[Federal Register Volume 79, Number 60 (Friday, March 28, 2014)]
[Proposed Rules]
[Pages 17655-17724]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05827]



[[Page 17655]]

Vol. 79

Friday,

No. 60

March 28, 2014

Part II





Department of Transportation





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Federal Motor Carrier Safety Administration





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





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

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

[[Page 17656]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, and 395

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


Electronic Logging Devices and Hours of Service Supporting 
Documents

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

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

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

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

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2010-0167 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments, including collection of information comments for the Office 
of Information and Regulatory Affairs, OMB.

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

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

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

I. Executive Summary

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

[[Page 17657]]

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

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

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

[[Page 17658]]

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

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

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

[[Page 17659]]



                                     Table 3--Annualized Costs and Benefits
                                    [$2011 millions, 7 percent discount rate]
----------------------------------------------------------------------------------------------------------------
                                                                Option 1     Option 2     Option 3     Option 4
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New ELD Costs...............................................     $1,270.0       $955.7     $1,722.6     $1,311.1
AOBRD Replacement Costs.....................................          8.7          8.7          8.7          8.7
HOS Compliance Costs........................................        726.6        604.0        726.6        604.0
Enforcement Training Costs..................................          1.7          1.7          1.7          1.7
Enforcement Equipment Costs.................................          2.0          2.0          0.0          0.0
Driver Training.............................................          8.5          6.7          8.5          6.7
                                                             ---------------------------------------------------
    Total Costs.............................................      2,017.4      1,578.7      2,468.0      1,932.1
Paperwork Savings...........................................      1,637.7      1,637.7      1,637.7      1,637.7
Safety Benefits.............................................        474.8        394.8        474.8        394.8
                                                             ---------------------------------------------------
    Total Benefits..........................................      2,112.5      2,032.5      2,112.5      2,032.5
                                                             ---------------------------------------------------
        Net Benefits........................................         95.1        453.8       -355.5        100.4
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                                     Table 4--Annualized Costs and Benefits
                                    [$2011 Millions, 3 percent discount rate]
----------------------------------------------------------------------------------------------------------------
                                                                Option 1     Option 2     Option 3     Option 4
----------------------------------------------------------------------------------------------------------------
ELD Costs...................................................     $1,260.7       $949.5     $1,707.4     $1,300.3
AOBRD Replacement Costs.....................................          8.0          8.0          8.0          8.0
HOS Compliance Costs........................................        726.6        604.1        726.6        604.1
Enforcement Training Costs..................................          1.6          1.6          1.6          1.6
Enforcement Equipment Costs.................................          2.0          2.0          0.0          0.0
Driver Training.............................................          7.5          5.9          7.5          5.9
                                                             ---------------------------------------------------
    Total Costs.............................................      2,006.4      1,571.1      2,451.1      1,919.9
Paperwork Savings...........................................      1,670.2      1,670.2      1,670.2      1,670.2
Safety Benefits.............................................        474.8        394.8        474.8        394.8
                                                             ---------------------------------------------------
    Total Benefits..........................................      2,145.0      2,065.0      2,145.0      2,065.0
                                                             ---------------------------------------------------
        Net Benefits........................................        138.6        493.9       -306.1        145.1
----------------------------------------------------------------------------------------------------------------

    The estimated benefits of ELDs do not differ greatly among the 
options, and the paperwork savings are identical for all four options. 
The Agency estimates zero paperwork burden from operations exempt from 
RODS, so ELDs can only reduce the paperwork burden of RODs users, which 
are included in all four options. Safety benefits are higher when all 
regulated CMV operations are included in the ELD mandate (Options 1 and 
3), but the marginal costs (ELD costs plus compliance costs) of 
including these operations are about 5\1/2\ times higher than the 
marginal benefits. These options would add short-haul drivers who do 
not use RODS, have better HOS compliance, and much lower crash risk 
from HOS non-compliance. For the short-haul non-RODS subgroup, FMCSA's 
analysis indicates that ELDs are not a cost-effective solution to their 
HOS non-compliance problem. This result is consistent with that of past 
ELD analyses. The requirement for printers with each ELD would increase 
ELD costs by about 40 percent. This is the first time that FMCSA has 
explored requiring a printer, and it seeks comment on the feasibility 
and accuracy of the benefit and cost estimates associated with this 
requirement. Only Option 2, which would require ELDs similar to those 
currently being manufactured for paper RODS users, provides positive 
net benefits. Net benefits for Options 1, 2, and 4 are positive with a 
3 percent discount rate, but the net benefits for Option 2 are still 
much higher than those of other options--about 11 times higher than the 
net benefits of the next best alternative, Option 4. Non-monetized 
benefits of the various options are also substantial. The number of 
crashes avoided ranges from 1,425 to 1,714, and this rule could save 
between 20 and 24 lives per year. Review of Trucks Involved in Fatal 
Accidents (TIFA) data from 2005-2009 supports this analysis: Variables 
indicating that the driver of the CMV was drowsy, sleepy, asleep, or 
fatigued are coded for crashes that caused an average of 85 deaths per 
year in that period (http://www.umtri.umich.edu/our-results/publications/trucks-involved-fatal-accidents-factbook-2008-linda-jarossi-anne-matteson). An average of nine crashes per year in TIFA was 
associated with fatigued drivers exceeding drive time limits. 
Additional factors were at play in most of these events, but the 
removal of some substantial fraction of fatigued driving should provide 
some benefit. Estimated crash reductions due to the proposed rule are 
summarized in Table 5.

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

[[Page 17660]]

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

II. Public Participation and Request for Comments

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

A. Submitting Comments

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

B. Viewing Comments and Documents

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

C. Privacy Act

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

D. Comments on the Collection of Information

    If you have comments on the collection of information discussed in 
this SNPRM, you must also send those comments to the Office of 
Information and Regulatory Affairs at OMB. To ensure that your comments 
are received on time, the preferred methods of submission are by email 
to oira_submissions@omb.eop.gov (include docket number ``FMCSA-2010-
0167'' and ``Attention: Desk Officer for FMCSA, DOT'' in the subject 
line of the email) or fax at 202-395-6566. An alternative, though 
slower, method is by U.S. Mail to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, ATTN: Desk Officer, FMCSA, DOT.

III. Abbreviations and Acronyms

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

IV. Legal Basis for the Rulemaking

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

[[Page 17661]]

A. Motor Carrier Act of 1935

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

B. Motor Carrier Safety Act of 1984

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

C. Truck and Bus Safety and Regulatory Reform Act

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

D. Hazardous Materials Transportation Authorization Act of 1994

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

E. MAP-21

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

[[Page 17662]]

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

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

V. Background

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

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

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

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

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

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

[[Page 17663]]

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

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

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

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

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

[[Page 17664]]

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

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

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

B. History of the Supporting Documents Rule

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

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

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

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

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

[[Page 17665]]

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

C. Concurrent Activities

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

D. Table Summary

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

[[Page 17666]]

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

VI. ELD Performance and Design Specifications

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

A. Terminology

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

[[Page 17667]]



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

B. ELD Function

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

[[Page 17668]]

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

[[Page 17669]]

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

C. ELD Regulatory Compliance

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

[[Page 17670]]

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

[[Page 17671]]

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

    \12\ If a driver's records were not available through the ELD, a 
motor carrier would need to provide the driver with access to and 
copies of the driver's records, on request.
---------------------------------------------------------------------------

    In developing these proposed technical performance requirements, 
the Agency has taken into account drivers' privacy interests. As 
explained above, FMCSA would not require vehicle location information 
to be recorded at the level of precision that could identify street 
addresses. Further, detailed location information would be required to 
be recorded only at discrete instances, such as when a driver changes 
duty status or at 60-minute intervals when the vehicle is in motion. 
FMCSA believes these privacy protection features also would help ensure 
that driver harassment does not arise from the use of ELDs.
6. Interoperability
    Interoperability refers to the ability of an ELD to share data with 
ELDs from other systems and providers. FMCSA clarifies that it is 
proposing technical requirements to facilitate interoperability, 
principally through the requirement for standardized data

