[Federal Register Volume 79, Number 60 (Friday, March 28, 2014)]
[Proposed Rules]
[Pages 17655-17724]
[FR Doc No: 2014-05827]

Vol. 79

Friday,

No. 60

March 28, 2014

Part II

Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Parts 385, 386, 390, et al.

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

Federal Register / Vol. 79 , No. 60 / Friday, March 28, 2014 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, and 395

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

Electronic Logging Devices and Hours of Service Supporting
Documents

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

ACTION: Supplemental notice of proposed rulemaking; request for
comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes amendments to the Federal Motor Carrier Safety Regulations
(FMCSRs) to establish: Minimum performance and design standards for
hours-of-service (HOS) electronic logging devices (ELDs); requirements
for the mandatory use of these devices by drivers currently required to
prepare HOS records of duty status (RODS); requirements concerning HOS
supporting documents; and measures to address concerns about harassment
resulting from the mandatory use of ELDs. This rulemaking supplements
the Agency's February 1, 2011, Notice of Proposed Rulemaking (NPRM) and
addresses issues raised by the U.S. Court of Appeals for the Seventh
Circuit in its 2011 decision vacating the Agency's April 5, 2010, final
rule concerning ELDs as well as subsequent statutory developments. The
proposed requirements for ELDs would improve compliance with the HOS
rules.

DATES: Comments must be received on or before May 27, 2014. Comments
sent to the Office of Management and Budget (OMB) on the collection of
information must be received by OMB on or before May 27, 2014. Before
publishing a final rule, FMCSA will submit to the Office of the Federal
Register publications listed in the rule for approval of the
publications' incorporation by reference.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2010-0167 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs, OMB.

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

SUPPLEMENTARY INFORMATION: This supplemental notice of proposed
rulemaking (SNPRM) is organized as follows:

I. Executive Summary
II. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Comments on the Collection of Information
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
    A. Motor Carrier Act of 1935
    B. Motor Carrier Safety Act of 1984
    C. Truck and Bus Safety and Regulatory Reform Act
    D. Hazardous Materials Transportation Authorization Act of 1994
    E. MAP-21
V. Background
    A. ELDs: Discussion of the 2010 Final Rule and the 2011 NPRM
    B. History of the Supporting Documents Rule
    C. Concurrent Activities
    D. Table Summary
VI. ELD Performance and Design Specifications
    A. Terminology
    B. ELD Function
    C. ELD Regulatory Compliance
VII. Proposed ELD Mandate
VIII. Proposed Compliance Date
    A. Effective and Compliance Dates for a Final Rule
    B. 2-Year Transition Period
    C. Cost Associated With Replacing AOBRDs
IX. Proposed Supporting Document Provisions
    A. Applicability
    B. Categories
    C. Data Elements
    D. Number
    E. Submission to Motor Carrier
    F. HOS Enforcement Proceedings
    G. Carriers Using Paper Logs
    H. Self-Compliance Systems
X. Ensuring Against Driver Harassment
    A. Drivers' Access to Own Records
    B. Explicit Prohibition on Harassment
    C. Complaint Procedures
    D. Enhanced Penalties To Deter Harassment
    E. Mute Function
    F. Edit Rights
    G. Tracking of Vehicle Location
    H. FMCSRs Enforcement Proceedings
    I. Summary
XI. MAP-21 Coercion Language
XII. Section-by-Section Analysis
    A. Part 385--Safety Fitness Procedures
    B. Part 386--Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous
Materials Proceedings
    C. Part 390--Federal Motor Carrier Safety Regulations: General
    D. Part 395--Hours of Service of Drivers
XIII. Regulatory Analyses
    A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review)
and DOT Regulatory Policies and Procedures
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Executive Order 12988 (Civil Justice Reform)
    E. Executive Order 13045 (Protection of Children)
    F. Executive Order 12630 (Taking of Private Property)
    G. Executive Order 13132 (Federalism)
    H. Executive Order 12372 (Intergovernmental Review)
    I. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments
    J. Paperwork Reduction Act
    K. National Environmental Policy Act and Clean Air Act
    L. Executive Order 12898 (Environmental Justice)
    M. Executive Order 13211 (Energy Effects)
    N. National Technology Transfer and Advancement Act
    O. E-Government Act of 2002

I. Executive Summary

    This SNPRM would improve commercial motor vehicle (CMV) safety and
reduce the overall paperwork burden for both motor carriers and drivers
by increasing the use of ELDs within the motor carrier industry, which
would in turn improve compliance with the applicable HOS rules.
Specifically, this SNPRM proposes: (1) Requiring new technical
specifications for ELDs that address statutory requirements; (2)
mandating ELDs for drivers currently using RODS; (3) clarifying
supporting document requirements so that motor carriers and drivers can
comply efficiently with HOS regulations, and so that motor carriers can
make the best use of ELDs and related support systems as their primary
means of recording HOS information and ensuring HOS

compliance; and (4) proposing both procedural and technical provisions
aimed at ensuring that ELDs are not used to harass vehicle operators.
    In August 2011, however, the United States Court of Appeals for the
Seventh Circuit vacated the April 2010 final rule, including the device
performance standards. See Owner-Operator Indep. Drivers Ass'n v. Fed.
Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011) available in
the docket for this rulemaking. Thus, FMCSA expands the 2011 NPRM
significantly. The regulatory text proposed in today's SNPRM supersedes
that published in the February 2011 NPRM.
    All of the previous rulemaking notices, as well as notices
announcing certain Motor Carrier Safety Advisory Committee (MCSAC)
meetings and public listening sessions, referred to the devices and
support systems used to record electronically HOS RODS as ``electronic
on-board recorders (EOBRs).'' Beginning with this SNPRM, the term
``electronic logging device (ELD)'' is substituted for the term
``EOBR'' in order to be consistent with the term used in MAP-21. To the
extent applicable, a reference to an ELD includes a related motor
carrier or vendor central support system--if one is used--to manage or
store ELD data.
    This rulemaking is based on authority in a number of statutes,
including the Motor Carrier Act of 1935, the Motor Carrier Safety Act
of 1984, the Truck and Bus Safety and Regulatory Reform Act of 1988,
the Hazardous Materials Transportation Authorization Act of 1994
(HMTAA), and MAP-21.
    This SNPRM follows the NPRM published February 1, 2011 (76 FR
5537). The original NPRM had three components that: (1) Required ELDs
to be used by motor carriers and drivers required to prepare
handwritten RODS; (2) required motor carriers to develop and maintain
systematic HOS oversight of their drivers; and (3) simplified
supporting document requirements so motor carriers could achieve
paperwork efficiencies from ELDs and their support systems as their
primary means of recording HOS information and ensuring HOS compliance.
This SNPRM modifies that earlier proposal based on docket comments and
other new information received by the Agency. Because the Agency's 2010
final rule providing technical specifications for ELDs was vacated,
this SNPRM also proposes new technical specifications for ELDs and
addresses the issue of ELDs being used by motor carriers to harass
drivers. The SNPRM supersedes the February 1, 2011, NPRM.
    This rulemaking examines four options:
     Option 1: ELDs are mandated for all CMV operations subject
to 49 CFR part 395.
     Option 2: ELDs are mandated for all CMV operations where
the driver is required to complete RODS under 49 CFR 395.8.
     Option 3: ELDs are mandated for all CMV operations subject
to 49 CFR part 395, and the ELD is required to include or be able to be
connected to a printer and print RODS.
     Option 4: ELDs are mandated for all CMV operations where
the driver is required to complete RODS under 49 CFR 395.8, and the ELD
is required to include or be able to be connected to a printer and
print RODS.
    The following table lists the breakdown of regulated entities under
FMCSA's regulations:

                                                               Table 1--Regulated Entities
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                                                             For-hire        For-hire
                                                              general       specialized      For-hire         Private         Private          Total
                                                              freight         freight      passenger \1\     property        passenger
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Carriers................................................         176,000         139,000           8,000         203,000           6,000         532,000
Percent of Carriers.....................................             33%             26%              2%             38%              1%            100%
Drivers.................................................       1,727,000         891,000         216,000       1,442,000          40,000       4,316,000
Percent of Drivers......................................             40%             21%              5%             33%              1%            100%
Total CMVs..............................................       1,717,000       1,003,000         183,000       1,433,000          24,000       4,360,000
Percent of CMVs.........................................             39%             23%              4%             33%              1%            100%
Herfindahl-Hirschman Index..............................              53               5             406               6              15              10
10-Firm Concentration...................................           18.0%  ..............           38.0%
Single-Truck For-Hire Carriers..........................          93,000          65,000
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Source: FMCSA, Motor Carrier Management Information System (MCMIS) registration data as of December 14, 2012.

    FMCSA evaluated \1\ another option for the NPRM prepared in 2011,
which would have required ELD use by hazardous materials and passenger
carriers that did not use RODS, in addition to all RODS users. This was
not the preferred option then and it was not part of this evaluation.
The marginal net benefits of including those groups in the rule were
negative. When these carrier populations were added to RODS users,
estimated net benefits, although they were positive, were 8.5 percent
lower than the net benefits calculated using the RODS-only population.
Hazardous material carriers and passenger carriers tend to have above
average safety records. This may be because they are subject to many
other safety regulations, and are overseen by FMCSA and other Federal
agencies. However, neither group will gain paperwork savings from
eliminating paper RODS, as costs exceeded benefits for these two
groups.
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    \1\ Includes 2,000 carriers with only taxi/limousine services
operating in interstate commerce.
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    FMCSA gathered cost information from publicly available marketing
material and through communication with fleet management systems (FMS)
vendors. Although the prices of some models have not significantly
declined in recent years, manufacturers have been introducing less
expensive FMS in-cab units and support systems with fewer features (for
example, they do not include real time tracking and routing), as well
as in-cab units that resemble a stand-alone ELD. The Agency bases its
calculations in this RIA on the Mobile Computing Platform (MCP) 50
produced by Qualcomm, which is the largest manufacturer (by market
share) of FMS in North America.\2\ While this analysis is not an
endorsement of Qualcomm's products, the Agency believes that its

