting documents based on comments received in
response to the NPRM.
2. Technical Specifications
    The 2011 NPRM relied upon the technical specifications in the EOBR
1 rule, which the Seventh Circuit vacated and which are now obsolete.
The 2014 SNPRM proposed new technical specifications, and today's rule
makes some modifications to those technical specifications. Below is a
comparison of the technical specifications in the existing 1988 AOBRD
rule, the 2010 EOBR 1 rule, the 2014 SNPRM, and today's rule. Motor
carriers that have installed compliant AOBRDs before the compliance
date of today's rule (2 years from today's publication date) may
continue use of these devices for an additional 2 years after the
compliance date.

                                 Table 3--Comparison of Technical Specifications
----------------------------------------------------------------------------------------------------------------
                                                                                Today's ELD Final
       Feature/Function        1988 AOBRD Rule     2010 EOBR Rule        2014 ELD SNPRM             rule
----------------------------------------------------------------------------------------------------------------
Integral Synchronization.....  Integral         Integral              Integral              Integral
                                synchronizatio   synchronization       synchronization       synchronization
                                n required,      required, defined     with the CMV          interfacing with
                                but term not     to specify signal     engine,* to           the CMV engine ECM,
                                defined in the   source internal to    automatically         to automatically
                                FMCSRs.          the CMV.              capture engine        capture engine
                                                                       power status,         power status,
                                                                       vehicle motion        vehicle motion
                                                                       status, miles         status, miles
                                                                       driven, engine        driven, engine
                                                                       hours.*.              hours.
                                                                      For model year 2000   (CMVs older than
                                                                       and later,            model year 2000
                                                                       interfacing with      exempted).
                                                                       engine control
                                                                       module (ECM).
Recording Location             Required at      Require automated     Require automated     Require automated
 Information.                   each change of   entry at each         entry at each         entry at each
                                duty status.     change of duty        change of duty        change of duty
                                Manual or        status and at 60-     status, at 60-        status, at 60-
                                automated.       minute intervals      minute intervals      minute intervals
                                                 while CMV in motion.  while CMV is in       while CMV is in
                                                                       motion, at engine-    motion, at engine-
                                                                       on and engine-off     on and engine-off
                                                                       instances, and at     instances, and at
                                                                       beginning and end     beginning and end
                                                                       of personal use and   of personal use and
                                                                       yard moves.           yard moves.

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

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

    FMCSA has worked with the U.S. Department of Labor to clarify and
reinforce the procedures of both agencies, including those pertaining
to harassment. The Department of Labor administers the whistleblower
law enacted as part of the Surface Transportation Assistance Act (49
U.S.C. 31105). FMCSA and the Department of Labor have previously
consulted on particular cases or referred drivers to the appropriate
agency based on the nature of the concern. The agencies also have been
in communication concerning their respective authorities and complaint
procedures and, in the Spring of 2014, entered a memorandum of
understanding to facilitate coordination and cooperation between FMCSA
and the Occupational Safety and Health Administration concerning
statutory provisions addressing retaliation and coercion as well as the
exchange of safety and health allegations.\9\
---------------------------------------------------------------------------

    \9\ Copy of Memorandum of Understanding available at https://www.osha.gov/plsoshaweb/owadisp.show_document?p_table=MOU&p_id=1305.
---------------------------------------------------------------------------

E. MCSAC Recommendations

    Under Task 11-04, FMCSA tasked the MCSAC with clarifying the
functionality of communications standards originally adopted in the
April 2010 rule, in appendix A to part 395--Electronic On-Board
Recorder Performance Specifications.\10\ The Agency asked the

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

    \10\ Motor Carrier Safety Advisory Committee (MCSAC) Task
Statement, Task 11-04, Electronic On-Board Recorders (EOBR)
communications protocols, security, interfaces, and display of
hours-of-service data during driver/vehicle inspections and safety
investigations. Retrieved December 7, 2014, from http://mcsac.fmcsa.dot.gov/documents/July2011/task_statement_11-04.pdf.
---------------------------------------------------------------------------

    The MCSAC created the EOBR Implementation Subcommittee, which met
numerous times in late 2011. The MCSAC also held public meetings on
August 30-31 and December 5-6, 2011, to discuss the subcommittee's
recommendations. In its notice announcing the subcommittee meetings (76
FR 62496, Oct. 7, 2011), FMCSA stated, ``[t]he Agency will consider the
MCSAC report in any future rulemaking to reestablish functional
specifications for EOBRs.''
    The MCSAC report was delivered to the Administrator on December 16,
2011.\11\ The report consisted of comments on, and recommended changes
to, the April 2010 rule and a discussion of issues the committee
believed FMCSA should consider while developing the rule. The
committee's recommendations focused on: Technical specifications,
including required data elements, location data, and device display
requirements; and implementation considerations, including grandfather
provisions, product certification procedures, and exceptions for early
adopters.
---------------------------------------------------------------------------