[[Page 17672]]

output formats. FMCSA offers alternative communication interfaces to 
provide for the transfer of standardized ELD output data to authorized 
safety officials. This would allow different hardware implementations 
of ELDs in the market place, so long as the software produces the 
required data in a specific and consistent format. FMCSA understands 
that some carriers use more than one provider for HOS and FMS 
applications, and flexibility provided in the SNPRM would allow ELD 
providers to use standardized data formats and outputs as necessary to 
accommodate specific motor carrier needs.
    It is FMCSA's belief that output standardization would facilitate 
voluntary solutions for interoperability for those motor carriers who 
would need such functions. FMCSA considered requiring full 
interoperability, but does not propose it in this SNPRM, instead 
focusing on a minimal compliance standard that includes standardized 
outputs. FMCSA does not propose full interoperability in this SNPRM 
because FMCSA believes that there could be additional cost to some 
vendors by having the government mandate a universal input standard 
which might create some unevenness among vendors by selecting a certain 
data format. Additionally, the benefits of such a standard would only 
be realized by carriers who utilize multiple devices from different 
vendors.
    Though FMCSA is not proposing it, FMCSA would like to know more 
about the cost and benefits of full interoperability, and request 
information from the public concerning this topic:
    1. Should FMCSA require that every ELD have the capability to 
import data produced by other makes and brands of ELDs?
    2. To what extent would these additional required capabilities for 
full interoperability increase the cost of the ELDs and the support 
systems?
    3. While full interoperability could lower the cost of switching 
between ELDs for some motor carriers, are there a large number of motor 
carriers who operate or plan to operate with ELDs from more than one 
vendor? How would full interoperability compare to the proposed level 
of standardized output? If carriers wanted to operate ELDs from more 
than one vendor, would this be a barrier? Would this issue be impacted 
by the market-share of the ELD manufacturer?
    4. Would motor carriers and individual drivers have broad-based use 
or need for such capability? Is there a better way to structure 
standardized output to lower cost or encourage flexibility without 
requiring full interoperability?

VII. Proposed ELD Mandate

    Consistent with the requirements of MAP-21, 49 U.S.C. 31137, FMCSA 
proposes that interstate motor carriers install ELDs in all CMVs 
operated by drivers who are now required to prepare paper RODS, subject 
to a limited exception for drivers who are rarely required to keep 
RODS. If a driver is required to use an ELD, the motor carrier must not 
require or allow the driver to operate a CMV in interstate commerce 
without using the device. Drivers engaged in operations that do not 
require the preparation of RODS may use ELDs to document their 
compliance with the HOS rules, but are not required to do so. 
Furthermore, under today's proposal, drivers currently allowed to use 
timecards could continue to do so under the provisions of 49 CFR 
395.1(e).
    Drivers who need to use RODS infrequently or intermittently would 
be allowed to continue using paper RODS, provided they are not required 
to use RODS more than 8 days in any 30-day period. This proposed 
provision would accommodate drivers working for motor carriers that 
keep timecards under 49 CFR 395.1(e)(1) and (2) and who may 
occasionally operate beyond the parameters of those provisions (for 
example, by operating outside the specified 100- or 150-air-mile 
radius). The new threshold of not more than 8 days in any 30-day period 
would replace the threshold of 2 days out of any 7-day period that was 
proposed in the February 2011 NPRM in order to provide additional 
flexibility for this population. The Agency seeks comment on the 
proposed 8 out of 30-day threshold, how it would impact various 
segments of the industry, the potential cost savings resulting from 
this limited exception, and whether a shorter or longer duration would 
result in a more appropriate balance between the needs of enforcement 
and carrier flexibility. An eight-day period is the time-frame for 
current hours-of-service record-keeping requirements. Currently drivers 
are required to keep the previous seven days' records and the present 
day's records. Using eight days as the threshold for RODS usage to 
switch into ELD use keeps this time-frame consistent.
    FMCSA evaluated whether ELD usage required by this threshold could 
reasonably achieve positive net benefits, and concluded that some ELDs 
fulfill this condition. In addition, vendors have indicated that may 
produce additional low-cost ELDs that are closer to the minimally 
compliant device specifications. See section 6.5 (page 72) of the 
accompanying RIA for a more detailed discussion.
    As with the HOS record-retention provision of Sec.  395.8(k), the 
period would move with the calendar. For example, a driver who operates 
beyond the short-haul radius for 8 days in the previous 30-day period 
would need to use an ELD on the sixth day and any subsequent day when 
the driver exceeded the short-haul exemption. The 30-day period 
restarts each day, looking back at the previous 30 days. This is a 
similar concept to the requirements of 60 hours in 7-day or 70 hours in 
8-day limits for on duty time under the HOS regulations.
    It is estimated that this proposal would generate benefits that 
exceed the costs of installing ELDs and the costs associated with 
increased levels of compliance with the HOS rules. The proposal 
addresses the segment of the motor carrier industry with the highest 
safety and HOS compliance gaps. It also acknowledges the operational 
distinctions between drivers allowed to use timecards under 49 CFR 
395.1(e)(1) and (2) exclusively, and the other drivers who would be 
required to use ELDs. More information concerning the estimated costs 
and benefits is available in the RIA associated with this rulemaking.
    In the 2011 NPRM, the Agency raised a number of issues concerning 
the scope of the ELD mandate, and today's SNPRM modifies that proposed 
mandate in some respects. Given the distinction between short-haul and 
long-haul operations, and the proposed exception for drivers 
infrequently required to keep RODS, FMCSA is not proposing any 
additional exceptions addressing specific sectors of the industry, size 
of operations, or specific types of CMVs at this time. Nor is the 
Agency any longer proposing to require ELD use by passenger carriers 
whose drivers are not required to keep RODS, e.g., local operations 
permitted to rely on timecards under existing 49 CFR 395.1(e)(1). The 
Agency is also not proposing to include all motor carriers transporting 
bulk quantities of HM or all carriers subject to part 395 (the ``true 
universal'' approach). The estimated compliance costs of the ``true 
universal'' approach recommended by NTSB \13\ exceed the estimated 
safety benefits for most short-haul motor carriers; the comprehensive 
estimated net benefits are negative. The mandated use of ELDs as part 
of a remedial directive, as in the

[[Page 17673]]

vacated April 2010 rule, also is not proposed today. Finally, the 
Agency is not proposing an exception based on HOS compliance history in 
today's SNPRM because: (1) It could provide an unfair advantage to 
motor carriers for whom FMCSA has insufficient data to assess their 
HOS-related safety status; and (2) the dynamic nature of safety status 
measurements would present significant challenges to communicating 
changes in carriers' safety status levels.
---------------------------------------------------------------------------

    \13\ NTSB Safety Recommendation H-07-041 issued on December 17, 
2007.
---------------------------------------------------------------------------

VIII. Proposed Compliance Dates

A. Effective and Compliance Dates for a Final Rule

1. Technical Specifications
    An ELD provider could begin manufacturing ELDs according to the 
technical specifications of this rulemaking on the effective date of a 
final rule (30 days after the publication of a final rule in the 
Federal Register). This means that ELDs meeting the requirements of 
this rulemaking could be both manufactured and used to comply 
voluntarily with this rule soon after the date of the final rule's 
publication and establishment of FMCSA's public Web site.
2. ELD Mandate
    A driver or motor carrier subject to this proposed regulation would 
not be required to install or use an ELD until the compliance date (2 
years after the effective date of the final rule). However, a motor 
carrier that required its drivers to use AOBRDs that met the 
requirements of Sec.  395.15 before the compliance date for the ELD 
final rule could continue using such devices for 2 years after the 
rule's compliance date. At that point, a driver subject to the rule 
would need to use an ELD that met the new specifications. Today's SNPRM 
would not preclude a driver or motor carrier who chose to voluntarily 
adopt ELDs in advance of the compliance date from doing so.
3. Supporting Documents
    The proposed supporting document requirements in this rulemaking 
would take effect on the compliance date for the final rule (2 years 
after the effective date). On that date, the regulatory provisions 
would supersede the policy on retention of supporting documents and the 
use of electronic mobile communications/tracking technology issued June 
10, 2010 (75 FR 32984).
4. Harassment
    Because the harassment provisions are tied to the presence of part 
395, subpart B compliant ELDs, there is no specific compliance date. If 
a driver worked for a motor carrier that implemented ELDs voluntarily 
(before the 2-year compliance date), that driver could make a complaint 
before the ELD compliance date, as noted in Section X, below. However, 
a driver working for a motor carrier using AOBRDs before the compliance 
date would be unable to use the complaint process proposed in today's 
SNPRM until a compliant ELD device was in place. In other words, the 
harassment language would take effect on the rule's effective date, 
but, as a practical matter, the provision would be unavailable until an 
ELD was in use.
    The existing avenues to submit complaints remain available to 
drivers, including the FMCSA complaint process for substantial 
violations (49 CFR 386.12), the FMCSA National Consumer Complaint 
Helpdesk, and the complaint process at the U.S. Department of Labor 
under 49 U.S.C. 31105(b). FMCSA also cooperates with the U.S. 
Department of Justice in appropriate enforcement cases.

