and use of EOBRs in all CMVs for which the use of RODS was required (76
FR 5537). The provisions of 49 CFR 395.1(e)(1) and (2) would still
allow short-haul drivers to continue using the timecard provision to
record HOS. Although FMCSA would not have required short haul drivers
to install and use EOBRs, nothing in the NPRM precluded them from doing
so. Several commenters to the NPRM suggested that the Agency consider
expanding the rule to include a broader scope, or a ``true universal''
mandate for ELD use. Many other commenters supported the Agency's
proposal for all current RODS users to be required to use ELDs.
2. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA proposed to mandate the installation and use of
ELDs for the majority of interstate motor carrier operations. Drivers
engaged in operations that do not require the preparation of RODS would
be able to use ELDs to document their compliance with the HOS rules,
but FMCSA would not require them to do so. Drivers currently allowed to
use timecards could continue to do so under the provisions of 49 CFR
395.1(e). Drivers who need to use RODS infrequently or intermittently
would also be allowed to continue using paper RODS, provided they do
not need to use RODS more than 8 days in any 30-day period.
    The 2014 SNPRM evaluated four options for this proposed ELD
mandate:
     Option 1: ELDs are mandated for all CMV operations subject
to 49 CFR part 395.
     Option 2: ELDs are mandated for all CMV operations where
the driver is required to complete RODS under 49 CFR 395.8.
     Option 3: ELDs are mandated for all CMV operations subject
to 49 CFR part 395, and the ELD is required to include or be able to be
connected to a printer and print RODS.
     Option 4: ELDs are mandated for all CMV operations where
the driver is required to complete RODS under 49 CFR 395.8, and the ELD
is required to include or be able to be connected to a printer and
print RODS.
    Option 2 is FMCSA's preferred option for the mandated use of ELDs.
FMCSA adopts this option in today's rule.
    General comments. An individual noted that the ELD mandate would
put a cost burden on the occasional interstate driver (e.g., 10-20
times per year). An individual stated an objection to the ELD mandate
on the basis that the government does not have the right to require
private individuals to install something in their private property.
    Because service technicians are not subject to Federal and State
HOS restrictions, and they operate several vehicles owned or leased by
different carriers on a daily basis, the American Truck Dealers (ATD)
division of the National Automobile Dealers Association stated that it
does not make sense to subject them to the RODS requirements or to the
proposed ELD and supporting documents rules.
    Comments on Option 1: ELDs mandated for all CMV operations subject
to 49 CFR part 395. An owner-operator, a driver, and two individuals
stated that the rule should cover all commercial truck drivers, with no
exceptions. An individual commenter specifically included the 100/150
air mile carriers--which the commenter asserted were most problematic.
Klapec opposed Option 1 and stated that, as a company with an excellent
safety record, it is being subjected to punishment for the actions of a
small percentage of the industry that routinely violate the HOS rules.
The company believes ELDs should be mandated only for the chronic
violators of the HOS rules.
    Comments on Option 2: ELDs mandated for all CMV operations where
the driver is required to complete RODS under 49 CFR 395.8. The
majority of commenters supported Option 2. The International
Brotherhood of Teamsters (IBT) stated that safety benefits are higher
when all regulated CMV operations are included in the ELD mandate, but
supported Option 2. The International Foodservice Distributors
Association (IFDA) noted its support for the Agency's proposed
exclusion from the ELD mandate of drivers who are not currently, or are
only occasionally, subject to RODS requirements.
    The National Limousine Association (NLA) stated that Option 2 is
the most sensible option and that it squarely meets the Congressional
mandate under MAP-21. If the short-haul exemption were eliminated, NLA
noted there would be severe negative economic impacts on NLA's members,
most of whom are small businesses. NLA also stated short-haul carriers
have a strong record of safety and HOS compliance, and that the focus
must be on long-haul operators, where the fatigue-related safety
concerns exist.
    Comments on Options 3 and 4: ELDs must include, or be connected to,
a printer. Options 3 and 4 are essentially the same as Options 1 and 2,
but would also require those ELDs to include, or to be able to be
connected to a printer.
    Support Printer Requirement. Only one commenter supported the
printer requirement. An ELD provider noted that Options 1 and 2 lack a
practical interface for carrying out manual inspections at roadside
inspections stations and that electronic data transfers are often not
possible. The ELD provider recommended that FMCSA require ELDs to have
a printer or the ability to connect to a printer.
    Oppose Printer Requirement. Several commenters, including the
Agricultural Retailers Association, the NLA, and

several individuals, opposed the printer requirement due to the expense
of maintaining and operating printers.
3. FMCSA Response
    FMCSA agrees with the comments to the NPRM supporting the exception
for short haul operations under Sec.  395.1(e) because this approach
presents the most cost effective approach for mandating ELD usage among
a large percentage of CMVs operating on the Nation's highways. Based on
comments to both the 2011 NPRM and the 2014 SNPRM, as well as the
economic factors presented in the RIA for this rulemaking, FMCSA
requires ELDs for CMV operations where the driver is required to
complete RODS under 49 CFR 395.8, subject to limited exceptions
addressed below.
    The Agency continues to believe that this is the best and most
cost-effective option and that it meets the requirements of MAP-21.
FMCSA's analysis did not find a compelling safety or cost-benefit
argument to include those drivers engaged in ``short haul'' operations
given that these drivers work within a limited distance of the work-
reporting location and generally are released from duty within 12 hours
from the beginning of the work day. Because these drivers currently
rely upon time records rather than RODS and operate limited distances
within strict daily limits, FMCSA believes there is less cause for
concern about fatigue than is the case with the population of drivers
that must prepare RODS.
    In response to commenters that believe the ELD mandate should be
imposed only on drivers required to hold a CDL, the Agency notes that
Congress linked the ELD requirement to the HOS requirements such that
any person who operates a CMV, as defined in 49 CFR 390.5, and is
subject to the Federal HOS requirements for RODS is subject to the
mandate. Therefore, today's rule is applicable to CMV drivers required
to keep RODS, regardless of whether they require a CDL.
    In response to commenters' concerns regarding printer-related
expenses, the rule includes a display option as an alternative to a
printer as a backup to electronic data transfer.

B. Exceptions to the Requirement To Use ELDs--the 8 in 30-Day Threshold

1. Comments to the 2011 NPRM
    In the 2011 NPRM, the Agency acknowledged that drivers working for
motor carriers that keep timecards under 49 CFR 395.1(e)(1) and (2) may
occasionally operate beyond the parameters of those provisions (for
example, by operating outside the specified 100- or 150-air-mile
radii). Under the 2011 NPRM, if a driver operated a CMV more than 2 of
every 7 days using RODS (outside the parameters of the timecard
exemption), the driver would be required to use an EOBR. This
effectively set a threshold for EOBR usage. The NPRM specifically asked
for comments and suggestions on this topic, as the Agency wanted to
know if a more appropriate alternative threshold exists.
    None of the commenters responding to the SNPRM favored the proposal
as written. However, several commenters offered alternatives for
FMCSA's consideration. ATA agreed with the proposed weekly period but
recommended setting the threshold at three or more trips. The United
Parcel Service (UPS) recommended that FMCSA consider a longer period--
at least a month and at least 5 instances of exceeding time or distance
limits within that month--to give carriers the opportunity to determine
if deviations from the short-haul provisions were due to unplanned but
unavoidable situations or from recurring situations. If EOBR use
ultimately would be required for specific operations, UPS also
suggested that FMCSA mandate EOBRs only for a specified period of time
and consider restoring the timecard exemption if no further time or
distance limit deviations occur.
    FedEx Corp (FedEx) raised concerns about the potential complexity
of an ``occasional use'' provision. FedEx noted that there are two
different operational situations where a driver, who usually uses a
timecard, would be required to use RODS because the driver had exceeded
the time or distance thresholds: When the driver is aware of this prior
to commencing a trip or when the driver discovers this during the trip.
For this reason and to facilitate compliance assurance in roadside
settings, FedEx recommended that FMCSA adopt a ``bright-line'' rule
that would require EOBR use if the driver knew at the start of the trip
that a RODS would be required.
    The Utility Line Clearance Coalition recommended that FMCSA base
the threshold for EOBR use on the number of trips in a month a driver
operates outside the timecard provisions. The National School
Transportation Association believed that a threshold premised on trips
made during a given week does not properly account for the seasonal
nature of some school transportation activities. The Association
suggested that FMCSA consider a threshold based on total annual trips
and that carriers that do not exceed the time or distance limits on
more than 10 percent of their trips be exempt from EOBR use.
    FirstGroup requested that FMCSA retain the current exemption for
intrastate school bus operations and consider allowing the drivers to
use RODS on the few occasions (less than 1 percent of all field trips)
when they would operate beyond a 100-air-mile radius.
    Schneider National, Inc. (Schneider) questioned the ability of
short-haul carriers to make day-to-day judgments concerning EOBR use.
Schneider also asked FMCSA to clarify the assessment periods (for
example, do ``week'' and ``month'' refer to calendar weeks and months,
or rolling periods?) and the Agency's expectations concerning when HOS
would need to be recorded using an EOBR.
    NLA believed that FMCSA did not have sufficient data to justify
applying an EOBR mandate to short-haul motor carriers, particularly
those carriers that operate smaller capacity passenger vehicles.
    Individual commenters expressed different concerns about the short-
haul provisions and EOBR use. One commenter believed long-haul motor
carriers might change to relay operations to take advantage of the
short-haul provisions. Another focused on seasonal operations where a
driver is required to use RODS only for 10-15 days per year. This
commenter recommended FMCSA consider setting a yearly threshold for
RODS use based on annual distance traveled or number of days a CMV
driver operates outside the short-haul limits.
2. Comments to the 2014 SNPRM
    In response to the comments to the NPRM, FMCSA proposed a new
threshold for ELD use in Sec.  395.8(a)(1)(iii) of the SNPRM. FMCSA
proposed that a motor carrier could allow a driver who needed to
complete RODS not more than 8 days within any rolling 30-day period to
record the driver's duty status manually, on a graph grid. FMCSA would
not require these drivers to use an ELD. This proposed exception was
intended to provide relief for drivers who only intermittently needed
to use RODS, for example, drivers in short-haul operations who usually
use time cards or occasional CMV drivers.
    Many commenters supported the proposed exception for drivers who
infrequently need to use RODS, including the California Highway Patrol,
the National Private Truck Council, the National School Transportation

Association, the Snack Food Association, and the IBT. Other commenters
proposed alternate bases for the exception.
    Some commenters believed that the proposed exception was too
restrictive to accommodate all those drivers who might need it. A
commenter suggested a threshold of 15 days in a 30-day period before an
ELD is required, while another commenter said that the 8-day limit did
not consider circumstances like weather. The National Ready Mixed
Concrete Association opposed the proposed exception, saying that the
``provision, as written, is unachievable in the ready mixed concrete
industry.'' It called the 8 days in 30-days exception ``shear overreach
and outside the scope of what statutorily should be in the proposal,''
because it is not required by MAP-21. The Association wrote that FMCSA
has a duty and is compelled not to include such a provision, which they
characterized as ``non-mandated, unnecessary, and unfounded.''
    The National Motor Freight Traffic Association (NMFTA) also
objected to the 8 days in 30-days exception, writing that the proposed
rule effectively requires motor carriers to equip trucks with ELDs if
there is any possibility their drivers may surpass the 8-day threshold.
NMFTA asked how a driver who may or may not exceed the 8-day threshold
and who may have used different pieces of equipment will be expected to
provide a recap of the last 7 days of HOS compliance data to roadside
inspectors. NMFTA also questioned what the motor carrier's exact
responsibilities will be to assemble, monitor, and retain ELD records
and other driver records across several pieces of equipment?
    The American Pyrotechnics Association believed that the 8 in 30-day
exception was too restrictive and would not apply to its drivers
because they do not return to the work-reporting location within 12
hours. The California Construction Trucking Association said the
exception should also apply to intrastate operations using paper RODS
to comply with a State regulation.
    Some commenters, including the Continental Corporation
(Continental), believed the 8 in 30-day exception would be difficult or
impossible to enforce at roadside. CVSA wrote that roadside enforcement
would not be able to determine whether the driver had exceeded the
short-haul exception and by how much.
3. FMCSA Response
    In the 2011 NPRM, FMCSA proposed that drivers using RODS more than
2 out of 7 days would have to use an ELD, and drivers using RODS for 2
days or fewer out of 7 could continue to use paper. Overwhelmingly,
commenters rejected this threshold. Therefore, for a number of
practical and enforcement reasons, FMCSA proposed in the SNPRM--and
retains in today's rule--an 8 in 30-day threshold for ELD use. The fact
that Congress vested in the Agency responsibility for mandating ELD-use
by regulation, rather than requiring use of ELDs by statute, negates
the suggestion that the Agency lacks any discretion to prescribe the
parameters of the regulation. Nevertheless, the Agency has exercised
that discretion narrowly, providing only three exceptions. Drivers who
need to use RODS infrequently or intermittently, even if they are not
operating under the short-haul exception in Sec.  395.1(e), may
continue to use paper RODS provided they are not required to use RODS
more than 8 days in any 30 day period.
    The Agency considered a number of factors in selecting the 8/30 day
threshold. While the 8/30 day threshold preserves nearly the same ratio
as the proposed 2/7 threshold, it will provide drivers and motor
carriers with more flexibility. In addition, the 8-day period is the
standard time frame for current HOS recordkeeping requirements.
Currently drivers are required to keep the previous 7 days' records and
the present day's records. Allowing a driver 8 days out of 30 days as
the threshold to use paper RODS before requiring ELD use keeps this
time frame consistent. The 8/30 day threshold will also accommodate
some seasonal concerns. The Agency believes that expanding the 8/30 day
threshold to 15/30 days, as suggested by some commenters, is
inappropriate. That level of exception would significantly decrease the
effectiveness of the ELD mandate. Similarly, extending the 30-day
period would limit the ability of the Agency to monitor compliance
during reviews.
    The Agency acknowledges that any exception to the ELD mandate
creates challenges for roadside enforcement. the Agency does not
believe that the short haul exception from ELD use will present
different challenges from the current challenges authorized safety
officials face in monitoring the short-haul exceptions in 49 CFR 395.1
(e)(1) and (2).