large market share makes the MCP 50 FMS an appropriate example of
current state-of-the-art, widely available devices with ELD
functionality. FMCSA also examined cost information from several other
vendors, and found that the MCP 50, when all installation, service, and
hardware costs are considered, falls roughly into the middle of the
price range of FMSs with ELD capabilities: $495 per CMV on an
annualized basis where the range is from $165 to $832 per CMV on an
annualized basis. The Agency also carefully considered the VDO RoadLog
ELD produced by the Continental Corporation, which, through its VDO
subsidiary, has a 90 percent share of the electronic tachograph market
in the European Union (EU) and more than 5 million electronic
tachographs or ELD devices in use worldwide.\3\ Continental has
recently begun offering the RoadLog ELD in the North American market,
and the Agency believes that the overall capacity and market share of
this corporation may allow it to influence the U.S. ELD market. As
discussed below, the Agency has found that basing costs on the MCP 50,
the VDO RoadLog, or several other devices, all lead to positive net
benefits of this rulemaking. Although carrier preferences and device
availability prevent FMCSA from more precisely estimating costs, it is
confident that they will be lower than the rule's benefits.
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    \2\ Qualcomm Incorporated 2012 Annual Report, Securities and
Exchange Commission Form 10K, (investor.qualcomm.com/annuals.cfm.)
The Qualcomm Enterprise Services (QES, recently renamed Omnitracs)
reported revenues of $371 million in fiscal year 2012. Omnitracs
currently estimates its active installed base of FMS, which include
those with an ELD function, to be 350,000 in North America, most of
which are operated in the US (http://www.qualcomm.com/solutions/transportation-logistics). FMCSA estimates that about 955,000 CMVs
currently use FMS in the US, including those with an ELD function,
which indicates that Qualcomm's US market share is as high as 37
percent.
    \3\ http://www.RoadLog.vdo.com/generator/www/us/en/vdo/RoadLog/about_vdo/about_vdo_en.html. May 9, 2012.
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    The Agency requests comments on its analysis of the ELD and FMS
markets, and, in particular, how prices and availability of units
affect motor carriers differently with respect to fleet size. This
analysis also evaluates the costs and benefits of improvements in motor
carrier compliance with the underlying HOS rules through the use of
ELDs. To evaluate compliance costs, the Agency has updated its
assessment of the baseline level of non-compliance with the HOS rules
to account for changes in factors such as inflation, changes in the HOS
violation rate that preceded the mandate for ELD use, and the vehicle
miles traveled by CMVs. To evaluate safety benefits, the Agency
examined several types of analysis and has used its judgment to select
a conservative result for the number of crashes and fatalities avoided
by ELD use. The costs and benefits are detailed in the RIA associated
with this rulemaking and the methods by which they were derived are
also discussed. The major elements that contribute to the overall net
benefits are shown below in Table 1. This table summarizes the figures
for the Agency's preferred option, Option 2, which also has the highest
net benefits.

                    Table 2--Cost and Benefit Summary
------------------------------------------------------------------------
                                   Annualized
                                   total value
          Cost element               ($2011               Notes
                                    millions)
------------------------------------------------------------------------
New ELDs.......................           955.7  For all long haul (LH)
                                                  and short haul (SH)
                                                  drivers that use RODS,
                                                  to pay for new devices
                                                  and FMS upgrades.
Automatic On-Board Recording                8.7  Carriers that purchased
 Device (AOBRD) Replacement                       AOBRDs for their CMVs
 Costs.                                           and can be predicted
                                                  to still have them in
                                                  2018 would have to
                                                  replace them with
                                                  ELDs.
Equipment for Inspectors.......             2.0  Quick Response Code
                                                  (QR) scanners to read
                                                  ELD output. These
                                                  would be heavily used,
                                                  and we assume they
                                                  will be replaced three
                                                  times during the 10
                                                  year period for which
                                                  we are estimating
                                                  costs.
Inspector Training.............             1.7  Costs include travel to
                                                  training sites, as
                                                  well as training time,
                                                  for all inspectors in
                                                  the first year and for
                                                  the new officers every
                                                  year after.
CMV Driver Training............             6.7  Costs of training new
                                                  drivers in 2016, and
                                                  new drivers each year
                                                  thereafter.
Compliance.....................           604.0  Extra drivers and CMVs
                                                  needed to ensure that
                                                  no driver exceeds HOS
                                                  limits.
------------------------------------------------------------------------
        Benefit element              Annualized  Notes
                                    total value
                                         ($2011
                                      millions)
------------------------------------------------------------------------
Paperwork Savings (Total of             1,637.7
 three parts below).
(1) Driver Time................         1,261.4  Reflects time saved as
                                                  drivers no longer have
                                                  to fill out and submit
                                                  paper RODS.
(2) Clerical Time..............           278.8  Reflects time saved as
                                                  office staff no longer
                                                  have to process paper
                                                  RODS.
(3) Paper Costs................            97.6  Purchases of paper
                                                  logbooks are no longer
                                                  necessary.
Safety (Crash Reductions)......           394.8  Although the predicted
                                                  number of crash
                                                  reductions is lower
                                                  for SH than LH
                                                  drivers, both should
                                                  exhibit less fatigued
                                                  driving if HOS
                                                  compliance increases.
                                                  Complete HOS
                                                  compliance is not
                                                  assumed.
------------------------------------------------------------------------

    This SNPRM also proposes changes to the HOS supporting document
requirements. The Agency has attempted to clarify its supporting
document requirements, recognizing that ELD records serve as the most
robust form of documentation for on-duty driving periods. FMCSA neither
increases nor decreases the burden associated with supporting
documents. These proposed changes are expected to improve the quality
and usefulness of the supporting documents retained, and would
consequently increase the effectiveness and efficiency of the Agency's
review of motor carriers' HOS records during on-site compliance
reviews, thereby increasing its ability to detect HOS rules violations.
The Agency is currently unable to evaluate the impact the proposed
changes to supporting documents requirements would have on crash
reductions. Tables 3 and 4 summarize the analysis. The figures
presented are annualized using 7 percent and 3 percent discount rates.

                                     Table 3--Annualized Costs and Benefits
                                    [$2011 millions, 7 percent discount rate]
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                                                                Option 1     Option 2     Option 3     Option 4
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New ELD Costs...............................................     $1,270.0       $955.7     $1,722.6     $1,311.1
AOBRD Replacement Costs.....................................          8.7          8.7          8.7          8.7
HOS Compliance Costs........................................        726.6        604.0        726.6        604.0
Enforcement Training Costs..................................          1.7          1.7          1.7          1.7
Enforcement Equipment Costs.................................          2.0          2.0          0.0          0.0
Driver Training.............................................          8.5          6.7          8.5          6.7
                                                             ---------------------------------------------------
    Total Costs.............................................      2,017.4      1,578.7      2,468.0      1,932.1
Paperwork Savings...........................................      1,637.7      1,637.7      1,637.7      1,637.7
Safety Benefits.............................................        474.8        394.8        474.8        394.8
                                                             ---------------------------------------------------
    Total Benefits..........................................      2,112.5      2,032.5      2,112.5      2,032.5
                                                             ---------------------------------------------------
        Net Benefits........................................         95.1        453.8       -355.5        100.4
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                                     Table 4--Annualized Costs and Benefits
                                    [$2011 Millions, 3 percent discount rate]
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                                                                Option 1     Option 2     Option 3     Option 4
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ELD Costs...................................................     $1,260.7       $949.5     $1,707.4     $1,300.3
AOBRD Replacement Costs.....................................          8.0          8.0          8.0          8.0
HOS Compliance Costs........................................        726.6        604.1        726.6        604.1
Enforcement Training Costs..................................          1.6          1.6          1.6          1.6
Enforcement Equipment Costs.................................          2.0          2.0          0.0          0.0
Driver Training.............................................          7.5          5.9          7.5          5.9
                                                             ---------------------------------------------------
    Total Costs.............................................      2,006.4      1,571.1      2,451.1      1,919.9
Paperwork Savings...........................................      1,670.2      1,670.2      1,670.2      1,670.2
Safety Benefits.............................................        474.8        394.8        474.8        394.8
                                                             ---------------------------------------------------
    Total Benefits..........................................      2,145.0      2,065.0      2,145.0      2,065.0
                                                             ---------------------------------------------------
        Net Benefits........................................        138.6        493.9       -306.1        145.1
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    The estimated benefits of ELDs do not differ greatly among the
options, and the paperwork savings are identical for all four options.
The Agency estimates zero paperwork burden from operations exempt from
RODS, so ELDs can only reduce the paperwork burden of RODs users, which
are included in all four options. Safety benefits are higher when all
regulated CMV operations are included in the ELD mandate (Options 1 and
3), but the marginal costs (ELD costs plus compliance costs) of
including these operations are about 5\1/2\ times higher than the
marginal benefits. These options would add short-haul drivers who do
not use RODS, have better HOS compliance, and much lower crash risk
from HOS non-compliance. For the short-haul non-RODS subgroup, FMCSA's
analysis indicates that ELDs are not a cost-effective solution to their
HOS non-compliance problem. This result is consistent with that of past
ELD analyses. The requirement for printers with each ELD would increase
ELD costs by about 40 percent. This is the first time that FMCSA has
explored requiring a printer, and it seeks comment on the feasibility
and accuracy of the benefit and cost estimates associated with this
requirement. Only Option 2, which would require ELDs similar to those
currently being manufactured for paper RODS users, provides positive
net benefits. Net benefits for Options 1, 2, and 4 are positive with a
3 percent discount rate, but the net benefits for Option 2 are still
much higher than those of other options--about 11 times higher than the
net benefits of the next best alternative, Option 4. Non-monetized
benefits of the various options are also substantial. The number of
crashes avoided ranges from 1,425 to 1,714, and this rule could save
between 20 and 24 lives per year. Review of Trucks Involved in Fatal
Accidents (TIFA) data from 2005-2009 supports this analysis: Variables
indicating that the driver of the CMV was drowsy, sleepy, asleep, or
fatigued are coded for crashes that caused an average of 85 deaths per
year in that period (http://www.umtri.umich.edu/our-results/publications/trucks-involved-fatal-accidents-factbook-2008-linda-jarossi-anne-matteson). An average of nine crashes per year in TIFA was
associated with fatigued drivers exceeding drive time limits.
Additional factors were at play in most of these events, but the
removal of some substantial fraction of fatigued driving should provide
some benefit. Estimated crash reductions due to the proposed rule are
summarized in Table 5.

                                    Table 5--Estimated Reductions in Crashes
----------------------------------------------------------------------------------------------------------------
                                                                Option 1     Option 2     Option 3     Option 4
----------------------------------------------------------------------------------------------------------------
Crashes Avoided.............................................        1,714        1,425        1,714        1,425
Injuries Avoided............................................          522          434          522          434

Lives Saved.................................................           24           20           24           20
----------------------------------------------------------------------------------------------------------------

II. Public Participation and Request for Comments

    After the publication of the 2011 NPRM, Congress enacted MAP-21;
the Act that mandated that the Agency require the use of ELDs by
interstate CMV drivers required to keep RODS. In addition, the Agency
gained information as part of its outreach efforts. Because the
proposed regulatory text in today's SNPRM supersedes that proposed in
the 2011 NPRM, and because of the significance of the changes, FMCSA
encourages stakeholders and members of the public--including those who
submitted comments previously--to participate in this rulemaking by
submitting comments and related materials on the complete proposal.
FMCSA will address comments submitted in response to the February 2011
NPRM (76 FR 5537) as part of a final rule, to the extent such comments
are relevant given the intervening events since publication of that
document and today's SNPRM.