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

    Under Task 12-01, FMCSA tasked the MCSAC to present information the
Agency should consider as it develops ways to address potential
harassment of drivers related to the use of EOBRs. This report was
delivered to the Administrator on February 8, 2012.\12\ This report
addressed a number of issues concerning harassment, including the
definition of harassment, complaint procedures, civil penalties, and
the potential for harassment by law enforcement.
---------------------------------------------------------------------------

    \12\ MCSAC Task 12-01: Measures to Ensure Electronic On-Board
Recorders (EOBRs) Are Not Used to Harass Commercial Motor Vehicle
(CMV) Drivers, February 8, 2012. Retrieved January 8, 2015, from
http://mcsac.fmcsa.dot.gov/Reports.htm.
---------------------------------------------------------------------------

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

F. Table Summary

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

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

Electronic Logging Devices and       Supplemental notice of  79 FR 17656, Mar. 28,   Proposed minimum
 Hours of Service Supporting          proposed rulemaking;    2014.                   performance and design
 Documents.                           request for comments.                           standards for HOS ELDs,
                                     RIN 2126-AB20.........                           mandated their use by
                                     Docket No. FMCSA-2010-                           drivers currently required
                                      0167.                                           to keep RODS, proposed
                                                                                clarifying and specified
                                                                                HOS supporting document
                                                                                retention requirements;
                                                                                and included measures to
                                                                                address concerns about
                                                                                harassment resulting from
                                                                                the mandatory use of ELDs.
Electronic Logging Devices and       Evaluating the          79 FR 27040, May 12,    Announced the availability
 Hours of Service Supporting          Potential Safety        2014.                   of a new final report,
 Documents.                           Benefits of                                     ``Evaluating the Potential
                                      Electronic Hours-of-                            Safety Benefits of
                                      Service Recorders;                              Electronic Hours-of-
                                      Notice of                                       Service Recorders.'' The
                                      availability of                                 study quantitatively
                                      research report.                                evaluated whether trucks
                                     RIN 2126-AB20.........                           equipped with Electronic
                                     Docket No. FMCSA-2010-                           Hours-of-Service Recorders
                                      0167.                                           (EHSRs) have a lower (or
                                                                                higher) crash and hours-of-
                                                                                service (HOS) violation
                                                                                rate than those without
                                                                                EHSRs.
Coercion of Commercial Motor         NPRM..................  79 FR 27265, May 13,    FMCSA proposes regulations
 Vehicle Drivers; Prohibition.       RIN 2126-AB57.........   2014.                   that prohibit motor
                                     Docket No. FMCSA-2012-                           carriers, shippers,
                                      0377.                                           receivers, or
                                                                                transportation
                                                                                intermediaries from
                                                                                coercing drivers to
                                                                                operate CMVs in violation
                                                                                of certain provisions of
                                                                                the FMCSRs--including HOS
                                                                                limits and the Commercial
                                                                                Driver's License (CDL)
                                                                                regulations and associated
                                                                                drug and alcohol testing
                                                                                rules--or the Hazardous
                                                                                Materials Regulations. In
                                                                                addition, the NPRM would
                                                                                prohibit anyone who
                                                                                operates a CMV in
                                                                                interstate commerce from
                                                                                coercing a driver to
                                                                                violate the commercial
                                                                                regulations.
Electronic Logging Devices and       Supplemental notice of  79 FR 28471, May 16,    Extended the public comment
 Hours of Service Supporting          proposed rulemaking;    2014.                   period for the Agency's
 Documents.                           extension of comment                            March 28, 2014 SNPRM until
                                      period.                                         June 26, 2014.
                                     RIN 2126-AB20.........
                                     Docket No. FMCSA-2010-
                                      0167.
Agency Information Collection        Notice and Request for  79 FR 642848, Oct. 28,  Invited public comment on
 Activities; New Information          Comments.               2014.                   the approval of a new
 Collection Request: Electronic      No RIN................                           information collection
 Logging Device Vendor Registration. Docket No.: FMCSA-2014-                          request entitled,
                                      0377.                                           Electronic Logging Device
                                                                                Vendor Registration. This
                                                                                ICR will enable
                                                                                manufacturers of ELDs to
                                                                                register with FMCSA.
Electronic Logging Devices and       Notice of Availability  79 FR 67541, Nov. 13,   Announced the availability
 Hours of Service Supporting          of Research Report.     2014.                   of a new report:
 Documents; Research Report on       RIN 2126-AB20.........                           ``Attitudes of Truck
 Attitudes of Truck Drivers and      Docket No. FMCSA-2010-                           Drivers and Carriers on
 Carriers on the Use of Electronic    0167.                                           the Use of Electronic
 Logging Devices and Driver                                                           Logging Devices and Driver
 Harassment.                                                                          Harassment.'' This project
                                                                                surveyed drivers on their
                                                                                attitudes regarding
                                                                                carrier harassment and
                                                                                examined whether reported
                                                                                harassment experiences
                                                                                varied due to the hours-of
                                                                                service logging method
                                                                                used by the driver.
Agency Information Collection:       Notice and Request for  80 FR 18295, Apr. 3,    Announced the FMCSA plan to
 Activities; New Information          Comments.               2015.                   submit the Information
 Collection Request: Electronic      No RIN................                           Collection Request (ICR)
 Logging Device (ELD) Registration.  Docket No. FMCSA-2014-                           described below to the
                                      0377.                                           Office of Management and
                                                                                Budget for its review, and
                                                                                invited public comment on
                                                                                the approval of a new ICR
                                                                                entitled, Electronic
                                                                                Logging Device
                                                                                Registration to enable
                                                                                providers to register
                                                                                their ELDs with FMCSA.
Coercion of Commercial Motor         Final Rule............  80 FR 74695, Nov. 30,   Prohibits motor carriers,
 Vehicle Drivers; Prohibition.       RIN 2126-AB57.........   2015.                   shippers, receivers, or
                                     Docket No. FMCSA-2012-                           transportation
                                      0377.                                           intermediaries from
                                                                                coercing drivers to
                                                                                operate CMVs in violation
                                                                                of certain provisions of
                                                                                the FMCSRs. Prohibits
                                                                                anyone who operates a CMV
                                                                                in interstate commerce
                                                                                from coercing a driver to
                                                                                violate the commercial
                                                                                regulations.
----------------------------------------------------------------------------------------------------------------

