2340 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 350, 385, 395, and 396 

[Docket No. FMCSA–2004–18940] 

RIN–2126–AA89 

Electronic On-Board Recorders for 

Hours-of-Service Compliance 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

proposes to amend the Federal Motor 

Carrier Safety Regulations (FMCSRs) to 

incorporate new performance standards 

for electronic on-board recorders 

(EOBRs) installed in commercial motor 

vehicles (CMVs) manufactured on or 

after the date 2 years following the 

effective date of a final rule. On-board 

hours-of-service recording devices 

meeting FMCSA’s current requirements 

and voluntarily installed in CMVs 

manufactured before the 

implementation date of a final rule may 

continue to be used for the remainder of 

the service life of those CMVs. Under 

the proposal, motor carriers that have 

demonstrated a history of serious 

noncompliance with the hours-ofservice (HOS) rules would be subject to 

mandatory installation of EOBRs 

meeting the new performance standards. 

If FMCSA determined, based on HOS 

records reviewed during each of two 

compliance reviews conducted within a 

2-year period, that a motor carrier had 

a 10 percent or greater violation rate 

(‘‘pattern violation’’) for any regulation 

in proposed Appendix C to Part 385, 

FMCSA would issue the carrier an 

EOBR remedial directive. The motor 

carrier would be required to install 

EOBRs in all of its CMVs regardless of 

their date of manufacture and to use the 

devices for HOS recordkeeping for a 

period of 2 years, unless the carrier 

already had equipped its vehicles with 

automatic on-board recording devices 

(AOBRDs) meeting the Agency’s current 

requirements under 49 CFR 395.15 and 

could demonstrate to FMCSA that its 

drivers understand how to use the 

devices. We also propose changes to the 

safety fitness standard that would 

require this group of carriers to install, 

use, and maintain EOBRs in order to 

meet the new standard. Finally, FMCSA 

would encourage industrywide use of 

EOBRs by providing the following 

incentives for motor carriers to 

voluntarily use EOBRs in their CMVs: 

Revising the Agency’s compliance 

review procedures to permit 

examination of a random sample of 

drivers’ records of duty status; 

providing partial relief from HOS 

supporting documents requirements, if 

certain conditions are satisfied; and 

other potential incentives made possible 

by the inherent safety and driver health 

benefits of EOBR technology. 

DATES: Comments must be received by 

April 18, 2007. 

ADDRESSES: You may submit comments 

identified by DOT DMS Docket Number 

FMCSA–2004–18940 by any of the 

following methods: 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590– 

0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the Agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking (RIN– 

2126–AA89). Note that all comments 

received will be posted without change 

to http://dms.dot.gov, including any 

personal information provided. Please 

see the Privacy Act heading for further 

information. 

Docket: For access to the docket to 

read background documents including 

those referenced in this document, or to 

read comments received, go to http:// 

dms.dot.gov at any time or to Room PL– 

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal Holidays. 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477) or you may visit http:// 

dms.dot.gov. 

Comments received after the comment 

closing date will be included in the 

docket and the Agency will consider 

late comments to the extent practicable. 

FMCSA may, however, issue a final rule 

at any time after the close of the 

comment period. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Deborah M. Freund, Vehicle and 

Roadside Operations Division, Office of 

Bus and Truck Standards and 

Operations, (202) 366–4009, Federal 

Motor Carrier Safety Administration, 

400 Seventh Street, SW., Washington, 

DC 20590–0001. 

SUPPLEMENTARY INFORMATION: This 

rulemaking notice is organized as 

follows: 

I. Legal Basis for the Rulemaking 

II. Background 

III. Executive Summary 

IV. Discussion of Comments to the ANPRM 

A. Overview of Comments 

B. Key Research Factors 

C. Comments on the Requested Subjects 

1. Synchronization of Recorder to a Vehicle 

Operating Parameter 

2. Amendment of Records 

3. Duty Status Categories When the CMV 

Is Not Moving 

4. Ensuring Drivers Are Properly Identified 

5. Reporting and Presentation (Display) 

Formats 

6. Audit Trail/Event Log 

7. Ability To Interface with Third-Party 

Software for Compliance Verification 

8. Verification of Proper Operation 

9. Testing and Certification Procedures 

10. EOBR Maintenance and Repair 

11. Development of ‘‘Basic’’ EOBRs To 

Promote Increased Carrier Acceptance 

12. Definitions—Basic Requirements 

13. Potential Benefits and Costs 

14. Incentives To Promote EOBR Use 

15. Miscellaneous Questions 

V. Agency Proposal 

A. Technology 

B. Remedies 

C. Incentives 

VI. Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory Planning 

and Review) and DOT Regulatory 

Policies and Procedures 

Regulatory Flexibility Act 

Unfunded Mandates Reform Act 

Executive Order 13132 (Federalism) 

Executive Order 12372 (Intergovernmental 

Review) 

Paperwork Reduction Act 

National Environmental Policy Act 

E.O. 13211 (Energy Supply, Distribution or 

Use) 

E.O. 12898 (Environmental Justice) 

E.O. 13045 (Protection of Children) 

E.O. 12988 (Civil Justice Reform) 

E.O. 12630 (Taking of Private Property) 

National Technology Transfer and 

Advancment Act 

Privacy Impact Assessment 

I. Legal Basis for the Rulemaking 

The Motor Carrier Act of 1935 (Pub. 

L. 74–255, 49 Stat. 543, August 9, 1935, 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2341 

now codified at 49 U.S.C. 31502(b)) (the 

1935 Act) provides that ‘‘[t]he Secretary 

of Transportation may prescribe 

requirements for—(1) qualifications and 

maximum hours of service of employees 

of, and safety of operation and 

equipment of, a motor carrier; and (2) 

qualifications and maximum hours of 

service of employees of, and standards 

of equipment of, a motor private carrier, 

when needed to promote safety of 

operation.’’ This notice of proposed 

rulemaking (NPRM) addresses ‘‘safety of 

operation and equipment’’ of motor 

carriers and ‘‘standards of equipment’’

of motor private carriers and, as such, is 

well within the authority of the 1935 

Act. The NPRM would allow motor 

carriers to use EOBRs to document 

drivers’ compliance with the HOS 

requirements; require some 

noncompliant carriers to install, use, 

and maintain EOBRs for this purpose; 

and update existing performance 

standards for on-board recording 

devices. 

The Motor Carrier Safety Act of 1984 

(Pub. L. 98–554, Title II, 98 Stat. 2832, 

October 30, 1984) (the 1984 Act) 

provides concurrent authority to 

regulate drivers, motor carriers, and 

vehicle equipment. It requires the 

Secretary to ‘‘prescribe regulations on 

commercial motor vehicle safety. The 

regulations shall prescribe minimum 

safety standards for commercial motor 

vehicles. At a minimum, the regulations 

shall ensure that—(1) commercial motor 

vehicles are maintained, equipped, 

loaded, and operated safely; (2) the 

responsibilities imposed on operators of 

commercial motor vehicles do not 

impair their ability to operate the 

vehicles safely; (3) the physical 

condition of operators of commercial 

motor vehicles is adequate to enable 

them to operate the vehicles safely; and 

(4) the operation of commercial motor 

vehicles does not have a deleterious 

effect on the physical condition of the 

operators.’’ (49 U.S.C. 31136(a)) Section 

211 of the 1984 Act also grants the 

Secretary broad power, in carrying out 

motor carrier safety statutes and 

regulations, to ‘‘prescribe recordkeeping 

and reporting requirements’’ and to 

‘‘perform other acts the Secretary 

considers appropriate.’’ (49 U.S.C. 

31133(a)(8) and (10)) 

The HOS regulations are designed to 

ensure that driving time—one of the 

principal ‘‘responsibilities imposed on 

the operators of commercial motor 

vehicles’’—does ‘‘not impair their 

ability to operate the vehicles safely.’’

(49 U.S.C. 31136(a)(2)) EOBRs that are 

properly designed, used, and 

maintained would enable motor carriers 

to track their drivers’ on-duty driving 

hours accurately, thus preventing 

regulatory violations or excessive driver 

fatigue, and to schedule vehicle and 

driver operations more efficiently. 

Driver compliance with the HOS rules 

helps ensure that ‘‘the physical 

condition of [commercial motor vehicle 

drivers] is adequate to enable them to 

operate the vehicles safely.’’ (49 U.S.C. 

31136(a)(3)) To assist in the 

enforcement of the HOS regulations 

generally, and thus improve driver 

safety and welfare, FMCSA proposes to 

require EOBR use by motor carriers with 

the most serious HOS compliance 

deficiencies (‘‘pattern violations’’), as 

described elsewhere in this NPRM. The 

Agency considered whether this 

proposal would impact driver health 

under 49 U.S.C. 31136(a)(3) and (a)(4). 

Since the proposal could increase 

compliance with the HOS regulations, 

including driving and off-duty time, it 

would not have a deleterious effect on 

the physical condition of drivers. (See 

the discussion regarding health impacts 

at section 13.3.) The requirements in 49 

U.S.C. 31136(a)(1) concerning safe 

motor vehicle maintenance, equipment, 

and loading are not germane to this 

proposed rule, as EOBRs influence 

driver operational safety rather than 

vehicular and mechanical safety. 

Consequently, the Agency has not 

explicitly assessed the proposed rule 

against that requirement. However, to 

the limited extent 49 U.S.C. 31136(a)(1) 

pertains specifically to driver safety, the 

Agency has taken this statutory 

requirement into account throughout 

the proposal. 

In addition, section 408 of the ICC 

Termination Act of 1995 (Pub. L. 104–

88, 109 Stat. 803, at 958) (ICCTA) 

required the Agency to issue an advance 

notice of proposed rulemaking 

(ANPRM) ‘‘dealing with a variety of 

fatigue-related issues pertaining to 

commercial motor vehicle safety 

(including * * * automated and 

tamper-proof recording devices * * *) 

no later than March 1, 1996.’’ The 

original ANPRM under section 408 of 

ICCTA was published on November 5, 

1996 (61 FR 57252), the NPRM on May 

2, 2000 (65 FR 25540), and the final rule 

on April 28, 2003 (68 FR 22456). As 

discussed further later in this preamble, 

FMCSA decided not to adopt EOBR 

regulations in 2003. FMCSA noted, 

however, that it planned ‘‘to continue 

research on EOBRs and other 

technologies, seeking to stimulate 

innovation in this promising area’’ (68 

FR 22456, at 22488, Apr. 28, 2003). 

Section 113(a) of the Hazardous 

Materials Transportation Authorization 

Act of 1994 (Pub. L. 103–311, August 

26, 1994, 108 Stat. 1673, at 1676) 

(HMTAA) requires the Secretary to 

prescribe regulations to improve—(A) 

compliance by commercial motor 

vehicle drivers and motor carriers with 

hours-of-service requirements; and (B) 

the effectiveness and efficiency of 

Federal and State enforcement officers 

reviewing such compliance. HMTAA 

section 113(b) states that such 

regulations must allow for a motor 

carrier’s use of a ‘‘written or electronic 

document[s] to be used by a motor 

carrier or by an enforcement officer as 

a supporting document to verify the 

accuracy of a driver’s record of duty 

status.’’ Today’s EOBR proposals set 

forth performance standards, incentives 

measures, and remedial requirements 

for use of devices that generate such 

electronic documents and address the 

HMTAA mandate. 

Section 9104 of the Truck and Bus 

Safety and Regulatory Reform Act (Pub. 

L. 100–690, November 18, 1988, 102 

Stat. 4181, at 4529) also anticipates the 

Secretary prescribing ‘‘a regulation 

about the use of monitoring devices on 

commercial motor vehicles to increase 

compliance by operators of the vehicles 

with hours of service regulations,’’ and 

requires the Agency to ensure that any 

such device is not used to ‘‘harass 

vehicle operators.’’ (49 U.S.C. 31137(a)) 

Section 4012 of the Transportation 

Equity Act for the 21st Century (Pub. L. 

105–178) (TEA–21) makes inapplicable 

to drivers of utility service vehicles, 

during an emergency period of not more 

than 30 days, regulations issued under 

49 U.S.C. 31502 or 31136 regarding ‘‘the 

installation of automatic recording 

devices associated with establishing the 

maximum driving and on-duty times.’’

(49 U.S.C. 31502(e)(1)(C)) 

Based on the statutory framework 

reviewed previously, FMCSA thus has 

statutory authority to adopt an 

industrywide requirement that all motor 

carriers subject to HOS requirements 

under 49 CFR Part 395 install and use 

EOBR-based systems. The Agency elects 

not to exercise the full extent of its 

authority at this time, however, and 

instead proposes a more targeted 

approach of mandating EOBR use for 

only those carriers with deficient safety 

management controls, as demonstrated 

by repeated patterns of hours-of-service 

violations. In this NPRM, the Agency 

proposes criteria for identifying carriers 

with patterns of HOS violations. We 

also propose changes to the safety 

fitness standard that would require this 

group of carriers to install, use, and 

maintain EOBRs in order to meet the 

new standard. 

The determination of a carrier’s safety 

fitness is well within the Secretary’s 

authority. Section 215 of the 1984 Act 


jlentini on PROD1PC65 with PROPOSAL2
2342 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

requires the Secretary to ‘‘determine 

whether an owner or operator is fit to 

operate safely commercial motor 

vehicles,’’ (49 U.S.C. 31144(a)(1)) and to 

‘‘maintain by regulation a procedure for 

determining the safety fitness of an 

owner or operator.’’ (49 U.S.C. 31144(b)) 

That procedure must include ‘‘[s]pecific 

initial and continuing requirements 

with which an owner or operator must 

comply to demonstrate safety fitness.’’

(49 U.S.C. 31144(b)(1)) Section 4009 of 

TEA–21 prohibits motor carriers found 

to be unfit according to a safety fitness 

determination from operating 

commercial motor vehicles in interstate 

commerce. With limited exceptions, 

owners and operators determined to be 

unfit may not operate commercial motor 

vehicles in interstate commerce 

beginning on the 61st day after the date 

of such fitness determination, or the 

46th day after such determination in the 

case of carriers transporting passengers 

or hazardous materials, ‘‘and until the 

Secretary determines such owner or 

operator is fit.’’ (49 U.S.C. 31144(c)) 

Section 4104 of the Safe, Accountable, 

Flexible, Efficient Transportation Act: A 

Legacy for Users (Pub. L. 109–59, 

August 10, 2005, 119 Stat. 1144) 

(SAFETEA–LU) directs FMCSA to 

revoke the registration of a motor carrier 

that has been prohibited from operating 

in interstate commerce for failure to 

comply with the safety fitness 

requirements of 49 U.S.C. 31144. 

Section 4114(b) of SAFETEA–LU 

expands FMCSA jurisdiction into 

intrastate operations by amending 49 

U.S.C. 31144(c) to prohibit from 

operating in interstate commerce and 

intrastate operations affecting interstate 

commerce owners or operators of CMVs 

that FMCSA has determined do not 

meet the safety fitness requirement to 

operate in interstate commerce, until the 

Secretary determines that such owner or 

operator is fit. 

II. Background 

The Federal HOS regulations (49 CFR 

Part 395) limit the number of hours a 

commercial motor vehicle driver may 

drive and be on duty each day, and 

during each 7- or 8-day period. The 

rules are needed to prevent commercial 

vehicle operators from driving for long 

periods without opportunities to obtain 

adequate sleep. Sufficient sleep is 

necessary to ensure that a driver is alert 

behind the wheel and able to respond 

appropriately to changes in the driving 

environment. Under § 395.8, all motor 

carriers and drivers (except private 

motor carriers of passengers [nonbusiness]) must keep records to track 

on-duty and off-duty time. FMCSA and 

State agencies use these records to carry 

out safety oversight activities. 

As FMCSA discussed in its September 

2004 ANPRM on EOBRs (69 FR 53386, 

Sept. 1, 2004), the methods of recording 

and documenting HOS have been 

modified several times over the years. 

The Interstate Commerce Commission 

(ICC) first established a requirement for 

a Driver’s Daily Log in 1940. This 

requirement was later revised to add the 

familiar graph-grid recording format to 

the driver’s log, which became known 

as ‘‘Driver’s Record of Duty Status 

(RODS).’’

In the mid-1980s, motor carriers 

began to look to automated methods of 

recording drivers’ duty status as a way 

of saving drivers time and improving 

the efficiency of their complianceassurance procedures. On April 17, 

1985 (50 FR 15269), the Federal 

Highway Administration (FHWA), the 

predecessor Agency to FMCSA within 

the U.S. Department of Transportation 

(DOT), granted a waiver to Frito-Lay, 

Inc. to allow it to use on-board 

computers rather than requiring its 

drivers to complete handwritten RODS 

(the driver logbook, or ‘‘logs’’). Nine 

other motor carriers were subsequently 

granted waivers. 

In 1986, the Insurance Institute for 

Highway Safety (IIHS) petitioned FHWA 

to require the installation and use of 

automatic on-board recordkeeping 

systems. Although the petition was 

denied, FHWA determined that 

regulations were needed to allow motor 

carriers to use AOBRDs without having 

to seek waivers. After providing the 

public with notice and opportunity to 

comment, FHWA issued a final rule on 

September 30, 1988 (53 FR 38666), 

which revised part 395 of the FMCSRs 

to allow, but not require, motor carriers 

to equip CMVs with AOBRDs instead of 

requiring drivers to complete 

handwritten RODS (49 CFR 395.15). An 

AOBRD was defined under § 395.2 as: 

* * an electric, electronic, 

electromechanical, or mechanical device 

capable of recording driver’s duty status 

information accurately and automatically as 

required by § 395.15. The device must be 

integrally synchronized with specific 

operations of the commercial motor vehicle 

in which it is installed. At a minimum, the 

device must record engine use, road speed, 

miles driven, the date, and time of day. 

Performance requirements for 

AOBRDs are straightforward. The 

AOBRD and its support systems must be 

certified by the manufacturer as 

evidence that they ‘‘have been 

sufficiently tested to meet the 

requirements of § 395.15’’ and 

Appendix A to Part 395 ‘‘under the 

conditions in which they would be 

used.’’ The design must permit duty 

status to be updated only when the 

vehicle is at rest, unless the driver is 

registering the crossing of a State 

boundary. The AOBRD and support 

systems must be resistant to tampering 

‘‘to the maximum extent practicable.’’

The AOBRD must provide a visual or 

audible warning to the driver if it ceases 

to function, and any sensor failures and 

edited data must be identified in the 

RODS printed from the device. Finally, 

the AOBRD must be maintained and 

recalibrated according to the 

manufacturer’s specifications; drivers 

must be adequately trained in the 

proper operation of the device; and the 

motor carrier must maintain a second 

(backup) copy of electronic HOS files in 

a separate location. 

At the time § 395.15 was issued, the 

technology to allow on-board recorders 

to communicate data wirelessly between 

the CMV and the motor carrier’s base of 

operations did not exist on a 

widespread commercial basis. Today’s 

technologies allow for real-time 

transmission of a vehicle’s location and 

other operational information. FMCSA 

calls these current-generation recording 

devices EOBRs. By exploiting the power 

of these technologies, a motor carrier 

can improve not only its scheduling of 

vehicles and drivers but also its asset 

management and customer service. In 

fact, some system providers offer 

applications for real-time HOS 

monitoring that build upon the timeand location-tracking functions 

included in the providers’ hardware and 

software products. Because of these 

developments in technology and 

communications, the current, narrowly 

crafted on-board recorder regulations 

require revision. 

On August 3, 1995, the IIHS, 

Advocates for Highway and Auto Safety 

(Advocates), and several other highway 

safety and advocacy organizations 

petitioned FHWA to require on-board 

recorders in CMVs. The petitioners 

believed that mandated use of these 

devices would improve HOS 

compliance, thereby reducing the 

number of fatigued drivers and fatiguerelated crashes. Subsequently, FMCSA 

included in its May 2, 2000, NPRM (65 

FR 25540) on HOS a proposal to require 

EOBRs on commercial motor vehicles 

used in long-haul and regional 

operations. In its report ‘‘Top Ten 

Management Issues’’ (Report Number 

PT–2001–017, January 18, 2001) the 

DOT Office of Inspector General 

summarized the NPRM regarding EOBR 

use as follows: 

Driver HOS violations and falsified driver 

logs continue to pose significant safety 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2343 

concerns. Research has shown that fatigue is 

a major factor in commercial vehicle crashes. 

During roadside safety inspections, the most 

frequent violation cited for removing a driver 

from operation is exceeding allowed hours of 

service. Use of electronic recorders and other 

technologies to manage the HOS 

requirements has significant safety value. 

FMCSA’s [May 2, 2000] proposed rulemaking 

would revise the hours of service by reducing 

the driving time allowed within a 24-hour 

period and by phasing in, over a period of 

years, the use of on-board electronic 

recorders to document drivers’ hours of 

service. The Congress prohibited the 

Department from adopting a final rule during 

FY 2001. FMCSA management should use 

this time to consider all of the comments 

received and revise the proposed rule as 

appropriate. 

When FMCSA published its final 

HOS rule in April 2003, however, the 

proposal for mandatory use of EOBRs 

for CMVs used in long-haul and regional 

operations was withdrawn (68 FR 

22456, Apr. 28, 2003). FMCSA 

concluded there were insufficient 

economic and safety data, coupled with 

a lack of support from the transportation 

community at large, to justify an EOBR 

requirement at that time. The Agency 

based these conclusions on the 

following: 

(1) Neither the costs nor the benefits 

of EOBR systems were adequately 

ascertainable, and the benefits were 

easier to assume than to accurately 

estimate. 

(2) The EOBR proposal was drafted as 

a performance standard, but 

enforcement officials generally preferred 

the concept of a design standard to 

facilitate data accessibility. 

(3) There was considerable opposition 

to the proposal to phase in the EOBR 

requirement, starting with large longhaul motor carriers—those having more 

than 50 power units. Large carriers 

argued that mandated EOBR use was 

irrational because small carriers 

generally have higher crash rates. Major 

operators also complained that the 

phase-in schedule would force them to 

pay high initial prices for EOBRs, while 

carriers allowed to defer the 

requirement would benefit from the 

lower costs associated with increased 

demand, competition, and economies of 

scale. 

(4) There was considerable concern 

about the potential use of EOBR data for 

purposes other than HOS compliance. 

On July 16, 2004, the United States 

Court of Appeals for the District of 

Columbia Circuit vacated the 2003 final 

rule, for reasons unrelated to EOBRs. 

See Public Citizen, et al. v. FMCSA, 374 

F.3d 1209 (D.C. Cir. 2004). In dicta, 

however, the court stated that section 

408 of the ICCTA ‘‘required the Agency, 

at a minimum, to collect and analyze 

data on the costs and benefits of 

requiring EOBRs.’’ (Id. at 1221) 

On September 1, 2004, FMCSA 

published an ANPRM requesting 

comments on a wide range of issues 

related to the design, use, applicability, 

costs, and benefits of EOBRs (69 FR 

53386). FMCSA also conducted research 

into the current use, design, and costs 

of EOBRs and other communications 

systems being deployed by trucking 

companies, to provide additional 

information on which to base an 

approach to incorporating EOBR 

requirements in the FMCSRs. This 

proposed rule is based, therefore, both 

on the comments received to the 

ANPRM and on independent research 

the Agency conducted. The four 

research studies cited in the ANPRM are 

available in the docket at entries 2, 3, 6, 

and 7. FMCSA sponsored three 

additional studies: ‘‘Recommendations 

Regarding the Use of Electronic OnBoard Recorders (EOBRs) for Reporting 

Hours of Service (HOS),’’ prepared by 

staff of the John A. Volpe National 

Transportation Systems Center, U.S. 

Department of Transportation Research 

and Innovative Technology 

Administration, Cambridge, 

Massachusetts (‘‘Volpe Center Study’’); 

‘‘Technical Review and Assessment: 

Recommendations Regarding the Use of 

Electronic On-Board Recorders (EOBRs) 

for Reporting Hours of Service (HOS),’’

prepared by Dr. Kate A. Remley, 

Electromagnetics Division, National 

Institute of Standards and Technology, 

Boulder, Colorado; and the 2005 update 

of ‘‘On-Board Recorders: Literature and 

Technology Review,’’ prepared by 

Cambridge Systematics (Cambridge, 

Massachusetts). These studies are also 

in the docket. 

Three of FMCSA’s sister agencies 

within DOT–FHWA, the National 

Highway Traffic Safety Administration 

(NHTSA), and the Federal Railroad 

Administration—conducted a peer 

review of the Volpe Center Study in 

accordance with Office of Management 

and Budget peer review requirements. 

The reviewers evaluated the research 

with respect to scientific and technical 

merit, adequacy, and overall quality. A 

summary report of the peer review 

panel’s evaluation and FMCSA’s 

response to the evaluation are available 

in the Agency’s EOBR Peer Review 

docket (FMCSA–2006–25548) of the 

DOT Docket Management System. 

III. Executive Summary 

FMCSA proposes a comprehensive 

rule intended to improve CMV safety, 

increase use of EOBRs within the motor 

carrier industry, and to improve HOS 

compliance. The approach has three 

components: (1) A new performanceoriented standard for EOBR technology; 

(2) use of EOBRs to remediate regulatory 

noncompliance; and (3) incentives to 

promote EOBR use. FMCSA believes 

this approach strikes an appropriate 

balance between promoting highway 

safety and minimizing cost and 

operational burdens on motor carriers 

that demonstrate strong and consistent 

compliance with the HOS regulations. 

EOBR Performance Requirements. In 

developing the proposed requirements 

for EOBRs, FMCSA focused its attention 

on seven research factors listed in the 

ANPRM: (1) Ability to identify the 

individual driver; (2) Tamper resistance; 

(3) Ability to produce records for audit; 

(4) Ability of roadside enforcement 

personnel to access the HOS 

information quickly and easily; (5) Level 

of protection afforded other personal, 

operational, or proprietary information; 

(6) Cost; and (7) Driver acceptability. 

FMCSA proposes that the EOBR record 

basic information needed to track duty 

status, including the identity of the 

driver, duty status, date and time, 

location of the CMV, distance traveled, 

and other items that the driver would 

enter (such as truck numbers and 

shipping document numbers). The 

EOBR would be required to identify the 

driver, although FMCSA does not 

propose mandating a specific 

identification method. This approach 

would allow carriers to use existing 

identification systems or implement 

newer technologies as they become 

feasible. 

While many of the proposed 

requirements, such as that for tamper 

resistance, parallel the requirements for 

AOBRDs, others would extend the 

AOBRD requirements based on our 

expectation that the EOBR will have a 

high degree of reliability. The EOBR 

would not need to be integrally 

synchronized to the engine or other 

vehicle equipment. An EOBR must, 

however, have GPS or other location 

tracking systems that record location of 

the CMV at least once a minute. EOBRs 

could still use sources internal to the 

vehicle to record distance traveled and 

time. EOBRs must perform a power-on 

self-test on demand and must also warn 

the driver if the device ceased to 

function. Maintenance, recalibration, 

and self-certification requirements 

would be similar to those for AOBRDs. 

EOBRs would need to produce 

parallel data streams of original and 

modified entries to provide an audit 

trail for data. FMCSA proposes several 

options for information transfer and 

display; EOBRs could produce the 

driver’s HOS chart in a graph-grid 


jlentini on PROD1PC65 with PROPOSAL2
2344 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

1FMCSA’s routine compliance review procedures 

call for FMCSA or State safety investigators to focus 

their sample of HOS records on the RODS of drivers 

involved in interstate recordable accidents, drivers 

placed out of service for hours-of-service violations 

during roadside inspections, drivers discovered to 

have poor driving records through Commercial 

Driver’s License Information System checks, 

recently hired drivers, and drivers having a high 

probability of excessive driving. 

format in either electronic or printed 

form. Data transfer could be either 

hardwired or wireless. 

EOBR Use Requirements. FMCSA is 

proposing to require EOBR use only for 

those carriers found to have HOS 

violation rates of 10 percent or more of 

the records reviewed during each of two 

compliance reviews (CRs), when the 

two reviews are conducted within a 2- 

year period. These carriers would be 

issued a remedial directive requiring 

that they install EOBRs in all of their 

CMVs and use the devices for HOS 

recordkeeping for a period of 2 years. 

This approach focuses on carriers with 

a history of serious HOS violations. 

EOBR Incentives. FMCSA would 

encourage all motor carriers to install 

and use EOBRs. Some carriers are 

reluctant to take this step, out of 

concerns that EOBRs’ accuracy and the 

accessibility of the electronic records 

they generate would cause safety 

investigators to examine all of the 

carrier’s HOS records and make minor 

violations easier to identify. We believe 

these concerns are warranted. To avoid 

putting EOBR-using carriers at a 

disadvantage during CRs, and to provide 

an incentive for EOBR use, under this 

proposed rule FMCSA would evaluate 

HOS compliance differently during CRs 

of carriers using EOBRs voluntarily than 

during CRs of other carriers. If a carrier 

voluntarily using EOBRs is found to 

have HOS violations in 10 percent or 

more of the records reviewed in the 

initial analysis, which focuses on 

drivers expected to have compliance 

problems,1 FMCSA would conduct a 

second review, of a random sample 

made up of records of duty status for the 

carrier’s other drivers, and use the 

results of the second sample in 

determining the carrier’s safety rating. 

FMCSA would assess civil penalties on 

the carrier in the Notice of Claim phase 

for all HOS violations discovered, 

regardless of the safety rating assigned. 

(If the initial, focused sample did not 

disclose a 10 percent or greater violation 

rate, then under current regulations the 

violations found would not affect the 

carrier’s safety rating in any case.) We 

believe this approach would remove a 

disincentive to EOBR use while 

maintaining the Agency’s focus on 

safety. This incentive would not be 

available to motor carriers operating 

under a remedial directive to install, 

use, and maintain EOBRs. 

Under this proposed rule, FMCSA 

also would provide partial relief from 

HOS supporting documents 

requirements for motor carriers that 

voluntarily use EOBRs, provided certain 

conditions are satisfied. EOBRs meeting 

the proposed requirements produce 

regular time and CMV location position 

histories sufficient to verify adequately 

a driver’s on-duty driving activities. 

Motor carriers voluntarily maintaining 

the time and location data produced by 

such devices would need to maintain 

only those additional supporting 

documents as are necessary to verify onduty not-driving activities and off-duty 

status. 

FMCSA is also requesting comment 

on other incentives for EOBR adoption. 

We are interested in identifying other 

regulatory relief that a motor carrier’s 

EOBR use might justify, including relief 

from specific HOS requirements or 

limitations consistent with the safety 

and driver health benefits of EOBR 

technology. 

Other Issues. In response to the 

ANPRM, some carriers and drivers 

expressed a reluctance to use EOBRs 

because of other uses that could be 

made of the data the devices produce. 

Drivers objected to the devices as an 

invasion of privacy and as a source of 

information that could be used against 

them for non-HOS-related issues, such 

as speeding. Carriers were concerned 

that the data could be used in post-crash 

litigation. Both asked that FMCSA limit 

access to the data for the purpose of 

HOS compliance-related enforcement. 

This NPRM does not propose to 

require EOBRs to record engine speed, 

although we are aware that other data 

could be used to derive that 

information. We recognize the 

industry’s concerns in this area, and are 

not proposing that EOBRs display, or 

make readily available to enforcement 

officials, information other than what is 

necessary to determine compliance with 

the HOS regulations. 

IV. Discussion of Comments to the 

ANPRM 

A. Overview of Comments 

FMCSA received 307 comments in 

response to the ANRPM. Nearly half 

(148) were from drivers or driver 

trainers. There were 35 comments from 

private citizens, not all of whom 

indicated whether they were drivers. 

FMCSA also received comments from 

70 carriers, 35 of which were owneroperators. Fourteen trucking 

associations submitted comments, as 

did three passenger carrier associations. 

Also commenting were six advocacy 

organizations and eight associations 

representing companies such as 

utilities, ready-mixed concrete 

suppliers, and solid waste management 

firms. Finally, 15 vendors of EOBRs or 

similar products, 3 individual nontrucking firms, one union, and one law 

enforcement agency submitted 

comments. 

In addition, 172 of the commenters to 

FMCSA’s May 2, 2000, NPRM on hours 

of service of drivers (65 FR 25540) 

included comments on the issue of an 

EOBR requirement. Of these 

commenters, 48—including the National 

Transportation Safety Board (NTSB), 

advocacy organizations, 8 carriers, and 

34 drivers—supported such a 

requirement, while 124 were opposed. 

The latter group included construction 

industry associations and carriers, 

trucking associations, an express carrier, 

and 88 drivers. 

The potential imposition of an EOBR 

requirement drew diverse comments. 

Some motor carriers requested that 

FMCSA exempt them from any EOBR 

requirement because of the nature of 

their activities. By contrast, other 

carriers thought any requirement to use 

EOBRs should be applied evenly across 

the industry to maintain a level playing 

field. The Canadian Trucking Alliance 

(CTA) stated that it ‘‘has adopted a 

policy position, which has been 

communicated to Canadian 

governments at both the Federal and 

provincial levels, that calls for the 

mandatory use of EOBRs for the 

operators of all commercial vehicles, 

where a commercial driver’s license is 

required to operate the vehicle and a 

logbook must be completed by the 

driver under the current rules.’’

Advocacy organizations recommended 

an across-the-board mandate, viewing 

full compliance with the HOS 

regulations as vital to roadway safety. 

They believe EOBRs are necessary to 

improve both motor carriers’

compliance with the HOS regulations 

and FMCSA’s ability to enforce them. 

Many drivers contended that 

mandating EOBR use would constitute 

an unwarranted (and possibly 

unconstitutional) invasion of privacy. 

Some expressed concerns about 

trucking companies using EOBRs to 

maximize driving time under the HOS 

regulations at the expense of driver 

health and safety. The Truckload 

Carriers Association (TCA) cited 

protections afforded to consumer credit 

reports by the Fair Credit Reporting Act 

and the protections of medical 

information required by the Health 

Insurance Portability and 

Accountability Act of 1996. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2345 

Motor carriers and trucking industry 

associations also expressed concerns 

with a potential mandate. Many motor 

carriers, especially smaller companies, 

echoed drivers’ concerns regarding the 

potential financial burden of installing 

and maintaining EOBRs. On the other 

hand, several medium and large carriers 

noted they currently use vehicle 

tracking and wireless communication 

systems. They asked FMCSA to consider 

those systems as equivalent to EOBRs, 

similar to the exemption granted to 

Werner Enterprises (Werner) (69 FR 

56474, Sept. 21, 2004) to allow use of 

a system based upon global positioning 

system (GPS) technology. Motor carriers 

using these and similar systems asserted 

that the costs of installing and 

maintaining EOBRs would be 

counterbalanced by savings from 

operating efficiencies and reduced 

paperwork. 

Drivers generally expressed concerns 

about the EOBRs. They objected to the 

potential purchase and maintenance 

costs, and questioned the potential for 

improved accuracy of EOBR-generated 

RODS over paper RODS, because 

AOBRDs (and EOBRs) cannot 

automatically distinguish between ‘‘offduty’’ and ‘‘on-duty not-driving’’ status 

requiring manual input from the driver. 

Other commenters questioned the 

prospect of potential cost savings from 

automated recordkeeping, the potential 

for improving motor carrier HOS 

compliance and FMCSA’s oversight 

activities, and the relationship between 

HOS compliance and highway crashes. 

Both drivers and motor carriers 

expressed concern about the potential 

for ‘‘scope creep’’—the potential use of 

EOBRs to collect data unrelated to HOS 

compliance for use in enforcement and 

litigation actions likewise unrelated to 

HOS. 

B. Key Research Factors 

As noted under EOBR Performance 

Requirements, the ANPRM specifically 

requested comments on the seven key 

research factors initially discussed in 

the April 2003 HOS final rule and in the 

Executive Summary of this preamble. 

Commenters suggested a number of 

additional research factors. For 

example, the Specialized Carriers and 

Rigging Association (SCRA) and the 

Owner-Operator Independent Drivers 

Association (OOIDA) stated that FMCSA 

needs to gather data to establish 

whether a correlation exists between the 

use of EOBRs (both § 395.15-compliant 

devices and other systems, such as that 

used by Werner) and improved truck 

safety. 

The American Trucking Associations 

(ATA) recommended FMCSA consider 

maintenance and inspection of systems; 

performance certification and 

compliance of new systems; product 

assurance and validation; 

interoperability; and existing or future 

system evolution. ATA also encouraged 

FMCSA to expand the list by fostering 

an open stakeholder dialogue beyond 

the docket submission period. 

Advocates supported the Agency’s 

research criteria with the exception of 

driver acceptance, contending this 

‘‘cannot be used as a barometer for the 

mandatory adoption of this important 

safety technology’’ because drivers face 

pressure to accept schedules that cannot 

be met without violating speed limits 

and the HOS regulations. Advocates 

suggested adding three other criteria: 

High levels of crash damage resistance; 

the capability to track real-time 

geographic location to ensure 

compliance with CMV weights-anddimensions laws and hazardous 

materials routing regulations; and 

interoperability of all EOBR data and 

data retrieval ‘‘in accordance with the 

protocols that have been issued by the 

Intelligent Transportation Systems 

consensus positions of the ITS America 

Committee and constitute a baseline for 

interoperability in the U.S. Department 

of Transportation.’’

IIHS commented on FMCSA’s 

methods of gathering information rather 

than on its choice of research criteria. 

IIHS thought FMCSA should conduct a 

field operational test of EOBR devices 

and conduct formal surveys to gather 

data on EOBR benefits, costs, and use in 

HOS enforcement. 

Motor carriers also suggested 

additional research factors. J.B. Hunt 

suggested ease of use, restrictions on use 

while a vehicle is in motion (for solo 

operations only), driver distraction, and 

device durability. Schneider 

recommended comparing the 

effectiveness of EOBRs, paper RODS, 

and existing compliance programs in 

reducing motor carrier crash rates. 

FedEx cited the ability of a device to 

produce documents for review at 

roadside as a key technical requirement, 

and called on FMCSA to assess 

categories of motor carrier operations for 

which an EOBR mandate would be 

appropriate. 

One equipment vendor suggested 

researching EOBR physical durability 

and system architecture, including twoway communications and GPS 

capabilities. 

A number of commenters stated that 

FMCSA needs to gather additional 

information through discussions with 

stakeholders. They believe this would 

provide a better means of exchanging 

information with the Agency than 

responding to a rulemaking docket. 

Only IIHS suggested FMCSA has 

enough information to craft a 

‘‘workable’’ EOBR mandate. Other 

commenters urged FMCSA to move 

deliberately and obtain more 

information from motor carriers, law 

enforcement personnel, and drivers. 

With respect to EOBR performance 

standards, ATA recommended a 

facilitated dialogue among motor 

carriers, FMCSA, and enforcement 

personnel as the most effective way to 

develop standards serving the interests 

of all. Such a process could decrease 

ambiguities in interpretation between 

and among manufacturers and service 

providers, increase EOBRs’ usefulness 

to trucking companies, and improve the 

efficiency of the HOS records auditing 

process. 

Schneider said the ‘‘continued 

instability’’ of the Federal HOS 

regulations and the interrelationships 

between the HOS regulations and HOS 

records make it difficult to answer the 

questions posed in the ANPRM. 

Schneider and other commenters 

suggested FMCSA move forward 

deliberately, promulgate tentative 

minimum functional specifications, 

request comments regarding the costs 

and benefits of compliant EOBRs, and 

consider a general EOBR mandate only 

after performing a more precise and 

comprehensive benefit-cost analysis. 

Overnite Transportation stressed the 

need for additional input from the 

motor carrier industry and the law 

enforcement community. 

Werner asserted that many motor 

carriers have reviewed its system and 

expressed an interest in implementing a 

similar system, but are unwilling to 

move forward given the open status of 

the EOBR rulemaking. Werner 

recommended that FMCSA assure motor 

carriers that their systems (including 

ones similar to the Werner paperless 

logging system) would still be 

considered acceptable alternatives to 

EOBRs should new rules be 

implemented. 

Many commenters (chiefly 

individuals) expressed concerns about 

other HOS compliance and motor 

carrier safety matters. These included 

excessive and unpaid delays at loading 

and unloading docks contributing to 

driver fatigue and unsafe driving, the 

relationship between the HOS 

regulations and driver pay, unsafe 

driving behavior by non-CMV drivers 

contributing to highway crashes, 

inadequate training of new drivers, antiidling rules, and lack of legal truck 

parking. 


jlentini on PROD1PC65 with PROPOSAL2
2346 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

Agency Response 

FMCSA agrees with many of the 

commenters’ recommendations, which 

are reflected in several elements of the 

proposed rule. For example, we are 

proposing a performance standard 

concerning geographic location tracking 

of the CMV as well as providing for 

interoperability between EOBRs and 

support systems and complianceassurance systems, as recommended by 

Advocates and other commenters. We 

conferred with FHWA concerning 

Advocates’ recommendation on 

interoperability of EOBR data and data 

retrieval. FHWA is not aware of any 

‘‘ITS America consensus protocols’’ in 

existence. We intend to develop the 

EOBR performance specifications in 

accordance with ITS America’s ‘‘ITS/ 

CVO [Intelligent Transportation Systems 

Commercial Vehicle Operations] 

Interoperability Guiding Principles’’ and 

DOT’s Commercial Vehicle Information 

Systems Network [CVISN] Architecture. 

In response to a recommendation by 

ATA, Schneider, Overnite, and others, 

we are providing a longer than normal 

public comment period for this proposal 

to allow commenters ample time to 

develop their responses and ensure 

careful consideration of a cross-section 

of opinion. The Agency believes this 

deliberate approach, encompassing 

extensive analysis of public comment 

and the available research, is essential 

to provide the foundation for the 

‘‘workable’’ rule to which IIHS referred. 

In response to Werner Enterprise’s 

comment, we would continue to allow 

Werner to operate under the exemption 

granted on September 21, 2004 (69 FR 

56474) for vehicles manufactured prior 

to 2 years after the effective date of an 

EOBR final rule. EOBRs installed in 

vehicles manufactured after that date 

would be required to comply with 

requirements under an EOBR final rule. 

C. Comments on the Requested Subjects 

The Agency also requested comments 

on 15 subjects, denoted as A through O 

in the ANPRM. The comments to those 

subjects are addressed below. 

1. Synchronization of Recorder to a 

Vehicle Operating Parameter 

Commenters disagreed about whether 

it is necessary to synchronize an EOBR 

to the CMV to capture data necessary to 

establish a driver’s ‘‘on-duty, driving’’

status. Seven of the 10 equipment and 

systems providers commenting on this 

topic believe that EOBRs should be 

integrally synchronized to the CMV, 

either directly to the engine control 

module (ECM) or via the vehicle’s 

electronic network (databus). Several 

stated that their products also support 

CMV location tracking via GPS or other 

means. 