A. Submitting Comments

    If you submit a comment, please include the docket number for this
SNPRM (Docket No. FMCSA-2010-0167), indicate the specific section of
this document to which each section applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2010-0167, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
    We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

B. Viewing Comments and Documents

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

C. Privacy Act

    All comments received will be posted without change to http://www.regulations.gov and will include any personal information you
provide. Anyone may search the electronic form of comments received
into any of our dockets by the name of the individual submitting the
comment (or of the person signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register (FR) notice
published on January 17, 2008 (73 FR 3316) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

D. Comments on the Collection of Information

    If you have comments on the collection of information discussed in
this SNPRM, you must also send those comments to the Office of
Information and Regulatory Affairs at OMB. To ensure that your comments
are received on time, the preferred methods of submission are by email
to<EMAIL_ADDRESS>(include docket number ``FMCSA-2010-
0167'' and ``Attention: Desk Officer for FMCSA, DOT'' in the subject
line of the email) or fax at<PHONE_NUMBER>. An alternative, though
slower, method is by U.S. Mail to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503, ATTN: Desk Officer, FMCSA, DOT.

III. Abbreviations and Acronyms

Automatic On-Board Recording Device........  AOBRD.
Behavior Analysis Safety Improvement         BASICs.
 Categories.
Commercial Driver's License................  CDL.
Commercial Motor Vehicle...................  CMV.
Compliance, Safety, Accountability.........  CSA.
Department of Transportation...............  DOT.
Electronic Control Module..................  ECM.
Electronic Logging Device..................  ELD.
Electronic On-Board Recorder...............  EOBR.
Extensible Markup Language.................  XML.
Federal Motor Carrier Safety Administration  FMCSA.
Federal Motor Carrier Safety Regulations...  FMCSRs.
Fleet Management System....................  FMS.
Geographic Names Information System........  GNIS.
Global Positioning System..................  GPS.
Hazardous Materials........................  HM.
Hours of Service...........................  HOS.
Mobile Computing Platform 50...............  MCP50.
Motor Carrier Management Information System  MCMIS.
Motor Carrier Safety Advisory Committee....  MCSAC.
Motor Carrier Safety Assistance Program....  MCSAP.
National Highway Traffic Safety              NHTSA.
 Administration.
National Transportation Safety Board.......  NTSB.
North American Free Trade Agreement........  NAFTA.
North American Industrial Classification     NAICS.
 System.
Notice of Proposed Rulemaking..............  NPRM.
Office of Management and Budget............  OMB.
On-Duty Not Driving........................  ODND.
Personally Identifiable Information........  PII.
Quick Response.............................  QR.
Record of Duty Status......................  RODS.
Regulatory Impact Analysis.................  RIA.
Supplemental Notice of Proposed Rulemaking.  SNPRM.
Universal Serial Bus.......................  USB.
Vehicle Identification Number..............  VIN.

IV. Legal Basis for the Rulemaking

    FMCSA's authority for this rulemaking is derived from several
statutes.

A. Motor Carrier Act of 1935

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

B. Motor Carrier Safety Act of 1984

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

C. Truck and Bus Safety and Regulatory Reform Act

    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act
(Pub. L. 100-690, 102 Stat. 4181, 4529, November 18, 1988) anticipated
the Secretary's promulgating a regulation about the use of monitoring
devices on CMVs to increase compliance with HOS regulations. The
statute, as amended, requires the Agency to ensure that any such device
is not used to ``harass a vehicle operator'' (49 U.S.C. 31137(a)(2)).
This SNPRM would protect drivers from being harassed by motor carriers
to violate safety regulations and would limit a motor carriers' ability
to interrupt a driver's sleeper berth period. In so doing, the SNPRM
also furthers the provisions of 49 U.S.C. 31136(a), protecting driver's
health. The provisions addressing harassment proposed in this SNPRM are
discussed in more detail under Part X.

D. Hazardous Materials Transportation Authorization Act of 1994

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

E. MAP-21

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

keep RODS, be equipped with ELDs.\4\ The statute sets out provisions
that the regulations must address, including device performance and
design standards and certification requirements. In adopting
regulations, the Agency must consider how the need for supporting
documents might be reduced, to the extent data is captured on an ELD,
without diminishing HOS enforcement. The statute also addresses privacy
protection and use of data. Like the Truck and Bus Safety and
Regulatory Reform Act, the amendments in MAP-21 section 32301(b)
require the regulations to ``ensur[e] that an electronic logging device
is not used to harass a vehicle operator.'' Finally, as noted above,
MAP-21 amended the 1984 Act to add new 49 U.S.C. 31136(a)(5), requiring
that FMCSA regulations address coercion of drivers as discussed above.
---------------------------------------------------------------------------

    \4\ In today's SNPRM, the term ``electronic logging device
(ELD)'' is substituted for the term ``electronic on-board recorder
(EOBR),'' which was used in the April 2010 final rule and February
2011 NPRM, in order to be consistent with the term used in MAP-21.
In this SNPRM, we use the term ELD both generically and
specifically. Generically, we use it to describe what has in the
past been called an ELD, an EOBR, or a fleet management system
(FMS). In referring to the proposed regulation, we use the term
specifically to mean a device or technology that complies with
proposed subpart B of part 395.
---------------------------------------------------------------------------

V. Background

A. ELDs: Discussion of the 2010 Final Rule and the 2011 NPRM

1. April 2010 Rule
    On April 5, 2010, the Agency issued a final rule (April 2010 rule)
that addressed the limited, remedial use of electronic on-board
recorders or EOBRs--now termed ``ELDs''--for motor carriers with
significant HOS violations (75 FR 17208).\5\ The rule also contained
new performance standards for all ELDs installed in CMVs manufactured
on or after June 4, 2012. These standards reflected the significant
advances in recording and communications technologies that had occurred
since the introduction of the first AOBRDs under a waiver program in
1985 and the publication of 49 CFR 395.15 in 1988 (53 FR 38666). FMCSA
would have required ELDs:
---------------------------------------------------------------------------

    \5\ All the documents related to the April 2010 rule can be
found in docket FMCSA-2004-18940.
---------------------------------------------------------------------------

     To be integrally synchronized to the engine.
     To provide the same basic information as is required on an
AOBRD, including the identity of the driver, the USDOT number, and the
CMV's identification.
     To record the distance traveled and the driver's duty
status.
     To automatically record the date, time, and location of
the CMV at each change of duty status and at intervals of no greater
than 60 minutes while the CMV was in motion.
     To ensure the security and integrity of the recorded data
by conforming to specific information processing standards.
     To meet certain communications interface requirements for
hardwired and wireless transfer of information.
     To allow drivers to annotate the ELD record while
requiring the ELD or its support system to maintain the original
recorded information and track the annotations.
     To be resistant to tampering by protecting both input and
output. It would have identified any amendments or annotations of the
record, including who made them and when.
     To provide a digital file in a specified format for use by
enforcement officials that could be read using non-proprietary
software. This would have included the ability to generate a graph-grid
on an enforcement official's computer, rather than on the ELD itself.
     To provide certain self-tests and self-monitoring. It
would have identified sensor failures and edited or annotated data. The
ELD would also have provided a notification 30 minutes before the
driver reached the daily on duty and driving limits.
    Remedial directive. If a motor carrier were found, during a single
compliance review, to have a 10-percent violation rate for any HOS
regulation listed in rescinded appendix C of 49 CFR part 385, the 2010
rule would have required motor carriers to install, use, and maintain
ELDs on all of the motor carrier's CMVs for a period of 2 years. By
focusing on the most severe violations and the most chronic violators,
the Agency sought to achieve the greatest safety benefit by adopting a
mandatory installation trigger designed to single out motor carriers
that demonstrated poor compliance with the HOS regulations.
    Incentives to promote the voluntary use of ELDs. In order to
increase the number of motor carriers using ELDs in place of paper
RODS, the April 2010 rule would have provided incentives for voluntary
adoption. The incentives would have included eliminating the
requirement to maintain supporting documents related to driving time.
Instead, the ELD would record and make available that information.
Additionally, if a compliance review of a motor carrier who voluntarily
used ELDs showed a 10 percent or higher violation rate based on the
initial focused sample, the 2010 rule would have provided that FMCSA
assess a random sample of the motor carrier's overall HOS records. The
HOS part of the safety rating would have been based on this random
review. Given that the use of ELDs would be required for most drivers
currently required to prepare RODS, today's SNPRM does not propose any
incentives for ELD use.
2. February 2011 NPRM
    On February 1, 2011, FMCSA proposed to expand the electronic
logging requirements to a much broader population of motor carriers (76
FR 5537). Subject to a limited exception for drivers who would need to
keep RODS on an infrequent basis, all motor carriers currently required
to document their drivers' HOS with RODS would have been required to
use ELDs meeting the requirements of the April 2010 rule on CMVs
manufactured on or after June 1, 2012. Furthermore, within 3 years of
the rule's effective date, motor carriers would have been required to
install and use ELDs meeting these technical requirements on CMVs
operated by drivers required to keep RODS, subject to a limited
exception, regardless of the date of the CMV's manufacture.
    The 2011 NPRM did not alter the ELD technical specifications
contained in the April 2010 rule. FMCSA also proposed to address in
regulation the requirement that motor carriers--both RODS and timecard
users--systematically monitor their drivers' compliance with the HOS
requirements. While this requirement is not novel (see In the Matter of
Stricklin Trucking Co., Inc., Order on Reconsideration (March 20, 2012)
\6\), the proposed rule would have added a specific requirement to part
395 that motor carriers have in place an HOS management system. The
Agency proposed to clarify the supporting documents requirements for
motor carriers using ELDs by requiring retention of categories of
documents and eliminating the need to maintain supporting documents to
verify driving time.
---------------------------------------------------------------------------

    \6\ Available in Docket FMCSA-2011-0127, http://www.regulations.gov (Document No. FMCSA-2011-0127-0013).
---------------------------------------------------------------------------

3. March 2011 Extension of Comment Period
    FMCSA received two requests for extensions of the comment period.
The Agency granted these requests and extended the comment period in a
notice published on March 10, 2011 (76 FR 13121).

