would mirror current operational patterns without penalizing users of
low-cost ELD systems that experience longer trips.
    The MPAA stated that FMCSA should confirm that industries in which
drivers work for multiple carriers, such as the motion picture and
television industry, may employ third-party administrators to
coordinate ELD information and technology. The commenter believed that
this approach may support the unique characteristics of production
drivers better than a carrier-by-carrier approach. MPAA suggested an
amendment to proposed Sec.  395.20(c). The National Private Truck
Council appreciated that the Agency clarified that carriers may use
ELDs ``to improve productivity or for other appropriate business
practices,'' and that the rulemaking will not ``ban or impose
significant new restrictions on those functionalities.''
3. FMCSA Response
    FMCSA intentionally created technical specifications that allow an
ELD of limited complexity, at lower cost, and without monthly charges.
Today's rule does not require real-time data transferor wireless
submission of data. Based on the comments to the SNPRM, FMCSA changed
some parts of the proposal to address data transfer and other issues,
in order to increase the flexibility of the ELD and address multiple
motor carrier business models and price points without compromising
safety or data integrity.
    Based on comments that reducing submission timeframes from the
currently required 13 days to 8 days will interfere with current
business practices, today's rule requires submission of both RODS and
supporting documents to the motor carrier within 13 days. A motor
carrier that wants a shorter time frame than 13 days for the submission
of RODS or supporting documents already has the ability to make this
request of its drivers, and today's rule does not change that. Motor
carriers can require different policies so long as they are not less
rigorous than the FMCSRs.
    As a point of clarification, if a driver is off-duty for multiple
days, the motor carrier may annotate the driver's ELD records to
reflect that, subject to the driver's certification. As stated before,
the only prohibition is that no time that a driver spent driving can be
converted into non-driving time. Another acceptable method of noting
time spent off duty would be to have the driver add this time
retroactively with an annotation, at the beginning of his or her first
day back on duty. Drivers who have responsibilities outside of driving
should note those job-related functions in their ELDs as ODND time at
the start of their driving the CMV.
    Nothing in the today's rule prohibits third parties from being
engaged by a motor carrier to help with HOS compliance. If the third
party is engaged as an agent of the motor carrier and is involved in
HOS compliance through ELD use, that person will be required to have a
unique login on ELD systems. The requirement for HOS compliance
ultimately lies with the motor carrier, so FMCSA does not make the
suggested change to the regulatory language.
    FMCSA has eliminated language that was proposed in Sec.  395.20(c)
to avoid confusion as evidenced by comments. FMCSA recognizes that
different ELDs will employ different technologies, including back
office systems. FMCSA does not intend to limit alternative
technologies, provided that the ELD operates in a manner that satisfies
the technical specifications in today's rule.

H. Leased and Rented Vehicles

1. Comments to the 2011 NPRM
    Commenters asked how rented and leased trucks would be treated
(e.g., would a truck rental company be required to install EOBRs for
its customers). A commenter explained that the occasional or seasonal
use of rental vehicles is a key part of many businesses.
2. Comments to the 2014 SNPRM
    The IFDA wrote that while rental units can be equipped with ELDs,
they may not be the same as the system in use in other company
vehicles. The commenter noted this situation raises issues concerning
training and maintaining records for drivers who are using multiple
systems within the same week. IFDA urged the Agency to recognize that
such events are a routine aspect of daily fleet operations and allow
flexibility for companies and drivers in the rule.
    ATA said that FMCSA should consider the real-world challenges an
ELD mandate would create for fleets using rented and leased vehicles.
In the event of a breakdown, ATA explained that a motor carrier will
call on its truck rental and leasing company to provide a replacement
truck. It is not reasonable to expect the provider will have one with
an ELD that matches the carrier's HOS management system. ATA noted that
the carrier will be unable to populate the device in the replacement
vehicle with the driver's RODS for the prior 7 days. Even if the driver
manually populates the device, the motor carrier will not have the
means to communicate and read data from it. ATA suggested that fleets
using short-term replacement vehicles should be permitted to use paper
RODS for more than 8 days.
    Similarly, the NMFTA commented that its members are concerned about
the complications and costs ELDs present when the carrier routinely
requires drivers to use different pieces of equipment. LTLs often rely
on the short-term use of rental equipment, and LTL carriers must
constantly manage and shuffle drivers in and out of both company and
temporary equipment to meet business needs. NMFTA stated different
truck manufacturers install different types of data equipment,
connections, and software. NMFTA noted this situation requires carriers
who wish to maintain the flexibility of bringing in outside equipment
on a temporary basis to invest in different types of cables and
software to ensure that their office systems can integrate with it.
    TRALA expressed concern about proposed Sec.  395.26(d)(2), which
requires that ELDs capture personal miles operated in a CMV. TRALA
asked how the recording of personal miles of a regulated motor carrier
employee will be reconciled with the personal use of rental vehicles by
unregulated consumer customers or motor carrier drivers who are not
subject to the ELD requirements because they are under one of the
short-haul exemptions in 49 CFR 395.1(e). The commenter asserted that
trip data of rental customers who are not subject to the ELD
requirements, either because they are using the CMV for non-commercial
purposes or are exempt short-haul operators, should not be recorded nor
be available for FMCSA or State inspection.
    TRALA noted that transferability allows TRALA members to use ELDs
on vehicles where use is required, and to

avoid the cost of employing that technology where it is not. TRALA is
concerned that its member companies may disclose their unregulated
customers' geographic location as a mandatory ELD data element, or
violate the proprietary nature of the HOS data recorded and stored on
the ELDs by and on behalf of their regulated customers, the motor
carriers. With multiple users of a single vehicle, TRALA companies
could be liable for unlawful disclosure or access to such data. TRALA
recommended allowing portable devices that have unique logins for each
driver and strict protocols for device accessibility and information
capture to alleviate this concern.
    In light of the significant concerns raised by the TRALA, IFDA, and
others, the American Truck Dealers Division of the National Automobile
Dealers Association urged FMCSA to clarify in the rule that lessors and
rental companies bear no responsibility for providing or installing
ELDs in leased or rented CMVs operated by CDL holders employed by
unrelated motor carriers.
3. FMCSA Response
    Because today's rule provides a performance-based standard for
ELDs, motor carriers will have a number of options to choose from the
market place of ELD providers. This includes portable units that stay
with the driver as opposed to being installed in the vehicle. Motor
carriers that rely upon long-term leases of CMVs can work with the
leasing companies to identify options and implement solutions to the
challenge of using ELDs with leased vehicles. Therefore, the Agency has
not included in today's rule an exception for leased or rented CMVs.
    If a driver who is not required to use an ELD were to operate a
motor vehicle that is equipped with an ELD, that driver would not have
to use the ELD. This would apply to a driver operating under the short-
haul exception in Sec.  395.1(e) or to a private individual using a
rented truck to move his or her own household goods. A company renting
a truck to an unregulated consumer could protect that customer's
information by removing the ELD or removing any recorded information
from the ELD.
    FMCSA does not regulate truck-rental companies. There is no
requirement or prohibition for a rental agreement or short-term lease
to include an ELD. A rental company might choose to include an ELD as a
part of the agreement, just as they might include another piece of
equipment.

I. Business Relationships With Owner-Operators

1. Comments to the 2011 NPRM
    In addition to concerns related to harassment (addressed elsewhere
in this preamble), commenters believed that ELDs could affect the
relationship between motor carriers and the owner-operators with whom
they contract. An owner-operator said that the devices allow
corporations to micromanage. Another owner-operator said that the use
of EOBRs could lead to drivers being paid by the hour rather than the
mile. One commenter stated ``absent uniform compatibility profiles and
mandates, EOBRs installed on owner-operator units would only
necessitate additional installation costs and the incurring of unused
vendor contracts as owner-operators elect to move from one carrier to
another which is their right to do so in a free market on a regular
basis.'' Another commenter wanted to know what system would be required
if the driver contracted to multiple motor carriers.
2. Comments to the 2014 SNPRM
    United Van Lines, LLC (United) and Mayflower Transit, LLC
(Mayflower), responding together, and AMSA, said a carrier's
obligations related to the use of ELDs should not be a factor in
determining whether a lessor is an independent contractor or an
employee for Agency determination purposes and recommended that FMCSA
amend Sec.  395.20 to reflect that.
    United's/Mayflower's disclosed household goods agents may typically
contract with non-employee, owner-operators (``drivers'') who own or
lease their CMVs. United/Mayflower did not believe that their companies
bear any responsibility for the drivers' compliance with HOS
regulations when the drivers are not driving under their respective
authorities.
    United/Mayflower believed the proposed rules would require them to
install ELDs in drivers' CMVs when operating under their authorities
and, subsequently, to remove the ELDs. United/Mayflower believed that
the proposed rules permit them to require drivers operating under their
operating authorities to install ELDs owned by United/Mayflower, even
if the drivers have already installed and are using their own ELDs in
their CMVs.
3. FMCSA Response
    The Agency understands that there are many types of relationships
between owner-operators and motor carriers. This rule does not change
the relationship between employee and employer or carrier and
contractor. This rule does not change the underlying requirement to
comply with HOS. The responsibility for complying with HOS, including
through the use of an ELD, lies with both the driver and the motor
carrier.
    FMCSA declines to amend the language of Sec.  395.20, as suggested
by the commenters. The independent contractor relationship is outside
the scope of this rulemaking.

J. Carrier Liability

1. Comments to the 2011 NPRM
    Several commenters to the NPRM, including J.B. Hunt, stated that
EOBR use would help motor carriers lower risk and liability because
they would record more information and lower the crash risk. Commenters
also stated that access to a driver's records through an EOBR would
help decrease liability, as the carrier and driver could plan routes
together to avoid delays. Other commenters spoke of benefits as a
result of minimizing the carrier's liability while the CMV is being
used for personal purposes.
2. Comments to the 2014 SNPRM
    AMSA and United/Mayflower stated that ELDs will be required to
automatically record a limited set of data points. However, ELDs being
marketed to the trucking industry by ELD system providers are able to,
and do, collect significantly more data than required under the rule.
Examples of source data streams include, but are not limited to,
measurements of a driver's speeding, hard braking, and idling. These
data are recorded even when the drivers are not under dispatch for a
carrier. The proposed rule forbids carriers from altering or erasing
the original source data. This means that even if a carrier elects not
to view reports including data points that are not required by the
rules, it must not seek or permit the destruction of the extraneous
data collected by the devices.
    AMSA and United/Mayflower were concerned that the mandated
retention of the additional data will lead to an unintended increase in
carrier liability. These commenters anticipated that certain lawyer
groups will second-guess FMCSA's judgment and carriers' reliance on the
information requirements imposed by the proposed regulations by arguing
that carriers had a ``duty'' to access and use the additional data
created by ELDs. United/Mayflower proposed that FMCSA add new language
that clarifies

that the motor carrier would not be responsible for accessing such
data.
    These commenters also asked that FMCSA provide guidance that
removes any ambiguity concerning the application of proposed
regulations prohibiting alteration or destruction of data streams and
reaffirm that drivers not placed out of service are authorized for use.
3. FMCSA Response
    FMCSA believes that transparency and increased control over a
driver's records by the driver is beneficial to the carrier-driver
relationship. FMCSA notes that commenters appear to focus on a device
that goes beyond the minimum requirements of this rulemaking, but is
still part of an ELD-like device, such as an FMS. Though it does not
have a regulatory definition, any device that has the capabilities of
an ELD, like an FMS, is bound by the same recording and editing
requirements and prohibitions as an ELD in terms of required data
elements. While an extended data set might be recorded by an FMS, the
items in it are not part of the driver's electronic RODS that are
required to be transferred to an authorized safety official.
Information like hard braking or other events would not be a part of
that required data set. See also Section IX, C, Privacy; Ownership and
Use of ELD Data, for information on the use of data provided by an ELD.
    Today's rule does not change motor carriers' existing obligation to
ensure its drivers' comply with HOS regulations. The Agency does not
believe that this requirement is ambiguous. However, the Agency does
not address data elements that are not required as part of the minimal
technical standards for an ELD. Nor does the Agency have the authority
to address through its regulations the use of evidence in civil
litigation.