B. 2-Year Transition Period

    The 2011 NPRM proposed a compliance date 3 years after the 
effective date of the anticipated final rule. Furthermore, motor 
carriers would have been required to install compliant devices in CMVs 
manufactured on or after June 4, 2012.
    MAP-21, however, requires a compliance date 2 years after 
publication of a final rule (49 U.S.C. 31137(b)(1)(C)). In implementing 
the statute, the Agency seeks to balance effective roadside enforcement 
against the transition costs to motor carriers that installed AOBRDs 
before the compliance date of the ELD final rule. Thus, the Agency 
proposes to allow continued use of Sec.  395.15 devices, installed 
before the compliance date, for 2 years beyond the compliance date. To 
enhance enforcement, all motor carriers that use RODS--including those 
who used AOBRDs before the compliance date--would be required to use 
compliant ELDs by 2 years after the compliance date. The Agency does 
not propose to require use of ELDs based on a vehicle's manufacture 
date.

C. Cost Associated With Replacing AOBRDs

    In setting the proposed compliance date, FMCSA considered the costs 
of replacing voluntarily adopted AOBRDs and addressed those costs in 
the RIA prepared for this SNPRM. Although the proposed performance 
specifications for ELDs differ from those published in the April 2010 
rule, FMCSA believes that most HOS recording devices and systems 
manufactured on or after 2010 will be able to comply with this rule 
with relatively inexpensive software upgrades. To avoid understating 
costs, FMCSA assumed, however, that all devices and systems 
manufactured before 2010 would have to be replaced. The compliance date 
for a final rule that would follow this SNPRM is anticipated to be at 
the end of the useful life of these devices. FMCSA estimates that 
annualized costs to all voluntary adopters would be less than $5 
million. The RIA contains more details on how these estimates were 
derived. FMCSA seeks comments on the assumptions and methodology used.

IX. Proposed Supporting Document Provisions

    Today's SNPRM defines ``supporting document'' in a manner that 
generally tracks the definition found in section 113(c) of the HMTAA, 
i.e., ``any document . . . generated or received by a motor carrier . . 
. in the normal course of business that could be used, as produced or 
with additional identifying information, to verify the accuracy of a 
driver's record of duty status.'' In accordance with HMTAA, sec. 
113(b)(2), this SNPRM would limit the supporting documents that a motor 
carrier must maintain by specifying the number, category, and required 
elements for a supporting document and, subject to a limited exception, 
would not require supporting documents that reflect driving time. The 
reference in the statute to a ``commercial motor vehicle driver'' is 
not repeated in today's proposed definition because the specific 
obligations of the driver are addressed in proposed Sec.  395.11. The 
supporting document requirements would supersede the June 2010 policy 
on the retention of supporting documents (75 FR 32984) and would take 
effect the same date as the ELD compliance date (2 years after the 
effective date of a final rule).
    FMCSA acknowledges that some stakeholders have claimed that the use 
of ELDs eliminates the need to retain supporting documents. While 
properly functioning ELDs eliminate the need for supporting documents 
demonstrating driving time, some supporting documents are still 
necessary to ensure HOS compliance. In today's SNPRM, FMCSA clearly 
delineates between the information and data produced by the ELD and 
what FMCSA considers a supporting document.
    FMCSA believes that today's proposal is consistent with both the 
HMTAA and MAP-21. It balances the need for effective HOS enforcement 
and the burden on motor carriers to meet their obligation to ensure 
compliance in a

[[Page 17674]]

cost effective manner. It is also consistent with motor carriers' 
current obligations related to the retention and monitoring of 
supporting documents.
    Among the major changes from the February 2011 NPRM, today's SNPRM 
would eliminate the former proposals that each motor carrier maintain 
an HOS Management System and that a motor carrier certify as to the 
lack of supporting documents showing required elements. Further, 
today's SNPRM would eliminate the proposal in the 2011 NPRM that a 
single document, showing the start and end of any ODND period, could 
satisfy the supporting documents requirement.

A. Applicability

    The motor carrier would need to maintain supporting documents, 
which are generated or received in the normal course of business, to 
verify a driver's HOS compliance. The Agency defines ``supporting 
document'' to clarify that a document can be ``in any medium,'' that 
is, either a paper or an electronic document.
    The Agency would not require motor carriers to retain supporting 
documents to verify driving time, because the ELD would capture this 
information. The Agency's position is that ELDs record driving time 
more accurately than drivers using paper RODS and supplant the need for 
paper logs and any supporting documents that would have been generated 
or received concerning driving time. FMCSA, however, proposes to 
require motor carriers to retain, for each driver, supporting documents 
to verify each driver's ODND periods.
    The Agency proposes generally to require a single supporting 
document standard. For drivers who continue to use paper RODS, however, 
toll receipts would also need to be maintained. An otherwise uniform 
supporting document requirement will benefit both motor carriers and 
enforcement personnel by promoting standardized document retention and 
enforcement practices.
    FMCSA's proposal would require motor carriers and CMV drivers to 
share responsibility for complying with the proposed supporting 
document requirements. A driver would be required to submit his or her 
supporting documents to the employing carrier within 8 days. While a 
driver would not be required to keep all supporting documents in the 
CMV, a driver would, nonetheless, need to make supporting documents 
that are in the driver's possession available, on request, during a 
roadside inspection.

B. Categories

    In today's SNPRM, FMCSA would modify the categories of supporting 
documents that were proposed in the 2011 NPRM to better accommodate the 
broad diversity of the motor carrier industry. Specifically, the Agency 
proposes to alter the number of categories to provide clarification and 
more detailed descriptions of the supporting documents within each 
category. For every 24-hour period a driver is on duty, the motor 
carrier would be required to maintain not more than 10 supporting 
documents from the following 5 categories:
     Bills of lading, itineraries, schedules, or equivalent 
documents that indicate the origin and destination of each trip;
     Dispatch records, trip records, or equivalent documents;
     Expense receipts;
     Electronic mobile communication records, reflecting 
communications transmitted through an FMS for the driver's 24-hour duty 
day; and
     Payroll records for the driver's 24-hour duty day, 
settlement sheets, or equivalent documents that indicate what and how a 
driver was paid.

These categories would provide the Agency and motor carriers with the 
supporting documents necessary to perform their safety oversight 
functions.
    FMCSA acknowledges the view of some stakeholders that supporting 
documents ought to be limited to a specific, finite list of documents 
to ease compliance. Given the wide diversity of operations in the CMV 
industry, however, this approach would not be feasible from an HOS 
enforcement perspective. The proposed categories are intended to 
accommodate various sectors of the industry.

C. Data Elements

    In today's SNPRM, FMCSA proposes to clarify the data elements that 
would need to be included on a document for it to qualify as a 
supporting document and be counted toward the proposed 10-document 
retention cap. These proposed elements are: (1) Driver name or carrier-
assigned identification number, either on the document or on another 
document enabling the carrier to link the document to the driver, or 
the vehicle unit number if that number can be linked to the driver; (2) 
date; (3) location (including name of nearest city, town, or village); 
and (4) time. If sufficient documents containing these four data 
elements were not available, a motor carrier would be required to 
maintain supporting documents that contain the driver name or motor 
carrier-assigned identification number, date, and location.

D. Number

    FMCSA proposes a cap of 10 supporting documents that would need to 
be maintained for each day a driver is on duty. While a motor carrier 
may not have 10 supporting documents for a driver's duty day, in 
establishing a cap, the Agency has attempted to balance the need for 
adequate enforcement of the HOS regulations against any burden on 
carrier operations, while applying the requirements of the HMTAA.
    To arrive at a total of 10, all electronic mobile communication 
records involving a driver over the course of the driver's 24-hour 
period would count as a single document, regardless of the number of 
individual communications involved. All other types of supporting 
documents that are relevant to distinct activities--such as a payroll 
document covering one or several drivers, a bill of lading for a 
particular delivery, and an expense receipt--would count as individual 
documents. In instances where there are more than 10 supporting 
documents available, a motor carrier would need to retain the first and 
last supporting documents containing an indication of time for each end 
of a driver's duty day.
    The Agency recognizes that, in many cases, fewer than 10 supporting 
documents would be accumulated for a driver's duty day. If the 
supporting document cap were not reached, the motor carrier would be 
required to keep all of the supporting documents for that period. There 
would be no obligation on a motor carrier to create or annotate 
documents that it did not otherwise generate or receive in its normal 
course of business.