XATA, an EOBR vendor, asserted that 

integral synchronization is not only 

more cost-effective than GPS and other 

technologies but provides EOBR 

manufacturers a standard interface 

method to ensure accurate tracking of 

vehicle motion and other operational 

data. Tripmaster stated ‘‘electronic 

engine control modules (ECM) are 

calibrated during the manufacturing 

process with the proper odometer pulse 

per mile value,’’ and that EOBRs 

connected to the ECM ‘‘are in effect selfcalibrated.’’ Tripmaster supported GPS 

as an alternative distance measurement, 

rather than as the primary source of 

such measurement. PeopleNet 

supported synchronization with the 

databus, using ECM data to determine 

travel distance and GPS to confirm 

location. Qualcomm recommended that 

‘‘integrally synchronized’’ refer to an 

EOBR system in which at least one 

component is directly connected to the 

engine of the CMV in which it is 

installed, to enable the EOBR to collect 

and record CMV functions as they 

occur. Siemens stated its experience in 

other countries is that most 

falsifications are based on a tampered 

speed signal. It recommended tracking 

CMV speed through vehicle sensors 

combined with a GPS speed signal. 

Darby Corporate Solutions believes an 

EOBR should record only vehicle 

information, not duty status, which it 

contended should be recorded by a 

separate device. Karta Technologies 

described how its vehicle-tracking 

product could incorporate an EOBR 

function. 

In contrast, three commenters, 

LinksPoint, Nextel, and CPS, supported 

a GPS-only system without integral 

synchronization to the CMV. LinksPoint 

asserted that a combination of driverreported status and GPS-sensed data 

(such as vehicle motion) would permit 

an economical ‘‘semi-automated’’ and 

‘‘minimally compliant device’’ approach 

to HOS recording, and believes current 

mobile computing technology would 

allow for error checking to improve data 

accuracy and protect against fraud. CPS 

contended the databus standards are 

‘‘out-of-date and rely on input from 

engine sensors that may be inaccurate 

and need regular calibration,’’ whereas 

a GPS-only system would be selfcontained, stand-alone, and tamper 

resistant. Nextel advocated integrated 

GPS technology as more accurate and 

providing near-real-time reporting. 

Motor carriers generally supported 

retaining a requirement for integral 

synchronization of the EOBR with the 

CMV. Greyhound, J.B. Hunt, Maverick, 

and Schneider contended that 

synchronization is essential, but also 

noted EOBRs depend upon human 

input to record duty status accurately. 

J.B. Hunt supported concurrent use of 

GPS-enabled location tracking and 

recording. Schneider believes 

synchronization of EOBRs with vehicle 

electronics ‘‘would require significant 

filtering to avoid data overload and 

misleading results.’’ Schneider 

suggested FMCSA request comments on 

the new European Union (EU) digital 

tachograph, specifically concerning how 

it records CMV movement. Schneider 

stated it is concerned FMCSA may be 

considering use of handheld GPS 

devices, a technology it does not 

consider appropriate. ATA generally 

supported development of reliable data 

parameters and standards. However, 

ATA did not support revising the 

current regulations, as it believes the 

problems cited in the ANPRM pertain to 

systems that do not comply with these 

rules. 

The Santa Clara Valley Transportation 

Authority, a public agency not subject to 

the FMCSRs for most of its operations, 

opposed continuing the synchronization 

requirement. The transportation 

authority uses automated vehicle 

location and GPS capabilities and has 

incorporated HOS rules into the Santa 

Clara bus schedules. 

Advocacy organizations supported 

maintaining the synchronization 

requirement. IIHS asserted the most 

important capability is the accurate 

recording of driving time, a feature most 

of today’s systems provide. Citing 

FMCSA’s past studies, Advocates and 

Public Citizen opposed GPS-only 

systems and supported a combination of 

GPS technology and recording of onboard vehicle operating parameters. 

Law enforcement interests also 

supported the notion of an EOBR 

providing a combination of location 

tracking and vehicle data. The 

Commercial Vehicle Safety Alliance 

(CVSA) cited a need for redundancy to 

minimize errors and falsification. The 

California Highway Patrol (CHP) 

thought synchronization among 

multiple data sources and the EOBR is 

vital to overcome the shortcomings of 

any one system. 

One commenter stated that an EOBR 

should record only data, should not be 

programmed to ‘‘make assumptions’’ as 

to duty status, and should record GPS 

data continuously. Another commenter 

said an EOBR should record data from 

the vehicle databus in real time. The 

International Foodservice Distributor 

Association opposed any rule requiring 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2347 

use of GPS and engine data to track HOS 

compliance. 

Agency Response 

The purpose of an AOBRD or EOBR 

is to accurately record a driver’s 

sequence of duty statuses, the time the 

driver is engaged in a given duty status 

category, and the sequence of dates, 

times, and locations that make up a trip. 

Historically, the only information 

available from a source not directly 

controlled by the driver was the driving 

time and distance, both of which were 

obtained from a source on the vehicle. 

Change-of-duty status locations had to 

be entered manually. In the 20 years 

since AOBRDs were first used, 

communications and logistics 

management technologies have evolved 

to enable a more fundamental item of 

information—vehicle location—to be 

tracked and recorded. The precision and 

accuracy of this recording has come to 

rival that of distance-and-time records 

from the CMV. 

FMCSA believes it is appropriate to 

offer an alternative, performanceoriented approach that allows motor 

carriers and EOBR developers to take 

advantage of emerging technologies. 

Specifically, FMCSA now believes that 

an EOBR does not necessarily have to be 

‘‘integrally synchronized’’ with the 

CMV to provide an accurate record of 

driving time, equivalent to that of an 

electronic odometer or the time function 

contained in an ECM. The Agency is 

proposing to allow two ways to record 

distance traveled and time: (1) Via 

sources internal to the vehicle (i.e., the 

ECM with an internal clock/calendar) to 

derive distance traveled, or (2) via 

sources external to the vehicle (i.e., 

location-reference systems—GPS, 

terrestrial, or a combination of both) 

recording location of the CMV once per 

minute and using a synchronized clock/ 

calendar to derive distance traveled 

(‘‘electronic breadcrumbs’’). This 

approach has the potential advantages 

of removing a restrictive design 

requirement, providing an opportunity 

for innovation, and allowing use of less 

expensive hardware (e.g., GPS-enabled 

cell phones), without making existing 

synchronized devices obsolete. 

Regardless of the communications 

modes (wireless or terrestrial) and the 

method used to synchronize the time 

and CMV-operation information into an 

electronic RODS, FMCSA would require 

the records from EOBRs to record duty 

status information accurately. The 

difference proposed between actual 

distance traveled and distance 

computed via location-tracking methods 

over a 24-hour period would be ±1 

percent. EOBR developers would need 

to test their devices thoroughly to 

ensure they meet or exceed these 

tolerances. 

2. Amendment of Records 

2.1 Should FMCSA Revise Its 

Definition of ‘‘Amend’’ in the 

Regulatory Guidance for § 395.15 To 

Include or Exclude Certain Specific 

Activities? 

Nearly all commenters who addressed 

this question supported a regulatory 

provision to allow drivers to amend or 

annotate in some way the duty status 

records captured by an EOBR. However, 

commenters did not, for the most part, 

directly address the question of whether 

FMCSA should revise its definition of 

‘‘amend’’ in the Regulatory Guidance. 

Several stated that drivers should have 

the opportunity to amend on-duty notdriving, off-duty, and sleeper-berth 

status entries to ensure they are 

accurate, while others opposed allowing 

drivers to amend any driving time 

entries. A few opposed any provisions 

for drivers to amend or annotate EOBR 

records. 

All motor carriers addressing this 

issue said FMCSA should allow drivers 

to make amendments or add remarks in 

some circumstances, although three 

opposed allowing amendment of onduty driving time. J.B. Hunt 

recommended against allowing 

amendments of driving time entries, but 

supported allowing drivers to add 

information in a Remarks section. J.B. 

Hunt suggested employee drivers might 

request their company to correct driving 

time errors, while independent owneroperators might make these requests 

through a ‘‘compliance consortium’’

similar to those used to manage random 

drug and alcohol audits. Maverick 

Transportation recommended allowing 

drivers to amend records and enter 

explanatory remarks. Roehl Transport 

recommended prohibiting modification 

of a record ‘‘if the truck is moving.’’

Greyhound Lines’ support for allowing 

amendments was based upon its 

contention that an EOBR cannot 

distinguish between a vehicle idling in 

traffic (on-duty/driving) and idling at a 

terminal (on-duty not-driving or offduty). Greyhound also pointed to the 

need to correct errors when a new driver 

takes over a vehicle but the previous 

driver has forgotten to log off. Werner 

Enterprises noted its current system 

explicitly measures only driving time, 

with all other duty status entries 

requiring driver input. Based upon its 

experience in training thousands of 

drivers, Werner contended that 

prohibiting corrections of nondrivingtime errors would render the records 

meaningless. 

The International Brotherhood of 

Teamsters (IBT) stated that FMCSA 

should allow drivers to amend any 

electronic record and add informational 

remarks to note traffic conditions and 

indicate on-duty not-driving or off-duty 

status. 

CHP suggested FMCSA continue to 

prohibit amendments of any 

permanently recorded entry or data 

parameter, but allow comments 

regarding entry omissions and 

inadvertent errors as ‘‘corrections’’ in 

line with the current regulatory 

guidance for 49 CFR 395.8, Question 8. 

CVSA supported this position. 

Advocates stated that FMCSA should 

allow drivers to make separate 

annotations in certain circumstances, 

but should not allow alteration of any 

data captured by an EOBR. It opposed 

the idea of allowing drivers to use the 

Remarks section to provide details of 

on-duty not-driving activities, reasoning 

that certain drivers would misrepresent 

some on-duty not-driving time as offduty time. Advocates noted FMCSA did 

not include in the ANPRM any 

discussion of how to accurately verify 

work and rest time periods that an 

EOBR could not capture. 

Most of the vendors commenting on 

this issue supported allowing drivers to 

make amendments or annotations to the 

duty status recorded by an EOBR. For 

example, PeopleNet stated that without 

a process to allow drivers to amend 

records, motor carrier personnel would 

have to be available around the clock to 

respond to drivers’ requests for 

annotations. It recommended requiring 

that drivers enter remarks describing the 

reason for the amendment, requiring the 

amendment to be visible to safety 

officials and motor carrier back-office 

staff, and prohibiting drivers from 

making amendments after the RODS has 

been certified. Siemens and CPS 

opposed any alteration or annotation of 

EOBR data. According to CPS, a system 

should provide function keys to allow 

the driver to record events. Other 

vendors commented that drivers’

annotations or entries in the Remarks 

section would provide adequate 

documentation of non-driving time 

activities, trips of short duration, 

circumstances when a CMV may be 

stopped in traffic upstream of a crash, 

use of a CMV as a personal conveyance, 

and other situations. However, Siemens 

believes permitting any modification of 

recorded data would encourage 

falsifications. 


jlentini on PROD1PC65 with PROPOSAL2
2348 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

2.2 Should Drivers Be Allowed To 

Amend the Duty Status Record if the 

System Maintains Both the Original and 

Amended Records? 

As with their responses to the 

previous question, most of the 

commenters addressing this issue 

thought drivers should be allowed to 

amend the duty status record if the 

EOBR maintains both the original and 

amended records. However, several 

commenters opposed allowing drivers 

this privilege, while others raised 

questions without taking a stance. 

Four of the five motor carrier 

commenters took an affirmative 

position. Schneider believes such a 

provision would be necessary for an 

EOBR system to be workable, 

particularly in instances of EOBR 

malfunction or misreadings. J.B. Hunt 

favored allowing drivers to add on-duty 

not-driving time, requiring them to 

request company approval to reduce 

prior on-duty time entries, but not 

allowing amendments of driving time. 

Roehl Transport believes drivers should 

not be allowed to amend their HOS 

records while in transit, contending that 

only a supervisory motor carrier official 

should be allowed to amend a driver’s 

RODS. As noted under its response to 

the previous question, Greyhound 

supported allowing drivers to amend 

records. Greyhound suggested that 

drivers would have to review their 

electronic logs from fixed locations and 

carriers would have to provide a 

network of computer workstations. 

One owner-operator saw no need to 

allow drivers to amend records, 

contending that EOBRs should prompt 

for an entry at each change in vehicle 

status. Another supported the idea of 

allowing amendments by drivers. 

CHP and CVSA both recommended 

FMCSA consider a requirement for a 

permanent record of both original and 

amended entries. They acknowledged, 

however, that this could complicate 

enforcement because it would leave 

open the question of which version is 

accurate. 

Advocates supported allowing a 

driver to enter addenda to an EOBR 

record, but opposed the idea of EOBRs 

recording ‘‘a separate version of the 

RODS that has been manipulated by the 

driver.’’ With regard to non-driving 

time, it had no objection to a driver’s 

using a ‘‘supplementary electronic 

logbook’’ to enter non-driving work time 

and non-driving rest or end-of-duty-tour 

time. However, Advocates stressed this 

supplementary logbook should be 

matched against engine and GPS data 

for verification of compliance with the 

HOS rules. 

IBT recommended allowing drivers to 

amend the duty status record if the 

EOBR maintains both the original and 

amended record. However, like CHP 

and CVSA, IBT was concerned this 

approach could complicate compliance 

assurance processes. 

All but one of the vendors addressing 

this issue expressed qualified support 

for allowing drivers to amend the RODS 

generated by an EOBR. XATA said 

EOBRs could be designed to keep an 

original and amended copy of records or 

a single copy with an audit trail of the 

changes. Nevertheless, XATA 

recommended FMCSA limit drivers’

amendment of records. LinksPoint 

echoed XATA’s comments, adding that 

its system could flag instances when 

entered or amended data do not match 

a vehicle’s GPS travel history. 

Tripmaster described an EOBR using 

GPS data to record location, vehicle 

movement to determine the duty status 

of the driver (on-duty/driving or onduty not-driving), driver input to 

distinguish on-duty from off-duty status, 

and an internal time clock to record the 

time of each change in status. Provided 

such a system were in place, Tripmaster 

supported allowing a driver to alter 

‘‘clock in’’ and ‘‘clock out’’ time to 

correct legitimate errors. PeopleNet 

suggested FMCSA require drivers to 

enter remarks describing the reason for 

any change and to make any 

amendments visible to law enforcement 

through in-cab and back-office 

reporting. It also reminded FMCSA that 

drivers must enter hours worked for a 

non-motor-carrier entity as on-duty 

time. Qualcomm said that drivers 

should be able to correct non-driving 

duty status as long as an audit trail is 

maintained, but only before a driver 

certifies the correctness of the daily log. 

In contrast, CPS contended drivers 

should not be allowed to amend the 

duty status record. 

2.3 Should the Agency Maintain the 

Blanket Prohibition Against Drivers’

Amending RODS Generated by an 

AOBRD? 

As their comments to the previous 

questions indicated, most carriers 

supported allowing drivers to amend or 

annotate non-driving duty status 

records. 

The few drivers who responded to 

this question were divided. One said 

that no one should be able to change the 

data recorded by an EOBR, and that 

drivers would soon become familiar 

with EOBRs and no longer need to 

amend their entries. Another asserted 

FMCSA should remove the blanket 

prohibition, but did not explain his 

position. A third driver commented that 

allowing drivers to check HOS records 

leads to improved efficiency. One 

opposed allowing EOBR users to erase 

or change any data from EOBR memory, 

but proposed to allow amendments 

using preset entries from menus. 

IBT contended a blanket prohibition 

against amending records would lead to 

inaccurate records, which would be 

contrary to the goal of mandating EOBR 

use. 

Public Citizen, Advocates, and CVSA 

urged FMCSA to maintain its blanket 

prohibition against drivers amending 

records. Public Citizen stated that 

allowing manual entry of duty status 

and revision of records would 

effectively undermine the purpose of an 

automated recorder. It believes EOBRs 

should be designed to eliminate any 

need to amend records or enter duty 

status manually. 

CHP recommended against allowing 

drivers to amend records, but proposed 

allowing annotation of the records with 

comments. CHP believed the motor 

carrier should make the decision on 

whether its drivers may amend EOBR 

records. 

Most of the equipment providers 

favored allowing drivers to make 

amendments. XATA would allow a 

driver to amend a RODS to revise offduty time to on-duty. It stated that many 

edits are not critical because motor 

carriers using EOBRs audit and edit the 

RODS to ensure accuracy. XATA said 

owner-operators would have to use a 

service provider to process the data or 

purchase supporting software to edit 

and record changes. LinksPoint also 

recommended FMCSA remove the 

blanket prohibition on driver 

amendments, because it has required 

device providers to develop complex 

and expensive systems and discouraged 

carriers from adopting tracking 

technology. Tripmaster and Qualcomm 

asked FMCSA to reconsider the 

prohibition. Qualcomm pointed out that 

since there is no way to automatically 

detect non-driving duty status, there 

would be no net safety benefit to 

imposing severe restrictions on drivers’

correcting their RODS. PeopleNet said 

that this requirement would require 

motor carriers to have safety managers 

on call around the clock to revise 

records at a driver’s request. 

Nextel recommended FMCSA 

prohibit EOBRs that allow edits to be 

entered via the device. Nextel’s system, 

based on a wireless handset, would 

allow authorized management to make 

edits in the main office system and 

transmit the edited record back to the 

handset in near-real-time. As it noted in 

its responses to the other questions, CPS 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2349 

strongly believes that FMCSA should 

maintain the prohibition. 

Agency Response to Comments 

Concerning the Amendment of Records 

Some of the comments suggest there 

may be confusion regarding the terms 

‘‘edit,’’ ‘‘amend,’’ and ‘‘annotate.’’

FMCSA does not intend to allow edits 

or amendments that would erase duty 

status records, delete an on-duty-driving 

entry, or allow software-generated 

defaults to be used to mask on-duty 

driving or on-duty not-driving (ODND) 

time. 

One EOBR systems provider, 

PeopleNet, contacted FMCSA in 2002 

requesting guidance on interpreting 

§ 395.15(h)(2): ‘‘The driver must review 

and verify that all entries are accurate 

prior to submission to the employing 

motor carrier.’’ The vendor was 

concerned that any alteration of data 

would be prohibited under § 395.15(i)(3) 

and suggested a ‘‘ship’s log’’ approach, 

in which the driver would make a 

corrective entry and note the date, time, 

and location of the entry correction and 

the reason it was being made. These 

corrections would be flagged, and the 

original record would not be modified. 

FMCSA agrees with this approach 

because the original record would be 

retained and the annotation would be 

clearly delineated as such. This is 

consistent with Question 2 of the 

Regulatory Guidance for § 395.15, which 

states, ‘‘No. 395.15(i)(3) requires 

automatic on-board recording devices, 

to the maximum extent possible, be 

tamperproof and preclude the alteration 

of information collected concerning a 

driver’s hours of service. If drivers, who 

use automatic on-board recording 

devices, were allowed to amend their 

record of duty status while in transit, 

legitimate amendments could not be 

distinguished from falsifications 

* * *.’’

For an AOBRD designed and operated 

in compliance with § 395.15, or an 

EOBR designed and operated to comply 

with proposed § 395.16, FMCSA would 

retain the prohibition against any 

revision of on-duty driving records. 

Treatment of the electronic RODS 

reflecting non-driving duty status 

entries is discussed under the section 

concerning duty status categories. 

In response to CHP’s comment, we 

note that the Agency’s Regulatory 

Guidance to § 395.15 describes a 

procedure whereby the driver would 

submit a revised RODS page marked 

‘‘Corrected Copy,’’ and the motor carrier 

would retain both the original and 

corrected RODS pages. This would be 

similar to the ‘‘ship’s log’’ approach. 

In response to Advocates’ concern 

about verification of work and rest time 

periods, FMCSA refers to its 

Supplemental Notice of Proposed 

Rulemaking (SNPRM) on supporting 

documents (69 FR 63997, Nov. 3, 2004). 

In that document, FMCSA proposed to 

(1) add definitions for the terms 

‘‘supporting document,’’ ‘‘employee,’’

and ‘‘driver’’ to § 395.2, and provide 

examples of supporting documents; (2) 

add new § 395.10 entitled ‘‘Systematic 

verification and record retention’’; (3) 

modify the record retention 

requirements in §§ 390.29 and 390.31; 

and (4) clarify the motor carrier’s 

responsibility to monitor drivers’

compliance with the HOS regulations 

and verify the accuracy of drivers’

RODS. Among other things, the SNPRM 

would explicitly require the motor 

carrier to have a self-monitoring system 

to verify the accuracy of the driver’s 

entries for times and locations for each 

working day on each trip as well as the 

accuracy of mileage for each trip. The 

Agency anticipates publishing a final 

rule on supporting documents in the 

near future. 

FMCSA agrees with the commenters 

that to facilitate motor carrier review of 

EOBR records, it will be necessary to 

clearly mark any revisions of duty status 

entries as amendments. FMCSA would 

continue to prohibit any amendment of 

on-duty driving status. Any annotation, 

including an entry in the Remarks 

section, would need to carry the date 

and time the entry was made. This is 

particularly important to flag 

annotations made after the period of 

time described by the duty status entry. 

FMCSA agrees with Advocates’

comment about recording non-driving 

duty status information, except that we 

believe this information would be more 

appropriately included in the Remarks 

section of an EOBR record than in a 

‘‘supplemental electronic logbook.’’ In 

response to Greyhound, we note that 

drivers have many options available to 

review their records without using 

carrier-specific workstations sited at 

fixed locations. AOBRDs and other onboard devices commonly record data 

locally—that is, on the device itself. If 

a motor carrier adopted an operational 

model that required drivers to log in to 

a central computer, use of contemporary 

database software, communications, and 

security protocols allows 

communication via any workstation 

with access to the Internet. 

FMCSA agrees with Greyhound’s 

concern about the need to correct errors 

when a new driver takes over the 

vehicle after the previous driver has 

forgotten to log off. We are therefore 

proposing to require a revision to the 

performance specification at § 395.15 to 

allow drivers to amend a record 

immediately before and after a trip or 

work period. Drivers would be 

permitted to annotate a record (such as 

by adding remarks), so long as the entry 

is time stamped and indicates who 

made it. The driver could make such an 

annotation only before submitting the 

day’s record to the motor carrier. 

3. Duty Status Categories When the 

CMV Is Not Moving 

If a Driver Is Away From a Parked CMV 

But Has Not Entered a Change in Duty 

Status Immediately Upon Stopping the 

Vehicle, How Might the Driver Correct 

the Entry? 

Some commenters contended an 

EOBR should automatically switch to 

ODND status either immediately after or 

shortly after a driver stops the vehicle. 

Others said that EOBRs should prompt 

drivers to enter a change of duty status 

when the driver stops the vehicle. A few 

asserted that a CMV should not start 

until the driver’s duty status is up-todate. As to correcting an erroneous 

record, some commenters believe the 

driver should get management’s 

approval first, while others said drivers 

should be able to make the correction. 

One owner-operator suggested the 

EOBR should set the duty status to 

ODND within a predetermined amount 

of time after stopping the vehicle, and 

neither the driver nor the carrier should 

be able to change that entry. Another 

suggested an EOBR system should 

include an alarm linked to the parking 

brake to remind the driver to record a 

duty change. 

J.B. Hunt echoed the comment 

recommending the EOBR default to 

ODND after a specified time. An 

employee driver wishing to correct the 

record would be required to get 

management’s approval. In contrast, 

Schneider did not think an EOBR 

should default to ODND if a driver fails 

to enter a change of duty status; instead, 

the driver should be given 30 minutes 

to correct the record retroactively. 

Roehl Transport suggested allowing 

drivers to correct specific duty status 

errors, adding that the original and 

revised records should both be retained 

and the motor carrier should note and 

approve them. Roehl believes, however, 

that drivers should not be allowed to 

change driving time. Another motor 

carrier, referencing the ‘‘driver’s own 

handwriting’’ provision of the current 

regulation, remarked it would not be 

practical to have printers attached to 

EOBRs in long-haul or medium-haul 

operations, and suggested drivers be 

allowed to make duty status changes 


jlentini on PROD1PC65 with PROPOSAL2
2350 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

electronically provided the EOBR 

maintains an audit trail. 

IBT believes this question illustrates 

that EOBRs would still require driver 

input for duty status changes. IBT said 

this continued reliance on driver input 

would not achieve the goal of 

eliminating fraudulent logbook entries, 

the primary purpose of using an EOBR. 

CHP said EOBRs could be designed to 

alert drivers if they inadvertently 

omitted a manual duty status change. It 

also suggested EOBRs could be designed 

to prevent vehicle engine start-up unless 

all EOBR entries are current and 

permanently recorded. CHP would limit 

the time for correcting entries to the 

time of the last recorded change of duty 

status and require drivers to explain the 

oversight. CVSA expressed similar 

views. 

Advocates opposed allowing an EOBR 

to default to ODND, preferring a 

‘‘standby’’ mode with no data entry. 

Public Citizen also asserted ‘‘the Agency 

must favor recorders that can accurately 

record non-driving duty status, rather 

than allow drivers to amend records.’’

As an example, it cited EOBRs that 

signal when driver input is needed, 

contending this would reduce the need 

for later revisions. 

According to XATA, most EOBRs 

currently in use allow the motor carrier 

to select a default duty status to be 

entered if a driver steps away from a 

parked CMV without entering a change 

in duty status. The EOBR could prompt 

the driver for input when he returns for 

information on his status after the 

vehicle is parked. LinksPoint’s comment 

was similar: Although the system would 

rely on driver input, it would still 

eliminate the ability of a driver to drive 

while another status is chosen. 

Qualcomm stated that the default 

duty status when a vehicle is not 

moving should be ODND. It asserted 

that, under certain circumstances, 

drivers should be able to make changes 

to any records of non-driving status 

directly on the EOBR; the changes 

should be allowed only before 

certification of a daily log; and the 

EOBR should maintain an audit trail of 

the original and edited data accessible 

to both the motor carrier and 

enforcement officials. Siemens 

recommended EOBRs automatically 

switch to ODND after a preset interval 

when the CMV is parked. In Siemens’

experience, drivers quickly learn how to 

switch their duty status to off-duty or 

sleeper berth when necessary. 

Agency Response 

Many commenters’ statements reflect 

the current state-of-the-practice of HOS 

monitoring, while some would expand 

the requirements to have the EOBR 

prompt the driver to enter information 

when it is apparent his or her duty 

status is changing (e.g., when the 

vehicle is parked). FMCSA agrees with 

the latter approach, as reflected in this 

proposed rule. Based on the comments 

as well as on extensive research 

findings, FMCSA recognizes that EOBRs 

can accurately measure driving time 

only when a CMV is moving. 

FMCSA proposes that the ‘‘default’’

status for an EOBR be ODND when the 

vehicle is stationary (not moving and 

the engine is off) for 15 minutes or 

more. When the CMV is stationary and 

the driver is in a duty status other than 

the ODND default setting, the driver 

would need to enter the duty status 

manually on the EOBR. 

The proposed performance 

requirements of § 395.16 add a 

provision for automatically recording 

the location of the CMV. The Agency 

believes this proposed requirement 

strikes an appropriate balance to 

improve the accuracy and reliability of 

ODND and off-duty information without 

intruding unnecessarily upon the 

privacy of the driver. 

Drivers would still be required to 

record the location of duty status at each 

change of duty status, as currently 

required under §§ 395.8 and 395.15. 

FMCSA does not propose to specify the 

process (e.g., entering data via a 

keyboard or drop-down menus) for 

accomplishing this but would leave the 

implementation to the EOBR 

manufacturers. 

4. Ensuring Drivers Are Properly 

Identified 

Many commenters discussed how 

drivers could be properly identified. 

Some favored using a password or PIN 

number for identification, while others 

believe these methods would not 

adequately protect drivers against fraud 

and falsification. Technologies 

advocated by commenters include smart 

cards and biometrics, although some 

were concerned that biometric 

technology would be too expensive or 

unreliable. 

The National Private Truck Council 

(NPTC) maintained that before requiring 

EOBRs, FMCSA must ensure the devices 

will accurately identify drivers and be 

resistant to tampering. 

Advocates strongly recommended 

implementation of systems of codes or 

computer activation: ‘‘No system of 

passwords or smart cards alone would 

deter and prevent attempts at 

unauthorized access and operation of a 

vehicle. Only unique bio-identifying 

driver characteristics can provide 

sufficient corroboration of identity for 

authorized access.’’ Public Citizen also 

supported use of biometric technology 

such as fingerprint readers, and stated 

the driver should be required to log into 

such a system before the CMV could be 

started. 

CVSA said driver data must follow a 

driver from vehicle to vehicle as well as 

be auditable and verifiable at roadside. 

It stressed the value of redundancy, 

suggesting that various methods of 

driver identification and verification 

could be used in combination. 

ABF Freight System, Inc., a less than 

truckload (LTL) carrier, uses a slip-seat 

operation, in which drivers are not 

assigned to specific power units. This 

approach is common among LTL 

carriers. ABF currently uses a handsettype device providing time and location 

data in its city pick-up and delivery 

operations and asks FMCSA to consider 

approving such portable EOBRs, which 

could be assigned to specific drivers 

instead of vehicles. A towing company 

also suggested a driver-oriented 

approach, noting its drivers use two or 

three different vehicles per shift. U.S. 

Telecom Association offered a similar 

comment. 

IBT and J.B. Hunt were among several 

commenters noting the need for the 

HOS record to follow drivers who 

operate several CMVs daily, work for 

more than one motor carrier, or operate 

as team drivers. J.B. Hunt asserted that 

use of smart cards would be impractical 

in an industry with high driver 

turnover. Both commenters asserted that 

issuing drivers a standardized Federal 

identification card, such as the 

Transportation Workers Identification 

Credential (TWIC) under consideration 

by the Department of Homeland 

Security, would allow them to carry 

their data from motor carrier to motor 

carrier. This would also address the 

needs of drivers who work part-time at 

multiple carriers. Of course, EOBR 

manufacturers would need to ensure 

their devices accept the standardized 

card and identification protocols. 

J.B. Hunt said that, barring use of a 

standardized card, PIN numbers would 

be the next-best method of 

identification. Wireless communications 

systems could validate the identity of 

the driver against dispatch information. 

J.B. Hunt stated that biometric 

identification systems likely will be 

cost-prohibitive until they are generally 

accepted in markets unrelated to 

transportation. Schneider also 

commented that biometric technology 

would provide the greatest level of 

assurance about the driver’s identity but 

noted it is significantly more expensive 

than passwords or smart cards. A 

private citizen also favored use of 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2351 

biometrics for identification and as an 

antitheft device. 

United Motorcoach Association 

(UMA) claimed there would be no way 

to ensure the integrity of EOBR data, 

including driver identification. UMA 

cited the lack of a national standard 

biometric identifier for the commercial 

driver’s license. It also contended that 

smart cards would need to rely on 

driver identity verification at a much 

higher level than has been implemented 

to date. Greyhound also emphasized the 

criticality of properly identifying the 

driver. While supporting biometric 

identifiers in principle, it was 

concerned about high costs. In addition, 

Greyhound opposed a system that 

would preclude a vehicle from 

operating unless the driver were 

identified, as it would hinder 

maintenance operations. 

CHP suggested using several methods 

of data transfer and driver 

identification, singly or in combination, 

including smart cards, PIN numbers, 

and associated communications 

systems. CHP described a card capable 

of recording all pertinent data about the 

driver that would be inserted and 

removed from a reader installed in each 

vehicle. It also described a hypothetical 

EOBR system using wireless 

communication methods to transfer data 

and ‘‘biological positive driver 

identification.’’

Vendors suggested various methods to 

identify drivers: Passwords or PINs, 

smart cards, and biometric technology. 

Scanware commented on the difficulties 

of designing EOBRs to handle teamdriving situations. 

Agency Response 

FMCSA recognizes the diversity of 

motor carrier operations and 

acknowledges commenters’ concerns 

about the potential costs of advanced 

driver identification methods such as 

biometric identifiers and smart cards. 

Various approaches to identification 

currently exist, while others are being 

developed, and carriers may have 

different needs and standards regarding 

an acceptable level of risk. Rather than 

limiting carriers’ ability to adopt 

technically advanced systems or 

imposing duplicative requirements on 

carriers desiring more secure systems, 

FMCSA proposes to adopt a general 

requirement that driver identification be 

part of the EOBR record, without 

prescribing a specific approach. An 

EOBR would require the driver to enter 

self-identifying information (e.g., user 

ID and password, PIN numbers) or to 

provide other identifying information 

(e.g., smart card, biometrics) when he or 

she logs on to the EOBR system. 

In response to commenters who 

suggested that FMCSA require use of the 

Department of Homeland Security’s 

proposed TWIC to identify the CMV 

driver and possibly serve as a portable 

data record, FMCSA does not presently 

anticipate using TWIC for EOBR HOS 

data storage. There are several reasons 

for this. While the amount of memory 

required has yet to be specified, it is 

expected to be less than what would be 

needed for an EOBR application. 

Furthermore, FMCSA acknowledges 

several commenters’ concerns about 

driver and motor carrier privacy; some 

information contained on the TWIC 

would not be relevant to an HOS record. 

5. Reporting and Presentation 

(Display) Formats 

5.1 Visual Record 

Most comments on reporting formats 

focused on visual displays available to 

drivers and roadside enforcement. 

Commenters favored standardized 

visual displays because they would 

make EOBRs easier for both drivers and 

law enforcement officers to learn to use. 

Commenters generally supported a 

potential requirement for a 

‘‘standardized’’ EOBR display showing 

the driver’s current duty status and also 

highlighting when noncompliance 

occurred. Commenters also favored 

providing methods for enforcement 

officials to download archived HOS data 

records. PeopleNet stated, ‘‘EOBR 

manufacturers, carriers, and law 

enforcement should work together to 

develop a user-friendly reporting 

standards for all parties using or 

reviewing EOBRs.’’ CVSA asserted that 

‘‘* * * standardized screen-based 

digital displays should be readily 

accessible from inside or outside the 

vehicle, and should provide summary 

and complete information upon 

demand.’’

Agency Response 

There may be a fine line between 

allowing flexibility in complying with a 

performance specification and requiring 

safety officials to be proficient in 

understanding many types of displays. 

The fundamental need is to provide a 

clear record of the sequence and 

progression of duty status. 

Although the majority of the proposed 

provisions are performance based, 

FMCSA must consider the needs of 

people who will review duty status 

records and who are accustomed to 

working with the traditional graph-grid 

format. Both to address drivers’

concerns and allay concerns that EOBRs 

could be difficult to monitor, FMCSA 

proposes a visual output file providing 

a graph-grid format. FMCSA recognizes 

this requirement could be difficult to 

apply to some EOBR devices because of 

the limited size or character density of 

the displays. We intend to provide as 

much flexibility as possible to EOBR 

manufacturers by recognizing 

alternative methods to enable display of 

the information. 

5.2 Data Interchange Standards for 

Hardwired and Wireless 

Communications 

Some commenters asserted that the 

RS–232—the serial communication 

standard required in § 395.15(b)(3)—is 

outdated. Siemens, IBT, and others 

noted that data communications 

technologies, formats, and protocols are 

evolving rapidly. Several commenters 

favored an open standard. For example, 

the Minnesota Trucking Association 

recommended development of ‘‘an 

open-architecture system that will allow 

transmittal of data between motor 

carrier, driver, law enforcement and 

various other accountable entities.’’

Some commenters suggested avoiding 

the issue of data interchange with 

outside entities by requiring HOS 

records to be uploaded to centralized 

file servers for query via the Internet or 

downloaded to the CMV for a safety 

official’s review. 

Agency Response 

There is a need to set forth 

performance standards to support two 

types of communications: EOBR-tomotor-carrier and EOBR-to-roadsideenforcement-official support systems. 

FMCSA proposes an ASCII, commadelimited, flat-file format for the EOBR 

data output record, and multiple 

industry-standard hardwired and 

wireless communications protocols. The 

technical specifications for the data files 

would be provided in a new Appendix 

A to Part 395. 

6. Audit Trail/Event Log 

Commenters generally agreed on the 

necessity for maintaining an audit trail. 

Some commenters recommended using 

location data (GPS or other) to compare 

against the EOBR data, but others 

thought this would be cost-prohibitive. 

A few suggested a requirement for a 

‘‘smart chip’’ in a driver’s ID card or 

license as one way to provide an 

auditable record that would verify the 

identity of the driver operating the 

CMV. Some commenters raised 

concerns about tradeoffs between 

allowing use of lower cost 

communications modes and adequately 

monitoring the systems and the data and 

information they contain. 


jlentini on PROD1PC65 with PROPOSAL2
2352 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

PeopleNet and Qualcomm 

recommended the audit trail be 

maintained at a central office rather 

than onboard the vehicle. 

In response to the ANPRM question 

about the system providing a gateway 

for electronic or satellite polling of 

CMVs in operation, four commenters 

opposed such polling while one carrier 

inquired what the interval between 

pollings would be. 

Commenters supported continuing 

the requirement to use a RODS if an 

EOBR is not functioning. One 

commenter suggested a maximum time 

limit of 14 days. 

Agency Response 

FMCSA proposes a general 

requirement for auditability based upon 

the text of Section F of the ANPRM 

preamble (69 FR 53386 at 53392, Sept. 

1, 2004): 

An audit trail must reflect the driver’s 

activities while on duty and tie them to the 

specific CMV(s) the driver operated. Its 

design must balance privacy considerations 

with the need for a verifiable record. The 

audit trail should automatically record a 

number of events, including (1) Any 

authorized or unauthorized modifications to 

the duty status records, such as duty status 

category, dates, times, or locations, and (2) 

any ‘‘down’’ period (e.g., one caused by the 

onset of device malfunction). In addition, the 

system should provide a gateway for 

electronic or satellite polling of CMVs in 

operation, or for reviewing electronic records 

already downloaded into a central system. 

This capability would permit reviewers to 

obtain a detailed set of records to verify time 

and location data for a particular CMV. The 

presentation should include audit trail 

markers to alert safety officials, and 

personnel in the motor carrier’s safety 

department, to records that have been 

modified. The markers would be analogous 

to margin notes and use highlighted code. 

FMCSA would continue to focus on a 

performance-based regulation, while 

providing guidance to develop workable 

and verifiable record generation and 

recordkeeping systems. Regardless of 

the communications modalities 

(satellite or terrestrial) and the method 

used to synchronize the time and CMVoperation information into an electronic 

RODS, we would require EOBR records 

to record duty status information 

accurately and to maintain the integrity 

of that information. 

This NPRM includes a requirement 

that EOBR records—both original 

entries and any revisions—be viewable. 

The viewable record would encompass 

any modifications from the original 

entries, the identities of people who 

entered and amended data, and the date 

and time the original entries and any 

amendments were made. 

As discussed earlier in this document, 

FMCSA proposes requiring drivers to 

enter identifying information but will 

not specify the use of a particular 

technology (such as removable smart 

cards or biometric identifiers). 

With regard to a ‘‘gateway’’ for 

satellite polling of CMVs in operation, 

FMCSA would require that the HOS 

information be available immediately 

upon request by a roadside safety 

official. Under FMCSA’s standard 

operating procedures, those records 

would also need to be made available 

upon request by a safety official 

performing a CR, safety audit, or safety 

investigation. We propose to require the 

system records to be as accurate as those 

from systems that are integrally 

synchronized with the CMV’s 

operations. Specifically, EOBR data for 

CMV location would need to provide an 

auditable record of the vehicle’s 

location within +/¥1 percent distance 

accuracy on a daily basis. 

7. Ability To Interface With Third-Party 

Software for Compliance Verification 

Several commenters noted the 

potential benefits and limitations of 

using third-party systems. Although 

third-party systems could provide an 

extra layer of compliance verification, 

the variety of systems on the market and 

their limited current usage by small 

motor carriers could present obstacles. 

These commenters recommended 

FMCSA adopt a standard method and 

format for data transfer, such as 

Extensible Markup Language (XML). 

Most vendor commenters said that 

third-party compliance verification 

software would not be necessary for 

EOBR systems, particularly if vehicle 

location information were derived from 

GPS data. Qualcomm noted, ‘‘Currently 

available third-party compliance tools 

audit the driver’s RODS [paper record] 

by using supporting document 

information * * * such as fuel and toll 

receipts and miles driven.’’ Motor 

carriers reported mixed experience with 

third-party software. Two respondents 

have developed their own systems for 

compliance verification; others cited 

lack of an available interface with 

current auditing software and concerns 

about the accuracy of ‘‘point-to-point’’

software. Qualcomm urged FMCSA to 

establish performance standards for 

EOBR-collected data. CVSA 

recommended the Agency develop a 

self-certification program for third-party 

vendors. 

Several commenters, in contrast to 

their responses to the previous question, 

indicated carriers have used third-party 

software for HOS review and auditing or 

have experience with dispatch and 

routing software packages. One industry 

group expressed concerns about costs to 

small motor carriers. 

Agency Response 

In keeping with our performancebased approach to this rulemaking, 

FMCSA proposes that EOBRs be 

required to provide output data in a file 

format described in an appendix to the 

proposed regulation (new Appendix A 

to Part 395). We will not propose a 

requirement for compatibility with 

specific third-party software. 

8. Verification of Proper Operation 

Many commenters supported a 

requirement for EOBRs to perform selftests and internal monitoring and to 

notify drivers, dispatchers, and roadside 

enforcement officials of device failures. 

IBT stated that a system ‘‘must maintain 

a record of and report out all 

malfunctions, calibrations, and be 

capable of performing self-tests on 

demand.’’ CPS considered this feature 

unnecessary. 

Several commenters asserted that 

drivers should be able to verify EOBR 

operation and suggested various 

methods. ATA pointed out that drivers, 

supervisors, or safety officials could 

require different levels of verification. 

Qualcomm suggested that determination 

of system failure should not be 

restricted to on-board data. In contrast, 

Roehl suggested the EOBR should 

generate an electronic audit on demand, 

with past records made available by the 

motor carrier. Siemens suggested that an 

EOBR be required to display the results 

of its last calibration check. PeopleNet 

said an EOBR should provide a current 

duty status summary, as well as a 

summary of the last certified 7, 8, or 14 

days’ worth of records. 

Agency Response 

FMCSA believes that having a current 

picture of the operational status of an 

EOBR will increase the confidence of 

drivers, motor carriers, and safety 

officials that the device is performing 

properly. Therefore, the NPRM includes 

a requirement for EOBR self-tests and 

recording of successful and 

unsuccessful results. The CMV driver or 

motor carrier official would be required 

to initiate a power-on self-test at the 

request of a motor carrier safety official. 

FMCSA also would require motor 

carriers to obtain and retain records of 

EOBR initial calibration, as well as any 

recalibrations necessary after EOBR 

repair or after any CMV repair that 

could affect the recording of distance 

traveled. We would anticipate 

conducting detailed audits of EOBR or 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2353 

support system performance during CRs 

rather than at roadside. 

FMCSA intends to require motor 

carriers subject to an EOBR remedial 

directive to accomplish timely repair or 

replacement of a malfunctioning EOBR, 

without placing the driver in an 

untenable position. Consistent with 

FMCSA’s proposed requirement for the 

CMV driver to submit records no more 

than 13 days after completion, and the 

continuing requirement that the driver 

have a supply of blank paper RODS 

forms to record duty status and related 

information for the duration of the 

current trip, we would require a 

malfunctioning EOBR to be repaired or 

replaced within 14 calendar days. 

Drivers would be required to keep 

handwritten RODS until the EOBR is 

repaired or replaced. Carriers using 

EOBRs voluntarily would likewise be 

required to maintain paper RODS 

during any period an EOBR is 

malfunctioning, but would not be 

subject to the 14-day time limit within 

which to accomplish repair or 

replacement of the EOBR. 