K. Safety Study

1. Comments to the 2014 SNPRM
    On May 12, 2014, FMCSA announced the availability of a study
concerning the safety benefits of ELD-like devices: ``Evaluating the
Potential Safety Benefits of Electronic Hours-of-Service Recorders''
(Safety Study). It quantitatively evaluated whether trucks equipped
with devices like ELDs had a lower (or higher) crash and HOS violation
rate than those without such devices (May 12, 2014, 79 FR 27040). The
study is available in the docket for this rulemaking.\36\
---------------------------------------------------------------------------

    \36\ In the docket for this rulemaking, docket number FMCSA-
2010-0167-0900, http://www.regulations.gov/#!documentDetail;D=FMCSA-
2010-0167-0900.
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    An ELD provider was the only commenter who agreed with the Safety
Study's finding that ELDs provide safety benefits. The remaining 21
commenters criticized the Safety Study. One commenter provided crash
and fatality data for motor carriers that use ELDs, and noted that
carriers with ELDs are still involved in crashes. Another commenter
claimed that most traffic fatalities are not caused by large trucks,
therefore, the ELD mandate is unnecessary. OOIDA provided a detailed
critique of the Safety Study's data and concluded that, ``FMCSA has no
credible data on the relationship between the use of ELDs and actual
HOS compliance, and even less data on the relationship between HOS
compliance and highway safety.''
    According to OOIDA, the 2014 Safety Study lacks reliability for
numerous reasons, including because it is taken from the records of
carriers with differing recording criteria. OOIDA criticized the study
for failing to provide sufficiently detailed information about how the
data inconsistencies were reconciled and for including crashes that
OOIDA believed could not have been avoided by drivers. OOIDA wrote that
the number of HOS violations included in the 2014 Safety Study is not
consistent with the violation data in FMCSA's Safety Measurement
System. OOIDA claimed that the Safety Study data did not include on-
board recording device violations. OOIDA also criticized the study for
the small sample size, failure to include small carriers, and failure
to account for how trucks are selected for inspection. OOIDA noted that
although 97 percent of all carriers have fleets with 20 or fewer
trucks, 9 of the 11 carriers in the Study maintained fleets with more
than 1000 trucks while the remaining two carriers had fleets with
between 100 and 500 trucks.
    OOIDA stated that the Safety Study's failure to control for the
effects of ELD use on inspection frequency biased the results. Based on
its own survey and the anecdotal evidence it collected, OOIDA claimed
that trucks with ELDs are less likely to be inspected for HOS
violations than trucks without ELDs. In OOIDA's survey, 39 percent of
the 2,347 respondents reported seeing ``a law enforcement official
passing on inspecting another driver's logs because the truck was
equipped with an EOBR/ELD. Further, numerous responders reported that
in addition to just passing on inspection, officers did not know how to
operate EOBRs/ELDs.'' According to OOIDA, trucks in the study with ELDs
had lower HOS violation rates because they were less likely to be
selected for inspection than trucks without ELDs.
    OOIDA objected to the study's conclusion that ELDs have clear
safety benefits. OOIDA cited one of its own surveys that compared the
safety record of carriers with speed limiters and electronic logging
devices to carriers without those monitoring devices. Using FMCSA/CSA
data, OOIDA concluded that carriers without electronic monitoring had a
better crash ratio than monitored carriers.
2. FMCSA Response
    While the Agency acknowledges commenters' concerns about the study,
we did not rely on its conclusions to establish the safety benefits of
ELDs relative to paper logs. The Safety Benefits Analysis in the RIA
uses a different measure of HOS violation rates, a different data set
and a different study design to demonstrate a reduction in HOS
violations attributable to ELD use. The Safety Study did, however,
provide corroborative data to support the crash reduction estimates
used in this rulemaking.
    FMCSA notes that the crash data in the Safety Study were vetted by
analysts to ensure consistency across carriers. The Safety Study
received two types of crash files from participating carriers--those
with only crashes and those with crashes plus claims data. To ensure
the crash data was comparable across carriers, data analysts removed
all claims data according to procedures described in the study. The
report includes examples of claims. However, the report does not
separately describe each specific claim in the original carrier data.
    As indicated in the report, all of the HOS violations from the
participating carriers were collected from FMCSA's Safety Measurement
System Web site during a short portion of 2010 and all of 2011 and
2012. All categories of HOS violations were included in the analysis,
although some HOS violations that could not be linked to a specific
truck in the study were dropped from the analysis.
    The study clearly acknowledged that its sample was skewed toward
large, for-hire carriers. However, because the study was designed to
compare trucks with and without ELDs owned by the same carrier, large
carriers provided the best set from which to obtain this data. Any bias
toward a specific carrier or type of carrier would equally affect
trucks with and without ELDs.
    The study applied statistical techniques to identify and measure
the

effects of ELD use separately from the many other factors that affect
crash rates. As with any study, the Safety Study could not completely
eliminate all potential sources of bias. Although the study was able to
control for carrier factors that might affect selection for roadside
inspection, the study did not address the relationship between ELD use
and the likelihood a truck would be selected for inspection. The Safety
Study measured HOS violation rates as the ratio of HOS violations to
millions of vehicle miles travelled. If trucks with ELDs were less
likely to be inspected per mile traveled then the study would
overestimate the reduction in HOS violations due to ELD use. By
contrast, the safety benefits analysis in the RIA measured HOS
violations per inspection and found a significant reduction in HOS
violations in a before and after comparison in a group of carriers that
had implemented ELDs at a certain time. OOIDA's claim that the Safety
Study data did not include on-board recording device violations is
incorrect; the Safety Study did include these violations.
    In reviewing the data presented by OOIDA, FMCSA notes that those
studies did not control for numerous other factors that affect crash or
violation rates. In addition, OOIDA's survey data showing that roadside
inspections of ELD-equipped CMVs are routinely waived is subject to its
own selection bias. FMCSA continues to believe that the safety benefits
estimates presented with the SNPRM were appropriate and supported by
the research the Agency sponsored.
    The Safety Study focused on estimating the effects of ELDs on
outcome measures of safety, such as crash rates, rather than process
measures, such as violation rates and fatigue. The study found a
significant reduction in the overall crash rate and the preventable
crash rate for trucks with ELDs compared to trucks without ELDs. Due to
limited data, the study could not evaluate the effect of ELDs on DOT-
reportable and fatigue-related crashes.

L. Harassment Survey

1. Comments to the Survey
    FMCSA conducted a survey to examine the issue of driver harassment
and to determine the extent to which ELDs are used to either harass
drivers or monitor driver productivity. The research explored the
relevant issues from the perspective of both drivers and carriers. On
November 13, 2014, FMCSA published a notice of availability for the
survey in the Federal Register (79 FR 67541). In that notice, FMCSA re-
opened the public docket for this rulemaking for the limited purpose of
soliciting comment on this survey.
    The report titled, ``Attitudes of Truck Drivers and Carriers on the
Use of Electronic Logging Devices and Driver Harassment'' (the
Harassment Survey),\37\ summarized the survey findings. The survey
explored driver's attitudes about harassment and whether harassment is
more prevalent for drivers using ELDs. The survey had seven major
findings in the following areas:
---------------------------------------------------------------------------

    \37\ The Harassment Survey is available in the docket for this
rulemaking; it is docket number FMCSA-2010-0167-2256. It is also
available on line at: http://ntl.bts.gov/lib/54000/54100/54178/RRR-14-009-Attitudes_of_Truck_Drivers_and_Carriers_on_the_Use_of_ELDs_and_Harassment-V11-FINAL.pdf.
---------------------------------------------------------------------------

    1. Interactions which drivers consider harassment.
    2. Frequency of experiencing interactions considered harassment.
    3. Whether harassing experiences are associated with ELDs.
    4. Whether drivers who use ELDs have different experiences than
those who use paper.
    5. Nature of attitudes toward ELDs.
    6. Whether the perspectives of carriers are substantially different
from drivers.
    7. Reactions to FMCSA definitions of harassment and coercion.
    Of the 13 comments that FMCSA received in response to the notice of
availability, 9 commenters did not address the report; rather, they
expressed their opposition to the ELD mandate, the HOS rules, or both.
Advocates and ATA agreed that the data indicates that drivers'
experience of harassment is unlikely to be affected by ELD use. ATA
also stated that the survey's findings that instances of harassment are
uncommon are consistent with ATA members' experiences. However, ATA
expressed concern that in the report FMCSA represented some scenarios
as harassment, such as waiting time delays and driver compensation
issues, that are, in fact, not related to harassment. ATA further noted
that FMCSA's definition of harassment does not refer to waiting time or
how drivers are paid, nor has Congress suggested that harassment should
include delays caused by customers.
    The Snack Food Association addressed concerns about the driver
harassment and coercion rulemakings. The commenter stated the results
of FMCSA's survey report suggest ``that coercion or harassment of
drivers is not a significant issue impacting motor carrier safety,''
thereby undermining the need for regulation. Should the Agency
establish a connection between driver harassment or coercion and motor
carrier safety in the future, the Snack Food Association recommended
that FMCSA use enforcement tools under existing regulations to address
the issue.
    In its comments on the Harassment Survey, OOIDA raised several
issues concerning the ELD rulemaking, including FMCSA's responsibility
to ensure ELD's are not used to harass drivers and the demonstrated use
of ELDs by motor carriers to harass drivers. OOIDA cited language in
the ``Notice'' section, on page 2 of the report, that indicates the
report does ``not necessarily reflect the official policy of the
USDOT,'' nor does it ``constitute a standard, specification or
regulation,'' as suggesting that the Agency has distanced itself from
the results of the study and ``disavows responsibility for the accuracy
of the data in the report.'' The commenter pointed out that the report
did not provide information on the background or qualifications of the
contractor or the authors of the report, information about the Agency's
direction to the contractor regarding the research, and the raw data
from the survey. OOIDA also noted the report is not peer reviewed and
FMCSA has not made any official statement recognizing or adopting any
findings of the study.
    OOIDA contended the survey framework and terminology differ from
the statutory requirements for ELDs set forth in 49 U.S.C. 31137(a)
(2012). For example, OOIDA stated FMCSA's duty to ensure ELDs are not
used to harass drivers does not require the finding of any particular
level of harassment, or a comparison of the level of driver harassment
by motor carriers using ELDs versus instances of harassment when paper
log books are used. However, the commenter stated the survey compares
reports of harassment between AOBRD users and paper log users. Although
language related to the use of ELDs to monitor productivity is not
included in the current version of the law, OOIDA wrote ``the survey
report spends excessive time on productivity issues.'' The commenter
also took issue with the definitions of ``harassment'' and ``coercion''
used in the survey, stating that the statute does not require that
harassment result in any driver violation. Similarly, OOIDA noted the
survey definition of coercion requires the offending conduct be based
on the denial of business or work, but the statute does not include
such a requirement.
    OOIDA asserted the survey methodology likely resulted in under
reporting instances of driver harassment. One source of under

reporting is the result of the survey being based on self-reporting
rather than direct observation. OOIDA noted motor carriers are not
likely to admit to unlawful driver harassment, and drivers are unlikely
to admit that they were a victim of harassment, particularly when it
might implicate them in a violation.
    OOIDA also contended large motor carriers are strong supporters of
ELDs and, therefore, more likely to report positive results with
respect to ELD use. OOIDA argued that large motor carriers were the
subject of the survey. According to OOIDA, although motor carriers with
10 or fewer trucks make up 92 percent of registered motor carriers,
they made up only 2 percent of the survey.
    OOIDA expressed concern about the quality of the survey data,
stating that the survey only partially focused on driver harassment.
The commenter explained that of the total of 14 questions asked of
respondents, 7 questions have no connection to ELDs or harassment, 3
other questions relate to harassment, but have no relationship to ELDs,
and only 4 questions relate to motor carrier use of ELDs to harass
drivers. However, OOIDA stated, the four relevant questions were asked
in generic terms that suggested unlawful behavior, but they were not
presented in the context of a real-world example that might be
meaningful to drivers. OOIDA said comparing the data associated with
responses to generically worded questions to data associated with
responses to questions that used more specific language supports its
concern.
    Although the report characterized the instances of driver
harassment as few on a percentage basis, OOIDA believed the evidence
shows significant use of ELDs to harass drivers in terms of raw
numbers. Applying the report's percentages to the 2.3 million drivers
who would be covered by the proposed ELD rulemaking, OOIDA's analysis
showed, at least once a month, motor carriers changing the duty status
of more than 98,000 drivers, contacting more than 206,000 drivers and
asking why their truck was not moving, and asking 276,000 drivers to
operate when fatigued. OOIDA asserted this data illustrates that motor
carriers would use ELDs as a tool to ask drivers to operate longer
hours than the driver's professional judgment will support.
Furthermore, OOIDA believed the study documents the serious problem of
harassment requiring a serious regulatory response.
    OOIDA contended FMCSA's proposed rules do not take into account the
record it has made on the current use of ELDs to harass drivers. It
stated it expects FMCSA to review its pending proposed ELD rules to
address the record it has now made with this study.
    OOIDA stated that the record for the proposed rulemaking is
deficient because it lacks information and analysis on the survey, and
because the public has not had an opportunity to react to, and comment
on, the survey. As described in the SNPRM, OOIDA noted that FMCSA
initiated a survey of drivers and motor carriers regarding the use of
e-logging devices to harass drivers, but a report on the results of
that survey is not due until 2 months after the close of the comment
period for the SNPRM. OOIDA asserted that it was this type of defect in
a rulemaking process that caused the U.S. Court of Appeals for the DC
Circuit to overturn the HOS rules in July 2007. OOIDA stated that to
remedy this problem and comply with the Administrative Procedure Act,
FMCSA must be prepared to publish the data collected by the survey and
its analysis of that data, and welcome another round of comments so
that interested parties may properly address the driver harassment
issue.
3. FMCSA Response
    In accordance with the Paperwork Reduction Act of 1995, FMCSA
announced its plan to submit an ICR to OMB and asked for comments in
Federal Register notices on December 13, 2012 (77 FR 74267) and May 28,
2013 (78 FR 32001). Both of these notices provided the name and
complete contact information for the contractors who conducted the
survey. That information is also in the study report itself, and
available at: http://ntl.bts.gov/lib/54000/54100/54178/RRR-14-009-Attitudes_of_Truck_Drivers_and_Carriers_on_the_Use_of_ELDs_and_Harassment-V11-FINAL.pdf .
    The study objectives are set out in the report. In addition the
December 13, 2012, and May 28, 2013, notices spelled out the objectives
clearly and provided opportunity for comment. Two peer reviews were
conducted--the first on the study design and methodology and the second
on the actual findings and presentation. Further, the study methodology
was reviewed through the OMB Paperwork Reduction Act and ICR processes.
    OOIDA contended that the survey framework and terminology and the
definitions of ``harassment'' and ``coercion'' used in the survey
differ from the statutory requirements. The harassment element of the
survey was premised on the opinion of the United States Court of
Appeals for the Seventh Circuit, addressing this matter. Owner-Operator
Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580,
588-89 (7th Cir. 2011). The Agency's obligation to consider coercion in
certain rulemakings was subsequently enacted as part of MAP-21. 49
U.S.C. 31136(a)(5). Neither term is defined by statute. Although OOIDA
objected to survey time spent on productivity issues, those issue were
included because the circuit court explicitly addressed productivity.
FMCSA responded to OOIDA's concerns about the definitions of harassment
and coercion in the May 28, 2013, notice addressing the Agency's ICR
under the Paperwork Reduction Act (78 FR 32001).\38\ Further, Congress
eliminated the statutory reference to productivity in enacting MAP-21
and the Agency does not regulate productivity in this rule (other than
to clarify that productivity measures undertaken by carriers cannot be
used to harass drivers).
---------------------------------------------------------------------------