C. Requests for Exemption for Driveaway-Towaway Operations, Dealers,
and Pre-Model Year 2000 Vehicles

1. Comments to the 2011 NPRM
    In the February 2011 NPRM, FMCSA proposed mandatory installation
and use of EOBRs in all CMVs for which the use of RODS is currently
required (76 FR 5537). While the NPRM would have allowed short-haul
drivers to continue to use timecards, it did not provide for any other
exceptions other than the 2 in 7-day exception. Commenters asked FMCSA
to consider an exception to allow driveaway-towaway operators and CMV
dealerships to use paper RODs in the vehicles they deliver to their
customers.
    In a driveaway-towaway operation, a driver transports an empty or
unladen motor vehicle, with one or more sets of wheels on the ground,
either by driving it or by using a saddle-mount or tow-bar. The driver
moves the vehicle between a manufacturer and a dealer or purchaser, or
between someone selling or leasing the vehicle and the purchaser or
lessee. The driver may take the vehicle to a terminal or repair
facility. Typically, the driver drops the vehicle off and either
returns home or picks up another job. A motor carrier that specializes
in these driveaway-towaway operations often employs the driver(s).
Dealerships have some of the same issues as driveaway-towaway
operations when delivering vehicles to their customers. The vehicle
driven may or may not be part of the delivery.
    While the NPRM did not specifically address older vehicles, FMCSA
also received comments on using an EOBR with an older engine.
    Driveaway-towaway operations. Several commenters stated that they
deliver CMVs of many different makes and models, and that EOBR
installation would be a particular burden for them. Other commenters
pointed out that the FMCSRs already contain exceptions and special
provisions for driveaway-towaway operations (e.g., Sec. Sec.
390.21(f); 393.42(b)(2); 393.43(f); 393.48(c)(2); 393.95(a)(6); and
396.15). Because EOBRs are generally an aftermarket device, several
commenters, including the Engine Manufacturers Association/Truck
Manufacturers Association, stated that the temporary installation and
subsequent removal of an EOBR would represent a significant expense for
a one-time use. The Engine Manufacturing Association, Rush Enterprises,
Inc. (Rush) and ATC Transportation, LLC (ATC) were also concerned that
the process of installing and removing a temporary EOBR might damage
the new vehicle or the EOBR and cause delivery delays. A few commenters
noted that small portable or hand-held units were either not available
or the commenters did not have information about them. Others noted
that training costs and technical requirements would make using

manufacturer-installed EOBRs impractical, were they to be available.
Rush, Driveaway-Towaway Carriers (a group of four individual carriers),
and ATC each provided detailed projections of the cost impact on their
operations.
    Dealerships. One commenter addressed the use of EOBRs on CMVs being
transported from dealerships. This commenter suggested that a portable
unit could be plugged into the 9-pin connector under the dash and could
be used in these operations.
    Vehicles manufactured before model-year 2000. Two commenters stated
that many older CMVs in use have mechanically-controlled engines and
may not accommodate EOBRs (i.e., there is no ECM). In contrast, another
commenter advised that two state-of-the-practice EOBR-class models can
be attached to a truck that is not equipped with an ECM by use of a
sensor attached to the transmission, drive shaft, or axle, depending on
the truck. Verigo Inc. (Verigo) recommended that FMCSA permit a driver
to use untethered means (i.e., an ELD that achieves integral
synchronization through wireless communication with the CMV) to record
on-duty time and off-duty time and carry out other recordkeeping tasks
while away from the vehicle.
2. Comments to the 2014 SNPRM
    Comments to the 2011 NPRM raised the issue of exemptions addressing
specific sectors of the industry or specific types of CMVs. Given the 8
in 30 days threshold for drivers infrequently required to keep RODS,
FMCSA stated in the SNPRM that it was not proposing any additional
exceptions [79 FR 17672, March 28, 2014]. However, drivers and carriers
in driveaway-towaway operations and those who use CMVs manufactured
before model year 2000 explained how the proposed technical standards
would be difficult to apply, given their unique operations.
    FMCSA sought comments on issues related to installing and using an
ELD on CMVs manufactured prior to 2000 [79 FR at 17668, Mar. 28, 2014].
These comments are also discussed under Section X, W, Pre-2000 Model
Year CMVs, of this preamble.
    Driveaway-towaway operations. A number of comments to the SNPRM
questioned how ELDs would affect driveaway-towaway operations. Several
commenters, including ATC, Driveaway-Towaway Carriers (a group
representing Classic Transport, Inc., Horizon Transport, Inc., and
Quality Drive-Away, Inc.), the, Recreational Vehicle Industry
Association, and Driveaway-Towaway Coalition (representing Bennett
DriveAway, D&T Transport, EagleOne Oilfield Transportation, Hoosier
Transit, Mamo Transportation, Norton Transport, and PARS), asked that
the ELD rulemaking provide an exception for driveaway-towaway
operations because of the unique nature of the operations. The
commenters described the unique circumstances of a driveaway-towaway
operation that make the installation and use of ELDs impractical and
excessively burdensome:
     A driveaway-towaway operator is not allowed to alter,
attach, or disassemble any portion of the CMV being transported. It
must be delivered in the same condition as when it was presented for
delivery.
     The driveaway-towaway operator does not own the CMV or
rent or lease the CMV, but it is financially liable for any re-assembly
or repairs to a CMV damaged or changed in transit.
     The driveaway-towaway operator operates the CMV only once,
delivering it to the dealer/purchaser.
     The driveaway-towaway operator transports every type of
CMV and other drive/towaway cargo for many different manufacturers of
recreational, commercial, or specialized motor vehicles. The driver
transports both new and used CMVs of every variety; the vehicle being
transported may not have an ECM.
    Henkels & McCoy Inc. and Driveaway-Towaway Carriers noted the lack
of information on existing portable ELDs. The Driveaway-Towaway
Coalition reported that many vehicles are not portable-ELD compatible.
    ATC noted that a driver will have to carry the equipment to connect
to each type of CMV the driver might encounter. ATC maintained that the
costs for training, extra equipment, and constant installation are over
and above what the majority of the trucking industry would incur to
comply with mandated ELDs, and were not part of the cost analysis of
the SNPRM.
    The Driveaway-Towaway Carriers and the Driveaway-Towaway Coalition
provided detailed descriptions of their collective operations. Both
sets of commenters noted that FMCSA has recognized the unique nature of
driveaway-towaway operations, referencing the exceptions and provisions
in the CFR. The Recreational Vehicle Industry Association offered
statistics for the driveaway-towaway companies demonstrating a low
crash frequency.
    Dealerships. ATD wrote that some dealerships use contract drivers
to operate new and used CMV inventory in intra- or interstate commerce;
others use employee CDL holders. New or used sales department staff may
pick-up or drop-off CMVs at factories, ports, customers, auctions,
other dealerships, etc.
    ATD recognized that some parts drivers may be covered by the
exceptions in 49 CFR 395.1(c) and (e). To the extent that they fail to
fall within an existing exception, ATD urged FMCSA to provide that such
CDL holders need not use ELDs to meet RODS requirements if the vehicles
being operated are not titled to or leased by a dealership employer.
ATD also maintained it would be very burdensome for small business
truck dealerships to have to set ELD systems and install ELD units in
vehicles to which they do not take title.
    Vehicles manufactured before model year 2000. Eight commenters
responded to FMCSA's request for comments on the complexity of
compliance with a CMV manufactured on or before 2000. The California
Construction Trucking Association said that while it is possible to
retrofit an older truck, its research indicates that it is costly, at
about $1,000 per truck in California. In contrast, Continental stated
that it would cost between $100 and $300 per vehicle. XRS Corporation
(XRS) stated that the Global Positioning System (GPS) solutions and
related cost for black boxes could result in an incremental cost of
$250 per vehicle. PeopleNet stated that obtaining speed from a source
other than the ECM or GPS will be very complex and cost-prohibitive.
Both PeopleNet and Zonar Systems (Zonar) supported using GPS-based ELDs
for older CMVs.
    The Truck and Engine Manufacturers Association generally supported
the proposed rule. It raised questions about whether FMCSA was
referring to model years or calendar years, as these are not the same.
The association noted the additional requirement that the engine
actually have an ECM is crucial in the event that a mechanically
controlled engine was installed in a vehicle with a model year 2000 or
later.
    One carrier was concerned about light duty vehicles with On-Board
Diagnostics (OBD-II) ports. It stated that OBD-II ports cannot share
data if they are already dedicated for another purpose. This situation
exists in several styles of its vehicles equipped with OBD-II ports;
the ports are already occupied by auxiliary equipment. Another problem
exists with capturing data from OBD-II ports: There are five different
protocols used in OBD-II and the software is proprietary to the vehicle
manufacturer. This would require the vehicle manufacturer to release
their

software to use the OBD-II to capture the necessary data effectively. A
towaway driver asked how the driver is to record time if there is no
engine control unit (ECU) plug available.
3. FMCSA Response
    Both driveaway-towaway operations and the operations associated
with truck dealers represent a unique operational challenge concerning
the use of ELDs. FMCSA believes that while many of these operations
will fall within the current ``timecard'' provisions for HOS
recordkeeping, some will not.
    In today's rule, FMCSA includes an exception from the ELD mandate
for driveaway-towaway operations, as defined in 49 CFR 393.5, provided
that the vehicle driven is part of the shipment delivered. FMCSA
acknowledges the concerns raised by these operators. FMCSA understands
that ELDs may not fit their operational model when providing a one-time
delivery of a vehicle. Neither the driveaway-towaway company nor the
driver own or lease the vehicles that they will be driving under this
exemption.
    This exception only applies to driveaway-towaway operations where
the CMV being driven is the commodity. These drivers will be required
to keep proper RODS and retain the same number and categories of
supporting documents as those required to use ELDs plus toll receipts.
FMCSA believes that these operators will be easy to recognize at
roadside; by the nature of their operation, drivers will be carrying
supporting documents that explain their operation. To the extent that
operations at a dealership fit the definition of a driveaway-towaway
operation, those operations are able to benefit from this exemption.
    FMCSA also includes an exception for to those drivers operating
CMVs older than model year 2000, as identified by the vehicle
identification number (VIN) of the CMV. Comments have indicated and
FMCSA's research has confirmed that pre-2000 model year trucks may not
allow the ELD to connect easily to the engine. While the Agency has
confirmed that there are ways of equipping older vehicles to use an ELD
consistent with today's rule technical specifications, these are not
always cost beneficial or practical. Further, the Agency lacks
confidence that the technology will be available to address this entire
segment of the market (pre-2000 model years) at a reasonable cost.
    While OBD-II does support 5 signaling protocols, none of these are
proprietary. Each protocol is outlined in the standard and the engine
manufacture decides which to implement and most vehicles implement only
one of the protocols. It is often possible to deduce the protocol used
based on which pins are present on the J1962 connector. While OBD-II
diagnostic, connectivity needs, and reporting capability vary by
manufacturer, FMCSA believes that ELD providers will work with each
vehicle manufacturer for specific details.