9. Testing and Certification Procedures 

Most commenters, except 

manufacturers, favored certification by 

FMCSA. Most manufacturers believe 

FMCSA should continue to allow 

manufacturers to self-certify their 

EOBRs and support systems. The few 

comments on maintaining a list of 

certified products generally opposed 

such a list because of concerns it could 

discourage the introduction of new 

products. Generally, the EU database 

specification received low marks from 

commenters. 

Siemens said, ‘‘There is a basic 

difference in the attitude of transport 

companies towards on-board-computers 

(OBC) used for fleet management and 

EOBRs designed to record personal 

activities of drivers as basis for 

enforcement officers to verify 

compliance with hours of duty 

regulation: OBCs are likely to be treated 

carefully whereas EOBRs are more 

likely to be subject to tampering.’’

Nextel advised FMCSA to consider a 

requirement for hardware and software 

to be designed and tested in accordance 

with existing protocols. 

9.1 Who Should Perform Certification 

Tests? 

Many commenters favored having 

FMCSA establish criteria, with testing 

conducted by FMCSA in conjunction 

with CVSA, NHTSA, or other parties. 

Others preferred manufacturer selfcertification. CVSA stated, 

‘‘Governmental or third-party 

verification and certification of EOBRs 

presents proprietary concerns, add 

costs, and provides limited value 

added.’’

Advocates preferred a Federal role: 

‘‘Without either direct Federal 

certification or Federal criteria for 

accepting certification affidavits, the 

Federal government has no way of 

securing threshold manufacturer 

compliance.’’ Tripmaster favored 

FMCSA certification, provided the 

appropriate staffing and funding 

resources were available. A motor 

carrier also stated FMCSA should be 

responsible for certification. A driver 

contended that any third-party 

involvement could lead to fraud. 

Several commenters recommended 

that independent laboratories conduct 

testing for manufacturers, noting the 

extensive use of third-party assurance 

systems in other settings. Others 

expressed no preference for the type of 

entity performing the testing, but 

emphasized it must be done before an 

EOBR enters the marketplace. ATA 

pointed out that the appropriate entity 

to conduct the test ‘‘is dependent upon 

what is required to be certified.’’

9.2 Should FMCSA Continue To 

Allow Manufacturer Self-Certification? 

Some commenters opposed 

continuing the status quo, citing drivers’

heavy reliance on the devices and the 

burden on carriers associated with 

determining which systems comply 

with the regulations. As Tripmaster 

explained, ‘‘The current system of selfcertification is open to interpretation 

and dishonesty and pushes the 

responsibility of determining a system’s 

compliance on to roadside inspectors, 

auditors, and carriers.’’ J.B. Hunt added 

that carriers ‘‘should not be placed in a 

‘buyers beware’’ situation when making 

such a large investment.’’ PeopleNet 

stated it self-certifies but works closely 

with FMCSA to ensure regulatory 

compliance. Some commenters would 

favor self-certification if FMCSA 

imposed requirements on manufacturers 

and either verified the manufacturer’s 

compliance or conducted spot checks. 

ATA asked whether FMCSA had 

concerns based on the experience of 

other self-certification programs. 

Other commenters favored continuing 

self-certification. They believe this 

would keep the process manageable and 

that manufacturers are in the best 

position to develop compliance tests. 

9.3 Should FMCSA Develop a List of 

Approved Devices? 

Many commenters favored this 

concept, especially if patterned after 

NHTSA’s Conforming Products List. 

EOBR manufacturers would benefit by 

being able to supply customers with a 

certification number to prove 

compliance, and carriers could be held 

accountable for using nonconforming 

products. A motor carrier suggested 

developing two lists, one for CMVs 

equipped with an ECM and the other for 

CMVs without electronics. However, a 

few commenters thought FMCSA 

should not be relied upon to provide a 

list of certified devices because of the 

costs and the likely delay. 

9.4 Should FMCSA Adopt the EU 

Electronic Tachograph Design 

Specification? 

Most commenters stated that adopting 

the EU design specifications would be 

too complex and costly. These 

commenters argued instead for 

performance requirements in tandem 

with market-driven flexibility in EOBR 

design and delivery. A few commenters 

asserted adopting the design 

specifications would not be 

prohibitively costly, but offered no 

rationale for that conclusion. ATA 

recognized the fundamental differences 

between the EU design-oriented 

standard and a performance-based 

standard, noting that the former would 

add significant text to the FMCSRs. J.B. 

Hunt suggested FMCSA consider 

methods to ‘‘improve uniformity and 

portability of carrier support 

technology, including calibration and 

diagnostics. This would permit carriers 

to operate a mixed fleet of EOBR units 

without being required to have 

redundant proprietary diagnostic and 

calibration equipment and thus should 

increase competition in the EOBR 

market and reduce costs.’’ It believes 

specific aspects of the EU regulations, 

among them calibration, diagnostics, 

and testing, could provide guidance to 

FMCSA in developing its EOBR 

regulations. IBT believes FMCSA should 

discontinue reliance on performance 

standards and establish detailed 

specifications similar to the EU 

specifications. 

Agency Response 

FMCSA proposes to continue the 

requirement for manufacturers to selfcertify AOBRDs and EOBRs. The 

alternative would be to have an 

independent entity certify each EOBR as 

well as any support systems. Based on 

the Agency’s experience in developing 

procedures for device self-certification 

(‘‘Guidelines for Development of 

Functional Specifications for 

Performance-Based Brake Testers Used 

to Inspect Commercial Motor Vehicles’’

[65 FR 48799, Aug. 9, 2000]), as well as 

our knowledge of the challenges faced 

by the European Union in developing 


jlentini on PROD1PC65 with PROPOSAL2
2354 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

and implementing its type-certification 

program for the new digital tachograph, 

we believe this alternative would be far 

too costly, burdensome, and timeconsuming for FMCSA. 

FMCSA and its predecessor agencies 

have the benefit of approximately 20 

years’ experience with AOBRDs and 

alternative methods for recording and 

reporting HOS information. Although 

FMCSA receives notice of deficiencies 

with certain AOBRDs, we address these 

on a case-by-case basis and reach 

satisfactory resolution with the device 

manufacturers. 

We believe prospective EOBR users 

would be motivated to demand that the 

devices record duty status information 

accurately. Many EOBR manufacturers 

contact FMCSA for assistance in 

understanding the HOS regulations. 

Some have requested, and received, 

formal regulatory guidance concerning 

new features to ensure compliance 

while reducing the need to enter 

information into the devices—for 

example, the use of location-description 

algorithms in place of a location code 

sheet. Drivers, carriers, stakeholders, 

and citizens are quick to inform FMCSA 

about any motor carrier’s attempts to 

obtain an economic advantage through 

collection of fraudulent HOS records. 

We take these complaints very seriously 

and address them through timely CRs. 

In sum, FMCSA considers it 

appropriate to continue its requirement 

for AOBRD/EOBR self-certification. This 

NPRM proposes the EOBR performance 

criteria that manufacturers would 

follow. We would continue to require 

manufacturers to perform tests to ensure 

their EOBRs and support systems 

comply with these criteria. 

We propose this approach for three 

reasons. First, it makes the EOBR 

manufacturer—which has the most 

knowledge about its hardware and 

software design—responsible for 

compliance with the Agency’s 

performance criteria. Second, it 

responds to the overall excellent history 

of AOBRD/EOBR compliance with 

FMCSA requirements. Third, it allows 

FMCSA to devote its complianceassurance resources to those rare 

situations in which motor carriers or 

drivers misuse EOBRs or the records 

they generate. Based on our 20-year 

history of working with AOBRD/EOBR 

manufacturers and motor carriers using 

these devices, we believe a more 

complex, comprehensive, and costly 

certification program could be 

marginally more effective, but at a 

disproportionately higher cost. 

Finally, we would not maintain a list 

of devices self-certified by 

manufacturers as complying with the 

Agency’s requirements. Although such a 

list could potentially be useful for 

informational purposes, it also would 

need to be continually updated to reflect 

accurately the latest makes and models 

of EOBR devices and systems. The 

creation and upkeep of such a list 

would lie outside the Agency’s expertise 

and require the expenditure of 

significant resources. 

10. EOBR Maintenance and Repair 

Because several questions under this 

heading were similar, they are 

summarized for brevity. Most 

commenters responding to the first two 

questions, concerning automatic capture 

of malfunction event data in EOBR 

memory, asserted that all, or nearly all, 

malfunction events could be captured in 

EOBR memory. IBT supported making 

malfunction data accessible to 

enforcement personnel. Most 

commenters thought EOBRs should 

have minimal maintenance 

requirements. 

10.1 Are Current Maintenance and 

Calibration Regulations Adequate? 

The United Motorcoach Association 

was concerned EOBR repair 

requirements could disrupt passenger 

service. Tripmaster stated the current 

regulations concerning EOBR/AOBRD 

maintenance and calibration are 

sufficient because they require 

maintenance and calibration according 

to manufacturer’s specifications, adding 

that EOBR maintenance should be 

performed in the same manner as any 

other safety system on a CMV. Other 

commenters agreed, asserting that the 

manufacturer should be responsible for 

EOBR compliance. Some supported a 

requirement for work to be performed 

by an approved source, but there were 

differences of opinion as to whether 

repair stations should be certified by 

FMCSA, the manufacturer, or both. 

PeopleNet recommended that certified 

vendors and carriers continue to have 

the ability to repair units independently 

of Agency oversight. Advocates said that 

FMCSA and NHTSA need to monitor 

EOBR repair facilities ‘‘to ensure that 

repairs are being done properly and to 

detect any fraudulent manipulation of 

EOBR recordation capabilities and the 

accuracy of captured data. Such 

oversight can be based on a system of 

self-certification coupled with Agency 

random inspections of facilities * * *.’’

Commenters disagreed on the need for 

recalibration. Siemens pointed out that 

certain changes in vehicle parameters, 

such as different tire sizes, motors, or 

gearboxes, could require EOBR 

recalibration. CPS maintained that 

solid-state electronic devices would not 

need recalibration. 

10.2 Documentation for Installation, 

Repair, and Recalibration 

Most commenters agreed installation, 

repair, and recalibration activities 

should be documented, and that 

FMCSA should have access to those 

facilities and documents. However, 

opinions differed on who should 

maintain the records. Several 

commenters believe the documentation 

should be maintained by the technician 

performing the work, while others 

consider the motor carrier responsible. 

TCA was concerned about calibration 

and performance standards for EOBRs; 

who would be responsible for EOBR 

calibration; and whether the driver or 

the motor carrier would be cited if an 

EOBR were found to be out of 

calibration. 

Agency Response 

The comments suggest that the 

current requirements for maintenance 

and recalibration of the devices in 

accordance with the manufacturer’s 

specifications are producing the desired 

outcomes. As noted in the Agency 

response to comments on testing and 

certification procedures, we generally 

do not interact directly with EOBR 

manufacturers or system providers 

unless potential noncompliance 

situations are brought to FMCSA’s 

attention. Additionally, Agency 

resources would not permit 

development of a comprehensive 

oversight program on EOBR repair 

facilities, nor does FMCSA have the 

legislative authority to undertake such a 

program. 

In response to commenters’ assertions 

that nearly all malfunctions could be 

captured in EOBR memory, FMCSA 

notes that although a sudden loss of 

power might not be recordable as an 

‘‘event,’’ the data on the EOBR record 

should be self-explanatory. 

In response to comments on 

maintenance and recalibration records, 

FMCSA would treat those records much 

like other vehicle repair and 

maintenance records. The motor carrier 

would be responsible for maintaining its 

EOBRs. In answer to TCA’s comment, 

the imposition of a penalty or fine 

would depend upon the specific 

circumstances of the violation. 

Finally, as noted in the Agency 

response to comments on verification of 

proper operation, FMCSA proposes to 

require that malfunctioning EOBRs used 

by carriers subject to the proposed 

Remedies provisions be repaired or 

replaced within 14 days. During the 

time an EOBR is not functioning and a 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2355 

spare device is not available, the Agency 

would continue to require preparation 

of a paper RODS. The latter requirement 

would also apply to carriers using 

EOBRs voluntarily. 

Therefore, FMCSA proposes to apply 

the provisions of the current AOBRD 

regulation, both by requiring EOBRs to 

record malfunction events and by 

requiring recalibration and repair. We 

would clarify that the motor carrier is 

responsible for producing maintenance 

records (whether prepared by the motor 

carrier or a third party) upon demand. 

See proposed §§ 385.511(c) and 

395.16(p). 

11. Development of ‘‘Basic’’ EOBRs To 

Promote Increased Carrier Acceptance 

Commenters were divided over 

whether FMCSA should develop 

specifications for a single type of EOBR 

or a family of EOBRs ranging from 

minimally compliant to more 

sophisticated devices. Commenters 

favoring a single standard, among them 

CPS, argued that a provision allowing 

the use of ‘‘basic’’ EOBRs by certain 

categories of carriers could provide 

these carriers with a competitive 

advantage. Others supported a more 

inclusive approach under which 

FMCSA would issue FMCSR 

specifications for a minimally compliant 

EOBR yet allow or encourage use of 

devices with more advanced 

capabilities, such as GPS and wireless 

communications. 

Opinions on potential requirements 

for minimally compliant EOBRs 

generally focused less on recommended 

specifications than on what features to 

exclude. Three vendors, PeopleNet, 

Nextel, and LinksPoint, recommended 

that a ‘‘basic’’ EOBR not be integrated to 

receive data from the CMV’s engine or 

other systems. PeopleNet added that a 

basic EOBR of this description would be 

appropriate for CMVs not placing ECM 

data on their electronic networks. 

Nextel and LinksPoint supported 

running an HOS records application on 

a handheld computer or cellular 

handset. 

Some commenters opposed potential 

requirements for location-tracking and 

wireless communications capabilities. 

Tripmaster favored specifications for 

EOBRs to perform ‘‘the sole function of 

automating HOS recording and 

reporting.’’ The company contended a 

requirement for two-way 

communications would be unwarranted 

because of gaps in coverage, coupled 

with Tripmaster’s perception that local 

and regional fleets may have little need 

for such communications. In contrast, 

PeopleNet favored systems that capture 

location information, allow the driver to 

select duty status and enter information 

in a Remarks section, calculate HOS, 

and wirelessly transfer the driver’s HOS 

back to a server. 

Qualcomm contended the regulatory 

standards for EOBRs should be no 

stricter than those for paper records in 

terms of driver identification, ability to 

correct records, and data accuracy. 

Qualcomm recommended that EOBR 

records be made accessible to the 

dispatcher to ensure data integrity, 

prevent tampering, and permit safety 

management oversight. The company 

also recommended that the EOBR notify 

the driver and dispatcher of any 

potential HOS violation. It viewed a 

minimally compliant EOBR as possibly 

combining several pieces of equipment 

(e.g., a black box synchronized to the 

engine plus a GPS-enabled phone). The 

synchronized system would use engine 

on/off to record the beginning and end 

of driving time. Qualcomm reasoned 

that carriers and drivers would be more 

open to the electronic recording of HOS 

if they could simply add an application 

to their existing mobile communications 

system, and cited one of its products as 

an example. 

XATA and Siemens recommended 

that the FMCSRs require a ‘‘basic’’

EOBR, with the Agency providing 

incentives for motor carriers electing to 

add features. As examples, carriers 

using GPS-enabled EOBRs would not be 

required to carry location codebooks, 

while carriers using EOBR systems with 

wireless communications capability 

might be exempted from requiring 

drivers to carry their RODS for the prior 

7 days, since the data could be 

downloaded from the motor carrier’s 

home base. Siemens suggested that 

EOBRs minimize manual inputs. It 

recommended that a ‘‘basic’’ EOBR 

record location of duty status changes as 

longitude and latitude coordinates using 

a simple GPS module. Siemens held 

that the coordinates would provide 

sufficient information for enforcement 

officials without requiring translation to 

named places (cities, towns, or villages) 

by the EOBR. 

TACS recommended that a ‘‘basic’’

EOBR system record the identity of the 

driver, time of day, direction of travel, 

vehicle location, speed, and driver 

inputs regarding duty status. 

SCRA stressed the need for EOBR 

stakeholders to work together to develop 

acceptable minimum standards and 

uniform format. SCRA and ATA 

advocated flexibility and 

interoperability, cautioning against 

proprietary systems with potentially 

higher costs. OOIDA was also concerned 

about EOBR costs, particularly if EOBRs 

have uses or capabilities beyond what is 

needed for HOS compliance assurance. 

ATA favored uniform minimum 

performance standards: A ‘‘basic’’ EOBR 

should not require GPS or wireless 

technologies, but FMCSA should 

consider offering incentives for their 

adoption. 

IIHS favored a relatively simple 

system providing features for driver 

identification and accurate recording of 

driving time and other duty status 

categories, but without additional 

vehicle performance monitoring 

functions. In addition to its 

recommendation to add several items to 

the ‘‘key research factors,’’ Advocates 

stressed the need for interoperability of 

data acquisition and retrieval in 

accordance with ITS protocols, as well 

as the need to include geographic 

position information as a component of 

EOBR data. Similarly, Public Citizen 

stated that a minimally compliant EOBR 

must record CMV engine status and 

location data. 

Werner Enterprises contended 

FMCSA should focus its requirements 

on the recording of data and information 

required for the RODS, and not extend 

them beyond what is needed for HOS 

compliance assurance. FedEx agreed 

that an EOBR requirement should 

address only the basic and specific 

requirements of the HOS rules. Overnite 

favored technology to allow automatic 

data capture when a CMV passes 

through a weigh station. Roehl 

supported a requirement for a 

minimally compliant EOBR to deliver 

the electronic equivalent of an accurate 

RODS, at a cost small motor carriers 

could afford. 

Schneider referred FMCSA to the 

European digital tachograph 

specification. At the same time, 

Schneider noted its considerable 

investment in communications and 

operations management technology, and 

asserted that functional specifications 

must be compatible with existing 

technologies or ‘‘reasonable extensions’’

of existing technologies. 

J.B. Hunt called for minimal EOBR 

requirements to balance safety outcomes 

and implementation costs. It considers 

the following features necessary: 

Synchronization with the vehicle, with 

noneditable drive time; connectivity for 

roadside officers; GPS for position 

locations; and self-diagnostics. J.B. 

Hunt, Schneider, and other commenters 

opposed the notion of different 

requirements for larger and smaller 

motor carriers. 

CVSA recommended that EOBR 

requirements be phased in over several 

years to minimize impacts to both the 

motor carrier industry and safety 

officials. CHP contended performance 


jlentini on PROD1PC65 with PROPOSAL2
2356 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

requirements compatible with a range of 

devices (minimally compliant to stateof-the-practice) could be difficult to 

devise. It suggested retaining manual 

records during a phase-in, while 

recognizing that this could be costly. 

Finally, CHP stated that requiring 

EOBRs only on new CMVs would help 

mitigate cost concerns. 

11.1 Performance-Based Specifications 

vs. Detailed Functional Specifications 

Commenters generally favored 

performance-based over design 

specifications. Some noted FMCSA 

could set performance standards for 

most features yet achieve a measure of 

uniformity by requiring standardized 

reporting or display formats. Overnite 

recommended FMCSA concentrate on 

performance specifications and a 

standard format for EOBR readout 

capabilities. ATA asserted FMCSA 

could set performance requirements 

through minor revisions to § 395.15 and 

recommended the Agency do so before 

requiring EOBR use. TCA also 

supported performance standards, 

adding that they should be subject to 

notice-and-comment rulemaking. 

IIHS, in addition to its comment 

(mentioned previously under Key 

Research Factors) that FMCSA has 

enough information to craft a workable 

mandate, stated that FMCSA is not 

required to design a system and has not 

explained why a performance-based 

system would be problematic for 

enforcement. It recommended FMCSA 

incorporate a design component into the 

overall system requirements and specify 

a uniform method of accessing the data 

and a uniform output record. 

Qualcomm and PeopleNet reasoned 

that design specifications, as opposed to 

performance standards, would limit 

innovation, reduce competition among 

suppliers, and hinder motor carriers’

adoption of new features. Qualcomm 

stated that FMCSA could achieve 

uniformity via standardized reporting or 

display formats of RODS, and 

recommended that determination of 

system failure be based on a 

performance standard. Finally, a motor 

carrier stressed the need to establish 

standards to ensure interoperability. 

Agency Response 

As noted in the section titled 

Reporting and Presentation (Display) 

Formats, the fundamental need is to 

provide a clear record of the sequence 

and progression of duty status. 

FMCSA’s review of the docket 

comments, as well as the March 2005 

Volpe Center study findings, suggest it 

would be appropriate to propose a 

single set of new performance 

requirements for EOBRs rather than 

several sets of requirements for devices 

with varying degrees of sophistication 

and complexity. These proposed 

performance requirements reflect what 

FMCSA believes the EOBR development 

community can currently provide to the 

marketplace at an affordable cost. 

At the same time, FMCSA recognizes 

that many motor carriers have used, and 

will continue to use, AOBRDs that meet 

the definition at § 395.2 and comply 

with the performance requirements of 

§ 395.15. FMCSA proposes to allow 

motor carriers to continue to use these 

devices in CMVs manufactured before 

the implementation date of this rule. 

FMCSA encourages motor carriers to 

adopt newer versions of on-board 

recording devices, but at a pace that 

avoids causing hardship either to 

carriers or to device providers. FMCSA 

proposes to allow AOBRDs voluntarily 

installed in CMVs manufactured up to 

2 years after the effective date of a final 

rule to be used for the remainder of the 

service life of the CMVs in which they 

are installed. 

As noted in the Agency response 

under Key Research Factors, FMCSA 

would continue to allow Werner to 

operate under the exemption granted on 

September 21, 2004 (69 FR 56474) for 

vehicles manufactured prior to 2 years 

after the effective date of an EOBR final 

rule. Vehicles manufactured after that 

date would be required to comply with 

the new requirements for EOBRs. 

Because the Agency is not proposing to 

require integral synchronization of the 

EOBR with the CMV engine, Werner’s 

system would likely meet the proposed 

requirements either in full or with 

minor modifications. 

In proposing under § 395.16 a single 

set of performance-based EOBR 

specifications, as opposed to different 

specifications for EOBRs with varying 

levels of functionality and using 

different communications methods, 

FMCSA is focusing the proposed rule on 

the accuracy of records of duty status 

rather than on the methods used to 

collect, store, and report the data. 

FMCSA’s preference is to allow 

flexibility in how HOS data are 

collected and information is derived, so 

long as the data accurately reflect the 

driver’s sequence of duty status periods 

and the CMV’s location at each change 

of duty status. Emerging technologies 

may well allow this information to be 

collected in ways not envisioned today, 

or improve the efficiency, accuracy, and 

cost-effectiveness of gathering and 

recording data. 

In response to commenters who urged 

that the scope of the current 

requirement be revised, FMCSA notes 

that the data recorded on these systems, 

and the information derived from that 

data, relate to compliance with the HOS 

regulations. The data requirements are 

therefore limited, and the technological 

challenges to collecting, recording, and 

retaining the data on the EOBR and 

support systems are generally well 

known to, and met by, many 

manufacturers. With the exception of an 

advocacy organization’s suggestion to 

use EOBRs for crash reconstruction, 

commenters did not recommend 

expanding the scope of EOBR data 

collection. 

In response to IIHS’s comment 

concerning uniformity of data output 

formats, FMCSA proposes to require a 

specified data output file format to 

promote improved data interchange 

between EOBRs and portable 

microcomputers used by roadside 

enforcement officials. This is discussed 

in depth under Agency Proposal. 

12. Definitions—Basic Requirements 

Most comments on the issue of 

definitions concerned the ability of 

GPS-based products to meet the 

requirements of the EOBR regulations. 

AOBRD 

CHP, Tripmaster, Nextel, and ATA 

agreed with the definition. PeopleNet 

pointed out that older CMVs (those 

manufactured before the advent of 

electronically controlled engines) would 

require costlier AOBRDs because the 

earlier engines do not broadcast engine 

use, road speed, or miles driven over the 

CMV’s electronic network. Qualcomm 

contended that the key requirement 

should center around the ability of an 

AOBRD to detect the movement of a 

CMV and use that information to 

capture driving time. 

EOBR 

Several commenters agreed with the 

definition. However, Advocates would 

support only a performance 

specification requiring GPS. CHP and 

CVSA recommended adding an explicit 

requirement that EOBRs record drivers’

duty status and HOS information. They 

also recommended a requirement for 

information attributable to a single 

driver. In contrast, the American 

Moving and Storage Association and 

Darby Corporate Solutions pointed out 

that an EOBR cannot identify a specific 

driver or distinguish whether a driver is 

off duty or on duty, and they believe the 

definition should more accurately 

reflect these limitations. IIHS suggested 

FMCSA consider adopting the EU 

electronic tachograph regulation. 

Qualcomm offered several suggestions 

for the definition. In its view, the 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2357 

definition should encompass the 

EOBR’s ability to continuously monitor 

and record CMV functions and to notify 

the driver and dispatcher of 

malfunctions. Qualcomm believes the 

definition also should reflect that an 

EOBR has several components, but 

should not include a requirement to 

record engine status and road speed. 

One commenter thought FMCSA should 

expand the definition to allow an in-cab 

system of computers, scanners, and 

printers. 

Various commenters asserted the 

definition should include references to 

date and time, engine on/off status, 

location, distance traveled, and road 

speed data. 

Agency Response 

FMCSA has carefully examined the 

need for EOBRs to capture operating or 

‘‘road speed’’ data. Ensuring that drivers 

operate their CMVs within the posted 

speed limits, while important, is outside 

the scope of this rulemaking. EOBRs 

(and AOBRDs) are intended to ensure 

accurate information about duty status 

time, rather than the speed at which a 

CMV is operated. Furthermore, ‘‘driving 

time’’ means all time spent at the 

driving controls of a commercial motor 

vehicle in operation. Drivers’ duty 

status includes all the time the driver is 

at the controls of the CMV, regardless of 

whether the CMV is moving or is 

paused in heavy, slow-moving traffic. 

Therefore, FMCSA is not proposing that 

EOBRs record road speed. 

13. Potential Benefits and Costs 

Only a few commenters based their 

responses on tangible experience using 

EOBRs and support systems. Although 

some motor carriers noted benefits from 

the use of the devices, others considered 

them too costly or questioned EOBRs’

ability to capture the operations typical 

of their industry sector. 

13.1 Safety, Operational, and 

Compliance Benefits Experienced by 

Motor Carriers With Actual Use of 

AOBRDs or EOBRs 

Werner Enterprises, which has piloted 

a GPS technology approach for HOS 

monitoring, noted evidence of safety 

improvements as measured by driver 

out-of-service rates related to HOS 

compliance. Its driver out-of-service rate 

is 1.2 percent, far lower than the 

national average of 6.8 percent. United 

Natural Foods noted both compliance 

and operational improvements since it 

began using EOBRs in the CMVs based 

at some of its facilities. 

EOBR vendors XATA and PeopleNet 

noted that their customers see improved 

HOS compliance as one of the benefits 

of using their products, but XATA noted 

‘‘it has been difficult for fleets to justify 

technology based on HOS compliance 

alone.’’ Siemens asserted that European 

motor carriers’ experience with HOS 

recording has led not only to acceptance 

of conventional tachographs but also to 

improved designs for ‘‘reduced 

possibilities of cheating the system.’’

According to Tripmaster, its customers’

drivers saved 15 to 30 minutes per day 

and believed the safety and compliance 

assurance benefits justified the EOBRs’

cost. 

The International Food Distributors 

Association (IFDA) stated that its 

members’ experience with AOBRDs 

varied. Some found the devices to be 

excellent and consistent tools, while 

others reported greater than anticipated 

AOBRD failure rates. The National 

Ready Mixed Concrete Association 

noted its members already employ 

‘‘sophisticated electronic fleet 

monitoring equipment.’’ Moreover, as 

most of its members operate under the 

100-air-mile-radius provision and use 

timecards rather than RODS, they would 

be unlikely to realize any new 

compliance benefits from EOBRs. 

OOIDA questioned the safety history 

of Werner during the first 4 years of the 

carrier’s GPS Technologies Pilot 

Program. OOIDA’s analysis of crash 

statistics (crashes per power unit per 

year) for the period 1998–2002 for 

Werner and several other large 

truckload motor carriers indicated an 

increase in Werner’s crashes relative to 

its peers. OOIDA wondered whether 

this diminished safety performance was 

related to the use of the HOS recording 

devices. 

Public Citizen cited several reports, 

some written under FHWA and FMCSA 

sponsorship and included in the docket, 

suggesting benefits of EOBRs related to 

improved safety and HOS compliance. 

13.2 Driver HOS Violation Rates, OutOf-Service Rates, and Crash Experience 

of Motor Carriers Using AOBRDs or 

EOBRs 

J.B. Hunt reported that its use of an 

electronic monitoring system (which 

does not use AOBRDs) has helped the 

carrier achieve a driver out-of-service 

rate well below the national average. In 

contrast, another carrier that tested 

EOBR technology saw no noticeable 

improvement in safety outcomes. One 

driver for a carrier using electronic 

RODS has noted a decline in crashes 

and out-of-service orders. A Werner 

driver thought the EOBR system works 

well, keeping drivers in compliance and 

preventing dispatchers from asking 

drivers to exceed HOS limits. An owneroperator driving for Werner found the 

EOBR system ‘‘an excellent way of 

logging,’’ noting its integration with the 

vehicle logistics system already in 

place. 

CVSA and CHP cited a lack of data 

linking EOBRs and safety outcomes. 

CVSA requested that FMCSA consider a 

pilot program to monitor EOBRequipped and non-EOBR-equipped 

vehicles to assess differences in 

compliance and safety performance. 

OOIDA contended research has failed 

to show a statistically significant 

improvement in crash reductions as an 

outcome of EOBR use. OOIDA also cited 

the 2002 Cambridge Systematics study 

sponsored by FMCSA, which noted the 

inability of EOBRs to automatically 

capture non-driving duty statuses. 

In contrast, Public Citizen cited 

positive CMV crash rate data from 

Germany. In 1975, the year mechanical 

tachographs were first mandated, the 

injury crash rate for CMVs was one 

crash per 790,000 km traveled. Ten 

years later, the injury crash rate for 

CMVs had dropped 54 percent, while 

the injury crash rate for passenger cars 

fell only 22 percent. These changes were 

viewed as notable, even when one 

considers that mechanical tachographs 

are ‘‘highly susceptible to tampering.’’

Siemens asserted EOBR-equivalent 

technology has been widely accepted in 

Europe and is perceived as effective for 

promoting road safety. Tripmaster also 

noted its customers had experienced 

safety improvements; one tank carrier 

reduced its overall crash rates nearly 50 

percent the first year it used an EOBR 

system. Qualcomm reported that 

carriers using its system were able to 

monitor driving behavior and quickly 

take remedial action, in some cases 

reducing liability insurance costs. 

Agency Response 

FMCSA recognizes that 

comprehensive research data regarding 

the safety benefits of EOBR deployment 

are sparse. However, many EOBR 

vendors and carriers, as noted earlier, 

filed comments asserting that 

deployment of EOBRs resulted in 

greater HOS compliance in addition to 

other benefits (e.g., economic efficiency 

and security benefits). These comments 

are generally consistent with case 

studies and other anecdotal information 

from both the United States and abroad 

showing improved HOS compliance 

with EOBR deployment. As was 

extensively analyzed in the regulatory 

impact analysis for the 2003 and 2005 

HOS final rules, increased compliance 

with HOS regulations correlates with 

reduced CMV driver fatigue, thereby 

reducing the incidence of CMVinvolved crashes. 


jlentini on PROD1PC65 with PROPOSAL2
2358 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

2Hazardous Materials Safety and Security 

Technology Field Operational Test Final Report, 

November 11, 2004, http://www.fmcsadot.gov/ 

Safety-Security/hazmat/fot/index.htm. 

FMCSA considered the potential for 

EOBRs to reduce or eliminate specific 

types of HOS violations, such as 

exceeding daily driving time limits, 

exceeding daily duty limits, exceeding 

weekly duty limits, false logs, ‘‘no log’’

violations, form and manner log 

violations, and non-current logs. We 

believe that carriers using EOBRs under 

an FMCSA remedial directive would 

significantly reduce, and in some cases 

virtually eliminate, several types of HOS 

violations including driving time 

violations, form and manner violations, 

and false-log violations. Requiring 

EOBR use by carriers with recurring 

HOS violations could also reduce at 

least a portion of these carriers’ ‘‘no log’’

and non-current-log violations. As 

discussed in the 2003 and 2005 HOS 

final rules, these reductions in HOS 

violations would yield safety benefits 

for CMV drivers and the traveling 

public. 

The Agency sponsored a 2004 study 

entitled ‘‘Hazardous Materials Safety 

and Security Technology Field 

Operational Test’’ 2 (HM FOT), which 

examined the effectiveness of 

technological system solutions to 

enhance safety, security, and 

operational efficiency. This study found 

that deploying particular types of 

technology, including EOBR-related 

technology, potentially leads to 

significant gains in operational 

efficiency by reducing vehicle miles 

traveled. By eliminating unnecessary 

exposure to CMV highway traffic, this 

increased operational efficiency would 

improve safety and security. 

In developing the Regulatory Impact 

Analysis (RIA) for this NPRM, the 

Agency considered data submitted by 

several vendors and carriers 

commenting on the ANPRM. However, 

because the Agency was unable to 

independently verify the analyses 

conducted by these commenters, we did 

not use this information directly in our 

economic analysis. 

In the case of the HM FOT, we did 

consider the potential efficiency gains 

from deployment of EOBR-related 

technology, and used this information 

when considering tertiary (non-safety) 

benefits of installation of EOBRs on 

CMVs. Given the limited scope of the 

study, however, we evaluated only the 

findings related to efficiency benefits. 

Additionally, because this was the only 

study available to us that quantified 

estimates of the efficiency benefits of 

EOBR technology, FMCSA undertook a 

sensitivity analysis in which we varied 

the level of these potential efficiency 

benefits to examine the effects on our 

benefit-cost analysis results. 

Based on a review of 2003 and 2004 

HOS compliance rate information from 

the Agency’s Motor Carrier Management 

Information System (MCMIS), FMCSA 

concludes that mandated EOBR 

deployment has the potential to 

significantly reduce or practically 

eliminate several of the specific HOS 

violations noted previously, resulting in 

a 50 percent reduction in HOS-related 

violations for carriers using the devices. 

This is supported by a qualitative 

analysis by FMCSA enforcement 

personnel of HOS violations likely to be 

eliminated as a result of implementing 

EOBRs for HOS compliance. The 

assumption of a 50 percent reduction in 

HOS violations is further supported by 

an FMCSA case-study analysis of a 

motor carrier in the Southeast that 

implemented EOBRs for HOS 

compliance and experienced a 79 

percent reduction over a 3-year period. 

We used the 50 percent-reduction 

assumption in the benefits analysis of 

the RIA for this proposed rule. However, 

because of a lack of comprehensive data 

on EOBR safety benefits and the 

qualitative nature of the assumption, 

FMCSA subjected it to a sensitivity 

analysis similar to that performed on the 

estimated efficiency benefits in the HM 

FOT. In the RIA sensitivity analysis, we 

varied the assumption concerning the 

effects of EOBR deployment on 

compliance rates. That analysis is 

contained in the RIA, available in the 

docket. 

13.3 Cost Savings From Paperwork 

Reduction, Reviewing RODS, and Other 

Efficiencies 

PeopleNet, @Road, Tripmaster, and 

Qualcomm stated that their motor 

carrier customers enjoy significant 

improvements in operational efficiency 

when they add communications and 

logistics modules to a basic EOBR 

system. Their customers see 

improvements in communicating timely 

information to drivers, automating fuel 

tax data collection, reviewing odometer 

readings and engine usage, and 

performing billing and payroll 

functions. PeopleNet said its customers 

attain a return on investment of 100 

percent or more, often within the first 

year, and an aggregate savings in driver 

and back-office administrative staff time 

ranging from 10–15 minutes per driver 

per month. CPS said that automation of 

recording and reporting industrywide 

‘‘can be provided without any increase 

to current costs.’’

Other commenters, including 

advocacy organizations, contended that 

EOBRs would reduce compliance costs 

and generally pointed to improved 

carrier operational efficiency. Public 

Citizen noted many carriers already use 

electronic scheduling and tracking 

systems, ‘‘making the additional HOS 

tracking function a relatively simple 

matter.’’ They cited studies of EOBR use 

and discussed the positive responses of 

drivers, unions, and carriers in Europe 

to EOBRs used there. IIHS cited several 

FMCSA studies that discussed potential 

benefits of EOBR use. However, Public 

Citizen criticized FMCSA’s failure to 

mention driver health in its ANPRM 

discussion of the benefits of EOBRs. 

CVSA noted EOBRs ‘‘can do little to 

reduce this risk [of HOS violations to 

highway safety] without rigorous 

monitoring by both law enforcement 

and the industry itself.’’ CVSA 

predicted larger carriers would tend to 

gain the greatest productivity benefits 

from EOBR use. 

Motor carriers and industry 

associations expressed greater 

skepticism regarding the benefits of 

EOBRs. As IFDA noted in its response 

to the previous question concerning 

safety, operational, and compliance 

benefits experienced by motor carriers, 

its members reported mixed 

experiences. Yellow Freight was 

concerned that a transition to a new 

system could adversely affect its current 

high level of HOS compliance. 

Schneider believes the current cost of 

EOBRs cannot be justified and noted its 

crash rate already compares favorably to 

the crash rates of motor carriers using 

EOBRs. Werner cautioned that a basic 

EOBR system might not achieve the 

same level of benefits as its own 

comprehensive system. Greyhound 

expected that paper backup documents 

would still be required for EOBRs, and 

thus disagreed with FMCSA’s estimates 

of time savings associated with EOBR 

use. 

ATA, MFCA, and the American Bus 

Association (ABA) stated their members 

that have experimented with EOBRs 

have seen little or no savings in 

administrative costs. ATA indicated that 

motor carriers are currently using 

EOBRs for maintenance and fleet 

management, not HOS recording, and 

are deriving benefits from those 

applications. ABA reported that its 

EOBR-using members have had to invest 

extra resources into double-checking 

EOBR records and backup RODS. UMA 

predicted carriers would continue to 

maintain paper RODS, in tandem with 

EOBR records. 

OOIDA conjectured that drivers’ other 

tasks would absorb any time savings 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2359 

from completing electronic records and 

that reconstructing RODS from a 

malfunctioning EOBR would take a 

significant amount of time. Citing a 

1998 UMTRI study (Campbell and 

Smith, ‘‘Electronic Recorder Study: 

Final Report,’’ 1998, page 37; see docket 

entry FMCSA–2004–18940–7), OOIDA 

stated there is no evidence EOBRs are 

cost-effective in small fleets, and motor 

carriers would not derive benefits from 

any savings in drivers’ time if they pay 

drivers by the mile. Several other 

commenters offered similar viewpoints. 

Specialized carrier services were 

especially skeptical about EOBR 

benefits. Petroleum Marketers 

Association of America stated that 

because its members are already subject 

to close regulation, EOBRs are unlikely 

to improve their compliance and would 

offer no additional benefits. The North 

Carolina Forestry Association asserted 

that RODS falsification is ‘‘not the norm 

by any means,’’ and doubted EOBRs 

would improve HOS compliance. The 

Colorado Ready Mixed Concrete 

Association stated EOBRs would have 

few benefits for its members because 

most are currently exempt from RODS 

under the 100-air-mile radius 

exemption, are already using advanced 

technology, and are committed to HOS 

compliance. 

U.S. Telecom Association (USTA) 

said that because telecom drivers have 

no motivation to violate the hours-ofservice regulations, EOBRs would not 

benefit this industry sector. USTA noted 

that utility service vehicle drivers are 

allowed to exceed HOS in situations of 

a declared emergency. 

IBT was skeptical of any productivity 

benefits from EOBR use. It echoed 

several other commenters in pointing to 

the need for a driver to interact with an 

EOBR and to resort to paper RODS 

should the device malfunction. 

Agency Response 

Several studies have documented the 

efficiency benefits of EOBR-related 

technologies, including time savings 

from logbook recordkeeping. Most 

notably, the previously mentioned HM 

FOT discussed efficiency benefits in the 

form of vehicle routing changes. The 

1998 UMTRI Study, also mentioned 

earlier, noted that ‘‘Electronic HOS 

records obviously offer administrative 

efficiencies through ease of access to 

and management of these records.’’ This 

study found that carrier respondents to 

a survey cited ‘‘vehicle operating cost 

management’’ as the most frequent 

reason carriers install EOBRs on their 

vehicles. Additionally, numerous 

commenters to the ANPRM docket 

pointed to benefits from paperwork 

savings. Therefore, FMCSA believes it is 

plausible to anticipate that carriers 

would experience cost savings from 

reduced paperwork as well as other 

gains in operational efficiency. The 

potential savings would of course vary 

depending on the operational 

characteristics of the carrier and other 

factors. As discussed in the Incentives 

section below, FMCSA seeks comment 

on whether paperwork savings and 

operational efficiencies from EOBR use 

also reduce driver fatigue or otherwise 

mitigate crash risk sufficiently to justify 

affording motor carriers that use EOBRs 

relief from some of the HOS rules. 

In the RIA for this proposal, FMCSA 

estimated average cost savings to 

affected carriers based on reduced 

paperwork burden associated with 

EOBR deployment. Our estimates for 

time savings were conservative. For 

instance, it was assumed that time 

savings would equal 6.5 minutes saved 

per day per driver, much lower than 

reported in several studies as well as by 

commenters to the ANPRM. In contrast 

to OOIDA, the Agency believes that, for 

small carriers whose drivers are paid by 

the mile, this reduced paperwork 

burden would indirectly benefit the 

carrier by increasing net income. The 

time savings would have a small 

tendency to increase the supply of 

drivers at any given rate of pay, or to 

reduce the pay needed to realize any 

given level of supply. See section 3.3 of 

the RIA for a general discussion. 

We also used conservative estimates 

for cost savings from paper reduction 

and paper storage. A third conservative 

assumption incorporated into the RIA 

by the Agency was that EOBR 

deployment would not produce backoffice savings, even though some 

carriers would in fact reap such savings. 

Details of the assumptions and cost 

savings analyses are available in the 

RIA. 

In response to Public Citizen’s 

comment that the Agency’s ANPRM 

failed to analyze the benefits of EOBR 

use for CMV driver health, it is 

important to note that we did conduct 

such analysis for the current notice. 

Specifically, FMCSA analyzed the 

NPRM to ensure its conformance with 

the requirements of 49 U.S.C. 31136(a): 

At a minimum, the regulations shall ensure 

that—(1) commercial motor vehicles are 

maintained, equipped, loaded, and operated 

safely; (2) the responsibilities imposed on 

operators of commercial motor vehicles do 

not impair their ability to operate the 

vehicles safely; (3) the physical condition of 

operators of commercial motor vehicles is 

adequate to enable them to operate the 

vehicles safely; and (4) the operation of 

commercial motor vehicles does not have a 

deleterious effect on the physical condition 

of the operators. 

Our review revealed little scientific 

documentation regarding the health 

effects on commercial motor vehicle 

operators of monitoring driving time. 