    \38\ OOIDA's comment on the December 13, 2012, notice is
available in docket FMCSA-2012-0309.
---------------------------------------------------------------------------

    FMCSA acknowledges OOIDA's concern that neither drivers nor motor
carriers may disclose harassment when it might implicate them in a
violation. However, every reasonable step was taken in the survey to
ensure the anonymity of drivers. They were assured that no one would be
told of their participation or their answers. The sheet they signed
acknowledging questionnaire topics was kept separate from the surveys.
Participation was not mandatory, which was explained to the drivers and
written on the sheet. Carrier personnel were included in the survey
because they interact with drivers and because their perspective on
harassment is relevant to FMCSA.
    OOIDA criticized the survey questions because, in their view, only
four questions relate directly to the use of an ELD by a motor carrier
to harass a driver. The questions were formulated to include a list of
interactions which includes items seen as both positive and negative,
which helped to ensure that the list was not biased. Second, the
opinions of what is beneficial can vary. The wording of questions was
pre-tested in a series of in-depth interviews with a random set of
drivers. Comprehension of the items was confirmed, and drivers were
also asked whether there was anything else they considered harassment
that was not on the list of what had been asked.
    The report characterized instances of driver harassment as ``few''
when considered on a percentage basis. Based on an estimate of 2.3
million drivers, OOIDA applied the percentages in the report to the
affected population of

drivers and concluded that many drivers are affected by harassment.
This extrapolation may or may not be accurate, since confidence
intervals were not provided for the incidence of harassment.
    OOIDA recommended that FMCSA identify current Federal and State
enforcement practices and rules that protect drivers from harassment
and coercion. At least nine questions in the survey addressed this very
issue, including question 32, which specifically asked drivers to rate
the effectiveness of Federal regulations.
    FMCSA conducted the Harassment Survey to better understand drivers'
and carriers' perceptions of harassment. FMCSA posted the report on the
survey in the rulemaking's public docket and opened the rulemaking for
public comment on the report (November 13, 2014, 79 FR 67541). The
Agency considered the results of the survey, as well as comments on the
report, as part of the rulemaking process. The Agency relied on both
the survey results and the responsive comments to inform this rule.

M. Legal Issues--Constitutional Rights: Fourth and Fifth Amendments

1. Fourth Amendment
Comments to the 2011 NPRM
    Numerous commenters to the NPRM claimed that the proposed rule
violates the Fourth Amendment of the United States Constitution in that
the required use of an electronic recorder results in an unreasonable
search and seizure and an invasion of a driver's right of privacy.
Comments to the 2014 SNPRM
    Similar Fourth Amendment arguments were submitted in response to
the SNPRM. A majority of these commenters stated that the ELD mandate
would be an invasion of privacy rights. Comments included statements
such as one noting that requiring an ELD results in a sustained illegal
search without a warrant and a search of property (including data and
personal information) without permission or reasonable cause. One
commenter noted that, when an agent of a government can stop your
vehicle and download your whereabouts over the last several weeks, you
have lost your privacy. Two commenters pointed out that the Supreme
Court recently ruled that authorities must have a warrant to obtain
cellular phone data. Those commenters noted that mandatory tracking and
monitoring of CMV drivers with ELDs is the same thing and should
require a warrant. Several commenters pointed out that the ELD mandate
is particularly invasive because most drivers spend a significant
amount of time in their trucks and view them more as homes. Commenters
pointed out that 24-hour audio and visual monitoring would be
particularly offensive to husband and wife teams who live in their
trucks.
    Another commenter stated that there needs to be a way for
enforcement personnel to view logs from outside of trucks, because he
would not give enforcement personnel permission to enter his truck
without a search warrant. Another commenter pointed out that the
government does not drug test every citizen to ensure compliance with
drug laws, or put GPS trackers on all vehicles on the highway, or put
ignition interlocks on all vehicles to deter driving while intoxicated,
or read every piece of mail or listen to every phone call, because it
would be unconstitutional to do so; likewise, required use of an ELD is
unconstitutional. Commenters stated that the government should not
mandate ELDs on CMVs unless it is willing to mandate such devices for
every form of transportation.
    OOIDA provided the most extensive analysis addressing why, in its
view, the required use of ELDs runs afoul of the Fourth Amendment.
OOIDA noted that the Fourth Amendment applies to both criminal and
civil cases and proscribes unreasonable searches and seizures. OOIDA
pointed to Federal case law to support the conclusion that prolonged
and systematic tracking of drivers using ELDs constitutes a search
under the Fourth Amendment. OOIDA first pointed to a Supreme Court
case, United States v. Knotts, 460 U.S. 276 (1983), in which the Court
held that the short term use of a simple beeper device to track the
movement by truck of a 5-gallon drum of chloroform used in drug
manufacturing was not a search. OOIDA noted that the Knotts case
presents a very narrow ruling under facts that are easily distinguished
from the proposed use of ELDs. OOIDA also cited to subsequent case law
where Federal courts declined to apply the Knotts ruling beyond the
narrow confines of the facts presented in that case.
    OOIDA next stated that the use of ELDs to monitor driver behavior
is not covered by the ``pervasively regulated business'' exception to
the warrant requirement articulated by the Supreme Court in New York v.
Burger, 482 U.S. 691, 702-703 (1987). OOIDA explained that the Supreme
Court concluded in Burger that where (1) the business in question is
closely regulated, and (2) the warrantless inspections are necessary to
further the regulatory scheme, then (3) compliance with the Fourth
Amendment turns on whether the inspection program, in terms of the
certainty and regularity of its application, provides a
constitutionally adequate substitute for a warrant.
    OOIDA stated that the proposed use of ELDs does not involve the
inspection of ``commercial premises,'' but, rather, involves the
systematic tracking of the movement of individual drivers over extended
periods of time by the use of sophisticated electronic devices in order
to enforce compliance with HOS regulations. OOIDA pointed out that
neither Burger nor any of the cases implementing the pervasively
regulated industry exception stand for the proposition that individuals
working in a pervasively regulated industry may be personally subjected
to continuous surveillance by sophisticated monitoring devices over
long periods of time without a warrant.
    OOIDA also argued that the proposed use of ELDs does not fall
within the pervasively regulated industry exception because it does not
satisfy the second prong of the Burger test--i.e., that the search be
necessary to accomplish regulatory goals. In support of its argument,
OOIDA noted that, according to FMCSA, government interests at issue in
this rulemaking are to improve compliance with various HOS rules; to
make the operation of CMVs safer; and to improve drivers' opportunities
for rest. OOIDA asserted that the record presented does not support the
conclusion that FMCSA's regulatory goals are furthered by the ELD
mandate, arguing that drivers must manually enter changes in duty
status into an ELD, which makes the device no better than paper logs.
OOIDA also stated that FMCSA is completely unable to support its safety
claims with current, reliable data.
FMCSA Response
    FMCSA disagrees that the required use of ELDs violates the Fourth
Amendment. For more than 75 years, CMV drivers engaged in interstate
commerce have been required to keep paper logbooks as part of their
compliance with HOS rules. Under current regulations, the log must
show, among other information, the driver's duty status (on duty, on-
duty driving, sleeper berth, off duty) and the general location of any
change in duty status. Although an ELD will record driving time
information automatically (including date, time and location for any
transition into or out of driving time) and collect location
information at intermediate intervals, only the methodology changes;
the fundamental

data and the purpose of data collection remains unchanged. To be sure,
an ELD collects additional data elements (such as engine on, engine
hours), but the minimal expansion is aimed at ensuring the authenticity
of the driver's data. While technology such as GPS can generate a
``precise comprehensive record of a person's public movements'' that
reflects a wealth of personal information (United States v. Jones, __
U.S. __, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring)), the
rule does not provide for presentation of this level of precision to
authorized safety officials. Rather, the Agency has deliberately
limited the location information shared with authorized safety
officials to avoid specific proximities, and is recorded at varying
prescribed intervals rather than real time reporting--measures taken to
address drivers' privacy concerns. While ELDs would generally replace
paper logs, a change required by statute, the basic premise, that is,
prescribing a method of policing a driver's compliance with HOS
regulations, remains unchanged. An ELD records data only during
operation of a CMV and drivers have no reasonable expectation of
privacy in the data captured during that period.
    The Fourth Amendment provides, in part, that, ``[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.'' A
Fourth Amendment search occurs when the government invades a person's
privacy interests that society recognizes as reasonable or seeks to
obtains information by physically intruding on a constitutionally
protected area. United States v. Jones, __U.S. __, 132 S. Ct. 945
(2012). Commenters argued that required use of an ELD results in an
unconstitutional search. (No commenter argued the use of ELDs involved
a seizure.) However, commenters arguing that a Fourth Amendment
violation results from the required use of ELDs rely largely on case
law addressing law enforcement's use of technology for surveillance
purposes, thus without the subject's knowledge, or searches of property
conducted incident to arrests. FMCSA believes these cases are
inapposite. Given that ELDs are employed by motor carriers pursuant to
a Federal regulatory requirement and drivers are aware of their use,
there is no trespass or infringement of a reasonable expectation of
privacy. Thus, there is no search for purposes of the Fourth Amendment.
Cf. El-Nahal v. Yassky, 993 F.Supp.2d 460 (S.D.N.Y. 2014) (required use
of technology, including GPS, under municipal regulatory scheme
governing taxicabs did not result in a search under Fourth Amendment).
    Commenters also referenced a recent Supreme Court decision holding
that authorities required a warrant to view data captured on a cell
phone that they compared to an ELD. The case referenced, Riley v.
California, __U.S. __, 134 S. Ct. 2473 (2014), involved searches of
cell phone data incident to arrests; thus, it is clearly
distinguishable from the required use of ELDs.
    Even if we assumed that requiring the collection of data through an
ELD and sharing that information with authorized safety officials
qualified as a search, the commenters fail to recognize that not every
search is unreasonable for purposes of the Fourth Amendment.
Notwithstanding comments to the contrary, it is well established that
interstate commercial trucking is a pervasively regulated industry. See
United States v. Castelo, 415 F.3d 407, 410 (5th Cir. 2005), and United
States v. Maldonado, 356 F.3d 130, 135 (1st Cir. 2004) (applying New
York v. Burger, 482 U.S. 691 (1987)), concluding that interstate
commercial trucking is a pervasively regulated industry, capable of
supporting recourse to an administrative search exception. The nature
of its regulation justifies treating motor carriers and CMV drivers
differently from the population at large. Although some commenters draw
an analogy between a driver's truck and the driver's home, the Supreme
Court has long recognized that an individual's expectation to privacy
in a private vehicle is less than that in a home (Preston v. United
States, 376 U.S. 364, 366-367 (1964)). The privacy interests of CMV
drivers are clearly diminished given the nature of the commercial
trucking industry (Int'l Bhd. of Teamsters v. Dep't of Transp., 932
F.2d 1292, 1300 (9th Cir. 1991) (upholding DOT drug testing
regulations)). OOIDA notes that case law addressing the pervasively
regulated industry does not support the proposition that individuals
working in the industry may be subject to continuous surveillance over
long periods of time absent a warrant. However, that argument ignores
that ELD-related monitoring is limited, tied to a driver's compliance
with HOS rules while operating a CMV. Although the methodology is new,
the required monitoring of hours has been in place over 75 years.\39\
---------------------------------------------------------------------------