D. Requests for Exceptions From the ELD Mandate for Certain Segments of
the CMV Industry

1. Comments to the 2011 NPRM
    While the NPRM preserved the exception for short-haul drivers who
occasionally require RODS to continue to use timecards under Sec.
395.1(e), it did not provide for other exceptions. This exception was
limited to drivers requiring RODS no more than 2 days in any 7-day
period; on those days, they could maintain paper RODS. FMCSA asked for
comment on whether it should grant other exceptions. Responses were
received from businesses, trade associations and others representing
school bus operations, truck rental operations, agricultural
operations, construction, maintenance, oil and gas operations,
utilities, concrete companies and hazardous materials transporters.
Many commenters believed FMCSA should provide an exception for their
segment of the industry or their operations from the mandate to use
ELDs. Commenters mainly focused on the nature of their operations or
the costs of EOBRs. A hazardous materials transporter raised security
concerns over tracking of vehicles. An organization representing
concrete companies recommended a limited expansion of the short-haul
exception for drivers occasionally exceeding 100 miles.
2. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA proposed only a limited exception to the ELD
mandate--for drivers who are rarely required to keep RODS. Drivers who
need to use RODS infrequently or intermittently would be allowed to
continue using paper RODS, if they are not required to use RODS more
than 8 days in any 30-day period. The 2 days out of 7-day period
proposal in the NPRM was eliminated in light of the 8 days in 30
exception.
    Many commenters to the SNPRM believed that ELDs are not necessary
or appropriate for drivers in their particular industries, and asked
that their industry be excepted from the requirement to install and use
ELDs. Some commenters asked for an exception for private motor
carriers. A commenter believed an exception would be appropriate
because private motor carriers are not usually generating revenue
through hauling, crossing State lines, or driving on the roads as much
as for-hire carriers. A commenter asked how lawn services, private
delivery, horse show teams, etc. would be handled. A commenter wrote
that his or her drivers were working in the field, where they may not
have any technological connectivity. For flatbeds; specialized heavy-
haulers; auto transporters, or any other segment of the industry where
drivers have to do their own loading, unloading, or load securement, a
commenter wrote that ELDs would cripple the industry. Commenters also
asked for an exception for testing a CMV when it is being serviced or
repaired.
    Comments from the following special industries or types of
operations are discussed below: Agricultural-related operations;
utilities; construction, oil and gas, and ready-mix concrete industry;
pyrotechnics operations; driver salesperson operations; motion picture
industry; and waste and recycling industry.
    Agriculture-related operations. The Agricultural Retailers
Association interpreted the proposed ELD mandate would not apply to
agricultural operations. It based its interpretation on the rule FMCSA
published March 14, 2013 (78 FR 16189), which provided agricultural
exceptions to the HOS rules in part 395. In contrast, several
individual commenters believed that the proposed rule would apply to
agricultural operations. These commenters maintained that the ELD
mandate would be cost prohibitive for farm and ranch operators.
    One commenter noted that agricultural commodities are seasonal in
nature and asked how the ELD mandate would affect exemptions to the HOS
rules for the transportation of anhydrous and liquid fertilizer.
    An individual working for a company in the agricultural seed
industry also mentioned the seasonal nature of the company's
operations. The company has CMV's operating in interstate commerce on
the road every day of the year, but most of its drivers qualify and use
the 100- or 150- air-mile short haul exemptions. The commenter wrote
that during certain seasons (i.e. planting, detasseling/pollinating,
harvest), some of the drivers may increase their driving and may need
to fill out RODS more than 8 times in a 30 day period during a 3-6 week
season. The commenter noted that these drivers are not

professional, over-the-road truck drivers, but production and research
associates who mainly operate pickup trucks with trailers that put them
over the weight limits, qualifying them as CMVs. The commenter stated
that putting ELDs in all of these pickups--which are only occasionally
used as CMVs--would be a significant burden to the company.
    Utilities. Henkels & McCoy Inc. believed the proposed regulation
was designed for long-haul truck drivers, not their drivers who are
power line, pipeline, and telecommunications workers who only operate a
CMV short distances to and from or on a job site. The commenter noted
that utility project job sites often span great distances where the
majority of the driving is accomplished on the construction right of
way, not on public roadways. Henkels & McCoy, Inc., noted that some of
these projects might not fall under the short haul exemptions in Sec.
395.1(e) or the current interpretations of Utility Service Exemption
from the HOS rules, thereby requiring the installation of ELDs in
thousands of pieces of equipment that in the course of a day may only
be operated a few miles and may not traverse a public roadway for days
or weeks.
    Construction, oil and gas, and other specialized operators. A
commenter from the service and drilling equipment industry wrote that
ELDs are unnecessary because the drivers seldom drive far, but do not
qualify for the short-haul exception due to their longer hours. Because
of the conditions under which those trucks operate, the commenter wrote
that maintenance would be impossible. Another commenter questioned if
FMCSA had taken into consideration the ability of ELDs to accommodate
the HOS rules applicable to oil fields.
    A commenter who operates a small crane company asked FMCSA to
consider an exception for special mobile machinery that sometimes needs
to be moved more than 100 miles. The commenter maintained that,
although the company's drivers will not usually exceed the 8 days in 30
day exception while driving a crane, they will at times exceed that
amount when moving one of the large cranes. The commenter noted that
older cranes do not have modern electronic engines and computers to
support a compliant e-log device, and asked whether FMCSA expects them
to modernize the engines to be e-log compliant. The commenter asserted
that this process would not only be an excessive financial burden to a
small company, but would also achieve no safety gain worth the cost
because a slow moving crane on the highway for less than 5,000 miles
per year is statistically not a risk to the traveling public. The
Associated General Contractors of America (AGC) urged FMCSA to exempt
the construction industry from the ELD mandate. AGC noted that Congress
directed FMCSA to provide special consideration to construction drivers
in the HOS regulations by allowing construction drivers to reset the
on-duty clock after an off-duty period of 24 or more consecutive hours,
showing Congress' recognition of the unique circumstances faced by the
industry's drivers. The commenter also noted that no studies have
concluded that there is a safety deficiency specific to construction
workers driving under these rules.
    AGC believed that the mandate would create unreasonable impacts on
the construction industry given the cost of implementation and
administration issues. The commenter noted that the constant
vibrations, jarring movements, and bumps are likely to have an impact
on ELD operations, longevity, and accuracy. AGC reported that several
of its members claim that there is at least a 10 percent failure rate
for ELDs. The commenter wrote that the purchase and installation of
ELDs will be far more expensive than retaining records with paper RODS
and believed that FMCSA estimates fall far short of the actual costs.
AGC believed that administrative issues related to identifying drivers,
particularly temporary drivers, and correctly recording driving time
would cause problems for the construction industry. AGC asked FMCSA to
consider this record and extend its part 395 exemption to the new ELD
proposal.
    Pyrotechnics. The American Pyrotechnics Association (APA) supported
limiting the scope of the ELD mandate to drivers who are currently
subject to keeping RODS. The APA, however, believed that FMCSA should
provide an exemption for industries that are engaged primarily in
providing services or transporting tools of the trades, as opposed to
long-haul trucking. The commenter wrote that the majority of its
members operated CMVs over short distances to and from job sites and
provided a detailed explanation of their operations. Based upon data
provided by APA members and the carriers currently underwriting
vehicles to the industry, during the peak Fourth of July season, the
industry rents more than 3,500 vehicles for the 7-14 day period. The
two primary rental truck suppliers to the fireworks industry have
indicated that neither is planning to install ELDs at this time because
they do a minimal amount of commercial leasing, focusing instead on the
consumer market.
    The APA did not believe that ELDs would improve safety or prevent
crashes for drivers within the fireworks industry. The commenter wrote
that ELDs could actually contribute to more crashes as a distraction
for drivers who are not used to them. The APA wrote that it could not
comply with the mandate until ``plug and play'' devices, which can be
rented on a short term basis, become readily available. APA requested
relief be provided to small operators, especially those that must rely
on rented vehicles and intermittent/casual drivers over a short period
of time to handle all of their business commitments.
    Driver/salespersons. YRC Worldwide Inc. (YRC) said that driver
salespersons who exceed the short-haul exception in Sec.  395.1(e)
should be exempted based on their records availability, starting and
ending their shifts at the same location, and serving in the role of
driver salesperson. They should not be denied the exemption because of
an arbitrary mileage calculation. Based on the flexibility it needs in
its city fleet, YRC wrote that it may have to equip all vehicles with
ELDs and train all the driver salespersons to ensure they could serve
customers outside a 100 air-mile radius.
    Motion picture industry. The Motion Picture Association of America
(MPAA) recommended that FMCSA permit the non-electronic interchange and
production of RODS, at least for production drivers and other similarly
situated drivers, i.e., those who operate multiple CMVs or are employed
by multiple motor carriers. This approach could be made permanent, or
FMCSA could apply it to production drivers for an appropriate period
beyond the proposed, industry-wide compliance deadline.
    MPAA believed that an exception for drivers who operate multiple
CMVs or are employed by multiple motor carriers would allow ELD
technology to mature, with drivers generating less complex RODS, before
requiring production drivers to produce ELD-generated, all-electronic
RODS. The MPAA believed that ELD providers are likely to focus on
releasing ELDs suitable for the most common CMV operations and
sophisticated ELDs will not be available when the rule is implemented.
    Ready-mixed concrete. Both Glacier Northwest and Cemex Construction
Materials Pacific believed the rule would force companies to install
ELDs, penalizing the ready-mixed concrete industry because of the
nature of its product and unpredictable operations.

The National Ready Mixed Concrete Association said that this proposal,
in effect, is the true universal approach requested by NTSB. Instead,
all three commenters suggested that the rule exempt drivers operating
under Sec.  395.1(e)(1), but eliminate the 12-hour on-duty threshold.
Both Cemex and Glacier wrote that ready-mixed concrete industry drivers
are not subjected to fatigue-inducing situations and generally operate
under Sec.  395.1(e)(1), but may need to work longer days.
    The National Ready Mixed Concrete Association commented that the
reason for the proposed ELD mandate for CMVs ``is to obtain better
Hours of Service (HOS) compliance.'' The commenter described the
working conditions of mixer drivers, and commented that, because of
these conditions and exemptions to HOS compliance, making use of ELDs
by mixer drivers ``is a technical inapplicability.''
    Since mixer drivers are only in the CMV or driving a small amount
of the time they are on-duty, the commenter believed that ELDs cannot
accurately determine HOS compliance or productivity for mixer drivers.
    Waste and recycling industry. The National Waste and Recycling
Association commented that the industry operates a unique fleet that
differs significantly from long-haul trucks and other short-haul
trucks. The association provided a detailed description of its
operations. The commenter was concerned that the ELD may not be able to
handle unusual stresses inherent in their operations and may require
constant maintenance.
    The commenter wrote that FMCSA has acknowledged and research has
shown that fatigue is less of a problem for short-haul drivers, for a
number of reasons. Further, the association commented that Congress
recognized the unique nature of local routes by limiting the required
use of ELDs to CMVs operated by a driver subject to the HOS and RODS
requirements. It wrote that the Congressional intent is clear: Local
route, short-haul drivers who show HOS compliance by the use of time
cards do not need to use ELDs. The association commented that the
Agency, however, is now proposing that if a driver needs to use paper
logs for more than 8 days in any 30-day period, that driver must use an
ELD. The commenter was puzzled by the proposed 8 in 30-day threshold
because it directly contradicts the language in footnote 15 on page 79
FR 17680, which states, ``Today's SNPRM would not require short-haul
drivers who would need to keep RODS more than 8 days in any 30-day
period to use an ELD. Although FMCSA cannot quantify the costs to
carriers, the Agency believes extending the ELD mandate to these
drivers would not be cost beneficial.'' \15\ While the commenter wrote
that it understands the Agency's desire to prevent abuse of short-haul,
local-route status, it believed that the proposed remedy is excessive,
unnecessary, and will produce contradictory results. It agreed with the
footnote that it is not cost beneficial.
---------------------------------------------------------------------------

    \15\ FMCSA acknowledges an error in the referenced footnote. It
was intended to read, ``[t]oday's SNPRM would not require short-haul
drivers who would need to keep RODS not more than 8 days in a 30-day
period to use an ELD. . . .''
---------------------------------------------------------------------------

    The association commented that time cards adequately document HOS
compliance. The commenter wrote that whereas the time card is an
absolutely accurate record of duty time, an ELD will be a poor tracker
of driving time in the short-haul, local route waste and recycling
industry.
3. FMCSA Response
    Subject to limited exceptions, today's rule establishes clear
requirements for the use of ELDs in CMVs operating under circumstances
where drivers currently must keep paper RODS. Generally, the
requirements apply to drivers who are subject to the HOS limits under
49 CFR part 395, and do not satisfy the short-haul exception to the
RODS requirement. FMCSA considered all the comments and that, subject
to a narrow exception, declines to provide industry-specific
exceptions, given the lack of safety performance data for specific
industry segments and the fact that industry segments often overlap.
    The Agency, however, has provided limited exceptions from the ELD
mandate. The 8-day out of 30 threshold is intended to accommodate
drivers who infrequently require RODS. The driveaway-towaway exception
addresses unique aspects of those operations, but only if the vehicle
driven is or is part of the shipment. The pre-2000 model year exception
reflects concerns about employing an ELD on such vehicles.
    FMCSA anticipates that most of the industry segments seeking relief
from the ELD mandate are addressed, in part, under the short-haul
exemption under 49 CFR part 395. ELD use will be required only if a
driver operates outside the short-haul exception to the paper RODS
provision for more than 8 days of any 30-day period.
    As to the concern about location tracking technology creating a
security risk for hazardous materials, FMCSA notes that today's rule
does not include a requirement for real time tracking of CMVs.
    FMCSA believes that ELD providers will address the needs of
specialized industries. We note that Congress did not address concerns
of specific industry sectors in mandating a requirement for ELDs.

