configurations and waypoint time intervals (that is, time intervals
during the trips) of 10, 30, 60, and 120 seconds. The vehicles'
odometers were calibrated on a certified course and the GPS-derived
measurements were compared to those corrected odometer readings. The
accuracy for vehicle driving distance measurements made within this
study ranged from 1.9 percent to 10.6 percent less than actual baseline
driving distance. In light of this significant level of inaccuracy,
FMCSA concluded that the integral synchronization requirement should
remain.
6.6 Accuracy and Frequency of Data Recorded by EOBRs
6.6.1 Rounding
    ATA and Werner stated the rule should not place a motor carrier
that elects to use EOBRs at a disadvantage over those that do not. One
specific issue was that of ``rounding'' information recorded on paper
RODS to the nearest 15 minutes. ATA offered an example of a driver
beginning to drive at 6:55 a.m. after a 10-hour off-duty period. If the
driver used a paper RODS the time would be entered as ``7:00 a.m.,''
and the driver would be in compliance with the HOS regulations.
However, if ``6:55 a.m.'' appeared on the RODS the driver would be in
violation.
    Response: In the situation these commenters describe, there is an
inherent advantage for the use of handwritten RODS. The 15-minute grid
on the RODS allows for flexibility in estimating start and stop times
(i.e., changes in duty status). Question 1 of the Regulatory Guidance
for Sec.  395.8 [available through http://www.fmcsa.dot.gov] states
that short periods of time (less than 15 minutes) are to be noted in
the Remarks section of the RODS. By contrast, a driver using an EOBR
(or an AOBRD) could be cited for any time period over or under the
prescribed requirements. However, FMCSA believes such small differences
are not likely under most circumstances to warrant enforcement action,
particularly when they are few and isolated.
6.6.2 Location Information, General
    Two commenters addressed the precision of location information.
KonaWare recommended a location precision only to the level of the
nearest city, with latitude-longitude data included in the detailed
record to complement it. Qualcomm questioned the meaning of the phrase,
``correspond to Census Bureau 2000 Gazetteer County Subdivision data,''
and whether that referenced source is the most current.
    FedEx stated the Census Bureau 2000 Gazetteer ``County
Subdivision'' data did not correspond to actual city names that would
make sense to a person viewing the location. FedEx held the
requirements in Sec.  395.15(d)(1) give a person enough information to
determine the location of status changes (i.e., city, town, or village,
with State abbreviation).
    Response: FMCSA proposed to include latitude and longitude in the
Data Elements Dictionary. The Agency proposed ``nearest populated
place'' per Federal Information Processing Standard Publication 55
(FIPS 55) because ``city'' has a specific meaning under some States'
laws: in some jurisdictions, there are many populated places in FIPS 55
that are not ``cities.'' In response to Qualcomm's question, the County
Subdivision information is contained in FIPS 55. The FIPS 55 data set
has been integrated into the U.S. Geological Survey's Geographic Names
Information System (GNIS), and all references to that source in the
final rule will reflect this change.
6.6.3 Frequency of Recording Location Information (Sec.  395.16(f))
    Many commenters believed the proposed 1 minute update interval was
excessive and unwarranted. PeopleNet, XATA, Boyle Transportation,
FedEx, and several others were concerned the size of the resulting
dataset would lead to significantly higher onboard data storage and
data transfer costs. Qualcomm, ATA, and others indicated such a
frequent recording interval should not be required when the CMV's
motion and mileage are determined through a synchronized, tamper-
resistant interface with vehicle sensors.
    The TMC TPA stated minute-by-minute location history should be
required only for purposes of auditing GPS-based mileage accuracy of a
non-synchronized EOBR. Also, XATA contended that the requirement for
location recording frequency should take into consideration whether or
not EOBR synchronization would be required.
    ITEC recommended a recording interval of no less than every 5
minutes, citing reduced onboard storage, as well as data transmission
and costs, both from CMV office and CMV roadside inspector's computers.
PeopleNet suggested a 5- or 15-minute interval might be sufficient so
long as accurate mileage information were recorded from the CMV's
electronic control module (ECM). FedEx recommended a 75-minute interval
for sending data to the host (back office) and a 15-minute location
record. CVSA supported the 1-minute interval and plus or minus 1
percent accuracy. DriverTech also supported the 1-minute interval.
    Some commenters, including ATA, Tripmaster, and J.B. Hunt,
recommended FMCSA retain the current requirement to record the CMV
location only at each change of duty status. Werner cited its practice
of receiving hourly updates of CMV position.
    Response: FMCSA acknowledges the commenters' concerns about the
proposed 1-minute recording interval. The final rule requires location
and time to be recorded at an interval of no greater than 60 minutes
while the vehicle is in motion. The reason for selecting an appropriate
location-recording interval is to ensure travel distance and the
associated driving time are recorded and reported at a level of
accuracy appropriate to ensure HOS compliance. Based on the information
provided by commenters and the Agency's decision to continue to require
that on-board recorders be integrally synchronized, the Agency believes
the new requirement achieves an appropriate balance between accuracy
and affordability.
    As discussed in the NPRM and in the preamble of this final rule,
the Agency expects the addition of the requirement to automatically
record location information will significantly improve the accuracy of
driving time information.
6.6.4 Clock Drift
    Qualcomm recommended several revisions to the proposed
requirements, including a requirement for the clock drift tolerance for
systems with or without mobile communications to not exceed 3 minutes
at any time. These systems should be calibrated at least every 3
months. For systems without mobile communications, vehicle system
clocks should be calibrated at least 3 times per year against an
external trusted source. Motor carriers should maintain records of all
clock recalibrations, including the degree of adjustment.
    ATA stated the clock accuracy requirement should be realistic and
the regulation needs to address how clock accuracy is managed. ATA
cited the TMC TPA and its discussion of the Technology and Maintenance
Council's Recommended Practice 1219(T) (TMC

RP 1219(T)). TMC RP 1219(T) recommends that clock drift be checked
periodically. EOBRs with mobile communications and/or GPS may
recalibrate, or use calibrated network or GPS time, on a continuous
basis. Clock resets and recalibration adjustments should be made only
by a trained technician. Adjustments that exceed the allowable
threshold should be entered into the EOBR's maintenance record.
    Werner asserted a requirement for clock accuracy would provide no
significant benefit to the system. Werner cited questions raised in the
TMC TPA, particularly the proposed 2 second per day time drift. Siemens
stated the clock requirement is achievable, but will require a periodic
synchronization with a trusted time reference. Tripmaster recommended
FMCSA consider a requirement for clock time drift of less than 1 minute
per month and that it be checked every 3 months.
    The TMC TPA also provided specific recommendations for
recalibration of EOBR clocks: (1) Clock drift should not exceed 1
minute with calibration required at least every 3 months; (2) clocks
determined to drift more than an average of 1 minute per month must be
repaired or replaced; (3) EOBRs with mobile communications and/or GPS
should recalibrate or use calibrated network or GPS time on a
continuous basis; (4) clock resets and recalibration adjustments
(exceeding the allowable threshold) should be maintained with carrier
records and should be made only by a trained technician.
    Response: Section 395.16(e)(2) of the proposed rule addressed date
and time information that could not be altered by a motor carrier or a
driver. FMCSA is not specifying a maximum daily time drift in the final
rule. However, Sec.  395.16(e)(4) provides that the time deviation must
not exceed 10 minutes from Coordinated Universal Time (UTC) at any
time.
6.6.5 Distance-Traveled Accuracy (Sec.  395.16(g))
    Several commenters expressed concern with the NPRM's proposal for
accuracy of CMV distance travel: non-synchronized EOBRs, which obtain
distance-traveled information from a source external to the CMV, must
be accurate within 1 percent of actual distance traveled over a 24-hour
period. Most comments centered on the difference between the proposed
requirement in the NPRM for EOBRs and industry consensus standards for
odometers. Qualcomm, ITEC, Xora, Tripmaster, and Siemens expressed
concern that the NPRM's provisions did not align with the state-of-the-
practice. They cited SAE J1226, ``Surface Vehicle Recommended Practice:
Electronic Speedometer Specification--On Road.'' Section 5.1 of that
document, Overall Design Variation, states the overall odometer
accuracy ``shall be within minus 4 percent to plus 4 percent for each
actual unit of distance of travel over the operating range of the
instrument. The design limits should not, however, be construed as
absolute under all operating conditions.'' Thus, according to Qualcomm,
the best-case scenario for a non-synchronized EOBR would be a plus or
minus 5 percent error in the mileage calculation. In short, for systems
capturing mileage from the vehicle ECM odometer, Qualcomm recommended
the odometer should be maintained consistent with the vehicle
manufacturer's specification for odometer recalibration.
    Qualcomm and other commenters recommended FMCSA reference SAE J1708
(``Serial Data Communications Between Microcomputer Systems in Heavy-
Duty Vehicle Applications'') for communications with the vehicle data
bus. Qualcomm also stated the requirements of Sec.  395.16 should
address conditions where location history data are incomplete due to
limitations in obtaining satellite fixes and should specify when a
driver should record HOS information in a paper RODS. ATA and Werner
offered similar concerns. ATA stated odometer accuracy is outside the
control of the EOBR supplier and excessive calibration requirements
would be operationally problematic and costly.
    ITEC and several other commenters noted, although recording to
within 1 percent of the odometer is reasonable, the overall accuracy
for distance data should be 5 percent because an absolute accuracy of
plus or minus 1 percent of the actual distance may not always be
achievable. A key reason is that the rolling radius of the vehicle's
drive axle tires changes with ambient temperature, inflation pressure,
load, and tire wear, and these changes can exceed 1 percent. An
odometer is calibrated using the tire manufacturer's recommended
revolutions per mile, and the vehicle owner must maintain this rolling
radius when the vehicle's tires change from replacement, recapping, or
regrooving.
    Response: In Sec.  395.16(g)(3), the Agency requires the distance-
traveled information recorded by the EOBR should not be less accurate
than the information obtained from the CMV's odometer.
    Because FMCSA will allow only integrally synchronized EOBRs, the
proposed rule text concerning distance-traveled information from a
source external to the CMV, is not included in the final rule.
    Responding to the request to formally reference SAE J1708, we do
not believe this is necessary because it is one of several engineering
consensus standards that address on-vehicle communications networks
that can provide engine use status. The Agency does not wish to
preclude the use of other standards, existing or in development.
    Concerning commenters' references to SAE J1226, FMCSA notes that
this Recommended Practice also refers users to SAE J862, ``Factors
Affecting Accuracy of Mechanically Driven Automotive Speedometer-
Odometers.'' Among other things, this document describes nine factors
that can affect odometer readings, four of which relate to tires.
6.7 Review and Amendment of Records by Drivers (Sec.  395.16(h))
6.7.1 Driver Amendments of EOBR RODS.
    Qualcomm recommended the regulations be more flexible to allow
driver annotations of the records, to the same degree it is possible
with paper RODS, to include annotating yard moves to reposition CMVs,
as well as noting driving time in stop-and-go traffic. Qualcomm also
asserted that driving status information automatically generated should
not be subject to alteration, but a driver should be able to ``claim''
driving time if he or she neglected to log-on. Qualcomm recommended
drivers should also be allowed to review and accept or reject any
administrative amendments, and administrative staff be required to
reconcile and assign all driving (vehicle movement) periods with
drivers. Both drivers and administrative personnel should be able to
annotate and reconcile manual data entries such as tractor and trailer
numbers.
    Werner sought clarification of the term ``annotation,'' arguing the
driver should be able to amend non-driving status periods at any time
and should be able to request authorized administrative personnel to
amend driving time entries, but disagreed that correction of
typographical errors should generate an audit trail. The system should
keep a digital record or other evidence showing any amendments made
after the driving records were approved by the driver and identifying
the amendments by time, date, personnel involved, and the reason for
the amendment. Werner objected to limiting the driver to making
corrections to the RODS only before the first driving period of the day
or following the last