    \39\ OOIDA also argued that the ELD requirement does not satisfy
an exception to the warrant requirement applicable to situations
involving special needs beyond the needs of ordinary law
enforcement. Given the Agency's position that required use of an ELD
is not a ``search'' for purposes of the Fourth Amendment but, even
if it were considered a search, it is justified under the exception
for administrative searches in a pervasively regulated industry, we
do not address this argument.
---------------------------------------------------------------------------

    As to the concern about authorized safety officials entering the
CMV, the technical specifications in today's rule require that an ELD
without a printer be designed so that its display may be reasonably
viewed by an authorized safety official outside of the vehicle. Some
commenters' Fourth Amendment concerns reflected a misunderstanding of
the rule. For example, at no point did the Agency propose constant
audio and visual monitoring of drivers. In sum, the Agency believes
that commenters' Fourth Amendment objections are not supported by the
relevant case law as applied to today's rule.
2. Fifth Amendment
Comments to the 2011 NPRM
    Several commenters said that requiring the use of EOBRs violates
drivers' rights under the Fifth Amendment of the United States
Constitution.
Comments to the 2014 SNPRM
    In responding to the SNPRM, OOIDA elaborated on its Fifth Amendment
concerns, claiming that the required use of ELDs violates drivers'
right of due process through an imposition of ``an unconstitutional
deprivation of a driver's freedom of movement.'' It described the SNPRM
as ``provid[ing] for electronic monitoring combined with, effectively,
a curfew.'' According to OOIDA, electronic monitoring is imposed
without any determination of an individual driver's risk to public
safety. OOIDA notes that the ``right of procedural due process requires
an individual hearing for each person to determine whether electronic
monitoring plus a curfew (restricting the accuser's [sic] right to
freedom of movement) was reasonable and necessary to meet the
government's interest.'' In support of its position, OOIDA relies on a
series of Federal district court cases finding that automatic
electronic monitoring and curfews imposed as a condition of bail,
required under the Adam Walsh Child Protection and Safety Act of 2006
\40\ for certain violations involving minors, are unconstitutional.
---------------------------------------------------------------------------

    \40\ Public Law 109-248, Title II, sec. 216, 120 Stat. 587, 617
(July 27, 2006).

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

FMCSA Response
    OOIDA and other commenters stated that the ELD mandate is akin to a
criminal penalty that unlawfully restricts a driver's freedom of
movement. OOIDA's reliance on cases under the Adam Walsh Child
Protection and Safety Act is misplaced. That Act requires continuous
electronic monitoring by the government of individuals who have been
charged, but not convicted, of certain crimes involving minors. The
statute's very purpose is to track and restrict the individual's
movement without any procedural review of the risk posed by the
individual charged. In contrast, today's rule requiring ELDs,
applicable to certain individuals electing to operate CMVs as part of a
pervasively regulated industry, does not require constant monitoring of
individual drivers. It simply replaces a long-standing existing process
under which drivers have been required to manually track their time to
demonstrate compliance with HOS rules with an electronic recording
system. There is no automatic electronic monitoring once a driver steps
out of the CMV.
    Although other comments did not fully explain how the Fifth
Amendment would be violated, it appears that their concerns related to
access to the HOS records and the right against self-incrimination. The
commenters, however, ignored established law that provides an exception
to the Fifth Amendment privilege against self-incrimination for records
that are required to be kept by law such as the HOS rules. Driver HOS
records, whether in the form of a paper log book or data captured by an
ELD, fall under this exception. By engaging in a regulated industry, a
driver waives any privilege related to the production of required
records (Thomas v. Tyler, 841 F. Supp. 1119 (D. Kan. 1993)).
    In sum, commenters' Fifth Amendment arguments lack merit.

N. Short Movements or Movements Under a Certain Speed and Personal Use
of a CMV

1. Comments to the 2011 NPRM
    The NPRM relied upon the technical specifications from the April
2010 rule. Those specifications did not address the issue of short
movements or movements under a certain speed and for personal use.
2. Comments to the 2014 SNPRM
    In the SNPRM, FMCSA sought comments on how short movement, such as
movements within a terminal, similar slow movements, and yard movements
by other drivers, should be logged. FMCSA proposed that the ELD would
provide the capability for a driver to indicate the beginning and end
of two specific categories: Personal use of a CMV and yard moves, where
the CMV may be in motion but a driver is not necessarily in a
``driving'' duty status. If a motor carrier allowed drivers to use a
CMV for personal conveyance or yard moves, the SNPRM proposed that a
driver's indication of the start and end of such occurrences would
record a dataset; but the ELD would not indicate these as separate duty
statuses. If a driver used a CMV for personal conveyance, the ELD would
not record that time as on-duty driving.
    FMCSA did not define a specific threshold of distance or time
traveled for a driver to be able to use the personal conveyance or the
yard movement provisions. Instead, authorized motor carrier safety
personnel and authorized safety officials would use the ELD data to
further explore and determine whether the driver appropriately used the
indicated special category.
    ATA stated that FMCSA's modified proposal represents a reasonable
middle ground. Carriers will have a record of all vehicle movements but
will be able to distinguish those that should be legitimately recorded
as driving time from those should not. Further, it will help law
enforcement identify true driving time violations, while at the same
time providing visibility to yard and personal conveyance movements in
the event they are unreasonable or excessive.
Defining Yard Moves and Personal Conveyance
    Schneider recommended ``yard moves'' be defined, as did inthinc.
Schneider noted this term, which is used in Sec.  395.28 under
``special driving categories--other driving statuses,'' requires a
clear definition. Without a definition, Schneider asserted, there will
be inconsistency in the use of this status that will create issues
during roadside enforcement. Schneider suggested defining ``yard move''
to mean ``an on-duty not driving activity where all driving is done
within an area that does not allow for any public access.''
    CVSA recommended that FMCSA define the term ``personal conveyance''
in 49 CFR 395.2 as ``an unladen commercial motor vehicle (CMV) . . .
used by a driver, while in an ``off-duty'' status and when the
utilization of a motor carrier's CMV is necessary for personal
transportation, and for a short distance.'' CVSA would consider ``short
distance'' travel to and from the nearest lodging or restaurant
facilities in the immediate vicinity. ``Personal conveyance'' would
also include use of a motor carrier's CMV to travel from a driver's
home to his/her terminal (normal work reporting location), or from a
driver's terminal (normal work reporting location) to his/her home. In
any case, this distance could not exceed the lesser of 25 miles or 30
minutes. Schneider supported this definition.
Comments on the Practical Application of the Rule
    Through testing with hundreds of drivers, Schneider found that
having driving status trigger only off of a speed threshold without an
additional mileage threshold is detrimental to the ELD. It recommended
that FMCSA change the appendix to subpart B of part 395, section
<IP_ADDRESS>, paragraph (1) to read ``[o]nce the vehicle speed exceeds the
set speed threshold OR the vehicle travels more than 1.5 miles, it is
considered in motion.'' The commenter believed this avoids the
potential for a tractor to move 20 miles at 2 miles per hour without
showing any driving time. Also, in section <IP_ADDRESS>, paragraph (2),
Schneider suggested the vehicle should be considered stopped when the
speed reaches 0 miles per hour AND the unit stays at 0 miles per hour
for 5 minutes, rather than the proposed ``3 consecutive seconds.''
Commenter wrote that to leave the threshold at 3 seconds as the rule
proposes will result in invalid duty status changes.
    AGC urged the Agency to include a provision allowing short vehicle
movements within a closed facility (e.g., less than 2 miles in the
aggregate) to be recorded as ODND time. Saucon Technologies recommended
allowing the driver to indicate yard movement by selecting an
appropriate comment on the device. Once yard movement is selected, the
driver would be allowed to move the CMV within the confines of the
yard, (minimum amount of distance should be clearly defined), before
the status would automatically change to On-Duty Driving.
    While the driver is to indicate manually the beginning and ending
of yard moves, XRS stated that there is no guidance on how the ELD
should indicate a yard move is beyond appropriate limits, such as a
warning if the ELD indicates Yard Move and the CMV exceeds the normal
safe yard speed or distance. Geo-fencing of yards would be costly and
time consuming and not an effective practice.
    XRS asked FMCSA to clarify the process of reviewing unassigned
driver moves of the CMV with an ELD device

installed. XRS believed the language in proposed Sec.  395.32(c) seems
to contradict the driver identification process as later described in
Sec.  395.32(c)(1)(ii). Commenter believed that the SNPRM made the
carrier responsible for the final determination of ownership of
unidentified driving. XRS suggested an edit process that would give the
driver the opportunity to reject the unidentified hours in the edit
review. XRS asked for direction concerning which ELD records under the
unidentified driver profile need to be presented to the driver.
    Coach USA stated that support personnel, rather than drivers, often
make yard moves, for example, when they wash buses. The result is many
short movements within the facility by personnel who are not drivers
and never operate a bus outside of the facility. Under FMCA's proposed
ELD specifications, Coach USA wrote that it appears that all of these
yard moves by support personnel would be recorded as ``unidentified
driving,'' and the carrier would be responsible for annotating each of
these records to explain why they are not assigned to a driver. This
would create a substantial administrative burden for large carriers.
Coach USA suggested that FMCSA allow ELDs to be designed to recognize,
using GPS, when they are being operated within the carrier's facility
and could be set to automatically record any unassigned operation
within the facility of a duration of less than 15 minutes as ``yard
moves by support personnel.'' Such a system would effectively annotate
all of the unassigned yard moves automatically. If a driver were to
engage in yard moves, Coach USA wrote that driver could still log in
and set the ELD to record the yard moves under his or her account. The
Alliance for Driver Safety and Security stated that there is no
guidance for the common situations whereby the truck leaves the
property briefly, increases speed for a mile and returns to the yard.
    Eclipse Software Systems asked FMCSA to allow automated yard moves.
The point at which a vehicle comes to rest for more than 5 minutes
becomes its anchor point. As long as the vehicle does not move, say,
outside a half-mile radius of that anchor point, these moves could be
logged automatically as yard moves. This prevents any significant
vehicle use, while reducing the likely number of unauthenticated
driving events. Eclipse also stated that sometimes drivers need to move
their trucks short distances at a truck stop. It would be fair if they
could log this as a yard-move, rather than having to switch to personal
use, or trigger unauthenticated driving time. Truck stops are not
technically ``yards'' so a clarification may be warranted in the
rulemaking.
    TRALA stated that, at the very least, there is some confusion as to
whether all miles, including personal and yard miles, must be recorded.
Zonar stated that an ELD must provide the means for a driver to
indicate the beginning and end of a period when the driver uses the CMV
for personal use or yard moves. Zonar asked how the driver will end the
yard move if the CMV is moved in the yard and then continues out of the
yard to a road move.
    While the SNPRM does not subscribe to a specific threshold of miles
or time, the TCA stated that it is important that personal conveyance
be distinguished from true driving time. TCA wrote that FMCSA should
more clearly define the principals and parameters of personal
conveyance so that it can avoid any misinterpretation. ATA supported
FMCSA's proposed treatment and recording of personal conveyance and
movements within closed facilities (i.e., yards). NAFA Fleet Management
Association concurred that authorized use of a CMV for personal
conveyance would not be recorded as driving, but rather off-duty time.
Eclipse Software Systems agreed that the driver needs to indicate when
he or she begins personal use. However, just as the proposed rules
allow the driver to be placed in ODND after 5 minutes with no vehicle
movement, Eclipse would like to enable the same automatic functionality
for the end of Personal Use time. A number of individual commenters
asked FMCSA to clarify when it is appropriate to use a CMV for personal
conveyance. One asked that the guidance be rewritten. Another commenter
suggested that personal conveyance could be used to disguise moves in
the local delivery area of a terminal. Several individual commenters
asked that allowances be made for maintenance driving, for example,
when a CMV was being tested.
3. FMCSA Response
    FMCSA acknowledges and agrees with the commenters who stated that
ELDs, by virtue of recording all movements, will create a visible
consistent record of all actions taken in the CMV.
    The Agency is aware that there are concerns about personal
conveyance and yard moves, as some commenters would like clear-cut
limits on the mileage or time thresholds for CMV usage acceptable under
personal conveyance and yard moves. However, the Agency does not think
it is appropriate to include these definitions in the ELD rulemaking,
as both clearly fall under the HOS rules and are applicable to a wide
variety of CMV operations, not just those using ELDs. Thus, the Agency
declines to address these matters at this time.
    Additionally, the Agency does not create any new provisions for
either status, instead requiring only that they each be recorded. By
making specific requirements on how these statuses must be recorded,
but not specifying limits in mileage or time, FMCSA has purposely left
these guidelines as open as they are today, to suit the diversity of
operations across the country.
    FMCSA wishes to clarify that all miles driven, regardless of the
status the driver has selected, are recorded. However, when a personal
conveyance status is selected, the CMV's location is recorded with a
lower level of precision, i.e., an approximate 10-mile radius. FMCSA
believes that the recording of these miles is essential to HOS
compliance, but balances this requirement with protections on the
privacy of location data when drivers are not on-duty.
    If a driver selects the yard moves status and then begins regular
driving, the driver simply switches statuses. If there is no break, and
the driver forgets to add the new status, the driver can annotate his
or her record to explain this, and can switch the time between the two
statuses, as both are driving statuses.
    At the end of a personal conveyance status, FMCSA does not require
that the ELD automatically switch to an off-duty status. Again, the
driver can annotate his or her record to explain if the driver forgets
to record an off-duty status at the end of the driving time.
    FMCSA understands the potential for abuse of the personal
conveyance status, and has purposely required that all movements of the
CMV be recorded (with a less precise location requirement). The rules
do not allow driving statuses, including off-duty driving, to be edited
to say they are non-driving time. These protections will directly
address the falsification of HOS records, making it significantly
harder. FMCSA believes that recording all the time that a CMV is in
motion will limit significantly the amount of falsified time.
    Commenters asked about mechanics or maintenance personnel operating
CMVs, or driving done by employees who are not listed CMV drivers.
Today's rule allows any employee of the motor carrier that operates the
vehicle to have a unique login. If a CMV is operated by someone without
a CDL within a yard, the mileage could be attributed to the