E. Exceptions for Small Business

1. Comments to the 2011 NPRM
    Because small businesses comprise such a large portion of the motor
carrier population subject to the FMCSRs, FMCSA stated in the 2011 NPRM
that it is neither feasible nor consistent with the Agency's safety
mandate to allow a motor carrier to be excepted from the requirement to
use EOBRs based only on its status as a small business entity.
    Several motor carriers, however, contended that very small
operations should be excepted. One commenter suggested that ELDs should
be required only for fleets of 25 or more trucks, another would set the
threshold at 100 or more trucks. An owner-operator wanted the rule to
allow owner-operators who own and drive one truck to use a Smartphone
system that uses GPS satellite signals for location tracking and is not
integrated with the truck's on-board computer.
    Associations representing small motor carriers also wanted special
consideration. The Air and Expedited Motor Carrier Association,
National Association of Small Trucking Companies, and The Expedite
Association of North America asked for a simple waiver procedure for
small businessmen, reasoning that the EOBR requirement would impose
needless costs on hundreds of thousands of small businesses. The
National Federation of Independent Business (NFIB) believed that
expanding the EOBR rule to cover all CMV drivers subject to the HOS
requirements ``is unnecessarily punitive to small businesses that
operate locally.''
    Given the disproportionate percentage of small businesses in the
industry, the NLA felt that any final rule that mandates EOBRs for all
CMV passenger carriers without a specific cost-benefit analysis of the
effect of the rule on smaller passenger-carrying CMVs ``would be
arbitrary, capricious and excessive.'' The association argued that
exempting small businesses whose safety records demonstrate
satisfactory compliance with the HOS rules from an EOBR mandate would
not equate to toleration of noncompliance. Those drivers would still be
required to keep RODS and operate within the HOS limitations. The
association asserted

that members of the industry that operate smaller CMVs for shorter
distances and shorter periods of time are not motivated to falsify
RODS.
    The Advocates for Highway and Auto Safety (Advocates), however,
supported the reasoning behind the Agency's decision not to except
small businesses from the EOBR requirement. Advocates stated that
exempting some or all small businesses would undermine the purpose and
safety benefits sought by proposing the rule and render it ineffectual.
2. Comments to the 2014 SNPRM
    As with the commenters to the 2011 NPRM, many commenters to the
SNPRM wanted an exception for small fleets and owner operators,
including one-truck/one-driver operations.
3. FMCSA Response
    For those motor carriers whose drivers engage in local operations,
ELD use would be required only if a driver operates outside the
timecard provisions of part 395 for more than 8 days of any 30-day
period. The requirement would be applicable to the specific driver
rather than the fleet. FMCSA notes that its safety requirements
generally do not vary with the size of the fleet and the ELD rulemaking
should not deviate from that practice. While Federal agencies are
required to consider the impact of their rulemakings on small
businesses, as defined by the Small Business Administration's size
standards (discussed later in the preamble under the Regulatory
Flexibility Act analysis), FMCSA is not required or expected to provide
an exception to its safety rules based solely on the fact that the
businesses are small. This approach also is consistent with the
provisions of MAP-21 (49 U.S.C. 31137), which does not distinguish
between motor carriers or their drivers based on the size of their
operations.
    Today's technical specifications require that all ELDs be
integrally synchronized with the engine. However, the rulemaking does
not preclude the use of smart phones or similar devices which could
achieve integral synchronization, including wireless devices.
    In response to the National Limousine Association, FMCSA notes that
the Agency is required to consider the impact of its proposed
regulations on small businesses. See XIV. B. (Regulatory Flexibility
Act), below. However, it is not required to perform analyses for
particular industry sectors.

F. Exceptions for CMVs Under 26,001 Pounds or Carrying Between 9 and 15
Passengers (Including the Driver)

1. Comments to the 2011 NPRM
    Although the NPRM did not propose an exception to the ELD
requirement for drivers engaged in operating CMVs under 26,001 pounds
or vehicles handling between 9 and 15 passengers, the NFIB believed
FMCSA should provide an exception for drivers operating CMVs with a
gross vehicle weight under 26,001 pounds. The NFIB stated that the rule
would disproportionately affect small business and fails to follow
Executive Order 13563. It stated that an ELD would have ``little or no
positive effect on highway safety for small trucks and vans.'' For many
small plumbing, electrical, and other service providers, the NFIB wrote
that the cost would be extremely prohibitive. It believed that many
other factors provide incentives for the small business owner to use
medium trucks responsibly, including market factors and the fact that
they live and drive within the community.
2. Comments to the 2014 SNPRM
    The SNPRM would require a driver of a CMV, as defined in 49 CFR
390.5, who is subject to the HOS regulations to use an ELD, unless the
driver operated under the short-haul exception or qualified for the 8
out of 30 day exception. Thus, it would include a CMV under 26,000
pounds or a CMV designed or used to transport between 9 and 15
passengers (including the driver) for direct compensation.
    Commenters had questions and concerns about how the proposed rules
would affect light-duty vehicles. An individual commenter and the AGC
suggested that the ELD requirement only apply to vehicles of a size
requiring a driver with a CDL. Both commenters wrote that drivers
operating vehicles between 10,000 and 26,001 pounds are usually engaged
in short-haul operations; and, when a log is required, it is likely
because they are on duty more than 12 hours or do not start and stop in
the same location. While FMCSA regulations apply only to interstate
operations, commenters wrote that most States will adopt the rules for
intrastate operations. They believed that ELDs will then be required in
almost all vehicles rated over 10,001 pounds, which includes 1-ton
pickups and 1-ton and up work trucks where, they maintain, fatigue is
not an issue. The commenters believed that this would create an undue
financial burden.
    NLA proposed that vehicles designed or used to transport between 9
and 15 passengers (including the driver) should be exempt. The
association noted that the Department of Transportation provides relief
for these types of vehicle and their drivers under 49 CFR parts 40,
171-180, 382, 383, and 397. The association also commented that a
vehicle designed to carry 15 or fewer passengers is not substantially
different from the driving characteristics of a privately operated
vehicle of the same size.
    The NFIB recommended exempting CMVs with gross vehicle weights
(GVW) of less than 26,001 pounds from the ELD requirement. The NFIB's
comments to the SNPRM largely echoed their comments to the NPRM. They
also stated that since these regulations are only imposed on drivers
engaged in commerce, the same driver, driving the same vehicle, along
the same route would be regulated differently depending on whether the
vehicle is being used for personal or business purposes. The NFIB
stated that this decision to regulate drivers engaged in commerce is
based on an assumption with no support; namely, that being ``in
commerce'' has an adverse effect on the driver's ability to drive the
same vehicle that may be driven for personal uses.
3. FMCSA Response
    FMCSA acknowledges the commenters' concerns but continues to
believe the underlying HOS recordkeeping requirements should not be
altered, which in turn, limits the Agency's discretion in considering
relief from the ELD mandate. MAP-21 requires that the Agency impose the
ELD mandate on drivers who prepare handwritten RODS. Safety would not
be enhanced by creating a new category of relief from the RODS
requirements. Regardless of the size of the vehicles being operated,
any driver who is unable to satisfy the eligibility criteria for the
short-haul exception must use RODS.
    FMCSA continues to grant relief in the form of an exception in
Sec.  395.1(e) to those drivers operating in ``short-haul'' operations.
Drivers who infrequently need to keep RODS (i.e., no more than 8 days
in any 30-day period), may continue relying on paper RODS. However,
because the Congressional mandate to require ELDs extends to CMVs as
defined under 49 U.S.C. 31132, FMCSA declines to limit the regulation
to CMVs over 26,000 pounds or exempt small passenger vehicles.

G. ELDs Only for Unsafe Carriers or Drivers

1. Comments to the 2011 NPRM
    In the February 2011 NPRM, FMCSA requested comments on the
potential advantages, disadvantages, and practicality of an exception
from the EOBR requirements for motor carriers with few or no HOS
violations. Many commenters supported the contention in the 2010 rule
and believed that FMCSA should not mandate EOBRs for safe drivers or
motor carriers. Other commenters felt that an exception should be
available for safe drivers or motor carriers.
    A number of commenters, including several trade associations,
supported limiting the EOBR mandate to carriers with severe or chronic
HOS violations. Other commenters, however, stated that a potential
exemption from the EOBR requirement based on a lack of HOS violations
``would result in endangering truck drivers and the motoring public.''
They argued that just because a company does not have a documented
history of violations does not mean that violations have not occurred.
2. Comments to the 2014 SNPRM
    In the SNPRM, the Agency did not propose an exception based on HOS
compliance history. Nonetheless, some commenters felt that experienced
drivers or drivers with a history of safe driving should not be
required to use an ELD.
3. FMCSA Response
    FMCSA acknowledges commenters' concerns, but the Agency disagrees
with the suggestion to provide an exception for experienced drivers
with good safety records. Such an exception would be difficult to craft
with regard to criteria for identifying eligible drivers and difficult
to enforce. Furthermore, in enacting the MAP-21 provision requiring
that the Agency mandate the use of ELDs, Congress did not predicate
that requirement on any ``safe driving'' threshold.

VIII. Discussion of Comments Related to Supporting Documents

A. Definition and Number

    Section 113 of the Hazardous Materials Transportation Authorization
Act of 1995 (HMTAA) \16\ requires the Secretary to adopt regulations
under 49 CFR part 395 to address supporting documents used by motor
carriers and authorized safety officials to verify a CMV driver's RODS
in order to improve compliance with HOS rules. Among other
requirements, the regulations are to describe identification factors
that enable documents to be used as supporting documents, specify ``the
number, type, and frequency'' of supporting documents that must be
retained by a motor carrier, allow verification at a reasonable cost,
and prescribe a minimum retention period of 6 months. The statute
defines ``supporting document'' as ``any document that is generated or
received by a motor carrier or [CMV] driver in the normal course of
business that could be used, as produced or with additional identifying
information, to verify the accuracy of a driver's [RODS].''
---------------------------------------------------------------------------

    \16\ Public. Law 103-311, 108 Stat. 1673, 1676-77 (August 26,
1994).
---------------------------------------------------------------------------

1. Comments to the 2011 NPRM
    The 2011 NPRM proposed limiting the supporting documents a motor
carrier would need to retain and defining the term ``supporting
document.'' The proposal recognized that driving time information would
be provided through the mandated use of EOBRs in CMVs.
    FMCSA proposed in the NPRM to define ``supporting document'' in a
way similar to the definition in section 113(c) of the HMTAA. Only one
document would have been needed for the beginning and end of each ODND
period if that document contained all the necessary elements--personal
identification, date, time, and location. Otherwise, the motor carrier
would have been required to retain several documents--enough to show
collectively all the necessary information.
    ATA, Werner Enterprises, Inc. (Werner), and Roehl Transport found
the proposed definition too broad, too expensive, and overly
burdensome. ATA commented that the definition did not allow for
compliance at a ``reasonable cost,'' as required by HMTAA. The
commenters believed the NPRM provisions could actually increase the
burden for retaining supporting documents. The commenters also
questioned why the definition from the HMTAA contained a reference to
documents received from the CMV driver and the proposed definition of
``supporting documents'' in the NPRM did not. One commenter preferred
the definition from the HMTAA. The commenters stated that at least some
of the data elements are usually missing from documents created or
received in the normal course of business. With the exception of
hazardous material motor carriers, several motor carriers believed that
documents to verify ODND were inadequate or unreliable.
    ATA wrote that the Agency's attempt to limit supporting document
retention to a single document is ``unrealistic,'' and that motor
carriers would have to keep a broad range of multiple documents. One
motor carrier commented that the Agency should not require a minimum
number of documents. Another large motor carrier commented that the
NPRM provided ``no guidance as to how many documents must be
included.'' The commenter wrote that the NPRM could be interpreted as
requiring ``all'' documents, records, and information generated or
received by the motor carrier in the normal course of business.
2. Comments to the 2014 SNPRM
    At the SNPRM stage, FMCSA significantly modified its proposal
governing supporting documents. The revised proposal would limit the
supporting documents that a motor carrier must retain by specifying a
maximum number and provide categories and required elements for
supporting documents. Like the NPRM, the Agency's proposal did not
require motor carriers to retain supporting documents to verify driving
time because the ELD would automatically capture this information. The
Agency's proposal did, however, require motor carriers to retain, for
each driver, supporting documents to verify a driver's ODND periods. In
terms of number and frequency, FMCSA would require a motor carrier to
retain up to 10 documents for a driver's 24-hour period. Electronic
mobile communication records covering a driver's 24-hour period would
count as a single document. Other types of supporting documents that
are relevant to distinct activities--such as a bill of lading for a
particular delivery or an expense receipt--would count as an individual
document, as explained under Section VIII, B, Categories. If a driver
were to submit more than 10 documents for a 24-hour period, the motor
carrier would need to retain the documents containing earliest and
latest time indications. If the supporting document cap were not
reached, the motor carrier would be required to keep all of the
supporting documents for that period. While the Agency proposed a
single supporting document standard for drivers using ELDs, drivers who
continued to use paper RODS would need to also retain all toll
receipts.
    The IBT stated its support for the supporting document proposal, as
ELDs do not automatically record ODND and other duty status periods.
The CVSA also supported the proposed supporting document provisions.