4. April 2011 Notice Requesting Additional Comment on Harassment
    In June 2010, the Owner-Operator Independent Drivers Association
(OOIDA) filed a petition in the United States Court of Appeals for the
Seventh Circuit seeking review of the April 2010 rule (Owner-Operator
Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580
(7th Cir. 2011)), in the docket for this rulemaking. OOIDA raised
several concerns, including the potential use of ELDs by motor carriers
to harass drivers. Oral arguments were held on February 7, 2011,
shortly after publication of the February 2011 NPRM. Due to the
concurrent litigation on the 2010 final rule, FMCSA supplemented the
request for public comments on the 2011 NPRM by publishing a notice on
April 13, 2011, seeking comments on the topic of harassment (76 FR
20611).
5. August 2011 Seventh Circuit Decision
    On August 26, 2011, the Seventh Circuit vacated the entire April
2010 rule. The court held that, contrary to a statutory requirement,
the Agency failed to address the issue of driver harassment.\7\
---------------------------------------------------------------------------

    \7\ 656 F.3d 580, 589. At the time of the court's decision, 49
U.S.C. 31137(a) read as follows: ``Use of Monitoring Devices.--If
the Secretary of Transportation prescribes a regulation about the
use of monitoring devices on commercial motor vehicles to increase
compliance by operators of the vehicles with hours of service
regulations of the Secretary, the regulation shall ensure that the
devices are not used to harass vehicle operators. However, the
devices may be used to monitor productivity of the operators.'' MAP-
21 revised section 31137 and no longer expressly refers to
``productivity.'' However, FMCSA believes that, as long as an action
by a motor carrier does not constitute harassment that would be
prohibited under this rulemaking, a carrier may legitimately use the
devices to improve productivity or for other appropriate business
practices.
---------------------------------------------------------------------------

6. February 2012 Notice of Intent To Publish an SNPRM
    On February 13, 2012, FMCSA announced its intent to move forward
with an SNPRM on ELDs to propose technical standards, address driver
harassment issues, and propose revised requirements on HOS supporting
documents (77 FR 7562). Additionally, the Agency stated it would hold
public listening sessions and task the MCSAC to make recommendations
related to the proposed rulemaking. FMCSA has initiated a survey of
drivers, as well as motor carriers, concerning the potential for the
use of electronic logging to result in harassment (Notice published May
28, 2013, (78 FR 32001).
7. May 2012 Withdrawal of the April 2010 Rule
    On May 14, 2012, FMCSA published a final rule (77 FR 28448) to
rescind both the April 5, 2010, final rule (75 FR 17208) and subsequent
corrections and modifications to the technical specifications
(September 13, 2010, 75 FR 55488), in response to the Seventh Circuit's
decision.
8. Results of the Vacatur; Subsequent Developments
    As a result of the Seventh Circuit's vacatur, the technical
specifications that were one of the bases of the 2011 NPRM were
rescinded. Because the requirements for AOBRDs were not affected by the
Seventh Circuit's decision, motor carriers relying on electronic
devices to monitor HOS compliance are currently governed by the
Agency's rules regarding the use of AOBRDs in 49 CFR 395.15, originally
published in 1988. There are no new standards currently in effect to
replace these dated technical specifications. Furthermore, because the
entire rule was vacated, FMCSA was unable to grant relief from
supporting document requirements to motor carriers voluntarily using
ELDs.\8\
---------------------------------------------------------------------------

    \8\ The Agency's June 2010 guidance, ``Policy on the Retention
of Supporting Documents and the Use of Electronic Mobile
Communication/Tracking Technology,'' which granted certain motor
carriers limited relief from the requirement to maintain certain
supporting documents, was not affected by the Seventh Circuit
decision.
---------------------------------------------------------------------------

    In response to the vacatur of the 2010 final rule, recommendations
from the MCSAC, and the enactment of MAP-21, FMCSA now proposes new
technical standards for ELDs. The Agency also proposes new requirements
for supporting documents and ways to ensure that ELDs are not used to
harass vehicle operators.
9. MCSAC Meetings
    Technical specifications. In response to industry and enforcement
concern over the technical implementation of the April 2010 final rule,
FMCSA held a public meeting on May 31, 2011, and later engaged the
MCSAC to assist in developing technical specifications for ELDs. The
scope of this task was limited because of the planned June 2012
implementation date for the April 2010 final rule.
    At the June 20-22, 2011, MCSAC meeting, FMCSA announced task 11-04,
titled ``Electronic On-Board Recorders Communications Protocols,
Security, Interfaces, and Display of Hours-of-Service Data During
Driver/Vehicle Inspections and Safety Investigations.'' FMCSA tasked
the MCSAC to clarify ``the functionality of Part 395 communications
standards relating to [ELD] data files.'' The MCSAC was asked to make
recommendations to FMCSA concerning data communication and display
technologies with input from stakeholders, including law enforcement,
the motor carrier industry, FMCSA information technology/security
experts, and technical product manufacturers. A MCSAC Technical
Subcommittee was formed to advise the committee at large. The
subcommittee met numerous times in late 2011. The MCSAC also held
public meetings on August 30-31 and December 5-6, 2011, to discuss the
subcommittee's recommendations (76 FR 62496, Oct. 7, 2011).
    The Seventh Circuit's August 2011 decision to vacate the April 2010
final rule changed the nature of the MCSAC's report. Instead of
presenting comments and recommended changes to the April 2010 final
rule regulatory text, the report proposed a new regulation using
vacated Sec.  395.16 as the template. The report was delivered to the
FMCSA Administrator on December 16, 2011.
    Harassment. On February 7-8, 2012, the MCSAC considered task 12-01,
``Measures To Ensure Electronic On-Board Recorders Are Not Used To
Harass Commercial Motor Vehicle Operators.'' FMCSA tasked the MCSAC to
consider a long list of questions concerning the topic of potential
harassment as it could stem from the use of ELDs.
    Among other issues, the committee asked what constitutes driver
harassment and whether electronic HOS recording would change the nature
of driver harassment. The MCSAC considered whether ELDs would make
drivers vulnerable to harassment or if they might make drivers less
susceptible to harassment. The MCSAC asked what types of harassment
drivers experience currently, how frequently, and to what extent this
harassment happens. The MCSAC also considered the experience motor
carriers and drivers have had with carriers currently using ELDs in
terms of their effect on driver harassment. The report on harassment
was delivered to the FMCSA Administrator on February 8, 2012. The
harassment provisions in today's SNPRM respond to many of the MCSAC
recommendations in that report.
    These meetings, like all MCSAC meetings, were open to the public,
and had a public comment component at the end of every day's session.
Additional information about both of these tasks and the MCSAC
recommendations can

be found at http://mcsac.fmcsa.dot.gov/meeting.htm.
10. Public Listening Sessions on Harassment
    FMCSA held two public listening sessions focusing on the issue of
harassment, subsequent to the Seventh Circuit decision. The first
session was in Louisville, Kentucky, on March 23, 2012, at the Mid-
America Truck Show; and the second session was in Bellevue, Washington,
on April 26, 2012, at the Commercial Vehicle Safety Alliance (CVSA)
Workshop. Transcripts of both sessions are available in the docket for
this rulemaking, and the Web casts are archived and available at http://www.tvworldwide.com/events/dot/120323/ and http://www.tvworldwide.com/events/dot/120426/, respectively (last accessed May 30, 2013).
11. Regulation Room
    DOT enhanced effective public involvement regarding the NPRM by
using the Cornell eRulemaking Initiative called ``Regulation Room.''
Regulation Room is not an official DOT Web site; therefore, a summary
of discussions introduced in Regulation Room was prepared
collaboratively on the site and submitted to DOT as a public comment to
the docket. Regulation Room commenters were informed that they could
also submit individual comments to the rulemaking docket.\9\ Although
the comment period has closed, the comments submitted to Regulation
Room, as well as the discussion summary, are publicly available through
the Regulation Room Web site, http://regulationroom.org/eobr (last
accessed March 6, 2013).
---------------------------------------------------------------------------

    \9\ Because FMCSA has completed this effort, comments to this
SNPRM will not be sought to Regulation Room.
---------------------------------------------------------------------------

12. Comments to the 2011 NPRM
    FMSCA will address comments submitted in response to the February
2011 NPRM (76 FR 5537) as part of a final rule to the extent such
comments are relevant, given the significant intervening events that
have occurred since publication of that document and today's SNPRM.
Because the proposed regulatory text in today's SNPRM supersedes that
in the 2011 NPRM and because of the significance of the changes, FMCSA
invites comments on the complete proposal.

B. History of the Supporting Documents Rule

    A supporting document is a paper or electronic document that a
motor carrier generates or receives in the normal course of business
that motor carriers or enforcement officials can use in verifying
drivers' HOS compliance.\10\
---------------------------------------------------------------------------

    \10\ This section briefly summarizes the history of supporting
document requirements. For an extensive discussion of the history of
the supporting documents requirements, please refer to the February
1, 2011, NPRM (76 FR 5541).
---------------------------------------------------------------------------

    A fundamental principle of the FMCSRs, stated in 49 CFR 390.11, is
that a motor carrier has the duty to require its drivers to comply with
the FMCSRs, including the HOS requirements. Current Federal HOS
regulations (49 CFR Part 395) limit the number of hours a CMV driver
may drive and work. With certain exceptions,\11\ motor carriers and
drivers are required by 49 CFR 395.8 to use RODS to track driving, on-
duty not driving (ODND), sleeper berth, and off duty time. FMCSA and
State enforcement personnel use these RODS, in combination with
supporting documents and other information, to ensure compliance with
the HOS rules. Motor carriers have historically required their
drivers--as a condition of employment, for reimbursement, and other
business purposes--to provide to the motor carriers supporting
documents, such as fuel receipts, toll receipts, bills of lading, and
repair invoices. Motor carriers can compare these documents to drivers'
entries on the paper RODS to verify the accuracy of the RODS. The
FMCSRs require motor carriers to retain all supporting documents,
generated in the ordinary course of business, as well as the paper and
electronic RODS, for a period of 6 months from the date of receipt (49
CFR 395.8(k)(1)).
---------------------------------------------------------------------------

    \11\ These exceptions are set forth in 49 CFR 390.3(f) and
395.1.
---------------------------------------------------------------------------