Overall, however, since we expect the 

proposal to increase compliance with 

the HOS regulations, thereby reducing 

fatigue, it would not have a deleterious 

effect on the physical condition of 

drivers. On the other hand, there is 

substantial literature regarding the 

health effects of electronic monitoring of 

workers, as well as on the general health 

effects of operating commercial motor 

vehicles. 

A review of the available literature 

suggests that monitoring an employee is 

likely to increase stress levels in certain 

cases. Those cases appear to be limited 

to people who must work harder to meet 

quantitative performance expectations 

as a result of being monitored. This may 

not apply to commercial motor vehicle 

operators, who would be monitored to 

ensure compliance with safety 

regulations. However, some functions of 

EOBRs may enable fleet managers to 

monitor the performance of their drivers 

as well as their compliance with hoursof-service regulations and could 

therefore have similar effects to the 

studies described here. A November 

2005 report by ICF Consulting, 

‘‘Literature Review of Non-Safety Health 

Effects of Electronic On-Board 

Recorders,’’ describes the range of 

available literature. This study, which 

we relied upon to assess the potential 

direct health effects of monitoring 

drivers’ duty status with EOBRs, is 

available in the docket. As noted in 

Appendix A of the RIA for this NPRM, 

the literature search found no material 

regarding the relationship between 

driver health and the use of driving time 

recorders, ‘‘or indeed between driver 

health and any form of monitoring of 

truck drivers.’’ There were, however, a 

few articles on the health effects—

particularly stress-induced effects—of 

being electronically monitored at work. 

13.4 Training for Drivers, Dispatchers, 

and Other Motor Carrier Employees 

United Natural Foods, an EOBR user, 

estimated that training required to use 

EOBR and EOBR-generated records was 

3 hours per driver and 3 days for office 

staff at $900 per day plus expenses; 

Maverick, which also uses EOBRs, 

estimated 4 to 5 hours or an average of 

$150 per person. Two motor carriers not 

currently using EOBRs, Schneider and 

Ralph Meyers Trucking, estimated 

training costs of $1,500,000 (Schneider 

based its estimate on the costs of 

retraining staff to comply with the April 


jlentini on PROD1PC65 with PROPOSAL2
2360 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

2003 HOS final rule; the company 

believes the rulemaking would increase 

ongoing training costs by $130,000) and 

$165 per hour (Ralph Meyers Trucking’s 

estimate for the cost of training, 

maintenance, and support). 

ATA estimated 21⁄2 to 3 hours per 

driver for EOBR training, plus 

additional training on completing paper 

RODS if they were required as backup 

documents. UMA estimated total costs 

of $6.4 million for motorcoach carriers, 

assuming a fleet size of 40,000 vehicles. 

Smaller companies needing to upgrade 

their back-office computer systems 

could see additional costs. ATA and the 

Minnesota Trucking Association 

(MnTA) both pointed out that field 

enforcement officers would also require 

training on EOBRs. MnTA was 

concerned that creating a new EOBR 

audit system would ‘‘further remove the 

focus of the industry and FMCSA from 

promoting safe driving.’’ 

PeopleNet estimated their ‘‘train-thetrainer’’ modules would take 2 days. 

Qualcomm provided detailed estimates 

of training time for drivers (30–60 

minutes online, 1 classroom hour, and 

1 hour for hands-on exercises), 

dispatchers (30–60 minutes online, 2.5 

classroom hours, and 1 hour for handson exercises), and information 

technology staff (30–60 minutes online 

and 4–6 classroom hours). XATA 

estimated 2.5–3 hours training for 

drivers and 3–4 days for back-office 

staff. CPS and Siemens said training 

would be ‘‘minimal,’’ although Siemens 

advised that dispatchers may need 

‘‘some hours’’ of software training. 

Tripmaster estimated 1 hour for driver 

training and 16 hours or more for 

supervisor training. 

Agency Response 

FMCSA received an abundance of 

information regarding training costs 

associated with EOBR deployment, from 

both vendors and carriers. We 

incorporated driver and back-office 

worker training costs into the RIA for 

the NPRM. (We did not calculate costs 

for training drivers to prepare backup 

paper RODS if the EOBR malfunctions, 

as training in record of duty status 

preparation is already required under 

§ 380.503, Entry-level driver training 

requirements.) We estimated high, 

median, and low equipment purchase 

and installation costs, depending upon 

which types of units are most likely to 

be purchased and installed as a result of 

this rule. For instance, the factor most 

affecting per-unit EOBR purchase and 

installation costs was whether or not the 

unit would be integrally synchronized 

with the truck engine; integral 

synchronization correlates with a high 

cost estimate. In this way we could 

account for the entire range of EOBR 

deployment costs likely to result from 

the rule. 

Next, we calculated driver and backoffice worker training costs 

corresponding with the type of unit to 

be installed (high, median, or low 

estimate); this information was supplied 

by vendors or carriers in comments 

submitted to the docket or gathered 

from production information in 

manufacturers’ sales or marketing 

packets. In the case of the high estimate 

(integrally synchronized units), driver 

training was assumed to take 3 hours 

per driver, while back-office worker 

training was assumed to require 12 

hours per employee. For the median 

cost estimate, FMCSA assumed 1 hour 

of driver training would be required, 

while 10 hours would be required for 

back-office staff. 

Finally, for the low cost estimate, 

FMCSA assumed only 30 minutes of 

driver training would be required, with 

2 hours required to train back-office 

staff. Again, these estimates were based 

either on comments filed to the docket 

by equipment vendors or carriers or on 

EOBR information provided by vendors 

or manufacturers. Evaluating training 

costs in this way enabled us to test the 

sensitivity of these cost assumptions on 

the cost-benefit analysis results. 

13.5 Typical Cost of a Minimally 

Compliant EOBR 

Commenters’ estimates are shown in 

the following table: 

TABLE 1.—EOBR COST ESTIMATES

Association commenter Cost for units and back-office support Total cost to industry sector (estimate) 

United Motorcoach Association .......................... $1,500–$3,000 per unit .................................... $60,000–$120,000 for units. 

American Bus Association ................................. $1,500–$3,000 per unit, $10,000–$80,000 

computer costs.

$120 million for units, $280 million for system 

upgrades. 

National Propane Gas Association .................... $1,000 per unit, $15,000 per office unit .......... $35,000,000 for units, $52,500,000 for back 

offices. 

Colorado Ready Mixed Concrete Association ... $1,000–$3,000 per unit..

American Trucking Associations ........................ $1,000–$2,000 per unit, not including back office and communications..

Truckload Carriers Association .......................... $1,000–$3,000 per unit, more for retrofit on 

older trucks..

National Solid Wastes Management Association $500 for new trucks, $3,000 for old ................. Up to $333 million for retrofit (private sector). 

Up to $75 million for retrofit (public sector). 

Cost for units and back-office support 

Carrier: 

United Natural Foods (using XATA’s system).$4,100 per unit, $150 installation per unit. 

Windy City ................................................... $700 per unit, $20–$40 monthly fee. 

Golden Plains Trucking, Ralph Meyers 

Trucking.

$4,000 per unit. 

Schneider National ...................................... Total cost to business $14–$15 million including installation (for 13,000 tractors). 

Vendor: 

XATA ........................................................... Current: $1,000–$2,000 per unit. 

TACS ........................................................... $1,000–$3,000 based on sophistication, $30–$500 for driver identification, $3,000 and up for 

management software. 

Siemens ....................................................... $300 per unit (original in vehicle), $450–$700 per unit (after-market installation). 

Karta Technologies ...................................... $500 per unit (purchase), $20–$25 per unit per month (leased). 

PeopleNet .................................................... $1,000–$1,500 per unit. 

Tripmaster .................................................... $1,200 per unit (basic), $2,000–$3,500 per unit (advanced). 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2361 

Cost for units and back-office support 

Qualcomm ................................................... $500 per unit (minimal phone and black box technology), $8 per unit per month for web-based 

back office (not including wireless costs). 

GPS-based systems: 

Scanware ..................................................... $3,000 per unit, not including data acquisition and auditing. If ruggedized, $6,000–$7,000. 

LinksPoint .................................................... $3,200 per unit (incl. computer, GPS receiver and software). 

CPS ............................................................. $2–$3 per day per unit. 

Vendor: 

Karta Technologies ...................................... $40 per vehicle per month. 

PeopleNet .................................................... $20 per vehicle per month; up to $55 including communication costs (Back-office costs negligible, system is Web-based.). 

Tripmaster .................................................... $10 per vehicle per month (or $20,000 to purchase software for carrier’s use). 

Scanware ..................................................... $1 per driver per month (assuming carriers provide software and hardware support). 

CPS ............................................................. ‘‘Minimal or nil’’ because the units should be compatible with existing systems. 

A few commenters provided estimates 

of EOBR operating costs. ATA estimated 

$60 to $75 per unit/month for 

communications, depending on the 

frequency of contacts with satellite or 

other centers; recalibration at $45 per 

‘‘event’’ plus technician travel and CMV 

downtime; and additional costs for 

record storage and retrieval. United 

Natural Foods, a Xora client, estimated 

start-up costs of $4,100 per truck and 

$20,000 for software upgrade and 

technical support. Operational costs run 

$24 unit/month for satellite tracking and 

communications. Schneider estimated 

its operating costs for RODS would go 

up from $1.1 to $5.8 million per year, 

for a net annual increase of $4.7 million. 

CT Transportation Services and Ralph 

Meyers Trucking each estimated 

training, maintenance, and support at 

$165 per hour. First-year costs were 

estimated at $175,000 and annual 

operations costs at $25,000. 

Agency Response 

In developing the cost analysis for the 

RIA, FMCSA considered the docket 

comments, conducted its own research 

regarding which type of unit would be 

minimally compliant with the proposed 

rule, and then developed ‘‘low 

estimate’’ cost figures for this minimally 

compliant device. We defined a 

minimally compliant device as one not 

integrally synchronized to the ECM but 

capable of recording the truck’s location 

at least as often as required by the 

performance standards outlined in this 

NPRM. For the purposes of developing 

this ‘‘low’’ cost estimate, FMCSA 

considered certain cell-phone-based 

products without engine 

synchronization to be a reasonable 

proxy for a minimally compliant device. 

As detailed in the RIA, we used the 

costs associated with installing and 

operating that device to develop the 

‘‘low’’ cost estimate. 

13.6 Typical Cost To Incorporate 

EOBR Capabilities Into On-Board 

Computer and Communications 

Systems 

XATA estimated that installing its 

units in existing trucks would cost 

$1,000 to $2,000 per vehicle, not 

including communications support. 

Qualcomm estimated a monthly cost of 

$8 per CMV to add an HOS application 

to a current Qualcomm subscription. 

Depending upon the system and 

features selected, a Qualcomm 

subscription costs $20 to $65 per 

vehicle per month. Older Qualcomm incab units might require upgrades 

ranging from $80 to $400. 

For its fleet of 13,000 power units, 

Schneider estimated equipment and 

system licensing and installation costs 

of $1 million; $2.8 million for 

installation labor, mileage, routing, and 

downtime; $2 million for enhancing 

fleet management software; and $5 

million for increased satellite data 

communications. ATA estimated EOBR 

unit costs of $3,500, including 

communications and GPS. Other 

commenters expressed concerns about 

costs but did not provide quantitative 

estimates. 

ATA and four other motor carrier 

association commenters listed a variety 

of potential cost items, including 

development and execution of training 

programs for drivers, office, and 

information technology staff; 

communications costs (airtime); 

enhancements to computer system 

capabilities; EOBR inspection, 

maintenance, calibration, repair, and 

recordkeeping; CMV downtime; and 

future equipment and system upgrades 

and replacements, including costs for 

replacing existing systems to comply 

with new regulatory requirements. ATA 

stated that EOBR performance criteria 

would generate lower priced solutions, 

and advised FMCSA to carefully 

consider costs for replacements and 

upgraded devices. 

Many commenters addressed broader 

concerns about potential EOBR costs. 

ATA, TCA, the Tri-State Truckers 

Association, and the Kansas Motor 

Carriers Association questioned whether 

carriers could sustain economic 

viability in the face of EOBR costs 

added to the costs of current regulation. 

They also contended an EOBR mandate 

would exacerbate the CMV driver 

shortage. In addition, these commenters 

recommended that an EOBR mandate be 

partly offset by eliminating the 

requirement to maintain paper RODS. 

TCA, PMAA, the North Carolina 

Forestry Association, and the Kansas 

Motor Carriers Association asserted that 

small carriers would bear an undue 

burden if required to install EOBRs. 

Gases and Welding Distributors 

Association stated EOBR costs are high 

relative to the limitations of EOBR 

technology. SCRA pointed to increasing 

costs of training, computer upgrades, 

replacement, maintenance, inspection, 

and equipment calibration. USTA 

calculated that if EOBRs cost $3,000 

each, the organization’s four largest 

members would incur a total cost of $75 

million. 

TCA drew an analogy between the 

costs of complying with the rules on 

controlled substances abuse and alcohol 

abuse prevention as revised in the early 

1990s and the proposed EOBR 

regulations, asserting that complying 

with a mandate costs twice as much as 

operating under a voluntary regime. 

MnTA contended that Minnesota law 

enforcement agencies have difficulty 

interfacing with various State and 

FMCSA databases. SCRA called 

attention to the need for proper training 

for law enforcement officials. 

Individual drivers and owneroperators also expressed concerns about 

what they considered to be the 

significant potential costs of EOBRs. 

OOIDA contended the potential costs of 

EOBRs and related accessories, 

communications equipment, and backoffice systems would ‘‘dwarf [EOBRs’] 


jlentini on PROD1PC65 with PROPOSAL2
2362 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

de minimus, if any, contribution to 

public safety.’’ IBT thought any time 

savings would be more than consumed 

by training time. In addition, IBT 

contended EOBRs are unreliable and 

thus would produce few benefits. Many 

drivers and owner-operators painted a 

grim economic picture for small motor 

carriers required to comply with any 

new regulation mandating EOBR use, 

raising concerns about the impact of 

such a rule upon the current driver 

shortage and questioning the potential 

cost savings and safety benefits. One in 

this group predicted any carrier with 

fewer than 20 vehicles would go out of 

business. 

Some drivers offered a more 

optimistic view. A few said EOBR cost 

estimates were not as high as they had 

feared, and they could foresee possible 

safety and operational benefits. One 

driver predicted costs would go down if 

the devices were manufactured in bulk; 

however, another was concerned costs 

would remain high without adequate 

competition among vendors. 

Advocacy organizations also were 

more optimistic. IIHS asserted cost is 

not a significant factor. It cited two 

studies showing that affordable EOBRs 

are available and that prices would drop 

even further if EOBRs were mandated. 

Vendors, too, were generally 

optimistic about their ability to provide 

low-cost solutions to carriers. They 

suggested several potential areas for cost 

savings in system hardware and 

software. For example, Nextel expected 

costs for its potential EOBR product to 

be negligible because their solution is 

based on cell phones. PeopleNet stated 

it currently offers an EOBR/HOS 

product, and aftermarket installation 

takes 1.5 hours or less. IBM 

recommended an industrywide mandate 

to lower costs through economies of 

scale. Qualcomm asserted that 

minimizing EOBR cost would be key to 

motor carriers’ acceptance of an EOBR 

requirement. The company 

recommended that road speed not be 

recorded because retrieving such data at 

frequent intervals is not otherwise 

necessary and would increase the EOBR 

memory requirements. Qualcomm 

maintained that recording malfunction 

events, third-party documentation on 

installation, repair, and calibration, and 

smart cards would add costs and be 

unduly burdensome. 

The Santa Clara Valley Transportation 

Authority said that its buses already 

have a GPS/Automatic Vehicle Location 

system providing location updates at 2- 

minute intervals, and that any 

requirement to synchronize this system 

with the engine would be very costly. 

Santa Clara noted that its current HOS 

compliance system is working well 

overall, and that installing EOBRs 

would involve high costs without 

significant benefits. 

Agency Response 

It is difficult to estimate all of the 

initial and ongoing EOBR costs reliably. 

Costs to the motor carrier would vary 

depending both on the system currently 

installed and the prospective new 

system. Rather than addressing these 

variables, many commenters focused on 

the potential costs of an industrywide 

mandate to install EOBRs. FMCSA has 

estimated the effects and concluded that 

the cost of universal EOBR installation 

would not justify the benefits at this 

time. Therefore, the NPRM focuses on 

the highest risk carriers, a targeted 

approach that allows FMCSA to 

concentrate its resources (and EOBR 

use) on the most serious violators of the 

HOS regulations. In the RIA, FMCSA 

made the assumption that all carriers 

subject to an EOBR mandate would be 

installing these units and supporting 

equipment and software for the first 

time. This is a conservative estimate 

intended to ensure we do not 

underestimate the costs associated with 

this rulemaking. The Agency believes 

the population of high-risk carriers, 

which appears to be less than 1 percent 

of the overall carrier population, is the 

group least likely to have EOBRs at 

present. These are the carriers most 

likely to be affected by the rule. Because 

they represent such a small percentage 

of the total carrier population, costs are 

unlikely to be large overall. 

14. Incentives To Promote EOBR Use 

Commenters were generally in favor 

of incentives to promote EOBR use. 

Federal tax relief was the most common 

incentive mentioned. Motor carriers 

including J.B. Hunt, Maverick 

Transportation, Roehl Transport, and 

Schneider suggested that Federal tax 

relief would serve as an incentive to 

promote EOBR installation. Motor 

carrier associations, an EOBR 

manufacturer, and an individual driver 

made the same point. 

Four EOBR vendors recommended 

specific design specifications they 

believe would make EOBRs more 

appealing to motor carriers. For 

example, LinksPoint suggested FMCSA 

allow systems that do not need to be 

integrated with the vehicle and could be 

used with current mobile computing 

and GPS technologies. Qualcomm 

recommended EOBR specifications that 

allow the rounding of driving time to 

the nearest 15-minute increment. 

Otherwise, Qualcomm reasoned, drivers 

using EOBRs could be at a disadvantage, 

in terms of HOS compliance, compared 

with drivers using paper RODS. For 

example, if a driver drove 11 hours and 

7 minutes using an EOBR without a 

rounding feature, the driver would have 

an HOS violation identified. However, 

in Qualcomm’s view, most drivers using 

paper logs would round down the time 

to 11 hours. Allowing EOBRs to be 

programmed to ignore intervals of 15 

minutes or less would serve as an 

incentive by leveling the playing field 

between EOBR-using carriers and those 

using paper records of duty status. 

Vendors also suggested regulatory 

incentives that FMCSA could offer to 

encourage EOBR use. For example, 

Qualcomm specifically recommended 

that FMCSA relieve motor carriers using 

EOBRs from the requirement to 

maintain supporting documents other 

than the information collected by the 

EOBR that supports the automated 

RODS recordkeeping. 

Many commenters suggested that one 

of the most significant deterrents to 

voluntary EOBR installation was the 

fear of post-crash litigation based upon 

the extensive operational data EOBRs 

are capable of producing. They 

recommended limiting the data 

elements EOBRs would be required to 

produce and restricting access to the 

data as incentives for voluntary 

installation. For example, ATA 

recommended that future EOBR 

regulations specify that EOBR data 

accessed by government officials would 

be restricted to information required to 

enforce the HOS regulations, and that 

access to the data be restricted to the 

motor carrier and its agents, FMCSA 

officials, authorized State enforcement 

personnel, and representatives of the 

NTSB for purposes of post-crash 

investigations. The ATA also suggested 

that an FMCSA commitment to work 

with the industry to seek enactment of 

statutory protections for data beyond 

that required under part 395 would 

significantly alleviate a major 

impediment to acceptance of EOBRs. 

Agency Response 

FMCSA finds merit in vendor 

comments that appealing design 

specifications would serve as incentives 

to EOBR installation. Toward that end, 

the performance specifications proposed 

in this rulemaking address many of the 

design proposals recommended by 

commenters. For example, as 

recommended by LinksPoint, the 

proposed EOBR performance 

specifications do not require ‘‘integral 

synchronization’’ to the vehicle engine 

and thus allow for both innovation and 

potentially reduced costs. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2363 

FMCSA does not agree, however, with 

Qualcomm’s suggestion to establish 

specifications that allow for rounding of 

driving time to the nearest 15-minute 

increment. The current regulations 

concerning paper records of duty status 

do not provide for rounding, and 

FMCSA’s question-and-answer guidance 

indicates that periods of less than 15 

minutes may be identified by drawing a 

line to the Remarks section of the RODS 

and entering the amount of time, such 

as 7 minutes. 

FMCSA sees some merit in 

Qualcomm’s comment that motor 

carriers using EOBRs should not have to 

maintain supporting documents other 

than those produced by the EOBR. This 

NPRM proposes adopting a new 49 CFR 

395.11 to provide partial relief from the 

current supporting document 

requirements under 49 CFR 395.8(k) for 

motor carriers that install a device 

compliant with proposed § 395.16. 

EOBRs meeting the requirements of 

§ 395.16 produce regular time and CMV 

location position histories sufficient to 

verify adequately a driver’s on-duty 

driving activities. However, additional 

supporting documentation, such as 

driver payroll records, is still necessary 

to verify on-duty not-driving activities. 

Therefore, the proposed § 395.11 does 

not provide a blanket exemption from 

supporting document requirements for 

carriers using EOBRs compliant with 

§ 395.16. Rather, it would limit the 

volume of required supporting 

documents to those necessary to verify 

on-duty not-driving time and off-duty 

status. FMCSA issued a supplemental 

notice of proposed rulemaking 

concerning HOS supporting documents 

on November 3, 2004 (69 FR 63997) and 

expects to publish the final rule in the 

near future. The Agency will consider 

public comments to today’s NPRM in 

determining whether adjustments to the 

supporting documents exemption 

procedures may be necessary. 

We recognize commenters’ concerns 

regarding legal protection and access to 

EOBR data, and believe the performance 

specifications and regulations proposed 

in this rulemaking help to mitigate these 

concerns. For example, the proposed 

EOBR performance specifications do not 

require that non-HOS data, such as 

vehicle speed, be recorded. While 

FMCSA agrees that statutory protections 

against access to data from EOBRs 

beyond what is required to determine 

HOS compliance would further 

acceptance of the devices, legislative 

efforts toward that goal are outside the 

scope of this proposed rule. FMCSA 

seeks comment, however, on data access 

protections that could be provided 

under current statutes. 

15. Miscellaneous Questions 

As many responses to the questions in 

this section are similar to those 

discussed earlier, we will summarize 

them here. Commenters generally 

consider EOBRs highly reliable, with 

equipment vendors estimating them to 

have a useful life of 7 to 10 years or 

longer. Motor carriers agreed. 

Agency Response 

FMCSA’s analysis of the data and 

further consultation with equipment 

vendors suggest a more conservative 

estimate for the useful life of EOBRs 

than that provided in equipment 

vendors’ comments to the ANPRM. 

Vendors we consulted estimated the 

devices to have a useful life of 3 to 5 

years, if technological obsolescence is 

factored in. Please see the RIA, available 

in the docket, for further discussion. 

15.1 Should FMCSA Propose To 

Require That Motor Carriers in General, 

or Only Certain Types of Motor Carrier 

Operations, Use EOBRs? 

Mandate EOBRs for some motor 

carriers. The National Private Truck 

Council and two other commenters said 

that any requirement to use EOBRs 

should apply only to long-haul trucking 

companies, reasoning that the cost of 

installing and using EOBRs would not 

be justified for local distribution 

operators. 

Several commenters stated FMCSA 

should exempt motor carriers operating 

under the 100-air-mile-radius 

exemption. The Colorado Ready Mixed 

Concrete Association noted that the 100- 

air-mile-radius exemption is based on 

the recognition that short-haul operators 

are at reduced risk of excessive driving 

time and resulting driver fatigue; 

requiring these carriers to use EOBRs 

would be tantamount to rescinding the 

exemption. The Highway Safety 

Committee of the International 

Association of the Chiefs of Police 

suggested that if FMCSA requires 

EOBRs for interstate carriers, it should 

avoid penalizing States that choose not 

to require EOBRs for intrastate carriers 

using the 100-air-mile-radius 

exemption. 

The Motor Freight Carriers 

Association (MFCA) and several LTL 

carriers said that FMCSA should exempt 

the LTL sector because its systems for 

managing driver fatigue and ensuring 

compliance with the HOS rules already 

make it one of the safest segments of the 

trucking industry. They asserted that 

LTL carriers locate their facilities and 

dispatch their drivers in ways that 

‘‘virtually eliminate’’ HOS violations. 

Yellow Roadway Corporation added 

that its drivers are in personal contact 

with supervisory personnel at the 

beginning and end of the workday, and 

the company uses software to flag any 

dispatch that would cause an HOS 

violation. ATC Leasing Company, a 

provider of driveaway services, noted 

that its drivers operate a given CMV 

only once and would therefore need to 

use portable EOBRs. The company 

believes that, in general, the 

marketplace demand for portable EOBRs 

would be low, resulting in high perdevice costs. 

Several commenters asked for 

operational-based exemptions from any 

future EOBR requirement for particular 

types of short-haul operations. These 

included the National Solid Wastes 

Management Association (100-air-mileradius exemption or solid waste 

collection trucks); PMAA (short-haul 

drivers delivering gasoline); NRMCA 

and its Colorado State association 

(ready-mixed concrete industry); NPGA 

(local propane delivery operations); the 

National Rural Electric Cooperative 

Association (utility service vehicles in 

general); and the USTA (utility service 

vehicles, particularly those operating 

under the 100-air-mile-radius 

exemption); and the National Ground 

Water Association (well drillers whose 

CMVs travel less than 5,000 miles 

annually). ATA recommended FMCSA 

assess whether drivers and operations 

not currently required to keep RODS 

(100-air-mile-radius drivers, drivers in 

the State of Hawaii, and certain drivers 

in agricultural operations) should be 

exempted from an EOBR requirement. 

Motor carriers of passengers and their 

industry associations asserted that 

FMCSA should not require EOBR use by 

carriers in this industry segment, in part 

because of its already strong record of 

safety and HOS compliance. The United 

Motorcoach Association added that 95 

percent of such companies registered 

with FMCSA meet the Small Business 

Administration’s definition of a small 

business. Greyhound Lines noted that 

its drivers have considerably different 

work patterns from those of truck 

drivers and operate on fixed, published 

schedules that are designed to comply 

with HOS requirements. The National 

School Transportation Association 

(NSTA) argued against an EOBR 

requirement for its members because 

only about 1 percent of school bus 

operations are interstate activity trips 

subject to the FMCSRs. Similarly, the 

Santa Clara Valley Transportation 

Authority argued that FMCSA should 

not require EOBRs for local public 

transit agencies using the 100 air-mileradius exemption. 


jlentini on PROD1PC65 with PROPOSAL2
2364 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

3FMCSA considered, but is not proposing to 

adopt, CVSA’s suggestion that EOBR installation be 

required as a ‘‘punishment’’ for part 395 violations. 

The current civil and criminal penalties authorized 

under 49 U.S.C. 521 for violations of the FMCSRs 

would remain unchanged under the proposed rule. 

One commenter argued that EOBRs 

must remain voluntary for owneroperators but did not provide 

supporting rationale. Two commenters, 

citing the potential financial impact on 

small businesses that operate CMVs, 

requested FMCSA consider limiting the 

requirement for EOBRs to those carriers 

operating CMVs requiring a commercial 

driver’s license. 

Five of the seven carriers commenting 

on this issue said that lack of a broad 

EOBR mandate would create an uneven 

playing field, while noting that their 

own potential costs to add EOBRs could 

be considerable. ATA pointed out that 

motor carriers exempt from a 

requirement to use EOBRs would derive 

a competitive advantage because they 

could more readily attract independent 

contractors (which presumably would 

also be exempt). The few drivers 

favoring a universal EOBR requirement 

also expressed concerns about 

competition. EOBR vendors XATA, 

PeopleNet, and Qualcomm made a 

similar point. Another EOBR vendor 

stated that homeland security 

considerations should be the sole reason 

to exempt a carrier from an EOBR 

requirement. CHP said that FMCSA 

could apply an EOBR requirement only 

to particular segments of the trucking 

industry, but expressed concerns about 

economic equity. 

Mandate EOBRs for all motor carriers. 

Public Citizen and Advocates supported 

mandatory EOBR use for all CMVs over 

which FMCSA has jurisdiction. They 

contended FMCSA should require 

States to mandate EOBRs for intrastate 

CMVs as a condition of a State’s 

receiving Motor Carrier Safety 

Assistance Program funds. Advocates 

added that NHTSA should issue a 

complementary regulation requiring 

EOBRs on all newly manufactured 

vehicles subject to the prohibition on 

making safety equipment inoperative 

(49 U.S.C. 30122). CTA recommended 

requiring EOBRs in commercial motor 

vehicles for which the driver is required 

to hold a CDL. 

J. B. Hunt commented that if FMCSA 

determines EOBRs would provide an 

enhanced level of compliance and 

improved safety outcomes, the Agency 

should mandate EOBR use in all 

operations subject to the HOS 

regulations, including 100-air-mileradius operations. Schneider expressed 

a similar view, asserting it would be 

irrational to exempt small carriers that 

typically have less sophisticated 

compliance programs and higher crash 

rates than large carriers. One carrier 

predicted that political considerations 

would lead to a universal EOBR 

mandate. 

Mandate EOBRs only for motor 

carriers with poor safety or compliance 

records. Seven commenters suggested 

that if FMCSA chooses to mandate 

EOBRs for any motor carriers, it should 

do so only for carriers or industry 

segments that have shown poor 

compliance with HOS regulations. 

Three in this group—a motor carrier, a 

trade association, and an owneroperator—noted that such an approach 

would relieve carriers already in 

compliance with the HOS rules of the 

financial burden of purchasing and 

installing EOBRs. United Motorcoach 

Association stated that it ‘‘would 

endorse the mandatory implementation 

of EOBRs only for chronic offenders.’’

CVSA suggested that EOBRs could be 

used as ‘‘punishment’’ for carriers that 

show continued violations of HOS rules 

or are found to have falsified their 

RODS. The Motor Freight Carriers 

Association and the Yellow Roadway 

Corporation encouraged FMCSA to 

adopt a rule requiring individual 

companies or industry sectors to 

demonstrate a proven record of HOS 

compliance and to subject carriers not 

meeting that compliance rate to ‘‘more 

strenuous requirements, including the 

possible imposition of recording 

devices.’’

Agency Response 

FMCSA agrees that focusing first on 

motor carriers with significant HOS 

compliance problems is a sound 

approach. The Agency believes this is 

the strategy most likely to improve the 

safety of the motoring public on the 

highways in the near term and to make 

the best use of resources, both those of 

enforcement agencies and of the motor 

carrier industry. We are therefore 

proposing procedures for issuance of 

remedial directives requiring EOBR 

installation, maintenance, and use by 

only those motor carriers with serious 

and repeated HOS noncompliance. By 

focusing on this narrow carrier 

population, we would increase highway 

safety while minimizing the cost to the 

motor carrier industry, giving the 

Agency maximum return on the 

investment of its enforcement resources. 

As discussed in the Remedies section 

of this preamble, FMCSA examined a 

variety of possible parameters that 

might be used to establish 

subpopulations of poor-HOScompliance carriers to which an EOBR 

mandate might apply. Agency CR 

results indicate that a substantial 

number of motor carriers do not 

routinely violate the HOS rules, and 

thus (based on the RIA for the proposal) 

the benefits of an industrywide EOBR 

mandate do not outweigh the costs. In 

focusing first on the most severe 

violations and the most chronic 

violators, we are proposing a 

mandatory-installation ‘‘trigger’’

designed to single out motor carriers 

that have a demonstrated history of poor 

hours-of-service compliance. The trigger 

for a notice of remedial directive and 

proposed unfitness determination 

would be a ‘‘final determination’’ of one 

or more ‘‘pattern violations’’ of any 

regulation in proposed new Appendix C 

to Part 385 (‘‘Appendix C regulations’’), 

followed by the discovery of one or 

more pattern violations of any 

Appendix C regulation during a CR 

completed within 2 years after the 

closing date of the CR that produced the 

first determination. A pattern violation 

of Appendix C regulations is a violation 

rate equal to or greater than 10 percent 

of the number of records reviewed. For 

example, 25 violations out of 100 

records reviewed would be a 25 percent 

violation rate and therefore a pattern 

violation. Based on data concerning 

HOS violation from CRs conducted 

between June 2001 and June 2005, this 

trigger, if adopted, would result in the 

issuance of approximately 465 remedial 

directives to install EOBRs annually.3

The Agency believes this relatively 

small carrier population, with its severe 

and recurring HOS compliance 

deficiencies, poses a disproportionate 

risk to public safety. Therefore, 

mandatory EOBR installation and use by 

this narrow subset of carriers is an 

appropriate and resource-effective 

means of promoting motor carrier safety. 

FMCSA recognizes that there may be 

other factors that bear consideration in 

determining the potential application of 

an EOBR requirement, such as risks to 

passengers or to the general public from 

a release of hazardous materials. The 

Agency requests public comment on 

whether EOBRs should be required of 

passenger carriers and carriers 

transporting hazardous materials in 

quantities requiring placarding. 

15.2 Other Comments 

IIHS recommended that FMCSA 

conduct a field operational test of EOBR 

devices and conduct formal surveys to 

gather data on EOBR benefits, costs, and 

use in HOS enforcement. 

ATA and IIHS asked how FMCSA 

would determine that EOBRs would 

achieve the intended results. ATA 

believes the Agency should provide 

evidence that EOBR use will reduce 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2365 

fatigue-related crashes and thereby 

improve truck safety, arguing that any 

correlation between electronic recording 

and crash reduction is merely 

speculative unless documented. ATA 

added that a study of motor carriers’

experiences with automated recording 

devices could be useful in determining 

whether they contribute to safer driving 

performance and crash prevention. 

Agency Response 

In response to IIHS’s recommendation 

for a field operational test of EOBRs and 

surveys to gather data on EOBR benefits, 

costs, and use in HOS enforcement, 

FMCSA conducted such a survey and 

published the results in 1998 (the 

UMTRI study, docket entry number 7). 

The study results were limited because 

of a very low (12 percent) response rate. 

Another field operational test, the 

FMCSA-sponsored HM FOT discussed 

previously in section 13.2, found that 

use of EOBR-related technology led to 

potential increases in operational 

efficiency, which could benefit safety 

indirectly. 

However, as also noted in section 

13.2, there is little research data linking 

EOBR deployment directly to safety 

benefits. A study such as ATA 

suggested, in which data on many 

potential contributors to driving safety 

would be tracked and analyzed 

statistically, could certainly shed useful 

light on the relative contributions of 

factors such as CMV driver selection, inservice training, motor carrier oversight, 

and use of HOS recording devices. Such 

a study would likely be extremely 

challenging to design, given that: (1) 

Highway CMV-involved crashes are 

statistically rare events, so that several 

years’ worth of data might be needed 

before a statistically valid comparison 

could be drawn; (2) motor carriers may 

make changes to several of these areas 

concurrently; (3) the ‘‘before’’ data 

might not have been maintained in a 

way that allows for direct comparison 

with the ‘‘after’’ data; and (4) 

participants’ awareness of and 

involvement in an active study could 

influence their data (i.e., a ‘‘Hawthorne 

effect’’). 

As noted previously, in the absence of 

comprehensive research data in this 

area, the Agency infers from motor 

carriers’ comments to the ANPRM, case 

studies, and anecdotal information that 

EOBR installation and use correlates 

with increased HOS compliance and 

reduced driver fatigue. This in turn 

could reduce the incidence of crashes 

involving CMVs. 

The HOS compliance of motor 

carriers subject to remedial directives 

under the proposed rule could improve 

even more as a result of EOBR 

installation and use. These are motor 

carriers that FMCSA has determined to 

have hours-of-service violations in 10 

percent or more of the records of duty 

status examined during two or more CRs 

within a 2-year period. Such carriers 

have already demonstrated repeated 

noncompliance with the HOS 

regulations after being afforded an 

opportunity to improve. The Agency’s 

existing compliance oversight processes 

would already have singled out these 

carriers for FMCSA’s attention because 

violations found during roadside 

inspections, crash involvement, or both, 

placed them statistically well outside 

the norm at the time of the second CR. 

The Agency would also have provided 

recommendations to these carriers to 

guide them toward improving their 

safety performance and regulatory 

compliance. These carriers would be 

offered a choice: Install a tool—the 

EOBR—to enable the carrier to gather 

and use more accurate data than are 

contained in a paper RODS and provide 

more specific information on areas of 

noncompliance the carrier must 

address, or cease operations. As 

discussed in detail in section 13.2, HOS 

compliance rate information in the 

MCMIS, an FMCSA case-study analysis 

of a particular carrier, and analysis by 

Agency enforcement personnel support 

an inference that compliance with an 

EOBR remedial directive could reduce a 

carrier’s HOS-related violations by 50 

percent. 

V. Agency Proposal 

As noted in the Executive Summary 

and the discussion of public comments, 

FMCSA proposes a comprehensive rule 

to increase EOBR use within the motor 

carrier industry. The proposed 

regulation has three elements: (1) 

Performance-oriented standards for 

EOBR technology; (2) the mandatory use 

of EOBRs by certain motor carriers in a 

safety remediation context; and (3) 

incentives to promote voluntary EOBR 

use. FMCSA believes this approach 

strikes an appropriate balance between 

promoting highway safety and 

minimizing cost and operational 

burdens on motor carriers 

demonstrating strong and consistent 

compliance with the HOS regulations. 

We seek public comment on these 

proposals, discussed in what follows. 

A. Technology 

FMCSA proposes a new set of 

performance-based standards for EOBRs 

that reflect the significant advances in 

recording and communications 

technologies since introduction of the 

first AOBRDs in 1985. 

In developing this proposal, we also 

considered findings related to the seven 

key research factors discussed in 

FMCSA’s April 2003 HOS final rule and 

the September 2004 ANPRM on EOBRs. 

Equally important, as noted previously, 

we considered several additional factors 

recommended by commenters to the 

ANPRM, including interoperability with 

other commercial motor vehicle 

intelligent transportation system (ITS) 

applications and the use of standardized 

file formats. The latter criteria are 

directly related to the factors discussed 

in the preamble of the April 2003 HOS 

final rule. Following is a discussion of 

the seven research factors with 

consideration of interoperability and 

standardized file formats. 

Factor 1: Ability To Identify the 

Individual Driver 

FMCSA proposes to correct an 

apparent gap in the existing AOBRD 

regulation. The current rule includes no 

explicit requirement for driver 

identification beyond requiring the 

driver’s signature on hard copies of the 

record of duty status (§ 395.15(b)(5)). 

Commenters suggested a broad range of 

identification methods—PINs, 

removable smart cards, assignment of 

EOBR handsets to individual drivers, 

and biometric systems. FMCSA’s 

proposed approach takes into 

consideration the operational realities of 

EOBR use, including potential cost or 

operational burdens upon drivers and 

motor carriers. 

The NPRM includes a proposal for a 

requirement for driver identification, 

without prescribing a specific method. 

Motor carriers could use either data 

entry approaches, such as PINs or user 

ID and passwords, or methods such as 

smart cards that carry identifying 

information or biometrics. This 

proposed approach would allow motor 

carriers to use identification systems 

they may already employ in their fleet 

management systems, allow adoption 

without regulatory change of newer and 

possibly more secure technologies as 

they become feasible, and accommodate 

future use of credentials currently being 

developed for transportation workers. 

Additionally, the EOBR would be 

required to display the driver’s name or 

employee ID number, if applicable, on 

all EOBR records associated with that 

driver. This requirement would also 

apply when the driver serves as a codriver. 

Factor 2: Resistance to Tampering 

The broad term ‘‘resistance to 

tampering’’ denotes that the EOBR and 

its support systems cannot be 

manipulated to produce inaccurate 


jlentini on PROD1PC65 with PROPOSAL2
2366 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

information. The intent is to prevent 

tampering both at the input stage (for 

example, a driver enters a keystroke 

sequence and presses a reset button to 

erase the last 2 hours of data) and the 

output stage (for example, a motor 

carrier’s central file server uses an 

algorithm to replace all driving time 

over the 11-hour limit with an ‘‘offduty’’ status entry). Thus it 

encompasses EOBR certification and 

testing; self-diagnosis of failures in 

hardware, software, and 

communications; and in-service 

maintenance and calibration. 

Because myriad possible methods 

exist to meet data integrity and 

auditability requirements, FMCSA 

proposes a performance-oriented, 

outcome-based regulation. The EOBR 

and associated support systems must be 

tamper resistant to the maximum extent 

practicable. They must not permit 

alteration or erasure of the original 

information collected concerning the 

driver’s hours of service, or alteration of 

the source data streams used to provide 

that information. 

A RODS, whether in paper or 

electronic form, provides a record of the 

sequence of duty status events—date 

and time they began, date and time they 

ended, and location of each change of 

duty status. Although the 1988 final rule 

on AOBRDs (53 FR 38666, Sept. 30, 

1988) offered one approach to 

generating an electronic record, it was 

limited by the recording and 

communications technologies that were 

state-of-the-practice at that time. Date, 

time, and driving status information had 

to be obtained from on-vehicle sources. 

Most of the requirements promulgated 

by the 1988 rule, found under § 395.15, 

are logical candidates for a proposed 

EOBR regulation. These include 

requirements concerning driver 

interaction with the AOBRD, tamper 

resistance, ability to record duty status 

for each driver in a multiple-driver 

operation, and ability to identify sensor 

failures and edited data. 

However, several of the § 395.15 

requirements warrant revision. Rather 

than amending § 395.15, the NPRM 

proposes a new § 395.16. The proposed 

performance specifications in § 395.16 

reflect the need for and expectation of 

a high degree of reliability in 21st 

century electronic devices and the data 

and information they record. For 

example, language concerning the 

device’s ability to ‘‘identify sensor 

failures and edited data when 

reproduced in printed form’’ (as 

currently set forth in § 395.15(i)(7)) 

would be revised in proposed 

§ 395.16(i)(2)–(5) to include electronic 

as well as paper output records. Table 

2 compares the similarities and 

differences between the § 395.15 and 

§ 395.16 requirements. 

TABLE 2.—COMPARISON OF §§ 395.15 AND 395.16 REQUIREMENTS

[The twelve items listed below are contained in ‘‘Notice of interpretation; request for participation in pilot demonstration project,’’ published by 

FHWA on April 6, 1998 (63 FR 16697 at 16698).] 

49 CFR § 395.15 Proposed § 395.16 

1 Sec. 395.15(a)(1) permits use of ‘‘Automatic on-board recording device’’ (OBR) as defined at 49 CFR 395.2: capable of recording driver’s duty status accurately and automatically * * * must be integrally 

synchronized with specific CMV functions * * * must record engine 

use, road speed, miles driven (axle revolutions), date and time of 

day (internal clock).

The EOBR does not have to be integrally synchronized to the engine 

or other vehicle equipment. The EOBR does have to use GPS or 

other location tracking systems that record location at least once a 

minute; EOBRs could still use sources internal to the vehicle to 

record distance traveled and time. Requirement to record road speed 

is removed. 

2 Sec. 395.15(b)(3) Support systems: Must provide information about 

on-board sensor failures and identify edited data.

Sec. 395.16(i)(6) Support systems: Must provide information about onboard sensor failures and identify edited data. Support systems must 

provide a file in the format specified in Appendix A of this part. The 

system must also be able to produce a copy of files on portable storage media (CD–RW, USB 2.0 drive) upon request of authorized 

safety assurance officials. 