    ATA, however, noted that the number and type of supporting
documents has consistently increased. It claimed that the requirements
in the SNPRM were excessive and unnecessary and do not fulfill the
Congressional directive to allow for compliance at a reasonable cost to
carriers. It recommended that two supporting documents be required per
driver's workday--the one nearest the start of the day and the one
nearest the end--sufficient to verify the 14-hour rule. ATA noted that,
according to a prior FMCSA HOS rulemaking, only a small percentage of
drivers operate near the cumulative 60/70 hour duty time limit,\17\ and
that fact does not justify FMCSA's proposal for motor carriers to
retain supporting documents for all mid-shift duty changes. The
Truckload Carriers Association (TCA) also suggested that the only other
supporting documents that should be retained are the documents closest
to the beginning and the end of the driver's workday.
---------------------------------------------------------------------------

    \17\ Although this fact was attributed to FMCSA, the statement
apparently reflected the commenter's view and not necessarily that
of the Agency.
---------------------------------------------------------------------------

    The American Bus Association (ABA) proposed limiting the supporting
document requirement to five documents from three categories. FedEx
suggested that motor carriers should only be responsible for fuel data
plus one other supporting document type, if one exists. Knight
Transportation, Inc. (Knight) noted that enforcement generally relies
on no more than two to three supporting documents. The American Moving
& Storage Association (AMSA) noted that, in the case of household goods
drivers, ODND time is likely to be extensive and requested that the
required supporting documents be kept to a minimum and simplified to
the extent possible.
    The International Foodservice Distributors Association, the Snack
Food Association, and an individual commenter noted that the location
and tracking functions in the ELDs should eliminate the need for
additional paperwork. They therefore recommended elimination of
supporting document requirements. The National Waste & Recycling
Association suggested a total exemption from the supporting documents
requirement for local routes.
    FedEx suggested that FMCSA wait to modify the rule on supporting
documents until after the ELD rule has been in effect long enough to
determine if drivers are falsifying their ODND time on ELDs and if
crashes are occurring as a direct result of drivers improperly
recording ODND time.
    The Institute of Makers of Explosives (IME) and the National
Private Truck Council both asked FMCSA to continue to look at
supporting document requirements with an eye to providing more
flexibility and considering additional means to reduce the compliance
burden on carriers.
    Other commenters mistakenly believed that FMCSA asserted that the
proposed supporting document changes will reduce paperwork. Drivers and
carriers will still have to retain certain documents for other business
purposes.
    In terms of the 10-document cap, ATA noted that, because it is rare
for any document to reflect all of the required elements, carriers
would have to substitute documents containing all required elements
except time, which are not subject to the 10-document daily cap. As
such, the 10-document cap is a benefit in theory only and provides no
actual relief from the HOS supporting documents requirements.
3. FMCSA Response
    As explained in the 2014 SNPRM, FMCSA made major changes to the
proposed supporting documents regulations based upon public comments
submitted in response to the NPRM. The Agency disagrees with commenters
that suggest that the number of required supporting documents has been
increased through the 2014 SNPRM. This final rule does not change the
fundamental nature of supporting documents; they are records generated
in the normal business rather than documents created specifically to
verify the duty status of a driver. Because supporting documents used
to verify driving time would no longer be required of carriers that use
ELDs, some carriers subject to the ELD mandate would end up having
fewer supporting documents than they were required to retain before
today's rule. And whenever possible, FMCSA tried to reduce the costs
and complication of retaining supporting documents without compromising
the efficiency in ensuring HOS compliance.
    In today's rule, the definition of ``supporting document,'' makes
clear that a document can be in ``any medium,'' consistent with the
SNPRM. (The reference to CMV driver in HMTAA is not repeated because a
driver's obligations are addressed in substantive provisions concerning
supporting documents.) In addressing the frequency requirement, the
Agency tied the cap to a driver's 24-hour period. While the SNPRM
proposed a 10 document cap, FMCSA reduced the supporting document cap
to eight documents in today's rule. This definition, combined with
clearer categories, and a reduced number of required documents, will
allow drivers and carriers to comply at a reasonable cost.
    While FMCSA appreciates the desire to eliminate supporting
documents or to wait until after widespread ELD use before implementing
the requirement, FMCSA does not believe that the ELD eliminates the
need for supporting documents. Today's rule requires the retention of
supporting documents generated or received in the normal course of
business--an essential resource for both authorized safety officials
and motor carriers to verify compliance with the HOS rules. Supporting
documents are critical in checking ODND periods. FMCSA acknowledges
that motor carriers retain supporting documents for reasons other than
verifying compliance with the HOS rules, including complying with the
rules of other agencies. Thus, the Agency did not project in the SNPRM
or in today's rule any paperwork savings associated with the supporting
documents provisions.
    In terms of the number of documents employed in on-site enforcement
interventions or investigations, the Agency uses all types of
supporting documents to evaluate a driver's RODS. Because of the scope
of transportation activities and the range of documents, enforcement
authorities cannot effectively evaluate the accuracy of a driver's RODS
based on a maximum of two to three supporting documents per duty day.
FMCSA recognizes the number of supporting documents obtained daily may
vary based upon the driver's activities. By establishing a maximum of
eight supporting documents this rule promotes safety by ensuring that
authorized safety officials have the opportunity to evaluate
effectively the driver's RODS and HOS compliance.
    Limiting required supporting documents to the start and end of the
workday is not adequate for ensuring HOS compliance especially with
regard to on-duty, not driving periods. Documents acquired throughout
the day are important in the enforcement of the 60/70-hour rule--a
crucial part of ensuring HOS compliance. Compliance with the 60/70-hour
rule limits is based on how many cumulative hours an individual works
over a period of days. Supporting documents are critical in helping to
verify the proper duty statuses for an individual in calculating
compliance with the 60/70 hour rules. FMCSA notes that, absent
sufficient documents reflecting each element,

documents lacking time would count in applying the 8-document cap.

B. Categories

1. Comments to the 2011 NPRM
    The NPRM proposed four categories of supporting documents: (1)
Payroll, (2) trip-related expense records and receipts, (3) FMS
communication logs, and (4) bills of lading or equivalent documents.
    Some commenters said the four categories represented a significant
expansion of the existing requirement. These commenters stated that the
four categories were confusing, vague, and unjustifiably burdensome,
and instead suggested short, specific lists of documents. FedEx said
that a short list of supporting documents, used in the Compliance
Review process, would hold all carriers to the same standard. ATA said
that a short list might be more effective in getting motor carriers to
retain supporting documents. OOIDA cautioned that small-business motor
carriers, particularly sole proprietors, might not maintain payroll or
expense records, or use an FMS or communications logs.
    Many commenters agreed with the Agency that EOBRs would make
supporting documents related to driving time unnecessary. Other
commenters, however, recommended that the Agency continue to require
supporting documents for driving time. A driver said that supporting
documents reflecting drive time show whether routes conformed to speed
limits, or if a driver was speeding to achieve company productivity
standards. The American Association for Justice wanted the Agency to
continue requiring supporting documents for driving time to guard
against EOBR equipment failure, drivers and motor carriers abusing the
system, and multiple drivers using one truck. The Association also
wanted FMCSA to require motor carriers to notify GPS providers
immediately after a crash and to require GPS providers to retain crash-
related data for 6 months.
2. Comments to the 2014 SNPRM
    Based on comments received to the NPRM, FMCSA modified the
description of the categories of required supporting documents in the
SNPRM. For every 24-hour period a driver is on duty, the motor carrier
would be required to retain a maximum number of supporting documents
from the following five categories: (1) Bills of lading, itineraries,
schedules, or equivalent documents that indicate the origin and
destination of each trip; (2) dispatch records, trip records, or
equivalent documents; (3) expense receipts related to ODND time; (4)
electronic mobile communication records reflecting communications
transmitted through an FMS for the driver's 24-hour duty day; and (5)
payroll records, settlement sheets, or equivalent documents that
indicate what and how a driver was paid. Drivers who continue to use
paper RODS would also need to retain toll receipts.
    The ATA, the IME, and others supported FMCSA's proposal to relieve
motor carriers of the requirement to retain supporting documents to
verify on-duty driving time. ATA pointed out that because ELDs are
synchronized with the vehicle, they consistently, reliably, and
automatically capture vehicle movement, and the potential for
underreporting driving time is minimal, if not non-existent.
    NTSB, however, noted that it has found toll information, such as EZ
Pass data and toll receipts, to be some of the most reliable
information in verifying HOS compliance. It recommended that FMCSA
consider specifically listing toll receipts and electronic toll data in
the five categories of required supporting data. As to the requirement
that drivers who continue to use paper RODS still need to retain toll
receipts, FedEx suggested that FMCSA allow motor carriers to retain
either toll receipts or trip dispatch records, so long as those
documents are created in the ordinary course of business.
3. FMCSA Response
    The role of supporting documents is to improve HOS compliance by
providing verifiable records to compare with the RODS to ensure the
accuracy of the information entered by the driver. Given the broad
diversity of motor carrier and CMV operations, the Agency does not
believe that a specific list of supporting documents is appropriate for
verifying compliance with the HOS regulations. FMCSA intends the five
categories of supporting documents to accommodate various sectors of
the industry. Although ELDs eliminate the need for supporting documents
that reflect driving time, supporting documents are important in
reconstructing a driver's ODND time and other duty statuses--a key
element in overall HOS compliance, most notably as it relates to the
14-hour and weekly on-duty limits. FMCSA believes that the five
categories proposed in the SNPRM clarified the requirement for
supporting documents without compromising the Agency's enforcement
abilities. FMCSA did not change the categories of documents required in
today's rule.
    FMCSA also believes that the listed categories of supporting
documents, combined with the reduced cap of eight documents per duty
day, will not result in an unreasonable burden. FMCSA notes that two
categories--electronic mobile communications and payroll records--will
typically not be documents a driver would have to physically retain,
and may be a part of a larger record that the carrier already has to
retain electronically or physically at the dispatch location or
principal place of business.
    FMCSA eliminates the requirement to retain supporting documents,
such as toll receipts, that verify on-duty driving time for drivers
using ELDs. Given that ELDs will adequately track driving time,
requiring such documents would be redundant and would not further the
purpose of this rule, which is to improve HOS compliance.
    FMCSA does not create a new requirement that GPS records be
preserved after a crash. The Agency currently requires that RODS and
supporting documents be retained for 6 months after receipt and this
requirement does not change in today's rule. Crash records are
addressed in a separate regulation.
    FMCSA emphasizes that drivers using paper RODS must also keep toll
receipts. These drivers are not required to use ELDs, and, absent an
ELD, this documentation of driving time is necessary. Required toll
receipts do not count towards the eight-document cap.