period of the day, because it would place an unnecessary burden on the
driver and force a driver who has made an error to drive the rest of
the day with incorrect records. According to Werner, driver acceptance
of the technology is critical to its use in the industry, and every
reasonable effort should be made to keep the systems forgiving and
driver friendly. DriverTech stated allowances need to be made for
legitimate truck moves.
    DriverTech stated there needs to be a reasonableness factor to
correct honest mistakes and suggested a limit of one duty status
correction per 24 hours. The TMC TPA stated that the data capture and
data integrity requirements proposed in the NPRM needed better
definition and improved usability. For example, they recommended that
for the most common cases, the driver and administrative records
amendment process needs to be more thoroughly defined and practical to
ensure drivers submit complete and accurate electronic logs. The
process of making and reviewing amendments made by administrative
personnel needs to address more specific situations. TMC RP 1219(T)),
currently under development by the ATA Technology and Maintenance
Council S. 12 Onboard Vehicle Electronics Study Group, outlines a
recommended process that it believes better ensures data accuracy and
accountability. Automated recording of duty status changes and
effective recording of overrides need more specificity to address yard
moves and stopped-in-traffic scenarios. RP 1219(T) recommended
amendments be limited to eight specific items.
    Response: In Sec.  395.16(h)(3), FMCSA selected the term
``annotate'' rather than ``amend.'' Annotating a record implies adding
information, generally for the purpose of clarifying it. Amending a
record implies changing it. An EOBR must automatically record driving
time (Sec.  395.16(d)(1)) so there should be no need for a driver to
request designated administrative personnel to amend a driving record.
Section 395.16(h)(3) has been revised to include use of a CMV as a
personal conveyance. It requires the driver to annotate the
corresponding driving time entry to reflect such use.
    As discussed earlier, Sec.  395.16(d)(1) requires the EOBR to
automatically record driving time. Altering driving time records is
prohibited. However, remarks may be added to annotate the record.
Section 395.16(h)(3) has been revised to address this.
6.7.2 Other Comments on Driver Interaction With EOBRs
    Several commenters offered recommendations about driver interaction
with EOBRs. Several commenters offered recommendations about driver
interaction with EOBRs. For example, when team drivers use a CMV
equipped with an EOBR, they suggested the non-driving team member be
allowed to make entries in the EOBR while the CMV is moving. Others
suggested a method for the driver to override pre-programmed duty
status change thresholds (such as between driving and on duty). Still
others recommended FMCSA consider adding distance and time thresholds
for ``yard moves'' and for ``non-allocated driving time.''
    Werner stated there had been little consideration or analysis of
driver acceptance. The ideal system should take into account the need
for driver training and the differing levels of technical
sophistication.
    Response: This rule does not alter the treatment of the duty status
of team drivers. The final rule allows annotations of the EOBR's
electronic RODS. Whether an annotation is characterized as an
``override'' or by another term, the annotation must add information to
the HOS record--it must not overwrite or delete information. Because of
the enormous variations in motor carriers' individual policies and
practices, FMCSA does not believe it would be appropriate to establish
a single uniform threshold for non-allocated driving time.
    Today's rule, like the 1988 AOBRD rule, is performance-based and
anticipates developers of EOBRs will work with their motor carrier
clients to ensure the devices are appropriately designed and
configured. Motor carriers must ensure drivers are trained to use the
new EOBRs properly.
6.8 Safety Officials' Access to HOS Information
6.8.1 EOBR Must Be Capable of Producing Duty Status Records for the
Current Day and the Previous 7 Days (Sec.  395.16(k))
    Werner asked if an EOBR needed to retain 7 days of RODS in the
device itself, or if the information could be stored on a server.
Werner also asked for clarification on provisions for safeguarding and
retention of transferred data to portable computers used by roadside
inspection officials.
    Response: RODS data need not be stored on the EOBR. Section
395.16(k)(1) allows use of ``information stored in and retrievable from
the EOBR or motor carrier support system records.'' As is the case in
the current AOBRD rule, Sec.  395.15(b)(4), HOS data must consist of
information ``stored in and retrievable from'' the device. As for
enforcement officials' duties regarding safeguarding and retention of
information is concerned, the HOS information they obtain from (or via)
EOBRs must be handled and safeguarded in the same way as other records
obtained during the conduct of enforcement activities. (See preamble
section IV. Discussion of Comments to the NPRM; 5. Privacy, Agency
response.)
6.8.2 EOBR Must Be Able To Produce, Upon Demand, a Driver's HOS Chart
Using a Graph-Grid Format in Either Electronic or Printed Form (Sec.
395.16(i) and (n))
    CVSA supported the use of a graph-grid format. However, numerous
commenters, including Qualcomm, Tripmaster, the TMC TPA, Werner, and
ATA questioned the need for the EOBR device itself to produce the
graph-grid format.
    Qualcomm, Tripmaster, and ATA believed the display requirements
should be limited to specific information (such as driver information
and the sequence of changes of duty status) in the vehicle, and other
data should be made available by electronic data transfer or reports
from a motor carrier's office system. Werner, XATA, and the TMC TPA
suggested, other than placing HOS information in a familiar format,
there is no real reason for an EOBR to display data in a graph-grid
format they believe computers used by roadside safety personnel should
be able to handle this task. The Maryland SHA offered a similar
comment. Conversely, ITEC stated it did not believe the data format
provided in Appendix A, Table 1, could be used to produce a graph-grid.
    Qualcomm and ATA noted many legacy systems and devices could
potentially meet proposed EOBR requirements, save two: the proposed
display requirements and the viewable-outside-the-cab requirement. The
latter is a concern because many new devices are dashboard-mounted.
Because the format specification does not address requirements for
display size, character resolution, scrolling, and navigation, they
question how usable the display would be.
    A motor carrier questioned whether EOBRs could produce the required
HOS information, and another contended FMCSA did not offer a
standardized method for retrieving EOBR recorded data because not all
agencies will have

the proper equipment to access a driver's logs.
    A few commenters offered alternatives, such as using an integrated
printer with the EOBR rather than a mobile display. One asked how an
alternative display format would be approved.
    The Maryland SHA stated the requirement that the data be displayed
in ``either electronic or printed form'' presents problems. If the EOBR
provides the HOS information in electronic format only, the officer
will have no substantive evidence or paper copy for court purposes,
which will hamper adjudication processes. Maryland SHA urged FMCSA to
assess how these changes will impact roadside enforcement activities,
as not all enforcement officers have laptop computers from which to
receive or review HOS data retrieved from an EOBR.
    Response: The provision at Sec.  395.16(i)(2) would allow
electronic transmission of an EOBR-generated RODS for display on
another device, such as a PDA or portable computer used by a safety
official at a roadside inspection. FMCSA amends paragraph (i)(2) and
subsection (n) to clarify the requirement for the EOBR to enable RODS
data to be transferred to an enforcement official's PDA or portable
computer. The Agency also revises the rule text to remove the proposed
design requirement to display the graph-grid on the EOBR device.
    The Agency also clarifies that data transfer methods discussed in
the NPRM and adopted in this final rule are meant to facilitate a one-
way transfer of data from the EOBR to the enforcement official's
computer and not the reverse. Several commenters appeared to interpret
this provision as a requirement for EOBRs to be able to interact with
each other, and for any EOBRs to be able to interact with any office
support systems. FMCSA leaves the decisions on whether to provide this
level of interoperability to EOBR system providers. Rather, the
proposed specifications were developed based on the assumption the
Agency would provide the software capable of: (1) Initiating the data
transfer, (2) transforming the EOBR-generated standard flat file into
the desired graphical output on enforcement officials' electronic
equipment (i.e., computer, PDA, etc.), and (3) determining whether the
RODS information was in compliance with 49 CFR part 395.
    EOBR system suppliers and motor carriers would not need to
determine how to achieve interoperability with enforcement officials'
various types of equipment and software. Under the Motor Carrier Safety
Assistance Program (MCSAP), enforcement officials operate FMCSA-
approved hardware with inspection software compatible with FMCSA
systems to conduct roadside inspections. The proposed data format and
transmission protocols have been tested to work with enforcement
officials' tools. This was the rationale for proposing the EOBR make
data available in a flat file format, the simplest of formats (as
opposed to requiring a specific hierarchical or relational database
form), and for setting forth specific communications protocols.
    The same would apply to information generated by the motor
carrier's office systems. The safety investigator uses FMCSA-approved
equipment and FMCSA-issued software to conduct the compliance review at
the motor carrier's place of business. Systems capable of producing the
flat file delineated in Appendix A to part 395, Table 2, would be fully
compatible with the compliance review software, and they would meet
Agency requirements under the new Sec.  395.16(i).
    Responding to the SHA, FMCSA will require EOBRs display the
driver's duty status sequence, as is currently required for AOBRDs. The
Agency will also require drivers' HOS records be made available in
digital form to inspection officials.
6.8.3 EOBR Must Be Able To Produce Upon Demand a Digital File of the
Driver's HOS (Sec.  395.16(i)(2))
    The TMC TPA stated security of digital EOBR data needs to be
considered, citing security threats external to the EOBR in the data
transfer process. Xora supported an EOBR that could obtain HOS
information from a centralized server, and one that could be physically
handed to roadside inspection officials. Werner asked FMCSA to define
``immediately'' in the context of an inspection. It noted a driver will
need the opportunity to verify the recently created logs for accuracy.
If the system maintains the log data off the truck for some or all of
the period being checked, a reasonable delay may be incurred in sending
the data to the truck in some form.
    Response: Motor carriers and their EOBR system providers must use
appropriate methods and procedures in the development, testing, and
operation of HOS information systems to ensure data and information
integrity. Rather than specifying testing and assessment procedures,
the Agency again focuses on performance requirements for the EOBR user.
Under new Sec.  395.16(o)(2), the EOBR and associated support systems
must not permit alteration or erasure of the original information
collected concerning the driver's hours of service, or alteration of
the source data streams used to provide that information, and under
Sec.  395.16(p)(1), the motor carrier must not permit or require
alteration or erasure of the original information collected concerning
the driver's hours of service, the source data streams used to provide
that information, or information contained in its EOBR support systems
that use the original information and source data streams.
    As to defining ``immediately,'' FMCSA requires CMV drivers to
maintain their EOBR records current to the last change in duty status
and encourages safety officials to exercise reasonable discretion in
allowing the drivers sufficient time to access the HOS records from the
EOBR, or from the motor carrier's support system.
6.8.4 Information Must Be Accessible to Safety Assurance Officials
Without Requiring Them To Enter In or Upon the CMV (Sec.  395.16(i)(4))
    CVSA supported the requirement that information displayed on the
EOBR be accessible to safety assurance officials without requiring the
officials to enter in or upon the CMV. However, one driver stated
moving the EOBR in and out of the truck would lead to electronic
problems. He suggested using a cable to connect it to a computer.
    Response: FMCSA agrees with CVSA. The final rule will retain the
proposed requirement that information displayed on the EOBR be made
accessible to safety assurance officials without requiring them to
enter in or upon the CMV. It will not be necessary to physically remove
an EOBR from its mounting in a CMV cab. The enforcement official will
provide a cable to the driver to plug into the EOBR, or request the
driver initiate a wireless transfer of the RODS data to the officer's
portable computer.
6.8.5 Electronic Records Must Be Transferable to Portable Computers in
the Specified Format (Sec.  395.16(i)(6))
    A number of commenters provided comments related to the need for
safety officials to obtain digital records from EOBRs to conduct
roadside inspections. CVSA held EOBRs should use standardized data
formats and have a standardized interface for law enforcement so that
training, compliance evaluation, and monitoring are effective and
simplified. CVSA stated it would be better to equip