E. Submission to Motor Carrier

    In today's SNPRM, FMCSA proposes that a driver who is required to 
maintain RODS or use an ELD submit supporting documents (and the RODS 
or the ELD record) to the driver's motor carrier within 8 days of 
either the 24-hour period to which the documents pertain or the day the 
document comes into the driver's possession, whichever is later. The 
SNPRM would extend the time for a driver to submit supporting documents 
to the motor carrier beyond the 3-day and 1-day periods proposed in the 
February 2011 NPRM. In addition, unlike the 2011 NPRM, the SNPRM 
proposes the same submission period for both electronic and paper 
records: 8 days.

[[Page 17675]]

F. HOS Enforcement Proceedings

    Today's SNPRM does not contain the HOS management system 
requirement proposed in the 2011 NPRM. Instead, to further HOS 
enforcement, FMCSA proposes to add procedural provisions that would 
apply during any proceeding under 49 CFR part 395. Consistent with a 
motor carrier's existing obligation to require that its drivers comply 
with the FMCSRs, today's SNPRM would provide that a motor carrier is 
liable for an employee's act, or failure to act, that violates 49 CFR 
part 395, provided that the act or omission is within the course of the 
motor carrier's operations. The burden of proving that the employee was 
acting outside the scope of the motor carrier's operation would be on 
the motor carrier. Finally, knowledge of any document, either in a 
motor carrier's possession or available to the motor carrier, that 
could be used to ensure compliance with 49 CFR part 395 would be 
imputed to the motor carrier.

G. Carriers Using Paper Logs

    Under today's SNPRM, certain drivers who would infrequently need to 
keep RODS could continue to use paper logs. Any carriers that would be 
required to maintain supporting documents when their drivers keep paper 
logs would be required to maintain the same number and types of 
supporting documents that are required for ELD users. Motor carriers 
whose drivers use paper logs would also need to maintain toll receipts.

H. Self-Compliance Systems

    Section 113(b)(4) of the HMTAA requires FMCSA to provide exemptions 
for qualifying ``self-compliance systems,'' in place of supporting 
documents retention. In satisfaction of section 113(b)(4), today's 
SNPRM would add a provision to authorize, on a case-by-case basis, 
motor carrier self-compliance systems (49 CFR 395.11(h)). Consistent 
with our 2011 NPRM, under today's SNPRM, a motor carrier could apply 
for an exemption under existing 49 CFR part 381 provisions for relief 
from the requirements for retaining supporting documents for RODS. 
While the authority to exempt self-compliance systems is derived from 
HMTAA, the Agency relies on existing 49 CFR part 381 provisions to 
govern exemption requests.

X. Ensuring Against Driver Harassment

    In accordance with 49 U.S.C. 31137(a)(2), FMCSA proposes both 
procedural and technical provisions aimed at protecting CMV operators 
from harassment involving ELDs or connected technology. The primary 
focus of the Agency's proposal addresses the problems of: (1) Drivers 
being pressured to exceed HOS limitations; and (2) inappropriate 
communications that affect drivers' rest periods. The Agency addresses 
the related but distinct issue of driver coercion in Part XI, below.
    Although the statute provides that regulations relating to ELDs 
shall ``ensur[e] that an electronic logging device is not used to 
harass a vehicle operator,'' the Agency notes that it cannot adopt a 
regulation guaranteeing that every instance and form of harassment, 
whether real or perceived, is eliminated. Nor does the Agency believe 
that Congress intended that the Agency interfere with labor/management 
agreements or disputes not directly related to the required use of 
ELDs, or duplicate the role Congress has assigned to the U.S. 
Department of Labor under 49 U.S.C. 31105.
    As explained in Part VI of this SNPRM, FMCSA would refine the 
requirements of an ELD to include only recording functions; anything 
beyond basic recording of the required data elements would not be 
required by an ELD. However, the SNPRM would not prohibit motor 
carriers from employing communication, FMS, and other functions beyond 
mere recording. Many current systems, which have been on the market for 
years, go beyond the recording abilities proposed in this SNPRM; and 
the Agency does not infer from the anti-harassment provision in section 
31137(a)(2) a congressional intent that FMCSA ban or impose significant 
new restrictions on those functionalities in this rulemaking. 
Therefore, to the extent necessary to address harassment, FMCSA would 
address use of technology beyond the minimally compliant ELD only if 
that technology encompassed an ELD function.

A. Drivers' Access to Own Records

    ELDs meeting the proposed technical requirements in today's SNPRM 
would help protect drivers from pressures to violate the HOS rules. 
However, to ensure adequate protection, it is critical that drivers 
have access to their ELD records. FMCSA proposes to require that 
drivers be able to obtain copies of their own ELD records available on 
or through an ELD. On request, a motor carrier must provide its drivers 
with access to and copies of their ELD records for the 6 months that 
the motor carrier is required to maintain the records.

B. Explicit Prohibition on Harassment

    FMCSA proposes to add a new Sec.  390.36 to prohibit a motor 
carrier from engaging in harassment of a driver. As defined, ``harass 
or harassment'' would mean ``an action by a motor carrier towards a 
driver employed by the motor carrier (including an independent 
contractor while in the course of operating a CMV on behalf of the 
motor carrier) involving the use of information available through an 
ELD . . . or through other technology used in combination with and not 
separate from the ELD, that the motor carrier knew, or should have 
known, would result in the driver violating Sec.  392.3 or part 395 [of 
49 CFR].'' This definition recognizes the dire safety consequences that 
can result when the pressure a motor carrier imposes on a driver 
results in an HOS violation or in a driver operating when the driver's 
alertness is impaired through fatigue or illness.
    Under today's proposal, however, a driver who believed that a motor 
carrier required him or her to violate Sec.  392.3 or part 395 in a 
manner described in the proposed definition could file a complaint 
alleging harassment with FMCSA.\14\
---------------------------------------------------------------------------

    \14\ Currently, drivers can file an informal complaint on any 
violation of the FMCSRs with FMCSA's National Consumer Complaint 
Database help desk. This option would not change.
---------------------------------------------------------------------------

    Although FMCSA's definition of harassment would not require adverse 
action by the carrier against the driver, it would require an actual 
violation of Sec.  392.3 or part 395 of the FMCSRs. MAP-21 eliminated 
the reference to productivity in 49 U.S.C. 31137; however, the Agency 
would not penalize motor carrier actions aimed at productivity, 
provided that the action did not constitute harassment as defined in 
today's proposal.

C. Complaint Procedures

    The SNPRM proposes to add new Sec. Sec.  386.12a and 390.36, 
prescribing a process for filing a harassment complaint. Among other 
things, the complaint would need to describe the action by the motor 
carrier that the driver deems harassment, including how the ELD or 
related technology was used to contribute to the carrier's action. The 
complaint would also need to identify how the motor carrier's action 
violated 49 CFR 392.3 or part 395.
    The proposals outlined in this SNPRM would give drivers control 
over their own ELD records and ensure driver access to such records. 
Furthermore, drivers would be able to annotate their records reflecting 
concerns such as driver fatigue. These

[[Page 17676]]

records would provide drivers with better information to substantiate 
any complaint.

D. Enhanced Penalties To Deter Harassment

    FMCSA proposes a new penalty for a motor carrier that engages in 
harassment. Because harassment would be considered in cases of alleged 
HOS violations, the penalty for harassment would supplement the 
underlying HOS violations of 49 CFR 392.3 and part 395. An underlying 
violation would have to be found for a penalty for harassment to be 
assessed. Further, harassment would constitute an acute violation under 
part 385.

E. Mute Function

    FMCSA acknowledges that some drivers feel their motor carriers 
inappropriately contact them during rest periods through FMS 
communication systems--technology frequently used, but not required, as 
part of a minimally compliant ELD. Thus, if the driver puts the ELD 
into a sleeper berth status, and, in the case of co-drivers, no other 
driver has logged into the ELD in an on-duty driving status, the SNPRM 
specifies that the ELD must automatically mute the ELD's volume, turn 
off the ELD's audible output, or allow the driver to do so. FMCSA 
believes this addition is important to allow drivers to obtain adequate 
rest during sleeper berth periods.