individual. Generally, the short-haul exception for RODS would mean
these individuals would not be expected to use an ELD and there is
nothing in this rulemaking that would preclude the ELD system from
having entry categories to capture occasional movements of an ELD-
equipped vehicle by individuals who are not required to prepare RODS.
    FMCSA agrees that the carrier should have the opportunity to review
unassigned driver miles, as they are ultimately responsible for the
records. There is no prohibition on the motor carrier reviewing these
records. FMCSA does not believe that this will be a significant
administrative burden, especially if all employees who have the
potential to operate CMVs on company property or beyond are given
unique identifiers.
    Today's rule does not allow ``anchoring'' or any location-based
operational exemption. Drivers have the option to select a yard moves
status in this case, and their operational history would need to be
consistent with that status, which may look different depending on
different types of operations.

O. Statutory Definition of ELD

1. Comments to the 2014 SNPRM
    Subsequent to the NPRM, Congress enacted MAP-21, requiring
regulations mandating the use of ELDs by drivers of CMVs required to
keep RODS. The statute defines an electronic logging device as a
``device that . . . is capable of recording a driver's [HOS] and duty
status accurately and automatically . . . and . . . meets the
requirements established by the Secretary through regulation.'' 49
U.S.C. 31137(f)(1).
    Focusing on the statutory definition of an ELD, OOIDA commented
that FMCSA failed to comply with the statutory directive enacted as
part of MAP-21 in that an ELD is not ``capable of recording a driver's
hours of service and duty status accurately and automatically.'' 49
U.S.C. 31137(f)(1)(A). OOIDA viewed the Agency's action as ``arbitrary,
capricious and reason enough for any court to overturn the . . .
rule.'' Furthermore, OOIDA emphasized that the majority of HOS
violations result from the miscoding of non-driving duty status.
2. FMCSA Response
    The Agency acknowledges that technical specifications in this rule
do not include ELDs that automatically record a driver's duty status,
other than on-duty driving time. Although technology currently exists
that could track a driver's every movement, including whether a driver
is sleeping, this type of technology is not regularly employed in
electronic recorders used to record drivers' HOS. FMCSA does not
believe that Congress, in directing the Agency to require use of ELDs,
envisioned this level of monitoring and the inherent privacy invasion
that would occur. Indeed, given the privacy concerns raised by OOIDA
and other commenters, we find it difficult to reconcile OOIDA's
argument that the ELD functionality required in today's rule is not
sufficiently broad because it does not record all of a driver's duty
statuses.
    In order to support its claim that FMCSA willfully ignores the
definition of an ELD set forth in MAP-21, OOIDA reads the statutory
definition in isolation. However, a fundamental rule of statutory
construction requires that a statutory provision be read in the context
of the statutory scheme and that no subsection be read in isolation. 2A
Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction Sec.  46.5 (7th ed. 2007). As part of the MAP-21 enactment
addressing ELDs, Congress addressed the role of supporting documents,
requiring the Agency to ``consider how [the] regulations may . . .
reduce or eliminate . . . supporting document[s] associated with paper-
based [RODS] if . . . data contained in an [ELD] supplants such
documentation . . . and . . . using such data without paper-based
records does not diminish the Secretary's ability to audit and review
compliance with [HOS] regulations[.]'' 49 U.S.C. 31137(d)(1).
Supporting documents serve a critical role in monitoring a driver's
ODND time. Had Congress envisioned that the ELD could automatically
track every duty status, it would have simply eliminated the need for
supporting documents.
    FMCSA finds further support for its position in the applicable
legislative history. In developing the ELD provisions incorporated into
MAP-21, including the statutory definition, the Senate Committee on
Commerce, Science, and Transportation considered EOBRs then in use and
referenced the Agency's February 1, 2010, NPRM, as to the type of
electronic recorders it envisioned. S. Rep. No. 112-238 at 4 (2012). In
prescribing the ELD mandate, Congress was clearly aware that neither
existing technology nor the Agency's 2010 NPRM contemplated devices
that would ``automatically'' monitor a driver's non-driving hours.
    In response to OOIDA's comment that HOS violations result primarily
from the miscoding of non-driving duty time, FMCSA notes that the data
captured by ELDs, such as time, location, and mileage, combined with
required supporting documents, will result in a more accurate record of
a driver's duty status than paper RODS currently provide.

P. Roadside Enforcement

1. Comments to the SNPRM
    The SNPRM specified how the ELD would transmit data to authorized
safety officials at roadside. The proposed primary method of data
transmission was Wireless Web Services or Bluetooth 2.1 or Email (SMTP)
or compliant printout. The proposed backup methods were USB 2.0,
Scannable QR codes, or TransferJet. An ELD must be able to present a
graph grid of driver's daily duty status changes either on a display
unit or on a printout.
    Commenters believed that authorized safety officials at road side
do not have the training or equipment to inspect vehicles with ELDs.
FedEx stated that there is concern in the industry about uneven
acceptance and use of the data transfer mechanisms by law enforcement.
Particularly, there is concern that some law enforcement officers will
feel more comfortable reviewing paper records and will thus demand
paper from drivers. If the driver's ELD cannot print, then the officer
may write a violation for failure to produce the required HOS
documents. To prevent this type of uneven enforcement, FedEx suggested
that FMCSA make clear in Sec.  395.24 that a driver can provide his or
her records to law enforcement by printouts or by data transfer.
    The UMA stated that it is essential that enforcement personnel are
able to evaluate the accuracy of compliance in the field. UMA has heard
that a number of field interventions do not include reviewing
electronic logs. UMA suggested that expedited uniform standards and
training are critical to achieving the desired benefits of compliance.
    OOIDA conducted a survey regarding the frequency with which State
roadside inspections passed trucks monitored with EOBRs/ELDs through
the inspection process without checking the trucker's logs. OOIDA
received over 2,687 responses. Of those, 69 percent (2,069) reported
that many trucks carry a sticker stating that it has an EOBR/ELD
installed on the truck. The survey found that many responders reported
that a law enforcement official declined to inspect the driver's logs
because the official saw that the truck had a sticker. Many responders
also stated that they

saw a law enforcement official passing on inspecting another driver's
logs because the truck was equipped with an EOBR/ELD. Further, numerous
responders reported that officers did not know how to operate the
EOBRs/ELDs. Responders to the survey reported the practice of passing
on inspection of such trucks was evident throughout the country, with
no particular area singled out.
    A driver said he had heard similar reports. He asked if poorly
maintained vehicles are also being overlooked.
2. FMCSA Response
    FMCSA recognizes the potential challenges during the transition
from the current use of AOBRDs and paper logs to ELDs. Starting on the
mandatory compliance date of this rule, FMCSA expects standardized
data--shared with authorized safety officials by both electronic and
non-electronic methods--to make enforcement more efficient by
increasing the ease of reading and interpreting data presented by ELDs.
Today's rule makes clear that either the standard display or printout
will be available to ensure that CMVs with ELDs can be inspected absent
an electronic data transfer.
    To support a smooth transition period for the upcoming
technological changes, FMCSA has initiated early planning to implement
today's rule that will facilitate comprehensive, consistent
enforcement. Today's rule standardizes the data transfer and display
options on ELDs. This standardization facilitates the ability of
roadside officers to use the ELD technology. While there will still be
some unique functionality between systems and vendors, the underlying
information and data will be communicated to roadside officers in a
consistent manner across all ELDs, which will enhance roadside
officers' ability to enforce HOS rules during roadside inspections.
    Authorized safety officials also will receive standardized
training, which will be scenario-driven and activity-based and focused
on reading and interpreting standardized data. The Agency believes that
training focused on efficiently reading ELD data in a standardized
format will improve the ability of authorized safety officials to
conduct inspections and investigations.

Q. Out of Scope Comments

1. 2011 NPRM and 2014 SNPRM
    Commenters to both the 2011 NPRM and the SNPRM brought up a number
of issues that are outside the scope of this rulemaking. Issues are out
of scope if they cannot be addressed or changed in this rulemaking,
though they may be related in some way to ELDs. For example, a number
of comments are now out of scope because they dealt with the technical
specifications of the (now vacated) April 2010 rule.
    Commenters asked FMCSA to address a number of issues, such as
changes to or elimination of HOS rules--a matter outside the scope of
this rulemaking. Commenters had suggestions about how drivers should be
paid, including payment by the hour and overtime after 40 hours.
Commenters asked that shippers and receivers be held accountable for
HOS-related violations, detention times, or loading issues.
    A commenter asked FMCSA to raise the minimum insurance liability
limits that truck drivers are required to carry, and to implement
requirements for improved underride guards. A commenter asked FMCSA to
impose speed limiters; another opposed them. A commenter also asked
FMCSA to concentrate on maintenance issues.
    Commenters recommended that FMCSA focus on all motorists, not just
on commercial vehicles. A motor carrier wrote that whenever there is a
crash involving a commercial vehicle, it goes on the history of that
driver and company even if they were not at fault. The commenter asked
why we are not getting this needed change accomplished first and then
looking at the fatality numbers.
    Commenters wrote that this rulemaking fails to address the parking
shortage, and the problems drivers face when they cannot find a safe
place to park at the end of their shift, when they are delayed, or when
they run out of hours and are forced off property by a customer.
Numerous commenters emphasized that adequate training is essential for
drivers, or criticized existing training. Some commenters suggested
that FMCSA go after inadequate driving schools or chameleon carriers. A
commenter suggested that drivers have a panic button in the sleeper
berth area to allow them to call law enforcement for help.
2. FMCSA Response
    FMCSA is aware of the ongoing concerns, as reflected in these
comments, concerning drivers' HOS, including parking issues, detention
time, and hourly versus mileage payments. However, many of the issues
raised are either outside the Agency's authority or outside the scope
of today's rule.

XIII. Section-By-Section Analysis

    This rulemaking establishes technical specifications for ELDs and
sets forth requirements pertaining to the use of ELDs, the maintenance
of supporting documents and the potential for ELD-related harassment of
drivers.
    Any substantive changes from the SNPRM are noted. The SNPRM tied
compliance to the effective date of the final rule. However, in order
to reflect the requirements of MAP-21, this rule ties compliance to the
publication date.

A. Part 385--Safety Fitness Procedures

    In Section VII of appendix B of part 385, the list of acute and
critical regulations is modified to reflect changes in part 395 (HOS).
The Agency removes the reference to a violation of Sec.  390.36(b)(1)
that appeared in the SNPRM to make this rule consistent with the
treatment of violations under the recent coercion rulemaking (80 FR
74695, November 30, 2015). This deletion does not affect the treatment
under appendix B of part 385 of any underlying violation in a carrier's
safety fitness determination.