V. Legal Basis for the Rulemaking

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

A. Motor Carrier Act of 1935

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August
9, 1935), as amended, (the 1935 Act) provides that, ``[t]he Secretary
of Transportation may prescribe requirements for--(1) qualifications
and maximum hours of service of employees of, and safety of operation
and equipment of, a motor carrier; and (2) qualifications and maximum
hours of service of employees of, and standards of equipment of, a
motor private carrier, when needed to promote safety of operation'' (49
U.S.C. 31502(b)). Among other things, by requiring the use of ELDs,
this rule requires the use of safety equipment that will increase
compliance with the HOS regulations and address the ``safety of
operation'' of motor carriers subject to this statute. This will result
through the automatic recording of driving time and a more accurate
record of a driver's work hours.

B. Motor Carrier Safety Act of 1984

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984) (the 1984 Act), as amended, provides
authority to the Secretary of Transportation (Secretary) to regulate
drivers, motor carriers, and vehicle equipment. It requires the
Secretary to prescribe minimum safety standards for CMVs to ensure
that--(1) CMVs are maintained, equipped, loaded, and operated safely;
(2) responsibilities imposed on CMV drivers do not impair their ability
to operate the vehicles safely; (3) drivers' physical condition is
adequate to operate the vehicles safely; (4) the operation of CMVs does
not have a deleterious effect on drivers' physical condition; and (5)
CMV drivers are not coerced by a motor carrier, shipper, receiver, or
transportation intermediary to operate a CMV in violation of
regulations promulgated under 49 U.S.C. 31136 or under chapter 51 or
chapter 313 of 49 U.S.C. (49 U.S.C. 31136(a)). The 1984 Act also grants
the Secretary broad power in carrying out motor carrier safety statutes
and regulations to ``prescribe recordkeeping and reporting
requirements'' and to ``perform other acts the Secretary considers
appropriate'' (49 U.S.C. 31133(a)(8) and (10)).
    The HOS regulations are designed to ensure that driving time--one
of the principal ``responsibilities imposed on the operators of
commercial motor vehicles''--does ``not impair their ability to operate
the vehicles safely'' (49 U.S.C. 31136(a)(2)). ELDs that are properly
designed, used, and maintained will enable drivers, motor carriers, and
authorized safety officials to more effectively and accurately track
on-duty driving hours, thus preventing both inadvertent and deliberate
HOS violations. Driver and motor carrier compliance with the HOS rules
helps ensure that drivers are provided time to obtain restorative rest
and thus that ``the physical condition of [CMV drivers] is adequate to
enable them to operate the vehicles safely'' (49 U.S.C. 31136(a)(3)).
Indeed, the Agency considered the rulemaking's impact on driver health
under 49 U.S.C. 31136(a)(3) and (a)(4), as discussed in the
Environmental Assessment, available in the docket for this rulemaking.
    By ensuring ELDs are tamper-resistant, this rulemaking will help
protect against coercion of drivers (49 U.S.C. 31136(a)(5)). The ELD
will decrease the likelihood that driving time, which will be captured
automatically by the device, could be concealed and that other duty
status information entered by the driver could be inappropriately
changed after it is entered. Thus, motor carriers will have limited
opportunity to force drivers to violate the HOS rules without leaving
an electronic trail that would point to the original and revised
records.
    This rule also prohibits motor carriers from coercing drivers to
falsely certify their ELD records (49 CFR 395.30(e)). FMCSA recently
adopted a rule that defines ``coerce'' or ``coercion'' and prohibits
the coercion of drivers (49 CFR 390.5 and 390.6, respectively) (80 FR
74695, November 30, 2015).
    Because the rule will increase compliance with the HOS regulations,
which are intended to prevent driver fatigue, it will have a positive
effect on the physical condition of drivers and help to ensure that
CMVs are operated safely (49 U.S.C. 31136(a)(1)). Other requirements in
49 U.S.C. 31136(a)(1) concerning safe motor vehicle maintenance,
equipment, and loading are not germane to this rule because ELDs and
the rulemaking's related provisions influence driver operational safety
rather than vehicular and mechanical safety.