F. Edit Rights

    FMCSA recognizes that some electronic recorders currently in use 
allow changes to drivers' HOS records by motor carriers or dispatchers 
without the driver's input. FMCSA proposes to revise the procedures for 
amendment of electronic records to better protect the integrity of 
those records and to prevent related instances of driver harassment. In 
today's SNPRM, the word ``edit'' means a change to an electronic record 
that does not overwrite the original record. An example of such a 
change would be revising a duty status designation from ``off duty'' to 
``on-duty not driving.'' Edits would need to reflect their authorship, 
and an edit could not convert driving time into non-driving time. In 
this SNPRM, FMCSA proposes that a driver may edit and the motor carrier 
may request edits to electronic RODS. Drivers would have a full range 
of edit abilities and rights over their own records (except for the 
listed limitations in the rule), while a carrier would be allowed to 
propose edits for a driver's approval or rejection.
    All edits, whether made by a driver or the motor carrier, would 
have to be annotated to document the reason for the change. For 
example, an edit showing time being switched from ``off duty'' to ``on-
duty not driving'' could be annotated by the carrier to note, ``Driver 
logged training time incorrectly as off duty.'' This edit and 
annotation would then be sent to the driver for approval. FMCSA 
believes this is the most efficient way to capture these data and 
ensure that HOS violations are not being concealed from either party. 
FMCSA believes that there are good reasons for both the motor carrier 
and the driver to be able to view HOS records and understands that 
there are legitimate reasons that both a motor carrier and a driver 
might want to edit these records. For example, if a driver were to 
inadvertently show a 30 minute break as ODND, the record could be 
annotated to show a mandatory break. It is the Agency's view that these 
provisions, and additional requirements addressing security of data, 
would significantly reduce the potential for driver harassment 
resulting from use of ELDs.

G. Tracking of Vehicle Location

    FMCSA acknowledges that some drivers view the FMS, which often 
includes ELD functions as well as additional recording capabilities and 
real-time communication features, as a mechanism for the harassment of 
drivers or invasion of privacy. Motor carriers counter, however, that 
companies use this technology to know where their CMVs are at all times 
and how much time their drivers may continue to operate in compliance 
with the HOS regulations. The technical specifications in today's SNPRM 
are intended to address drivers' concerns in terms of the level of data 
collected for HOS enforcement.
    Location recording is a critical component of HOS enforcement. 
Drivers have always had to record certain location information on paper 
RODS. Although electronic recording is more accurate, the acquisition 
of location information for CMV operators is not a novel requirement. 
Nonetheless, FMCSA does not propose to require real-time tracking of 
CMVs or the recording of precise location information. Instead, 
location data would be required to be recorded when the driver changes 
duty status, when a driver indicates personal use or yard moves, when 
the CMV engine powers up and shuts down, and at 60-minute intervals 
when the vehicle is in motion. During on-duty driving periods, FMCSA 
would limit the location accuracy for HOS enforcement to coordinates of 
two decimal places, providing an accuracy of approximately a 1-mile 
radius for purposes of HOS enforcement. However, when a CMV is operated 
for personal use, the position reporting accuracy would be even further 
reduced to an approximate 10-mile radius. Thus, the Agency would not 
require that an ELD determine or record a CMV's or driver's exact 
location. Moreover, the SNPRM would not require that the ELD record and 
transmit any CMV location data in real time, either to the motor 
carrier or to enforcement officials.

H. FMCSRs Enforcement Proceedings

    MAP-21 requires that the Agency institute appropriate measures to 
preserve the confidentiality of personal data recorded by an ELD that 
is disclosed in the course of an FMCSRs enforcement proceeding (49 
U.S.C. 31137(e)(2)). To protect data of a personal nature unrelated to 
business operations, the Agency would redact such information included 
as part of the administrative record before a document was made 
available in the public docket.

I. Summary

    In today's SNPRM, FMCSA would provide enhanced procedural 
protections and remedies intended to protect drivers using ELDs from 
actions considered harassment. In addition, the proposed technical 
specifications for the ELD were specifically designed to provide 
drivers additional protection. By recording the time spent behind the 
wheel of a CMV accurately, the ELD would make all parties involved 
aware of the actual time for a driver to make a certain trip. FMCSA 
believes this increased transparency would lead to reduced pressure on 
drivers to falsify their RODS. ELDs provide a more reliable and simpler 
tool for recording drivers' HOS than paper RODS. FMCSA believes the use 
of ELDs would lead, not only to better compliance with HOS regulations, 
but also to a clearer understanding of driver schedules. The technical 
specifications aimed at protecting drivers from harassment are further 
addressed under Part IV.

XI. MAP-21 Coercion Language

    As a result of section 32911 of MAP-21, FMCSA will publish an NPRM 
that proposes regulations that would prohibit motor carriers, shippers, 
receivers, or transportation intermediaries from coercing drivers to 
operate CMVs in violation of certain provisions of the FMCSRs or the 
Hazardous Materials Regulations. The coercion NPRM would propose 
procedures for drivers to report incidents of coercion to FMCSA, rules 
of practice the Agency would follow in

[[Page 17677]]

response to allegations of coercion, and penalties that would be 
imposed on entities found to have coerced drivers.
    The coercion rule will differ from the anti-harassment provisions 
proposed in this rulemaking. Major differences include that the 
proposed coercion rule will address shippers, receivers, and 
transportation intermediaries as well as motor carriers; and its focus 
is on the loss or potential loss of future business or work. While the 
term ``coercion'' will be defined in the coercion rule, today's SNPRM 
specifically proposes prohibiting motor carriers from coercing drivers 
to falsely certify ELD records.

XII. Section-by-Section Analysis

    This SNPRM contains significant changes to the NPRM published 
February 1, 2011. Today's proposed regulatory text supersedes the 
February 2011 NPRM. In light of the vacatur of the April 2010 final 
rule and the enactment of MAP-21, this SNPRM addresses requirements for 
technical specifications for ELDs, the use of ELDs, the maintenance of 
supporting documents, and the potential for harassment of drivers 
related to ELD technology. This section-by-section analysis describes 
the revised proposed rule provisions in numerical order.

A. Part 385--Safety Fitness Procedures

    In Section VII of appendix B of part 385, the list of acute and 
critical regulations would be modified to reflect proposed changes in 
parts 390 (driver harassment) and 395 (hours of service).

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

1. Section 386.1
    This section would be modified to reflect the handling of 
substantial violations and harassment violations by the appropriate 
Division Administrator, rather than the Assistant Administrator.
2. Section 386.12
    This section would be changed to reflect the handling of 
substantial violation complaints by the Division Administrator for the 
State where the incident occurs, rather than the Assistant 
Administrator. It would prescribe procedures governing these 
complaints. It would also address how allegations brought to the 
attention of other officials in the Agency would be handled.
3. Section 386.12a
    This section would be added to prescribe procedures for the 
handling of harassment complaints filed with the Division Administrator 
for the State where the incident occurs. It would prescribe the 
information that a driver would need to include in a written complaint 
alleging harassment by a motor carrier as well as procedures that the 
Division Administrator would need to follow in handling complaints. It 
would also address how allegations brought to the attention of other 
officials in the Agency would be handled.
4. Appendix B to Part 386
    New paragraph (a)(7) would be added to emphasize how the Agency 
would impose penalties upon a finding of driver harassment.

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

    FMCSA would add a new Sec.  390.36 to define harassment, prohibit 
motor carriers from engaging in harassment, and reference the process 
under which a driver could file a written complaint.