inspectors to print the record, which they will need as evidence.
    Regarding security encryption, data security, and how these
interact with enforcement roadside computers, the SHA commented that
not all MCSAP agencies' safety inspection officials have laptop
computers in their patrol vehicles and or wireless platform
capabilities from the patrol vehicle.
    Ohio PUC stressed the need for technological solutions to improve
inspection officials' ability to read and interpret electronic HOS
records. The MTA and OOIDA also stressed the need for training these
officials in the use of EOBRs and interpretation of HOS data.
    CVSA stated electronic records must adhere to common, uniform, and
strict standards so inspection officials can read the data on laptops
or handheld computers. However, CVSA had concerns with the possibility
of these files introducing a virus or otherwise damaging the inspection
official's operating system or software.
    Qualcomm stated the use of XML or other file formats should be
considered for Internet file transfers. It is also recommended the
specifications be deferred to an industry standards approach to address
any ongoing changes in security, technology, or data requirements,
rather than by including them in a regulation. The TMC TPA offered a
similar comment related to insulating a regulation from technological
change. The document advocated a hardwired connection between the EOBR
and the vehicle data bus and a network neutral wireless connection to
obtain data via the Internet from a secure server. ITEC stated it
assumed that, because it was not discussed, FMCSA did not intend to
require that EOBR data be downloaded onto portable media. Werner
questioned the cost of being able to download data.
    Ohio PUC stated the rule must have verifiable provisions to ensure
EOBRs are standardized with a uniform format that all carriers must use
to display information. These must be easily read by roadside
inspection personnel and designed to include a standard means of
allowing enforcement personnel to download information from the
devices.
    Response: FMCSA agrees with commenters that it will be critical for
roadside inspection officials to be prepared to interact with the new
EOBRs. The Agency has set the compliance date to provide sufficient
time for this transition. As discussed above, the final rule specifies
the use of standardized file formats and communications interfaces to
support the needs of safety officials operating in the field.
6.8.6 Communications information interchange methods (Sec.  395.16(i))
    Qualcomm, TMC, ITEC, Tripmaster, and ATA opposed the wireless
information interchange standards cited in the proposed rule because
they would be likely to become outdated. The TMC TPA stated the
wireless methods are prone to connection management, interoperability,
and security issues, as well as changes in technical standards.
    Qualcomm recommended FMCSA use TMC RP 1219(T) for technical
requirements. In addition, they recommended citing SAE J1708, ``Serial
Data Communications Between Microcomputer Systems in Heavy-Duty Vehicle
Applications,'' in reference to wired communications links using the
vehicle data bus. They also recommended FMCSA consider referencing SAE
J1939, ``Recommended Practice for a Serial Control and Communications
Vehicle Network.'' Qualcomm also asked FMCSA to consider submitting a
standards request to the Society of Automotive Engineers subcommittees
for J1939 and J1708 to address tamper-resistance technical
specifications for capturing information from electronic control
modules transmitting over the vehicle data bus.
    Qualcomm and the TMC TPA recommended two methods for information
reporting they believed would be technology neutral for EOBR devices
and are expected to have significant longevity in availability. They
recommended use of the vehicle data bus for a wired data transfer from
the EOBR to a roadside inspection device (because this approach is
similar to that used for on-board diagnostic (OBD) emissions
inspections); and use of the Internet for wireless data transfers from
the EOBR (device and/or support system) with the roadside inspection
system (device and/or host support system). Although they noted
additional security standards would be required to ensure proper
authentication between devices and data transfer security, they
recommended these be addressed through industry standards rather than
by regulation.
    Qualcomm and the TMC TPA both believe use of Universal Serial Bus
(USB) or a serial port would not be appropriate for a wired data
transfer. They cited problems with pin configurations and software
driver requirements, as well as the long-term viability of wired USB,
because wireless USB standards are under development. On the other
hand, they appear to favor use of the Internet for wireless data
transfers from the EOBR (and/or its support system) to the roadside
inspection system (device and/or host support system). Many EOBR
systems maintain near real-time communications with secure centralized
support systems, and they believe virtually all safety officials
conducting roadside inspections can use network connectivity to
retrieve this information from a support system (or directly) with
Internet file transfers. Qualcomm believed the Internet file data
transfer approach will be able to accommodate changes in wireless
communications standards and has high probability of still working
flawlessly over a 10-year or longer time frame.
    Qualcomm held use of Wireless Local Area Network (WLAN) and
Wireless Personal Area Network (WPAN) technologies for peer-to-peer
wireless connections are not appropriate in EOBRs and law enforcement
systems because they have significant security vulnerabilities and are
prone to connection management issues.
    Qualcomm also supported wired transfer via the CMV's data bus.
Qualcomm, Tripmaster, and ATA referenced TMC RP 1210(B) (Serial
Communications Application Program Interface). For wireless, they
referenced RP 1216 (the vehicle-to-office data communications
standard). Qualcomm stated the latter standard brings efficiencies to
the industry because it puts aside any proprietary communications
protocols and allows for wireless communications (via radio frequency,
infrared, satellite, cellular, or WLAN) between a trucking company's
office and its fleet.
    ITEC recommended dropping the Bluetooth wireless standard, which is
not interoperable with IEEE 802.11 and RS-232 (which is out-of-date),
and adding IEEE 802.11p. ITEC-supported USB 2.0.
    CVSA suggested that, while FMCSA may not want to specify the
communications technologies because they change so rapidly, the more
important aspects related to the data are security, content, and
timeliness of the information availability. Werner stated any wireless
access should be adequately protected.
    KonaWare stated FMCSA should not specify data transfer technology.
If data transfer is needed, submission of data to law enforcement
within 48 to 72 hours should be acceptable.
    Siemens expressed concern about costs for wireless data extraction.
Although they noted FMCSA included these costs in its estimate of
operating costs as a necessary item for mobile phone solutions and
fleet management systems, they were concerned these

costs were not addressed for minimally compliant, tethered EOBR
solutions that could use other methods to transfer data for backup
purposes. Siemens was concerned owner-operators, small carriers, and
carriers operating within limited geographic areas would not benefit
from wireless data extraction of HOS data.
    PeopleNet stated the records should be available in wireless or
wired format, but not both. FedEx stated the protocols and application
interfaces needed to perform the data download are not defined. A great
deal of definition would be required to successfully implement a
roadside exchange as suggested in the NPRM, and changing technology
could make several of the suggested physical transport layers obsolete.
FedEx suggested wireless as a transport layer (802.11g and Bluetooth),
but stated the pairing methodology between EOBR and roadside device
must be defined. It also stressed the need for the Agency to define a
method for authentication between the EOBR and roadside device, an
especially important concern if the Agency contemplated using wireless
technology.
    Response: The final rule requires the use of wired (direct physical
connection) and wireless communications (WiFi and cellular, as
described in more detail below) of the electronic RODS data record. For
a wired transfer, the roadside enforcement official will provide a
cable to the driver to be inserted into the EOBR's USB data port.
    FMCSA is revising the requirements for the content of the data file
that would be downloaded from an EOBR to an enforcement official's
portable computer to remove the name of the driver and co-driver in the
records downloaded at roadside. The driver and co-driver will be
identified by employee identification number(s) in that downloaded
record. Enforcement officials may verify the identity of the driver
(and co-driver) from documents such as a driver's license and would
enter that information into their portable computers to generate
inspection reports and violation documents. This change is being made
because the combination of a name and other information in a
transmitted record places the record in the category of personally
identifiable information (PII). PII must be encrypted, and encryption
adds considerably to the complexity of software design, implementation,
and maintenance. These factors would increase the costs to EOBR
suppliers, motor carriers, and FMCSA. FMCSA stresses this change
affects only those records downloaded at roadside. All other records
maintained in EOBRs and support systems must include the driver's and
co-driver's names. This includes records requested by safety assurance
officials at a motor carrier's place of business.
    The primary goal of the EOBR device itself is to collect and
safeguard data. There are numerous industry consensus standards and
recommended practices in this field, and FMCSA believes developers of
EOBRs and EOBR support systems are in the best position to select and
use those standards and practices to ensure their motor carrier
customers are able to maintain the confidentiality, integrity, and
availability of HOS data and information.
    To ensure a reliable means of data exchange between each EOBR
device and a roadside safety official's portable computer, the
following hardware interface specifications are required:
    1. Each EOBR device must implement a single USB compliant interface
featuring a Type-B connector.
    2. USB interface must comply with USB V1.1 and V2.0 USB signaling
standards.
    3. The USB interface must implement the Mass Storage class (08h)
for [software] driverless operation.
    FMCSA will not allow the use of portable storage devices, e.g.,
thumb drives, for the transfer of the electronic RODS because they are
not capable of meeting the necessary authentication requirements.
6.9 Identification of the Driver (Sec.  395.16(j))
6.9.1 FMCSA's Approach of Not Specifying Identification Method
    CVSA supported the idea of providing flexibility regarding how
drivers are identified. However, CVSA said FMCSA should specify a
minimum performance requirement including standardized and explicit
test procedures and expectations. ITEC approved of the decision to
allow motor carriers to choose among competing technologies for driver
identification. The company said driver identification technologies
would be a key cost factor in the implementation of EOBRs.
    Several commenters, including IBT, OOIDA, and AMSA, disagreed with
FMCSA's approach, contending the rule should be more specific regarding
the identification of drivers. IBT was concerned unscrupulous drivers'
use of false identification could undermine efforts to improve HOS
compliance. Qualcomm, Siemens, and the TMC TPA said the rule should
have security requirements that address detailed policies and
procedures for driver identity management. They also requested the
requirements cover the use of third parties for EOBR security
administration and audit.
    One commenter recommended using employee ID numbers to identify
drivers, while another proposed using an identification code made up of
the driver's license number and the abbreviation of the issuing State.
    Response: FMCSA agrees the identification of the driver of a CMV is
key to implementation of this rule. However, imposing a set of
standards to assign and manage driver and employee identification
numbers is unnecessary to effectuate this rulemaking and is more
appropriately addressed through motor carriers' internal processes.
    This final rule requires the driver's name as part of the EOBR's
record maintained by the motor carrier. However, it will not require
the driver's name to be part of the information transmitted from the
EOBR or a support system during the course of a roadside inspection
because the combination of a name and the other information is
considered personally identifiable information and is subject to
stringent and complex encryption requirements. As discussed earlier,
enforcement officials will verify the identity of the driver (and co-
driver) from documents such as a driver's license.
    FMCSA's interest is that each driver used by a motor carrier is
uniquely identified for purposes of recordkeeping and the motor carrier
ensures that drivers enter duty status information accurately. How
individual drivers are identified--by name, by employee number, or by
another code--is left to a motor carrier's discretion. However, we very
strongly discourage a motor carrier from using a Social Security number
or driver's license number because of the potential for persons to
obtain access to information that is not relevant to HOS compliance
assurance. It is a motor carrier's responsibility to select and
implement information security policies--including issuing and updating
identification and information system access codes--appropriate to its
own operations.
    Responding to Qualcomm's question concerning recording the hours of
drivers who use more than one vehicle, an EOBR support system must
account for this, as today's AOBRDs are required to do. Although not
explicitly required in the regulation, error-checking procedures in the
support system also should flag a driver who is shown as operating
multiple CMVs on the same day, during the same period of time. AOBRDs
have been required to identify