C. Truck and Bus Safety and Regulatory Reform Act

    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act
(Pub. L. 100-690, 102 Stat. 4181, 4529, November 18, 1988) anticipated
the Secretary promulgating a regulation about the use of monitoring
devices on CMVs to increase compliance with HOS regulations. The
statute, as amended, required the Agency to ensure that such devices
were not used to ``harass a vehicle operator.'' This provision was
further amended by MAP-21, providing that regulations requiring the use
of ELDs, ensure that ELDs not be used to harass drivers. See the
discussion of MAP-21, below, and the discussion of comments related to
harassment in Section IX.

D. Hazardous Materials Transportation Authorization Act of 1994

    Section 113 of the Hazardous Materials Transportation Authorization
Act of 1994 (Pub. L. 103-311, 108 Stat. 1673, 16776-1677, August 26,
1994) (HMTAA) requires the Secretary to prescribe regulations to
improve compliance by CMV drivers and motor carriers with HOS
requirements and the efficiency of Federal and State authorized safety
officials reviewing such compliance. Specifically, the Act addresses
requirements for supporting documents. The cost of such regulations
must be reasonable to drivers and motor carriers. Section 113 of HMTAA
describes what elements must be covered in regulation, including a
requirement that the regulations specify the ``number, type, and
frequency of supporting documents that must be retained by the motor
carrier'' and a minimum retention period of at least 6 months.
    Section 113 also requires that regulations ``authorize, on a case-
by-case basis, self-compliance systems'' whereby a motor carrier or a
group of motor carriers could propose an alternative system that would
ensure compliance with the HOS regulations.
    The statute defines ``supporting document,'' in part, as ``any
document . . . generated or received by a motor carrier or commercial
motor vehicle driver in the normal course of business . . .'' This rule
does not require generation of new supporting documents outside the
normal course of the motor carrier's business. It addresses supporting
documents that a motor carrier needs to retain consistent with the
statutory requirements. The provisions addressing supporting documents
are also discussed in Section VIII of this preamble.

E. MAP-21

    Section 32301(b) of the Commercial Motor Vehicle Safety Enhancement
Act, enacted as part of MAP-21 (Pub. L. 112-141, 126 Stat. 405, 786-
788, July 6, 2012), mandated that the Secretary adopt regulations
requiring that CMVs involved in interstate commerce,

operated by drivers who are required to keep RODS, be equipped with
ELDs.\13\ The statute sets out provisions that the regulations must
address, including device performance and design standards and
certification requirements. In adopting regulations, the Agency must
consider how the need for supporting documents might be reduced, to the
extent data is captured on an ELD, without diminishing HOS enforcement.
---------------------------------------------------------------------------

    \13\ In the March 28, 2014 SNPRM, the term ``electronic logging
device (ELD)'' was substituted for the term ``electronic on-board
recorder (EOBR),'' which was used in the April 2010 final rule and
February 2011 NPRM, in order to be consistent with the term used in
MAP-21.
---------------------------------------------------------------------------