    Although the FMCSRs have always required a ``remarks'' section to
augment the duty status information contained in the RODS document, it
was not until January 1983 that the use of supporting documents was
explicitly required (47 FR 53383, Nov. 26, 1982). The rule did not
define the term ``supporting documents,'' and questions arose
concerning what motor carriers were expected to retain. To resolve
several questions, regulatory guidance was published in 1993 and 1997
(November 17, 1993, 58 FR 60734; April 4, 1997, 62 FR 16370, 16425).
    In 1994, Congress directed that 49 CFR Part 395 be amended to
improve driver and motor carrier compliance with the HOS regulations
(section 113 of the HMTAA, Pub. Law 103-311, sec. 113, 108 Stat. 1673,
1676-1677 (August 26, 1994)). Congress defined supporting documents in
a manner nearly identical to the Agency's regulatory guidance: ``For
purposes of this section, a supporting document is any document that is
generated or received by a motor carrier or commercial motor vehicle
driver in the normal course of business that could be used, as produced
or with additional identifying information, to verify the accuracy of a
driver's record of duty status.'' (Id.)
    In response to section 113(a) of HMTAA, the Federal Highway
Administration (FHWA), FMCSA's predecessor agency, published an NPRM on
supporting documents on April 20, 1998 (63 FR 19457). The FMCSA
included further proposals on supporting documents in its proposed rule
on HOS published May 2, 2000 (65 FR 25540). On November 3, 2004, FMCSA
published an SNPRM proposing language to clarify the duties of motor
carriers and drivers with respect to supporting documents and
requesting further comments on the issue (69 FR 63997). However, the
Agency discovered a long-standing error that had caused it to
significantly underestimate the information collection burden
attributable to the 2004 SNPRM, and FMCSA therefore withdrew the SNPRM
on October 25, 2007 (72 FR 60614).
    On January 15, 2010, the American Trucking Associations (ATA) filed
a petition for a writ of mandamus in the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Cir. No. 10-1009). ATA petitioned
the court to direct FMCSA to issue an NPRM on supporting documents in
conformance with section 113 of HMTAA within 60 days after the issuance
of the writ and a final rule within 6 months after the issuance of the
NPRM. The court granted the petition for writ of mandamus on September
30, 2010, ordering FMCSA to issue an NPRM on the supporting document
regulations by December 30, 2010.
    FMCSA issued guidance on HOS supporting documents and use of
electronic mobile communications/tracking technology on June 10, 2010
(75 FR 32984). In addition to removing certain documents from the list
of supporting documents a motor carrier must maintain, that guidance
confirmed the Agency's interpretation that motor carriers are liable
for the actions of their employees if they have, or should have, the
means by which to detect HOS violations.
    The April 2010 final rule had provided relief to motor carriers
using ELDs on a voluntary basis from the requirement to maintain
supporting documents to verify driving time. Those motor carriers would
have needed to maintain only those additional

supporting documents necessary to verify ODND activities and off duty
status (75 FR 17208, at 17212, 17233, and 17234, April 5, 2010).
However, as discussed above, the April 2010 rule is no longer in
effect.

C. Concurrent Activities

1. Safety Study
    FMCSA is engaging in another action, ``Evaluating the Potential
Safety Benefits of Electronic Onboard Recorders.'' The study is an
effort to further quantify the safety benefits of ELDs.
2. Coordination With the U.S. Department of Labor
    FMCSA has worked with the U.S. Department of Labor to clarify and
reinforce the procedures of both agencies, specifically concerning
harassment. The Department of Labor administers the whistleblower law
enacted as part of the Surface Transportation Assistance Act (49 U.S.C.
31105). Although FMCSA and the U.S. Department of Labor have previously
consulted on particular cases or referred drivers to the appropriate
agency based on the nature of the concern, the agencies have been in
communication concerning their respective authorities and complaint
procedures. Several elements in this SNPRM, including the proposed
requirement that all drivers have improved access to their HOS
compliance records, should provide drivers with better documentation of
situations that they believe constitute harassment and would help their
case in the event they file complaints with either Department of Labor
or FMCSA.

D. Table Summary

                        Timeline of Regulatory and Judicial Actions Related To This SNPRM
----------------------------------------------------------------------------------------------------------------
               Title                   Type of action, RIN       Citation, date                Synopsis
----------------------------------------------------------------------------------------------------------------
Electronic On-Board Recorders for    Final rule, 2126-AA89.  75 FR 17208, Apr. 5,    Established new performance
 Hours-of-Service Compliance.                                 2010.                   standards for EOBRs,
                                                                                required EOBRs to be
                                                                                installed in CMVs for
                                                                                motor carriers that have
                                                                                demonstrated serious
                                                                                noncompliance; set
                                                                                incentives for voluntary
                                                                                usage of EOBRs.
Policy on the Retention of           Notice of Regulatory    75 FR 32984, June 10,   Provided notice to the
 Supporting Documents and the Use     Guidance and Policy     2010.                   motor carrier industry and
 of Electronic Mobile Communication/  Change..                                        the public of regulatory
  Tracking Technology in Assessing                                                    guidance and policy
 Motor Carriers' and Commercial                                                       changes regarding the
 Motor Vehicle Drivers' Compliance                                                    retention of supporting
 With the Hours of Service                                                            documents and the use of
 Regulations.                                                                         electronic mobile
                                                                                communication/tracking
                                                                                technology in assessing
                                                                                motor carriers' and
                                                                                commercial motor vehicle
                                                                                drivers' compliance with
                                                                                the hours of service
                                                                                regulations.
Electronic On-Board Recorders for    Final rule; Technical   75 FR 55488, Sept. 13,  Amended requirements for
 Hours-of-Service Compliance.         amendments, response    2010.                   the temperature range in
                                      to petitions for                                which EOBRs must be able
                                      reconsideration, 2126-                          to operate, and the
                                      AA89.                                           connector type specified
                                                                                for the Universal Serial
                                                                                Bus (USB) interface.
Electronic On-Board Recorders and    NPRM, 2126-AB20.......  76 FR 5537, Feb. 1,     Required all motor carriers
 Hours-of-Service Supporting                                  2011.                   currently required to
 Documents.                                                                           maintain RODS for HOS
                                                                                recordkeeping to use EOBRs
                                                                                instead; relied on the
                                                                                technical specifications
                                                                                from the April 2010 final
                                                                                rule, and reduced
                                                                                requirements to retain
                                                                                supporting documents.
Electronic On-Board Recorders and    NPRM; extension of      76 FR 13121, Mar. 10,   Extended the public comment
 Hours-of-Service Supporting          comment period, 2126-   2011.                   period for the NPRM from
 Documents.                           AB20.                                           April 4, 2011, to May 23,
                                                                                2011.
Electronic On-Board Recorders and    Notice; request for     76 FR 20611, Apr. 13,   Expanded the opportunity
 Hours-of-Service Supporting          additional public       2011.                   for the public to comment
 Documents.                           comment, 2126-AB20.                             on the issue of ensuring
                                                                                that EOBRs are not used to
                                                                                harass CMV drivers.
Motor Carrier Safety Advisory        Notice of meeting,      76 FR 38268, June 29,   Announced series of
 Committee (MCSAC) Series of Public   related to 2126-AA89.   2011.                   subcommittee meetings on
 Subcommittee Meetings.                                                               task 11-04, concerning
                                                                                technical specifications
                                                                                for an EOBR as related to
                                                                                the April 2010 final rule.
Owner-Operator Indep. Drivers Ass'n  Judicial Decision,      Owner-Operator Indep.   Vacated the April 2010
 v. Fed. Motor Carrier Safety         United States Court     Drivers Ass'n v. Fed.   final rule.
 Admin..                              of Appeals, Seventh     Motor Carrier Safety
                                      Circuit, related to     Admin., 656 F.3d. 580
                                      2126-AA89.              (7th Cir. 2011), Aug.
                                                              26, 2011.
MCSAC: Public Meeting Medical        Notice of meeting,      77 FR 3546, Jan. 24,    Announced meeting on task
 Review Board: Joint Public Meeting   related to 2126-AB20.   2012.                   12-01, concerning issues
 With MCSAC.                                                                          relating to the prevention
                                                                                of harassment of truck and
                                                                                bus drivers through EOBRs.
Electronic On-Board Recorders and    Notice of intent, 2126- 77 FR 7562, Feb. 13,    Announced FMCSA's intent to
 Hours-of-Service Supporting          AB20.                   2012.                   go forward with an SNPRM;
 Documents.                                                                           two public listening
                                                                                sessions; an initial
                                                                                engagement of the MCSAC in
                                                                                this subject matter; a
                                                                                survey of drivers
                                                                                concerning potential for
                                                                                harassment; and a survey
                                                                                for motor carriers and
                                                                                vendors concerning
                                                                                potential for harassment.

Electronic On-Board Recorders and    Notice of public        77 FR 12231, Feb. 29,   Announced public listening
 Hours-of-Service Supporting          listening session,      2012.                   session held in
 Documents.                           2126-AB20.                                      Louisville, Kentucky on
                                                                                March 23, 2012.
Electronic On-Board Recorders and    Notice of public        77 FR 19589, Apr. 2,    Announced public listening
 Hours-of-Service Supporting          listening session,      2012.                   session held in Bellevue,
 Documents.                           2126-AB20.                                      Washington on April 26,
                                                                                2012.
Electronic On-Board Recorders for    Final rule, 2126-AB45.  77 FR 28448, May 14,    Responded to a decision of
 Hours-of-Service Compliance;                                 2012.                   the Court of Appeals for
 Removal of Final Rule Vacated by                                                     the Seventh Circuit that
 Court.                                                                               vacated the April 2010
                                                                                final rule.
----------------------------------------------------------------------------------------------------------------

VI. ELD Performance and Design Specifications

    Today's SNPRM proposes new technical standards, replacing those in
the vacated April 2010 final rule. It also responds to the specific ELD
technical requirements in MAP-21; see 49 U.S.C. 31137. Although MAP-21
requires that an ELD ``accurately record commercial driver [HOS],''
there is no current technology that can automatically differentiate
between a driver's ODND status versus off duty or sleeper berth status.
An ELD, however, would reduce HOS record falsification, especially for
driving time, which would be recorded automatically. ELDs facilitate
considerably more accurate recording of non-driving activities through
the requirement to provide time, location, engine hours, and odometer
reading ``snapshots'' at each change of duty status.
    The ELD record, in combination with a driver's supporting
documents, is expected to provide a far more accurate record than paper
RODS. The detailed performance and design requirements for ELDs
proposed in this SNPRM would ensure that providers would be able to
develop compliant devices and systems and that motor carriers could
better understand which products are compliant and make informed
decisions before acquiring them. The requirements would also provide
drivers with effective recordkeeping systems, which would provide them
control over and access to their records. The technical specifications
would also address statutory requirements pertaining to prevention of
harassment, protection of driver privacy, compliance certification
procedures, and resistance to tampering. Furthermore, they would
establish methods for providing authorized safety officials with
drivers' ELD data when required. See 49 U.S.C. 31137(a)-(f).
    For a 2-year period after the compliance date (4 years after the
publication of a final rule) for these technical specifications, AOBRDs
as described in current Sec.  395.15, installed before that date, could
continue to be used in lieu of ELDs to comply with HOS regulations. At
that point, all AOBRD-users would be required to update or replace
their devices and systems to bring them into conformance with the new
49 CFR Part 395, subpart B requirements. For more about the transition
period proposed for this SNPRM, see Part VIII.