C. Data Elements

1. Comments to the 2011 NPRM
    The February 2011 NPRM was based on an assumption that only one
supporting document--containing driver name or identification number,
date and time, and location--would be needed for the beginning and end
of each ODND period within the duty status day. Absent a document
containing all four elements, a carrier would have been required to
retain sufficient individual documents from specified categories.
    Commenters suggested that the proposed requirements would demand a
significant expansion of their current recordkeeping responsibilities.
Commenters also stated that at least some of the proposed data elements
are usually missing from documents created or received in the normal
course of business. Based on its research, one commenter said that only
drug testing control and custody forms, fuel receipts, and roadside
inspection reports provide

any of the proposed data elements useful in verifying ODND activity.
Because such a supporting document is rare, some commenters stated that
motor carriers would be forced to retain multiple documents. ATA wrote
that the Agency's attempt to limit supporting document retention to a
single document is ``unrealistic'' and that motor carriers would have
to keep many--and a broad range of--documents. Another commenter wrote
that the NPRM could be interpreted as requiring ``all'' documents,
records, and information generated or received by the motor carrier in
the normal course of business.
2. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA modified the data elements that a document must
contain to qualify as a supporting document. FMCSA agreed with ATA and
other commenters that relying on a single document is generally
unrealistic. Further, the SNPRM prescribed how the necessary elements
related to the document retention cap. The proposed data elements were:
(1) Driver name or carrier-assigned identification number, either on
the document or on another document enabling the carrier to link the
document to the driver, or the vehicle unit number if that number can
be linked to the driver; (2) date; (3) location (including name of
nearest city, town, or village); and (4) time. If sufficient documents
containing these four data elements were not available, a motor carrier
would be required to retain supporting documents that contain the
driver name or motor carrier-assigned identification number, date, and
location.
    Schneider requested clarification about whether a document that
does not contain the four data elements would meet the definition of a
supporting document and need to be retained. Schneider noted that the
only documents that have all four data elements are expense receipts,
like fueling, drug and alcohol chain-of-custody forms, and accident
reports. Schneider also noted that bills of lading, dispatch records,
and pay records do not contain a start time or end time and, in some
cases, location information. As such, those documents do not verify a
driver's duty record.
3. FMCSA Response
    FMCSA understands Schneider's comment that some categories of
document may not contain some of the data elements. We believe,
however, that the driver identifier, date, and location are crucial
elements in HOS compliance. If a motor carrier has fewer than eight
documents containing all four data elements, a document would qualify
as a supporting document if it contains each data element, except time.
Under this scenario, a document lacking time would nonetheless count in
applying the 8-document cap.

D. Supporting Document Exemption for Self-Compliance System

1. Comments to the 2011 NPRM
    The NPRM included a provision to authorize, on a case-by-case
basis, motor carrier self-compliance systems, as required by section
113(b)(4) of HMTAA. The statute requires FMCSA to provide exemptions
for motor carriers to use qualifying ``self-compliance systems''
instead of retaining supporting documents. FMCSA proposed using the
procedures already in 49 CFR part 381, subpart C, Exemptions, to
consider requests for exemption from the retention and maintenance
requirements for supporting documents. In the NPRM, the Agency asked
commenters to describe their current self-compliance systems or the
systems they might anticipate developing.
    Klapec and Werner said they had self-compliance systems. One
provided some details on its auditing procedures. Several commenters
were concerned that the number of companies seeking exemptions for
self-compliance systems could severely test the Agency's ability to
respond. The Truck Safety Coalition and Advocates recommended
rulemaking to provide minimum requirements for self-compliance systems.
Advocates also wanted an explanation of how parts 381 and 395 would
interact. A motor carrier recommended an expedited system for approval
of a carrier's self-compliance exemption. Although ATA believed that
using the part 381 process made sense, it was skeptical that FMCSA
intends to consider such applications seriously.
2. Comments to the 2014 SNPRM
    The SNPRM re-proposed the same self-compliance system proposed in
the NPRM. ATA and the Ohio Trucking Association (OTA) commented on the
self-compliance systems proposal. ATA stated that it supports the
proposed self-compliance system process and appreciates the non-
prescriptive approach and flexibility it provides. However, the OTA
stated that FMCSA should develop and write requirements for the self-
compliance system process with comments from the public and the
industry rather than forcing each individual carrier to develop its own
proposal. OTA stated that with no guidance, motor carriers will be in
the position of guessing what FMCSA might find acceptable and going
through a long and often costly process of responding to FMCSA
questions and public comment.
3. FMCSA Response
    In today's rule, the Agency retains the self-compliance option as
it appeared in the NPRM and SNPRM. In 49 CFR 395.11(h), FMCSA
authorizes, on a case-by-case basis, motor carrier self-compliance
systems. A motor carrier may apply for an exemption under existing part
381 provisions for additional relief from the requirements for
retaining supporting documents. Because part 381 rules and procedures
were developed in response to Congressional direction contained in
section 4007 of the Transportation Equity Act for the 21st Century \18\
and already contain detailed requirements concerning the application
and review processes for exemptions,\19\ the Agency does not create a
separate process for exemptions related to part 395 regulations. In
response to commenters who asked if this would test FMCSA's resources,
FMCSA is confident that the Agency would be able to comply with the
requirements of HMTAA. Given the diversity of the industry, FMCSA
continues to believe that a non-prescriptive, flexible standard to
achieve compliance is appropriate, and does not establish minimum
standards for a self-compliance system.
---------------------------------------------------------------------------

    \18\ Public Law 105-178, 112 Stat. 107 (June 9, 1998).
    \19\ See 63 FR 67608, December 8, 1998.
---------------------------------------------------------------------------

E. Supporting Document Management

1. Comments to the 2011 NPRM
    FMCSA's NPRM proposal would require motor carriers and CMV drivers
to share responsibility for complying with the proposed supporting
document requirements. The NPRM proposed that drivers submit supporting
documents to a motor carrier within 3 days or, in the case of
electronic records, within a single day. A motor carrier would be
required to maintain an HOS management system to detect violations of
the HOS rules. The motor carrier would be required to retain supporting
documents for its drivers for a period of 6 months.
    A commenter objected to any requirement that a motor carrier
collect from the CMV driver documents of a personal nature generated
during the course of business to be used as supporting documents. The
commenter also objected to any obligation on the driver or the motor
carrier ``to alter, annotate or assemble documents from

the form in which they are generated in the normal course of
business.'' OOIDA noted that small carriers may not keep certain
records that would qualify as supporting documents. OOIDA asked FMCSA
to clarify the requirements, including whether drivers or motor
carriers would be required ``to note the missing information on these
documents.''
2. Comments to the 2014 SNPRM
    Like the NPRM, the SNPRM would require motor carriers and CMV
drivers to share responsibility for complying with the proposed
supporting document requirements. However, based on comments to the
NPRM, the supporting document provisions were changed. The proposed HOS
management system was among the provisions eliminated in the SNPRM. The
definition and requirements governing ``supporting document'' were
clarified. FMCSA extended the proposed time in which a driver would be
required to submit his or her supporting documents to the employing
carrier to 8 days, consistent with the proposed submission period for
RODS. Proposed Sec.  395.11(e) required a motor carrier to retain
supporting documents in a way that allows them to be ``effectively
matched'' to the corresponding driver's RODS. However, a motor carrier
would still need to retain supporting documents received in the course
of business for 6 months.
    ATA opposed the requirement that carriers retain supporting
documents in a way that allows them to be effectively matched to the
corresponding driver's RODS. Although ATA believed it was reasonable to
expect that carriers not deliberately make matching difficult or
frustrate investigators, it noted that ``to require that carriers go
beyond `retaining' records (keeping them in the manner in which they
receive them) to `maintaining' them (by ensuring that they can be
easily matched by an investigator) goes a step too far.'' ATA stated
that responsible motor carriers should not have to manipulate the
manner in which a supporting document is retained or be held
accountable for not facilitating such matching if there is no evidence
of HOS violations. ATA also noted that the requirement that drivers
submit supporting documents to their employing carriers within 8 days
creates an imbalance with the existing regulation that requires drivers
who keep paper logs to submit those logs and supporting documentation
to their employing carriers within 13 days. ATA suggested that all
drivers should be required to submit supporting documents within 13
days of receipt.
    FedEx asked that FMCSA clarify whether a carrier would be out of
compliance with the regulation if it had no supporting documents kept
in the carrier's ordinary course of business that fit the description
of a supporting document under the rule. FedEx also suggested that
FMCSA clarify what it means for a supporting document to be
``effectively matched'' to the corresponding driver's HOS records.
    CVSA recommended that FMCSA require CMV drivers to keep the
proposed supporting documents for the current and past 7 days with them
in the vehicle, so that roadside inspectors could have access to the
documents to verify location, time, and date of all driver duty status
entries.
3. FMCSA Response
    In today's rule, FMCSA expanded the deadline for drivers to submit
supporting documents to the motor carrier from 8 days to 13 days,
consistent with the current period for submission of RODS. While FMCSA
does not require that drivers retain supporting documents in the CMV
for a prescribed period, it does require that a driver make any
supporting document in the vehicle available to an authorized safety
official if requested during roadside inspections. FMCSA believes this
approach achieves a reasonable and workable balance between the needs
of enhanced enforcement during roadside inspections and not requiring
that motor carriers modify their current document management practices.
    FMCSA notes that a motor carrier is not required to create
supporting documents not otherwise generated or received in the normal
course of business or to annotate such documents in any manner. But a
motor carrier or driver may not obscure, deface, destroy, mutilate, or
alter existing information found on a supporting document.
    Today's rule does not require establishment of a new record
management system specifically for supporting documents. However, the
rule retains the requirement that supporting documents be retained in a
manner that allows them to be effectively matched to the driver's RODS.
This is a long-existing requirement, well documented in the Agency's
administrative decisions. The purpose is to enable a motor carrier, as
well as authorized safety officials, to verify a driver's RODS. (See
e.g., In the Matter of Bridgeways, Inc., Docket No. FMCSA-2001-9803-
0009 (Final Order June 1, 2004)).\20\ Agency decisions make clear that
a motor carrier cannot take supporting documents that permit
identification of a driver, but then store them in a manner or sanitize
them so the ability to link individual documents to the driver is lost.
See Darrell Andrews Trucking, Inc. Docket No. FMCSA-2001-8686-21 (Final
Order Under 49 CFR 385.15, January 19, 2001), aff'd in part, vacated in
part, Darrell Andrews Trucking, Inc. v. Fed. Motor Carrier Safety
Admin., 296 F.3d 1120 (D.C. Cir. 2002), remanded to Docket No. FMCSA-
2001-8686-26 (Final Order on Remand, Mar. 14, 2003); see also In the
Matter of A.D. Transport Express, Inc., Docket No. FMCSA-2002-11540-1
(Final Order Under 49 CFR 385.15, May 22, 2000), aff'd, A.D. Transport
Express, Inc. v. Fed. Motor Carrier Safety Admin., 290 F.3d 761 (6th
Cir. 2002).
---------------------------------------------------------------------------

    \20\ Available at http://www.regulations.gov.
---------------------------------------------------------------------------

F. Requirements When ELDs Malfunction and Requests for Clarification
Regarding State Laws

1. Comments to the 2014 SNPRM
    Greyhound Lines, Inc. (Greyhound) and Schneider National, Inc.,
asked for clarification on various parts of the proposed rule.
Greyhound asked FMCSA to make it clear that States may not impose
supporting document standards that are more specific than, or different
from, the Federal standard. Schneider requested clarification on
whether toll receipts would be expected for days where a driver is
completing a paper ROD due to an ELD malfunction. Schneider noted that,
given the size of its fleet, it will experience regular device
malfunctions, and it will consequently have to keep all toll receipts
for all drivers to ensure it is in compliance on those days where
malfunctions occur.
2. FMCSA Response
    State laws or regulations addressing supporting documents are not
necessarily preempted by Federal law. The FMCSRs are ``not intended to
preclude States or subdivisions . . . from establishing or enforcing
State or local laws relating to safety, the compliance with which would
not prevent full compliance with [the FMCSRs] by the person subject
thereto.'' 49 CFR 390.9. However, as a condition of Federal funding
under the MCSAP, a State must have rules in place compatible to Federal
regulations adopted under the 1984 Act, subject to certain exceptions.
See parts 350 and 355 of 49 CFR. Subject to permissible variances, a
State law or regulation found by the Secretary of Transportation to be
less stringent than its Federal counterpart cannot be enforced; a State
law or regulation more stringent than its

Federal counterpart may be enforced unless the Secretary decides the
State law or regulation has no safety benefit, is incompatible with the
Federal regulation, or would cause an unreasonable burden on interstate
commerce. 49 U.S.C. 31141(c). A motor carrier such as Greyhound that
believes a State law or regulation is incompatible with the FMCSRs may
petition FMCSA for review of the matter and the State's eligibility of
MCSAP funding. 49 CFR 350.335(d). Therefore, the Agency does not
address the preemption of State supporting document requirements in
this rulemaking.
    Today's rule requires a motor carrier to retain toll receipts for a
driver who keeps paper RODS in lieu of using an ELD. However, the
Agency does not expect a carrier to modify its supporting document
retention policy whenever a driver who regularly uses an ELD needs to
complete paper RODS for a brief period due to an ELD malfunction.