3 Sec. 395.15(f) Reconstruction of records of duty status: Drivers must 

note any failure of automatic OBRs and reconstruct records of duty 

status (RODS) for current day and past 7 days * * * must prepare 

handwritten RODs until device is operational.

Same requirement. See § 395.16(k)(2). 

4 Sec. 395.15(h)(1) Submission of RODS: Driver must submit, electronically or by mail, to motor carrier, each RODS within 13 days following completion of each RODS.Sec. 395.16(m)(1): Driver must submit electronically, to the employing 

motor carrier, each record of the driver’s duty status. (2) For motor 

carriers not subject to the remedies provisions of part 385 of this 

chapter, each record must be submitted within 13 days of its completion. (3) For motor carriers subject to the remedies provisions of part 

385 of this chapter, each record must be submitted within 3 days of 

its completion. 

5 Sec. 395.15(h)(2): Driver must review and verify all entries are accurate before submission to motor carrier.Same requirement. See Sec. 395.16(m)(4). 

6 Sec. 395.15(h)(3): Submission of RODS certifies all entries are true 

and correct.

Same requirement. See Sec. 395.16(m)(5). 

7 Sec. 395.15(i)(1): Motor carrier must obtain manufacturer’s certificate 

that the design of OBR meets requirements.

Sec. 395.16(q)(2): The exterior faceplate of the EOBR must be marked 

by the manufacturer with the text ‘‘USDOT–EOBR’’ as evidence that 

the device has been tested and certified as meeting the performance 

requirements of § 395.16 and Appendix A of this part. 

8 Sec. 395.15(i)(2): Duty status may be updated only when CMV is at 

rest, except when registering time crossing State boundary.

Sec. 395.16 (o)(1): The EOBR must permit the driver to enter information into the EOBR only when the commercial motor vehicle is at 

rest. 

9 Sec. 395.15(i)(3): OBR and support systems must be, to the maximum extent practicable, tamperproof.Sec. 395.16(o)(2) The EOBR and associated support systems must be, 

to the maximum extent practicable, tamperproof and not permit alteration or erasure of the original information collected concerning the 

driver’s hours of service, or alteration of the source data streams 

used to provide that information. 

10 Sec. 395.15(i)(4): OBR must warn driver visually and/or audibly the 

device has ceased to function.

Sec. 395.16(o)(6) The EOBR must warn the driver via an audible and 

visible signal that the device has ceased to function. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2367 

TABLE 2.—COMPARISON OF §§ 395.15 AND 395.16 REQUIREMENTS—Continued 

[The twelve items listed below are contained in ‘‘Notice of interpretation; request for participation in pilot demonstration project,’’ published by 

FHWA on April 6, 1998 (63 FR 16697 at 16698).] 

49 CFR § 395.15 Proposed § 395.16 

11 Sec. 395.15(i)(7): OBR and support systems must identify sensor 

failures and edited data.

Sec. 395.16(o)(9) The EOBR device/system must identify sensor failures and edited and annotated data when downloaded. 

12 Sec. 395.15(i)(8): OBR must be maintained and recalibrated in accordance with the manufacturer’s specifications.Same requirement. See Sec. 395.16(p)(1) specifications. 

Integral synchronization. The matter 

of integral synchronization is probably 

the most critical element of this 

rulemaking action, in the context of 

regulatory obstacles to the voluntary use 

of on-board recorders. Recent research 

and assessments indicate that devices 

providing frequent reports of location 

and time information, obtained from 

signals not under the direct control of 

the driver or carrier, have the ability to 

provide a record of equivalent or greater 

accuracy than data from an internal 

CMV data source. Therefore, although 

the requirement for integral 

synchronization with the CMV was 

fundamental to the definition of AOBRD 

in § 395.2, it would not apply to EOBRs. 

The proposed regulation would instead 

require accurate and frequent reporting 

of the CMV’s physical location, whether 

through a device installed on the CMV 

or one worn (as a cellular telephone 

might be) by the driver. 

Unlike a conventional AOBRD (i.e., 

one meeting, but not going beyond, the 

definition in § 395.2), the EOBR 

specified in proposed § 395.16 would be 

required to autonomously record the 

CMV’s physical location at intervals no 

greater than once per minute. The EOBR 

could use GPS, terrestrial, inertial 

guidance, or a combination of methods 

to accomplish this. For a GPS-enabled 

EOBR or a cellular telephone, gaps in 

coverage can be expected to be brief—

generally on the order of minutes. The 

EOBR record of distance traveled must 

be accurate to within 1 percent of actual 

distance traveled by the CMV within a 

24-hour period. Furthermore, regardless 

of the communications mode—wireless 

or terrestrial—and the method used to 

synchronize the time and CMVoperation information into an electronic 

RODS, FMCSA would require the EOBR 

records to maintain and display duty 

status information (including distance 

traveled per day +/¥1 percent) 

accurately and to maintain the integrity 

of that information. 

This change serves two purposes. It 

frees EOBR developers from the 

necessity of connecting to the CMV, and 

it opens the door to more accurate 

recording of non-driving duty status 

categories. The proposed regulation 

would not prohibit the use of internal 

(on-CMV) sources to record CMV 

distance traveled and time. An EOBR 

may still use sources internal to the 

vehicle, such as an ECM with internal 

clock/calendar, to derive distance 

traveled. 

Self-tests and self-monitoring. Several 

commenters supported FMCSA’s 

consideration of a requirement for 

EOBRs to perform self-tests and selfmonitoring, with the driver and 

dispatcher receiving notification of test 

failures. Many commenters also 

indicated that verification by a roadside 

safety official or FMCSA compliance 

officer would be a very simple process. 

Taking these concerns into account, 

FMCSA proposes that EOBRs be capable 

of performing a power-on self-test upon 

demand. The display screen must 

provide an audible and/or visual signal 

as to its functional status. The EOBR 

would also be required to warn the 

driver by visual and audible means that 

it has ceased to function, and to record 

a code corresponding to the reason for 

cessation and the date and time of that 

event. 

FMCSA proposes maintenance and 

recalibration requirements similar to 

those currently provided for AOBRDs 

under § 395.15(i)(8): ‘‘The on-board 

recording device is maintained and 

recalibrated in accordance with the 

manufacturer’s specifications.’’ We 

propose to broaden this requirement 

only slightly by requiring that the EOBR 

record malfunction events and that the 

motor carrier retain EOBR recalibration 

and repair records. 

Although today’s electronic devices 

are generally highly reliable, they do 

occasionally malfunction. As with many 

electronic devices, losing access to an 

EOBR can present a range of operational 

and recordkeeping challenges for 

drivers and motor carriers. While 

commenters agreed that the driver 

should be allowed until the ‘‘next 

reasonable opportunity’’ to repair or 

replace a defective EOBR, they defined 

a ‘‘reasonable’’ period as anywhere from 

13 to 90 days. FMCSA must strike a 

balance between requiring timely repair 

or replacement of an EOBR and 

imposing requirements that could place 

a driver in an unworkable position. 

Therefore, we propose to require that 

drivers keep handwritten RODS until 

the EOBR is replaced or repaired. In 

addition, motor carriers using EOBRs 

under the proposed ‘‘Remedies’’

provision (see discussion below) would 

be required to repair or replace a 

malfunctioning EOBR within 14 days. 

We believe this would not place an 

unreasonable burden on motor carriers 

or drivers. 

EOBR certification. At issue is how 

motor carriers and FMCSA would 

ensure EOBRs meet the specifications 

set forth in regulation. The basic choices 

are self-certification by manufacturers—

the status quo—or independent 

certification by FMCSA or a third party. 

Commenters were divided between 

the alternatives of continuing to allow 

self-certification and a move to testing 

and certification by FMCSA, possibly in 

conjunction with NHTSA, CVSA, and 

other agencies or organizations. Many 

commenters, particularly motor carriers, 

supported the idea of a list of 

‘‘approved’’ devices, while 

recommending against the typecertification process used by the 

European Union for the new electronic 

tachographs (the EU standard is highly 

design specific and prescriptive, and 

several commenters believe it would be 

too complex and costly to implement). 

FMCSA proposes to continue 

allowing manufacturers to self-certify 

EOBRs (as they have with AOBRDs), to 

provide assurance to their motor carrier 

clients that the EOBR and support 

systems have been sufficiently tested, 

under representative conditions, to meet 

the requirements of the FMCSRs. EOBR 

manufacturers would be required to 

ensure their devices and support 

systems meet or exceed the set of 

performance criteria presented in 

proposed new § 395.16 and Appendix A 

of this NPRM. Under this selfcertification program, the EOBR 

manufacturer would certify the device 

conforms with certain pass/fail criteria 

including: 

• Accuracy of recording of CMV 

distance traveled 

• Frequency of recording location 

position 


jlentini on PROD1PC65 with PROPOSAL2
2368 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

• Output display requirements 

• Data interface requirements for 

hardwired and wireless transfer 

• Data file format requirements 

• Power-on self-test 

• Ambient temperature functional 

limits 

• Vibration and shock requirements 

• Operator safety requirements 

FMCSA believes this approach would 

provide improved guidance to EOBR 

manufacturers regarding the Agency’s 

expectations for device performance. It 

would address motor carriers’ and safety 

compliance officials’ concerns about 

whether an EOBR had indeed been 

tested for regulatory compliance, and 

whether it passed the tests. 

Factor 3: Ability To Produce Records for 

Audit 

FMCSA acknowledges drivers’ and 

motor carriers’ comments that the 

current blanket prohibition against 

amending AOBRD records places 

unnecessary operational obstacles to 

wider adoption of electronic HOS 

recording devices. The proposed 

regulation would allow drivers to 

amend a non-driving record 

immediately before and after a trip or 

workday. This would provide 

operational flexibility to drivers to 

correct duty status errors arising 

because the driver forgot to log out of 

the system. The limitation would 

prevent attempts at amendments to 

‘‘update’’ the EOBR record in 

anticipation of a roadside inspection. 

FMCSA recognizes this proposal 

significantly changes the status quo and 

places responsibility on EOBR designers 

to safeguard against fraudulent entries. 

FMCSA agrees with commenters that 

some type of audit trail is useful and 

necessary. Although various elements of 

§ 395.15 speak indirectly to auditability 

of AOBRD records, we believe the 

requirement needs to be strengthened. 

Therefore, we propose to require 

‘‘parallel data streams’’ (sequences of 

original and modified data entries) to 

clearly indicate the content of original 

records, any revisions and amendments 

to the records, the identities of people 

who entered and revised or amended 

data, and when the original entries and 

amendments were made. 

Recording interval: In order to specify 

an appropriate interval for an EOBR to 

record information, we must consider 

the way the information is to be used, 

not simply the capabilities of the 

various technologies to sense and record 

it. 

Historically, CMV drivers have been 

required to record information on the 

RODS graph-grid in 15-minute 

increments and to note shorter periods 

(less than 15 minutes) in the ‘‘Remarks’’

section of the document. A series of 

rounding errors—deliberate or 

otherwise—could easily result in errors 

of several hours of duty time over the 

course of a long trip. Drivers have been 

required to record location only when 

there is a change in duty status. This 

has the effect of increasing the 

complexity and time needed for a motor 

carrier or enforcement official reviewing 

the records to reconstruct a trip to 

determine compliance, particularly if 

the supporting documents are 

incomplete or missing. 

The current definition of AOBRD at 

49 CFR 395.2 states: ‘‘The device must 

be integrally synchronized with specific 

operations of the commercial motor 

vehicle in which it is installed. At a 

minimum, the device must record 

engine use, road speed, miles driven 

* * *.’’ When the regulation was 

published, it was necessary to include 

this requirement because integral 

synchronization and engine information 

were essential to enable verification of 

when a driver was in an on-duty driving 

status. Since that time, advances in 

object-location technologies and 

communication of location information 

are such that it may no longer be 

necessary to require integral 

synchronization. 

However, in order to ensure that time 

and travel distance information is 

recorded accurately, the vehicle location 

information must be recorded at 

frequent intervals. The longer the 

recording interval, the less accurate the 

travel distance information, simply 

because the location will be computed 

as a straight line between points. On 

June 10, 1998, Werner Enterprises 

entered into a Memorandum of 

Understanding (MOU) with the agency 

to use GPS technology and related safety 

management computer systems as an 

alternative to handwritten driver RODS. 

Over the course of the pilot 

demonstration project, FMCSA 

conducted onsite reviews and 

investigated a complaint. FMCSA’s 

reviews confirmed that the inability of 

Werner’s original electronic logging 

system to accurately measure distance 

traveled and average speed was caused 

not by any limitations of GPS 

positioning but rather by the infrequent 

updates of vehicle position being 

recorded by the system. In March 2002, 

Werner and FMCSA entered into a 

revised MOU to amend the terms of the 

June 1998 agreement. FMCSA granted 

Werner a 2-year exemption in 

September 2004 to allow the carrier to 

continue to use its system. The Agency 

renewed the exemption for another 2- 

year period in September 2006 (71 FR 

52846, Sept. 7, 2006). The terms and 

conditions of the exemption are 

described in that notice at FMCSA 

Docket No. 2003–15818. 

The key concern is that travel 

distance—and the associated driving 

time—be recorded and reported at a 

level of accuracy appropriate to ensure 

HOS compliance. Specifically, it is 

critical that the device not 

‘‘undercount’’ distance (or the 

associated travel time) because that 

could mask HOS violations. By the same 

token, an ‘‘overcount’’ of distance 

traveled could suggest HOS violations 

where none exist. FMCSA proposes to 

require that the difference between 

actual distance traveled and distance 

per day (i.e., a 24-hour period) 

computed via location-tracking methods 

be +/¥1 percent, with a 1-minute 

interval for the EOBR to record location 

data. FMCSA believes this will keep the 

technology affordable for motor carriers 

while still providing an appropriate 

level of accuracy for location-based 

verification of RODS. 

FMCSA requests comments on the 

technical requirements and associated 

costs of recording CMV location across 

a range of time intervals (1, 3, and 5 

minutes) and accuracies (1, 3, and 5 

percent). 

The Agency stresses that it is not the 

intent of the NPRM to require the EOBR 

to transmit location information from 

the device (or the CMV in which it is 

used) to a tracking system maintained 

by a motor carrier or another party 

working on a motor carrier’s behalf. We 

recognize that although there are no 

operational costs to receive satellitegenerated location information (such as 

from the GPS array), transmitting that 

information from the EOBR to another 

location would entail costs. Because 

FMCSA does not propose to require the 

EOBR to transmit information at specific 

intervals to the motor carrier or anyone 

else, the location update intervals 

would not increase the cost of the EOBR 

or affect how it is used. The update 

intervals are simply a matter of 

programming or menu selection for the 

device. 

FMCSA requests comments on the 

question of transmitting location 

information from the EOBR to the motor 

carrier. 

Factor 4: Ability of Roadside 

Enforcement Personnel To Access the 

HOS Information Quickly and Easily 

Data presentation (display) format. 

The presentation requirements for HOS 

data on an AOBRD are fundamentally 

different from those for paper RODS: 

AOBRDs do not require the familiar 

graph-grid output format, and devices 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2369 

lacking electronic displays have no 

output presentation. This presents a 

challenge to roadside safety officials. 

Most commenters supported a 

standardized, simple EOBR display 

format showing the current driverrelated status and highlighting any 

noncompliance. 

The data file format for an output 

display must facilitate review by 

roadside safety officials using handheld 

computers. The current regulation 

requires only a hardware interface 

between the AOBRD and the motor 

carrier’s back-office system. Some 

commenters believe the current 

hardware standard (RS–232) for serial 

communications is outdated. Others 

maintained that manufacturers should 

develop data interchange standards. 

Still others pointed to the wide range of 

standard data interchange methods 

available (e.g., USB) but emphasized the 

importance of having standardized data 

formats and communications protocols. 

FMCSA’s proposed performancebased approach to standards for EOBRs 

would provide several options for 

information transfer and display. EOBRs 

would be required to produce upon 

demand a driver’s HOS chart using a 

graph-grid format in either electronic or 

printed form and a digital file in a flat 

file using a specified format. The graph 

grid and digital file must show the time 

and sequence of duty status changes 

including the driver’s starting time at 

the beginning of each day. 

The option for providing the RODS 

data via a flat file would serve two 

purposes. It would allow the use of 

smaller and less costly electronic 

displays on the EOBR itself and also 

permit the data to be transferred to a 

safety official’s laptop computer, PDA, 

or similar device. 

With respect to options for hardwired 

and wireless data transfer methods, the 

Agency’s intent is to allow only a oneway transfer—the enforcement official’s 

computer would not transfer data to the 

EOBR. In addition, the use of a standard 

file format for EOBR data transfer could 

permit an extra layer of motor carrier 

compliance verification through 

automated screening of the records. A 

standard file format could also reduce 

the cost of EOBRs and support systems, 

particularly for small motor carriers 

using desktop-computer-based backoffice recordkeeping systems. The 

reduction in support system costs 

would flow from the ‘‘few to many’’

relationship between the back-office 

systems and EOBRs; according to some 

industry estimates, there are more than 

400,000 EOBRs and ‘‘EOBR-ready’’

devices in use today. This same 

equation holds for the motor carrier 

safety compliance assurance 

community—there are perhaps 10,000 

laptops and handheld computers in use 

by FMCSA and State commercial 

vehicle safety officials today. 

In addition to requiring the graph-grid 

and flat file output of the full record on 

a 24-hour basis, the proposed rule 

requires duty status summary 

information similar to that currently 

required under § 395.15(i)(5). This 

information would immediately 

indicate to the enforcement official 

whether a more detailed review of the 

records might be appropriate. 

Reportedly, many safety enforcement 

officials are apprehensive about entering 

the cab of a commercial motor vehicle 

to check HOS records on an AOBRD. 

They perceive their physical presence in 

the driver’s workspace as being 

potentially unsafe. To address this 

concern, FMCSA proposes to require 

that information displayed and stored 

on the EOBR be made accessible to 

authorized Federal, State, or local 

enforcement officials for review without 

the official’s having to enter the CMV. 

This proposed requirement could be 

met in a variety of ways—by using 

various hardwired and wireless 

communications methods; by copying 

the EOBR information to removable 

media and handing the media to the 

official; or by simply handing the EOBR 

to the official. 

Factor 5: Level of Protection Afforded 

Other Personal, Operational, or 

Proprietary Information 

The existing information collection 

requirements for paper RODS and 

AOBRDs, as well as those proposed for 

EOBRs, are intended to produce an 

accurate HOS record. The record must 

accurately disclose the amount of time 

the driver spends in each of the four 

duty status categories, the date, and the 

location of each change of duty status. 

The information is recorded and 

reviewed by FMCSA and its government 

Agency partners to determine 

compliance with the HOS requirements 

of part 395. Location information is 

limited to city and State, the level of 

detail required to enable reconstruction 

of the sequence of events for 

compliance-assurance purposes. The 

level of detail that would be required for 

EOBR records is the same as for paper 

RODS. 

As discussed under Factor 1, driver 

identification requirements would be 

geared to verification of the driver’s 

identity on an HOS record. This 

rulemaking would not require 

disclosure of a driver’s proprietary 

information. 

Other uses for data. Drivers and motor 

carriers opposing an EOBR mandate also 

expressed concerns about the potential 

for ‘‘scope creep’’—collection by EOBRs 

of data for use in enforcement and 

litigation actions unrelated to hours-ofservice compliance. It is FMCSA’s 

intent that the data recorded on EOBRs 

and support systems, and the 

information derived from those data, 

relate solely to compliance with the 

HOS regulations. The data requirements 

are therefore limited, and the 

technological challenges of collecting, 

recording, and retaining the data on the 

EOBR and support systems are generally 

well known and are met by many 

manufacturers. As discussed in the 

Agency’s response to comments about 

the development of a ‘‘basic’’ EOBR to 

promote increased carrier acceptance, 

one reason for proposing to eliminate 

the requirement for recording road 

speed is that § 392.6, Schedules to 

conform with speed limits, addresses 

road speed in a broader safety context. 

Notwithstanding these deliberate 

measures to narrow the scope of today’s 

rule, FMCSA reserves the right to adopt 

enforcement policies and practices to 

take advantage of continuing 

technological advances. Any future 

proposals to use EOBRs or other 

electronic monitoring for enforcement, 

compliance, or other Agency purposes 

will be evaluated on their merits. 

We recognize industry concerns 

regarding the potential use of electronic 

monitoring data in litigation. For the 

Agency to withhold such data in 

response to a Freedom of Information 

Act request, a court order, or another 

legal process, however, would require 

statutory amendments. FMCSA 

emphasizes that, under the proposal, the 

vast majority of motor carriers would 

have full discretion as to whether to use 

EOBRs that comply with proposed 

§ 395.16 (or AOBRDs compliant with 

§ 395.15) or to continue using paper 

RODS. Only those motor carriers with 

significant and recurring HOS 

noncompliance would be required to 

install and use EOBRs. 

Data security of EOBRs. The 

September 2005 Volpe Center report, 

Recommendations Regarding the Use Of 

Electronic On-Board Recorders (EOBRs) 

for Reporting Hours Of Service (HOS) 

and the July 2005 National Institute of 

Standards and Technology (NIST) 

report, Technical Review and 

Assessment: Recommendations 

Regarding the Use of Electronic OnBoard Recorders (EOBRs) for Reporting 

Hours of Service (HOS), address data 

security in terms of physical security for 

portable storage media devices and data 

security for the RODS information. 


jlentini on PROD1PC65 with PROPOSAL2
2370 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

As discussed in the NIST report, 

although data stored on the portable 

media are not encrypted, they are 

written in binary code. This non-text 

format renders the data unintelligible to 

a person attempting to view or edit the 

log file using a personal computer with 

a text editor. This approach offers an 

improved level of data tampering 

protection. If text files are used, they 

can be made ‘‘read only’’ to prevent 

alteration except by authorized 

personnel. This would allow drivers to 

review their logs, but not to alter them. 

Finally, NIST noted that although 

encryption provides a high level of 

privacy and security, the technologies 

involved can be complex and costly to 

administer. NIST’s assessment is that 

data security, rather than privacy of 

personal information, is probably the 

principal concern. Thus, data 

encryption may provide a higher level 

of security than that required for RODS 

applications. FMCSA agrees with this 

assessment and therefore is not 

proposing use of encryption for EOBR 

data for wired data transfers between 

EOBRs and roadside enforcement 

computers, or between motor carrier 

back-office systems and safety 

enforcement computers during CRs. 

However, for wireless data transfers 

between EOBRs and roadside 

enforcement computers via Bluetooth or 

Institute of Electrical and Electronics 

Engineers, Inc. (IEEE) 802.11g ‘‘Wi-Fi’’

standards, FMCSA plans to specify a 

standard for data security and 

encryption. We have not identified an 

optimal standard, and request 

comments on which existing industry 

standards for data security and 

encryption should be required to costeffectively prevent the hacking of both 

EOBRs and roadside enforcement 

computers. Such attacks would include 

unauthorized access to data and device 

functions as well as denial of service. 

EOBRs and privacy. This NPRM does 

not change the treatment of HOS records 

with respect to privacy matters. 

FMCSA’s predecessor agencies have had 

the authority to review drivers’ and 

motor carriers’ documents since 1937, 

when the first HOS regulations were 

promulgated (3 MCC 665, Dec. 29, 1937; 

3 FR 7, Jan. 4, 1938). 

From the Motor Carrier Act of 1935 

onward, Congress has recognized the 

Federal Government’s interest in 

providing a higher level of safety 

oversight to CMV drivers than to drivers 

of other motor vehicles. CMV driver 

licensing, assessment of physical 

qualifications, training, and 

performance of driving and other safetysensitive duties are subject to Federal 

regulation. The regulations also require 

records to document the results of 

various types of assessments (such as a 

driver’s physical qualifications) and 

compliance with regulations concerning 

CMV operations (such as a RODS to 

document HOS). 

FMCSA’s commitment to promoting 

highway safety and preventing crashes 

involving CMVs is compatible with 

requiring records to determine the 

number of hours CMV drivers drive, are 

on duty, are off duty, or are using a 

sleeper berth, and the location of 

changes in duty status. Except in the 

context of an investigation of a crash or 

a complaint of alleged FMCSR 

violations, when the Agency might 

inquire into off-duty time to learn if a 

driver was working for another motor 

carrier or performing other work during 

an alleged off-duty period, FMCSA 

generally does not inquire into a driver’s 

off-duty activities. The Agency’s interest 

in records of duty status that identify 

the date, time, and location at each 

change of duty status is based on its 

need to reconstruct the sequence of 

events for trips to determine compliance 

with the HOS regulations, including 

whether the driver was afforded an offduty period and had the opportunity to 

obtain restorative sleep. If during this 

enforcement process FMCSA found 

evidence of vehicle activity during a 

claimed off-duty period, we would 

inquire further to establish the veracity 

of the RODS. 

Finally, as stated in the September 

2004 ANPRM (69 FR 53386, at 53392, 

Sept. 1, 2004) and reiterated under 

Audit Trail/Event Log in this NPRM 

preamble, the Agency recognizes that 

the need for a verifiable EOBR audit 

trail—a detailed set of records to verify 

time and physical location data for a 

particular CMV—must be 

counterbalanced by privacy 

considerations. See also the discussion 

on FMCSA’s Privacy Impact Assessment 

later in this preamble. 

Factor 6: Cost 

The ANPRM requested public 

comments on development of 

requirements for a ‘‘basic’’ EOBR to 

promote increased motor carrier 

acceptance of the technology. At issue 

was whether the Agency should propose 

requirements for ‘‘minimally 

compliant’’ EOBRs that would provide 

the electronic-data equivalent of an 

accurate RODS yet be more affordable 

for small motor carriers and 

independent drivers (69 FR 53386, at 

53394); propose a performance-based 

specification in the spirit of § 395.15; or 

propose a detailed design specification 

similar to the European Union 2135/98 

requirement for electronic tachographs 

and their support systems. 

FMCSA proposes a single set of 

performance-based specifications for 

EOBRs under a new § 395.16. This has 

the advantage of being simpler and more 

straightforward for motor carriers to use, 

for manufacturers and system providers 

to develop, and for safety officials to 

enforce. It would promote the use of 

advanced technologies as they become 

more affordable and appropriate for 

motor carrier applications. 

Several of the proposed performance 

requirements discussed earlier—such as 

the removal of the ‘‘integral 

synchronization’’ requirement and 

substitution of a requirement for 

accuracy of information on distance 

traveled by the CMV, the requirement 

for flat-file output, and the provision to 

allow communications via several 

alternative hardwired and wireless 

methods—have in common the 

potential to decrease the cost of EOBRs. 

The proposed elimination of the integral 

synchronization requirement opens the 

door to using a large variety of 

commercial off-the-shelf 

telecommunications devices as the 

EOBR, for a significant reduction in 

EOBR hardware costs. Another potential 

change in performance requirements 

would be the elimination of any 

requirement for the EOBR to accept 

keyboard input for State border crossing 

information. This AOBRD requirement, 

which facilitated motor carriers’

compliance with fuel tax reporting 

procedures, reflected a design feature 

common to 1980s-era recorders. FMCSA 

does not propose to remove from 

§ 395.15 the requirements for integral 

synchronization, for recording of State 

border crossing information, and for the 

capability to transfer data to a ‘‘backoffice’’ system. 

Under this NPRM, motor carriers now 

using AOBRDs compliant with § 395.15 

would not be required to invest in 

§ 395.16-compliant EOBRs. These 

carriers could continue to use the 

AOBRDs for the life of the CMVs in 

which they are installed. Any devices 

used for recording HOS installed or 

used in CMVs manufactured on or after 

2 years following the effective date of an 

EOBR final rule would be required to 

comply with the new requirements. 

Factor 7: Driver Acceptability 

Drivers’ comments to the ANPRM 

docket (as well as to the dockets of the 

2000 NPRM on hours of service, the 

2003 HOS final rule, and the 2005 HOS 

NPRM and final rule) reflect mixed 

feelings about EOBRs. Some drivers 

appreciate that use of these devices can 

significantly reduce the time and effort 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2371 

of preparing and filing paper RODS. 

They also value the accurate and timely 

duty status information an EOBR 

provides the motor carrier, which 

removes an incentive for a dispatcher to 

ask a driver to drive longer or take less 

off-duty time than the regulations 

require. Other drivers view the prospect 

of using an EOBR as an unwanted and 

unwarranted intrusion. These drivers 

value their independence and selfreliance, and resent the notion of 

oversight by their supervisors or 

Government authorities. 

In August 1995, FHWA conducted a 

survey of truck and motorcoach drivers 

to gauge potential acceptance of 

commercial vehicle operations (CVO) 

user services (User Acceptance of 

Commercial Vehicle Operations 

Services, Task B Final Report, Penn and 

Schoen Associates, Inc., August 8, 

1995). On the whole, commercial 

vehicle drivers were receptive to and 

supportive of the use of CVO 

technologies and user services on the 

road and in their vehicles. Technologies 

garnering the most support were seen by 

survey respondents as having the 

potential to ‘‘make my work easier,’’ be 

‘‘useful for me,’’ and ‘‘* * * work [in 

my vehicle]/I would rely on it.’’ See 

page 9 of the report. 

At the same time, drivers expressed 

concern that certain of the technologies 

would constitute an invasion of driver 

privacy by either the government or the 

driver’s company. Another concern was 

that the systems would rely too much 

on computers and diminish the role of 

human judgment. Drivers were wary of 

services that might overpromise, leaving 

them dependent on unproven 

technology. They wanted systems that 

would be consistently reliable, 

workable, and useful yet pose no threat 

to the driver, his vehicles, his privacy, 

or his livelihood. 

On the whole, drivers tended to 

evaluate the commercial vehicle 

operations services from the perspective 

of personal experience rather than 

focusing on the industry as a whole. For 

example, independent owner-operators, 

who have historically been more 

skeptical of technology and wary of 

intrusion by either the government or 

trucking companies, reacted more 

negatively toward the technologies than 

did other drivers. 

A second study, required by Congress 

under the Fiscal Year 1995 U.S. 

Department of Transportation 

Appropriations Act, assessed 

technological, economic, and 

institutional factors requiring 

consideration if smart-card applications 

were to be implemented. The study 

found that smart-card applications were 

feasible for driver’s licenses, operationsand maintenance-oriented vehicle cards, 

and electronic toll collection, but not for 

international border crossing 

(telecommunications protocols were 

already in place) and drivers’ records of 

duty status. The researchers noted the 

lack of a requirement for motor carriers 

to automate the RODS, and believed 

‘‘any proposed regulation specifying the 

use of smart cards would almost 

certainly encounter fierce opposition.’’

(Smart Cards in Commercial Vehicle 

Operations [Report FHWA–MC–97–022, 

Dec. 1996], page 51). 

It is clear that any type of 

technological innovation must be 

introduced in a forthright way. Users 

must be aware of the technology and 

understand the HOS regulations with 

which they must comply. Users must be 

provided appropriate training, and the 

technology should not distract them 

from their primary tasks. For most 

motor carriers, the decision to use 

EOBRs (or AOBRDs) would continue to 

be voluntary under the proposed rules. 

Motor carriers operating in compliance 

with the HOS regulations may continue 

to choose between paper or automated 

RODS systems, according to what works 

best for them and their drivers. Only 

those motor carriers demonstrating 

recurrent, significant noncompliance 

with the HOS regulations would be 

required to use EOBRs. However, all 

drivers used by those carriers would be 

required to operate vehicles equipped 

with EOBRs. 

FMCSA believes the EOBR remedial 

provisions must, to be effective, apply to 

carriers using owner-operators and to 

the owner-operators’ equipment. We 

recognize that a carrier leasing 

equipment from owner-operators could 

argue that those CMVs are outside the 

scope of the remedial provisions 

because ownership remains in control of 

the lessor, and the carrier has no control 

over whether the owner-operator 

installs the equipment. However, 49 

CFR 376.12(c)(1) requires a motor 

carrier using leased equipment to 

assume ‘‘exclusive possession, control, 

and use of the equipment’’ for the 

duration of the lease. Therefore, FMCSA 

proposes that the remedial directive 

apply to all vehicles used by the carrier 

to perform transportation services on 

the carrier’s behalf. If a motor carrier is 

issued an EOBR remedial directive, then 

it must install (or have installed) EOBRs 

in all vehicles it uses. Owner-operator 

vehicles leased to such a remediated 

carrier would be required to have 

EOBRs installed even if the owneroperator holds separate operating 

authority. Before leasing to a particular 

carrier, an owner-operator should ask 

the carrier whether it is operating under 

an EOBR remedial directive. 

As discussed elsewhere in this notice, 

FMCSA proposes to encourage motor 

carriers, and owner-operators leased to 

motor carriers, to consider using EOBRs 

by offering incentives in the form of an 

alternative process of reviewing HOS 

records. In addition, the performance 

specifications under proposed § 395.16 

include a number of enhancements that 

take advantage of the significant 

advances in monitoring, recording, and 

communications technologies since the 

§ 395.15 requirements were developed. 

These features should improve the 

usefulness of EOBRs to drivers. 

We are proposing that an EOBR be 

required to provide an audible and 

visible signal to the driver at least 30 

minutes in advance of reaching the 

driving time limit and the on-duty limit 

for the 24-hour period. EOBRs would 

also be required to provide an audible 

and visible signal to the driver at least 

30 minutes in advance of reaching the 

60/70-hour limits for on-duty time. The 

visual signal must be visible to the 

driver when seated in the normal 

driving position. The audible signal 

must be capable of being heard and 

discerned by the driver when seated in 

the normal driving position, whether 

the CMV is in motion or parked with the 

engine operating. 

FMCSA acknowledges there is room 

to improve the accuracy of recording 

non-driving duty status categories. 

Comments to the docket by several 

EOBR manufacturers suggested methods 

for noting on-duty not-driving status. 

Generally, these required a driver to 

annotate the record or to select a 

different duty status if on-duty notdriving was not appropriate. FMCSA 

proposes that EOBRs be required to 

select on-duty not-driving as the default 

status when the vehicle is not moving 

for a certain period of time. The EOBR 

would also advise the driver via audible 

and visible means to enter a new duty 

status when the transmission is placed 

in park, the parking brake is engaged, or 

the ignition is turned off. The driver 

would still need to enter the duty status 

on the EOBR manually if his or her duty 

status differed from the on-duty notdriving default setting. We believe this 

requirement would reduce direct driver 

interaction with the EOBR, as 

recommended in comments provided by 

the IBT and advocacy organizations. 

Although some commenters 

recommended FMCSA mandate EOBRs 

that would record duty status categories 

accurately without driver-EOBR 

interaction, FMCSA is not aware of any 

such devices in the commercial 

marketplace at this time. We request 


jlentini on PROD1PC65 with PROPOSAL2
2372 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

4 In addition to drawing upon the expertise of 

FMCSA enforcement and compliance personnel, 

the Agency solicited and received input from State 

enforcement officials regarding mandatory EOBR 

installation for carriers with poor HOS compliance. 

Representatives from the Nebraska and Washington 

State Patrols and the Connecticut Department of 

Motor Vehicles served as members of the Agency’s 

EOBR rulemaking team. 

public comment on the availability of 

such devices in the near future. 

This NPRM also includes a provision 

requiring an EOBR to provide for the 

driver’s review of each day’s record 

before submitting it to the motor carrier. 

As noted previously, the driver would 

be allowed at that time to make 

annotations and amendments to the 

electronic RODS, but not to amend 

driving-status information. The EOBR 

must be designed so that if a driver or 

any other person annotates a record in 

the device or a support system for the 

device, the annotation does not 

overwrite the original contents of the 

record. This would preserve the 

auditability of EOBR records. 

B. Remedies 

FMCSA, based on its safety research, 

believes that motor carriers whose 

drivers routinely exceed HOS limits or 

falsify their HOS records have an 

increased probability of involvement in 

fatigue-related crashes and therefore 

present a disproportionately high risk to 

highway safety. Based on the Agency’s 

analysis of its Motor Carrier 

Management Information System 

(MCMIS) data from CRs conducted since 

1995 on motor carriers operating in 

interstate commerce, carriers to which a 

remedial directive would apply under 

this proposal have crash rates that are 

87 percent higher than average. 

FMCSA selects motor carriers to 

undergo CRs based in part on data 

generated during roadside inspections. 

FMCSA and enforcement personnel in 

States receiving Motor Carrier Safety 

Assistance Program funds under 49 

U.S.C. 31102 enforce motor carrier HOS 

rules through roadside inspections and 

CRs. Unlike CRs, which usually are 

conducted at a carrier’s principal place 

of business, roadside inspections are 

performed at a fixed or mobile roadside 

facility. Inspectors may perform any of 

six categories, or levels, of inspection. 

Level I, II, and III inspections include 

examination of the driver’s HOS 

compliance, commercial driver’s 

license, medical certification, and 

hazardous materials (HM) requirements. 

Level I and II inspections include 

additional factors such as examination 

of parts and accessories necessary for 

safe operation, motor carrier operating 

authority and financial responsibility, 

and applicable HM inspection items. 

These roadside inspections are intended 

to assess the compliance of a company’s 

motor vehicles and drivers with FMCSA 

safety, economic, and hazardous 

materials regulations. Where certain 

serious violations are discovered, the 

driver or vehicle may be placed out of 

service. 

In prioritizing among carriers for CRs, 

FMCSA investigators consider a number 

of factors, including whether the carrier 

has crash involvement, the carrier’s 

vehicle and driver out-of-service rates, 

Safety Status (SafeStat) information 

system results, the date and result of the 

previous CR, non-frivolous complaints 

the Agency has received concerning the 

carrier, and whether the carrier is 

seeking an upgrade to its existing safety 

rating. During CRs, FMCSA or State 

safety investigators examine in detail 

the motor carrier’s compliance with all 

applicable safety regulations. 

In examining HOS records during 

CRs, safety investigators look at samples 

of drivers’ RODS, checking for 

violations, accuracy, and completeness. 

It is worthwhile to note that FMCSA’s 

method of selecting records during the 

course of a CR has withstood a judicial 

challenge. American Trucking Ass’ns v. 

Department of Transportation, 166 F. 3d 

374 (D.C. Cir. 1999). In its decision, the 

court recognized the distinctive 

character of HOS regulations and held 

that the Agency had acted rationally in 

assigning two points within its Safety 

Fitness Rating Methodology (SFRM) 

scheme—a double weighting—for a 

pattern of HOS violations. The court 

stressed the importance of controlling 

driver fatigue and the fact that the HOS 

regulations are the only ones dealing 

with driver fatigue. These same patterns 

of HOS violations are the focus of the 

EOBR remedial directives proposed in 

this NPRM. 

During that portion of the CR 

involving HOS records review, safety 

investigators use uniform sampling 

standards including the number of 

drivers to be reviewed, the minimum 

number of RODS to be checked, and 

other factors designed to focus the 

investigation on areas where there has 

been probable noncompliance. The 

number of drivers whose RODS are 

checked varies depending on the size of 

the carrier (e.g., 0–5 drivers, all drivers’

logs; 6–10 drivers, 5 drivers’ logs; 16–50 

drivers, 7 drivers’ logs; etc.). The 

minimum number of RODS reviewed for 

part 395 violations also depends on the 

carrier’s driver population (e.g., 1–5 

drivers, 30 × number of drivers; 6–15 

drivers,150 RODS reviewed; 6–15 

drivers, 210 RODS reviewed). 

Investigators generally look at RODS for 

the 6-month period prior to the CR. 

The investigator prepares a CR report 

for the motor carrier documenting the 

sample size used, the number of records 

reviewed, and the number of violations 

discovered under part 395. If the 

violation rate for any ‘‘critical’’ part 395 

regulation (see 49 CFR Part 385 App. B 

§ VII) is equal to or greater than 10 

percent, this pattern of noncompliance 

will potentially affect the carrier’s safety 

rating. 

Traditionally, the Agency has relied 

on two of its regulatory powers to deter 

HOS violations and obtain motor carrier 

compliance: (i) The issuance of civil 

penalties under 49 U.S.C. 521(b) 

followed by enforcement proceedings 

under 49 CFR Part 386; and (ii) the 

issuance of proposed or final 

‘‘unsatisfactory’’ or ‘‘conditional’’ safety 

ratings under 49 CFR Part 385. Motor 

carrier records examined during Agency 

CRs, however, indicate that some motor 

carriers routinely violate the HOS 

regulations despite the Agency’s use of 

these enforcement and compliance 

tools. Incidents of log falsification 

continue to be a significant concern, and 

civil penalties in particular have come 

to be viewed by some carriers—

particularly those with significant and 

repeated HOS violations—less as a 

deterrent than simply as a cost of doing 

business. FMCSA therefore concludes 

that additional regulatory measures are 

needed to improve HOS compliance of 

certain motor carriers.4

Proposed Trigger for Remedial 

Directives 

FMCSA proposes that the trigger for 

an EOBR notice of remedial directive 

and proposed unfitness determination 

be the ‘‘final determination’’ of one or 

more pattern violations of any 

Appendix C regulation, followed by the 

discovery of one or more pattern 

violations of any Appendix C regulation 

during a CR completed in the 2-year 

period subsequent to the closing date of 

the CR that resulted in the first final 

determination. A ‘‘pattern violation,’’

for purposes of the remedial directive, is 

defined with respect to Appendix C 

regulations as a violation rate equal to 

or greater than 10 percent of the records 

reviewed. For example, 25 violations 

out of 100 records reviewed would 

represent a 25 percent violation rate and 

therefore constitute a pattern violation. 

If the motor carrier failed to install 

and use the EOBRs, it would be 

prohibited from operating in interstate 

commerce and intrastate operations 

affecting interstate commerce. Further, 

if the motor carrier were a for-hire 

carrier, it would have its registration 

revoked. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2373 

5The Agency would continue to capture and 

make use of this valuable roadside input indirectly 

by using SafeStart results as a basis for selecting 

carriers for CRs. 

The mandatory EOBR installation 

period would be for 2 years following 

issuance of the remedial directive. The 

two CRs need not be consecutive, so 

long as they occur within the relevant 

2-year period. For the purpose of the 

remedial directive, FMCSA would focus 

only on part 395 HOS violations where 

noncompliance relates to management 

and/or operational controls. These are 

indicative of breakdowns in a motor 

carrier’s safety management controls 

and considered relevant to the proposed 

remedial provisions. All violation 

calculations would be based on, and all 

proposed remedial directives would 

apply to, motor carriers rather than to 

individual drivers. 

The proposed EOBR remedial 

directive would be reserved for carriers 

whose safety management controls are 

seriously deficient. FMCSA bases its 

EOBR proposal on the Agency’s 

authority under 49 U.S.C. 31144 to 

determine motor carrier safety fitness. 

This invocation of the Agency’s safety 

fitness authority is in keeping with 

FMCSA’s Comprehensive Safety 

Analysis 2010 (CSA 2010), a reform 

initiative launched in 2004. The 

ultimate goal of CSA 2010 is 

development of an optimal operational 

model that will allow FMCSA to focus 

its limited resources on improving poor 

safety performers. For more information 

about CSA 2010, visit http://www.

fmsca.dot.gov/safety-security/safetyinitiatives/csa2010listening.htm. 