which driver of a team is operating the CMV at any given time--and
EOBRs must do the same. Each driver must be assigned a unique
identifier.
6.10 Maintenance and Repair (Sec.  395.16(p))
6.10.1 Motor Carrier Must Ensure EOBRs Are Calibrated, Maintained, and
Recalibrated
    Werner said the requirement for motor carriers to ensure EOBRs are
calibrated, maintained, and recalibrated should not be imposed without
serious cost/benefit analysis. The carrier said this requirement could
be a substantial burden for many carriers who have trucks that are not
home-based at a terminal.
    Qualcomm and TMC said the requirements for motor carriers should
also address security management and administration of EOBR systems.
They also said the rule should provide criteria for when third-party
services must be used if carriers do not have appropriate resources for
security management.
    Maverick Transportation asked FMCSA to clarify how often EOBRs
would need to be recalibrated and how long a carrier would need to
retain calibration, maintenance, and recalibration records.
    Response: Section 395.15(i)(8) the of current regulations requires
that AOBRDs be maintained and recalibrated in accordance with the
manufacturer's recommendations. Considering the range of approaches
(now and in the future), it would not be realistic for FMCSA to specify
maintenance intervals for EOBRs. The text of the rule adopted here
parallels the proposed regulation but adds a requirement for
calibration. This initial calibration would be done at the time of
initial installation, if the characteristics of the device require it.
Concerning security management and administration, those are
information technology matters, and any third-party performing this
work for a motor carrier would do so as the carrier's agent and under
the carrier's direction. Retention of EOBR maintenance and calibration
records is addressed in the general inspection, repair, and maintenance
requirements of current Sec.  396.3, because an EOBR, like an AOBRD, is
an ``additional part or accessory which may affect safety of
operations.'' These records must be maintained for 1 year or 6 months
after a CMV leaves the motor carrier's control.
6.11 Testing and Certification Procedures
6.11.1 Manufacturer Self-Certification (Sec.  395.16(q))
    Qualcomm expressed support for the provision allowing EOBR
manufacturers to self-certify their products. The company said the
self-certification approach is consistent with the requirements in
Sec.  395.15 and should be continued. Maverick Transportation agreed
with manufacturer self-certification, but asserted EOBR manufacturers
should face penalties if their products are later found to be non-
compliant.
    Conversely, several motor carrier and EOBR manufacturer commenters
believed FMCSA's proposed requirement for AOBRD and EOBR manufacturers
to self-certify their devices did not provide a sufficient level of
assurance to convince carriers to voluntarily use EOBRs. These
commenters indicated carriers would be more willing to invest in EOBRs
if FMCSA or an independent testing entity evaluated and certified
devices as conforming products. J.B. Hunt stated that, because most of
today's EOBR manufacturers are small businesses, they probably would
not have the financial resources to properly indemnify the carrier if
FMCSA were to find the devices noncompliant. Werner made similar
comments, noting the contracts offered by EOBR vendors would likely
restrict a carrier's right to recover from the vendor if the system
were found to be non-compliant.
    CVSA recommended FMCSA and the National Highway Traffic Safety
Administration create a more rigorous, third-party certification
program for EOBRs. It also recommended the establishment of an advisory
board to create and maintain a list of approved EOBRs. This advisory
board could operate similarly to those groups that are involved with
speed-measuring instruments and breath alcohol testing devices.
    Qualcomm and ATA offered the alternative of ``strong self-
certification.'' An international standard, ISO/IEC 17050, would be
used as a basis for requiring manufacturers to document their
conformance with a standard. An EOBR manufacturer's declaration of
conformity would be subject to standardized documentation requirements
and audits. They noted this approach would require a government or
industry entity to audit supporting materials for conformity
declarations and to maintain a registry of conforming products. ATA
stated such an authority does not currently exist. Tempering its
support of third-party certification, ATA cautioned that FMCSA should
balance the potential benefits of third-party certification against the
potential for increased cost of EOBR devices and possible delays in the
introduction of new devices and technology due to the need to
satisfactorily complete a certification process.
    Response: The Agency is aware that a working group of the ATA's
Technology and Maintenance Council S. 12 Onboard Vehicle Electronics
Study Group is currently preparing a draft recommended engineering
practice, TMC RP 1219(T), ``Guidelines for Electronic On-Board
Recorders.'' Several commenters included this document as an attachment
to their comments. Although the final rule does not establish a formal
FMCSA oversight process for EOBR testing and certification, it is
possible that more widespread use of EOBRs may bring compliance
concerns to light. Therefore, FMCSA will monitor motor carriers'
compliance with EOBR and support system requirements as part of its
safety oversight programs.
6.11.2 Other Comments on Testing and Certification Procedures
    The Ohio PUC asked that the rule provide for periodic certification
of the reliability and integrity of EOBRs, with specific penalties for
failure to comply; and it maintained widespread violations could occur
without such provisions. The MTA suggested the rule require EOBR
manufacturers to warranty performance of their products for at least 5
years.
    Response: FMCSA takes seriously penalties related to false records
but does not believe it would be appropriate to set a prescriptive
requirement for ``recertifying'' EOBRs according to a fixed schedule.
The self-certification process will remain part of the FMCSRs. FMCSA
does not have the authority to impose a requirement for a warranty
period or warranty terms.
6.12 Other Comments on Proposed EOBR Standards
    Several commenters believe the NPRM did not adequately address a
requirement to make EOBRs ``tamper-proof.'' Siemens said FMCSA should
require EOBRs to be tested and certified against a defined security
standard by independent laboratories. Advocates criticized FMCSA for
proposing no specific controls for ensuring that EOBRs are tamper-
proof, contending the Agency ``must set minimum requirements for what
constitutes tamper-proof or tamper-resistant EOBRs

and their key components.'' Advocates called upon FMCSA to ensure that
EOBRs are both tamper-proof and designed to indicate any attempts at
tampering. CVSA suggested FMCSA review the EU Information Technology
Security Evaluation process with regard to EOBRs. A team driver who had
used an EOBR said her motor carrier had altered the hours recorded by
the device, and FMCSA must ensure against improper alteration of data
by drivers, carriers, or law enforcement personnel. Two commenters said
the burden of making EOBRs tamper-proof should rest on the shoulders of
the manufacturers and FMCSA, and that all aspects of tampering should
be resolved before installation.
    Response: The September 2005 report prepared by the Volpe Center:
``Recommendations Regarding the Use of Electronic On-Board Recorders
(EOBRs) for Reporting Hours of Service,'' addresses a range of methods
to prevent, to the greatest extent practicable, tampering with the
physical EOBR device, as well as the electronic records it holds. The
revised text of Sec.  395.16(p)(1) prohibits the motor carrier from
permitting or requiring alteration or erasure of original information
or the source data streams used to provide it. This covers both
physical and electronic alterations and erasures.
    FMCSA reviewed the EU type-specification for electronic tachographs
early in this rulemaking process. The type-specification is highly
design-prescriptive for both the hardware and software elements of the
electronic tachograph and support systems. By contrast, FMCSA
regulatory policy expresses a strong preference for performance-based
regulations. Furthermore, because the EU directive for the electronic
tachograph is based upon a compliance-assurance model that is
dramatically different from that of FMCSA, FMCSA continues to believe
adopting it would be inappropriate. And, as discussed above, the final
rule will continue to require manufacturer self-certification of EOBRs
and their support systems.
6.12.1 Environmental Specifications
    For operating temperature, Qualcomm and ITEC said the typical
industry standards for device functionality while installed in
commercial vehicles (-40 to 85 [deg]C) exceed the rule's requirements
for the temperature range at which EOBRs must be able to operate (-20
to 120 [deg]F (-29 to 49 [deg]C)). Both commenters suggested the rule
defer to industry standards for environmental performance, specifically
SAE standard J1455, ``Recommended Environmental Practices for
Electronic Equipment Design in Heavy-Duty Vehicle Applications.'' TMC
offered a similar comment.
    NTSB stated the NPRM failed to address damage-resistance and data-
survivability, and asked for performance standards for these issues.
    Response: FMCSA agrees with Qualcomm, ITEC, and TMC and in the
final rule revises the environmental operating ranges (temperature,
etc.) for EOBRs. In response to NTSB, FMCSA considers it appropriate to
require EOBRs to comply with the same generally-accepted industry
consensus standards for durability and reliability as other electronic
components used in trucks and buses, but not to go beyond these
standards in terms of crash- or fire- survivability.
6.12.2 Reconstruction of RODS After EOBR Failure
    Werner and the Maryland State Police questioned the requirement
that a driver reconstruct RODS for the past 7 days in the event of an
EOBR failure. The two commenters doubted that drivers would be able to
do this unless the data had been printed out, transmitted to the
carrier, or backed up in some other way.
    Response: Records must be available for the current day and the
past 7 days so safety officials can review them during roadside
inspections. This is not a new requirement; it currently applies to
both paper RODS and AOBRDs (Sec. Sec.  395.8(k), 395.15(b)(2)). The 7
days' worth of records can include those records already transmitted to
the motor carrier.
6.12.3 Requirement To Carry EOBR Instructions and Blank RODS (Sec.
395.16(l))
    ITEC said the rule should be clarified to allow a motor carrier to
maintain the EOBR instruction sheet and blank RODS forms either
separately or together. Qualcomm expressed support for the requirement
that CMVs carry instructional material. TMC TPA suggested FMCSA be more
specific about the content of the instruction sheet to assure greater
consistency and usability.
    Response: The requirement in the final rule is identical to the
current one for AOBRDS (Sec.  395.15). It does not specify that the
instructions and blank RODS forms be bound in a single document, only
that the driver have both of them on board the CMV.

7. Incentives To Promote EOBR Use

    FMCSA is adopting as proposed two incentives for motor carriers
that voluntarily install and use EOBRs compliant with section 395.16.
First, after the traditional targeted review of their drivers' HOS
compliance, FMCSA will conduct random reviews of such carriers' drivers
for purposes of determining these carriers' safety ratings. Second,
such carriers will be granted relief from the supporting documents
requirements for purposes of recording on-duty driving time. FMCSA
requested comment on these two incentives, as well as on possible
additional incentives, including granting flexibility in the HOS rules
themselves.
7.1 Random Review for Motor Carriers Voluntarily Using EOBRs
    Numerous commenters, including Report on Board, Werner, Maverick,
SCRA, and IIHS, said random review of a motor carriers HOS compliance,
as opposed to a focused review, would not provide enough incentive to
make voluntary installation of EOBRs attractive. Both IIHS and Report
on Board held only a mandate requiring EOBRs will work. Report on Board
commented that carriers believe they are competitively disadvantaged by
using EOBRs. Because focused sampling would continue, with violations
imposed based on that sampling, it felt that there would be little
reason for carriers to voluntarily adopt EOBRs.
    SCRA stated there were no statistical data provided on safety
enhancement or cost benefits to support this element of the proposed
rule, arguing that application of technology should provide tangible
cost benefits and easily recognizable advantages for all required to
comply.
    Several commenters objected to the incentive because they believed
it would place some carriers at an unfair disadvantage. OOIDA stated
FMCSA is proposing to lessen scrutiny of carriers that adopt EOBRs
while increasing scrutiny of other carriers, most of whom will be
small. OOIDA also stated the proposal is inconsistent with CSA 2010
since that initiative relies heavily on focused review of problem
drivers based on roadside data. ``Without any proof that EOBRs improve
HOS compliance or the safe operation of commercial motor vehicles,
FMCSA cannot justify the creation of such a dichotomous enforcement
strategy.'' One carrier was also concerned the proposal places small
carriers at a disadvantage because they cannot afford EOBRs, and they
will be given the same scrutiny as those mandated to use EOBRs.
    While Maverick supported the random sampling incentive, Advocates
stated the implication is that the

outcome of EOBR use is not improved oversight and enforcement of safety
management controls. Advocates asserted the proposal would lead to
``more extensive HOS violations and lack of enforcement.''
    Response: One objective of CSA 2010 is to leverage the capabilities
of existing technologies to make compliance and enforcement efforts
more effective and efficient. FMCSA believes policies that encourage
the adoption of EOBRs are consistent with CSA 2010. (See the earlier
discussion of CSA 2010 and roadside data in preamble section IV.
Discussion of Comments to the NPRM; 3.2 Trigger for remedial directive.
The motor carrier industry previously expressed concern that FMCSA's
current HOS sampling techniques during compliance reviews are not
random across all areas of a carrier's operation. Rather, the
compliance review procedures direct the safety investigators to focus
on known problem areas and drivers first. If the number of violations
discovered using the existing policy of focused sampling exceeds 10
percent of the records reviewed, a less than satisfactory safety
fitness rating is proposed. Thus, industry members argue, a motor
carrier's overall safety fitness rating can be adversely affected based
only on a focused review of known problem drivers or areas of a motor
carrier's operation without consideration of a motor carrier's overall
HOS compliance status or violation rate.
    FMCSA does not agree that motor carriers under the proposed
incentive will be subject to less-thorough reviews. Under the incentive
proposed and adopted today, all motor carriers taking advantage of this
incentive, and all owner-operators leased to such carriers, will be
subject to the same level of initial review as under current
procedures, which focus first on drivers involved in crashes and those
with known HOS violations. Violations resulting from this initial
focused sample will continue to be considered for compliance
improvement and enforcement purposes. However, under the incentive, a
CR that revealed a proposed 10 percent or higher violation rate based
on the initial focused sample will be expanded through random sampling
to look at a broader segment of the motor carrier's overall operation.
Only the HOS violations resulting from this expanded review will be
used to determine a carrier's safety rating.
    This incentive is justified on several grounds. The HOS portion of
CRs on motor carriers using EOBRs can be done far more efficiently than
traditional reviews of logbooks and supporting documents, thus allowing
motor carriers--as well as FMCSA reviewers--to do more thorough and
comprehensive checks of HOS records for accuracy and possible
falsification. The Agency expects EOBR use to lower voluntary-adopter-
carriers' rates of serious HOS violations, which, as noted above, are
related to higher than average crash rates. As a result, safety will be
promoted. Because civil penalties will still be imposed and SafeStat
scores will still be affected if violations are discovered during the
targeted review, carriers will continue to be motivated to correct HOS
compliance problems. See 72 FR 2378-2379. FMCSA emphasizes that the
Agency will continue to bring civil penalty enforcement cases against
both drivers and carriers for HOS violations discovered during the
initial focused HOS review, even though that analysis will not be used
for purposes of determining the carrier's safety rating.
7.2 Partial Relief From Supporting Documentation (Sec.  395.11)
    Several commenters, including Maverick, SC&RA, TCA, J.B. Hunt, and
AMSA, generally supported the incentive providing relief from the
requirement to maintain supporting documents relating to driving time.
Commenters, including Maverick and SC&RA, stated EOBRs will capture
much of the same information as supporting documents. Continuing to
require supporting documents becomes a disincentive for using EOBRs.
    AMSA stated retaining and reconciling such corroborating documents
is a financial, storage, and organizational burden on carriers, and
relief from these burdens might provide the desired incentive for a
carrier to consider adopting EOBRs. ATA stated that managing supporting
documents takes 258 million hours a year; the potential costs could be
billions of dollars. FedEx noted the NPRM claimed the EOBRs would
reduce compliance costs and increase productivity, but if the
supporting document requirements are not dropped, those claims were
overstated or wrong. If regulators require or allow technology to
replace paperwork for HOS, FedEx commented the Agency should replace
all paperwork for that requirement. Otherwise, it is an indication that
either the technology is not ready for implementation or the technical
specifications should be revisited.
    MTA, Boyle, NPTC, ATA, and FedEx sought elimination of the
supporting documents requirement for those with EOBRs. NPTC stated
companies that use EOBRs to supervise driver operations and have
effective management systems should not be required to undertake the
additional administrative task of collecting and maintaining supporting
documents to verify the non-driving portion of a driver's hours. If a
company is found to be significantly non-compliant in its HOS
management, NPTC asserts FMCSA could use its enforcement authority to
impose additional and more stringent supporting document requirements
on that carrier and its drivers.
    In contrast, J.B. Hunt said supporting documents cannot be
eliminated, but carriers should not have to retain documents that show
only time and location. If the document does not have any objective
information that discloses the driver's non-driving activities, it
would not be of value in an EOBR world. Additionally J.B. Hunt states
that, in most over-the-road operations, driving time is the most
important contributor to driver fatigue. For example, loading and
unloading times can be significant, but supporting documents are of
little value in determining the duration of on-duty activity. Siemens
stated law enforcement is unlikely to accept reduced supporting
documents over the long term, and inadequate performance standards lead
States and law enforcement to ignore EOBRs.
    One owner/operator said this proposed relief was an unfair
advantage to motor carriers who could afford EOBRs.
    Response: FMCSA agrees compliant EOBRs produce regular time and CMV
location position histories sufficient to adequately verify a driver's
on-duty driving activities. Under this final rule, motor carriers
voluntarily maintaining the time and location data produced by EOBRs
would need to maintain only those additional supporting documents that
are necessary to verify ODND activities and off-duty status.
    It is not in the best interest of public safety to provide relief
from supporting document requirements necessary to verify ODND status.
Providing such relief could make verification and enforcement of ODND
activities extremely difficult, if not impossible in some cases. For
privacy reasons, the requirements for compliant EOBRs stop short of the
electronic, video or other driver monitoring measures that would be
necessary to verify individuals' on-duty not driving time and
activities through use of automated recorders.
    FMCSA disagrees with FedEx that failure to eliminate all supporting
document requirements is an indication that EOBR technology is not yet
ready for implementation. FMCSA considers the ability to relieve
supporting