D. Part 395--Hours of Service of Drivers

    Today's SNPRM would divide part 395 into two subparts. Proposed 
subpart A, General, would include Sec. Sec.  395.1 through 395.19. 
Proposed subpart B, ELDs, would address the design and use of ELDs and 
would consist of Sec. Sec.  395.20 through 395.38 and detailed 
performance specifications applicable to ELDs in the appendix to 
subpart B.
Subpart A--General
1. Section 395.1(e)
    This paragraph would be amended to reflect that drivers who qualify 
to use the short-haul exceptions under 49 CFR 395.1(e)(1) or (2) would 
not be required to keep supporting documents under proposed Sec.  
395.11.
2. Section 395.2
    In this section, FMCSA proposes to add the following new 
definitions.
    Electronic Logging Device (ELD). FMCSA would add a new definition 
of ``ELD'': A device or technology that meets the requirements of 
proposed subpart B of part 395.
    Supporting Document. FMCSA proposes a definition of ``supporting 
document'' similar to the definition in the HMTAA. Substantive 
provisions pertaining to supporting documents are proposed in Sec.  
395.11.
3. Section 395.7
    This section would add procedural provisions that would apply 
during any proceeding involving the enforcement of 49 CFR part 395. 
Specifically, it would provide that a motor carrier would be liable for 
an employee's acting or failing to act in a manner that violates part 
395 as long as the action was within the course of the motor carrier's 
operation. The burden of proving that the employee acted outside the 
scope of the motor carrier's operation would be on the motor carrier. 
Finally, knowledge of any document in the motor carrier's possession, 
or available to the motor carrier, that could be used to ensure 
compliance with part 395 would be imputed to the motor carrier.
4. Section 395.8
    This section addresses general requirements for HOS RODS. Subject 
to limited exceptions, it would require motor carriers to install and 
use ELDs that comply with the proposed technical specifications no 
later than 2 years following the rule's effective date.
    Subject to limited exceptions, under paragraph (a)(1), motor 
carriers would need to require drivers that keep RODS to use ELDs. The 
rule would allow for continued use of AOBRDs (2-year grandfathering of 
devices installed prior to compliance date) as well as use of paper 
RODS by drivers requiring RODS not more than 8 days in a 30-day period 
after the rule's compliance date. Paragraph (a)(2) would require 
drivers to use the recording method required by their motor carrier and 
to submit their RODS to their carrier within 8 days. The requirement 
for motor carriers to use ELDs, however, would not apply when an 
extension is granted by FMCSA to allow a motor carrier to repair, 
replace, or service one or more malfunctioning ELDs under Sec.  
395.34(d).
    Paragraph (e) would prohibit a motor carrier or driver from making 
a false report in connection with duty status and from tampering with, 
or allowing another person to tamper with, an AOBRD or ELD to prevent 
it from recording or retaining accurate data.
    Paragraph (i), which currently allows submission of records to a 
motor carrier within 13 days, would be eliminated in light of proposed 
Sec.  395.8(a)(2)(ii), which would require drivers to submit records to 
the motor carrier within 8 days.
    Paragraph (k)(1) would continue to require a motor carrier to 
maintain RODS and supporting documents for a 6-month period.
5. Section 395.11
    FMCSA would place the detailed requirements concerning supporting 
documents in Sec.  395.11.
    Paragraph (a) provides that the new supporting document provisions 
would take effect 2 years after the effective date of the final rule. 
Until this date, the June 2010 policy on the retention of supporting 
documents and the use of electronic mobile communication/

[[Page 17678]]

tracking technology would remain in place (75 FR 32984).
    Paragraph (b) would address the drivers' obligation to submit 
supporting documents to their employers within 8 days. (The term 
``employer'' is defined in Sec.  390.5.)
    Paragraph (c) describes five categories of supporting documents 
generated or received in the normal course of business. These 
categories would include: (1) Bills of lading, itineraries, schedules, 
or equivalent documents indicating the origin and destination of a 
trip; (2) dispatch records, trip records, or equivalent documents; (3) 
expense receipts related to ODND time; (4) electronic mobile 
communication records reflecting communications transmitted through an 
FMS (e.g., text messages, email messages, instant messages, or pre-
assigned coded messages); and (5) payroll records, settlement sheets, 
or equivalent documents reflecting driver payments. Paragraph (c) also 
would address the data elements that a document must reflect to qualify 
as a supporting document.
    Paragraph (d) generally proposes to require a motor carrier to 
retain, at most, 10 documents for an individual driver's 24-hour duty 
day. It also describes how FMCSA would treat electronic mobile 
communication records in applying the 10-document cap. If a driver were 
to submit more than 10 documents for a 24-hour period, the motor 
carrier would need to retain the documents containing earliest and 
latest time indications. Finally, for drivers that continued to use 
paper RODS, all toll receipts would also need to be maintained, 
irrespective of the 10-document requirement. The Agency interprets the 
reference to ``toll receipts'' to include electronic records.
    Paragraph (e) would require a motor carrier to maintain supporting 
documents in a way that allows the documents to be matched to a 
driver's RODS.
    Paragraph (f) would prohibit motor carriers and drivers from 
obscuring, defacing, destroying, mutilating, or altering information in 
a supporting document.
    Paragraph (g) would require that a driver make available, during a 
roadside inspection, any supporting document in the driver's 
possession.
    Paragraph (h) describes the proposed process for submitting 
requests for self-compliance systems that FMCSA may authorize on a 
case-by-case basis, as required by HMTAA.
6. Section 395.15
    FMCSA proposes to sunset the authority to use AOBRDs 2 years after 
the rule's effective date. However, those motor carriers that have 
installed AOBRDs prior to the sunset date would be allowed to continue 
using AOBRDs for an additional 2 years (i.e., up to 4 years after the 
effective date of the final rule).
Subpart B--Electronic Logging Devices (ELDs)
7. Section 395.20
    Section 395.20 paragraph (a) would describe the scope of ELDs 
described in proposed subpart B.
    Paragraph (b) would describe the applicability of technical 
specifications required for ELDs under subpart B, effective 2 years 
after the rule's effective date.
    Paragraph (c) would clarify that, throughout subpart B, the term 
``ELD'' includes an ELD support system, as applicable.
8. Section 395.22
    Section 395.22 outlines the proposed responsibilities of the motor 
carrier related to the ELD.
    Paragraph (a) proposes a requirement for motor carriers to use only 
ELDs registered and certified with FMCSA and listed on the Agency's Web 
site.
    Paragraph (b) outlines the responsibilities of a motor carrier and 
its support personnel.
    Paragraph (c) lists the proposed driver identification data that 
would be required.
    Paragraph (d) details the identification data for motor carrier 
support personnel.
    Paragraph (e) describes the proposed requirement for a motor 
carrier to require its drivers and support personnel to use the proper 
log-in process for an ELD.
    Paragraph (f) proposes the requirement for a motor carrier to 
calibrate and maintain ELD systems.
    Paragraph (g) proposes requirements for mounting portable ELDs.
    Paragraph (h) lists the information a motor carrier would be 
required to provide to its drivers who are using ELDs in their CMVs.
    Paragraph (i) would require a motor carrier to maintain a driver's 
ELD records so as to protect the driver's privacy in a manner 
consistent with sound business practices. However, given the diversity 
of the regulated community and business practices, the Agency declines 
to require specific record maintenance requirements. It also would 
require that the motor carrier keep a back-up copy of ELD records in 
storage.
    Paragraph (j) would require a motor carrier to provide 6 months of 
ELD records electronically to authorized safety officials as requested 
during an enforcement activity.
9. Section 395.24
    Paragraph (a) would require a driver to provide data as prompted by 
the ELD and as specified by the motor carrier.
    Paragraph (b) lists the duty statuses that a driver may choose 
from, corresponding to the duty status categories currently listed on 
paper RODS.
    Paragraph (c) lists other data that a driver may sometimes need to 
enter manually into the ELD, such as annotations, file comments, 
verification, CMV number, trailer numbers, and shipping numbers, as 
applicable.
    Paragraph (d) would require a driver to produce and transfer the 
driver's HOS data to an authorized safety official on request.
10. Section 395.26
    Paragraph (a) outlines the purpose of the section, namely, to 
provide an overview of what an ELD accomplishes in accordance with the 
provisions of the appendix to proposed subpart B of part 395.
    Paragraph (b) lists the data elements recorded when an ELD logs an 
event.
    Paragraph (c) describes requirements for data recording during a 
change of duty status event.
    Paragraph (d) describes what an ELD records during an intermediate 
recording when the CMV is in motion and there has been no change of 
duty status entered into the ELD and no other intermediate status 
recorded in an hour.
    Paragraph (e) describes what an ELD records when a driver selects a 
special driving category, i.e., personal use or yard moves.
    Paragraph (f) describes what an ELD records when a driver certifies 
a daily log.
    Paragraph (g) describes what an ELD records when there is a login/
logoff event.
    Paragraph (h) describes what happens when the CMV's engine powers 
on or off.
    Paragraph (i) describes the recording of location information 
during authorized personal use of a CMV.
    Paragraph (j) describes what happens in the case of an ELD 
malfunction event.
11. Section 395.28
    Paragraph (a) lists special driving categories and explains that 
motor carriers may configure these settings based on company policies. 
This paragraph also lists driver responsibilities when selecting one of 
these special driving categories.