    The statute also addresses privacy protection and use of data.
Section 32301(b) of MAP-21 requires the regulations to ``ensur[e] that
an electronic logging device is not used to harass a vehicle
operator.'' Among other protections, the rule protects drivers from
being harassed by motor carriers that are using information available
through an ELD, resulting in a violation of Sec.  392.3 or part 395 of
49 CFR, and minimizes the likelihood of interruptions during a driver's
sleeper berth period. In doing so, this rule also furthers the
provisions of 49 U.S.C. 31136(a), protecting a driver's health.
    Finally, as noted above, MAP-21 amended the 1984 Act to add new 49
U.S.C. 31136(a)(5), requiring that FMCSA regulations address coercion
of drivers. Although there may be instances where claims of coercion
and harassment might overlap, in enacting MAP-21, Congress addressed
the issues separately and each regulatory violation has distinct
elements. A motor carrier can only be found to have committed
harassment if the driver commits a specified underlying violation based
on the carrier's actions and there is a nexus to the ELD. Adverse
action against the driver is not required because the driver complied
with the carrier's instructions. In contrast, coercion is much broader
in terms of entities covered and addresses the threat to withhold work
from or take adverse employment action against a driver in order to
induce the driver to violate a broader range of regulatory provisions
or to take adverse action to punish a driver for the driver's refusal
to operate a CMV is violation of the specified regulations.

VI. Discussion of Comments--Overview

    In today's rule, FMCSA responds to comments in public docket FMCSA-
2010-0167, which includes comments submitted in response to the
following Federal Register notices:
     February 1, 2011, NPRM
     April 13, 2011, Notice, request for additional public
comment concerning harassment associated with electronic recording of
HOS duty status
     March 28, 2014, SNPRM
     May 12, 2014, Notice of Availability concerning the
Agency's research report evaluating the potential safety benefits of
ELDs
     November 13, 2014, Notice of Availability concerning the
Agency's research report about harassment and its relationship to ELDs
    The docket also includes transcripts of comments received at two
public listening sessions held in Louisville, Kentucky on March 23,
2012, and Bellevue, Washington on April 26, 2012.\14\
---------------------------------------------------------------------------

    \14\ Transcripts of both sessions are available in the docket
for this rulemaking, and the Web casts are archived and available at
http://www.tvworldwide.com/events/dot/120323/ and http://www.tvworldwide.com/events/dot/120426/, respectively (last accessed
May 30, 2013).
---------------------------------------------------------------------------

    In the 2014 SNPRM, the Agency stated that the proposed regulatory
text should be read to replace that proposed in the 2011 NPRM. Some
issues in the NPRM were addressed at the SNPRM stage. FMCSA discusses
comments to the 2011 NPRM that remain relevant to this rulemaking in
the appropriate sections of this comment summary. However, the Agency
generally does not address comments to the 2011 NPRM that have been
rendered obsolete by changes in the Agency's proposal and events
subsequent to the 2011 NPRM, such as the enactment of MAP-21, or that
were also submitted to the SNPRM. Obsolete provisions are discussed in
Section IV, Overview, above. Similarly, we do not generally respond to
comments related to cost and benefit assumptions that the Agency relied
on in the NPRM because the SNPRM and this rule largely rely on
different data and methodologies.
    At the NPRM stage, FMCSA and the Department of Transportation (DOT)
participated in a pilot program intended to increase effective public
involvement in this rulemaking by using the Cornell eRulemaking
Initiative, called ``Regulation Room.'' Regulation Room is not an
official DOT Web site; therefore, a summary of discussions introduced
in Regulation Room was prepared collaboratively on the site and
submitted to DOT as a public comment to the docket. Regulation Room
commenters were informed that they could also submit individual
comments to the rulemaking docket.

A. Terminology in This Rulemaking

1. A Note on the Terms ``EOBR,'' ``EOBR Technology,'' and ``ELD'' as
Used by Commenters
    To the best of the Agency's knowledge, no devices or technologies
for HOS compliance in the marketplace to date comply fully with the
vacated Sec.  395.16 requirements. However, the characteristics of many
systems and devices probably came very close to meeting those
requirements, and may have been able to become fully compliant with
some relatively minor technological changes. Despite this, many
commenters referred to ``existing EOBRs,'' and referenced specific
makes and models of EOBR-like (ELD-like) devices and systems. FMCSA
does not refer to devices or systems discussed by commenters by brand
name in this rule. In these responses to comments, the Agency considers
the term ``EOBR'' or ``electronic on-board recorder'' to mean a device
or a technology that would cover both HOS data recording and storage
systems, but acknowledges that the devices commented upon might not
actually be compliant with the technical specifications of today's
rule.
    MAP-21 defines ``electronic logging device'' or ``ELD'' as a device
that ``is capable of recording a driver's hours of service and duty
status accurately and automatically; and meets the requirements
established by the Secretary through regulation.'' 49 U.S.C.
31137(f)(1). The Agency previously used the term ``electronic on-board
recorder'' to refer to this category of HOS recording device and its
support system. However, to achieve consistency with MAP-21, the Agency
now refers to devices that meet today's final rule's technical
specifications as ``ELDs.'' FMCSA may retain the use of the term
``EOBR,'' as appropriate, in the context of comments.
    Technically there are only ``ELD-like'' devices in use today, as an
ELD did not exist in regulation before today's rule. The Agency assumes
that many ELD-like devices could be made compliant with the ELD rule at
relatively low-cost, but existing devices would likely need some
modification.
2. Fleet Management Systems
    An FMS may include the functions of an ELD, but typically provides
communication capabilities that go beyond the defined requirements of
today's rule. Commenters often use the term ``ELD'' to refer to what
appears to be an FMS. FMCSA may retain the language of the comments,
despite the fact that the technologies described exceed the minimum
specifications and