This proposal thus focuses on HOS 

violations where noncompliance relates 

to management and/or operational 

controls. Violations of only those 

regulations listed in proposed new 

Appendix C to Part 385 will be counted 

toward issuance of a remedial directive 

and proposed unfitness determination 

or a notice of potential remedial 

directive applicability (NPRDA). The 

Appendix C regulations consist of all 

the part 395 regulations that currently 

appear in Part 385 Appendix B, section 

VII. These 24 provisions, which also are 

classified as ‘‘critical’’ regulations under 

the current rules, are the HOS violations 

that FMCSA has determined reflect 

deficiencies in safety management or 

operational controls. (See Part 385, App. 

B, II(c); 62 FR 60035 at 60044, Nov. 6, 

1997.) They are therefore well suited to 

use as part of the EOBR remedial 

directives trigger. In order to allow 

maximum flexibility for the work of the 

CSA 2010 initiative noted previously, 

however, the Agency is proposing to 

duplicate and house these 24 

regulations in a separate Appendix C. 

FMCSA intends this approach to permit 

a significant future revision of the 

Agency’s acute and critical regulatory 

scheme, if such a change is deemed 

appropriate, without necessitating an 

additional rulemaking change to the 

EOBR remedial directives provisions. 

In addition, rather than focusing on 

single violations, FMCSA is looking for 

patterns of noncompliance. The focus 

on these violations as a basis for EOBR 

remedial directives is consistent with 

the current safety fitness determination 

process and logically related to the 

structure of current part 385. This 

management and control aspect is an 

appropriate focus for the EOBR remedial 

program because patterns of 

noncompliance with these types of 

regulations are linked to inadequate 

safety management controls and higher 

than average crash rates. As stated in 

Part 385, App. B II(e), ‘‘FMCSA has used 

patterns of noncompliance with safety 

management-related regulations since 

1989 to determine motor carriers’

adherence to the Safety fitness standard 

in § 385.5.’’

Where a number of documents are 

reviewed, as with the HOS component 

of the CR, a pattern of noncompliance 

can be established when at least 10 

percent of the documents examined 

reflect a violation of any regulation 

listed in Appendix C to Part 385. 

FMCSA believes that motor carriers 

with effective safety management 

controls should be able to maintain a 

noncompliance rate of less than 10 

percent for the Appendix C regulations. 

FMCSA emphasizes that issuance of a 

remedial directive would not preclude 

the Agency from also imposing 

appropriate civil penalties on the carrier 

for HOS violations, just as all motor 

carriers would continue to be subject to 

civil penalties for HOS violations that 

do not rise to the level of a ‘‘pattern.’’

Likewise, the Agency’s civil penalty 

policy under section 222 of the Motor 

Carrier Safety Improvement Act of 1999 

(Pub. L. 105–159, 113 Stat. 1748) 

(MCSIA) would remain in effect for all 

carriers. Under this policy, as explained 

in ‘‘Section 222 of the Motor Carrier 

Safety Improvement Act of 1999; 

Clarification of Agency Policy 

Statement’’ (69 FR 77828, Dec. 28, 

2004), the Agency imposes a maximum 

civil penalty on motor carriers 

committing three violations of the same 

regulatory part within 6 years. In 

proposing a shorter, 2-year period 

during which discovery of one or more 

pattern violations by the carrier would 

trigger a remedial directive, FMCSA 

intends to supplement, rather than 

negate, the Agency’s civil penalty policy 

under MCSIA section 222. 

The proposed remedial directives are 

predicated on pattern violations of 

Appendix C regulations discovered 

during CRs by FMCSA or State safety 

investigators. FMCSA considered, but 

rejected, approaches for a remedial 

directives trigger based on roadside 

inspections or other non-CR procedures. 

Far more roadside inspections than CRs 

are performed, and these inspections 

generate a significant volume of HOS 

compliance data. However, certain of 

the Agency’s algorithms using these 

data, such as the Driver Safety 

Evaluation Area (SEA) component of 

SafeStat scores, incorporate both HOS 

and some non-HOS violations, such as 

commercial driver’s license violations. 

In addition, roadside inspections are 

designed to determine the safety status 

of a driver or vehicle at a given point in 

time, not to provide, on the basis of a 

single examination, a broad assessment 

of a motor carrier’s general operations 

and safety management controls. 

CRs, by contrast, are indeed intended 

to provide a broad assessment of a 

motor carrier’s general operations and 

safety management controls. They are 

ordinarily conducted at a motor carrier’s 

place of business, involve larger 

samples of records, examine multiple 

vehicles and drivers’ RODS, and 

typically produce a series of violation 

findings. Motor carrier safety ratings, as 

calculated under the SFRM, are based 

largely on CR data. Given the potential 

for an EOBR remedial directive to place 

a serious financial burden on a motor 

carrier, we believe such a directive 

should be issued only on the basis of the 

broad scope of operational examination 

and extensive record review inherent to 

the CR process. Although the Agency 

will continue to compile and use nonCR data as in the past and may consider 

cumulative roadside data in the future, 

FMCSA is proposing to use only CRbased violations as direct grounds for 

issuance of EOBR remedial directives.5

Additionally, the Agency proposes 

not to issue a remedial directive until 

after the motor carrier has committed a 

pattern violation of an Appendix C 

regulation twice within a 2-year period. 

FMCSA considered the option of 

imposing the EOBR remedial directive 

after a single 10 percent violation but 

rejected this alternative because the 

Agency believes public safety is best 

served by placing its focus on repeat 

violators of Appendix C regulations. 

The vast majority of motor carriers 

strive to comply with the HOS 

regulations. The selected, ‘‘2 x 10’’

approach would allow the Agency to 

strengthen its safety oversight yet avoid 


jlentini on PROD1PC65 with PROPOSAL2
2374 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

6Of 2,457 poor Driver Inspection Indicator motor 

carriers (those in the poorest 25 percent) that 

underwent two or more CRs during 1999–2005, 

2,386 had their two CRs within a 24-month period. 

penalizing carriers that demonstrate 

overall compliance with the HOS rules. 

As noted earlier, FMCSA is aware of 

the potential financial burden the EOBR 

remedy may place on some motor 

carriers. By requiring a second ‘‘strike,’’

we intend to afford carriers fair warning 

and an opportunity to adopt new or 

additional safety management steps, if 

that is their choice, to improve their 

HOS compliance and possibly avoid 

receiving a remedial directive. The twostrike approach is also intended to work 

in tandem with the proposed EOBR 

incentives by encouraging carriers to 

install EOBRs voluntarily following the 

first final determination that a pattern 

violation of an Appendix C regulation 

has occurred. 

The Agency also considered, but 

rejected, a proposal to raise the 

threshold pattern violation rate for 

Appendix C regulations to 20 percent. A 

statistical analysis of motor carriers that 

would have been affected, over the 3- 

year period 2003–2005, by a ‘‘2 x 20’’

compared with a ‘‘2 x 10’’ trigger 

scheme showed that the former 

approach would have resulted in 

approximately 55 percent fewer EOBR 

remedial directives (577 versus 1,288). 

As previously noted, MCMIS data 

indicate that carriers to which a 

remedial directive would apply under 

the ‘‘2 x 10’’ proposal have a 

significantly higher crash rate than the 

average crash rate for interstate carriers 

that have had a CR since 1995. The 

Agency believes that significantly 

lowering the EOBR remedial installation 

rate among such carriers by adoption of 

a higher, ‘‘2 x 20,’’ threshold would 

represent an unwarranted missed 

opportunity to improve motor carrier 

safety. 

Finally, the Agency considered and 

rejected the option of requiring three 10 

percent pattern violations. We 

determined this protracted trigger, in 

combination with a 2-year window, 

would not result in sufficient numbers 

of EOBR installations to effectively 

address the problem of recurring 

noncompliance. Projections of the 

anticipated findings of pattern 

violations of Appendix C regulations do 

not support the use of a 3-year or longer 

window.6 As noted previously, the 2- 

year period is significantly shorter than 

the 6-year period that the Agency uses 

for its civil penalty policy under section 

222 of MCSIA. 

By establishing a 2-year period within 

which the two CR-based pattern 

violations must occur, the Agency 

would create a window wide enough for 

FMCSA or State enforcement officials to 

perform at least two CRs, at current CR 

rates, on over 90 percent of carriers with 

indicia of poor driver safety. At the 

same time, a potential 2-year interim 

between the Agency’s initial findings 

and its issuance of remedial directives 

would be short enough to preserve the 

directives’ efficacy in remedying 

repeated noncompliance. The proposed 

2-year window for Appendix C 

violations under the EOBR remedial 

installation provision should, in 

addition to its advantages as a 

compliance improvement strategy, 

impose lower recordkeeping and related 

administrative costs on motor carriers 

than the comparable ‘‘multi-strike,’’ 6- 

year period applied in the civil penalty 

context under section 222 of MCSIA. 

The proposed 2-year window would 

be measured from the closing date of the 

first CR in which one or more pattern 

violations of any Appendix C regulation 

were discovered. If there is a final 

determination of any pattern violation 

of an Appendix C regulation, and if, 

within 2 years following the first CR, the 

carrier has any subsequent CRs in which 

one or more pattern violations of any 

Appendix C regulations are discovered, 

the carrier would be subject to issuance 

of a remedial directive and proposed 

unfitness determination. 

A ‘‘final determination,’’ for purposes 

of part 385 subpart F, would include: (1) 

An adjudication under new part 385 

subpart F upholding an NPRDA or 

remedial directive and proposed 

unfitness determination; (2) the 

expiration of the period for filing a 

request for administrative review of an 

NPRDA or remedial directive and 

proposed unfitness determination under 

subpart F; or (3) the entry of a 

settlement agreement stipulating that 

the carrier is subject to mandatory EOBR 

installation, use, and maintenance 

requirements. 

Following the first CR in which any 

pattern violation of an Appendix C 

regulation is discovered, the Agency 

would issue the carrier full and fair 

notice that a repeat of that finding 

during the subsequent 2 years will 

result in the issuance of an EOBR 

remedial directive. (49 CFR 385.507) 

The NPRDA would afford carriers 

desiring to avoid a mandatory 

installation directive an opportunity to 

improve their HOS compliance 

practices. It would explain the future 

circumstances that would trigger 

issuance of a remedial directive and 

describe generally the CR findings that 

prompted the issuance of the NPRDA. 

Installation, Use, and Maintenance of 

Mandatory EOBRs 

Under FMCSA’s proposal, motor 

carriers subject to a remedial directive 

would be required to install § 395.16- 

compliant devices in all of their CMVs. 

These carriers would be required to use 

the EOBRs to record their drivers’ HOS, 

review the EOBR records for HOS 

compliance, and take appropriate 

actions with respect to drivers found in 

violation. They also would be required 

to submit documentation demonstrating 

their continued use of the EOBRs for 

these purposes. Failure or refusal to use 

EOBRs in this manner during the 

required period or to document such 

use would subject the motor carrier to 

an immediate out-of-service order. 

Carriers also would be required to 

maintain the devices in good working 

order and to repair or replace any 

malfunctioning devices within 14 

calendar days. During any time an 

EOBR is not functioning, and a spare 

device is not available, the Agency 

would require preparation of a paper 

RODS. Failure to maintain the devices 

properly could likewise subject the 

carrier to an immediate out-of-service 

order applicable to some or all of its 

vehicles and operations. 

Following the same schedule 

currently applicable to the issuance of 

proposed and final safety ratings, motor 

carriers potentially subject to remedial 

directives would have 60 days (45 days 

for motor carriers transporting 

passengers or placardable quantities of 

hazardous materials) after the date of 

the notice of remedial directive to 

install § 395.16-compliant EOBRs in 

their CMVs and to submit proof of 

installation to FMCSA. The 45/60-day 

period would commence upon 

FMCSA’s issuance of an NPRDA or a 

notice of remedial directive and 

proposed unfitness determination 

following the CR. During this period the 

carrier could seek administrative review 

of the CR findings under new proposed 

§ 385.517, but no reviews based on 

corrective action (comparable to current 

§ 385.17) would be permitted. 

The proposal would require a motor 

carrier subject to a remedial directive to 

verify EOBR installation in all of the 

carrier’s CMVs within the 45/60-day 

period discussed previously. 

Verification could be accomplished 

either through a visual and operational 

inspection of the carrier’s CMVs by 

FMCSA or State enforcement personnel 

or by submission of required 

documentation to FMCSA. The 

documentation would consist of 

receipts for device purchases and 

installation work, if available, digital or 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2375 

7Prior to the 1998 TEA–21 amendment, 49 U.S.C. 

31144 applied to ‘‘owners and operators of 

commercial motor vehicles, including persons 

seeking new or additional operating authority as 

motor carriers.’’ As amended, the section now refers 

to these entities as ‘‘owner[s] or operator[s]’’ of 

commercial motor vehicles, but not as ‘‘motor 

carriers.’’ Although the congressional committee 

reports provide no explanation of this change, 

FMCS believes the change was made to eliminate 

an anomaly. Under 49 U.S.C. chapter 311, the term 

‘‘motor carrier’’ appeared only in section 31144; it 

was not included in the section 31132 definitions. 

The Motor Carrier Safety Act of 1984, from which 

chapter 311 was derived, used the jurisdictional 

term ‘‘commercial motor vehicle.’’ ‘‘Motor carrier’’

and ‘‘motor private carrier’’ were defined separately 

in those provisions of title 49 of the United States 

Code administered by the Interstate Commerce 

Commission; the definition are now codified at 49 

U.S.C. 13102. The FMCSRs have long treated 

owners and operators of CMVs as ‘‘motor carriers’’

(see 49 CFR 390.5). The regulatory text of 49 CFR 

Part 385 uses the term ‘‘motor carrier’’ as equivalent 

to ‘‘owners and operators’’ specified by amended 

section 31144. 

8Current regulations contemplate such revisions 

to the fitness determinations, and the SFRM ‘‘has 

the capability to incorporate regulatory changes as 

they occur.’’ Part 385 App. B VI (a). 

other photographic evidence of the 

installed devices, and documentation 

linking the EOBR serial number with 

the vehicle identification number of the 

CMV into which the device has been 

installed. If no receipt was submitted for 

an installed device or the installation 

work, the carrier would be required to 

submit a written statement explaining 

who installed the devices, how many 

devices were installed, the manufacturer 

and model numbers of the devices 

installed, and the vehicle identification 

numbers of the CMVs in which the 

devices were installed. 

Either FMCSA or State enforcement 

personnel would perform inspections to 

assess whether the EOBRs were 

properly installed and are operating 

correctly. Carriers issued remedial 

directives could request these 

inspections instead of submitting the 

above documentation. The proposed 

rule would revise 49 CFR Part 350 to 

add a new requirement that States 

receiving Motor Carrier Safety 

Assistance Program funds under 49 

U.S.C. 31102 provide such inspection 

services. 

FMCSA proposes that those carriers 

directed to install EOBRs in their CMVs 

be required to use and maintain the 

devices in their vehicles for 2 years. The 

Agency believes this period would 

allow affected drivers and motor carrier 

employees to become familiar with the 

devices and enable the carrier to begin 

realizing improved HOS compliance. 

The Agency also believes that, for 

carriers wishing to remove the devices 

and return to use of paper RODS as soon 

as possible, a 2-year installation period 

is not unduly harsh. The Agency 

requests comment on the appropriate 

duration of mandatory EOBR 

installation, use, and maintenance 

under the proposed remedial directives. 

Scope 

The remedial directives provisions of 

the proposed rule would apply to all 

carriers subject to the requirements of 

part 395, as specified in section 395.1 

The regulations listed in Appendix C 

incorporate all applicable revisions to 

the hours-of-service rules published in 

the Federal Register on August 25, 2005 

(70 FR 49978). All revisions to the 

critical part 395 regulations (those listed 

in Part 385, App. B, section VII) that 

were effected in the August 25, 2005, 

final rule are included in the proposed 

Appendix C to Part 385. Thus, pattern 

violations of any Appendix C 

regulations arising from violations of the 

new sleeper berth, short-haul, or other 

revised HOS provisions could result in 

issuance of an NPRDA or remedial 

directive and proposed unfitness 

determination through citation of the 

appropriate regulation in Appendix C. 

Limited Exemption for AOBRD Users 

If a motor carrier currently using 

monitoring devices that are not 

compliant with new § 395.16 is issued 

an EOBR remedial directive, the motor 

carrier generally would be required to 

install, use, and maintain devices 

meeting the § 395.16 requirements. If a 

carrier with AOBRDs installed in its 

CMVs demonstrated a pattern of 

Appendix C regulatory violations 

sufficient to result in a remedial 

directive, the carrier’s use of the older 

generation devices would demonstrably 

have failed to remedy its safety 

management deficiencies. The Agency 

therefore starts from the position that 

the same remedial directive should be 

issued to an AOBRD-using carrier as to 

one with no devices installed, and the 

carrier would be required to install 

EOBRs compliant with proposed new 

§ 395.16. 

In addition, one goal of this proposed 

rulemaking is to encourage migration, 

over time, toward use of the newer 

generation devices. These devices 

would be designed to meet performance 

standards that FMCSA concludes are 

more appropriate for HOS monitoring 

than the standards adopted under 

§ 395.15 in 1988. Further, the increased 

uniformity of performance gained by 

phasing out the older devices would 

likely make enforcement and carrier 

personnel more familiar with the 

monitoring devices. This should 

improve compliance and enforcement 

efficiencies. 

Notwithstanding these considerations, 

FMCSA appreciates that some carriers 

have made a significant investment in 

monitoring devices that are compliant 

with current regulations. Indeed, 

FMCSA in the past has encouraged 

carriers to install and use these devices. 

Moreover, the cause of the carrier’s 

persistent HOS noncompliance may be 

unrelated to the additional features that 

devices compliant with § 395.16 offer 

over the § 395.15-compliant AOBRDs. 

The problem could be more managerial 

than technical, and use of newer devices 

might not be the answer. 

FMCSA therefore proposes to suspend 

enforcement of otherwise applicable 

remedial directives, under certain 

conditions and at FMCSA’s discretion, 

where motor carriers had installed 

devices compliant with § 395.15 (or 

pursuant to waiver of part of all of 

§ 395.15) at the time of the CR 

immediately preceding the remedial 

directive. Motor carriers seeking this 

non-enforcement would be required to 

apply to FMCSA in writing and to 

demonstrate that the carrier and its 

employees understand how to use the 

AOBRDs and the information derived 

from them. The carrier’s HOS 

compliance would be subject to strict 

FMCSA oversight, and the Agency 

could reinstate the remedial directive at 

any time if additional significant HOS 

noncompliance were discovered. This 

proposed exemption would not apply to 

vehicles manufactured more than 2 

years after the effective date of the 

proposed rule. 

Revised Safety Fitness Determinations 

Under Part 385 

Section 4009 of TEA–21 amended 49 

U.S.C. 31144 to require the Secretary of 

Transportation to maintain, by 

regulation, a procedure under 49 U.S.C. 

31144(b) for determining the safety 

fitness of an owner or operator of 

CMVs.7 The Agency implemented this 

requirement in its Safety Fitness 

Procedures final rule, published on 

August 22, 2000 (65 FR 50919). This 

rule provided that the Agency will use 

an ‘‘unsatisfactory’’ rating assigned 

under the SFRM in part 385 as a 

determination of ‘‘unfitness.’’

This NPRM would amend the safety 

fitness standard at 49 CFR 385.5 and 

make necessary modifications to the 

safety fitness determination 

procedures.8 The amended fitness 

standard would provide an additional 

requirement that CMV owners and 

operators must meet, independent of 

their achieving a ‘‘satisfactory’’ or 

‘‘conditional’’ safety rating, in order to 

demonstrate safety fitness. The Agency’s 

three-part safety rating scheme, as set 


jlentini on PROD1PC65 with PROPOSAL2
2376 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

9The proposed rule would amend the section 

heading of § 385.11 to clarify that the notices issued 

pursuant to that section relate only to a motor 

carrier’s ‘‘safety rating’’ under § 385.5(a) and not to 

the Agency’s ‘‘safety fitness determination’’

regarding the carrier, which encompasses both 

§ 385.5(a) and (b). 

forth in the SFRM, would remain 

unchanged. 

Under the SFRM, the Agency assigns 

points to motor carriers within six 

distinct analytical categories, or 

‘‘factors,’’ based on the number of 

regulatory violations and level of 

compliance with other criteria, as 

determined in a CR. The ratings for the 

six factors are then entered into a rating 

table that establishes the motor carrier’s 

overall safety rating of ‘‘satisfactory,’’

‘‘conditional,’’ or ‘‘unsatisfactory.’’

Currently, a carrier must maintain either 

a ‘‘satisfactory’’ or ‘‘conditional’’ safety 

rating to continue operating in interstate 

commerce and intrastate operations 

affecting interstate commerce. A carrier 

issued a proposed ‘‘unsatisfactory’’ (or 

‘‘conditional’’) rating may challenge the 

rating through an administrative review 

under § 385.15; or the carrier may seek 

to have the proposed rating changed 

based upon corrective action under 

§ 385.17. Unless a proposed 

‘‘unsatisfactory’’ rating is changed under 

§ 385.15 or § 385.17, however, the 

carrier is prohibited from operating a 

CMV on the 61st day (or the 46th day 

for carriers transporting passengers or 

placardable quantities of hazardous 

materials) after the date FMCSA issued 

the proposed ‘‘unsatisfactory’’ safety 

rating. (49 CFR 385.13(a)) Pursuant to 

section 4104 of SAFETEA–LU, the 

Agency will revoke the registration of a 

motor carrier prohibited from operating 

in interstate commerce, and in intrastate 

operations affecting interstate 

commerce, for failure to comply with 

the safety fitness requirements of 49 

U.S.C. 31144. (49 U.S.C. 13905(e)) 

Nothing in this proposal would 

change any of the above requirements or 

procedures. The current procedures for 

calculation of motor carrier safety 

ratings, including the three-tier SFRM, 

would remain unchanged. Motor 

carriers would continue to be assigned 

‘‘satisfactory,’’ ‘‘conditional,’’ or 

‘‘unsatisfactory’’ safety ratings under 

§§ 385.7, 385.9, and the SFRM set forth 

in Appendix B of Part 385, and carriers 

rated ‘‘unsatisfactory’’ would continue 

to be prohibited from operating a CMV 

and engaging in contracts with Federal 

agencies as provided in § 385.13. 

FMCSA would continue to issue 

notifications of safety ratings under 

§ 385.11 9 and to perform administrative 

reviews under § 385.15 and correctiveaction reviews under § 385.17. 

However, as previously noted, 

FMCSA is proposing to revise the safety 

fitness standard in § 385.5. If a carrier 

were operating under an EOBR remedial 

directive, an overall safety rating of 

‘‘satisfactory’’ or ‘‘conditional’’ under 

the SFRM, while still necessary to meet 

the safety fitness standard, would no 

longer be sufficient. A second condition 

would also have to be met—that the 

carrier be in compliance with all 

applicable requirements of part 385 

subpart F, Remedial Directives. Of 

course, in the absence of a notice of 

remedial directive and proposed 

determination of unfitness under 

subpart F, the Agency’s notice of 

proposed or final safety rating would 

function, as it currently does under 

§ 385.11, as the notice of safety fitness 

determination. 

Following a CR resulting in findings 

that potentially subject the motor carrier 

to a remedial directive, the carrier 

would be issued a written notice of 

remedial directive based upon the 

pattern of violations of Appendix C 

regulations. The notice of remedial 

directive would require the carrier to 

install EOBRs in all of its CMVs, 

provide proof of installation within 60 

days after issuance of the notice of 

remedial directive (45 days for hazmat 

and passenger carriers), and provide 

such other periodic reports as the 

FMCSA Enforcement Division 

determines are appropriate. The notice 

of remedial directive would explain 

how the carrier could challenge the 

directive and the time limits within 

which challenges could be filed. 

The proposed unfitness determination 

would advise the motor carrier that if it 

failed or refused to install § 395.16- 

compliant EOBRs and to provide proof 

of installation as required under the 

remedial directive, FMCSA would deem 

the carrier unfit on the 60th day (45th 

day for hazmat and passenger carriers) 

after issuance of the notice, and the 

carrier would be prohibited from 

operating in interstate commerce, and in 

intrastate operations affecting interstate 

commerce, on the 61st (or 46th) day. It 

would also advise the carrier that, if it 

was subject to the registration 

requirements under 49 U.S.C. 13901, its 

registration would be revoked on the 

61st (or 46th) day for failure or refusal 

to comply with the remedial directive. 

If the carrier installed the EOBRs in 

all of its CMVs and supplied FMCSA 

with timely and necessary proof of 

installation, then the proposed 

‘‘unfitness’’ determination would be 

conditionally rescinded, provided the 

carrier met all other terms and 

conditions of the remedial directive. 

The directive would remain in effect for 

a period of 2 years following the date of 

issuance. If a carrier failed or refused to 

use EOBRs for HOS compliance during 

the required period, or failed to 

document such use sufficiently, the 

proposed unfitness determination 

would be reinstated, and the carrier 

would be subject to an immediate outof-service order. A carrier could lift the 

prohibition on its operations at any time 

by providing proof that the devices had 

been installed and complying with the 

other terms and conditions of the 

remedial directive. 

Appeal Rights and Administrative 

Review 

If a motor carrier believed the Agency 

had committed an error in issuing either 

an NPRDA or a notice of remedial 

directive and proposed unfitness 

determination, the carrier could request 

an administrative review under 

§ 385.517. Challenges to the NPRDA or 

notice of remedial directive and 

proposed unfitness determination 

should be brought within 15 days of the 

date of the NPRDA or notice of remedial 

directive. This timeframe would allow 

FMCSA to issue a written decision 

before the prohibitions in § 385.519 go 

into effect. The filing of a request for 

administrative review under § 385.517 

within 15 days of the notice of remedial 

directive would stay the finality of the 

proposed unfitness determination until 

the Agency had ruled on the request. 

Failure to petition the Agency within 

the 15-day period may prevent FMCSA 

from ruling on the request before the 

prohibitions go into effect. However, 

within 90 days of the date of issuance 

of the NPRDA or notice of remedial 

directive and proposed unfitness 

determination, the carrier may still file 

a request for administrative review, 

although if such request is not filed 

within the first 15 days the Agency 

would not necessarily issue a final 

determination before the prohibitions go 

into effect. Challenges to issuance of the 

remedial directive and proposed 

unfitness determination would be 

limited to findings of error relating to 

the CR immediately preceding the 

notice of remedial directive. 

The proposed rule would not affect 

current procedures under § 385.15 for 

administrative review of proposed and 

final safety ratings issued in accordance 

with § 385.11. The Agency is proposing 

non-substantive revisions to § 385.15(a), 

however, solely to correct two 

typographical errors. 

A motor carrier subject to a remedial 

directive would not be permitted to 

request a change to the remedial 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2377 

10All four scenarios assume the motor carrier is 

not a carrier of passengers or hazardous materials. 

Thus, 60-day periods, rather than 45-days periods, 

would apply under §§ 385.11, 385.13, 385.15 and 

385.17. 

directive or proposed determination of 

unfitness based upon corrective actions. 

In contrast to § 385.17, under which the 

Agency considers corrective actions 

taken in reviewing a carrier’s request for 

a safety rating change, the only 

‘‘corrective action’’ the Agency would 

take into account in conditionally 

rescinding a proposed unfitness 

determination under subpart F would be 

the carrier’s installation of § 395.16- 

compliant EOBRs and satisfaction of the 

other conditions of the remedial 

directive. The Agency may, 

nevertheless, consider a carrier’s 

installation and use of EOBRs as 

‘‘relevant information’’ that could 

contribute to an improvement of a 

carrier’s safety rating under § 385.17(d). 

An upgraded safety rating based upon 

corrective action under § 385.17 would 

have no effect, however, on an 

otherwise applicable NPRDA, remedial 

directive, or proposed unfitness 

determination. A safety rating upgraded 

to ‘‘conditional’’ would be necessary, 

but not sufficient, to meet the safety 

fitness standard in proposed § 385.5. 

Continuing EOBR Use, Maintenance, 

and Documentation Requirements 

Motor carriers would have up to 60 

days (45 days for hazmat and passenger 

carriers) following issuance of the notice 

of remedial directive to install EOBRs 

compliant with § 395.16. Once a motor 

carrier had installed the devices, the 

carrier would be required to maintain 

the devices in good working order, to 

document its drivers’ use of the devices 

for recording hours of service, and to 

review the EOBR records of its drivers 

for HOS compliance. This 

documentation requirement would be 

satisfied by the carrier’s ability to 

present, upon demand, electronic RODS 

in the format prescribed in proposed 

new Appendix A to Part 395. If, 

following receipt of an EOBR remedial 

directive, a carrier were discovered to be 

operating without a functioning 

§ 395.16-compliant device in one or 

more of its CMVs, the carrier would be 

subject to an immediate out-of-service 

order until it installed the devices. 

Example Remedial Directives Scenarios 

FMCSA offers the following four 

scenarios as examples of how the 

proposed remedial directive procedures 

would operate: 

Scenario 1 

During a 2007 CR on a motor carrier 

of non-hazmat property (not a hazmat or 

passenger carrier) 10 an FMCSA safety 

investigator finds 25 out of 150 logbooks 

examined reflect a violation of 

§ 395.3(a)(2) (requiring or permitting 

driving after the end of the 14th hour 

after coming on duty), i.e., a pattern 

violation of an Appendix C regulation. 

FMCSA issues an NPRDA warning the 

carrier that it will be subject to an EOBR 

remedial directive if another CR within 

2 years again finds a pattern violation of 

any Appendix C regulation. The motor 

carrier does not challenge the issuance 

of the NPRDA. A subsequent CR of the 

carrier in 2008 discloses a 14 percent 

violation rate for § 395.8(e) (false logs), 

another pattern violation of an 

Appendix C regulation. The carrier is 

issued a notice of remedial directive to 

install EOBRs within 60 days and 

provide proof of installation. 

Simultaneously, the carrier is issued a 

proposed unfitness determination. The 

carrier fails or refuses to install the 

device(s), or fails to provide proof, and 

is ordered to cease interstate operations, 

and intrastate operations affecting 

interstate commerce, on the 61st day 

after issuance of the notice of remedial 

directive and proposed unfitness 

determination. Moreover, because the 

carrier is required to be registered under 

49 U.S.C. 13901, its registration is 

revoked on the 61st day. 

Scenario 2 

As in Scenario 1, a CR in 2007 

discloses a pattern violation of an 

Appendix C regulation. Because, under 

Part 385 Appendix B § II (h), that same 

HOS violation also constitutes a 

‘‘pattern of noncompliance with a 

critical regulation relative to Part 395,’’

it is assessed two points (and an 

‘‘unsatisfactory’’ Factor Rating) under 

the Operational Factor of the SFRM, just 

as it would be under the current rule. 

The carrier thus receives an overall 

safety rating of ‘‘conditional’’ and is 

issued an NPRDA, as in Scenario 1. 

However, in this scenario the carrier 

requests an administrative review of 

both the NPRDA, under § 385.517, and 

the ‘‘conditional’’ safety rating under 

§ 385.15. The carrier prevails on its 

challenge in the administrative review 

under § 385.15 but loses its challenge 

under § 385.517. The Agency changes 

the carrier’s overall safety rating to 

satisfactory. However, the NPRDA has 

not been rescinded and becomes a final 

determination. In 2008, FMCSA 

conducts a second CR, which also finds 

a pattern violation of an Appendix C 

regulation. The Agency issues the 

carrier a notice of remedial directive 

and proposed unfitness determination 

based upon the prior final 

determination under § 385.517. 

Scenario 3 

A CR in 2007 finds a 10 percent or 

greater violation rate for an Appendix C 

regulation (which is also a critical HOS 

violation), plus multiple violations of 

other FMCSRs, resulting in a proposed 

overall safety rating of ‘‘unsatisfactory.’’

As in scenarios 1 and 2, FMCSA also 

issues the carrier an NPRDA. The carrier 

takes immediate steps to improve its 

safety management practices and within 

15 days requests a safety rating change 

under § 385.17. The carrier does not 

challenge the NPRDA, however. A 

second CR within 60 days of the first 

finds improved regulatory compliance, 

including no HOS violations, and 

FMCSA upgrades the carrier’s safety 

rating to ‘‘conditional.’’ A third CR in 

2008, however, again finds a 10 percent 

or greater violation rate for an Appendix 

C regulation. The carrier is issued a 

notice of remedial directive, ordering 

installation of EOBRs within 60 days in 

all of the carrier’s CMVs, and a 

proposed determination of unfitness. 

The carrier installs the devices and 

provides FMCSA with sufficient proof 

of installation. The proposed 

determination of unfitness is 

conditionally rescinded, and the carrier 

continues to operate in interstate (and 

intrastate) commerce. 

Scenario 4 

As in Scenario 3, a CR in 2007 

discloses a 10 percent or greater 

violation rate of an Appendix C 

regulation, plus such other FMCSR 

violations that the carrier is assigned a 

proposed overall safety rating of 

‘‘unsatisfactory’’ under § 385.11. The 

carrier again is issued an NPRDA in 

accordance with § 385.507(a). The 

carrier immediately initiates safety 

management improvements and, in 

accordance with § 385.17, within 15 

days from the date of the notice of 

proposed safety rating requests a change 

to its safety rating based on corrective 

action. The Agency begins another CR 

43 days after the date of the notice of 

proposed safety rating, which shows 

improvements in non-HOS areas but 

again discloses a 10 percent or greater 

violation rate for an Appendix C 

regulation. Based upon the motor 

carrier’s improvements in the other 

safety areas, FMCSA upgrades the 

overall safety rating to ‘‘conditional’’

and the carrier continues in operation. 

At the same time, because of the HOS 

violations discovered in the second CR, 

the Agency issues a notice of remedial 

directive and proposed determination of 


jlentini on PROD1PC65 with PROPOSAL2
2378 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

unfitness. The carrier fails to install 

EOBRs within 60 days following the 

second CR, and it also fails to seek 

administrative review of the remedial 

directive in accordance with § 385.517. 

The carrier is therefore placed out of 

service on the 61st day. 

C. Incentives 

Background 

FMCSA recognizes that many motor 

carriers are deterred from voluntary 

installation of EOBRs because they 

believe this would place them at a 

competitive disadvantage to carriers not 

using EOBRs. Motor carriers believe 

there is an ‘‘uneven playing field’’ in 

which those with EOBRs are held to a 

higher level of compliance. Qualcomm 

described this perceived inequity in its 

docket comments: ‘‘Qualcomm contends 

that in general the industry’s reluctance 

to employ technology to verify 

compliance is not based in being 

adverse to use of technology, but in 

being adverse to compliance 

enforcement not being conducted on a 

level playing field.’’

We believe this concern may have 

some merit. Because of the extensive 

supporting documentation EOBRs are 

capable of producing, even minor 

violations of the HOS regulations can be 

more easily detected if the carrier uses 

EOBRs. In fact, these violations are often 

identified in automated reports that 

motor carriers can set up as part of their 

EOBR monitoring systems. This suggests 

EOBRs do what they are intended to 

(and would accomplish under the 

remedial provisions discussed 

previously)—make it more difficult to 

exceed the HOS limitations of the 

FMCSRs. 

The inability to conceal even minor 

HOS violations can increase the chances 

of receiving a less than satisfactory 

safety fitness rating in the event of a 

CR—which in turn could hinder the 

carrier’s ability to compete. Among 

other things, a less than satisfactory 

safety rating prevents the carrier from 

maintaining self-insurance and may 

prevent it from maintaining contracts 

with major shippers. Civil penalties 

under 49 U.S.C. 521(b)(2) may also be 

imposed for violations discovered, even 

when the safety rating is unaffected. 

FMCSA believes these fears of 

receiving an adverse safety fitness rating 

as a consequence of EOBR use may be 

compounded by motor carrier industry 

concerns with Agency policies and 

procedures for assigning safety fitness 

ratings. These concerns are longstanding. In particular, many motor 

carriers believe the Agency’s HOS 

sampling techniques during CRs should 

be random across all areas of a carrier’s 

operation. Instead, FMCSA’s procedures 

for CRs direct safety investigators to 

focus first on known problem areas and 

drivers. FMCSA takes this approach 

because it is in the interest of public 

safety to focus the Agency’s limited 

resources on drivers most likely to be in 

violation of the regulations. If the 

number of HOS violations discovered 

using FMCSA’s focused sampling policy 

equals or exceeds 10 percent of the 

records reviewed, the motor carrier is 

automatically assigned a proposed 

‘‘conditional’’ safety fitness rating. 

Thus, a carrier’s overall safety fitness 

rating can be adversely affected by 

FMCSA’s reviewing only operational 

areas already identified as problematic. 

ATA unsuccessfully challenged the 

Agency’s HOS review techniques in 

1997, arguing that the Agency’s CR 

procedures ‘‘[l]ack standards for 

ensuring that only statistically reliable 

samples of driver logs and other carrier 

records are relied upon in safety CRs. 

This deficiency would result in a safe 

carrier receiving an unwarranted 

adverse safety rating and having to bear 

the heavy burdens that accompany such 

a rating.’’ [American Trucking Ass’ns, 

Inc. v. U.S. Dept. of Transp., 166 F.3d 

374 (D.C. Cir. 1999)]. FMCSA’s 

predecessor Agency, FHWA, 

successfully defended the existing 

rating and sampling techniques against 

this challenge by citing the safety 

benefits of focusing Agency resources 

on the drivers and vehicles most likely 

to be in regulatory violation. In its final 

rule, ‘‘Safety Fitness Procedure; Safety 

Ratings,’’ FHWA had clarified the 

purpose of a CR: ‘‘The overall safety 

posture of the motor carrier is not being 

measured during the CR, rather the 

adequacy of the carrier’s safety 

management controls is being assessed 

pursuant to 49 CFR part 385.’’ (62 FR 

60035 at 60039, Nov. 6, 1997) 

Despite these reassurances, many in 

the motor carrier industry believe there 

nevertheless exists a public perception, 

with resulting consequences, that the 

safety fitness rating measures a carrier’s 

overall safety posture, as opposed to the 

efficacy of its safety management 

controls. We believe some motor 

carriers may be more willing to 

voluntarily install EOBRs if, under 

certain conditions, FMCSA offered the 

carrier incentives to make this safety 

commitment. 

Proposed Incentives 

1. As indicated previously, FMCSA 

conducts focused sampling of carrier 

HOS records during CRs and believes 

this approach is in the best interest of 

public safety. FMCSA’s routine CR 

procedures call for FMCSA or State 

safety investigators to focus their sample 

of HOS records on the RODS of drivers 

involved in interstate recordable 

crashes, drivers placed out of service for 

hours-of-service violations during 

roadside inspections, drivers discovered 

to have poor driving records through 

Commercial Driver’s License 

Information System checks, recently 

hired drivers, and drivers having a high 

probability of excessive driving. This 

procedure makes efficient use of staff 

resources and helps ensure the CR 

report clearly identifies known problem 

areas for corrective action and attention 

by motor carrier management. We 

intend to continue this protocol as a 

standard operating procedure for motor 

carriers using traditional paper RODS. 

However, when motor carriers 

voluntarily install EOBRs, the HOS 

portion of a CR can be much more 

efficient and less resource intensive 

than the review of a carrier using 

traditional paper RODS and supporting 

documents. In fact, the efficiency of the 

review of EOBR records for 11-, 14-, and 

70-hour HOS violations can often be 

improved by use of the motor carrier’s 

‘‘exception reports,’’ which allows more 

time to review records for accuracy and 

falsification. FMCSA therefore proposes 

an alternative approach to CRs and the 

issuance of safety fitness ratings that 

would be employed in limited instances 

as an incentive, strictly and solely for 

motor carriers that voluntarily install, 

use and maintain EOBRs meeting the 

requirements of proposed § 395.16, and 

for owner-operators leased to such 

carriers. This proposed approach to 

HOS records review during CRs would 

not be available to carriers using 

AOBRDs compliant with § 395.15. 

Under the Agency’s proposed 

approach, the first course of action 

would be to conduct the HOS portion of 

the CR using standard, focused 

sampling policies and procedures and 

taking into account known violations of 

critical part 395 regulations. If the 

focused sample of HOS records resulted 

in a 10 percent or greater violation rate, 

then a separate random sample of HOS 

records would be selected for review 

based upon the minimum sample size 

recommended in FMCSA’s Field 

Operations Training Manual. The 

results of both samples, focused and 

random, would be cited on the CR 

report, but only the random sample 

results would be used to assign the 

carrier a safety fitness rating under part 

385. This incentive would not be 

available to motor carriers and owneroperators that have been issued a 

remedial directive to install, use, and 

maintain EOBRs. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2379 

FMCSA believes this random review 

incentive for motor carriers voluntarily 

using EOBRs would mitigate industry 

concerns that currently tend to 

discourage EOBR use. FMCSA believes 

that, over time, widespread use of 

EOBRs will improve HOS compliance 

and reduce fatigue-related crashes. This 

incentive, which will foster broader 

EOBR use within the industry, is thus 

in keeping the Agency’s mission of 

promoting motor carrier safety. At the 

same time, by continuing to require 

safety investigators to perform a focused 

sample of HOS records as the first step 

in a CR, FMCSA would meet its initial 

responsibility to detect and respond to 

known violations. The random review 

incentive would apply only to carriers 

voluntarily installing and using EOBRs, 

not to individual drivers. 

FMCSA emphasizes that the Agency 

would continue to bring civil penalty 

enforcement cases against both drivers 

and carriers for HOS violations 

discovered during the initial logbook 

analysis, even though that analysis will 

not be used for purposes of determining 

the carrier’s safety rating. The 

responsibility for assuring HOS 

compliance lies with both the carrier 

and the driver, and FMCSA would 

therefore continue to bring enforcement 

cases against both carriers and drivers 

for violations discovered during the 

initial focused sample analysis. These 

findings would be entered into the 

Agency’s SafeStat system and would 

increase the probability of additional 

CRs for the carrier. FMCSA believes the 

adverse financial consequences, the 

negative SafeStat data, and the 

increased likelihood of undergoing 

additional compliance reviews would 

continue to give the carrier an incentive 

to correct any HOS problems cited on 

the CR report. 

FMCSA seeks public comment on this 

issue. We are particularly interested in 

commenters’ views on whether the 

proposed approach would provide 

motor carriers with incentives to 

voluntarily install EOBRs. 

2. As an additional incentive to 

promote the installation and use of 

EOBRs by motor carriers, the Agency is 

proposing a new 49 CFR 395.11 to 

provide partial relief, for carriers that 

voluntarily install a device compliant 

with § 395.16, from the supporting 

documents requirements under 49 CFR 

395.8(k). EOBRs meeting the 

requirements of § 395.16 produce 

regular time and CMV location position 

histories sufficient to verify adequately 

a driver’s on-duty driving activities. 

Motor carriers voluntarily maintaining 

the time and location data produced by 

§ 395.16-compliant EOBRs would need 

to maintain only such additional 

supporting documents as are necessary 

to verify on-duty not-driving activities 

and off-duty status. The proposed 

§ 395.11 would not provide a blanket 

exemption from all supporting 

documents requirements because, even 

for carriers using EOBRs, some 

additional supporting documentation 

(e.g., driver payroll records, fuel 

receipts) is still necessary to verify onduty not-driving activities and off-duty 

status. The proposed incentive would, 

however, significantly reduce the 

volume of required supporting 

documents for those carriers voluntarily 

installing EOBRs. This incentive would 

not be available to motor carriers subject 

to remedial directives to install, use, 

and maintain EOBRs under part 385 

subpart F. 

