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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2008-0312]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

# ACTION:

Notice of final disposition.

# SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) announces its decision to grant an exemption to DriveCam, Inc. (DriveCam) that will enable video event recorders to be mounted on commercial motor vehicles lower in the windshield than is currently permitted by the Agency's regulations. DriveCam requested the exemption so that commercial motor vehicle operators would be able to use video event recorders to increase safety through (1) identification and remediation of risky driving behaviors such as distracted driving and drowsiness; (2) enhanced monitoring of passenger behavior for CMVs in passenger service; and (3) enhanced collision review and analysis. FMCSA believes that permitting video event recorders to be mounted lower than currently allowed, but still outside the driver's sight lines to the road and highway signs and signals, will maintain a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption.

# DATES:

This exemption is effective from April 15, 2009 through April 15, 2011.

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Luke W. Loy, Vehicle and Roadside Operations Division, Office of Bus and                               ( print page 17550)                            Truck Standards and Operations, MC-PSV, (202) 366-0676, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.                    

# SUPPLEMENTARY INFORMATION:

## Background

Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption from the prohibition on obstructions to the driver's field of view requirements in 49 CFR 393.60(e) for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level of safety that would be achieved absent such exemption” (49 CFR 381.305(a)).

## DriveCam's Request for Exemption

DriveCam applied for an exemption from 49 CFR 393.60(e)(1) to allow the use of video event recorders on all commercial motor vehicles.

Section 393.60(e)(1) of the FMCSRs prohibits the obstruction of the driver's field of view by devices mounted at the top of the windshield. Antennas, transponders and similar devices (devices) must not be mounted more than 152 mm (6 inches) below the upper edge of the windshield. These devices must be located outside the area swept by the windshield wipers and outside the driver's sight lines to the road and highway signs and signals.

DriveCam states that one of the primary deployers of video event recorders has been the motorcoach industry. DriveCam notes that over the last several years, the structural and aesthetic design of buses has changed considerably to include windshields that encompass a larger percentage of the front area of a motor coach and that extend well beyond the driver's useable sight line. As a result, manufacturers have voluntarily installed larger windshield wipers on these windshields that increase the swept area beyond the minimum required by Federal Motor Vehicle Safety Standard (FMVSS) No. 104, “Windshield wiping and washing systems.” FMVSS No. 104 establishes the requirements applicable to vehicle and equipment manufacturers for windshield wiper system coverage for passenger cars, multi-purpose passenger vehicles, trucks and buses.

DriveCam states that video event recorders, for optimal effectiveness, are mounted on the vehicle windshield on the interior of the vehicle in a position that enables the video-capture of what is happening in front of the vehicle as well as an internal video-capture of the driver (and passengers in passenger carrier vehicles). The view toward the front requires that the forward lens of the recorder be in the swept area of the windshield for a clear view in inclement weather. DriveCam states:

Section 393.60(e)(1) was designed to avoid placement of devices on the windshield that would obstruct a driver's useful view of the roadway. However, because of the increase of the size of motorcoach windows and the corresponding increase in the area swept by the windshield wipers, video event recorders now must be mounted so high on the window as to limit the view of drivers, passengers, and collision events. Thus, the level of safety that can be produced by use of video event recorders is limited by the current regulation. By comparison, the proposed alternative will enable DriveCam to lower the placement of the video event recorders to a level, which will maximize the external and internal views of the recorders while still having them mounted high enough so as not to limit the field of vision of the driver.

DriveCam notes in its exemption application that the Commercial Vehicle Safety Alliance (CVSA) submitted a petition for rulemaking to FMCSA on October 18, 2007, to amend 49 CFR 393.60(e). The CVSA petition requests that the FMCSRs be amended to permit video event recorders and similar devices that require a clear forward facing visual field to be mounted not more than 50 mm (2 inches) below the upper edge of the area swept by the windshield wipers, provided that they are located outside the driver's sight lines to the road and highway signs and signals. DriveCam proposes that motor carriers utilizing the exemption be required to comply with the standard proposed in the CVSA petition if it is adopted during the 2-year exemption period. Copies of DriveCam's application for exemption and the CVSA petition are available for review in the docket for this notice.