definition to be considered an ELD. Today's rule prescribes technical
specifications required for a minimally compliant ELD; however, it also
addresses communication features available as part of FMS as part of
its effort to prevent harassment. Today's rule does not prohibit
certain enhanced capabilities that some ELD providers may choose to
create, and some motor carriers may elect to employ, consistent with 49
CFR 390.17.
3. ELD Records
    In today's rule, FMCSA uses the term ``ELD records'' reflecting the
move from paper logs to electronic records recorded on an ELD. The term
``ELD records'' includes all the data elements that must be recorded by
an ELD under the technical specifications in the Appendix to subpart B
of part 395. The term does not include information that an ELD is not
required to record such as supporting documents, including
communication records recorded through an FMS. The term is used to
describe a type of RODS that are recorded on an ELD and that must be
retained by a motor carrier. A definition of ``ELD record'' is added to
49 CFR 395.2 for clarity.

B. An Overview of Comments

1. Comments to the 2011 NPRM
    The Agency received 385 unique and germane comments to the NPRM.
The Agency received 66 docket submissions that were generally in favor
of the 2011 proposal to expand the use of EOBRs; commenters included
industry and safety advocacy groups, as well as individuals, motor
carriers, and government entities. The six safety advocacy groups that
generally supported the 2011 NPRM included Road Safe America; the
Insurance Institute for Highway Safety; the Alliance for Driver Safety
and Security; and, in a joint filing, the Truck Safety Coalition,
Parents Against Tired Truckers, and the Citizens for Reliable and Safe
Highways. The National Transportation Safety Board (NTSB) and the
Commercial Vehicle Safety Alliance (CVSA) wrote supportive comments, as
did the Truckload Carriers Association, the Arkansas Trucking
Association, and the American Trucking Associations (ATA). Several
individuals and drivers, motor carriers, and owner-operators also
supported the rule.
    FMCSA received 232 separate comments to the docket that were
generally opposed to the proposed rule, particularly concerning the
expansion of the EOBR usage requirements. Some commenters responded
several times. The Agency heard from drivers or other individuals,
including owner-operators, and motor carriers. Six associations also
opposed all or certain elements of the proposed rule: OOIDA; the
Agricultural Retailers Association; the Joint Poultry Industry Safety
and Health Council; and, in a joint filing, the Air and Expedited Motor
Carriers Association, National Association of Small Trucking Companies,
and The Expedite Association of North America.
    Reasons cited by commenters who opposed the proposed rule included
the following:
     The proposal would not improve compliance with the HOS
rules
     The proposal would not improve highway safety
     The proposal would impose excessive costs, particularly on
small businesses
     The proposed mandated use of EOBRs would be an invasion of
privacy
     The proposal did not adequately address protection of
drivers from harassment
Comments During Listening Sessions
    FMCSA sought public involvement in the rulemaking through two
public listening sessions. These sessions occurred at the Mid-America
Truck Show in Louisville, Kentucky, on March 23, 2012, and at the CVSA
Conference in Bellevue, Washington, on April 26, 2012. The listening
sessions were held after the EOBR 1 rule was vacated and after the 2011
NPRM was published. Comments received at these public sessions focused
primarily on the topic of harassment.
    During the course of these two public listening sessions, FMCSA
heard from both commenters present and those participating through the
Internet, who offered varied opinions on the implementation and use of
EOBRs. Commenters at the listening session in Louisville, Kentucky,
included OOIDA officials, drivers, representatives of motor carriers,
and owner-operators. The second public listening session in Bellevue,
Washington, specifically sought the input of FMCSA's Motor Carrier
Safety Assistance Program (MCSAP) agencies because of their role in
enforcing the HOS rules and familiarity with EOBR devices and other
technical issues. Participants in the Bellevue public listening session
included drivers, representatives of transportation-related businesses,
representatives of motor carrier industry organizations, authorized
safety officials, and Agency representatives.
    In addition to the transcripts of the sessions, which are available
in the docket to this rulemaking, Web casts are archived at: http://www.tvworldwide.com/events/dot/120323/ and http://www.tvworldwide.com/events/dot/120426/, respectively. The comments made at these listening
sessions are incorporated into the comments addressed here.
2. Comments to the 2014 SNPRM
    FMCSA received 1,750 unique and germane comments to the SNPRM.
Comments Generally in Support of the SNPRM
    More than 200 commenters expressed general support for the SNPRM.
In addition, the Agency received a submission from the Karth family
providing a copy of ``The AnnaLeah & Mary Karth Petition: STAND UP FOR
TRUCK SAFETY,'' which had 11,389 electronic signatures as of May 27,
2014, when it was submitted to the docket. Some of the commenters who
expressed general support had additional comments or reservations that
FMCSA discusses in the relevant sections elsewhere in this comment
summary. A number of motor carriers, providers of FMSs and related
technologies, trade associations, and labor unions stated their general
support for the goals of the rulemaking. Safety advocacy organizations
generally supported a requirement for ELDs. The Truck Safety Coalition,
Parents Against Tired Truckers, and Citizens for Reliable and Safe
Highways, responding together, noted some concerns, but indicated their
organizations and the safety community support the rulemaking.
    The California Highway Patrol (CHP) supported FMCSA's efforts to
document driver HOS and duty status via ELDs. The NTSB supported
expanding the number of motor carriers and drivers required to use ELDs
and indicated that it is vitally important that FMCSA expeditiously
issue a final rule to increase compliance with HOS regulations and
prevent future crashes, injuries, and deaths.
    Individual commenters wrote that they supported ELDs because they
make keeping logs easier, there is less paperwork, and logs are
orderly, clear, and accurate. Some commenters wrote that ELDs make both
drivers and motor carriers operate legally and hold both accountable
for compliance. Commenters also noted that ELDs will speed up roadside
inspections and simplify enforcement.
Comments Generally Opposed to the SNPRM
    FMCSA received 1,357 comments that expressed general opposition to
the