FMCSA seeks comment on this 

proposal as well. The Agency issued a 

supplemental notice of proposed 

rulemaking concerning HOS supporting 

documents on November 3, 2004 (69 FR 

63997) and anticipates publication of 

the final rule in the near future. Under 

that rule, motor carriers may, in 

accordance with the exemption 

procedures in part 381, seek FMCSA 

approval to meet the § 395.8(k) 

requirements by using electronic 

systems that incorporate GPS or other 

electronic location-referencing and 

tracking technology. As noted in the 

section titled Incentives To Promote 

EOBR Use, the Agency will consider 

public comments to today’s NPRM in 

determining whether adjustments to the 

supporting documents exemption 

procedures may be necessary. FMCSA 

requests public comment on this 

proposed incentive and the random 

sample incentive discussed above. 

3. The Agency is interested in 

identifying other incentives under 

which carriers could be relieved of 

regulatory burdens made unnecessary 

by the direct or indirect safety benefits 

that EOBR technology provides. Such 

incentives could therefore raise the 

productivity of both carriers and drivers 

safely and without impairing driver 

health. We therefore solicit comments 

and suggestions about other possible 

incentives in addition to the two 

identified. Because of the Agency’s 

limited experience with the benefits of 

EOBR technology, we request any 

evidence demonstrating that voluntary 

use of EOBRs could mitigate safety risks 

associated with extended driving or onduty time, such that carriers using 

EOBRs might be afforded added 

scheduling flexibility under the HOS 

rules. The Agency seeks information, for 

example, on whether the time savings 

that drivers are likely to achieve from 

EOBR use (see section 13.3 above), or 

other safety and driver health benefits 

inherent in EOBR technology, would 

provide a sufficient basis for the Agency 

to allow drivers using the devices to 

extend their 14-hour driving window 

under 49 CFR 395.3(a)(2). Would using 

an EOBR reduce driver fatigue so that 

relief could be afforded under the 

sleeper berth provisions in 49 CFR 

395.1(g)(1)? Likewise, would a motor 

carrier’s voluntary use of EOBRs 

provide sufficient assurance of 

compliance with HOS regulations that 

FMCSA could safely forgo review of 

particular segments of the carrier’s 

operations during a compliance review? 

We encourage both industry and safety 

groups to provide recommendations that 

will enable FMCSA to craft a rule that 

takes full advantage of EOBR technology 

in the safety program. 

VI. Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993) and DOT 

policies and procedures, FMCSA must 

determine whether a regulatory action is 

‘‘significant,’’ and therefore subject to 

OMB review and the requirements of 

the Executive Order. The Order defines 

‘‘significant regulatory action’’ as one 

likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal government or 

communities. 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another Agency. 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof. 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

FMCSA has determined that, although 

this proposed rule would not have an 

annual effect of $100 million or more, 

it is a significant regulatory action 

within the meaning of the Executive 

Order and under the regulatory policies 

and procedures of DOT because of the 

level of public interest in rulemakings 

related to hours-of-service compliance. 

We have therefore conducted a 

Regulatory Impact Analysis (RIA) of the 

costs and benefits of this NPRM. The 


jlentini on PROD1PC65 with PROPOSAL2
2380 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

RIA is summarized below. The full 

analysis is available in the docket. 

The RIA examined three options, 

which differ based solely on the number 

and type of regulated entities that would 

be subject to mandatory EOBRs. Under 

the first option, the entire interstate 

trucking population would be required 

to use EOBRs, including those vehicles 

and drivers involved in short-haul (SH) 

and long-haul (LH) operations subject to 

HOS regulation. The second option was 

all LH trucks and drivers operating in 

interstate commerce. The third option 

was to mandate EOBR use for a 

relatively small population of 

companies and drivers with a recurrent 

HOS compliance problem, the ‘‘2 x 10’’

entities described under the Remedies 

section of this proposal. Owneroperators leased to other motor carriers 

are covered under the leasing carrier. 

Based on a review of CR data, FMCSA 

estimated that approximately 465 motor 

carriers would be affected by the third 

option each year. After the first year, 

therefore, FMCSA estimates that at any 

given time about 930 carriers would be 

using EOBRs the Agency had required 

them to install. We estimate these 

carriers to have approximately 16,000 

power units and 17,500 drivers. 

FMCSA gathered cost information 

from EOBR vendors. Because there was 

significant variation in costs among 

vendors, the analysis included costs for 

high, median, and low-cost EOBR 

devices. The annualized costs of 

purchasing, installing, and operating an 

EOBR were estimated to range from 

$534 to $989 per power unit. We 

estimated costs on an annualized basis 

on a 10-year horizon, with replacement 

of EOBR units at the end of their useful 

life (3 or 5 years, depending on the 

device). Training time costs for drivers, 

back-office staff, and State enforcement 

personnel were estimated across a 

range—from a half-hour to 3 hours for 

drivers and 2 to 12 hours for back-office 

staff. We estimated State inspectors 

would receive 8 hours of training. We 

also estimated offsetting cost savings on 

paper log purchase, use, processing, and 

storage. 

In estimating net benefits, we also 

considered the cost to carriers of 

achieving compliance with the HOS as 

a result of EOBR use. In section 6.4 of 

the full RIA, the results of the benefitcost analysis are shown with these costs 

both included and excluded. 

We assessed safety benefits of EOBR 

use by estimating reductions in HOS 

violations and resulting reductions in 

fatigue-related crashes. Other, nonsafety health benefits for drivers, as a 

result of decreased driving time, were 

not quantified in this analysis. Possible 

negative health effects of being 

monitored were also discussed but not 

quantified. The impacts of incentives 

offered to increase EOBR use were not 

quantified. 

The estimates of the total net benefits 

for each of the three options are 

presented in Table 3. 

TABLE 3.—ANNUALIZED NET BENEFITS

[Millions] 

Option 1: 

LH and SH 

Option 2: 

LH only 

Option 3: 

recurring noncompliant LH 

High Cost Estimate .................................................................................................................... ($3,690) ($930) ($7.53 ) 

Median Cost Estimate ............................................................................................................... (2,142) (355) (1.66 ) 

Low Cost Estimate ..................................................................................................................... (1,846) (264) 0.61 

In sum, options 1 and 2 show negative 

net benefits for all three of the cost 

estimates, though the magnitudes of the 

negative net benefits vary with the cost 

assumptions. For Option 3, cost 

estimates for the EOBR devices 

determine whether there are net benefits 

or net costs: Net benefits are positive 

under the low cost estimate (which 

encompasses compliant, yet not 

integrally synchronized, devices) but 

negative under the high and median 

cost estimates (which correlate with 

integrally synchronized units). 

Regulatory Flexibility Act 

This rulemaking has been drafted in 

accordance with the Regulatory 

Flexibility Act, as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (5 U.S.C. §§ 601–

612). FMCSA conducted an Initial 

Regulatory Flexibility Act (IRFA) 

analysis of the impacts on small entities 

to determine whether the proposed rule 

would have a significant economic 

impact on a substantial number of small 

entities. A brief summary of this Initial 

Regulatory Flexibility Analysis is 

provided below. The full IRFA is 

provided in the docket. 

At present, it is unclear whether this 

proposal would have a significant 

impact on substantial numbers of small 

entities. The proposed requirements 

would apply only to the relatively small 

number of motor carriers with 

significant HOS noncompliance—an 

estimated total of between 465 and 930 

carriers per year, a majority of which are 

considered small. Although the cost 

impacts are generally quite small as a 

percentage of typical carrier revenues, 

they could vary substantially across 

affected carriers, ranging from 0.45 to 

0.07 percent of annual revenues 

depending on the carrier’s revenue per 

CMV. Firms with higher revenues-pertruck would experience a 

proportionately lower cost impact. 

Further, these carriers would experience 

compensatory time savings, or 

administrative efficiencies, as a result of 

using EOBR records in place of paper 

RODS. The level of increased 

administrative efficiencies would vary 

with the number of CMVs the carrier 

operates. 

Unfunded Mandates Reform Act 

This rule would not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $128.1 million or more 

(as adjusted for inflation) in any one 

year, nor would it affect small 

governments. Therefore, no actions are 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Executive Order 13132 (Federalism) 

This rulemaking would not preempt 

or modify any provision of State law, 

impose substantial direct unreimbursed 

compliance costs on any State, or 

diminish the power of any State to 

enforce its own laws. Accordingly, this 

rulemaking does not have Federalism 

implications warranting the application 

of Executive Order 13132. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing E.O. 

12372 regarding intergovernmental 

consultation on Federal programs and 

activities do not apply to this rule. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2381 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget (OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. FMCSA 

determined that this NPRM would affect 

a currently approved information 

collection for OMB Control Number 

2126–0001, titled ‘‘Hours of Service of 

Drivers Regulation.’’ OMB approved this 

information collection on November 3, 

2005, at a revised total of 153,103,292 

burden hours, with an expiration date of 

November 30, 2008. The PRA requires 

agencies to provide a specific, 

objectively supported estimate of 

burden hours that will be imposed by 

the information collection. See 5 CFR 

1320.8. The paperwork burden imposed 

by FMCSA’s records of duty status 

(RODS) requirement is set forth at 49 

CFR 395.8. 

FMCSA estimated that the remedial 

provisions of this NPRM, requiring the 

installation, use, and maintenance of 

EOBRs by motor carriers with a pattern 

of severe HOS violations, would affect 

approximately 930 motor carriers with 

about 17,500 drivers annually. These 

drivers’ total annual burden hours for 

meeting the RODS requirement at 

§ 395.8 is estimated at 455,000 (17,500 

CMV drivers x 26 hours per year to 

complete the RODS). The time required 

by EOBR-using motor carriers to review 

the RODS would likewise be reduced 

compared with that required for review 

of paper RODS. The total burden hours 

for carriers to review the RODS for 

17,500 EOBR-using drivers was 

estimated at 210,000 annual burden 

hours. The combined reduction in 

burden hours for carrier and driver is 

665,000 burden hours. 

Under the 2005 HOS final rule, the 

total annual burden hours for carriers 

and drivers using traditional paper 

RODS is 104,754,884 burden hours for 

drivers’ completion of RODS and 

48,348,408 burden hours for carriers to 

review the RODS, for a combined total 

of 153,103,292 burden hours. 

Subtracting from that total the 665,000- 

burden-hour reduction achieved by 

carriers using EOBRs under this 

proposed rule, we derived an estimated 

total of 152,438,292 burden hours for 

compliance with the RODS requirement 

by all motor carriers—both those 

operating under the remedial provisions 

of this NPRM and those using 

traditional paper RODS. 

Note that the above estimates of 

paperwork burden do not take into 

account potential paperwork savings 

associated with voluntary use of EOBRs 

by motor carriers. Drivers employed by, 

and owner-operators leased to, such 

carriers would have a reduced 

paperwork burden to meet the RODS 

requirement at § 395.8, and the motor 

carrier’s time-and-cost burden 

associated with reviewing and 

maintaining the RODS and supporting 

documents would be similarly reduced. 

Under proposed § 395.11, carriers 

maintaining time and location data 

produced by § 395.16-compliant EOBRs 

need only maintain such supporting 

documents as are necessary to verify onduty not-driving and off-duty status to 

fully meet the supporting documents 

requirements in § 395.8(k). Depending 

on the number of CMVs these carriers 

operate, their paperwork savings could 

be substantial. However, because it is 

difficult to quantify the number of 

motor carriers that would voluntarily 

use EOBRs, the Agency did not estimate 

these potential paperwork savings. 

A supporting statement reflecting this 

assessment will be submitted to OMB 

together with this NPRM. 

National Environmental Policy Act 

The National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321 et 

seq., as amended) requires Federal 

agencies to consider the consequences 

of, and prepare a detailed statement on, 

all major Federal actions significantly 

affecting the quality of the human 

environment. In accordance with its 

procedures for implementing NEPA 

(FMCSA Order 5610.1, Chapter 2.D.4(c) 

and Appendix 3), FMCSA prepared a 

draft Environmental Assessment (EA) to 

review the potential impacts of this 

proposed rulemaking. The draft EA 

findings are summarized below. The full 

EA is in the docket. 

Implementation of this proposed 

action would alter to some extent the 

operation of CMVs. However, the 

proposal, if implemented, would not 

require any new construction or change 

significantly the number of CMVs in 

operation. FMCSA found, therefore, that 

noise, hazardous materials, endangered 

species, cultural resources protected 

under the National Historic Preservation 

Act, wetlands, and resources protected 

under Section 4(f) would not be 

impacted by the rule. 

The EA also examined impacts on air 

quality and public safety. We anticipate 

that drivers of CMVs operated by 

carriers that have been issued an EOBR 

remedial directive would now take the 

full off-duty periods required by the 

HOS rules. During off-duty periods, 

drivers frequently leave the CMV parked 

in ‘‘idle,’’ which increases engine 

emissions on a per-mile basis. Hence, 

drivers for remediated carriers would 

cause a modest overall increase in 

engine emissions by virtue of coming 

into compliance with the HOS 

regulations. Because the number of 

trucks likely to be required to install 

EOBRs is relatively small (7,600 out of 

1.51 million total CMVs), FMCSA 

determined that the increase in air 

toxics would be negligible. Moreover, 

because drivers for carriers brought into 

HOS compliance would experience less 

fatigue and be less likely to have fatiguerelated crashes, there would be a 

counterbalancing increase in public 

safety. 

FMCSA concludes that the rule 

changes would have a negligible impact 

on the environment, and therefore 

would not require an environmental 

impact statement. The provisions under 

the proposed action do not, individually 

or collectively, pose any significant 

environmental impact. 

E.O. 13211 (Energy Supply, Distribution 

or Use) 

FMCSA determined that the proposed 

rule would not significantly affect 

energy supply, distribution, or use. No 

Statement of Energy Effects is therefore 

required. 

E.O. 12898 (Environmental Justice) 

FMCSA evaluated the environmental 

effects of this proposed action and 

alternatives in accordance with 

Executive Order 12898 and determined 

that there are no environmental justice 

issues associated with the proposal. The 

proposed rule would have notable 

consequences only for trucking firms 

that have repeatedly demonstrated 

noncompliance with the HOS 

regulations. It would not create any 

adverse health or environmental effects. 

E.O. 13045 (Protection of Children) 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks (62 FR 19885, 

Apr. 23, 1997), requires agencies issuing 

‘‘economically significant’’ rules, if the 

regulation also concerns an 

environmental health or safety risk that 

an Agency has reason to believe may 

disproportionately affect children, to 

include an evaluation of the regulation’s 

environmental health and safety effects 

on children. As discussed previously, 

this proposed rule is not economically 

significant. Therefore, no analysis of the 

impacts on children is required. 

E.O. 12988 (Civil Justice Reform) 

This action meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 


jlentini on PROD1PC65 with PROPOSAL2
2382 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

eliminate ambiguity, and reduce 

burden. 

E.O. 12630 (Taking of Private Property) 

This rule would not effect a taking of 

private property or otherwise have 

taking implications under E.O. 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights. 

National Technology Transfer and 

Advancement Act 

The National Technology Transfer 

and Advancement Act (15 U.S.C. 272 

note) requires Federal agencies 

proposing to adopt Government 

technical standards to consider whether 

voluntary consensus standards are 

available. If the Agency chooses to 

adopt its own standards in place of 

existing voluntary consensus standards, 

it must explain its decision in a separate 

statement to OMB. 

FMCSA determined there are no 

voluntary national consensus standards 

for the design of EOBRs as complete 

units. However, there are many 

voluntary consensus standards 

concerning communications and 

information interchange methods that 

could be referenced as part of 

comprehensive performance-based 

requirements for EOBRs to ensure their 

reliable and consistent utilization by 

motor carriers and motor carrier safety 

compliance assurance officials. For 

example, the digital character set would 

reference the ASCII (American Standard 

Code for Information Interchange) 

character set specifications, the most 

widely used form of which is ANSI 

X3.4–1986. This is described in the 

Document Information Systems—Coded 

Character Sets—7-Bit American 

National Standard Code for Information 

Interchange (7-Bit ASCII) (ANSI 

document # ANSI INCITS 4–1986 

(R2002)) published by ANSI (American 

National Standards Institute). In another 

example, the Agency would reference 

the 802.11 family of standards for 

wireless communication published by 

IEEE (Institute of Electrical and 

Electronics Engineers). 

We did review and evaluate the 

European Commission Council 

Regulations 3821/85 (analog 

tachograph) and 2135/98 (digital 

tachograph). These are not voluntary 

standards, but rather are design-specific 

type-certification programs. We 

concluded these standards lack several 

features and functions (such as CMV 

location tracking and the ability for the 

driver to enter remarks) that FMCSA 

desires to include in its proposed 

performance-based regulation, and 

require other features (such as an 

integrated license document on the 

driver’s data card) that are not 

appropriate for U.S. operational 

practices. 

Privacy Impact Assessment 

Section 522(a)(5) of the FY 2005 

Consolidated Appropriations Act, Title 

V, General Provisions (Pub. L. 108–447, 

118 Stat. 2809 at 3268) requires Federal 

agencies to conduct a privacy impact 

assessment (PIA) of proposed rules that 

will affect the privacy of individuals. 

The Agency conducted a PIA for this 

NPRM. We determined that the same 

personally identifiable information for 

CMV drivers currently collected as part 

of the RODS and supporting documents 

requirements would continue to be 

collected under this rulemaking. 

Privacy was a significant 

consideration in FMCSA’s development 

of this proposal. As stated earlier, we 

recognize that the need for a verifiable 

EOBR audit trail—a detailed set of 

records to verify time and physical 

location data for a particular CMV—

must be counterbalanced by privacy 

considerations. The Agency considered, 

but rejected, certain alternative 

technologies to monitor drivers’ HOS 

(including in-cab video cameras and 

biomonitors) as too invasive of personal 

privacy. 

All CMV drivers subject to 49 CFR 

Part 395 must have their hours of 

service accounted for to ensure that 

drivers have adequate opportunities for 

rest. This NPRM would not change the 

treatment of HOS with respect to 

privacy matters, change which drivers 

and motor carriers are required to 

comply with the RODS requirement, or 

change the sharing of information. The 

HOS information recorded on EOBRs 

would be accessible to Federal and State 

enforcement personnel only when 

compliance assurance activities are 

conducted at the facilities of motor 

carriers subject to the RODS 

requirement or when the CMVs of those 

carriers are stopped for purposes of 

conducting roadside inspections. Motor 

carriers would not be required to upload 

this information into any Federal or 

State information system accessible 

either to the public or to motor carrier 

safety enforcement agencies. This would 

preserve data security and ensure that 

EOBR data collection does not result in 

a new or revised Privacy Act System of 

Records for FMCSA. Data accuracy 

concerning drivers’ RODS should 

improve as a result of the proposals to 

establish new performance standards for 

EOBRs; to allow drivers to make EOBR 

entries to identify any errors or 

inconsistencies in the data; and to 

mandate EOBR use by motor carriers 

with a history of serious noncompliance 

with the HOS rules. 

In summary, the NPRM would neither 

enlarge the scope of personally 

identifiable information collected nor 

change the sharing of that information. 

List of Subjects 

49 CFR Part 350 

Grant programs—transportation, 

Highway safety, Motor carriers, Motor 

vehicle safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 385 

Administrative practice and 

procedure, Highway safety, Motor 

carriers, Motor vehicle safety, Reporting 

and recordkeeping. 

49 CFR Part 395 

Highway safety, Motor carriers, 

Reporting and recordkeeping. 

49 CFR Part 396 

Highways and roads, Motor carriers, 

Motor vehicle equipment, Motor vehicle 

safety. 

For the reasons set forth above, 

FMCSA is proposing to amend 49 CFR 

parts 350, 385, 395, and 396 as follows: 

PART 350—COMMERCIAL MOTOR 

CARRIER SAFETY ASSISTANCE 

PROGRAM 

1. The authority citation for part 350 

continues to read as follows: 

Authority: 49 U.S.C. 13902, 31100–31104, 

31108, 31136, 31140–31141, 31161, 31310–

31311, 31502; and 49 CFR 1.73. 

2. Amend § 350.201 by revising the 

introductory text and adding paragraph 

(w) to read as follows: 

§ 350.201 What conditions must a State 

meet to qualify for Basic Program Funds? 

Each State must meet the following 

conditions: 

* * * * * 

(w) Enforce requirements relating to 

FMCSA remedial directives issued in 

accordance with 49 CFR Part 385, 

Subpart F, including providing 

inspection services for verification of 

electronic on-board recorder installation 

and operation as provided in 

§ 385.511(b). 

PART 385—SAFETY FITNESS 

PROCEDURES 

3. The authority citation for part 385 

is revised to read as follows: 

Authority: 49 U.S.C. 113, 504, 521(b), 

5105(e), 5109, 13901–13905, 31133, 31135, 

31136, 31137(a), 31144, 31148, and 31502; 

Sec. 113(a), Pub. L. 103–311; Sec. 408, Pub. 

L. 104–88; Sec. 350, Pub. L. 107–87; and 49 

CFR 1.73. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2383 

4. Amend § 385.1 by revising 

paragraph (a) to read as follows: 

§ 385.1 Purpose and scope. 

(a) This part establishes FMCSA’s 

procedures to determine the safety 

fitness of motor carriers, to assign safety 

ratings, to direct motor carriers to take 

remedial action when required, and to 

prohibit motor carriers determined to be 

unfit from operating a CMV. 

* * * * * 

5. Amend § 385.3 by adding a 

definition for safety fitness 

determination in alphabetical order, and 

by revising the existing definition for 

safety rating, to read as follows: 

§ 385.3 Definitions and acronyms. 

* * * * * 

Safety fitness determination means 

the final determination by FMCSA that 

a motor carrier meets the safety fitness 

standard under § 385.5. 

Safety rating or rating means a rating 

of ‘‘satisfactory,’’ ‘‘conditional’’ or 

‘‘unsatisfactory,’’ which FMCSA assigns 

to a motor carrier using the factors 

prescribed in § 385.7, as computed 

under the Safety Fitness Rating 

Methodology (SFRM) set forth in 

Appendix B to this part and based on 

the carrier’s demonstration of adequate 

safety management controls under 

§ 385.5(a). A safety rating of 

‘‘satisfactory’’ or ‘‘conditional’’ is 

necessary, but not sufficient, to meet the 

overall safety fitness standard under 

§ 385.5. 

(1) Satisfactory safety rating means 

that a motor carrier has in place and 

functioning safety management controls 

adequate to meet that portion of the 

safety fitness standard prescribed in 

§ 385.5(a). Safety management controls 

are adequate for this purpose if they are 

appropriate for the size and type of 

operation of the particular motor carrier. 

(2) Conditional safety rating means a 

motor carrier does not have adequate 

safety management controls in place to 

ensure compliance with that portion of 

the safety fitness standard prescribed in 

§ 385.5(a), which could result in 

occurrences listed in § 385.5(a)(1) 

through (a)(11). 

(3) Unsatisfactory safety rating means 

a motor carrier does not have adequate 

safety management controls in place to 

ensure compliance with that portion of 

the safety fitness standard prescribed in 

§ 385.5(a), and this has resulted in 

occurrences listed in § 385.5 (a)(1) 

through (a)(11). 

(4) Unrated carrier means that 

FMCSA has not assigned a safety rating 

to the motor carrier. 

6. Revise § 385.5 to read as follows: 

§ 385.5 Safety fitness standard. 

A motor carrier must meet the safety 

fitness standard set forth in this section. 

Intrastate motor carriers subject to the 

hazardous materials safety permit 

requirements of subpart E of this part 

must meet the equivalent State 

requirements. To meet the safety fitness 

standard, the motor carrier must 

demonstrate the following: 

(a) It has adequate safety management 

controls in place, which function 

effectively to ensure acceptable 

compliance with applicable safety 

requirements to reduce the risk 

associated with: 

(1) Commercial driver’s license 

standard violations (part 383 of this 

chapter), 

(2) Inadequate levels of financial 

responsibility (part 387 of this chapter), 

(3) The use of unqualified drivers 

(part 391 of this chapter), 

(4) Improper use and driving of motor 

vehicles (part 392 of this chapter), 

(5) Unsafe vehicles operating on the 

highways (part 393 of this chapter), 

(6) Failure to maintain accident 

registers and copies of accident reports 

(part 390 of this chapter), 

(7) The use of fatigued drivers (part 

395 of this chapter), 

(8) Inadequate inspection, repair, and 

maintenance of vehicles (part 396 of this 

chapter), 

(9) Transportation of hazardous 

materials, driving and parking rule 

violations (part 397 of this chapter), 

(10) Violation of hazardous materials 

regulations (parts 170 through 177 of 

this title), and 

(11) Motor vehicle accidents, as 

defined in § 390.5 of this chapter, and 

hazardous materials incidents; and 

(b) The motor carrier has complied 

with all requirements contained in any 

remedial directive issued under subpart 

F of this part. 

7. Amend § 385.9 by revising 

paragraph (a) to read as follows: 

§ 385.9 Determination of a safety rating. 

(a) Following a compliance review of 

a motor carrier operation, FMCSA, using 

the factors prescribed in § 385.7 as 

computed under the Safety Fitness 

Rating Methodology set forth in 

Appendix B of this part, shall determine 

whether the present operations of the 

motor carrier are consistent with that 

portion of the safety fitness standard set 

forth in § 385.5(a), and assign a safety 

rating accordingly. 

* * * * * 

8. Amend § 385.11 by revising the 

section heading and adding paragraph 

(g) to read as follows: 

§ 385.11 Notification of safety rating and 

safety fitness determination. 

* * * * * 

(g) If a motor carrier is subject to a 

remedial directive and proposed 

determination of unfitness under 

subpart F of this part, the notice of 

remedial directive will constitute the 

notice of safety fitness determination. If 

FMCSA has not issued a notice of 

remedial directive and proposed 

determination of unfitness under 

subpart F of this part, a notice of a 

proposed or final safety rating will 

constitute the notice of safety fitness 

determination. 

9. Amend § 385.15 by revising 

paragraph (a) to read as follows: 

§ 385.15 Administrative review. 

(a) A motor carrier may request 

FMCSA to conduct an administrative 

review if it believes FMCSA has 

committed an error in assigning its 

proposed safety rating in accordance 

with § 385.11(c) or its final safety rating 

in accordance with § 385.11(b). 

* * * * * 

10. Amend § 385.17 by adding 

paragraphs (k) and (l) to read as follows: 

§ 385.17 Change to safety rating based 

upon corrective actions. 

* * * * * 

(k) An upgraded safety rating based 

upon corrective action under this 

section will have no effect on an 

otherwise applicable notice of potential 

remedial directive applicability, 

remedial directive, or proposed 

determination of unfitness issued in 

accordance with subpart F of this part. 

(l) A motor carrier may not request a 

rescission of a determination of 

unfitness issued under subpart F of this 

part based on corrective action. 

11. Amend § 385.19 by revising 

paragraphs (a) and (b) to read as follows: 

§ 385.19 Safety fitness information. 

(a) Final safety ratings, remedial 

directives, and safety fitness 

determinations will be made available 

to other Federal and State agencies in 

writing, telephonically, or by remote 

computer access. 

(b) The final safety rating, any 

applicable remedial directive(s), and the 

safety fitness determination pertaining 

to a motor carrier will be made available 

to the public upon request. Any person 

requesting information under this 

paragraph must provide FMCSA with 

the motor carrier’s name, principal 

office address, and, if known, the 

USDOT number or the ICCMC docket 

number if applicable. 

* * * * * 


jlentini on PROD1PC65 with PROPOSAL2
2384 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

12. Amend § 385.407 by revising 

paragraph (a) to read as follows: 

§ 385.407 What conditions must a motor 

carrier satisfy for FMCSA to issue a safety 

permit? 

(a) Motor carrier safety performance. 

(1) The motor carrier: 

(i) Must be in compliance with any 

remedial directive issued under subpart 

F of this part, and 

(ii) Must have a ‘‘Satisfactory’’ safety 

rating assigned by either FMCSA, under 

the Safety Fitness Procedures of this 

part, or the State in which the motor 

carrier has its principal place of 

business, if the State has adopted and 

implemented safety fitness procedures 

that are equivalent to the procedures in 

subpart A of this part. 

(2) FMCSA will not issue a safety 

permit to a motor carrier that: 

(i) Does not certify that it has a 

satisfactory security program as required 

in § 385.407(b); 

(ii) Has a crash rate in the top 30 

percent of the national average as 

indicated in the FMCSA Motor Carrier 

Management Information System 

(MCMIS); or 

(iii) Has a driver, vehicle, hazardous 

materials, or total out-of-service rate in 

the top 30 percent of the national 

average as indicated in the MCMIS. 

* * * * * 

13. Add subpart F to part 385 to read 

as follows: 

Subpart F—Remedial Directives 

Sec. 

385.501 Purpose and scope. 

385.503 Definitions and acronyms. 

385.505 Events triggering issuance of 

remedial directive and proposed 

determination of unfitness. 

385.507 Notice of potential remedial 

directive applicability. 

385.509 Issuance of remedial directive. 

385.511 Proof of compliance with remedial 

directive. 

385.513 Issuance and conditional rescission 

of proposed unfitness determination. 

385.515 Exemption for AOBRD users. 

385.517 Administrative review. 

385.519 Effect of failure to comply with 

remedial directive. 

Subpart F—Remedial Directives 

§ 385.501 Purpose and scope. 

(a) This subpart establishes 

procedures for FMCSA’s issuance of 

notices of potential remedial directive 

applicability, remedial directives, and 

proposed determinations of unfitness. 

(b) This subpart establishes the 

circumstances under which FMCSA 

will direct motor carriers (including 

owner-operators leased to motor 

carriers, regardless of whether the 

owner-operator has separate operating 

authority under part 365), in accordance 

with § 385.1(a), to install electronic onboard recorders (EOBRs) in their 

commercial motor vehicles as a remedy 

for recurring violations of the part 395 

hours-of-service regulations listed in 

Appendix C to this part. 

(c) This subpart establishes the 

procedures by which motor carriers may 

challenge FMCSA’s issuance of notices 

of proposed remedial directive 

applicability, proposed determinations 

of unfitness, and remedial directives. 

(d) The provisions of this subpart 

apply to all motor carriers subject to the 

requirements of part 395 of this chapter. 

§ 385.503 Definitions and acronyms. 

(a) The definitions in subpart A of this 

part and part 390 of this chapter apply 

to this subpart, except where otherwise 

specifically noted. 

(b) As used in this subpart, the 

following terms have the meaning 

specified: 

Appendix C regulation means any of 

the regulations listed in Appendix C to 

Part 385 of this chapter. 

Appendix C violation means a 

violation of any of the regulations listed 

in Appendix C to Part 385 of this 

chapter. 

Electronic on-board recording device 

(EOBR) means an electronic device that 

is capable of recording a driver’s duty 

hours of service and duty status 

accurately and automatically and that 

meets the requirements of § 395.16 of 

this chapter. 

Final determination for purposes of 

part 385, subpart F means: 

(1) An adjudication under this subpart 

upholding a notice of potential remedial 

directive applicability (NPRDA) or 

remedial directive and proposed 

unfitness determination; 

(2) The expiration of the period for 

filing a request for administrative 

review of an NPRDA or remedial 

directive and proposed unfitness 

determination under this subpart; or 

(3) The entry of a settlement 

agreement stipulating that the carrier is 

subject to mandatory EOBR installation, 

use, and maintenance requirements. 

Motor carrier includes owneroperators leased to carriers subject to a 

remedial directive, regardless of 

whether the owner-operator has 

separate operating authority under part 

365 of this chapter. 

Notice of potential remedial directive 

applicability (NPRDA) means a notice, 

following a compliance review of a 

motor carrier, that this subpart applies 

to the motor carrier and that violations 

or other findings during the compliance 

review may contribute to the future 

issuance of a remedial directive under 

this subpart. The NPRDA will explain 

the future circumstances that would 

trigger issuance of a remedial directive 

and will describe generally the 

compliance review findings that 

prompted issuance of the NPRDA. 

Pattern violation for the purposes of 

this subpart means a violation rate for 

any Appendix C regulation equal to or 

greater than 10 percent of the number of 

records reviewed. 

Proposed determination of unfitness 

or proposed unfitness determination 

means a determination by FMCSA that 

a motor carrier will not meet the safety 

fitness standard under § 385.5 on a 

specified future date unless the carrier 

takes the actions necessary to comply 

with the terms of a remedial directive 

issued under this subpart. 

Remedial directive means a 

mandatory instruction from FMCSA to 

take one or more specified action(s) as 

a condition of demonstrating safety 

fitness under 49 U.S.C. 31144(b). 

§ 385.505 Events triggering issuance of 

remedial directive and proposed 

determination of unfitness. 

(a) A motor carrier subject to 49 CFR 

Part 395 will be subject to a remedial 

directive and proposed unfitness 

determination in accordance with this 

subpart for pattern violations of any 

Appendix C regulation or regulations 

that occur within a 2-year period. A 

remedial directive and proposed 

unfitness determination will be issued if 

a compliance review conducted on the 

motor carrier resulted in a final 

determination of one or more pattern 

violations of any Appendix C regulation 

and, in a subsequent compliance review 

completed within the 2-year period 

following the closing date of the first 

review, one or more pattern violations 

of any Appendix C regulation(s) are 

discovered. 

(b) The two compliance reviews 

under paragraph (a) of this section need 

not be conducted consecutively for a 

remedial directive and proposed 

unfitness determination to be issued. 

§ 385.507 Notice of potential remedial 

directive applicability. 

(a) Following the first of the two 

compliance reviews described in 

§ 385.505(a), FMCSA will provide the 

motor carrier a written notice of 

potential remedial directive 

applicability (NPRDA). 

(b) The NPRDA will contain the 

following information: 

(1) Notification of the applicability of 

this subpart. 

(2) Notification that violations 

discovered during the compliance 

review may cause the future issuance of 

a remedial directive under this subpart. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2385 

(3) The circumstances under which 

future violations would trigger issuance 

of a remedial directive. 

(4) A brief statement of the 

compliance review findings that 

prompted issuance of the NPRDA. 

(5) The manner in which a motor 

carrier may challenge the issuance of an 

NPRDA in accordance with § 385.517. 

(6) Any other matters as FMCSA may 

deem appropriate. 

(c) FMCSA will notify the carrier in 

writing of the rescission of an NPRDA. 

§ 385.509 Issuance of remedial directive. 

(a) Following the close of the second 

of the two compliance reviews 

described in § 385.505(a), FMCSA will 

issue the motor carrier a written notice 

of remedial directive and proposed 

determination of unfitness. FMCSA will 

issue the notice and proposed 

determination as soon as practicable, 

but not later than 30 days after the close 

of the review. 

(b) The remedial directive will state 

that the motor carrier is required to 

install EOBRs compliant with § 395.16 

of this chapter in all of the motor 

carrier’s CMVs and to provide proof of 

the installation to FMCSA in accordance 

with § 385.511 within the following 

time periods: 

(1) Motor carriers transporting 

hazardous materials in quantities 

requiring placarding, and motor carriers 

transporting passengers in a CMV, must 

install EOBRs and provide proof of the 

installation by the 45th day after the 

date of the notice of remedial directive. 

(2) All other motor carriers must 

install EOBRs and provide proof of 

installation by the 60th day following 

the date of FMCSA’s notice of remedial 

directive. If FMCSA determines the 

motor carrier is making a good-faith 

effort to comply with the terms of the 

remedial directive, FMCSA may allow 

the motor carrier to operate for up to 60 

additional days. 

§ 385.511 Proof of compliance with 

remedial directive. 

(a) Motor carriers subject to a 

remedial directive to install EOBRs 

under this section must provide proof of 

EOBR installation by one of the 

following: 

(1) Submitting all of the carrier’s 

CMVs for visual and functional 

inspection by FMCSA or qualified State 

enforcement personnel. 

(2) Transmitting to the FMCSA 

service center for the geographic area 

where the carrier maintains its principal 

place of business all of the following 

documentation: 

(i) Receipts for all necessary EOBR 

purchases. 

(ii) Receipts for the installation work. 

(iii) Digital or other photographic 

evidence depicting the installed devices 

in the carrier’s CMVs. 

(iv) Documentation of the EOBR serial 

number for the specific device 

corresponding to each CMV in which 

the device has been installed. 

(3) If no receipt is submitted for an 

installed device or the installation work 

in accordance with paragraph (a)(2) of 

this section, the carrier must submit a 

written statement explaining who 

installed the devices, how many devices 

were installed, the manufacturer and 

model numbers of the devices installed, 

and the vehicle identification numbers 

of the CMVs in which the devices were 

installed. 

(b) Visual and functional EOBR 

inspections may be performed at any 

FMCSA roadside inspection station or at 

the roadside inspection or weigh station 

facility of any State that receives Motor 

Carrier Safety Assistance Program funds 

under 49 U.S.C. 31102 and that provides 

such inspection services. The carrier 

may also request such inspections be 

performed at its principal place of 

business. 

(c) Motor carriers issued remedial 

directives pursuant to this section must 

install in all of their CMVs EOBRs 

meeting the standards set forth in 49 

CFR 395.16. Such motor carriers must 

maintain and use the EOBRs to verify 

compliance with part 395 for a period 

of 2 years following the issuance of the 

remedial directive. In addition to any 

other requirements imposed by the 

FMCSRs, during the period of time the 

carrier is subject to a remedial directive 

the carrier must maintain all records 

and reports generated by the EOBRs 

and, upon demand, produce those 

records to FMCSA personnel. 

(d) Malfunctioning devices. Motor 

carriers subject to remedial directives 

shall maintain EOBRs installed in their 

CMVs in good working order. Such 

carriers must cause any malfunctioning 

EOBR to be repaired or replaced within 

14 days from the date the carrier 

becomes aware of the malfunction. 

During this repair or replacement 

period, carriers subject to a remedial 

directive under this part must prepare a 

paper record of duty status pursuant to 

§ 395.8 of this chapter as a temporary 

replacement for the non-functioning 

EOBR unit. All other provisions of the 

remedial directive will continue to 

apply during the repair and replacement 

period. Failure to comply with the terms 

of this paragraph may subject the 

affected CMV and/or driver to an out-ofservice order pursuant to § 396.9(c) and 

§ 395.13 of this chapter, respectively. 

Repeated violations of this paragraph 

may subject the motor carrier to the 

provisions of § 385.519. 

§ 385.513 Issuance and conditional 

rescission of proposed unfitness 

determination. 

(a) Simultaneously with the notice of 

remedial directive, FMCSA will issue a 

proposed unfitness determination. The 

proposed unfitness determination will 

explain that, if the motor carrier fails to 

comply with the terms of the remedial 

directive, the carrier will be unfit under 

the fitness standard in § 385.5, 

prohibited from engaging in interstate 

operations and intrastate operations 

affecting interstate commerce, and, in 

the case of a carrier registered under 49 

U.S.C. 13901, have its registration 

revoked. 

(b) FMCSA will conditionally rescind 

the proposed determination of unfitness 

upon the motor carrier’s submission of 

sufficient proof of EOBR installation in 

accordance with § 385.511. 

(c) During the period the remedial 

directive is in effect, FMCSA may 

reinstate the proposed unfitness 

determination and immediately prohibit 

the motor carrier from operating in 

interstate commerce and intrastate 

operations affecting interstate commerce 

if the motor carrier violates the 

provisions of the remedial directive. 

§ 385.515 Exemption for AOBRD users. 

(a) Upon written request by the motor 

carrier, FMCSA will grant an exception 

from the requirements of remedial 

directives under this section to motor 

carriers that already had installed in all 

commercial motor vehicles, at the time 

of the compliance review immediately 

preceding the issuance of the notice of 

remedial directive, AOBRDs compliant 

with 49 CFR 395.15, or to motor carriers 

that had been issued a waiver allowing 

the carrier to use devices not fully 

compliant with § 395.15. 

(b) The carrier will be permitted to 

continue using the previously installed 

devices if the carrier can satisfactorily 

demonstrate to FMCSA that the carrier 

and its employees understand how to 

use the AOBRDs and the information 

derived from them. 

(c) The carrier must either use and 

maintain the AOBRDs currently in its 

CMVs or install new § 395.16-compliant 

devices. 

(d) Although FMCSA may suspend 

enforcement for noncompliance with 

the remedial directive, the directive will 

remain in effect, and the hours-ofservice compliance of any motor carrier 

so exempted will be subject to ongoing 

FMCSA oversight. 

(e) The exemption granted under this 

section shall not apply to CMVs 


jlentini on PROD1PC65 with PROPOSAL2
2386 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

manufactured on or after the date 2 

years from the effective date of this rule. 

§ 385.517 Administrative review. 

(a) A motor carrier may request 

FMCSA to conduct an administrative 

review if the carrier believes FMCSA 

has committed an error in issuing an 

NPRDA under § 385.507 or a notice of 

remedial directive and proposed 

unfitness determination under 

§ 385.509. Administrative reviews of 

notices of remedial directive and 

proposed unfitness determinations are 

limited to findings in the compliance 

review immediately preceding the 

notice. 

(b) The motor carrier’s request must 

explain the error it believes FMCSA 

committed in issuing the NPRDA or the 

notice of remedial directive and 

proposed unfitness determination. The 

motor carrier must include a list of all 

factual and procedural issues in dispute 

and any information or documents that 

support its argument. 

(c) The motor carrier must submit its 

request in writing to the Assistant 

Administrator, Federal Motor Carrier 

Safety Administration, 400 Seventh 

Street, SW., Washington, DC 20590. The 

carrier must submit on the same day a 

copy of the request to FMCSA counsel 

in the FMCSA service center for the 

geographic area where the carrier 

maintains its principal place of 

business. 

(1) If a motor carrier has received a 

notice of remedial directive and 

proposed unfitness determination, the 

carrier should submit its request in 

writing within 15 days from the date of 

the notice. This timeframe will allow 

FMCSA to issue a written decision 

before the prohibitions outlined in 

§ 385.519(a) take effect. If the carrier 

submits its request for administrative 

review within 15 days of the issuance of 

the notice of remedial directive and 

proposed unfitness determination, 

FMCSA will stay the finality of the 

proposed unfitness determination until 

the Agency has ruled on the carrier’s 

request. Failure to submit the request 

within this 15-day period may prevent 

FMCSA from ruling on the request 

before the prohibitions take effect. 

(2) A motor carrier must make a 

request for an administrative review 

within 90 days following the date of the 

NPRDA under § 385.507 or the notice of 

remedial directive and proposed 

determination of unfitness under 

§ 385.509. 

(d) FMCSA may request the motor 

carrier to submit additional data or 

attend a conference to discuss the 

request for review. If the motor carrier 

does not provide the information 

requested, or does not attend the 

conference, FMCSA may dismiss its 

request for review. 

(e) FMCSA will notify the motor 

carrier in writing of its decision 

following the administrative review. 

FMCSA will complete its review: 

(1) Within 30 days after receiving a 

request from a hazardous materials or 

passenger motor carrier that has 

received a proposed unfitness 

determination; 

(2) Within 45 days after receiving a 

request from any other motor carrier 

that has received a proposed unfitness 

determination; 

(3) With respect to requests for 

administrative review of notices of 

potential remedial directive 

applicability, as soon as practicable but 

not later than 60 days after receiving the 

request. 