document requirements related to on-duty and driving time significant
in itself. Blanket relief from all supporting document requirements was
not proposed in the NPRM and is not included as part of this final
rule.
7.2.1 EOBRs and the Supporting Documents Rule
    Several commenters raised the relationship of this rule with the
supporting documents rule. ATA stated FMCSA should complete the
supporting document rule as soon as possible. FedEx said the rule
should be coordinated with the EOBR rule, OOIDA and CVSA asserted until
the supporting document rule is complete, the public does not have
enough information to evaluate the incentives.
    FMCSA published the supporting documents Supplemental Notice of
Proposed Rulemaking on November 3, 2004 (69 FR 63997), and proposed
requirements for the collection and use of documents to verify the
accuracy of driver records of duty status. It proposed language to
clarify the duties of motor carriers and drivers with respect to
supporting documents and requested further comments on the issue. FMCSA
withdrew this rulemaking action on October 25, 2007 (72 FR 60614) based
on issues with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520) analysis supporting this action. After the paperwork analysis
that accurately identifies the information collection burden associated
with the existing supporting documents requirements is complete, the
Agency intends to initiate a new rulemaking action. This will ensure
the new rulemaking proposal is based on an accurate and comprehensive
understanding of the existing information collection inventory.
    FMCSA does not wish to delay the benefits of this rulemaking
pending completion of the supporting documents rule. Therefore, this
rulemaking provides for relief from the existing supporting document
requirements related to on-duty driving activities for motor carriers
that voluntarily install EOBRs.
7.3 Suggestions for Other Incentives
    MTA recommended any violations occurring when the truck is being
used as a personal conveyance should be assigned only to the driver,
not the carrier. It suggested carriers should not be subject to
violations for speeding based on GPS data, and also that RODS
violations should be weighted as other categories are, not at twice the
value.
    ATA suggested including positive credits or points for carriers in
the SafeStat selection criteria as applied to the safety management and
Driver SEAs. ATA also suggested FMCSA offer relief from the 2-point
assessment in the safety rating methodology for a pattern of HOS
violations. It also recommended the use of random sampling in
conducting compliance reviews. In the event these incentives cannot be
achieved through provisions in regulations, FMCSA should provide motor
carriers the ability to test and apply these incentives through pilot
programs and an expedited exemption process.
    ATA, TCA, J.B. Hunt, Fil-Mor Express, AMSA, and two individuals
recommended tax incentives. Two individuals also recommended tax
breaks. TCA stated log auditing for EOBR logs should be done only at
roadside inspections, not by the carriers. DriverTech stated the fleets
and EOBR manufacturers should be exempt from lawsuits on product and
usage liability.
    CTA recommended FMCSA consider allowing minor variances in driving,
on-duty and off-duty time, up to a specified limit. CTA did not see
this as an incentive to encourage EOBR use by compliant carriers;
rather, it considered it to be a reasonable enforcement approach to
avoid unwarranted penalties. Other commenters made similar suggestions.
    J.B. Hunt suggested a number of incentives. It recommended
providing EOBR carriers with a credit on their Inspection Selection
System score to allow their drivers to more frequently bypass
inspection stations. J.B. Hunt said this may help gain much needed
driver acceptance. Only carriers with a good history of well maintained
equipment (Equipment Safety Evaluation Area (SEA) value or Out-of-
Service rates less than a certain score) should qualify for this
incentive.
    J.B. Hunt said the Agency should make a commitment in the final
rule to work cooperatively with other agencies and governmental
entities in an effort to exempt EOBR units from the Federal Excise Tax
(FET) for original equipment manufacturer installations and equipment
retrofitting and to provide for an accelerated depreciation or
expensing option for tax purposes. It recommended ensuring EOBR
carriers are able to gain the benefit of the ``Intra-City Multiple
Stop'' rule by permitting the driver to show very short movements
(totaling less than 1 percent of daily miles traveled) combined with
other driving in the same city. This should also apply to consolidating
ODND time as currently permitted when logging on paper.
    AMSA stated, without sufficient incentives, HHG carriers would find
it too expensive to install EOBRs and implement the supporting systems.
    An individual suggested original equipment manufacturer-installed
EOBRs should come with the option to switch providers.
    Response: FMCSA believes the majority of other incentive ideas
offered, including tax incentives, are outside the scope of this
rulemaking. FMCSA does not believe it is in the best interest of public
safety to count threshold rates of HOS violations the same as other
violations in our safety fitness rating methodology, as suggested by
the Minnesota Trucking Association and the ATA. To do so would
effectively allow motor carriers to continue in operation with a
Satisfactory safety fitness rating and 100 percent HOS noncompliance as
long as deficiencies were not documented in other areas of the motor
carrier's operation. Also, FMCSA did not propose, and will not require,
EOBRs to collect vehicle speed data.

8. Economic Analysis and Other Rulemaking Analyses and Notices

8.1 Economic Costs
8.1.1 Viability of EOBR Market Without a Broad Mandate
    Three commenters, Report on Board, Siemens, and CVSA, stated a
broader mandate would lead to lower device costs. Report on Board
claims it did not see a viable market for its own product without an
industry-wide mandate. Siemens reported its device would cost 20
percent more under a long-haul mandate compared to what it would cost
under an industry-wide mandate and mentioned that component costs
should fall over time. However, IIHS pointed out there is already a
market for these devices, and questions of unit-cost and availability
are no longer relevant.
    Response: FMCSA assumes that the price of EOBRs under an industry-
wide mandate should be considered from a long-run equilibrium
perspective--i.e., assuming manufacturers have had enough time to enter
the industry and expand capacity to meet demand. Under those
conditions, prices should be driven to where they allow efficient
manufacturers to cover their production costs and provide an adequate
profit.
    The production of more units may allow manufacturers to take
advantage of economies of scale (whereby fixed costs are spread over
more units) and produce EOBRs at lower per-unit cost. The degree to
which economies of scale would reduce costs is uncertain, however.
Current and would-be EOBR manufacturers would, for the most part,

already be able to take advantage of considerable economies of scope
\3\ because they (1) Currently produce similar products, (2) already
possess the necessary technical expertise, organizational
infrastructure, distribution networks, and some of the necessary
manufacturing equipment, and (3) have access to variable inputs
(materials and labor). Independent of the number of EOBRs produced,
firms would not necessarily need to make outlays for many of these
fixed inputs. Similarly, though manufacturers might be expected to
achieve manufacturing cost savings through ``learning by doing'' (that
is, finding more efficient manufacturing methods as cumulative output
increases), it is not clear to what extent learning effects have
already been exhausted in the course of manufacturing very similar
devices. Finally, uncertainty about the number of new manufacturers
entering the expanded market makes it impossible to estimate the number
of units per manufacturer, which is a key variable in determining both
scale and learning effects.
---------------------------------------------------------------------------

    \3\ Economies of scope: Per-unit or average total cost of
production decreases as a result of increasing the number of
different goods produced.
---------------------------------------------------------------------------

    FMCSA agrees that the cost of EOBRs' electronic components--EOBRs
generally borrow components from existing technology--should trend
down, assuming that plentiful supplies of electronic parts continue.
However, and given the circumstances noted above, FMCSA does not have
sufficient data at this time that would allow it to estimate the
effects of greater production volumes on EOBR costs, and hence on EOBR
prices. In the face of substantial uncertainty over the extent of any
reduction in EOBR prices as a result of greater sales volumes, FMCSA
has assumed that the market price for EOBRs would remain unchanged
regardless of the breadth of the mandate, for the purposes of this
rule. The data and price projections will be explored further in the
follow-on rulemaking, discussed earlier.
    The Agency agrees with IIHS that availability should not be a
consideration and that EOBR prices are not prohibitive. Report on
Board's claim that it did not see a viable market without FMCSA's
delivering captive customers is not supported by current market
conditions: Not only are numerous manufacturers already engaged in this
business, but the market for these devices could extend beyond U.S.
borders. In both the NPRM and this final rule, the Agency examined a
variety of devices, including the lowest cost device submitted for
consideration. The analysis for the final rule is premised on the use
of only a low cost device.
8.1.2 Alternative Device Cost Estimates
    Report on Board, Siemens, NPGA, and TCA offered estimates of EOBR
device costs ranging from $300 to $3,000. Siemens stated the low cost
device considered in the NPRM would not be practicable due to its low
operational life, and offered a $300 price estimate for its own
minimally compliant device, which it claims has a ten-year operational
life with periodic maintenance and upgrades; the annualized cost of
this device would be $69.
    Response: Since the NPRM was published, FMCSA has actively
monitored EOBR technology (both devices with and without extra fleet
management applications) currently being sold in North America. It
conducted its analysis in that NPRM using a range of devices priced
from $100 to $2000, a range into which most of the devices subsequently
described by commenters fall. The Agency categorically rejects the
assertion motor carriers will need to spend $3000 for a device that
meets the performance standards of this rule. FMCSA agrees the cost-
savings of the low cost device originally considered was severely
curtailed by its assumed short operational life. Since publishing the
NPRM, the Agency has become aware of other compliant low cost EOBRs,
and has focused its analysis on one of them, while carefully
considering all of the costs particular to this device.
8.1.3 Comments on Associated Costs
    Eight commenters mentioned costs associated with EOBRs in addition
to the individual device costs. AMSA, SC&RA, Werner, the Maryland State
Police, TCA, and ATA stated driver and other employee training expenses
would be significant. Werner, AMSA, the Maryland State Police, and ATA
mentioned installation costs. FedEx, SC&RA, ATA, TCA, and NPGA stated
the Agency should consider administrative costs for such expenditures
as computer software and hardware, data extraction, and administrative
staff; NPGA further stated computing equipment to process EOBR data
could cost as much as $15,000 per carrier, and such expense would be
disproportionately large for its members, who, on average, have 9 or
fewer trucks. AMSA, SC&RA, Maryland State Police, and ATA commented
inspection, maintenance, and repair costs should be factored in. AMSA,
SC&RA, and ATA stated airtime costs for data extraction should be
accounted for, while Siemens stated a single annual operating cost
figure it has estimated for its low-cost device includes all airtime
costs.
    Werner and ATA pointed to device calibration as possibly resulting
in significant cost. Werner stated calibration requirements may impose
significant costs on the carrier if calibration cannot be easily done
by existing staff and asked how often calibration will or should be
required. This could represent a substantial burden for many carriers
that have trucks that are not based at a terminal. ATA also listed
driver technical demands, external report generation, and the costs for
some fleets of moving from existing systems to new systems as
potentially adding costs.
    Response: With the exception of calibration costs, which FMCSA does
not believe to be significant, the Agency included all of the costs
referenced by commenters. In any event, commenters for the most part
did not offer any alternative cost figures for the Agency to consider.
Regarding repair, maintenance, and upgrade costs, the Agency currently
bases its estimates on a device that is leased from its manufacturer
and does not have these costs associated with it. Cost and benefit
estimates now explicitly account for current use of AOBRDs, devices
that would meet the requirements of this rule, and fleet management
systems that can be upgraded to EOBR functionality.
    The Agency does not believe NPGA's assertion that office computer
equipment for processing EOBR data ``could be as much as $15,000'' is
reasonable, particularly for its members, who, on average, have nine or
fewer trucks. The Agency has made every attempt not to understate any
costs, although all cost estimates are constrained by the criterion
that EOBR systems meet the minimum requirements of this rule. In
addition, hypothetically large cost figures are not germane, because
carriers incur excessive costs at their own choosing, not because the
rule requires them to do so. Costs of office equipment have been
eliminated in this analysis because the EOBR provider hosts all records
on a secure Web site and includes the price of this service in its
monthly fee.
    Every device is configured differently, and not all devices share
the same costs. The complexity and cost of installation, for example,
can vary widely by device, and the costs of even similarly configured
devices can differ greatly. FMCSA presented the costs particular to