B. Part 386--Rules of Practice for Motor Carrier, Intermodal Equipment
Provider, Broker, Freight Forwarder, and Hazardous Materials
Proceedings

1. Section 386.1 (Scope of the Rules in This Part)
    FMCSA modifies this section to reflect the handling of substantial
violations and harassment violations by the appropriate Division
Administrator, rather than the Division Administrator for the State
where the incident occurs as was proposed. Paragraph (c) of this
section was changed from the language of the SNPRM to make today's rule
consistent with the recently published coercion rule (80 FR 74695,
November 30, 2015), including the revision to and changes in
codification in Sec.  386.12.
Section 386.12 (Complaints)
    All of Sec.  386.12, including the heading, is changed and
recodified to reflect the recently published coercion rulemaking (80 FR
74695, November 30, 2015). What was proposed in Sec.  386.12 is now
included in paragraph (a) of that section, ``complaint of substantial
violation.'' FMCSA changes this paragraph to provide that substantial
violation complaints must be filed through the National Consumer
Complaint Database and will be referred to the Division Administrator
who the Agency believes will be best able to handle the complaint.
(Because any person may file a complaint alleging a substantial
violation, references to a driver's State of employment found in Sec.
386.12(b) and (c) are not included in this paragraph.) The time for
filing a

complaint is extended from 60 to 90 days and the procedures are
modified to closely track the procedures governing complaints under the
coercion rule (80 FR 74695, November 30, 2015).
    In a new paragraph (b), ``complaint of harassment,'' FMCSA adds the
material that was proposed in Sec.  386.12a. Harassment complaints are
to be filed through the National Consumer Complaint Database or with
the Division Administrator for the State where the driver is employed.
Paragraph (b) identifies the information that a driver needs to include
in a written complaint alleging harassment by a motor carrier, as well
as procedures that the appropriate Division Administrator follows in
handling complaints. The language in this paragraph was changed from
the SNPRM to reflect the language in paragraph (c) of this section,
adopted as part of the coercion rulemaking (80 FR 74695, November 30,
2015).
    Paragraph (c), complaint of coercion, of this section was
originally published on November 30, 2015 as part of the coercion
rulemaking (80 FR 74695). Only changes are stylistic.
3. Section 386.12a
    Proposed Sec.  386.12a is not included in today's rule. Instead,
the procedures proposed in Sec.  386.12a are moved to Sec.  386.12(b).
4. Section 386.30
    Today's rule adds Sec.  386.30--a provision that appeared as Sec.
395.7 in the SNPRM. The only changes are stylistic. This section adds
procedural provisions that apply during any proceeding involving the
enforcement of 49 CFR part 395. Specifically, it provides that a motor
carrier is liable for an employee acting or failing to act in a manner
that violates part 395 as long as the action is within the course of
the motor carrier's operations. The burden of proof is on the motor
carrier to show that the employee acted outside the scope of the motor
carrier's operation. Finally, knowledge of any document in the motor
carrier's possession, or available to the motor carrier, that could be
used to ensure compliance with part 395 is imputed to the motor
carrier.
5. Appendix B to Part 386 (Penalty Schedule: Violations and Monetary
Penalties)
    FMCSA adds new paragraph (a)(7) granting the Agency discretion to
consider the gravity of the driver harassment violation in the
imposition of penalties up to the maximum permitted by law. The
addition of this paragraph reflects the Agency's intention to
appropriately address findings of driver harassment. In assessing the
amount of a civil penalty, however, the Agency is required by statute
to take certain factors into account. See 5 U.S.C. 521(b)(2)(D). Thus,
the Agency will apply this provision through its Uniform Fine
Assessment software to assure civil penalties are assessed in
individual cases in a fair manner while addressing the gravity of
harassment violations.

C. Part 390--Federal Motor Carrier Safety Regulations; General

    FMCSA adds a new Sec.  390.36 to define harassment by a motor
carrier toward a driver employed by the motor carrier and to prohibit
motor carriers from engaging in the harassment of drivers. This section
also identifies the process under which a driver who believes he or she
was subjected to harassment by a motor carrier may file a written
complaint.

D. Part 395--Hours of Service of Drivers

    Today's rule divides part 395 into two subparts. Subpart A,
General, includes Sec. Sec.  395.1 through 395.19. Subpart B, ELDs,
addresses the design and use of ELDs and consists of Sec. Sec.  395.20
through 395.38. FMCSA provides detailed performance specifications
applicable to ELDs in the appendix to subpart B.

Subpart A--General

1. Section 395.1 (Scope of Rules in This Part)
    FMCSA amends Sec.  395.1(e) to reflect that drivers who qualify to
use the short-haul exceptions under 49 CFR 395.1(e)(1) or (2) are not
required to keep supporting documents under Sec.  395.11.
2. Section 395.2 (Definitions)
    In this section, FMCSA adds three new definitions. ``ELD record''
is added to mean a record of duty status, recorded on an ELD, that
reflects the data elements that must be captured by an ELD under the
technical specifications in the Appendix to subpart B of part 395.
``Electronic Logging Device (ELD)'' is added to mean a device or
technology that automatically records driving time and facilitates the
accurate recording of HOS and that meets the requirements of subpart B
of part 395. FMCSA also adds a definition of ``supporting document''
similar to the definition in the HMTAA. Substantive provisions
pertaining to supporting documents are in Sec.  395.11.
3. Section 395.7 (Enforcement Proceedings)
    Section 395.7, as proposed in the SNPRM, is included in today's
rule as Sec.  386.30. The only changes are stylistic.
4. Section 395.8 (Driver's Record of Duty Status)
    This section addresses general requirements for HOS RODS. Subject
to limited exceptions, it requires motor carriers to install and use
ELDs that comply with the technical specifications no later than 2
years following the date of publication of today's rule.
    Subject to limited exceptions, under paragraph (a)(1), motor
carriers must require drivers that keep RODS to use ELDs. The rule
allows a motor carrier that installs, and requires its drivers to use,
AOBRDs before the compliance date of this rule to continue to use
AOBRDs until December 16, 2019 thereby providing a 2-year grandfather
period for devices installed prior to the compliance date.
    Paragraph (a)(1)(iii) reflects a change from the SNPRM. The SNPRM
would have allowed the use of paper RODS only by drivers requiring RODS
not more than 8 days in a 30-day period. Today's rule allows drivers in
a driveway-towaway operation--when the vehicle being driven is part of
the shipment being delivered--as well as drivers of vehicles that were
manufactured before model year 2000 to also use paper RODS.
    Paragraph (a)(1)(iv) provides that, until the compliance date of
this rule, motor carriers must require their drivers to keep RODS
manually or by using either an ELD or an AOBRD.
    Paragraph (a)(2)(ii) is also changed from the SNPRM. The SNPRM
would have required drivers to use the recording method required by
their motor carrier and to submit their RODS to their carrier within 8
days. Today's rule requires drivers to submit their RODS within 13
days.
    Proposed paragraph (a)(3) is eliminated because operating a CMV
while the ELD is malfunctioning is addressed in Sec.  395.34(d).
    Paragraph (e) prohibits a motor carrier or driver from making a
false report in connection with duty status and from tampering with, or
allowing another person to tamper with, an AOBRD or ELD to prevent it
from recording or retaining accurate data.
    Paragraph (i) (Filing driver's record of duty status) is eliminated
because it duplicates the requirements of Sec.  395.8(a)(2)(ii).
Paragraph (k)(1) continues to require a motor carrier to retain RODS
and supporting documents for a 6-month period.

5. Section 395.11 (New Section--Supporting Documents)
    The detailed requirements concerning supporting documents are set
forth in Sec.  395.11. Paragraph (a) provides that the new supporting
document provisions take effect 2 years after the publication date of
the rule. Until this date, the June 10, 2010 policy on the retention of
supporting documents and the use of electronic mobile communication/
tracking technology remains in place (75 FR 32984).
    Paragraph (b) addresses the drivers' obligation to submit
supporting documents to their employers. While the SNPRM would have
required the driver to submit supporting documents within 8 days,
today's rule specifies 13 days. (The term ``employer'' is defined in
Sec.  390.5.) The phrase ``required to be retained under [Sec.
395.11]'' is eliminated in today's rule to avoid the erroneous
implication that the driver, rather than the motor carrier, determines
what records are retained.
    Paragraph (c) describes five categories of supporting documents
generated or received in the normal course of business. These
categories include: (1) Bills of lading, itineraries, schedules, or
equivalent documents indicating the origin and destination of a 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 (e.g., text messages, email messages, instant messages, or pre-
assigned coded messages); and (5) payroll records, settlement sheets,
or equivalent documents reflecting driver payments.
    Paragraph (c)(2) identifies the four data elements that a document
must contain in order to qualify as a supporting document: Driver
identification, date, vehicle location and time. The SNPRM provided
that, for a driver who had fewer than 10 supporting documents
containing those four data elements, documents containing the first
three specified elements (i.e., all elements except time) would be
considered supporting documents for purposes of paragraph (d) of this
section (discussed below). In this rule, FMCSA reduces the number of
supporting documents to eight.
    Paragraph (d) generally requires a motor carrier to retain a
maximum of eight documents for an individual driver's 24-hour duty day.
While the SNPRM proposed a 10-document cap, today's rule reduces that
number to eight. Paragraph (d)(2) describes how FMCSA will treat
electronic mobile communication records in applying the eight-document
cap. Under paragraph (d)(3), if a motor carrier has more than eight
documents for a driver's 24-hour period, the motor carrier needs to
retain the documents containing the earliest and latest time
indications. Under paragraph (d)(4), drivers who continue to use paper
RODS must retain all toll receipts, irrespective of the eight-document
requirement. The Agency interprets the reference to ``toll receipts''
to include electronic records.
    Paragraph (e) requires a motor carrier to retain supporting
documents in a way that allows the documents to be matched to a
driver's RODS.
    Paragraph (f) prohibits motor carriers and drivers from obscuring,
defacing, destroying, mutilating, or altering information in a
supporting document.
    Paragraph (g) requires that, during a roadside inspection, drivers
must make available to an authorized official, any supporting document
in the driver's possession. In today's rule, a paragraph heading is
added for clarification.
    Paragraph (h) describes the process for submitting requests for
self-compliance systems that FMCSA may authorize on a case-by-case
basis, as required by HMTAA.
6. Section 395.15 (Automatic On-Board Recording Devices)
    Paragraph (a) describes how FMCSA will sunset the authority to use
AOBRDs 2 years after the rule's publication date. However, those motor
carriers that have installed AOBRDs prior to the sunset date are
allowed to continue using AOBRDs for an additional 2 years (i.e., up to
4 years after the publication date of the final rule).

Subpart B--Electronic Logging Devices (ELDS)

7. Section 395.20 (New Section--ELD Applicability and Scope)
    Section 395.20 paragraph (a) states that this subpart applies to
ELDs used to record a driver's HOS.
    Paragraph (b) describes the applicability of technical
specifications required for ELDs under subpart B, effective 2 years
after the rule's publication date.
    In order to avoid confusion, proposed paragraph (c) was removed to
eliminate language referencing support systems.
8. Section 395.22 (New Section--Motor Carrier Responsibilities--In
General)
    Section 395.22 outlines motor carriers' responsibilities related to
the use of ELDs. Paragraph (a) requires motor carriers to use only ELDs
registered and certified with FMCSA and listed on the Agency's Web
site: www.fmcsa.dot.gov/devices.
    Paragraph (b) outlines the responsibilities of a motor carrier and
its support personnel authorized to access ELD records.
    Paragraph (c) lists the required driver identification data.
    Paragraph (d) details the identification data for motor carrier
support personnel.
    Paragraph (e) states that a motor carrier must require its drivers
and support personnel to use the proper log-in process for an ELD.
    Paragraph (f) requires a motor carrier to calibrate and maintain
ELDs.
    Paragraph (g) contains the requirements for mounting portable ELDs.
    Paragraph (h) lists the information a motor carrier is required to
provide to its drivers who are using ELDs in their CMVs.
    Paragraph (i) requires a motor carrier to retain a driver's ELD
records so as to protect the driver's privacy in a manner consistent
with sound business practices. This paragraph also requires that the
motor carrier retain a separate back-up copy of ELD records for six
months.
    Paragraph (j) requires a motor carrier to provide 6 months of ELD
records electronically to authorized safety officials when requested
during an enforcement activity or, if the motor carrier has multiple
offices or terminals, within the time permitted under Sec.  390.29.
9. Section 395.24 (New Section--Driver Responsibilities--In General)
    Paragraph (a) requires a driver to provide data as prompted by the
ELD and as required by the motor carrier.
    Paragraph (b) lists the duty statuses that a driver may choose
from, corresponding to the duty status categories currently listed on
paper RODS.
    Paragraph (c) lists other data that a driver may sometimes need to
enter manually into the ELD, such as annotations, file comments,
verification, CMV number, trailer numbers, and shipping numbers, as
applicable.
    Paragraph (d) requires a driver to produce and transfer the
driver's HOS data to an authorized safety official on request.
10. Section 395.26 (New Section--ELD Data Automatically Recorded)
    Paragraph (a) notes that the data elements listed in this section
are in accordance with the requirements of the appendix to subpart B of
part 395.
    Paragraph (b) lists the data elements recorded when an ELD logs an
event.