(f) The decision regarding a proposed 

unfitness determination constitutes final 

Agency action. 

(g) The provisions of this section will 

not affect procedures for administrative 

review of proposed or final safety 

ratings in accordance with § 385.15 or 

for requests for changes to safety ratings 

based upon corrective action in 

accordance with § 385.17. 

§ 385.519 Effect of failure to comply with 

remedial directive. 

(a) A motor carrier that fails or refuses 

to comply with the terms of a remedial 

directive issued under this subpart, 

including a failure or refusal to provide 

proof of EOBR installation in 

accordance with § 385.511, does not 

meet the safety fitness standard set forth 

in § 385.5(b). With respect to such 

carriers, the proposed determination of 

unfitness issued in accordance with 

§ 385.513 becomes final, and the motor 

carrier is prohibited from operating, as 

follows: 

(1) Motor carriers transporting 

hazardous materials in quantities 

requiring placarding and motor carriers 

transporting passengers in a CMV are 

prohibited from operating CMVs in 

interstate commerce and in operations 

that affect interstate commerce 

beginning on the 46th day after the date 

of FMCSA’s notice of remedial directive 

and proposed unfitness determination. 

A motor carrier subject to the 

registration requirements of 49 U.S.C. 

13901 will have its registration revoked 

on the 46th day after the date of 

FMCSA’s notice of remedial directive 

and proposed unfitness determination. 

(2) All other motor carriers are 

prohibited from operating a CMV in 

interstate commerce and in operations 

that affect interstate commerce 

beginning on the 61st day after the date 

of FMCSA’s notice of remedial directive 

and proposed unfitness determination. 

A motor carrier subject to the 

registration requirements of 49 U.S.C. 

13901 will have its registration revoked 

on the 61st day after the date of 

FMCSA’s notice of remedial directive 

and proposed unfitness determination. 

If FMCSA determines the motor carrier 

is making a good-faith effort to satisfy 

the terms of the remedial directive, 

FMCSA may allow the motor carrier to 

operate for up to 60 additional days. 

(b) If a proposed unfitness 

determination becomes a final 

determination, FMCSA will issue an 

order prohibiting the motor carrier from 

operating in interstate commerce. If the 

motor carrier is required to register 

under 49 U.S.C. 13901, FMCSA will 

revoke the motor carrier’s registration 

on the dates specified in § 385.519(a)(1) 

and (a)(2). 

(c) If FMCSA has prohibited a motor 

carrier from operating in interstate 

commerce under paragraph (a) of this 

section and, if applicable, revoked the 

carrier’s registration, and the motor 

carrier subsequently complies with the 

terms and conditions of the remedial 

directive and provides proof of EOBR 

installation under § 385.511, the carrier 

may request FMCSA to lift the 

prohibition on operations at any time 

after the prohibition becomes effective. 

The request should be submitted in 

writing in accordance with § 385.517(c). 

(d) A Federal Agency must not use for 

CMV transportation a motor carrier that 

FMCSA has determined is unfit. 

(e) Penalties. If a proposed unfitness 

determination becomes a final 

determination, FMCSA will issue an 

order prohibiting the motor carrier from 

operating in interstate commerce and 

any intrastate operations that affect 

interstate commerce and, if applicable, 

revoking its registration. Any motor 

carrier that operates CMVs in violation 

of this section will be subject to the 

penalty provisions listed in 49 U.S.C. 

521(b). 

14. Amend Appendix B by revising 

introductory paragraphs (b), (c), and (d) 

and section VI Conclusion, paragraph 

(a), to read as follows: 

Appendix B to Part 385—Explanation 

of Safety Rating Process 

* * * * * 

(b) As directed, FMCSA promulgated a 

safety fitness regulation, entitled ‘‘Safety 

Fitness Procedures,’’ which established a 

procedure to determine the safety fitness of 

motor carriers through the assignment of 

safety ratings and established a ‘‘safety 

fitness standard’’ that a motor carrier must 

meet to obtain a ‘‘satisfactory’’ safety rating. 

FMCSA later amended the safety fitness 

standard to add a distinct requirement that 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2387 

motor carriers also be in compliance with 

applicable remedial directives. 

(c) To meet the safety fitness standard, a 

motor carrier must meet two requirements. 

First, the carrier must demonstrate to FMCSA 

it has adequate safety management controls 

in place that function effectively to ensure 

acceptable compliance with the applicable 

safety requirements. (See § 385.5(a)). A 

‘‘safety fitness rating methodology’’ (SFRM) 

developed by FMCSA uses data from 

compliance reviews (CRs) and roadside 

inspections to rate motor carriers. Second, a 

motor carrier must also be in compliance 

with any applicable remedial directives 

issued in accordance with subpart F. This 

second requirement is set forth in § 385.5(b). 

(d) The safety rating process developed by 

FMCSA is used to: 

1. Evaluate the first component of the 

safety fitness standard, under § 385.5(a), and 

assign one of three safety ratings (satisfactory, 

conditional, or unsatisfactory) to motor 

carriers operating in interstate commerce. 

This process conforms to § 385.5(a), Safety 

fitness standard, and § 385.7, Factors to be 

considered in determining a safety rating. 

2. Identify motor carriers needing 

improvement in their compliance with the 

Federal Motor Carrier Safety Regulations 

(FMCSRs) and applicable Hazardous 

Materials Regulations (HMRs). These are 

carriers rated unsatisfactory or conditional. 

* * * * * 

VI. Conclusion 

(a) FMCSA believes this ‘‘safety 

fitness rating methodology’’ is a 

reasonable approach to assignment of a 

safety rating, as required by the safety 

fitness regulations (§ 385.9), that most 

closely reflects the motor carrier’s 

current level of compliance with the 

safety fitness standard in § 385.5(a). 

This methodology has the capability to 

incorporate regulatory changes as they 

occur. 

* * * * * 

15. Add Appendix C to read as 

follows: 

Appendix C to Part 385—Regulations 

Pertaining To Remedial Directives in 

Part 385 Subpart F 

§ 395.1(h)(1)(i) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

more than 15 hours (Driving in Alaska). 

§ 395.1(h)(1)(ii) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after having been on duty 20 hours (Driving 

in Alaska). 

§ 395.1(h)(1)(iii) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after having been on duty more than 70 hours 

in 7 consecutive days (Driving in Alaska). 

§ 395.1(h)(1)(iv) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after having been on duty more than 80 hours 

in 8 consecutive days (Driving in Alaska). 

§ 395.1(h)(2)(i) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive more than 15 hours (Driving in Alaska). 

§ 395.1(h)(2)(ii) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive after having been on duty 20 hours 

(Driving in Alaska). 

§ 395.1(h)(2)(iii) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive after having been on duty more than 70 

hours in 7 consecutive days (Driving in 

Alaska). 

§ 395.1(h)(2)(iv) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive after having been on duty more than 80 

hours in 8 consecutive days (Driving in 

Alaska). 

§ 395.1(o) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after having been on duty 16 consecutive 

hours. 

§ 395.3(a)(1) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

more than 11 hours. 

§ 395.3(a)(2) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after the end of the 14th hour after coming 

on duty. 

§ 395.3(b)(1) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after having been on duty more than 60 hours 

in 7 consecutive days. 

§ 395.3(b)(2) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to drive 

after having been on duty more than 70 hours 

in 8 consecutive days. 

§ 395.3(c)(1) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to restart a 

period of 7 consecutive days without taking 

an off-duty period of 34 or more consecutive 

hours. 

§ 395.3(c)(2) 

Requiring or permitting a property-carrying 

commercial motor vehicle driver to restart a 

period of 8 consecutive days without taking 

an off-duty period of 34 or more consecutive 

hours. 

§ 395.5(a)(1) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive more than 10 hours. 

§ 395.5(a)(2) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive after having been on duty 15 hours. 

§ 395.5(b)(1) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive after having been on duty more than 60 

hours in 7 consecutive days. 

§ 395.5(b)(2) 

Requiring or permitting a passengercarrying commercial motor vehicle driver to 

drive after having been on duty more than 70 

hours in 8 consecutive days. 

§ 395.8(a) 

Failing to require driver to make a record 

of duty status. 

§ 395.8(e) 

False reports of records of duty status. 

§ 395.8(i) 

Failing to require driver to forward within 

13 days of completion, the original of the 

record of duty status. 

§ 395.8(k)(1) 

Failing to preserve driver’s record of duty 

status for 6 months. 

§ 395.8(k)(1) 

Failing to preserve driver’s records of duty 

status supporting documents for 6 months. 

PART 395—HOURS OF SERVICE OF 

DRIVERS 

16. The authority citation for part 395 

continues to read as follows: 

Authority: 49 U.S.C. 508, 13301, 13902, 

31133, 31136, 31502, 31504, and sec. 204, 

Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 

701 note); sec. 114, Pub. L. 103–311, 108 Stat. 

1673, 1677; sec. 217, Pub. L. 106–159, 113 

Stat. 1748, 1767; and 49 CFR 1.73. 

17. Section 395.2 is amended to add 

the following definitions in alphabetical 

order: 

§ 395.2 Definitions. 

* * * * * 

ASCII (American Standard Code for 

Information Interchange) is a character 

set and a character encoding system 

based on the Roman alphabet as used in 

modern English and other Western 

European languages. ASCII is commonly 

used by computers and other 

communication equipment. The 

specifications for the ASCII standard 

(the most widely used form of which is 

ANSI X3.4–1986) are described in the 

document Information Systems—Coded 

Character Sets—7-Bit American 

National Standard Code for Information 

Interchange (7-Bit ASCII) (ANSI 

document # ANSI INCITS 4–1986 

(R2002)), published by the American 

National Standards Institute (ANSI). 

* * * * * 

Bluetooth is a short-range wireless 

data communications standard typically 

used to exchange information between 

electronic devices such as personal 

digital assistants (PDAs), mobile 

phones, and portable laptop computers. 


jlentini on PROD1PC65 with PROPOSAL2
2388 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

The technical specifications for the 

Bluetooth standard are described in the 

document Bluetooth Specification 

Version 2.0 + EDR [vol. 0], available 

from the Bluetooth Special Interest 

Group (SIG). 

CD–RW (Compact Disc—ReWriteable) 

means an optical disc digital storage 

format that allows digital data to be 

erased and rewritten many times. The 

technical and physical specifications for 

CD–RW are described in the document 

Orange Book Part III: CD–RW, published 

by Royal Philips Electronics. 

* * * * * 

802.11 is a set of communications and 

product compatibility standards for 

wireless local area networks (WLAN). 

The 802.11 standards are also known as 

WiFi by marketing convention. The 

802.11 standard includes three 

amendments to the original standard, 

802.11a, 802.11b, and 802.11g. The 

technical specifications for 802.11a, 

802.11b, and 802.11g are published by 

the Institute of Electrical and 

Electronics Engineers (IEEE). 

Electronic on-board recording device 

(EOBR) means an electronic device that 

is capable of recording a driver’s hours 

of service and duty status accurately 

and automatically and that meets the 

requirements of § 395.16. 

* * * * * 

Integrally synchronized refers to an 

AOBRD or EOBR that receives and 

records the engine use status for the 

purpose of deriving on-duty-driving 

status from a source or sources internal 

to the CMV. 

* * * * * 

RS–232 is a standard for serial binary 

data interconnection. The technical 

specifications for the RS–232 standard 

are described in the document Interface 

Between Data Terminal Equipment and 

Data Circuit-Terminating Equipment 

Employing Serial Binary Data 

Interchange (ANSI/TIA–232–F–1997 

(R2002)), September 1, 1997, published 

by the Telecommunications Industry 

Association (TIA). 

* * * * * 

USB (Universal Serial Bus) is a serial 

bus interface standard for connecting 

electronic devices. The technical and 

physical specifications for USB are 

described in the document Universal 

Serial Bus Revision 2.0 specification, 

published by the USB Implementers 

Forum (USBIF), an industry standards 

group of leading companies from the 

computer and electronics industries. 

UTC (Coordinated Universal Time) is 

the international civil time standard, 

determined by using highly precise 

atomic clocks. It is the basis for civil 

standard time in the United States and 

its territories. UTC time refers to time 

kept on the Greenwich meridian 

(longitude zero), which is 5 hours ahead 

of Eastern Standard Time. UTC times 

are expressed in terms of a 24-hour 

clock. Standard time within any U.S. 

time zone is offset from UTC by a given 

number of hours determined by the time 

zone’s distance from the Greenwich 

meridian. 

* * * * * 

XML (Extensible Markup Language) is 

text format used for including 

information about the conceptual 

structure of a piece of text. The primary 

purpose of XML is to facilitate the 

sharing of data across different 

computer systems. The technical 

specifications for XML are described in 

the document Extensible Markup 

Language (XML) 1.0 (Third Edition), 

published by the World Wide Web 

Consortium (W3C). 

18. Amend § 395.8 to revise 

paragraphs (a)(2) and (e) to read as 

follows: 

§ 395.8 Driver’s record of duty status. 

(a) * * * 

(2) Every driver operating a 

commercial motor vehicle equipped 

with either an automatic on-board 

recording device meeting the 

requirements of § 395.15 or an 

electronic on-board recorder meeting 

the requirements of § 395.16 must 

record his or her duty status using the 

device installed in the vehicle. The 

requirements of this section shall not 

apply, except for paragraphs (e) and 

(k)(1) and (2). 

* * * * * 

(e) Failure to complete the record of 

duty activities of this section, failure to 

preserve a record of such duty activities, 

or making false reports in connection 

with such duty activities shall make the 

driver and/or the carrier liable to 

prosecution. 

* * * * * 

19. Add § 395.11 to read as follows: 

§ 395.11 Supporting documents for EOBRcreated RODS. 

Time and location data produced by 

an EOBR meeting the requirements of 

§ 395.16 are sufficient to verify on-duty 

driving time. Motor carriers maintaining 

time and location data produced by a 

§ 395.16-compliant EOBR need only 

maintain additional supporting 

documents (e.g., driver payroll records, 

fuel receipts) that provide the ability to 

verify on-duty not-driving activities and 

off-duty status to fully meet the 

requirements of § 395.8(k). This section 

does not apply to motor carriers and 

owner-operators that have been issued a 

remedial directive to install, use, and 

maintain EOBRs. 

20. Amend § 395.13 to revise 

paragraph (b)(2) and to add paragraph 

(b)(4) to read as follows: 

§ 395.13 Drivers declared out of service. 

* * * * * 

(b) * * * 

(2) Every driver required to maintain 

a record of duty status under § 395.8 

must have a record of duty status 

current on the day of examination and 

for the prior 7 consecutive days. 

* * * * * 

(4) No driver shall drive a CMV in 

violation of § 385.511(d) of this chapter. 

* * * * * 

21. Amend § 395.15 to revise 

paragraph (a) to read as follows: 

§ 395.15 Automatic on-board recording 

devices. 

(a) Applicability. This section applies 

to automatic on-board recording devices 

(AOBRDs) used to record the driver’s 

hours of service as specified by part 395. 

For commercial motor vehicles 

manufactured prior to [INSERT DATE 2 

YEARS AFTER PUBLICATION OF 

FINAL RULE], manufacturers or motor 

carriers may install an electronic device 

to record hours of service if the device 

meets the requirements of either this 

section or § 395.16. 

* * * * * 

22. Add § 395.16 to read as follows: 

§ 395.16 Electronic on-board recording 

devices. 

(a) Applicability. This section applies 

to electronic on-board recording devices 

(EOBRs) used to record the driver’s 

hours of service as specified by part 395. 

For commercial motor vehicles 

manufactured after [INSERT DATE 2 

YEARS AFTER PUBLICATION OF 

FINAL RULE], any electronic device 

installed in a CMV by a manufacturer or 

motor carrier to record hours of service 

must meet the requirements of this 

section. 

(b) Information to be recorded. An 

EOBR must record the following 

information: 

(1) Name of driver and any codriver(s), and corresponding driver 

identification information (such as user 

IDs and passwords, PIN numbers, smart 

cards, or biometrics). 

(2) Duty status. 

(3) Date and time. 

(4) Location of CMV. 

(5) Distance traveled. 

(6) Name and USDOT number of 

motor carrier. 

(7) 24-hour period starting time (e.g., 

midnight, 9 a.m., noon, 3 p.m.). 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2389 

(8) The multiday basis (7 or 8 days) 

used by the motor carrier to compute 

cumulative duty hours and driving time. 

(9) Hours in each duty status for the 

24-hour period, and total hours. 

(10) Truck or tractor and trailer 

number. 

(11) Shipping document number(s), or 

name of shipper and commodity. 

(c) Duty status categories. An EOBR 

must use the following duty statuses: 

(1) ‘‘Off duty’’ or ‘‘OFF’’, or other 

identifiable code or character. 

(2) ‘‘Sleeper berth,’’ or ‘‘SB’’ or other 

identifiable code or character, to be used 

only if sleeper berth is used. 

(3) ‘‘Driving,’’ or ‘‘D’’ or other 

identifiable code or character. 

(4) ‘‘On-duty not-driving’’ or ‘‘ON’’ or 

other identifiable code or character. 

(d) Duty status defaults. 

(1) An EOBR must automatically 

record driving time. 

(2) When the CMV is stationary for 15 

minutes or more, the EOBR must default 

to on-duty not-driving, and the driver 

must enter the proper duty status. 

(3) An EOBR must record the results 

of power-on self-tests and diagnostic 

error codes. 

(e) Date and time. 

(1) The date and time must be 

reported on the EOBR output record as 

specified under paragraph (f) of this 

section and displayed at each change of 

duty status. 

(2) The date and time must be 

obtained, transmitted, and recorded in 

such a way that it cannot be altered by 

a motor carrier, driver, or third party. 

(3) The driver’s duty status record 

must be prepared, maintained, and 

submitted using the time standard in 

effect at the driver’s home terminal, for 

a 24-hour period beginning with the 

time specified by the motor carrier for 

that driver’s home terminal. 

(4) The time must be coordinated to 

UTC and must not drift more than 2 

seconds per day. The absolute deviation 

from the time base coordinated to UTC 

shall not exceed 10 minutes at any time. 

(f) Location. 

(1) Information used to determine the 

location of the CMV must be derived 

from a source not subject to alteration 

by the motor carrier or driver. 

(2) The location description for the 

duty status change must be sufficiently 

precise to enable enforcement personnel 

to quickly determine the vehicle’s 

geographic location at each change of 

duty status on a standard map or road 

atlas. 

(3) When the CMV is in motion, 

location and time must be recorded at 

intervals no greater than 1 minute. This 

recorded information must be capable of 

being made available in an output file 

format as specified in Appendix A of 

this part, but does not need to be 

displayed on the EOBR’s visual output 

device. 

(4) For each change of duty status 

(e.g., the place and time of reporting for 

work, starting to drive, on-duty notdriving, and where released from work), 

the name of the nearest city, town, or 

village, with State abbreviation, must be 

recorded. 

(5) The EOBR must use location codes 

derived from satellite or terrestrial 

sources, or a combination of these. The 

location codes must correspond, at a 

minimum, to the Census Bureau 2000 

Gazetteer ‘‘County Subdivision’’ data. 

(g) Distance traveled. 

(1) Distance traveled must use units of 

miles or kilometers driving during each 

on-duty driving period and total for 

each 24-hour period for each driver 

operating the CMV. 

(2) If the EOBR records units of 

distance in kilometers, it must provide 

a means to display the equivalent 

distance in miles. 

(3) If the EOBR obtains distancetraveled information from a source 

internal to the CMV, the information 

must be accurate to the distance 

traveled as measured by the CMV’s 

odometer. 

(4) If the EOBR obtains distancetraveled information from a source 

external to the CMV, the information 

recorded must be accurate to within ±1 

percent of actual distance traveled over 

a 24-hour period as measured by the 

CMV’s odometer. 

(h) Review of information by driver. 

(1) The EOBR must allow for the 

driver’s review of each day’s record 

before the driver submits the record to 

the motor carrier. 

(2) The driver must review the 

information contained in the EOBR 

record and affirmatively note the review 

before submitting the record to the 

motor carrier. 

(3) The driver may annotate only nondriving-status periods, and may do so 

only immediately prior to the first 

driving period of the day and 

immediately following the last driving 

period of the day. The driver must 

electronically confirm his or her 

intention to make any annotations. 

(4) If the driver makes a written entry 

on a hardcopy output of an EOBR 

relating to his or her duty status, the 

entries must be legible and in the 

driver’s own handwriting. 

(i) Information reporting 

requirements. 

(1) An EOBR must make it possible 

for authorized Federal, State, or local 

officials to immediately check the status 

of a driver’s hours of service. 

(2) An EOBR must produce, upon 

demand, a driver’s hours-of-service 

chart using a graph-grid format in either 

electronic or printed form in the manner 

described in § 395.8 and a digital file in 

the format described in Appendix A of 

this part. The chart must show the time 

and sequence of duty status changes 

including the driver’s starting time at 

the beginning of each day. 

(3) This information may be used in 

conjunction with handwritten or 

printed records of duty status for the 

previous 7 days. 

(4) The information displayed on the 

device must be made accessible to 

authorized Federal, State, or local safety 

assurance officials for their review 

without requiring the official to enter in 

or upon the CMV. The output record 

must conform to the file format 

specified in Appendix A of this part. 

(5) The driver must have in his or her 

possession records of duty status for the 

previous 7 consecutive days available 

for inspection while on duty. These 

records must consist of information 

stored in and retrievable from the EOBR, 

handwritten records, other computergenerated records, or any combination 

of these. Electronic records must be 

transferable to portable computers used 

by roadside safety assurance officials 

and must provide files in the format 

specified in Appendix A of this part. 

The communication information 

interchange methods must comply with 

the requirements of RS 232, USB 2.0, 

IEEE 802.11(g), and Bluetooth. 

(6) Support systems used in 

conjunction with EOBRs at a driver’s 

home terminal or the motor carrier’s 

principal place of business must be 

capable of providing authorized Federal, 

State, or local officials with summaries 

of an individual driver’s hours of 

service records, including the 

information specified in § 395.8(d). The 

support systems must also provide 

information concerning on-board system 

sensor failures and identification of 

amended and edited data. Support 

systems must provide a file in the 

format specified in Appendix A of this 

part. The system must also be able to 

produce a copy of files on portable 

storage media (CD–RW, USB 2.0 drive) 

upon request of authorized safety 

assurance officials. 

(j) Driver identification. For the driver 

to log into the EOBR, the EOBR must 

require the driver to enter information 

(such as user IDs and passwords, PIN 

numbers) that identifies the driver or to 

provide other information (such as 

smart cards, biometrics) that identifies 

the driver. 

(k) Availability of records of duty 

status. 


jlentini on PROD1PC65 with PROPOSAL2
2390 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

(1) An EOBR must be capable of 

producing duty status records for the 

current day and the previous 7 days 

from either the information stored in 

and retrievable from the EOBR or 

computer-generated records, or any 

combination of these. 

(2) If an EOBR fails, the driver must 

do the following: 

(i) Note the failure of the EOBR. 

(ii) Reconstruct the record of duty 

status for the current day and the 

previous 7 days, less any days for which 

the driver has records. 

(iii) Continue to prepare a 

handwritten record of all subsequent 

duty status until the device is again 

operational. 

(l) On-board information. Each 

commercial motor vehicle must have 

onboard the commercial motor vehicle 

an information packet containing the 

following items: 

(1) An instruction sheet describing 

how data may be stored and retrieved 

from the EOBR. 

(2) A supply of blank driver’s records 

of duty status graph-grids sufficient to 

record the driver’s duty status and other 

related information for the duration of 

the current trip. 

(m) Submission of driver’s record of 

duty status. 

(1) The driver must submit 

electronically, to the employing motor 

carrier, each record of the driver’s duty 

status. 

(2) For motor carriers not subject to 

the remedies provisions of part 385 

subpart F of this chapter, each record 

must be submitted within 13 days of its 

completion. 

(3) For motor carriers subject to the 

remedies provisions of part 385 subpart 

F of this chapter, each record must be 

submitted within 3 days of its 

completion. 

(4) The driver must review and verify 

that all entries are accurate prior to 

submission to the employing motor 

carrier. 

(5) The submission of the record of 

duty status certifies that all entries made 

by the driver are true and correct. 

(n) EOBR display requirements. An 

EOBR must have the capability of 

displaying all of the following 

information: 

(1) The driver’s name and EOBR login 

ID number on all EOBR records 

associated with that driver, including 

records in which the driver serves as a 

co-driver. 

(2) The driver’s total hours of driving 

during each driving period and the 

current duty day. 

(3) The total hours on duty for the 

current duty day. 

(4) Total miles or kilometers of 

driving during each driving period and 

the current duty day. 

(5) Total hours on duty and driving 

time for the 7-consecutive-day period, 

including the current duty day. 

(6) Total hours on duty and driving 

time for the prior 8-consecutive-day 

period, including the current duty day. 

(7) The sequence of duty status for 

each day, and the time of day and 

location for each change of duty status, 

for each driver using the device. 

(8) EOBR serial number or other 

identification, and identification 

number(s) of vehicle(s) operated that 

day. 

(9) Remarks, including fueling, 

waypoints, loading and unloading 

times, unusual situations, or violations. 

(10) Acknowledgement of an advisory 

message or signal concerning HOS 

limits. 

(11) Override of an automated duty 

status change to driving if using the 

vehicle for personal conveyance or for 

yard movement. 

(12) Date and time of crossing a State 

line (for purposes of fuel-tax reporting). 

(o) Performance of recorders. A motor 

carrier that uses EOBRs for recording 

drivers’ records of duty status instead of 

the handwritten record must ensure the 

EOBR meets the following requirements 

in order to address all hours-of-service 

requirements in effect as of October 24, 

2005: 

(1) The EOBR must permit the driver 

to enter information into the EOBR only 

when the commercial motor vehicle is 

at rest. 

(2) The EOBR and associated support 

systems must, to the maximum extent 

practicable, be tamper resistant. The 

EOBR must not permit alteration or 

erasure of the original information 

collected concerning the driver’s hours 

of service, or alteration of the source 

data streams used to provide that 

information. 

(3) The EOBR must be able to perform 

a power-on self-test, as well as a self-test 

at any point upon request of an 

authorized safety assurance official. The 

EOBR must provide an audible and 

visible signal as to its functional status. 

It must record the outcome of the selftest and its functional status as a 

diagnostic event record in conformance 

with Appendix A of this part. 

(4) The EOBR must provide an 

audible and visible signal to the driver 

at least 30 minutes in advance of 

reaching the driving time limit and the 

on-duty limit for the 24-hour period. 

(5) The EOBR must be able to track 

total weekly on-duty and driving hours 

over a 7- or 8-day consecutive period. 

The EOBR must be able to warn a driver 

at least 30 minutes in advance of 

reaching the weekly duty/driving-hour 

limitation. 

(6) The EOBR must warn the driver 

via an audible and visible signal that the 

device has ceased to function. 

(7) The EOBR must record a code 

corresponding to the reason it has 

ceased to function and the date and time 

of that event. 

(8) The audible signal must be capable 

of being heard and discerned by the 

driver when seated in the normal 

driving position, whether the CMV is in 

motion or parked with the engine 

operating. The visual signal must be 

visible to the driver when the driver is 

seated in the normal driving position. 

(9) The EOBR must be capable of 

recording separately each driver’s duty 

status when there is a multiple-driver 

operation. 

(10) The EOBR device/system must 

identify sensor failures and edited and 

annotated data when downloaded or 

reproduced in printed form. 

(11) The EOBR device/system must 

identify annotations made to all records, 

the date and time the annotations were 

made, and the identity of the person 

making them. 

(12) If a driver or any other person 

annotates a record in an EOBR or an 

EOBR support system, the annotation 

must not overwrite the original contents 

of the record. 

(p) Motor Carrier Requirements. 

(1) The motor carrier must ensure that 

the EOBR is calibrated, maintained, and 

recalibrated in accordance with the 

manufacturer’s specifications; the motor 

carrier must retain records of these 

activities. 

(2) The motor carrier’s drivers and 

other personnel reviewing and using 

EOBRs and the information derived 

from them must be adequately trained 

regarding the proper operation of the 

device. 

(3) The motor carrier must maintain a 

second copy (back-up copy) of the 

electronic hours-of-service files, by 

month, on a physical device different 

from that on which the original data are 

stored. 

(4) The motor carrier must review the 

EOBR records of its drivers for 

compliance with part 395. 

(q) Manufacturer’s self-certification. 

(1) The EOBR and EOBR support 

systems must be certified by the 

manufacturer as evidence that they have 

been sufficiently tested to meet the 

requirements of § 395.16 and Appendix 

A of this part under the conditions in 

which they would be used. 

(2) The exterior faceplate of the EOBR 

must be marked by the manufacturer 

with the text ‘USDOT–EOBR’ as 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2391 

evidence that the device has been tested 

and certified as meeting the 

performance requirements of § 395.16 

and Appendix A of this part. 

23. Add Appendix A to 49 CFR Part 

395 to read as follows: 

Appendix A to Part 395—Electronic 

On-Board Recorder Performance 

Specifications 

1. Data Elements Dictionary for Electronic 

On-Board Recorders (EOBRs) 

1.1 To facilitate the electronic transfer of 

records to roadside inspection personnel and 

compliance review personnel, and provide 

the ability of various third-party and 

proprietary EOBR devices to be 

interoperable, a consistent electronic file 

format and record layout for the electronic 

RODS data to be recorded are necessary. This 

EOBR data elements dictionary provides a 

standardized and consistent format for EOBR 

output data. 

EOBR Database Concept 

1.2 Regardless of the particular electronic 

file type (such as ASCII or XML) ultimately 

used for recording the electronic RODS 

produced by an EOBR, RODS data must be 

recorded according to a ‘‘flat file’’ database 

model. A flat file is a simple database in 

which all information is stored in a plain text 

format with one database ‘‘record’’ per line. 

Each of these data records is divided into 

‘‘fields’’ using delimiters (as in a commaseparate-values data file) or based on fixed 

column positions. Table 1 below presents the 

general concept of a flat data file consisting 

of data ‘‘fields’’ (columns) and data ‘‘records’’

(rows). 

1.3 The data elements dictionary 

describes the data fields component of the 

above framework. Individual data records 

must be generated and recorded whenever 

there is a change in driver duty status, an 

EOBR diagnostic event (such as power-on/ 

off, self test, etc.), or when one or more data 

fields of an existing data record are later 

amended. In the last case, the corrected 

record must be recorded and noted as 

‘‘current’’ in the ‘‘Event Status Code’’ data 

field, with the original record maintained in 

its unedited form and noted as ‘‘historical’’

in the ‘‘Event Status Code’’ data field. The 

EOBR Data Elements Dictionary is described 

in Table 2. The event codes are listed in 

Table 3. 

TABLE 2.—EOBR DATA ELEMENTS DICTIONARY

Data element Data element definition Type Length Valid values & notes 

Driver Identification Data: 

Driver First Name ........................ First name of the driver ..................... A ................ 35 

Driver Last Name ........................ Last name, family name, or surname 

of the driver.

A ................ 35 

Driver PIN/ID ...................................... Numeric identification number assigned to a driver by the motor carrier.A ................ 40 

Vehicle Identification Data: 

Tractor Number ........................... Motor carrier assigned identification 

number for tractor unit.

A ................ 10 

Trailer Number ............................ Motor carrier assigned identification 

number for trailer.

A ................ 10 

Tractor VIN Number .................... Unique vehicle ID number assigned 

by manufacturer according to U.S. 

DOT regulations.

A ................ 17 

Co-Driver Data: 

Co-Driver First Name .................. First name of the co-driver ................ A ................ 35 

Co-Driver Last Name .................. Last name, family name or surname 

of the co-driver.

A ................ 35 

Co-Driver ID ................................ Numeric identification number assigned to a driver by the motor carrier.A ................ 40 


jlentini on PROD1PC65 with PROPOSAL2EP18JA07.000</GPH>
2392 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

TABLE 2.—EOBR DATA ELEMENTS DICTIONARY—Continued 

Data element Data element definition Type Length Valid values & notes 

Company Identification Data: 

Carrier USDOT Number ............. USDOT number of the motor carrier 

assigned by FMCSA.

N ................ 8 

Carrier Name .............................. Name or trade name of the motor 

carrier company appearing on the 

Form MCS–150.

A ................ 120 

Shipment Data: 

Shipping Document Number ....... Shipping document number ............... A ................ 40 

Event Data: 

Event Sequence ID ..................... A serial identifier for an event that is 

unique to a particular vehicle and a 

particular day.

N ................ 4 0001 through 9999. 

Event Status Code ...................... Character codes for the four driver 

duty status change events, state 

border crossing event, and diagnostic events.

A ................ 3 OFF=Off Duty; SB=Sleeper Berth; 

D=On Duty Driving; ON=On Duty 

Not Driving; DG=Diagnostic. 

Event Date .................................. The date when an event occurred ..... N ................

(Date) .........

8 UTC (universal time) recommended. 

Format: YYYYMMDD. 

Event Time .................................. The time when an event occurred ..... N ................

(Time) ........

6 UTC (universal time) recommended. 

Format: HHMMSS (hours, minutes, 

seconds). 

Event Latitude ............................. Latitude of a location where an event 

occurred.

N ................ 2, 6 Decimal format: XX.XXXXXX. 

Event Longitude .......................... Longitude of a location where an 

event occurred.

N ................ 3, 6 Decimal format: XXX.XXXXXX. 

Place Name ................................ Nearest populated place from the 

FIPS55 list of codes for populated 

places. (Census Bureau 2000 Gazetteer ‘‘County Subdivision’’).

N ................ 5 Unique within a FIPS state code. 

Lookup list derived from FIPS55. 

Place Distance Miles .................. Distance in miles to nearest populated place from the location where 

an event occurred.

N ................ 4 

Total Vehicle Miles ...................... Total vehicle miles (as noted on vehicle odometer or as measured by 

any other compliant means such 

as vehicle location system, etc.).

N ................ 7 With total vehicle mileage recorded 

at the time of each event, vehicle 

miles traveled while driving, etc., 

can be computed. 

Event Update Status Code ......... A status of an event, either Current 

(the most up-to-date update or 

edit) or Historical (the original 

record if the record has subsequently been updated or edited).

A ................ 1 C=Current; H=Historical. 

Diagnostic Event Code ............... For diagnostic events (events where 

the ‘‘Event Status Code’’ is noted 

as ‘‘DG’’), records the type of diagnostic performed (e.g., power-on, 

self test, power-off, etc.).

A ................ 2 (See Table 3). 

Event Error Code ........................ Error code associated with an event A ................ 2 (See Table 3). 

Event Update Date ..................... The date when an event record was 

last updated or edited.

N ................

(Date) .........

8 UTC (universal time) recommended. 

Format: YYYYMMDD. 

Event Update Time ..................... Then time when an event record was 

last updated or edited.

N ................

(Time) ........

6 UTC (universal time) recommended. 

Format: HHMMSS (hours, minutes, 

seconds). 

Event Update Person ID ............. An identifier of the person who last 

updated or edited a record.

A ................ 40 

Event Update Text ...................... A textual note related to the most recent record update or edit.A ................ 60 Brief narrative regarding reason for 

record update or edit. 

TABLE 3.—EOBR DIAGNOSTIC EVENT CODES

Code class Code Brief description Full description 

General System Diagnostic ....... PWR_ON Power on .................................. EOBR initial power-on. 

General System Diagnostic ....... PWROFF Power off .................................. EOBR power-off. 

General System Diagnostic ....... TESTOK test okay ................................... EOBR self test successful. 

General System Diagnostic ....... SERVIC Service ...................................... EOBR Malfunction (return unit to factory for servicing). 

General System Diagnostic ....... MEMERR memory error ............................ System memory error. 

General System Diagnostic ....... LOWVLT Low voltage .............................. Low system supply voltage. 

General System Diagnostic ....... BATLOW battery low ................................ Internal system battery backup low. 

General System Diagnostic ....... CLKERR clock error ................................. EOBR system clock error (clock not set or defective). 

General System Diagnostic ....... BYPASS Bypass ...................................... EOBR system bypassed (RODS data not collected). 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2393 

TABLE 3.—EOBR DIAGNOSTIC EVENT CODES—Continued 

Code class Code Brief description Full description 

Data Storage Diagnostic ............ INTFUL .. internal memory full .................. Internal storage memory full (requires download or transfer to 

external storage). 

Data Storage Diagnostic ............ DATACC Data accepted .......................... System accepted driver data entry. 

Data Storage Diagnostic ............ EXTFUL external memory full ................. External memory full (smartcard or other external data storage 

device full). 

Data Storage Diagnostic ............ EXTERR external data access error ........ Access external storage device failed. 

Data Storage Diagnostic ............ DLOADY download yes ............................ EOBR data download successful. 

Data Storage Diagnostic ............ DLOADN download no ............................. Data download rejected (unauthorized request/wrong Password). 

Driver Identification Issue .......... NODRID no driver ID ............................... No driver information in system and vehicle is in motion. 

Driver Identification Issue .......... PINERR PIN error ................................... Driver PIN/identification number invalid. 

Driver Identification Issue .......... DRIDRD Driver ID read ........................... Driver information successfully read from external storage device (transferred to EOBR). 

Peripheral Device Issue ............. DPYERR display error .............................. EOBR display malfunction. 

Peripheral Device Issue ............. KEYERR keyboard error .......................... EOBR keyboard/input device malfunction. 

External Sensor Issue ............... NO_GPS no GPS data ............................. No GPS sensor information available. 

External Sensor Issue ............... NOLTLN no latitude longitude ................. No latitude and longitude from positioning sensor. 

External Sensor Issue ............... NOTSYC no time synchronization ............ Unable to synchronize with external time reference input. 

External Sensor Issue ............... COMERR communications error ............... Unable to communicate with external data link (to home office 

or wireless service provider). 

External Sensor Issue ............... NO_ECM no ECM data ............................ No sensory information received from vehicle’s Engine Control 

Module (ECM). 

External Sensor Issue ............... ECM_ID ECM ID number mismatch ....... ECM identification/serial number mismatch (with 

preprogrammed information). 

2. Communications Standards for the 

Transmittal of Data Files From Electronic 

On-Board Recorders (EOBRs) 

2.1 EOBRs must produce and store RODS 

in accordance with the file format specified 

in this Appendix and must be capable of a 

one-way transfer of these records through 

wired and wireless methods to authorized 

safety officials upon request. 

2.2 EOBRs must be capable of transferring 

RODS using one of the following wired 

standards: 

2.2.1 Universal Serial Bus 2.0 

2.2.2 RS–232. 

2.3 EOBRs must be capable of transferring 

RODS using one of the following wireless 

standards: 

2.3.1 Institute of Electrical and Electronics 

Engineers (IEEE) 802.11g 

2.3.2 Bluetooth 

3. Certification of EOBRs To Assess 

Conformity With FMCSA Standards 

3.1 The following outcome-based 

performance requirements must be included 

in the self-certification testing conducted by 

EOBR manufacturers: 

3.1.1 Location—

3.1.1.1 The location description for the 

duty status change must be sufficiently 

precise (within 300 meters) to enable 

enforcement personnel to quickly determine 

the vehicle’s geographic location at each 

change of duty status on a standard map or 

road atlas. 

3.1.1.2 When the CMV is in motion, 

location and time must be recorded at 

intervals of 1 minute. This recorded 

information must be available for an audit of 

EOBR data, but is not required to be 

displayed on the EOBR’s visual output 

device. 

3.1.1.3 Location codes derived from 

satellite or terrestrial sources, or a 

combination thereof must be used. The 

location codes must correspond, at 

minimum, to the Census Bureau 2000 

Gazetteer ‘‘County Subdivision’’ data. 

3.1.2 Distance Traveled 

3.1.2.1 Distance traveled may use units of 

miles or kilometers driving during each onduty driving period and total for each 24- 

hour period for each driver operating the 

CMV. 

3.1.2.2 If the EOBR records units of 

distance in kilometers, it must provide a 

means to display the equivalent distance in 

English units. 

3.1.2.3 If the EOBR obtains distancetraveled information from a source internal to 

the CMV, the information must be ±1 percent 

accurate to an odometer calibrated per 24- 

hour period. 

3.1.2.4 If the EOBR obtains distancetraveled information from a source external 

to the CMV, the information recorded must 

be accurate to within ±1 percent of actual 

distance traveled per 24-hour period as 

measured by a calibrated odometer. 

3.1.3 Date and Time 

3.1.3.1 The date and time must be 

reported on the EOBR output record and 

display for each change of duty status and at 

such additional entries as specified under 

‘‘Location.’’

3.1.3.2 The date and time must be 

obtained, transmitted, and recorded in such 

a way that it cannot be altered by a motor 

carrier or driver. 

3.1.3.3 The time must be coordinated to 

the Universal Time Clock (UTC) and must 

not drift more than 60 seconds per month. 

3.1.4 File format and communication 

protocols: The EOBR must produce and 

transfer a RODS file in the format and 

communication methods specified in 

sections 1.0 and 2.0 of this Appendix. 

3.1.5 Environment 

3.1.5.1 Temperature—The EOBR must be 

able to operate in temperatures ranging from 

¥20 degrees F to 120 degrees F. 

3.1.5.2 Vibration and shock—The EOBR 

must meet industry standards for vibration 

stability and for preventing electrical shocks 

to device operators. 

3.2 The EOBR and EOBR support systems 

must be certified by the manufacturer as 

evidence that their design has been 

sufficiently tested to meet the requirements 

of § 395.16 under the conditions in which 

they would be used. 

3.3 The exterior faceplate of EOBRs must 

be marked by the manufacturer with the text 

‘‘USDOT–EOBR’’ as evidence that the device 

has been tested and certified as meeting the 

performance requirements of § 395.16. 

4. Example of Grid Generated From EOBR 

Data 

4.1 The following picture shows an 

acceptable format for grid versions of logs 

generated by EOBR data. 


jlentini on PROD1PC65 with PROPOSAL2
2394 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

PART 396—INSPECTION, REPAIR AND 

MAINTENANCE 

24. The authority citation for part 396 

continues to read as follows: 

Authority: 49 U.S.C. 31133, 31136, and 

31502; and 49 CFR 1.73. 

25. Amend § 396.9 to revise paragraph 

(c)(1) to read as follows: 

§ 396.9 Inspection of motor vehicles in 

operation. 

* * * * * 

(c) Motor vehicles declared ‘‘out of 

service.’’ (1) Authorized personnel shall 

declare and mark ‘‘out of service’’ any 

motor vehicle which by reason of its 

mechanical condition or loading would 

likely cause an accident or a breakdown. 

Authorized personnel may declare and 

mark ‘‘out of service’’ any motor vehicle 

not in compliance with § 385.511(d) of 

this chapter. An ‘‘Out of Service 

Vehicle’’ sticker shall be used to mark 

vehicles ‘‘out of service.’’

* * * * * 

Issued on: January 5, 2007. 

John H. Hill, 

Administrator. 

[FR Doc. 07–56 Filed 1–11–07; 8:45 am] 

BILLING CODE 4910–EX–P 


jlentini on PROD1PC65 with PROPOSAL2EP18JA07.001</GPH>