the three devices it considered; it could not present costs as if these
had been any other devices. Likewise, the current analysis focuses on
the actual costs of implementing the low cost device presented. As in
the NPRM, costs particular to that device are explicitly accounted for.
The goal of the cost analysis is to demonstrate how the performance
standards of this rule may be met with minimal cost, not to estimate
the costs of every possible device.
8.1.4 Costs of Training Law Enforcement
    The Maryland SHA and ATA stated the cost of training enforcement
officers to review electronic logs should be included. The Maryland SHA
added State enforcement officials would also be asked to provide
``inspection services for verification of electronic-on-board-recorder
installation and operation,'' although enforcement personnel are
neither trained electronics installers nor mechanics. The Maryland SHA
also stated not all enforcement personnel have laptop computers in
their patrol vehicles, and those that do may not have wireless
connectivity; it would be impossible to check electronic logs under
these circumstances. Additionally enforcement personnel should not be
asked to perform this function as staffing reserves are already
strained with more important duties--e.g., roadside inspections,
homeland security activities, etc. Maryland SHA stated FMCSA should
fully assess the effects on enforcement. No funding is being provided
to enforce the new provisions.
    Response: The Agency has carefully considered the costs to State
enforcement staff. The Agency has already increased its cost estimates
after recognizing that training in reviewing electronic records will
always represent an additional cost, and will never simply replace the
current training in paper RODS. In response to the Maryland SHA's
concerns, the Agency has estimated costs of inspecting EOBR devices,
and the costs of equipment purchases and upgrades for accessing and
reviewing electronic records.
8.2 Paperwork Savings
    Six entities commented on paperwork benefits and driver's time use.
PMAA stated the time saved from not filling out logs is not
significant. However, the Maryland SHA agrees that EOBRs will save
time, and SC&RA stated automation should reduce administrative burden.
Report on Board estimated annual per truck paperwork burden costs
$2,029. Public Citizen commented electronic records are more easily
collected and analyzed, and such information could be used to more
accurately track and monetize time wasted at loading docks, which would
benefit drivers paid by the mile or trip. Verigo, a manufacturer of
manual electronic logs that lack the automatic recording features
required of AOBRDs and EOBRs, stated FMCSA is relatively silent on the
issue of HOS auditing and management reporting.
    Response: Paperwork savings figure prominently into this rule's
analysis, and have been carefully considered. The paperwork burden
associated with RODS includes the time spent filling them out,
reviewing them, and filing them. FMCSA's estimate of the paperwork
burden of filling out RODS is 6.5 minutes per day per driver, and 3
minutes per day per driver for review and filing. Trucking companies
may not recognize all the benefits of paperwork savings if they pay
drivers by the mile or trip and do not compensate drivers for time
spent filling out logs. Costs directly borne by drivers are as
important as costs borne by motor carriers, and, as other commenters
have pointed out and the RIA shows, the time saving to drivers can be
significant. The Agency also agrees with Public Citizen that insofar as
EOBRs accurately capture total on-duty time, drivers may benefit when
wasted time, such as excessive time spent at loading docks, is
documented. Nevertheless, this potential benefit is not included in the
RIA because the Agency cannot predict if this added recording of on
duty time will translate into driver compensation, and if so, whether
this would be a transfer from motor carriers or paid for via higher
prices charged to shippers.
8.3 Regulatory Flexibility Act Analysis (Small Entities)
    Forty commenters, including 15 carriers and 13 drivers, expressed
opinions on the impact on small entities. PMAA stated the cost would be
a heavy burden for small companies. TCA stated with high fuel costs and
expected tighter emission controls increasing the costs of new trucks,
the cost of EOBRs is one more burden the majority of these carriers
cannot afford. The Maryland State Police said mandating EOBRs could be
economically disastrous for some carriers. OOIDA said the burden would
be disproportionately borne by small entities, which do not have the
purchasing power of larger carriers or the large number of revenue
producing drivers across whom to spread EOBR costs; non-safety economic
advantages of EOBRs also come at a cost and typically are only useful
to those managing large fleets. OOIDA also stated small carriers are
more likely to be selected for reviews, although until SafeStat is
revised, it is difficult to be certain on that point; larger carriers
are more sophisticated about disguising noncompliance.
    OOIDA also commented the most burdensome cost to small-business
carriers will be the loss of drivers who are unwilling to drive for an
EOBR-mandated motor carrier. As posited by OOIDA, for example, the cost
of the initial installation of an EOBR into an existing truck has been
estimated to be between $1,000 and $3,000. Either the motor carriers
will face that cost for each truck, or the owner-operator will bear
that cost. That cost may be prohibitive for a small-business, and
owner-operators who face such a cost will quickly look for work for
another carrier. Under either scenario, a motor carrier facing the
mandate will go out of business.
    Response: All carriers are harmed, but especially small carriers,
by companies that gain a competitive advantage by violating safety
regulations. Although the majority of carriers are small businesses,
most will not be subject to the remedial directive. Any competitive
advantage gained by a small carrier by violating HOS will likely come
at the expense of carriers with similar characteristics--size,
geography, market share.
    Regarding comments concerning costs, costs for the most part are
proportional to the number of power units a carrier would need to
outfit. Carriers would incur an annual net expense of less than $100
per power unit, less than 0.1 percent of annual revenue per power unit.
Furthermore, even these modest costs are avoidable as long as carriers
comply with the HOS rules.
8.4 Comments on Driver Health Considerations
    Three commenters criticized the Agency for failing to adequately
consider driver health impacts in this rule. IBT stated carriers will
use EOBRs to pressure drivers to increase productivity, which would
increase their stress levels and adversely impact their health, and
OOIDA stated the stress of being monitored alone is enough to harm
driver health. Advocates, however, stated FMCSA's concern about the
stress of using EOBRs distorted the research results of several
studies, and the Agency had ignored potential health impacts of using
EOBRs and improving compliance. Advocates contended the Agency's
regulatory analysis ignored ``evidence of adverse

health impacts from the very long working hours associated with HOS
violations.'' Furthermore, by not proposing to mandate EOBR use,
Advocates held the Agency was not helping ``to ameliorate the adverse
health impacts of exceptionally long working and driving hours
triggered by the Agency's final rules in 2003 and in 2005.''
    Response: The Agency has addressed both positive and negative
health impacts in Appendix A to the EA for this rule, which has been
placed in the docket. The Agency carefully reviewed research on the
potentially negative impacts of electronic monitoring and concluded
that the use of EOBRs required in today's final rule will not result in
negative impacts on driver health for two reasons: First, because
monitoring of HOS compliance is an existing, not a new, requirement;
and second, because the Agency is requiring EOBRs to monitor safety,
not workplace productivity.
    The Agency has also not been able to statistically quantify
significant health benefits from improved HOS compliance, although at
least some benefits are anticipated to result, for at least some
drivers. Cost and benefit estimates of the HOS regulations are included
in the analysis for that separate rulemaking 72 FR 71247 (Dec. 17,
2007). In addition, the underlying HOS regulations are the subject of a
separate rulemaking action 72 FR 71247 (Dec. 17, 2007).

V. Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and DOT
policies and procedures, FMCSA must determine whether a regulatory
action is ``significant,'' and therefore subject to Office of
Management and Budget (OMB) review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal government or communities.
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency.
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof.
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    FMCSA has determined this rule will have an annual effect of $100
million or more, and is, therefore, an economically significant
regulatory action within the meaning of the Executive Order and under
the regulatory policies and procedures of DOT because of the level of
public interest in rulemakings related to hours-of-service (HOS)
compliance. The Agency has therefore conducted an RIA of the costs and
benefits of this rule. The RIA is summarized below. The full analysis
is available in the docket.
    After reconsidering the discussion in the NPRM, and based on
comments received, FMCSA examined two regulatory options for the final
rule--the 2 x 10 remedial directive proposed in the NPRM, and the
considerably broader and more stringent 1 x 10 remedial directive. We
understand the concerns of ATA and J.B. Hunt, among others, who believe
the proposal did not cover enough carriers. While FMCSA acknowledges
the safety concerns of those that support an industry-wide EOBR
mandate, the Agency cannot extend the EOBR mandate in that manner in
this final rule because the scope of the current rulemaking proceeding
is limited to a compliance-based regulatory approach, implemented
through a remedial directive. However, the number of motor carriers
that will be required to install, use and maintain EOBRs is
significantly greater under this final rule--using the 1 x 10 trigger--
than under the 2 x 10 trigger that was proposed in the NPRM. The RIA
examines the costs and benefits of two regulatory options, the 2 x 10
and the 1 x 10 remedial directives.
    Cost information was gathered from publicly available marketing
materials and contact with EOBR vendors. The RIA focuses on the least
expensive device determined to be compliant with the rule.\4\ We do not
expect all carriers to use this specific device, only that it
represents a device at the low end of the cost range of an EOBR that
the Agency believes would be compliant with the provisions of the final
rule.
---------------------------------------------------------------------------

    \4\ The least expensive device that satisfies the requirements
of the rule was found to be the RouteTracker sold by Turnpike
Global. Cost data are based on the use of this device with the
Sprint network.
---------------------------------------------------------------------------

    For many carriers, this rule would not require new equipment. Some
carriers already use AOBRDs, AOBRDs with enhanced functionality, or
onboard systems with EOBR functionality, which the rule will allow them
to continue using provided certain conditions are met. These carriers
are excluded from cost and benefit calculations when appropriate. Other
carriers employ Fleet Management Systems (FMS) that are capable of
fulfilling this rule's requirements with the activation of available
hardware or software functions. Estimates of costs are lower for
carriers that already have partial or complete EOBR functionality.
    Costs were estimated on an annualized basis over a ten-year
horizon. Costs and benefits that accrue throughout the year are
presented at their present value at the beginning of the year. Training
time costs for drivers, administrative staff, and State enforcement
personnel were estimated. The analysis estimates the cost to carriers
of coming into compliance with HOS and corresponding safety benefits as
induced through EOBR use. Cost savings on paper log purchase, use, and
processing are also assessed.
    Safety benefits of EOBR use are assessed by estimating reductions
in HOS violations and resulting reductions in fatigue-related crashes.
Other non-safety health effects (positive and negative) for drivers, as
a result of the potential decreased driving time based on increased
pressure on drivers to comply with the HOS regulations, are considered
but not quantified in this analysis.
    The estimates of the total net benefits are presented below: Of the
two regulatory options, the 1 x 10 remedial directive yields higher
total net benefit.