[[Page 17679]]

    Paragraph (b) proposes that a motor carrier may configure an ELD to 
show that a driver is exempt from the requirement to use an ELD.
    Paragraph (c) proposes that a driver excepted under Sec.  390.3(f) 
or Sec.  395.1 must annotate the record to explain why the driver is 
excepted.
12. Section 395.30
    Paragraph (a) proposes that both drivers and motor carriers are 
responsible for ensuring that drivers' ELD records are accurate.
    Paragraph (b) lists the proposed requirements for a driver to 
review and certify that the driver's RODS are accurate.
    Paragraph (c) explains the proposed process for a driver to edit, 
add missing information to, and annotate RODS to fix information 
entered in error.
    Paragraph (d) explains the proposed process for motor carrier 
support personnel to request edits of a driver. This paragraph also 
explains that, under the proposal, edits made to the driver's record by 
anyone other than the driver would require the driver's approval or 
rejection.
    Paragraph (e) would prohibit a motor carrier from coercing a driver 
to falsely certify the driver's ELD records. FMCSA plans to define the 
term ``coerce'' in a separate rulemaking.
    Paragraph (f) would prohibit a motor carrier from manipulating or 
deleting ELD records or their source data streams.
13. Section 395.32
    Paragraph (a) describes the concept of ``non-authenticated driver 
logs,'' an account which is assigned any driving time not associated 
with an authorized ELD user and driver.
    Paragraph (b) describes how a driver would have to review any 
driving time listed under the ``non-authenticated driver log'' account 
upon login to the ELD. If there were driving time listed under this 
account that belonged to the driver, the driver would be required to 
add that driving time to the driver's own record.
    Paragraph (c) lists the proposed requirements for a motor carrier 
to explain or assign ``non-authenticated driver log'' time. This 
paragraph proposes that the motor carrier retain these records as a 
part of its HOS ELD records and present them to safety enforcement 
officials.
14. Section 395.34
    Paragraph (a) explains what a driver would be required to do should 
the ELD malfunction. It specifies that the driver would need to notify 
the motor carrier of an ELD malfunction in writing within 24 hours. 
Written notice could be provided by electronic means such as email.
    Paragraph (b) explains what a driver would be required to do if the 
driver's HOS records were inspected during a malfunction.
    Paragraph (c) explains that a driver would have to address any data 
inconsistency in the ELD according to the ELD provider's and motor 
carrier's procedures.
    Paragraph (d) would require a motor carrier to take action to 
repair any malfunctioning ELD within 8 days of discovery of the 
malfunction or a driver's notification of the malfunction. If a motor 
carrier needs additional time to repair, replace, or service one or 
more ELDs, paragraph (d) also provides a process for requesting an 
extension of time.
15. Section 395.36
    Paragraph (a) would require a motor carrier to provide its drivers 
with access to their own ELD records in a way that does not require 
requesting them through the motor carrier if those records are 
available on or retrievable through the ELD.
    Paragraph (b) would require a motor carrier to give a driver access 
to the driver's own ELD records, upon request, if they are unavailable 
through the ELD.
16. Section 395.38
    Section 395.38 describes materials that would be incorporated by 
reference in subpart B and addresses where the materials are available. 
Whenever FMCSA, or any Federal agency, wants to refer in its rules to 
materials or standards published elsewhere, it needs approval from the 
Director of the Office of the Federal Register. The process FMCSA needs 
to follow is described in this section. For additional information 
regarding use of technical standards see Section N. of Part XIII.
    The following explanations provide a brief description of each 
standard. In order to provide better access, FMCSA includes Web 
addresses where more information about each standard can be found. 
Complete contact information is included as part of Sec.  395.38. These 
standards are also available for review at FMCSA headquarters.
    In paragraph (b)(1), ``Standard for Authentication in Host 
Attachments of Transient Storage Devices'' is a standard from the IEEE 
that describes a trust and authentication protocol for USB flash drives 
and other storage devices that would be able to be used for a possible 
transfer of ELD data according to the specifications of this proposed 
rule. As of November 25, 2013, this standard was available for $175, 
and information about it can be found at http://standards.ieee.org/findstds/standard/1667-2009.html.
    Paragraph (c)(1) references the ``Universal Serial Bus 
Specification'' or USB, which is an industry standard for communication 
between two computing devices. The USB allows a driver to transfer the 
record of duty status data to a safety official using a small device 
commonly called a ``flash drive.'' As of November 18, 2013, this 
standard was available at no cost, and information about it can be 
found at https://www.bluetooth.org/Technical/Specifications/adopted.htm.
    Paragraph (d)(1) describes ``ANSI INCITS 446-2008, American 
National Standard for Information Technology--Identifying Attributes 
for Named Physical and Cultural Geographic Features (Except Roads and 
Highways) of the United States, Its Territories, Outlying Areas, and 
Freely Associated Areas and the Waters of the Same to the Limit of the 
Twelve-Mile Statutory Zone (10/28/2008),'' a standard from the American 
National Standards Institute (ANSI) that covers geographic names and 
locations stored in the U.S. Geological Survey (USGS) Geographic Names 
Information System (GNIS). This information is required to populate the 
location database of complaint ELDs. As of November 25, 2013, this 
standard was available for $30, and information about it can be found 
at http://webstore.ansi.org/RecordDetail.aspx?sku=ANSI+INCITS+446-2008.
    Paragraph (d)(2) describes ``Information Systems--Coded Character 
Sets--7-Bit American National Standard Code for Information Interchange 
(7-Bit ASCII),'' a standard from ANSI that describes a character set 
code to convert digits to alphabet, number, and symbol characters used 
in computing. This code set is used to create ELD files. As of December 
10, 2013, this standard was available for $30, and information about it 
can be found at http://webstore.ansi.org/RecordDetail.aspx?sku=ANSI+INCITS+4-1986+%28R2007%29.
    Paragraph (e)(1) ``ISO/IEC 18004:2006 Information technology--
Automatic identification and data capture techniques--QR Code 2005 bar 
code symbology specification,'' which is an industry standard from the 
International Standards Organization (ISO) for converting information 
into two dimensional barcodes that can be read using common tools such 
as smart phones or hand scanners. This standard would be used to comply 
with the transfer of ELD data specifications. As of December 10, 2013, 
this standard was

[[Page 17680]]