A. Terminology

    For the reader's convenience, this section describes terms that are
used in today's SNPRM.
1. AOBRD
    An AOBRD is a device that meets the requirements of 49 CFR 395.15.
As described below, a minimally compliant device would need to be
replaced. However, many technologies exist today that currently meet or
exceed parts of the standards of this proposed regulation, and could be
easily and cheaply made to fit the requirements for an ELD. The Agency
refers to these as ELD-like devices. The definition of AOBRDs is set
out in 49 CFR 395.2; and Table 6, below, shows a comparison of the
different kinds of logging devices.
2. ELD
    An ELD is a recording-only technology, used to track the time a CMV
is operating. An ELD is integrally connected to the CMV's engine, uses
location information, and is tamper-resistant. An ELD automatically
tracks CMV movement, but allows for annotations by both the driver and
the motor carrier's agent to explain or correct records. An ELD is not
necessarily a physical device; it is a technology platform, and may be
portable or implemented within a device not permanently installed on a
CMV. The definition of ELD is in a proposed amendment to 49 CFR 395.2;
and Table 6, below, shows a comparison of the different kinds of
logging devices.
3. ELD Data
    FMCSA uses the term ``ELD data'' to mean each data element captured
by an ELD that is compliant with the requirements contained in proposed
subpart B of part 395. These data would be available to authorized
safety officials during roadside inspections and as part of on-site or
other reviews.
4. eRODS Software System
    eRODS is the software system that FMCSA is currently developing in
conjunction with its State partners. During an inspection, the eRODS
software system would receive, analyze, and display ELD data in a way
that can be efficiently used by authorized safety officials.
5. FMS
    A Fleet Management System (FMS) is an asset tracking and business
optimization solution which may also accomplish the ELD functionality.
Some of these technologies may have functions such as real-time asset
monitoring for fleet efficiency, but these capabilities would not be
required by this regulation. FMCSA emphasizes that it does not prohibit
the integration of ELD functions into other electronic platforms, such
as an FMS, already used on CMVs. FMCSA requires only the use of ELDs.
6. Comparison of AOBRD, EOBR, and ELD Specifications
    Table 6, below, shows how AOBRDs, as regulated in 49 CFR 395.15,
compare to the specifications for EOBRs, published in the 2010 Final
Rule, and the ELDs proposed in this SNPRM.

                                      Table 6--Comparison of Specifications
----------------------------------------------------------------------------------------------------------------
          Feature/function               1988 AOBRD rule       2010 EOBR final rule         2013 ELD SNPRM
----------------------------------------------------------------------------------------------------------------
Integral Synchronization...........  Integral                Integral                 Integral synchronization
                                      synchronization         synchronization          with the CMV engine,* to
                                      required, but term      required, defined to     automatically capture
                                      not defined in the      specify signal source    engine power status,
                                      FMCSRs.                 internal to the CMV.     vehicle motion status,
                                                                                miles driven, engine
                                                                                hours.
                                                                                * For MY 2000 and later,
                                                                                interfacing with engine
                                                                                ECM.
Recording Location Information.....  Required at each        Require automated entry  Require automated entry at
                                      change of duty          at each change of duty   each change of duty
                                      status. Manual or       status and at 60-        status, at 60-minute
                                      automated.              minute intervals while   intervals while CMV is in
                                                              CMV in motion.           motion, at engine-on and
                                                                                engine-off instances, and
                                                                                at beginning and end of
                                                                                personal use and yard
                                                                                moves.
Graph Grid Display.................  Not required--``time    Not required on EOBR,    An ELD must be able to
                                      and sequence of duty    digital file to          present a graph grid of
                                      status changes''.       generate graph grid on   driver's daily duty
                                                              enforcement official's   status changes either on
                                                              portable computer.       a display unit or on a
                                                                                printout.
HOS Driver Advisory Messages.......  Not addressed.........  Requires notification    HOS limits notification
                                                              at least 30 minutes      not required.
                                                              before driver reaches   ``Unassigned driving time/
                                                              24-hour and 7/8 day      miles'' warning provided
                                                              driving and on-duty      upon login.
                                                              limits.
Device ``Default'' Duty Status.....  Not addressed.........  On-duty not driving      On-duty driving, when CMV
                                                              when the vehicle is      has not been in-motion
                                                              stationary (not moving   for 5 consecutive
                                                              and the engine is off)   minutes, and driver has
                                                              5 minutes or more.       not responded to an ELD
                                                                                prompt within 1 minute.
                                                                                No other non-driver-
                                                                                initiated status change
                                                                                is allowed.
Clock Time Drift...................  Not addressed.........  Absolute deviation from  ELD time must be
                                                              the time base            synchronized to UTC,
                                                              coordinated to UTC       absolute deviation must
                                                              shall not exceed 10      not exceed 10 minutes at
                                                              minutes at any time.     any point in time.
Communications Methods.............  Not addressed--focused  Wired: USB 2.0           Primary: Wireless
                                      on interface between    implementing Mass        Webservices or Bluetooth
                                      AOBRD support systems   Storage Class 08H for    2.1 or Email (SMTP) or
                                      and printers.           driverless operation.    Compliant Printout.
                                                             Wireless: IEEE 802.11g,  Backup Wired/Proximity:
                                                              CMRS.                    USB 2.0 * and (Scannable
                                                                                QR codes, or TransferJet
                                                                                *)
                                                                                * Except for ``printout
                                                                                alternative.''
Resistance to Tampering............  AOBRD and support       Must not permit          An ELD must not permit
                                      systems, must be, to    alteration or erasure    alteration or erasure of
                                      the maximum extent      of the original          the original information
                                      practical,              information collected    collected concerning the
                                      tamperproof.            concerning the           driver's ELD records or
                                                              driver's hours of        alteration of the source
                                                              service, or alteration   data streams used to
                                                              of the source data       provide that information.
                                                              streams used to          An ELD must support data
                                                              provide that             integrity check
                                                              information.             functions.
Identification of Sensor Failures    Must identify sensor    The device/system must   An ELD must have the
 and Edited Data.                     failures and edited     identify sensor          capability to monitor its
                                      data.                   failures and edited      compliance (engine
                                                              and annotated data       connectivity, timing,
                                                              when downloaded or       positioning, etc.) for
                                                              reproduced in printed    detectable malfunctions
                                                              form.                    and data inconsistencies.
                                                                                The ELD must record these
                                                                                occurrences.
----------------------------------------------------------------------------------------------------------------

B. ELD Function

1. Performance and Design Standards
    FMCSA created these proposed technical specifications to be
performance-based, so as to accommodate evolving technology and
standards, allow for more cost-effective adoption of the technical
specifications, and afford ELD providers flexibility to offer compliant
products that are innovative and meet the needs of drivers and motor
carriers. However, FMCSA does propose specific standard data formats
and outputs that ELD providers would need to use to transfer,
initialize, or upload data between systems or to authorized safety
officials.
    FMCSA has placed these performance and design standards into the
appendix to proposed subpart B of part 395. This SNPRM also would
incorporate by reference a number of established technical standards
for sub-functions of an ELD, all of which are readily available at
little to no cost. The use of these industry standards would reduce the
cost of producing ELDs that meet the technical standards of a final
rule. However, FMCSA emphasizes that there are no industry standards
for ELDs.
    Functional requirements regarding the communications between a
vehicle's engine electronic control module (ECM) and the ELD are
included in today's SNPRM. The technical requirements proposed in
today's SNPRM would be considerably expanded from those in the vacated
April 2010 final rule, and provide detail on processes, including
security and tamper resistance.
2. Recording
    In order to minimize compliance costs, today's SNPRM positions the
ELD as a recording-only technology with the ability to transfer data to
authorized safety officials. This rulemaking would not require the ELD
to analyze or review driver's RODS data for any purpose, including
compliance. It would not require the ELD to provide a warning for a
driver who may be reaching HOS violation limits or to address other
compliance concerns, although motor carriers and ELD providers are not
prohibited from using or building an ELD that does so.
    The following data elements would be automatically recorded within
the ELD dataset and transferred to authorized safety officials when
requested: date, time, CMV location, engine hours, vehicle miles,
driver or authenticated user identification data, vehicle
identification data, and motor carrier identification data.
    CMV location information. For an ELD, location measurement would be
used primarily to automatically populate CMV position at duty status
changes and at intervening intervals.