                                            Total Annual Net Benefits
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                              Regulatory option 1: 1 x  Regulatory option 2: 2 x
                                                                10 remedial directive     10 remedial directive
----------------------------------------------------------------------------------------------------------------
Total Costs.................................................                    ($139)                     ($14)
Total Benefits..............................................                      182                        22
                                                             ---------------------------------------------------
    Net Benefits............................................                       43                         8
----------------------------------------------------------------------------------------------------------------

    Additionally, the overall crash rates of both the 1 x 10 remedial
directive motor carriers and the 2 x 10 remedial directive motor
carriers are considerably higher than the crash rates of the general
motor carrier population. Using data from MCMIS and compliance review
databases, crash rates were computed by dividing total crashes by each
carrier's number of power units. The Agency compared crash rates
between the general motor carrier population and 1 x 10 remedial
directive motor carriers as well as between the general motor carrier
population and 2 x 10 remedial directive motor carriers. The 1 x 10
remedial directive motor carriers were found to have a 40 percent
higher crash rate than that of other carriers that have undergone
compliance reviews, and 2 x 10 remedial directive motor carriers had a
90 percent higher crash rate than that of other carriers that have
undergone compliance reviews. The final rule's application of a
remedial directive to the 1 x 10 remedial directive motor carriers
makes the best use of Agency resources and provides considerably higher
net benefits to society.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C.
601 et seq.), requires agencies to consider the impact of regulations
on small businesses, small non-profit organizations, and small
governmental jurisdictions, unless the Agency determines that a rule is
not expected to have a significant economic impact on a substantial
number of small entities (SEISNOSE). The remedial directive aspect of
this rule will be applicable to about 2,800 motor carriers in the first
year and 5,700 motor carriers each year thereafter. The Agency
estimates that the total net cost of this rule will be less than $100
per power unit per year, compared to revenues of over $100,000 per
power unit per year. Based on the number of carriers affected and the
overall cost impact to these carriers, the Agency does not expect this
rule to have a SEISNOSE. The Agency has prepared a small business
impact analysis for this rule that discusses its estimates of small
business impacts. This analysis has been placed in the docket.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. The FMCSA determined that this rule will affect the OMB
Control Number 2126-0001, ``Hours of Service of Drivers Regulation,
Supporting Documents,'' information collection request (ICR), approved
at 184,380,000 burden hours through December 31, 2011. The PRA requires
agencies to provide a specific, objectively supported estimate of
burden hours that will be imposed by the information collection. See 5
CFR 1320.8. The requirement triggering the paperwork burden imposed by
FMCSA's records of duty status requirement is set forth at 49 CFR
395.8.
    The FMCSA estimated that the remedial provisions of this final
rule, requiring the installation, use, and maintenance of EOBRs by
motor carriers with a threshold rate of serious HOS violations, would
affect approximately 5,700 motor carriers that employ 129,000 drivers
annually. The use of EOBRs will reduce the annual burden hours for
FMCSA's information collection OMB Control Number 2126-0001 by
3,110,000 hours. The FMCSA's revised estimate of the annual burden of
the IC is 181,270,000 hours (184,380,000-3,110,000).
    A supporting statement reflecting this assessment will be submitted
to OMB together with this final rule.

Privacy Impact Assessment

    Section 522(a)(5) of the Transportation, Treasury, Independent
Agencies, and General Government Appropriations Act, 2005, (Pub. L.
108-447, div. H, 118 Stat. 2809, 3268) requires the Department of
Transportation and certain other Federal agencies to conduct a privacy
impact assessment (PIA) of each proposed rule that will affect the
privacy of individuals. The Agency conducted a PIA for the NPRM, and we
have augmented the PIA for this final rule and placed the revised
version in the docket. Although the Agency determined that the same
personally identifiable information (PII) for CMV drivers currently
collected as part of the RODS and supporting documents requirements
would continue to be collected under this rulemaking, it recognized the
significance of the decision to require, even in limited circumstances,
that PII previously kept in paper copy now be kept electronically.
Privacy was a significant consideration in FMCSA's development of this
proposal. As stated earlier, we recognize that the need for a
verifiable EOBR audit trail--a detailed set of records to verify time
and physical location data for a particular CMV--must be
counterbalanced by privacy considerations. The Agency considered, but
rejected, certain alternative technologies to monitor drivers' HOS
(including in-cab video cameras and bio-monitors) as too invasive of
personal privacy. All CMV drivers subject to 49 CFR part 395 must have
their HOS accounted for to ensure they have adequate opportunities for
rest. This final rule would not change the Agency's policies,
practices, or regulations regarding its own collection and storage of
HOS records of individual drivers whose RODS are reviewed. The expanded
review procedures under the random review incentive, however, would
enlarge the population of drivers whose RODS are reviewed for those
carriers. It would also change the technology by which compliance is to
be documented, in a way that facilitates both the sharing of
information and its capacity to be data processed.
    As before, the HOS information recorded on EOBRs would be
accessible to Federal and State enforcement personnel only when
compliance assurance activities are conducted at the facilities of
motor carriers subject to the RODS requirement or when the CMVs of
those carriers are inspected at roadside. Motor carriers would not be
required to upload this information into Federal or

State information systems accessible to the public. This would aid data
security and ensure that general EOBR data collection does not result
in a new or revised Privacy Act System of Records for FMCSA. (Evidence
of violation of any FMCSA requirements uncovered during either of these
activities is transferred to a DOT/FMCSA Privacy Act record system.)
Data accuracy concerning drivers' RODS should improve as a result of
the new performance standards for EOBRs, allowing drivers to make EOBR
entries to identify any errors or inconsistencies in the data, and
mandating EOBR use by motor carriers with a history of serious HOS
noncompliance.
    What would change, and change significantly, is the capacity of
this data to be processed and converted to more usable information for
the purpose of determining drivers' and motor carriers' compliance with
the HOS regulations. Although no CMV operator would be required to
upload this data to a Federal or State database accessible to the
public, the electronic formulation of the data would make it easier for
a CMV operator to keep track of the activities of its drivers.
Similarly, Federal and State law enforcement and safety authorities,
including FMCSA, would be better able to do the same. As shown in other
contexts, the increased accessibility, accuracy, and reliability of
geospatial location information has made electronically generated and
preserved data attractive to a variety of audiences. On balance, we
must compel use of these devices in those situations described in this
rule. The entire privacy impact assessment is available in the docket
for this rule.

Unfunded Mandates Reform Act

    This rule would not result in the net expenditure by State, local
and Tribal governments, in the aggregate, or by the private sector, of
$141,300,000 or more in any one year, nor would it affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132 (Federalism)

    This rulemaking would not preempt or modify any provision of State
law, impose substantial direct unreimbursed compliance costs on any
State, or diminish the power of any State to enforce its own laws.
Accordingly, this rulemaking does not have Federalism implications
warranting the application of Executive Order 13132.

Executive Order 12372 (Intergovernmental Review)

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

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321 et seq., as amended) requires Federal agencies to consider the
consequences of, and prepare a detailed statement on, all major Federal
actions significantly affecting the quality of the human environment.
In accordance with its procedures for implementing NEPA (FMCSA Order
5610.1, Chapter 2.D.4(c) and Appendix 3), FMCSA prepared an EA to
review the potential impacts of this rulemaking. The EA findings are
summarized below. The full EA is in the docket.
    Implementation of this action would alter to some extent the
operation of CMVs. However, the rule will not require any new
construction or change significantly the number of CMVs in operation.
FMCSA found, therefore, that noise, hazardous materials, endangered
species, cultural resources protected under the National Historic
Preservation Act, wetlands, and resources protected under Section 4(f)
of the Department of Transportation Act would not be impacted by the
rule.
    The EA also examined impacts on air quality and public safety. We
anticipate that drivers of CMVs operated by carriers that have been
issued an EOBR remedial directive will now take the full off-duty
periods required by the HOS rules. During off-duty periods, drivers
frequently leave the CMV parked in ``idle,'' which increases engine
emissions on a per-mile basis. Hence, drivers for remediated carriers
will cause a modest overall increase in engine emissions by virtue of
additional drivers coming into compliance with the HOS regulations.
Because the number of trucks likely to be required to install EOBRs is
relatively small (139,000 out of 4.2 million total CMVs), FMCSA
determined that the increase in air toxics would be negligible.
Moreover, because drivers for carriers brought into HOS compliance will
experience less fatigue and be less likely to have fatigue-related
crashes, there will be a counterbalancing increase in public safety.
    FMCSA concludes that the rule changes will have a negligible impact
on the environment. The provisions under the action do not,
individually or collectively, pose any significant environmental
impact. Therefore, this rule change will not require an environmental
impact statement. Consequently, FMCSA issues a Finding of No
Significant Impact (FONSI) in the EA for this final rule.

Executive Order 13211 (Energy Supply, Distribution or Use)

    FMCSA determined that the rule will not significantly affect energy
supply, distribution, or use. No Statement of Energy Effects is
therefore required.

Executive Order 12898 (Environmental Justice)

    FMCSA considered the effects of this final rule in accordance with
Executive Order 12898 and DOT Order 5610.2 on addressing Environmental
Justice for Minority Populations and Low-Income Populations, published
April 15, 1997 (62 FR 18377) and determined that there are no
environmental justice issues associated with this rule or any
collective environmental impact resulting from its promulgation.
Environmental justice issues would be raised if there were
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations. None of the regulatory options considered in
this rulemaking will result in high and adverse environmental impacts.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires
agencies issuing ``economically significant'' rules, if the regulation
also concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. Although the rule is economically significant, it will
improve safety; the rule also would not have a disproportionate affect
on children. Therefore, FMCSA has determined that an analysis of the
impacts on children is not required.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise
have

taking implications under E. O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.

National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) requires Federal agencies proposing to adopt Government technical
standards to consider whether voluntary consensus standards are
available. If the Agency chooses to adopt its own standards in place of
existing voluntary consensus standards, it must explain its decision in
a separate statement to OMB.
    FMCSA determined there are no voluntary national consensus
standards for the design of EOBRs as complete units. However, there are
many voluntary consensus standards concerning communications and
information interchange methods that could be referenced as part of
comprehensive performance-based requirements for EOBRs to ensure their
reliable and consistent utilization by motor carriers and motor carrier
safety compliance assurance officials. For example, the digital
character set would reference the ASCII (American Standard Code for
Information Interchange) character set specifications, the most widely
used form of which is ANSI X3.4-1986. This is described in the
``American National Standard for Information Systems--Coded Character
Sets--7-Bit American National Standard Code for Information Interchange
(7-Bit ASCII) (ANSI document  ANSI INCITS 4-1986 (R2007))
published by the American National Standards Institute (ANSI). The
standard is available by contacting the American National Standards
Institute, 11 West 42nd Street, New York, New York 10036, or by
visiting the ANSI Web site at http://webstore.ansi.org. In another
example, the Agency would reference the 802.11g-2003 standard as
defined in the 802.11-2007 base standard for wireless communication
published by IEEE (Institute of Electrical and Electronics Engineers).
    We did review and evaluate the European Commission Council
Regulations 3821/85 (analog tachograph) and 2135/98 (digital
tachograph). These are not voluntary standards, but rather are design-
specific type-certification programs. We concluded these standards lack
several features and functions (such as CMV location tracking and the
ability for the driver to enter remarks) that FMCSA has included in its
performance-based final rule, and require other features (such as an
integrated license document on the driver's data card) that are not
appropriate for U.S. operational practices.

List of Subjects

49 CFR Part 350

    Grant programs--transportation, Highway safety, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 385

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

49 CFR Part 395

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

49 CFR Part 396

    Highways and roads, Motor carriers, Motor vehicle equipment, Motor
vehicle safety.

0
For the reasons stated in the preamble, FMCSA amends 49 CFR chapter III
as set forth below:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

0
1. The authority citation for part 350 is revised to read as follows:

    Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.

0
2. Amend Sec.  350.201 by revising the introductory text and adding a
new paragraph (z) to read as follows:

Sec.  350.201  What conditions must a State meet to qualify for Basic
Program Funds?

    Each State must meet the following 26 conditions:
* * * * *
    (z) Enforce requirements relating to FMCSA remedial directives
issued in accordance with 49 CFR part 385, subpart J, including
providing inspection services for verification of electronic on-board
recorder installation and operation as provided in Sec.  385.811(b).

PART 385--SAFETY FITNESS PROCEDURES

0
3. Revise the authority citation for part 385 to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350, Pub. L.
107-87; and 49 CFR 1.73.

0
4. Amend Sec.  385.1 by revising paragraph (a) to read as follows:

Sec.  385.1  Purpose and scope.