    Paragraph (c) describes requirements for data recording during a
change of duty status event.
    Paragraph (d) describes what an ELD records during an intermediate
recording when the CMV is in motion and there has been no change of
duty status entered into the ELD and no other intermediate status
recorded in an hour.
    Paragraph (e) describes what an ELD records when a driver selects a
special driving category, i.e., personal use or yard moves.
    Paragraph (f) describes what an ELD records when a driver certifies
a daily log.
    Paragraph (g) describes what an ELD records when there is a log in/
log off event.
    Paragraph (h) describes what an ELD records when the CMV's engine
powers on or off.
    Paragraph (i) describes an ELD's recording of location information
during authorized personal use of a CMV.
    Paragraph (j) describes what an ELD records when it detects a
malfunction or data diagnostic event.
11. Section 395.28 (New Section--Special Driving Categories; Other
Driving Statuses)
    Paragraph (a) allows motor carriers to configure an ELD to
authorize a driver to indicate that he or she is operating a CMV under
one of the special driving categories identified in this paragraph.
This paragraph also lists a driver's responsibilities related to ELD
use when operating under one of these special driving categories.
    Paragraph (b) allows a motor carrier to configure an ELD to show
that a driver is exempt from ELD use.
    Paragraph (c) requires a driver excepted under Sec.  390.3(f) or
Sec.  395.1 to annotate the ELD record to explain why the driver is
excepted.
12. Section 395.30 (New Section--ELD Record Submissions, Edits,
Annotations and Data Retention)
    Paragraph (a) states that both drivers and motor carriers are
responsible for ensuring that drivers' ELD records are accurate.
    Paragraph (b) requires a driver to review and certify that the
driver's ELD records are accurate and explains how to use the
certification function of the ELD.
    Paragraph (c) allows a driver, within the edit limits of an ELD, to
edit, add missing information, and annotate ELD recorded events. This
paragraph states that a driver must use an ELD and follow the ELD's
prompts when making such changes or annotations. It also explains how
mistakes involving team drivers may be corrected.
    Paragraph (d) permits a motor carrier to request edits to a
driver's RODS in order to ensure accuracy. It explains the process by
which a driver implements motor carrier-proposed edits, requiring that
a driver must confirm or reject any edits made to his or her record by
anyone other than the driver.
    Paragraph (e) prohibits a motor carrier from coercing a driver to
falsely certify the driver's data entries or RODS. FMCSA defined the
term ``coerce'' in a separate rulemaking (80 FR 74695, November 30,
2015).
    Paragraph (f) prohibits a motor carrier from altering or deleting
original ELD records concerning the driver's HOS, the source data used
to provide that information or related driver HOS information contained
in any ELD. Language referencing support systems proposed in the SNPRM
was removed to avoid confusion.
13. Section 395.32 (New Section--Non-Authenticated Driver Logs)
    This section describes how the ``non-authenticated'' operation of a
CMV is accounted for in the ELD record.
    Paragraph (a) describes how the ELD tracks non-authenticated use of
a CMV as soon as the vehicle is in motion.
    Paragraph (b) requires a driver to review any unassigned driving
time listed under the account upon login to the ELD. If the unassigned
records are not attributable to the driver, the driver must indicate
that fact in the ELD record. If driving time logged under this
unassigned account belongs to the driver, the driver must add that
driving time to his or her own record.
    Paragraph (c) lists the requirements for a motor carrier to explain
or assign ``non-authenticated driver log'' time. The motor carrier must
retain unidentified driving records for at least six months as a part
of its HOS ELD records and make them available to authorized safety
officials.
14. Section 395.34 (New Section--ELD Malfunction and Data Diagnostic
Events)
    Paragraph (a) sets forth a driver's recordkeeping requirements in
the event of an ELD malfunction. It specifies that the driver would
need to provide written notice to the motor carrier of an ELD
malfunction within 24 hours.
    Paragraph (b) explains what a driver is required to do if the
driver's HOS records are inspected during a malfunction.
    Paragraph (c) requires a driver to follow the ELD provider's and
the motor carrier's recommendations to resolve data inconsistencies
that generate an ELD data diagnostic event.
    Paragraph (d) requires that a motor carrier take corrective action
within 8 days of discovering the malfunction of an ELD, or notification
of the malfunction by the driver, whichever comes first. If a motor
carrier needs additional time to repair, replace, or service one or
more ELDs, paragraph (d) also provides a process for requesting an
extension of time from FMCSA.
15. Section 395.36 (New Section--Driver Access to Records)
    Paragraph (a) makes clear that drivers must have access to their
own ELD records. A motor carrier may not require that its drivers
access their own ELD records by requesting them through the motor
carrier if those records are otherwise available on or retrievable
through the ELD operated by the driver.
    Paragraph (b) requires a motor carrier to provide a driver with
access to the driver's own ELD records, upon request, if they are
unavailable through the ELD.
16. Section 395.38 (New Section--Incorporation by Reference)
    Section 395.38 describes materials that are incorporated by
reference (IBR) in subpart B of part 395 and addresses where the
materials are available. Whenever FMCSA, or any Federal agency, wants
to refer in its rules to materials or standards published elsewhere, it
needs approval from the Director of the Office of the Federal Register.
FMCSA describes the process it needs to follow in this section.
    Industry best practices rely upon these standards. FMCSA updated
the standards proposed in the SNPRM in order to make the most recent,
easily available versions of the applicable standards part of the final
rule. None of these is a major version change; most are revisions to
the standards that should not be complicated or onerous for those ELD
providers already working in this field. Additionally, these standards
are technical in nature, and focus on the function of the device. The
only parties who will need to purchase these standards are parties who
wish to become ELD providers.
    The following provides a brief description of each standard. All
the standards are available for low cost or free, as noted below. In
order to provide better access, FMCSA includes Web addresses where the
user can find more information about the standard or download it.
Complete contact information is included as part of Sec.  395.38. These
standards are also available for review at FMCSA headquarters.
    Paragraph (b)(1), American National Standard Institute `s (ANSI)
``4-1986

(R2012) Information Systems--Coded Character Sets--7-Bit American
National Standard Code for Information Interchange (7-Bit ASCII),''
describes a character set code to convert digits to alphabet, number,
and symbol characters used in computing. This code set is used to
create ELD files. IBR in section <IP_ADDRESS>, Appendix to subpart B of part
395. As of October 20, 2015, this standard was available for $60, and
information about it can be found at http://webstore.ansi.org/RecordDetail.aspx?sku=INCITS+4-1986%5bR2012%5d.
    Paragraph (b)(2), ANSI's ``ANSI INCITS 446-2008 (R2013), American
National Standard for Information Technology--Identifying Attributes
for Named Physical and Cultural Geographic Features (Except Roads and
Highways) of the United States, Its Territories, Outlying Areas, and
Freely Associated Areas and the Waters of the Same to the Limit of the
Twelve-Mile Statutory Zone (10/28/2008),'' covers geographic names and
locations stored in the U.S. Geological Survey (USGS) Geographic Names
Information System (GNIS). This information is required to populate the
location database of compliant ELDs. IBR in section 4.4.2, Appendix to
subpart B of part 395. As of October 20, 2015, this standard was
available for $60, and information about it can be found at http://webstore.ansi.org/RecordDetail.aspx?sku=INCITS+446-2008%5bR2013%5d.
    Paragraph (c)(1) describes ``Specification of the Bluetooth System:
Wireless Connections Made Easy,'' the Bluetooth Special Interest
Group's standard for short range wireless network communication. Under
today's rule, the standard could be used for a transfer of ELD data.
IBR in sections 4.9.1, 4.9.2, <IP_ADDRESS>, 4.10.2, Appendix to subpart B
of 395. As of October 20, 2015, this standard was available at no cost,
and information about it can be found at https://www.bluetooth.org/Technical/Specifications/adopted.htm.
    Paragraph (d)(1), Institute of Electric and Electronic Engineers'
(IEEE) ``Standard for Authentication in Host Attachments of Transient
Storage Devices,'' describes a trust and authentication protocol for
USB 2.0 flash drives and other storage devices that can be used for a
possible transfer of ELD data according to the specifications of this
rule. IBR in section <IP_ADDRESS>, Appendix to subpart B of part 395. As of
October 20, 2015, this standard was available for $185, and information
about it can be found at http://standards.ieee.org/findstds/standard/1667-2009.html.
    Paragraph (e)(1) contains the standard for ``Use of the Advanced
Encryption Standard (AES) Encryption Algorithm in Cryptographic Message
Syntax (CMS)'' This standard relates to wireless data transfer through
email. IBR in section <IP_ADDRESS>, Appendix to subpart B of 395. As of
October 20, 2015, this standard was available at no cost, and can be
found at https://tools.ietf.org/html/rfc3565.
    Paragraph (e)(2) references ``Use of the RSASSA-PSS Signature
Algorithm in Cryptographic Message Syntax (CMS).'' This standard
relates to wireless data transfer through email. IBR in section
<IP_ADDRESS>, Appendix to subpart B of 395 of title 49 of the CFR. As of
October 20, 2015, this standard was available at no cost, and can be
found at https://tools.ietf.org/html/rfc4056.
    Paragraph (e)(3), IETF's ``Simple Mail Transfer Protocol,'' is an
industry standard for a computer networking protocol to send and
receive electronic mail (email) containing ELD data. IBR in section
<IP_ADDRESS>, Appendix to subpart B of part 395. As of October 20, 2015,
this standard was available at no cost, and can be found at https://www.rfc-editor.org/rfc/rfc5321.txt.
    Paragraph (e)(4) contains ``Secure/Multipurpose Internet Mail
Extensions (S/MIME).'' This standard relates to wireless data transfer
through email. IBR in section <IP_ADDRESS>, Appendix to subpart B of 395.
As of October 20, 2015, this standard was available at no cost, and can
be found at https://tools.ietf.org/html/rfc5751.
    Paragraph (e)(5), IETF's ``Internet Message Format,'' describes an
industry standard for the formatting of email, (i.e. address, header
information, text, and attachments), including those emails containing
ELD data. IBR in section <IP_ADDRESS>, Appendix to subpart B of part 395.
As of October 20, 2015, this standard was available at no cost, and can
be found at https://tools.ietf.org/html/rfc5322.
    Paragraphs (e)(6), IETF's RFC 7230, Hypertext Transfer Protocol--
HTTP/1.1 Message Syntax and Routing, and (e)(7), IETF RFC 7231,
Hypertext Transfer Protocol--HTTP/1.1 Semantics and Content, both
describe a computer networking protocol that is the foundation for the
World Wide Web. These standards will be used if ELD files are
transferred using the Web. They are both incorporated by reference in
section <IP_ADDRESS>, Appendix to subpart B of part 395. As of October 20,
2015, standard RFC 7230 was available at no cost, and can be found at
https://tools.ietf.org/html/rfc7230. As of October 20, 2015, standard
RFC 7231 was available at no cost, and can be found at https://tools.ietf.org/html/rfc7231.
    Paragraph (e)(8) incorporates IETF's ``The Transport Layer Security
(TLS) Protocol Version 1.2,'', a security mechanism standard for
information that is being transmitted over a network. This standard is
best known for use with Web sites that start with ``https://'' rather
than just ``http://''. This standard will be used to secure data when
ELD files are transferred using the Web. IBR in section <IP_ADDRESS>,
Appendix to subpart B of part 395. As of October 20, 2015, this
standard was available at no cost and it can be found at https://tools.ietf.org/html/rfc5246.
    Paragraph (f)(1),''Federal Information Processing Standards (FIPS)
Publication 197, November 26, 2001, Announcing the ADVANCED ENCRYPTION
STANDARD (AES),'' describes the National Institute of Standards and
Technology's (NIST) Federal government standard for encrypting data in
order to protect its confidentiality and integrity. This standard may
be used to encrypt emailed data derived from the ELD. IBR in sections
<IP_ADDRESS> and <IP_ADDRESS>, Appendix to subpart B of 395. As of October 20,
2015, this standard is available at no cost at http://csrc.nist.gov/publications/fips/fips197/fips-197.pdf.
    Paragraph (f)(2) describes ``Special Publication (SP) 800-32,
February 26, 2001, Introduction to Public Key Technology and the
Federal PKI Infrastructure,'' NIST's guidance document for securely
exchanging sensitive information, including some ELD data. IBR in
section <IP_ADDRESS>, Appendix to subpart B of 395. As of October 20, 2015,
this standard is available at no cost at http://csrc.nist.gov/publications/nistpubs/800-32/sp800-32.pdf.
    Paragraph (g)(1) contains Universal Serial Bus Implementers Forum's
(USBIF) ``Universal Serial Bus Specification'' or USB 2.0, which is an
industry standard for communication between two computing devices. The
USB 2.0 allows a driver to transfer the record of duty status data to a
safety official using a small device commonly called a ``flash drive.''
IBR in sections 4.9.1, 4.9.2, <IP_ADDRESS>, and 4.10.2, Appendix to subpart
B of part 395. As of October 20, 2015, this standard was available at
no cost and it can be found at http://www.usb.org/developers/docs/usb20_docs/.
    Paragraph (h)(1) describes ``Simple Object Access Protocol (SOAP)
Version 1.2 Part 1: Messaging Framework (Second Edition), W3C
Recommendation 27 April 2007,''