FMCSA proposes that location information remain a part of the technical
specifications for an ELD. Without accurate and verifiable CMV location
information, a driver's RODS would not be complete. Furthermore, some
of the tamper-resistance measures proposed in the SNPRM would use
location information in consistency-check algorithms. FMCSA also
believes that intermediate location recordings while the CMV is in
motion are important to include in the dataset for verification
purposes. With this SNPRM, FMCSA also proposes the precision and
availability requirements associated with the automatic positioning
services to be used as part of an ELD.
    FMCSA no longer proposes requiring the ELDs' dataset exchanged with
authorized safety officials to include ``place name.'' Instead,
latitude and longitude coordinates would be recorded and transmitted to
those officials' portable computers. There the eRODS software would
resolve the coordinates into a named place and, as necessary, the
distance and direction offset from the named place. An ELD would still
need to be able to present location information in understandable terms
to the driver and motor carriers to allow them to review and certify
records. ELDs that print a graph-grid for authorized safety officials
would also require understandable location information. Because
latitude and longitude information would not be adequately descriptive
for them, FMCSA retains the requirement for ELDs to report geo-location
information. The Agency also proposes the incorporation by reference of
the American National Standards Institute (ANSI) INCITS 446-2008
document, which includes the ``USGS GNIS, where Feature Class =
Populated Place'' list.
    Relying on a performance and design standard, FMCSA would not
require the use of the satellite-based global positioning system (GPS)
for positioning services. Location codes may be obtained from satellite
or land-based sources, or a combination of sources. This SNPRM would
require the monitoring of engine hours and odometer readings in
addition to automatic recording of location information. Interruptions
to GPS or other location services would not prevent CMV movement from
being detected by the ELD.
    Today's SNPRM proposes revised, more detailed technical
specifications for standard location information presentation, using
geo-location combined with a nearby reference point, distance, and
direction from that reference.
    Driver or authenticated user identification data. HOS regulations
require unique identification of the driver on the ELD, which implies
the inclusion of personally identifiable information (PII). The Agency
determined that name and use of a partial driver's license number does
not lower the security requirements the Agency must establish for
handling of the data. However, use of a partial driver's license number
complicates the process due to the States' varying methods for
assigning drivers' license numbers. Therefore, the Agency determined
that including the entire driver's license number and driver's license
issuing State would be necessary to ensure a unique identification of
each driver and to attain a sufficient level of tamper resistance for
the ELDs by preventing the potential creation of multiple aliases for a
single driver within a motor carrier.
    When the ELD records the required dataset. Today's SNPRM proposes
to require the ELD to record the dataset, including geographic
information as described above, at 60-minute intervals when the vehicle
is in motion, at the time of any duty status change the driver inputs,
and when a CMV's engine is powered up or shut down. Further, if a motor
carrier has allowed drivers to use a CMV for personal conveyance or
yard moves, a driver's indication of the start and end of such
occurrences will also record a dataset; these are not indicated as
separate duty statuses.
    The ELD would record the account logged into the ELD at the time of
the recording, including a standard identifier when a driver may not be
authenticated.
    Because FMCSA will continue to allow use of paper RODS in certain
operations and temporarily during ELD malfunctions, retaining the same
four duty status categories used for paper RODS is necessary: driving,
ODND, off duty, and sleeper berth. However, there are situations where
it is necessary to annotate or otherwise flag periods where the CMV is
moving as a status other than ``on-duty driving,'' including various
covered exceptions under 49 CFR 395.1. FMCSA proposes to add a
requirement for the ELD to provide the capability for a driver to
indicate the beginning and end of two specific categories, namely,
personal use of a CMV and yard moves, as allowed by the motor carrier,
where the CMV may be in motion but a driver is not necessarily in a
``driving'' duty status. This would record the necessary information in
a consistent manner for the use of drivers, motor carriers, and
authorized safety officials.
    Personal conveyance. If a CMV is used for personal conveyance, and
the driver uses the ELD to electronically indicate the beginning of the
event, the ELD would not record that time as on-duty driving. Today's
SNPRM provides for selection of a special driving category when a CMV
is being driven but the time is not recorded as on-duty driving. FMCSA
does not define a specific threshold of distance or time traveled for a
driver to be able to use the personal use provision. FMCSA emphasizes
that ELDs are HOS-recording technologies. Authorized motor carrier
safety personnel and authorized safety officials would use the ELD data
to further explore and determine whether the indicated special category
was appropriately used by the driver.
    Integral synchronization. FMCSA would require integral
synchronization for engine information to be shared with the ELD. For
example, FMCSA proposes that distance traveled be measured by the
odometer indication electronically available on the vehicle databus,
the engine control module, or other electronic device, when allowed,
which would indicate the total distance traveled from a source internal
to the CMV. Today's SNPRM describes the underlying requirements
associated with engine synchronization in recording the HOS logs of a
driver. The proposal provides sufficient flexibility to accommodate
engines on older CMVs. However, FMCSA would like to hear more details
from the public on the complexity of compliance with a CMV manufactured
on or before 2000.
3. Resistance to Tampering
    MAP-21 defines ``tamper resistant'' as ``resistant to allowing any
individual to cause an [ELD] to record the incorrect date, time, and
location for changes to on-duty driving status . . . or to subsequently
alter the record created by that device'' (49 U.S.C. 31137(f)(2)).
FMCSA interprets ``tamper'' in this context as a deliberate action that
results in erroneous data or unauthorized changes to ELD data.
Tampering could result in the alteration of hardware, software, or
stored data. Because of the variety of potential hardware and software
solutions and the lack of any published standards that are followed by
ELD-like system providers, FMCSA has chosen to focus on establishing
requirements that would address many of the known types of tampering.
FMCSA would also require additional data elements that would be

used to identify attempts to falsify or tamper with ELD data.
    FMCSA acknowledges that there is a possibility that someone might
tamper with ELD systems out of curiosity or to avoid or subvert
operational or safety oversight. Like the NPRM, this SNPRM would
explicitly prohibit motor carriers and drivers from disabling,
deactivating, damaging, jamming, or otherwise blocking or degrading a
signal transmission or reception, or otherwise tampering with an AOBRD
or ELD so that the device would not accurately record the duty status
of a driver (Sec.  395.8(e)(2)).
    FMCSA has increased its tamper resistance performance and design
specifications in this SNPRM and would require that all ELDs have
standard security features, which include recording data that would
help indicate tampering. Motor carrier safety oversight personnel and
authorized safety officials would be able to use these indicators to
review potential inconsistencies, assess their sources, and estimate
their effects. However, complete tamper-proofing is neither possible
nor practical. The SNPRM would balance tamper-resistance with the cost-
effectiveness of available solutions. If ELDs were required to
implement military-level security standards, such requirements would
likely increase their complexity and cost, and adversely impact their
ease of use.
    Each captured record would include a code derived from the data
itself at the time of recording that eRODS software would use to
determine the authenticity of the information. Additionally, the
combination of the vehicle mileage, time record, and location
coordinates would increase the difficulty of fabricating data and make
it more likely to produce inconsistent data that would be evident to
authorized safety officials reviewing the ELD records. In addition to
instituting strict account management requirements to ensure every
driver has only one ELD profile within a motor carrier, FMCSA would
also require the capture of data during CMV movement when no driver has
logged into an ELD, to provide authorized safety officials with a
complete picture of vehicle movement. Finally, the increased number of
data elements from the engine would make creating false data a
difficult and time-consuming process, even if someone could find a way
to introduce such data into an ELD. None of these controls should
dissuade ELD providers from adding additional, appropriate hardware and
software controls against tampering.
4. Damaged, Outdated, or Malfunctioning ELDs
    FMCSA understands that any devices, systems, or enabling
technologies might occasionally fail. This SNPRM contains provisions
that would allow drivers to continue to operate a CMV in the event of
an ELD failure. Drivers would be required to use paper RODS temporarily
while the ELD is inoperative. The driver would be required to give the
motor carrier written notice of the failure either electronically, for
example, by email, or by some other written means, within 24 hours.
Owner-operators who lease on with a motor carrier are generally
considered employees under the FMCSRs; thus, they would be required to
notify that motor carrier. However, owner-operators who operated
independently would need to satisfy requirements applicable to both a
motor carrier and driver. One option for these owner-operators would be
to record a malfunction by documenting it on a paper log used during
the period that their ELD was not functioning. Unless the records were
already available, the driver would have to reconstruct the RODS for
the current 24-hour period and the previous 7 days. Until the ELD was
brought back into compliance, the driver would have to continue to
manually prepare RODS.
    FMCSA has added more details on failure detection to this SNPRM. In
a new table of ELD compliance malfunctions and data diagnostic event
codes, FMCSA outlines the proposed listing of malfunction types (Table
4 in the appendix to subpart B of part 395). Proposed new table 4 would
require data diagnostics self-testing by ELDs. Table 4 expands the
categories of data diagnostic consistency checks and establishes
consistency with the compliance malfunction detection strategy outlined
in this rule. These malfunctions cover many of the detectable and
actionable error types. However, the table is structured in terms of
``compliance malfunctions,'' which refer to more generalized
performance compliance elements of this rule across different types of
ELD implementation possibilities.
    The SNPRM would require the motor carrier to repair the ELD within
8 days of discovering its condition. However, the SNPRM provides a
procedure whereby a motor carrier may request an extension of time from
FMCSA to repair, replace, or service an ELD. Unless an extension is
granted, if a driver is inspected for HOS compliance during a
malfunction, the driver would receive a citation for the malfunctioning
ELD, and the driver would have to provide the authorized safety
official with manually prepared RODS for further assessment with
respect to HOS regulations.

C. ELD Regulatory Compliance

1. Certification Process
    Compliance test procedures. The SNPRM would still propose to
require ELDs to be certified by the provider, but FMCSA will develop a
standard set of compliance test procedures that providers may use in
their certification processes. FMCSA anticipates that industry
standards for testing and certification of ELDs may emerge and evolve
after the publication of the SNPRM, and such standards may use or build
upon the compliance test procedures FMCSA establishes.
    ELD providers would not be required to follow FMCSA's compliance
test procedures to certify compliance of their product. Their ELDs,
however, would need to meet or exceed the performance requirements
proposed in the appendix to subpart B of part 395. FMCSA may subject
registered ELDs to FMCSA's compliance test procedures to independently
verify their compliance.
    FMCSA stresses that it does not have regulatory authority over
system providers. FMCSA is not proposing mandating blanket testing and
certification criteria, because allowing ELD providers flexibility to
meet or exceed the performance requirements of these criteria is
consistent with other DOT regulations and would be as effective as
existing DOT regulations. FMCSA will continue to monitor the testing
and certification activities and may issue guidance on test standards
at a future date.
    Registration and Web site. This SNPRM would require certified ELDs
to be registered with FMCSA, and would require motor carriers to use
only those ELDs listed on FMCSA's Web site. FMCSA expects this process
to inform motor carriers of all available options through a single
resource. FMCSA anticipates ELD providers will be able to meet industry
demands in advance of the rule's compliance date. However, FMCSA seeks
comment and information about providers' ability to meet industry
demand.
    Third-party certification. This SNPRM is not proposing that
certification be completed by a third party. While the certification
process would not prohibit the use of a third-party testing service,
the ELD provider would be the responsible certifying entity. Although
not proposed in this SNPRM, FMCSA is seeking information on, and may
consider using, a third-party