    (a) This part establishes FMCSA's procedures to determine the
safety fitness of motor carriers, to assign safety ratings, to direct
motor carriers to take remedial action when required, and to prohibit
motor carriers determined to be unfit from operating a CMV.
* * * * *

0
5. Amend Sec.  385.3 by adding a definition for the term ``safety
fitness determination'' in alphabetical order, by removing the existing
definition for the term ``safety ratings,'' and by adding a new
definition for the term ``safety rating or rating'' to read as follows:

Sec.  385.3  Definitions and acronyms.

* * * * *
    Safety fitness determination means the final determination by FMCSA
that a motor carrier meets the safety fitness standard under Sec.
385.5.
    Safety rating or rating means a rating of ``Satisfactory,''
``Conditional'' or ``Unsatisfactory,'' which the FMCSA assigns to a
motor carrier using the factors prescribed in Sec.  385.7, as computed
under the Safety Fitness Rating Methodology (SFRM) set forth in
Appendix B to this part and based on the carrier's demonstration of
adequate safety management controls under Sec.  385.5(a). A safety
rating of ``Satisfactory'' or ``Conditional'' is necessary, but not
sufficient, to meet the overall safety fitness standard under Sec.
385.5.
    (1) Satisfactory safety rating means that a motor carrier has in
place and functioning safety management controls adequate to meet that
portion of the safety fitness standard prescribed in Sec.  385.5(a).
Safety management controls are adequate for this purpose if they are
appropriate for the size and type of operation of the particular motor
carrier.
    (2) Conditional safety rating means a motor carrier does not have
adequate safety management controls in place to ensure compliance with
that portion of the safety fitness standard prescribed in Sec.
385.5(a), which could result in occurrences listed in Sec.  385.5(a)(1)
through (a)(11).
    (3) Unsatisfactory safety rating means a motor carrier does not
have adequate safety management controls in place to ensure compliance
with that portion of the safety fitness standard prescribed in Sec.
385.5(a), and this has resulted in occurrences listed in Sec.
385.5(a)(1) through (a)(11).
    (4) Unrated carrier means that the FMCSA has not assigned a safety
rating to the motor carrier.

0
6. Revise Sec.  385.5 to read as follows:

Sec.  385.5  Safety fitness standard.

    A motor carrier must meet the safety fitness standard set forth in
this section. Intrastate motor carriers subject to the hazardous
materials safety permit requirements of subpart E of this part must
meet the equivalent State requirements. To meet the safety fitness
standard, the motor carrier must demonstrate the following:
    (a) It has adequate safety management controls in place, which
function effectively to ensure acceptable compliance with applicable
safety requirements to reduce the risk associated with:
    (1) Commercial driver's license standard violations (part 383 of
this chapter),
    (2) Inadequate levels of financial responsibility (part 387 of this
chapter),
    (3) The use of unqualified drivers (part 391 of this chapter),
    (4) Improper use and driving of motor vehicles (part 392 of this
chapter),
    (5) Unsafe vehicles operating on the highways (part 393 of this
chapter),
    (6) Failure to maintain accident registers and copies of accident
reports (part 390 of this chapter),
    (7) The use of fatigued drivers (part 395 of this chapter),
    (8) Inadequate inspection, repair, and maintenance of vehicles
(part 396 of this chapter),
    (9) Transportation of hazardous materials, driving and parking rule
violations (part 397 of this chapter),
    (10) Violation of hazardous materials regulations (parts 170
through 177 of this title), and
    (11) Motor vehicle accidents, as defined in Sec.  390.5 of this
chapter, and hazardous materials incidents.
    (b) The motor carrier has complied with all requirements contained
in any remedial directive issued under subpart J of this part.

0
7. Amend Sec.  385.9 by revising paragraph (a) to read as follows:

Sec.  385.9  Determination of a safety rating.

    (a) Following a compliance review of a motor carrier operation,
FMCSA, using the factors prescribed in Sec.  385.7 as computed under
the Safety Fitness Rating Methodology set forth in Appendix B to this
part, shall determine whether the present operations of the motor
carrier are consistent with that portion of the safety fitness standard
set forth in Sec.  385.5(a), and assign a safety rating accordingly.
* * * * *

0
8. Amend Sec.  385.11 by revising the section heading and adding
paragraph (g) to read as follows:

Sec.  385.11   Notification of safety rating and safety fitness
determination.

* * * * *
    (g) If a motor carrier is subject to a remedial directive and
proposed determination of unfitness under subpart J of this part, the
notice of remedial directive will constitute the notice of safety
fitness determination. If FMCSA has not issued a notice of remedial
directive and proposed determination of unfitness under subpart J of
this part, a notice of a proposed or final safety rating will
constitute the notice of safety fitness determination.
0
9. Amend Sec.  385.13 by adding paragraph (e) as follows:

Sec.  385.13  Unsatisfactory rated motor carriers; prohibition on
transportation; ineligibility for Federal contracts.

* * * * *
    (e) Revocation of operating authority. If a proposed
``unsatisfactory'' safety rating or a proposed determination of
unfitness becomes final, the FMCSA will, following notice, issue an
order revoking the operating authority of the owner or operator. For
purposes of this section, the term ``operating authority'' means the
registration required under 49 U.S.C. 13902 and Sec.  392.9a of this
subchapter. Any motor carrier that operates CMVs after revocation of
its operating authority will be subject to the penalty provisions
listed in 49 U.S.C. 14901.

0
10. Amend Sec.  385.15 by revising paragraph (a) to read as follows:

Sec.  385.15  Administrative review.

    (a) A motor carrier may request the FMCSA to conduct an
administrative review if it believes FMCSA has committed an error in
assigning its proposed safety rating in accordance with Sec.  385.11(c)
or its final safety rating in accordance with Sec.  385.11(b).
* * * * *

0
11. Amend Sec.  385.17 by adding paragraphs (k) and (l) to read as
follows:

Sec.  385.17   Change to safety rating based upon corrective actions.

* * * * *
    (k) An upgraded safety rating based upon corrective action under
this section will have no effect on an otherwise applicable notice of
remedial directive, or proposed determination of unfitness issued in
accordance with subpart J of this part.
    (l) A motor carrier may not request a rescission of a determination
of unfitness issued under subpart J of this part based on corrective
action.

0
12. Amend Sec.  385.19 by revising paragraphs (a) and (b) to read as
follows:

Sec.  385.19  Safety fitness information.

    (a) Final safety ratings, remedial directives, and safety fitness
determinations will be made available to other Federal and State
agencies in writing, telephonically, or by remote computer access.
    (b) The final safety rating, any applicable remedial directive(s),
and the safety fitness determination pertaining to a motor carrier will
be made available to the public upon request. Any person requesting
information under this paragraph must provide FMCSA with the motor
carrier's name, principal office address, and, if known, the USDOT
Number or the Interstate Commerce Commission MC (ICCMC) docket number
if any.
* * * * *

0
13. Amend Sec.  385.407 by revising paragraph (a) to read as follows:

Sec.  385.407  What conditions must a motor carrier satisfy for FMCSA
to issue a safety permit?

    (a) Motor carrier safety performance. (1) The motor carrier:
    (i) Must be in compliance with any remedial directive issued under
subpart J of this part, and
    (ii) Must have a ``Satisfactory'' safety rating assigned by either
FMCSA, under the Safety Fitness Procedures of this part, or the State
in which the motor carrier has its principal place of business, if the
State has adopted and implemented safety fitness procedures that are
equivalent to the procedures in subpart A of this part.
    (2) FMCSA will not issue a safety permit to a motor carrier that:
    (i) Does not certify that it has a satisfactory security program as
required in Sec.  385.407(b);
    (ii) Has a crash rate in the top 30 percent of the national average
as indicated in FMCSA Motor Carrier Management Information System
(MCMIS); or
    (iii) Has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average as indicated
in the MCMIS.
* * * * *

0
14. Amend part 385 by adding a new subpart J consisting of new
Sec. Sec.  385.801 through 385.819 to read as follows:
Subpart J--Remedial Directives
Sec.
385.801 Purpose and scope.
385.803 Definitions and acronyms.
385.805 Events triggering issuance of remedial directive and
proposed determination of unfitness.
385.807 Notice and issuance of remedial directive.
385.809 [Reserved]

385.811 Proof of compliance with remedial directive.
385.813 Issuance and conditional rescission of proposed unfitness
determination.
385.815 Exemption for AOBRD users.
385.817 Administrative review.
385.819 Effective of failure to comply with remedial directive.

Subpart J--Remedial Directives

Sec.  385.801  Purpose and scope.

    (a) This subpart establishes procedures for FMCSA's issuance of
notices of remedial directives and proposed determinations of
unfitness.
    (b) This subpart establishes the circumstances under which FMCSA
will direct motor carriers (including owner-operators leased to motor
carriers, regardless of whether the owner-operator has separate
operating authority under part 365), in accordance with Sec.  385.1(a),
to install electronic on-board recorders (EOBRs) in their commercial
motor vehicles as a remedy for threshold rate violations, as defined by
Sec.  385.803, of the part 395 hours-of-service regulations listed in
Appendix C to this part.
    (c) This subpart establishes the procedures by which motor carriers
may challenge FMCSA's issuance of proposed determinations of unfitness
and remedial directives.
    (d) The provisions of this subpart apply to all motor carriers
subject to the requirements of part 395 of this chapter.

Sec.  385.803  Definitions and acronyms.

    (a) The definitions in subpart A of this part and part 390 of this
chapter apply to this subpart, except where otherwise specifically
noted.
    (b) As used in this subpart, the following terms have the meaning
specified:
    Appendix C regulation means any of the regulations listed in
Appendix C to Part 385 of this chapter.
    Appendix C violation means a violation of any of the regulations
listed in Appendix C to part 385 of this chapter.
    Electronic on-board recording device (EOBR) means an electronic
device that is capable of recording a driver's duty hours of service
and duty status accurately and automatically and that meets the
requirements of Sec.  395.16 of this chapter.
    Final determination for purposes of part 385, subpart J means:
    (1) An adjudication under this subpart upholding a notice of
remedial directive and proposed unfitness determination;
    (2) The expiration of the period for filing a request for
administrative review of remedial directive and proposed unfitness
determination under this subpart; or
    (3) The entry of a settlement agreement stipulating that the
carrier is subject to mandatory EOBR installation, use, and maintenance
requirements.
    Motor carrier includes owner-operators leased to carriers subject
to a remedial directive, regardless of whether the owner-operator has
separate operating authority under part 365 of this chapter.
    Proposed determination of unfitness or proposed unfitness
determination means a determination by FMCSA that a motor carrier will
not meet the safety fitness standard under Sec.  385.5 on a specified
future date unless the carrier takes the actions necessary to comply
with the terms of a remedial directive issued under this subpart.
    Remedial directive means a mandatory instruction from FMCSA to take
one or more specified action(s) as a condition of demonstrating safety
fitness under 49 U.S.C. 31144(b).
    Threshold rate violation for the purposes of this subpart means a
violation rate for any Appendix C regulation equal to or greater than
10 percent of the number of records reviewed.

Sec.  385.805  Events triggering issuance of remedial directive and
proposed determination of unfitness.

    A motor carrier subject to 49 CFR part 395 will be subject to a
remedial directive and proposed unfitness determination in accordance
with this subpart for threshold rate violations of any Appendix C
regulation or regulations that have been documented during a compliance
review. A remedial directive and proposed unfitness determination will
be issued if a compliance review conducted on the motor carrier
resulted in a final determination of one or more threshold rate
violations of any Appendix C regulation are discovered.

Sec.  385.807  Notice and issuance of remedial directive.

    (a) Following the close of the compliance review described in Sec.
385.805(a), FMCSA will issue the motor carrier a written notice of
remedial directive and proposed determination of unfitness. FMCSA will
issue the notice and proposed determination as soon as practicable, but
not later than 30 days after the close of the review.
    (b) The remedial directive will state that the motor carrier is
required to install and maintain EOBRs compliant with Sec.  395.16 of
this chapter in all of the motor carrier's CMVs and to use the EOBRS to
record its drivers' hours of service pursuant to Sec.  395.16. The
motor carrier shall provide proof of the installation to FMCSA in
accordance with Sec.  385.811 within the following time periods:
    (1) Motor carriers transporting hazardous materials in quantities
requiring placarding, and motor carriers transporting passengers in a
CMV, must install EOBRs and provide proof of the installation by the
45th day after the date of the notice of remedial directive.
    (2) All other motor carriers must install EOBRs and provide proof
of installation by the 60th day after the date of FMCSA's notice of