SNPRM. FMCSA describes many of these comments in more detail in other
parts of the response to comments, but the most commonly cited reasons
are discussed below.
    Unless laws are written to protect drivers and carriers,
Freightlines of America, Inc. commented that brokers, shippers,
receivers, corporations, and customers will use ELDs and the HOS rules
to deduct pay or not pay at all for a load, jeopardizing safety and
lives. The U.S. Poultry & Egg Association, National Chicken Council,
and National Turkey Federation, responding together, did not believe
that motor carriers that successfully monitor HOS with paper logs
should be required to incur the expense of electronic recorders. The
National Propane Gas Association (NPGA), Klapec Trucking Company
(Klapec), and the Pennsylvania Propane Gas Association believed
installation of ELDs should be on a voluntary basis only. The
California Construction Trucking Association believed that motor
carrier management and owner-operators should be free to choose how to
implement safety management practices suited to their particular
operations.
    Numerous commenters objected to the rule, indicating that the
government is overreaching, that there is too much regulation, and that
the ELD impinges on privacy and freedom. Some believed that FMCSA would
require ELDs for reasons that have nothing to do with safety, for
example, to make money from carriers and drivers. OOIDA believed that
the use of ELDs would have wide-ranging and negative implications for
the health, privacy, safety, and economic interests of all U.S.-
domiciled truck drivers and motor carriers.
    Many commenters wrote that ELDs would be a financial burden,
particularly for small motor carriers, and would drive small carriers
out of business. The Agricultural Retailers Association and NPGA
believed an ELD mandate is an unnecessary expense--with little to no
safety benefits. Some wrote that ELDs would cause prices to rise and
slow the economy. Some commenters objected to the costs of the ELD
being the responsibility of the driver or motor carrier; some suggested
that FMCSA should pay for ELDs. Commenters wrote that they would have
to keep paper logs as well, in case the ELD failed.
    Commenters also stated that ELDs would benefit only large carriers,
or provide more benefits for large carriers than small carriers. These
commenters believed big corporations would get discounts on ELDs.
Commenters believed that ELDs would give big carriers economic
advantages, and some accused FMCSA of requiring ELDs in order to
eliminate small carriers. Many commenters wrote that one of the costs
of ELDs would be a driver shortage, and many wrote that they would
leave the driving industry if ELDs were required.
    Many commenters wrote that the ELD would not improve safety,
security, or compliance. Commenters complained that carriers with ELDs
have a disproportionate number of crashes and high Safety Management
System scores--more than carriers without ELDs. They provided examples
of the Safety Management System scores of a number of major carriers
(Schneider, National, J. B. Hunt, Swift, U.S. Xpress, Knight).
Commenters believed that a June 2014 CMV crash involving a Walmart
truck on the New Jersey Turnpike was equipped with an AOBRD. They
argued that the incident is proof that ELDs do not prevent crashes.
Commenters said that the ELD does not enhance compliance--ELDs can only
prove driving time, not ODND, off duty, or sleeper berth time--and each
duty status can be falsely entered. One commenter wrote that the Agency
would have no additional manpower to enforce the ELD rules. Many
commenters reported that authorized safety officials often fail to
inspect trucks with AOBRDs.
    Many commenters opposed ELDs because they would enforce the
existing HOS rules and eliminate existing ``flexibility.'' They
believed that ELDs would contribute to stress, bad diet, and ill health
when used to enforce the 14-hour rule. They alleged that trucks with
ELDs speed through construction zones, parking lots, and fueling
stations. Commenters also believed that the use of ELDs would result in
congested traffic and a scarcity of truck parking locations by forcing
strict compliance with the HOS rules.
    Commenters stated that the ELD would contribute to driver
harassment because ELDs enable motor carriers to push drivers to their
driving and on-duty time limits.
    Many commenters wrote that training--not ELDs--will provide safety,
and FMCSA should pursue long overdue driver training programs.
Commenters maintained that big carriers need ELDs because they hire
undertrained drivers.
More Data Needs To Be Collected and Analyzed
    The George Washington University Regulatory Studies Center pointed
out that FMCSA conducts regular roadside inspections that should
produce data by which the Agency can measure compliance with HOS limits
and associated safety benefits. While some links cannot be directly
measured (e.g., whether compliance with HOS regulations will actually
reduce driver fatigue), the extent to which the predicted safety
benefits of the ELD mandate are accurate should be measurable with data
from roadside inspections and accident reports. George Washington
University recommended that FMCSA explicitly commit to measuring the
actual results of the regulation on an annual basis.
    An individual commenter stated that independent research not
related to the government will provide detailed information about, and
answers to, the e-log problem. The commenter pointed to crashes
involving all companies, large and small, and stated that the Agency
did not completely research all factors in detail.
3. FMCSA Response
    FMCSA describes and responds to many of these comments in more
detail in other parts of the response to comments. However, FMCSA
agrees with commenters who believe ELDs will help to reduce fatigue and
fatigue-related crashes.
    The use of ELDs will make it easier for drivers to accurately
capture their duty status and make it more difficult for individuals
who currently do not routinely achieve high levels of compliance with
the HOS rules to produce inaccurate records. The ELD will provide
increased transparency and a record that is created automatically of
some data elements, as well as a record of any human authorship and
editing. While commenters pointed out that there can still be
falsification of time spent ODND, FMCSA believes that the opportunities
for such fraud are drastically reduced when vehicles are equipped with
ELDs. Automatic recording of all times when the CMV is moving and
regular recording of geolocation data and other data elements will help
both employers and authorized safety officials with HOS oversight, as
those elements cannot be easily manipulated. FMCSA believes that ELD
use will lead to increased compliance and beneficial behavior changes
in commercial driving.
    FMCSA notes that preventing fatigued operation of CMVs is a complex
challenge and achieving increased compliance with the HOS rules is only
one component of the problem. This rule addresses the role of HOS non-
compliance while the Agency's work with government and industry leaders
in launching the North American Fatigue Management Program (http://