IX. Discussion of Comments Related to Harassment

A. Background and 2011 NPRM

1. Background
    In enacting the Truck and Bus Safety and Regulatory Reform Act of
1988, Congress required that regulations addressing onboard monitoring
devices on CMVs ensure that the devices not be used to harass CMV
drivers. However, the devices may be used to monitor productivity.\21\
In its challenge to the April 2010 EOBR rule in the U.S. Court of
Appeals for the Seventh Circuit, OOIDA raised several issues, including
the Agency's failure to ensure that electronic recorders not be used to
harass CMV drivers. While the Seventh Circuit litigation was pending,
FMCSA published the February 2011 NPRM. By notice published on March
10, 2011 (76 FR 13121), the Agency extended the public comment period
for the 2011 NPRM to May 23, 2011.
---------------------------------------------------------------------------

    \21\ Public Law 100-690, Title IX, Subtitle B, sec. 9104(b), 102
Stat. 4527, 4529 (November 18, 1988). This provision was
subsequently revised and codified at 49 U.S.C. 31137(a) by Public
Law 103-272, 108 Stat. 745, 1004 (July 5, 1994).
---------------------------------------------------------------------------

2011 Notice and Request for Additional Public Comment
    The Agency believed that it appropriately addressed the issue of
harassment in accordance with the statute, both in the April 2010 rule
that was the subject of litigation and the subsequent February 2011
NPRM, focusing on harassment in the context of drivers' privacy
concerns. However, in reaction to the litigation and to public comments
in response to the NPRM, on April 13, 2011, the Agency published a
notice requesting additional comments on harassment (76 FR 20611).
FMCSA wanted to ensure that interested parties had a full opportunity
to address this issue. The notice explicitly requested information
about driver experiences with harassment. The notice asked if the same
activities considered harassing might also be considered monitoring for
productivity. It questioned if these same activities might be barred by
other existing provisions, and if additional regulations were needed.
The notice also asked about the role that electronic recorders might
play in the ability of carriers, shippers, and others to pressure
drivers to violate HOS regulations.
Seventh Circuit Decision
    On August 26, 2011, the court vacated the April 2010 rule (Owner-
Operator Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656
F.3d 580 (7th Cir. 2011)). The court held that, contrary to the
statutory requirement, the Agency failed to address the issue of driver
harassment, namely, how the Agency would distinguish between harassment
and productivity, how harassment occurs, and how harassment would be
prevented.
    On May14, 2012, following the court's decision, FMCSA issued a rule
that removed the vacated language from 49 CFR (77 FR 28448). Motor
carriers relying on electronic devices to monitor HOS compliance are
currently governed by the rules addressing the use of AOBRDs in effect
immediately before the court's ruling (49 CFR 395.15). These provisions
were not affected by the Seventh Circuit's decision.
Public Listening Sessions
    FMCSA conducted two public listening sessions to better understand
drivers' concerns about harassment. The first was in Louisville,
Kentucky, on March 23, 2012, at the Mid-America Truck Show. The second
was in Bellevue, Washington, on April 26, 2012, at the CVSA Workshop.
FMCSA heard from commenters, both those in attendance and those
participating through the Internet, who offered varied opinions on the
implementation and use of electronic recorders. Commenters at the
Louisville session included drivers, representatives of motor carriers,
owner-operators, and representatives of OOIDA. At the Bellevue session,
FMCSA specifically sought the input of State MCSAP agencies because of
their role in enforcing the HOS rules and familiarity with electronic
recording devices and other technical issues. Additional participants
in the Bellevue public listening session included drivers,
representatives of motor carriers and other business entities,
representatives of the motor carrier industry organizations, authorized
safety officials, and other State agency representatives. Transcripts
of both sessions are available in the docket for this rulemaking. Web
casts are archived at: http://www.tvworldwide.com/events/dot/120323/
and http://www.tvworldwide.com/events/dot/120426/, respectively.\22\
---------------------------------------------------------------------------

    \22\ In addition to the formal comment process and listening
sessions, FMCSA also conducted a survey of drivers and motor
carriers to better understand perceptions on the harassment issue,
See Section XII. L of this preamble.
---------------------------------------------------------------------------

MAP-21
    In July 2012, Congress enacted MAP-21, mandating that the Agency
adopt regulations requiring that certain CMVs be equipped with
ELDs.\23\ As part of this legislation, Congress defined ``electronic
logging device'' and required that regulations ``ensur[e] that an
electronic logging device is not used to harass a vehicle operator.''
49 U.S.C. 31137(a)(2) and (f)(1). The legislation eliminated the prior
reference to ``productivity.''
---------------------------------------------------------------------------

    \23\ Public Law 112-141, sec. 32301(b), 126 Stat. 405, 786-788
(July 6, 2012) (amending 49 U.S.C. 31137).
---------------------------------------------------------------------------

2. Comments to the 2011 NPRM
    Given the intervening events between issuance of the NPRM and the
SNPRM, including the Seventh Circuit decision and enactment of MAP-21,
and the fact that the SNPRM regulatory text superseded the text
included in the NPRM, FMCSA's comment analysis focuses on comments
submitted to the SNPRM.

B. General

1. Comments to the 2014 SNPRM
    In accordance with the MAP-21 mandate, the 2014 SNPRM addressed
harassment, in part, through the new technical specifications. Among
the technical specifications intended to address harassment, the Agency
included a mute function available during sleeper berth periods, edit
rights, and requirements addressing transparency and driver control
over editing. The complaints of drivers focused mainly on pressures
from motor carriers. Based on their concerns, the Agency also proposed
procedural provisions aimed at protecting CMV drivers from actions
resulting from information generated by ELDs, since not every type of
complaint suggested a technical solution.
    Several commenters stated that the SNPRM provisions adequately
addressed the issue of driver

harassment. Advocates wrote that the SNPRM fulfilled the Agency's
obligation following the decision of the U.S. Court of Appeals.
Continental stated that the SNPRM has adequately addressed the issues
of data privacy. The National Shippers Strategic Transportation Council
supported FMCSA's approach.
    Some commenters wrote that ELDs actually improved the relationship
between drivers and dispatchers and decreased tension. Commenters
pointed out that ELDs provide transparency, ensure that both drivers
and motor carriers have the same information, and keep a record of
interactions. OOIDA, however, commented that Congress told the
Secretary to ensure that ELDs are not used to harass and that OOIDA
believes the SNPRM fell far short of implementing this mandate. In its
comments to the NPRM, which are incorporated by reference into OOIDA's
comments to the SNPRM, OOIDA suggested specific proposals to address
driver harassment.\24\ OOIDA also criticized the Agency for addressing
the issue of coercion and harassment in separate rulemakings and
addressing only harassment related to ELDs required under today's rule.
---------------------------------------------------------------------------

    \24\ OOIDA suggested the following specific proposals to address
driver harassment: (1) Establish guidelines for the appropriate use
of EOBRs to improve productivity; (2) promulgate a regulation to
make it unlawful for motor carriers to use EOBRs to harass drivers;
(3) establish procedures for drivers to complain about harassment
and create a unit in FMCSA to review and act on complaints; (4)
promulgate a regulation protecting drivers who complain about
harassment from retaliation; (5) make harassment a factor considered
in compliance reviews; (6) permit drivers to participate in
compliance reviews involving harassment; and (7) provide for driver
compensation for time spent under out-of-service orders where
harassment is implicated in the violation.
---------------------------------------------------------------------------

    Some commenters believed ELDs are not intended to improve safety,
but only serve as a management tool to track drivers. Some commenters
reported the use of FMSs to direct drivers to do unsafe or even illegal
things. Other commenters complained that neither FMCSA nor the ELD
could prevent harassment by motor carriers. Many drivers complained
that the ELD would limit their flexibility, and cause them to drive
while tired or stressed.
2. FMCSA Response
    FMCSA believes today's rule appropriately implements MAP-21's
mandate requiring certain CMV drivers to use ELDs while addressing the
concerns expressed about the potential for harassment resulting from
ELD use. The rule adopts a clear prohibition against driver harassment,
subject to a civil penalty in addition to the penalty for the
underlying violation. ELD technologies, including related technologies
often employed in FMS, do not necessarily result in driver harassment;
nor do they preclude actions that drivers might view as harassing.
However, the Agency believes that, on balance, the use of ELDs will
protect drivers from pressures to violate the HOS rules by ensuring a
better record of drivers' time. As the court noted in the litigation on
the 2010 EOBR rule, the term ``harass'' is not defined by statute and
requires amplification. 656 F.3d at 588. In order to better understand
the nature and context of drivers' harassment concerns, the Agency
undertook extensive outreach. The provisions proposed in the SNPRM, and
reflected in today's rule, are largely reflective of this outreach.
Today's rule includes the definition of ``harassment'' proposed in the
SNPRM, that is, ``. . . an action by a motor carrier toward a driver
employed by the motor carrier (including an independent contractor
while in the course of operating a [CMV] on behalf of the motor
carrier) involving the use of information available to the motor
carrier through an ELD . . . or through other technology used in
combination with and not separable from the ELD, that the motor carrier
knew, or should have known, would result in the driver violating Sec.
392.3 or part 395 [of 49 CFR].''
    FMCSA acknowledges that harassment and coercion may often appear
related. However, it is important to recognize that the statutory basis
for each requirement differs. While the harassment provision is linked
specifically to ELDs as defined in MAP-21, Congress required that the
Agency, in adopting regulations under the 1984 Act, prohibit motor
carriers, shippers, receivers, and transportation intermediaries from
coercing CMV drivers in violation of specified regulatory provisions.
See FMCSA's rule on coercion, published November 30, 2015 (80 FR
74695). The Agency notes, however, that Sec.  395.30(e) of today's rule
does prohibit a motor carrier from coercing (as that term is defined in
80 FR 74695) a driver to falsely certify the driver's data entries or
RODS.
    The Agency encourages any driver who feels that she or he was the
subject of harassment to consider the potential application of the
harassment provisions adopted today, as well as FMCSA's coercion rule
and the remedies available through the Department of Labor, in
determining which approach to pursue in light of the specific facts.
    The Agency included some of OOIDA's specific proposals to address
harassment in today's rule, such as making it unlawful for carriers to
use ELDs to harass drivers and establishing procedures for drivers to
submit harassment complaints directly to FMCSA. Some of its suggestions
went beyond FMCSA's authority, such as the suggestion that we provide
for driver compensation for time spent under out-of-service orders in
cases where harassment is implicated in the violation. With regard to
the suggestion that we promulgate a regulation protecting drivers who
complain about harassment from retaliation, we note that such
protections already exist under current law. Retaliation protections
available to CMV drivers are set forth in 49 U.S.C. 31105, which is
administered by the Department of Labor. The Agency declines to link
harassment violations to the safety rating process, consistent with the
Agency's approach in the coercion rulemaking (80 FR 74695, November 30,
2015). We therefore also decline to adopt OOIDA's suggestion that
drivers be permitted to participate in compliance reviews involving
harassment. FMCSA believes that harassment complaints can be
effectively addressed through the complaint process established through
today's rule and through the civil penalty structure.

C. Privacy; Ownership and Use of ELD Data

1. Comments to the 2014 SNPRM
    In development of the proposed technical performance requirements,
the Agency took into account drivers' privacy interests in the
collection and maintenance of data. For example, the proposed
requirements included industry standards affecting the handling of data
and access requirements, ensuring only authenticated individuals could
access an ELD system. These provisions are part of today's rule.
    Several commenters expressed concern about how the data collected
from ELDs will be used. For example, questions were posed about who
owns the data recorded by an ELD, who will see that data, and whether
that data will be retained. Commenters also raised concerns about the
use of data in private civil litigation. One commenter asked what would
preclude law enforcement from using data gleaned from ELDs to charge
truck drivers with other violations such as speeding, illegal parking,
and driving on restricted routes. Another commenter stated that

FMCSA must ensure that data collected for HOS enforcement purposes will
not be provided to other government agencies for other purposes.
2. FMCSA Response
    An ELD record reflecting a driver's RODS is the driver's record.
However, under the FMCSRs, motor carriers are responsible for
maintenance of these records for a 6-month period. Thus, drivers and
carriers share responsibility for the record's integrity. FMCSA does
not presently plan to retain any data captured by an ELD absent
documentation of violations during investigations.
    In addition to other statutory privacy protections, MAP-21 limits
the way FMCSA may use ELD data and requires that enforcement personnel
use information collected from ELDs only to determine HOS compliance.
See 49 U.S.C. 31137 (e)(1) and (3).\25\ U.S. Department of
Transportation regulations govern the release of private information,
including requests for purposes of civil litigation. 49 CFR parts 7 and
9. Today's rule includes industry standards for protecting electronic
data; it also regulates access to such data and requires motor carriers
to protect drivers' personal data in a manner consistent with sound
business practices. However, FMCSA has limited authority to ensure
total protection of information in the custody of third parties.
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    \25\ These measures will be included in the ELD implementation
and training protocol currently under development within FMCSA.
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    MAP-21 also requires that the Agency institute appropriate measures
to preserve the confidentiality of personal data recorded by an ELD
that is disclosed in the course of an FMCSR enforcement proceeding (49
U.S.C. 31137(e)(2)). To protect data of a personal nature unrelated to
business operations, the Agency would redact such information included
as part of the administrative record before a document was made
available in the public docket.
    Finally, the Agency notes that Federal law addresses the protection
of individual's personally identifiable information maintained by
Federal agencies. See the Privacy Impact Assessment for today's rule
available in the rulemaking docket.