DriveCam contends that video event recorders, once intergrated into fleets, have been shown to reduce the incidence of preventable vehicle incidents and crashes by 30-40 percent when used with a program to (1) review non-crash events, and (2) coach drivers to improve driving behavior. DriveCam provided a number of case studies of commercial fleets that it has conducted to support these claims.

## Comments

On October 31, 2008, FMCSA published notice of the DriveCam application and asked for public comment (73 FR 65008). The Agency received two comments.

1. Mr. Richard L. Cofer, of Southern Company, a large utility with over 2,500 commercial motor vehicles, stated that Southern supports the use of video event recorders, and does not object to granting the exemption. Mr. Cofer stated that the devices present relatively minor visual obstruction when placed directly under the rear view mirror. Mr. Cofer stated that if an exemption is granted, the Agency should specifically identify where the devices can be placed.

*FMCSA Response:*                     DriveCam proposed to require motor carriers to mount video event recorders not more than 50 mm (2 inches) below the upper edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals in accordance with the CVSA petition for rulemaking. As noted below, the Agency has adopted these parameters as conditions of the exemption.                

2. The California Highway Patrol (CHP) stated that the windshield visibility requirements in the California Vehicle Code (CVC), Section 26708, are based on the preemptive requirements of the Federal Motor Carrier Safety Standards (FMVSS) (49 CFR part 571.104) and cannot be changed without a statutory amendment. Until that step is taken, CHP asserted that the installation of video event recorders as proposed by DriveCam would be prohibited in California. In addition, CHP expressed concern regarding the lack of any safety studies and related supporting data to support the exemption application.

*FMCSA Response:*                     While FMCSA acknowledges that DriveCam did not present specific studies or data showing that safety will not be degraded, the Agency believes that placement of video event recorders just below the top of the swept area of the windshield wipers will (1) be well outside the drivers' sight lines, (2) allow the Agency to test, on an interim basis, an innovative safety management control system, and (3) not negatively affect safety. The FMCSA encourages any party having information that motor carriers utilizing this exemption are not achieving the requisite level of safety immediately to notify the Agency. If safety is being compromised, or if the continuation of the exemption is not consistent with 49 U.S.C. 31315(b) and 31136(e), FMCSA will take immediate steps to revoke the exemption.                

                    FMVSS 104, Windshield Wiping and Washing Systems (49 CFR 571.104), applies to vehicle manufactures, while this exemption applies to individuals or businesses that purchase and operate the vehicles. Pursuant to 49 U.S.C. 31315(d) (as implemented by 49 CFR 381.600), “[d]uring the period that a[n] * * * exemption * * * is in effect  * * * no State shall enforce any law or regulation that conflicts with or is                           ( print page 17551)                        inconsistent with the * * * exemption * * * with respect to a person operating under the * * * exemption * * *.” To the extent CVC 26708 conflicts with this exemption, it is preempted by Federal law and may not be enforced.                

## Terms and Conditions for the Exemption

Based on its evaluation of the application for an exemption, FMCSA grants DriveCam's exemption application. The Agency believes that the safety performance of motor carriers during the 2-year exemption period will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption because (1) based on the technical information available, there is no indication that the video event recorders would obstruct drivers' views of the roadway, highway signs and surrounding traffic; (2) generally, trucks and buses have an elevated seating position which greatly improves the forward visual field of the driver, and any impairment of available sight lines would be minimal; and (3) the location within the top two inches of the area swept by the windshield wiper and out of the driver's normal sightline should be reasonable and enforceable at roadside. In addition, the Agency believes that the use of video event recorders by fleets to deter unsafe driving behavior is likely to improve the overall level of safety to the motoring public. Without the exemption, FMCSA would be unable to test this innovative safety management control system.

The Agency hereby grants the exemption for a two-year period, beginning April 15, 2009 and ending April 15, 2011.

During the temporary exemption period, motor carriers using video event recorders must ensure that the devices are mounted not more than 50 mm (2 inches) below the upper edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals.

## Preemption

During the period the exemption is in effect, no state shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a person operating under the exemption.

Issued on: April 6, 2009.

William A. Quade,

Acting Chief Safety Officer.

[FR Doc. E9-8595 Filed 4-14-09; 8:45 am]

BILLING CODE 4910-EX-P