certification process whereby all ELDs would have to be independently
tested, validated, certified, and stamped for listing by, for example,
a nationally recognized testing laboratory. The Agency believes that
such a requirement would increase costs to the motor carrier industry,
but in the absence of robust standards for testing and validation for
ELD-like systems in the marketplace today, the Agency was unable to
clearly quantify such costs and project their potential impact on the
rule's implementation. FMCSA believes that such a process may emerge by
market demand even in the absence of a regulation, and this SNPRM does
not prohibit such third-party certification. FMCSA requests public
comment on industry's preference on a potential third-party
certification requirement.
    Original equipment manufacturers. FMCSA recognizes that, in some
cases, ELDs will be made available by the original equipment
manufacturers on new CMVs. Many original equipment manufacturers have
announced that they are installing, or have plans to install,
multifunctional terminals in the instrument panel of some models of
CMVs. This would offer a more ``application ready'' interface for motor
carriers, allowing them to use a variety of productivity, safety, and
telematics applications. However, the fact that original equipment
manufacturers offer those terminals--and the ability of CMV operators
to take delivery of CMVs with those terminals installed--does not imply
that original equipment manufacturers are subject to ELD regulations,
nor that the terminals, by themselves, comply with the definition of
ELDs.
    This SNPRM would not regulate original equipment manufacturers;
that responsibility has been delegated to NHTSA (49 U.S.C. 30111; 49
CFR 1.95(a)). FMCSA may not regulate ``the manufacture of commercial
motor vehicles for any purpose'' under the safety regulation provisions
of 49 U.S.C. chapter 311 (49 U.S.C. 31147(b)). The proposed regulations
do not distinguish between original equipment manufacturers that
install in-cab computer terminals that have ELD capacity and
aftermarket providers of ELDs. ELDs installed at the time of vehicle
manufacture are currently supplied by ELD providers. Regardless of the
manufacturer or integrator of an ELD, a motor carrier may only use an
ELD that has been certified and registered with FMCSA.
2. User Requirements
    Data entry when the CMV is moving. The current AOBRD regulation
allows minimal keystroke sequences to be used while the CMV is in
motion. This was done to allow drivers to note State-line crossings
because AOBRD data is used for fuel tax reporting purposes. Improved
geographic-location technology renders this unnecessary. Today's SNPRM
would eliminate the ability of a driver to enter information into an
ELD while the vehicle is in motion. An ELD must not allow a driver to
access it unless the CMV is stopped.
    Editing and annotating RODS. FMCSA would take the ``ship's log''
approach to records. Once a record has been created using the ELD, it
must not be erased and driving-time records must not be changed.
However, editing a record does not erase the original data captured by
the ELD, and records may be edited or annotated to correct inaccuracies
or errors. Driving time may not be changed.
    As proposed by this SNPRM, both the driver and the motor carrier
would need to ensure that the ELD records are accurate. A driver may
edit, enter missing information, or annotate the record. The motor
carrier may propose changes to the driver. The driver would need to
confirm or reject any change, edit the record, then re-certify the
record, in order for the motor carrier's proposed change to take
effect. This would preserve the driver's responsibility for the
driver's records.
    Entering false information. The 2011 NPRM prohibited entering false
information in the ELD, subject to the same penalties as the current
regulations apply to instances of falsifying RODS. This SNPRM proposes
to retain and expand upon this prohibition.
    Although some individuals will attempt to enter false or inaccurate
information on ODND time, the possibility of some cheating does not
negate the anticipated overall effectiveness of this SNPRM. The Agency
is not aware of any reliable sensing technologies that can
automatically differentiate between the various non-driving statuses
without an unacceptable loss of privacy. ELDs, however, would
dramatically reduce HOS record falsification for driving time, which
would be recorded automatically, and thus would decrease the level of
falsification among HOS records as a whole.
3. Enforcement Procedure and Transmitting Data
    ELD data would need to be transferred to authorized safety
officials at a motor carrier's facility or as part of a roadside
inspection or review. Today's SNPRM would provide flexibility by
allowing various options for the transfer of data, while ensuring a
driver's privacy would be protected. Based on States' capabilities,
FMCSA proposes alternatives for compliance with the use of primary and
backup transfer mechanisms.
    ELDs would need to incorporate a standardized, single-step, driver
interface for the transfer of data to an authorized safety official at
roadside. Under this proposal, the enforcement officer would be able to
read the ELD data without entering the CMV. The uniform process for the
transfer of data would allow standardized review of ELD data by
authorized safety officials using eRODS software.
    FMCSA currently requires AOBRDs to display the time and sequence of
duty status entries, and today's SNPRM proposes the same requirement
for ELDs. This SNPRM would require an ELD to provide graph-grids for
the current 24-hour period and the previous 7 days, either on a display
or on a printout.
    FMCSA considered the option to require all ELDs to produce
printouts and includes the cost-benefit analysis for this option in the
RIA that supports this SNPRM. Such a broad mandate would be
comparatively costly to the industry. FMCSA is, therefore, proposing to
allow printing as an acceptable form of compliance for ELDs during
roadside inspections, but would not require all ELDs to provide print-
outs. FMCSA also considered regulating details of a compliant ELD
screen specification, but decided that this approach would both
increase the cost of ELDs and limit innovative solutions, without
markedly increasing benefits. In this SNPRM, FMCSA more generally
refers to the functional information presentation requirements instead
of listing specific screen requirements.
4. ELD Specifications To Protect Privacy
    The primary Federal statute addressing protection of an
individual's PII is the Privacy Act of 1974, as amended (5 U.S.C.
552a). This Act applies to information maintained in a ``system of
records''--a group of any records under control of the Agency from
which information may be retrieved by an individual's name or by some
identifying number, symbol, or other identifying particular assigned to
an individual. MAP-21 requires that FMCSA ``include such measures as
[FMCSA] determines are necessary to protect the privacy of each
individual whose personal data is contained in an [ELD].'' See 49
U.S.C. 31137(d)(2). FMCSA would limit the collection of PII to the
driver's name, driver's license

number, location, the co-driver's name, and names of other users of the
ELD. Additionally, information provided in driver annotations may
contain PII.
    To protect the privacy of drivers using ELDs, FMCSA would require a
variety of controls. Both drivers and motor carrier support personnel
would have to possess proper user authentication credentials (e.g.,
username and password) to access ELD data. For location information,
FMCSA would also limit the detail of captured coordinates to two
decimal places and require accuracy only to a radius of approximately 1
mile. Furthermore, when a driver indicates personal use of a CMV on the
ELD, recording accuracy for position information would be further
reduced to a single decimal place, resulting in an accuracy equivalent
to a radius of approximately 10 miles. Finally, as explained in the
data transfer section, FMCSA would require data transferred to
authorized safety officials to be encrypted or, in the case of a
display or print-out, physically protected, reducing the likelihood of
the unauthorized capture of ELD data. This requirement addresses the
protection of personal data consistent with requirements of MAP-21, 49
U.S.C. 31137(e)(2).
    In support of its safety mission, FMCSA has been delegated broad
authority to prescribe recordkeeping and reporting requirements (49
U.S.C. 31133(a)(8); 49 CFR 1.87(f)). However, in MAP-21, Congress
restricted the way ELD data might be used. Specifically, the statute
provides that the Agency ``may utilize information contained in an
electronic logging device only to enforce. . . motor carrier safety and
related regulations, including record-of-duty status regulations'' (49
U.S.C. 31137(e)(1)). Furthermore, appropriate measures must be
instituted ``to ensure any information collected by electronic logging
devices is used by enforcement personnel only for the purpose of
determining compliance with hours of service requirements'' (49 U.S.C.
31137(e)(3)). As explained in the accompanying conference committee
report, Congress intended that such data ``be used only to enforce
federal regulations'' (H. Rep. No. 112-557, at 607 (2012)).
    FMCSA reads these ELD data-use restrictions in the context of the
regulatory structure and longstanding HOS enforcement practices in
existence at the time MAP-21 was adopted, and the Agency does not infer
from the provisions any congressional intent to diminish the Agency's
previous enforcement capabilities. MAP-21 effectively directs the
Agency to substitute the paper RODS requirement with a requirement that
the same motor carriers use ELDs. While the primary purpose of drivers'
RODS has always been the enforcement of the HOS rules, authorized
safety officials use drivers' logs also for additional evidentiary
purposes. However, the Agency's HOS regulations apply only to drivers
operating in interstate commerce, and the Agency has often relied on
drivers' logs to demonstrate interstate commerce as an element of FMCSA
jurisdiction. Logs are also used to identify the driver, a function
specifically required by 49 U.S.C. 31137(b)(2)(D) and inherent in
enforcement of HOS requirements. Once established for purposes of
determining compliance with the HOS requirements, such a legally
essential predicate fact becomes the law in the case. The established
fact may then supply an element of proof of non-HOS violations. FMCSA
believes this is a reasonable interpretation of sec. 31137(e), given
the Agency's historical multipurpose use of the logbook, which Congress
intends to displace through mandatory ELD use, and in light of the
reference to the enforcement of ``related regulations'' in sec.
31137(e)(1).
    Although MAP-21 restricts the manner in which FMCSA may use ELD
data, the Agency also believes that such data could be employed in
future research efforts relating to HOS compliance and highway safety,
as this research may ultimately improve compliance with HOS
requirements. Although this option is available to the Agency,
consistent with current practice, such data would not be retained
absent a violation. For more information concerning how FMCSA would use
ELD data, please see the Privacy Impact Assessment associated with this
rulemaking. In the event that FMCSA elects to retain such data in
connection with a future research effort, the Agency would give the
public advance notice of its decision.
5. ELD Specifications To Protect Against Harassment
    In prescribing regulations on the use of ELDs, the Agency is
required by statute to ensure that ELDs are ``not used to harass a
vehicle operator'' (49 U.S.C. 31137(a)(2)). The Agency proposes both
procedural and technical provisions to protect drivers of CMVs from
harassment resulting from information generated by ELDs. As voiced
during public listening sessions and stated in previous comment
submissions, drivers' primary harassment-related complaints focused on
pressures from motor carriers to break the HOS rules. Not every type of
complaint suggested a technical solution. However, 49 CFR 392.3
prohibits a motor carrier from requiring the driver to drive while ill
or fatigued. Proposed Sec.  390.36 prohibits harassment of drivers
through the use of data available through an ELD or related technology.
Furthermore, in the technical specifications in this SNPRM, the Agency
proposes to include several technical requirements aimed, among other
things, at protecting the driver from harassment.
    The Agency anticipates that some motor carriers would use
technology or devices that include both an ELD function and
communications function. To protect a driver using such a device from
unwelcome communications during rest periods, the proposed rule would
require that, if a driver indicates sleeper berth status, the device
must either allow the driver to mute or turn down the volume on the
communication feature or turn off this feature, or that the device do
one of these things automatically.
    To protect the driver's data, the rule proposes to require that any
changes made by a motor carrier would require the driver's approval.
Furthermore, the rule proposes to ensure that a driver has a right to
access the driver's ELD data during the period a carrier must keep such
records without requesting the data from the motor carrier if those
records are on the ELD or can be retrieved through the ELD.\12\
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    \12\ If a driver's records were not available through the ELD, a
motor carrier would need to provide the driver with access to and
copies of the driver's records, on request.
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    In developing these proposed technical performance requirements,
the Agency has taken into account drivers' privacy interests. As
explained above, FMCSA would not require vehicle location information
to be recorded at the level of precision that could identify street
addresses. Further, detailed location information would be required to
be recorded only at discrete instances, such as when a driver changes
duty status or at 60-minute intervals when the vehicle is in motion.
FMCSA believes these privacy protection features also would help ensure
that driver harassment does not arise from the use of ELDs.
6. Interoperability
    Interoperability refers to the ability of an ELD to share data with
ELDs from other systems and providers. FMCSA clarifies that it is
proposing technical requirements to facilitate interoperability,
principally through the requirement for standardized data

output formats. FMCSA offers alternative communication interfaces to
provide for the transfer of standardized ELD output data to authorized
safety officials. This would allow different hardware implementations
of ELDs in the market place, so long as the software produces the
required data in a specific and consistent format. FMCSA understands
that some carriers use more than one provider for HOS and FMS
applications, and flexibility provided in the SNPRM would allow ELD
providers to use standardized data formats and outputs as necessary to
accommodate specific motor carrier needs.
    It is FMCSA's belief that output standardization would facilitate
voluntary solutions for interoperability for those motor carriers who
would need such functions. FMCSA considered requiring full
interoperability, but does not propose it in this SNPRM, instead