D. Tracking of Vehicle Location; Real Time Transmission of Data

1. Comments to the 2014 SNPRM
    Location recording is a critical component of HOS enforcement. The
SNPRM addressed drivers' concerns about the level of data collected for
HOS enforcement. FMCSA did not propose a requirement for real-time
tracking of CMVs or the recording of precise location information.
Instead, location data available to authorized safety officials would
be recorded at specified intervals; that is, when the driver changes
duty status, indicates personal use or yard moves, when the CMV engine
powers up and shuts down, and at 60-minute intervals when the vehicle
is in motion. During on-duty driving periods, FMCSA proposed to limit
the location accuracy for HOS enforcement to approximately a 1-mile
radius. When a driver operates a CMV for personal use, the position
reporting accuracy would be further reduced to an approximate 10-mile
radius. The SNPRM did not propose that the ELD record and transmit any
CMV location data either to the motor carrier or to authorized safety
officials in real time.
    ATA stated that the proposed precision requirements for monitoring
vehicle location are quite reasonable. ATA believed that these
requirements should stave off any concern by drivers that records
available to law enforcement during roadside inspections will present
an intrusion on their privacy, especially since this limited level of
location monitoring will prevent law enforcement from knowing the exact
location a driver has visited. ATA wrote that respecting this
confidentiality may be important in some circumstances, such as when a
driver visits a medical specialist. Provided that law enforcement can
still reasonably verify HOS compliance, the needs of both parties will
be met.
    Other commenters, however, asked who would have access to the
tracking data. These commenters believed that the tracking was a form
of harassment in that it would allow carriers to harass the driver
about his or her performance. Other commenters viewed tracking as an
invasion of privacy in violation of their constitutional rights.
    The NPGA stated that technologies similar to ELDs have previously
been under consideration by the Pipeline and Hazardous Materials Safety
Administration as one type of technology that can be used in HM
transportation security. In comments submitted to an advance notice of
proposed rulemaking concerning the need for enhanced security
requirements for the motor carrier transportation of HM, put out by the
Research and Special Programs Administration and FMCSA (67 FR 46622,
July 16, 2002), NPGA opposed location-tracking systems as a requirement
for HM security. Its concerns focused on ease of access to data on CMVs
carrying propane and the harm it could cause if the vehicle fell into
the wrong hands. Specifically, anyone who wished to cause harm through
a coordinated attack could hack the system to learn the whereabouts of
any transport vehicle that is loaded with propane. NPGA commented that
an outright requirement to install an ELD on these vehicles,
particularly for a motor carrier with no demonstrated violations, not
only fails to improve safety, but lessens the security of the transport
of the fuel.
    Knight stated that carriers must be allowed to track vehicle
position of the CMVs they own to a proximity closer than 10 miles, even
when in personal conveyance. Though the driver may be using the vehicle
for personal use, the fleet still has an interest in and responsibility
for the vehicle. The commenter wrote that nothing within the rule
should impair the ability of the owner of a CMV to track its location,
which should not be considered ``harassment.''
    ATA believed the needs of carriers to monitor CMV location outweigh
the impact on driver privacy. The commenter stated that in the
interests of safety, security, and efficiency, motor carriers must be
able to monitor their equipment and cargoes.
    PeopleNet sought confirmation that GPS precision is only to be
limited in the ELD application and that other enterprise solution
applications will not be required to reduce GPS accuracy in efforts to
support optimization processes and IFTA requirements. Eclipse Software
Systems asked for a clarification providing that the system will be
allowed to store data in greater position for fleet records (such as
highly accurate fuel tax reporting), but that when that data is
divulged to law enforcement it will be rounded or truncated to the
number of decimal places specified in section <IP_ADDRESS>. The commenter
noted that current FMSs store data in far greater detail (often four or
more decimal points) for legitimate business purposes.
2. FMCSA Response
    FMCSA acknowledges the concern about dispatchers and motor carriers
using real-time data in order to require drivers to fully utilize their
driving time to the allowed limits. However, FMCSA has not proposed,
nor does it include in today's rule, any requirement for ELDs to track
CMV drivers in real time. As long as a motor carrier is not compelling
a driver to drive while ill or fatigued in violation of Sec.  392.3 or
in violation of the HOS limits of part 395, there is no

violation of the FMCSRs. Authorized safety officials will not have
access to information during roadside inspections except the data
required by today's final rule that is related to HOS compliance.
    The SNPRM proposed limitations concerning the ELD data in order to
protect drivers from motor carrier harassment, all of which are
reflected in today's rule. The Agency believes that the enhanced
security controls and provisions protecting drivers from inappropriate
pressures to violate the HOS rules will address many of the concerns
raised by drivers concerning ELDs. Although ELDs might be viewed
primarily as tools for HOS recordkeeping, the data certainly can be
used by motor carriers to document their operations more accurately
than they could by using paper RODS.
    Further, for systems that include both ELD functionality and real-
time tracking and communications capabilities, the device may capture
what is transpiring between a driver and a motor carrier or dispatcher.
Although this technology is not required under today's rule, such
technology also protects drivers from inappropriate pressures to
violate the HOS rules.
    Today's rule limits the data that may be transferred from an ELD to
authorized safety officials. FMCSA, however, did not propose, nor does
it include in today's rule, any limitation on a motor carrier's use of
technology to track its CMVs at a more precise level than that shared
with authorized safety officials, including tracking of CMVs in real
time for the purposes of the motor carrier's business. A motor carrier
is free to use such data as long as it does not engage in harassment or
otherwise violate the FMCSRs. See 49 CFR 390.17.
    Given the limited requirements in terms of required location
tracking, FMCSA does not agree that the risks suggested by the NPGA
outweigh the benefits of ELDs.
    Some commenters viewed tracking of vehicles as an invasion of
privacy. While a legal basis for their position was not always stated,
some of these commenters focused on their Fourth Amendment rights.
FMCSA addresses this position under Section XII, M, Legal Issues--
Constitutional Rights: Fourth and Fifth Amendments, of this preamble.

E. Mute Function

1. Comments to the 2014 SNPRM
    To protect a driver from disrupting communications during rest
periods, the SNPRM proposed that, if a driver indicates a sleeper-berth
status, an ELD must allow the driver to either mute, turn off, or turn
down the volume, or the device must do so automatically. This
requirement would only apply to FMSs or other technology that includes
an ELD function and that includes a communications function. Given
drivers' concerns about interrupted rest periods, this is the single
area in which the Agency believed it necessary to address an issue that
extends beyond the provisions of a minimally-compliant ELD. However,
this protection does not apply if a team driver is logged onto the ELD
as on-duty, driving.
    Numerous commenters complained of repeated contact by dispatchers,
even during breaks and sleeper-berth time. One commenter wrote that the
mute function should be the decision of the driver rather than
automatic. She stated that not all companies abuse their drivers as the
enforced automatic mute implies.
    The IME stated that it did not oppose ELD features that allow a
driver to mute, reduce volume, or turn off a device during sleeper
berth status. Eclipse Software Systems stated that the audible alarm
required by section 4.1.5 of the appendix is very important and should
not be muted if the vehicle is moving. Eclipse recommended that the
rule be amended to say the mute function does not apply when the engine
is running and the vehicle is in motion.
2. FMCSA Response
    The complaint from drivers about being contacted during sleeper
berth time was a common one and FMCSA responds to that concern by
requiring in section 4.7.1 of the technical specifications of today's
rule, that the mute function either be engaged automatically when the
driver enters sleeper berth status or that it allows the driver to
manually select that function. (However, this function would not be
available if a co-driver was logged in as on-duty, driving.) In the
event the CMV started moving, the ELD would default to on-duty, driving
status, thereby overriding the mute function. FMCSA believes this
addition of a mute function is important to allow drivers to obtain
adequate rest during sleeper berth or off-duty periods.

F. Drivers' Access to Own Records

1. Comments to the 2014 SNPRM
    The SNPRM provided that a driver has a right to access the driver's
ELD data during the period a carrier must keep these records. During
the period that the data is accessible through the ELD, a driver must
have a right to the records without requesting access from the motor
carrier.
    The IME agreed that drivers should have access to their ELD data,
including options for a motor carrier to provide the data to drivers
upon request. The IBT also supported giving drivers the ability to
obtain copies of their own ELD records available on or through an ELD.
IBT believed that it is critical that drivers or driver representatives
have, upon request, immediate access to, and copies of driver ELD
records for the 6 months that the motor carrier is required to retain
the records.
    XRS, Verigo, and Zonar noted that obtaining the logs from the ELD
will limit drivers' access to 7 days. Commenters wrote that drivers
require records for numerous reasons, including comparing logs to
settlement records, providing records required for tax purposes,
providing evidence in loss prevention claims, and qualification for
safety awards. It may be necessary for a driver to have access to more
than 12 months of records. Commenters believed that access to driver's
records is best achieved as a function of the carriers' support system
most carriers already have in place rather than as a function of the
ELD. XRS asked whether there could be an alternative method, such as a
Web-based login, to retrieve the required information. It recommended
that, when a driver leaves a carrier, the RODS be supplied on a jump
drive in a PDF format to keep costs at a minimum and not cause a
security risk by giving access to individuals who no longer have a
relationship with the carrier. The commenter questioned what amount of
data may be requested by drivers if they have been employed by the
carrier for at least 6 months. Extracting 6 months of data through the
ELD would be costly.
    Verigo stated that the electronic or printout format of the
driver's records must be compliant with section <IP_ADDRESS>, which is the
comma separated values (CSV) file output format for peer-to-peer record
exchange. The format will be of no value to the driver. The commenter
believed that records retrievable by the driver should be a PDF copy of
the standard paper format in use today because graph-grid logs can be
read, understood, printed, distributed, and checked with ease by the
driver without a requirement to provide a utility function for the
driver to display the data. The commenter recommended the requirement
to access records from ELDs connected to backend servers be eliminated
and that records be retrieved from support systems connected to the
ELD.

2. FMCSA Response
    FMCSA acknowledges that a driver's ability to access his or her
records through an ELD without requesting them from the carrier will
vary depending on the ELD system employed. In some cases, immediate
access is limited to the 7 previous days. Thus, we did not prescribe an
exact time during which a driver could independently access the
records. If the driver cannot independently access the records, the
motor carrier must provide a means of access on request. However, the
right of access is limited to a 6-month period, consistent with the
time period during which a motor carrier must retain drivers' RODS.
    The SNPRM proposed a single data format that applies to all the
data elements and the file format. This is adopted in today's rule. The
ELD data file output will not vary dependent on the ELD used. The data
output is a comma delimited file that can be easily imported into
Microsoft Excel, Word, notepad, or other common tools that a driver may
access. A driver will also be able to access her or his ELD records
through either the screen display or a printout, depending on the
design of the ELD.

G. Drivers' Control Over RODS

1. Comments to the 2014 SNPRM
    Recognizing that ELD data reflect a driver's data, the proposal
required that any edits made by a motor carrier would require the
driver's approval. FMCSA's proposal was intended to protect the
integrity of a driver's records and prevent harassment attributable to
unilateral changes by motor carriers.
    In the SNPRM, FMCSA used the word ``edit'' to mean a change to an
ELD record that does not overwrite the original record. A driver may
edit and the motor carrier may request edits to electronic RODS.
Drivers have a full range of edit abilities and rights over their own
records (except as limited by the rule), while a carrier may propose
edits for a driver's approval or rejection. All edits, whether made by
a driver or the motor carrier, need to be annotated to document the
reason for the change.
    Saucon Technologies asked about drivers editing their logs using a
support system other than the recording device: Specifically, what
drivers are permitted to change versus what safety administrators are
allowed to change. The commenter wrote that the safety administrator
should be advised when drivers make corrections to their logs and have
the opportunity to approve the change. XRS stated that FMCSA needs to
allow a process for the driver to accept edits and certify the logs on
the ELD prior to transfer to enforcement to be consistent with Sec.
395.30.
    A number of commenters, including the Alliance for Driver Safety &
Security, Knight, and J.B. Hunt, stated that employers should not be
held responsible if a driver makes a false or inaccurate entry onto an
ELD and refuses to change the entry when the employer requests it be
done. Knight asked whether a carrier can force a driver to make an edit
when it is clear the driver failed to log something properly. Knight
wrote that, though the carrier is attempting to get the driver to
comply with the rules, the driver may be able circumvent compliance and
make a false allegation that the carrier is ``coercing'' him or her.
Knight believed that FMCSA ought to allow carriers to make edits and
allow the driver to either approve or not approve them when made by the
carrier.
    Knight commented that the rule should clearly allow drivers to edit
their ELD records at any time before, during, or after having confirmed
a record. Knight wrote that FMCSA should allow drivers to flag personal