W3C's specification for a computer networking protocol for Web
services. This protocol will be used if ELD files are transferred using
the Web. IBR in section <IP_ADDRESS>, Appendix to subpart B of 395. As of
October 20, 2015, this standard was available at no cost, and can be
found at http://www.w3.org/TR/soap12-part1/.
17. Appendix A to Subpart B of Part 395 (New Section)
    Appendix A to subpart B of part 395 contains the technical
requirements for ELDs. It consists of seven sections.
    Section 1 outlines the purpose and content of the rest of the
appendix. Section 1 was recodified by adding letters and numbers to
each paragraph for ease of reference.
    Section 2 lists the abbreviations used throughout this appendix.
FMCSA removes the abbreviation ``QR'' for ``quick response'' because
that technology is not included in today's rule.
    Section 3 provides definitions for terms and notations used in this
appendix. In the today's rule, FMCSA codified section 3 throughout,
adding letters and numbers to each paragraph as necessary for ease of
reference. FMCSA clarifies section 3.1.4 by adding a specific reference
to the display or printout required in section 4.I
    Section 4 lists all the functional requirements for an ELD. This
section provides a detailed description of the technical specifications
for an ELD, including security requirements, internal engine
synchronization, ELD inputs, manual entries of data, and drivers' use
of multiple vehicles. FMCSA provides descriptions specific enough to
allow the ELD provider to determine whether an ELD would meet the
requirements for certification.
    FMCSA made numerous changes to proposed section 4, which reflect
the simplified data transfer requirements in today's rule. FMCSA
recodified section 4 throughout, due to changes in the text and for
ease of reference. FMCSA has eliminated language referencing support
systems that was proposed in Sec.  395.20(c) to avoid confusion.
Throughout section 4, FMCSA made conforming changes.
    In section 4.2, FMCSA adds a specific reference to the information
that the ELD must receive automatically, and clarifies that the use of
non-ECM data is only acceptable when there is no other option. In
section 4.5, FMCSA changed the references to section 7 to reflect the
codification changes in section 7. In section <IP_ADDRESS>, FMCSA changed
the phrase ``within the past 5 miles of the CMV's movement'' to read
``within 5 miles of the CMV's movement'' to clarify how the regulation
applies FMCSA revised proposed section <IP_ADDRESS> to remove the last two
paragraphs because they are redundant. In section 4.7.2(b), FMCSA
changed the reference to ``hours-of-service records'' to ``ELD
records,'' to clarify which records are meant.
    FMCSA revises proposed section 4.8.1 to describe the compliant
report that the ELD must be able to generate either as a printout or on
a display. In addition, FMCSA corrected the data elements in sections
<IP_ADDRESS>.5 and <IP_ADDRESS>.9.
    Proposed section 4.9.1 is revised to remove the references to the
proposed roadside data transfer capabilities and add new methods for
meeting roadside electronic data reporting requirements. The new
methods require transferring electronic data using either Option 1,
wireless Web services and email, or Option 2, USB 2.0 and Bluetooth. In
section 4.9.2(c), FMCSA replaces the term ``ELD data file or files''
with the term ``ELD records.'' In paragraph (c), FMCSA also adds
Bluetooth to the transfer mechanisms already specified.
    Proposed section 4.10 is reorganized. FMCSA revises proposed
section 4.10.1 to remove the word ``Wireless'' in the heading, and add
a reference to a ``data transfer mechanism'' to reflect the new methods
of transferring electronic data. Proposed section <IP_ADDRESS>, which
described wireless data transfer via Bluetooth, is moved to new section
<IP_ADDRESS>. Proposed section <IP_ADDRESS>, which described wireless data
transfer through email, is moved to <IP_ADDRESS>. In addition, in new
section <IP_ADDRESS>(b), FMCSA adds three new encryption standards: The
Secure/Multipurpose Internet Mail Extensions as described in RFC 5751,
the RSA algorithm as described in RFC 4056, and RFC 3565. Proposed
section <IP_ADDRESS>, which covers USB 2.0, becomes new section <IP_ADDRESS>,
but the rest of proposed section 4.10.2 is removed as part of the
reorganization. Proposed sections <IP_ADDRESS>, which pertained to
scannable QR codes, and <IP_ADDRESS>, which described TransferJet, are both
removed because those technologies are not included in today's rule.
The rest of 4.10.2, as appropriate, is moved to section 4.8.1. Proposed
section 4.10.3 becomes section 4.10.2. FMCSA adds a new paragraph to
section 4.10.2(d) to describe Bluetooth.
    Section 5 describes the ELD certification and registration process.
FMCSA numbered the paragraphs in Section 5 for ease of reference and
made related conforming changes. In section 5.2.2, the phrase
``institute an'' is corrected to read ``identify its.'' FMCSA adds
section 5.4 to the appendix, which describes the process that FMCSA
uses to remove an ELD model or version from the list of ELDs on the
FMCSA Web site. The administrative review process available to an ELD
provider is described in section 5.4.5. The administrative review
process consists of a two steps. First, an ELD provider will have an
opportunity to either cure any deficiency that the Agency identified or
explain to the Agency why, in the ELD provider's view, the Agency's
determination is wrong. If the ELD provider fails to respond, fails to
convince the Agency that its decision is erroneous, or fails to cure
any defect to the Agency's satisfaction, within prescribed time
periods, the Agency will then remove the ELD model or version from its
list of certified products. Second, in the event of removal, the ELD
provider will have an additional opportunity to challenge the Agency's
decision through an administrative post-deprivation review.
    Section 6 lists references cited throughout this appendix. Section
6 is changed to conform with the new codification in the rest of the
appendix. Section 6 matches Sec.  395.38 exactly. It is repeated in the
appendix to provide a convenient guide for these standards within the
Appendix to Subpart B itself. To conform to Sec.  395.38, FMCSA adds
several new references to section 6, and updates others to the current
versions. FMCSA also removes several references that are no longer
relevant to the rulemaking.
    Section 7 provides a data elements dictionary for each data element
referenced in the appendix. In today's rule, FMCSA adds a new data
element to section 7, ``ELD provider,'' to clarify what is meant by
that term. Section 7 is recodified to conform with the codification
used in the rest of the appendix.

XIV. Regulatory Analyses

A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures

    FMCSA has determined that this rulemaking is an economically
significant regulatory action under Executive Order (E.O.) 12866,
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR
3821, January 21, 2011). It also is significant under Department of
Transportation regulatory policies and procedures because the economic
costs and benefits of the rule exceed the $100 million annual threshold
and because of the substantial congressional and public

interest concerning the crash risks associated with driver fatigue.
    FMCSA mandates the installation and use of ELDs by drivers
currently required to prepare HOS RODS.\41\ However, the costs and
benefits of such a broad mandate are not identical across both options
evaluated in the RIA. The Agency has chosen to evaluate options that
reflect public comments regarding past ELD and HOS rulemakings and the
Agency's safety priorities. The RIA associated with this rule examined
two options:
---------------------------------------------------------------------------

    \41\ This rule does not require short-haul drivers who would
need to keep RODS for not more than 8 days in any 30-day period to
use an ELD. Although FMCSA cannot quantify the costs to carriers,
the Agency believes that extending the ELD mandate to these drivers
would not be cost beneficial.
---------------------------------------------------------------------------

     Option 1: ELDs are mandated for all CMV operations subject
to 49 CFR part 395.
     Option 2 (Adopted): ELDs are mandated for all CMV
operations where the driver is required to complete RODS under 49 CFR
395.8.
    FMCSA adopted Option 2. The costs and benefits resulting from the
adoption of Option 2 are presented in the table below:

                                Table 5--Summary of Annualized Costs and Benefits
                                               [7% discount rate]
----------------------------------------------------------------------------------------------------------------
                                                  Annualized
                                                  total value
                                                    (2013 $                           Notes
                                                   millions)
----------------------------------------------------------------------------------------------------------------
Cost element:
    New ELD Costs............................          $1,032.2  For all long-haul (LH) and short-haul (SH)
                                                                  drivers that use RODS, to pay for new devices
                                                                  and FMS upgrades.
    Automatic On-Board Recording Device                     2.0  Carriers that purchased AOBRDs for their CMVs
     (AOBRD) Replacement Costs.                                   and can be predicted to still have them in
                                                                  2019 and would need to replace or update them
                                                                  with ELDs.
    Enforcement Equipment Costs..............               1.3  The final rule does not require inspectors to
                                                                  purchase QR code scanners. Instead, inspectors
                                                                  would have Bluetooth capability and USB 2.0.
    Enforcement Training Costs...............               1.6  Costs include travel to training sites, as well
                                                                  as training time, for all inspectors in the
                                                                  first year and for new inspectors each year
                                                                  thereafter.
    CMV Driver Training Costs................               8.0  Costs of training new drivers in 2017, and new
                                                                  drivers each year thereafter.
HOS Compliance Costs.........................             790.4  Extra drivers and CMVs needed to ensure that no
                                                                  driver exceeds HOS limits.
                                              ------------------
        Total Costs..........................             1,836  ...............................................
----------------------------------------------------------------------------------------------------------------
Benefit element:
    Paperwork Savings (Total of three parts            $2,437.6  ...............................................
     below).
    (1) Driver Time..........................           1,877.2  Reflects time saved as drivers no longer have
                                                                  to fill out and submit paper RODS.
    (2) Clerical Time........................             433.9  Reflects time saved as office staff no longer
                                                                  have to process paper RODS.
    (3) Paper Costs..........................             126.6  Purchases of paper logbooks are no longer
                                                                  necessary.
Safety (Crash Reductions)....................             572.2  Although the predicted number of crash
                                                                  reductions is lower for SH than LH drivers,
                                                                  both should exhibit less fatigued driving if
                                                                  HOS compliance increases. Complete HOS
                                                                  compliance is not assumed.
                                              ------------------
        Total Benefits.......................             3,010  ...............................................
                                              ------------------
        Net Benefits.........................             1,174  ...............................................
----------------------------------------------------------------------------------------------------------------

    Modifications to the rule analysis resulted in moderate changes to
the cost and benefit estimates for the rule from what was included in
the SNPRM. For example, the purchase price of the ELD was reduced to
reflect the most up-to-date prices consistent with the technical
requirements of the rule, the population estimates were adjusted to
update the universe of drivers subject to the requirements of the rule,
and equipment requirements for inspectors were adjusted to no longer
include QR scanners. The population changes had the effect of
increasing costs, while adjustments to the ELD purchase price and
equipment needs resulted in a decrease in costs. Overall, the total
costs are somewhat higher than what was projected in the SNPRM. In
addition, the total benefits of the rule increased due to updated wage
estimates and adjustments to the projection of the cost of a crash.
This resulted in an increase in the overall net benefits for the rule
from what was proposed in the SNPRM. These revisions are discussed in
more detail throughout the RIA.

B. Regulatory Flexibility Act

1. Introduction
    The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat.
1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, March
29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240,
September 27, 2010), requires Federal agencies to consider the effects
of the regulatory action on small business and other small entities and
to minimize any significant economic impact. The term ``small
entities'' comprises small businesses and not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. Accordingly, DOT policy requires an

analysis of the impact of all regulations on small entities, and
mandates that agencies strive to lessen any adverse effects on these
businesses.
    A Final Regulatory Flexibility Analysis must contain the following:
     A statement of the need for, and objectives of, the rule.
     A statement of the significant issues raised by the public
comments in response to the Initial Regulatory Flexibility Act (IRFA),
a statement of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of such
comments.
     The response of the agency to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration in
response to the proposed rule, and a detailed statement of any change
made to the proposed rule in the final rule as a result of the
comments.
     A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available.
     A description of the projected reporting, recordkeeping,
and other compliance requirements of the rule, including an estimate of
the classes of small entities which will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record.
     A description of the steps the agency has taken to
minimize the significant economic impact on small entities consistent
with the stated objectives of applicable statutes, including a
statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected.
     For a covered agency, as defined in section 609(d)(2), a
description of the steps the agency has taken to minimize any
additional cost of credit for small entities.
2. Statement of the Need for and Objectives of This Rule
    The Agency is issuing this rule to mandate the use of ELDs by the
majority of CMV operations. The objective is to reduce the number of