www.nafmp.com/en/) is intended to address other components related to
overall work-rest schedules, and balancing family and work life in a
manner that enables the driver to rest during off-duty periods.
    With regard to comments about flexibility, today's final rule
concerns ELDs and supporting documents and does not involve any changes
to the underlying HOS requirements or the various duty status options
available under the HOS rules. Therefore, the use of ELDs does not
preclude any of the flexibility provided under the HOS rules, such as
the use of the CMV for personal conveyance.
    And in response to the comments from George Washington University,
FMCSA will conduct a regulatory effectiveness study at an appropriate
time following the compliance date. The Agency will then be in a
position to compare HOS violation rates in the years prior to the ELD
mandate and during the years that follow implementation of the ELD
mandate.
    FMCSA addresses the relationship of ELDs and crashes in the
discussion of its research. FMCSA discusses the benefits of ELD use
elsewhere in this preamble.

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

A. Scope

1. Comments to the 2011 NPRM
    The April 2010 rule mandated the use of EOBRs for motor carriers
that demonstrated a history of severe noncompliance with the HOS
regulations. Although many commenters, including the NTSB, had concerns
that this limited mandate would not adequately address safety issues,
the Agency could not include in the 2010 rule requirements that
extended beyond the scope of the January 18, 2007 NPRM (72 FR 2340). At
that time, the Agency estimated that the remedial directive aspect of
2010 rule would have been applicable to about 2,800 motor carriers in
the first year and 5,700 motor carriers each year thereafter.
    In the February 2011 NPRM, FMCSA proposed mandatory installation