available from the ANSI at http://www.webstore.ansi.org/RecordDetail.aspx?sku=ISO%2fIEC+18004%3a200t 6 for $250.
    Paragraph (e)(2) describes ``ISO/IEC 17568 Information technology--
Telecommunications and information exchange between systems--Close 
proximity electric induction wireless communications,'' a standard from 
the ISO for transmitting a large amount of data at high speed when two 
devices are held very close together. This standard is used 
commercially in the TransferJet technology. This standard describes how 
close proximity transfers of data would take place with a compliant ELD 
that may elect to support TransferJet. As of December 10, 2013, this 
standard was available at http://webstore.ansi.org/RecordDetail.aspx?sku=ISO%2FIEC+17568%3A2013 for $235.
    Paragraph (f)(1) ``The Transport Layer Security (TLS) Protocol 
Version 1.2'' describes a standard from the Internet Engineering Task 
Force (IETF), which describes a security mechanism for information that 
is being transmitted over a network. This standard is best known for 
use with Web sites that start with ``https://'' rather than just 
``http://''. This standard would be used to secure data if ELD files 
are transferred using the web. As of December 10, 2013, this standard 
was available at no cost and it can be found at https://ietf.org/doc/rfc5246/.
    Paragraph (f)(2) ``Simple Mail Transfer Protocol'' is an industry 
standard from the IETF for a computer networking protocol to send and 
receive electronic mail (email) containing ELD data. As of December 12, 
2013, this standard was available at no cost, and can be found at 
https://ietf.org/doc/rfc5321/.
    Paragraph (f)(3) ``Internet Message Format,'' describes an industry 
standard from the IETF for the format of email, including address, 
header information, text, and attachments, including those emails 
containing ELD data. As of December 12, 2013, this standard was 
available at no cost, and can be found at https://ietf.org/doc/rfc5322/.
    Paragraph (g)(1) ``Federal Information Processing Standards (FIPS) 
Publication 197, November 26, 2001, Announcing the ADVANCED ENCRYPTION 
STANDARD (AES)'' describes a Federal government standard from the 
National Institute of Standards and Technology (NIST) for encrypting 
data to protect its confidentiality and integrity. This standard would 
be used to encrypt emailed data derived from the ELD. This standard is 
available at no cost at http://csrc.nist.gov/publications/fips/fips197/fips-197.pdf.
    Paragraph (g)(2) describes ``Special Publication (SP) 800-32, 
February 26, 2001, Introduction to Public Key Technology and the 
Federal PKI Infrastructure,'' a guidance document from NIST for 
securely exchanging sensitive information, including some ELD data. 
This standard is available at no cost at http://csrc.nist.gov/publications/nistpubs/800-32/sp800-32.pdf.
    Paragraph (h)(1) ``Web Services Description Language (WSDL) 1.1, 
W3C Note 15, March 2001'' describes a specification from the World Wide 
Web Consortium (W3C) that describes the interface to a Web service. 
This standard would be used if ELD files are transferred using the web. 
As of December 12, 2013, this standard was available at no cost, and 
can be found at http://www.w3.org/TR/wsdl.
    Paragraph (h)(2) describes ``Simple Object Access Protocol (SOAP) 
Version 1.2 Part 1: Messaging Framework (Second Edition), W3C 
Recommendation 27 April 2007,'' a specification from the W3C for a 
computer networking protocol for Web services. This standard would be 
used if ELD files are transferred using the web. As of December 12, 
2013, this standard was available at no cost, and can be found at 
http://www.w3.org/TR/soap12-part1/.
    Paragraph (h)(3) describes ``Extensible Markup Language (XML) 1.0 
(Fifth Edition), W3C Recommendation 26 November 2008,'' a specification 
from the W3C for annotating data to make it readable by both humans and 
machines. This standard would be used if ELD files are transferred 
using the web. As of December 12, 2013, this standard was available at 
no cost, and can be found at http://www.w3.org/TR/REC-xml/.
    Paragraph (h)(4) describes ``Hypertext Transfer Protocol--HTTP/
1.1,'' a specification from the W3C for a computer networking protocol 
that is the foundation for the World Wide Web. This standard would be 
used if ELD files are transferred using the web. As of December 12, 
2013, this standard was available at no cost, and can be found at 
http://www.w3.org/Protocols/rfc2616/rfc2616.html.
    Paragraph (i)(1) describes ``Specification of the Bluetooth System: 
Wireless Connections Made Easy,'' a standard from the Bluetooth Special 
Interest Group for short range wireless network communication that 
would be able to be used as a possible transfer of ELD data according 
to the specifications of this proposed rule. As of December 24, 2013, 
this standard was available for free and can be found at https://www.bluetooth.org/en-us/specification/adopted-specifications.
17. Appendix to Subpart B of Part 395
    The proposed appendix to subpart B of part 395 contains the 
technical requirements for ELDs. It consists of seven sections.
    Section 1 contains the scope of the appendix. It outlines the 
purpose and content of the rest of the appendix.
    Section 2 lists the abbreviations used throughout this appendix.
    Section 3 provides definitions for terms and notations used in this 
appendix.
    Section 4 lists all the functional requirements for an ELD. This 
section describes the technical specifications for an ELD, including 
security requirements, internal engine synchronization, ELD inputs, 
manual entries of data, and drivers' use of multiple vehicles, in 
sufficient detail to allow the ELD provider to know if an ELD would 
meet the requirements for certification.
    Section 5 describes the ELD certification and registration process.
    Section 6 lists the cited references throughout this appendix.
    Section 7 provides a data elements dictionary for each data element 
referenced in the appendix.

XIII. Regulatory Analyses

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

    FMCSA has determined that this rulemaking is an economically 
significant regulatory action under Executive Order (E.O.) 12866, 
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 
3821, January 21, 2011). It also is significant under Department of 
Transportation regulatory policies and procedures because the economic 
costs and benefits of the rule exceed the $100 million annual threshold 
and because of the substantial congressional and public interest 
concerning the crash risks associated with driver fatigue.
    FMCSA is proposing to mandate the installation and use of ELDs for 
the majority of interstate motor carrier operations.\15\ However, the 
costs and benefits of such a broad mandate are not identical across all 
options. The Agency

[[Page 17681]]

has chosen to evaluate options that reflect public comments regarding 
past ELD and HOS rulemakings and the Agency's safety priorities. The 
RIA associated with this SNPRM examines four options:
---------------------------------------------------------------------------

    \15\ Today's SNPRM would not require short-haul drivers who 
would need to keep RODS more than 8 days in any 30-day period to use 
an ELD. Although FMCSA cannot quantify the costs to carriers, the 
Agency believes extending the ELD mandate to these drivers would not 
be cost beneficial.
---------------------------------------------------------------------------

     Option 1: ELDs are mandated for all CMV operations subject 
to 49 CFR part 395.
     Option 2: ELDs are mandated for all CMV operations where 
the driver is required to complete RODS under 49 CFR 395.8 (this is the 
FMCSA-preferred option).
     Option 3: ELDs are mandated for all CMV operations subject 
to 49 CFR part 395, and the ELD is required to include, or be able to 
be connected to, a printer, and to print RODS.
     Option 4: ELDs are mandated for all CMV operations where 
the driver is required to complete RODS under 49 CFR 395.8, and the ELD 
is required to include, or be able to be connected to, a printer, and 
to print RODS.
    Of the four options, Option 2 is preferred by FMCSA. This table 
summarizes the cost and benefits of this option:

                  Table 7--Preferred Option (2) Summary
------------------------------------------------------------------------
                                                            Annualized
                                                             costs and
                                                            benefits in
                                                             millions
                                                             (2011$, 7
                                                              percent
                                                          discount rate)
------------------------------------------------------------------------
New ELD Costs...........................................          $955.7
AOBRD Replacement Costs.................................             3.0
HOS Compliance Costs....................................           604.1
Enforcement Training Costs..............................             1.7
Enforcement Equipment Costs.............................            10.0
                                                         ---------------
  Total Costs...........................................         1,574.5
                                                         ---------------
Paperwork Savings.......................................         1,529.9
Safety Benefits.........................................           394.8
                                                         ---------------
  Total Benefits........................................         1,924.7
                                                         ---------------
    Net Benefits........................................           350.2
------------------------------------------------------------------------

B. Regulatory Flexibility Act

1. Introduction
    The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat. 
1164 (5 U.S.C. 601-612) requires Federal agencies to consider the 
effects of the regulatory action on small business and other small 
entities and to minimize any significant economic impact. The term 
``small entities'' comprises small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields and governmental jurisdictions with 
populations of less than 50,000. Accordingly, DOT policy requires an 
analysis of the impact of all regulations on small entities and 
mandates that agencies strive to lessen any adverse effects on these 
businesses.
    A Regulatory Flexibility Analysis must contain the following:
     A description of the reasons for the action by the Agency.
     A succinct statement of the objectives of, and legal basis 
for, the rule.
     A description--and, where feasible, an estimate of the 
number--of small entities to which the rule applies.
     A description of the reporting, recordkeeping, and other 
compliance requirements of the rule, including an estimate of the 
classes of small entities that will be subject to the requirement and 
the types of professional skills necessary for preparation of the 
report or record.
     Identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the rule.
     A description of any significant alternatives to the 
proposed rule which accomplish the stated objectives of applicable 
statutes and minimize any significant economic impact of the proposed 
rule on small entities.
2. Description of Reasons for Action by the Agency
    The Agency is required by statute (MAP-21) to adopt regulations 
requiring that CMVs operated in interstate commerce by drivers required 
to keep RODS be equipped with ELDs. FMCSA proposes to amend part 395 of 
the FMCSRs to require the installation and use of ELDs for CMV 
operations for which RODS are required. CMV drivers are currently 
required to record their HOS (driving time, on- and off-duty time) in 
paper RODS, although some carriers have voluntarily adopted an earlier 
standard for HOS recording devices known as AOBRDs.
    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)). 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)). FMCSA believes that properly 
designed, used, and maintained ELDs would enable motor carriers to 
track their drivers' on-duty driving hours accurately, thus preventing 
regulatory violations or excessive driver fatigue. Improved HOS 
compliance, which today's proposed rule would promote, will 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.
    Substantial paperwork and recordkeeping burdens are also associated 
with HOS rules, including time spent by drivers filling out and 
submitting paper RODS and time spent by motor carrier staff reviewing, 
filing, and maintaining these RODS. ELDs would eliminate most of the 
clerical tasks associated with the RODS and significantly reduce the 
time drivers spend recording their HOS. These paperwork reductions 
offset most of the costs of the devices.
3. Objectives and Legal Basis
    The Agency is issuing an SNPRM proposing to mandate the use of ELDs 
by the majority of interstate CMV operations. The objective is to 
reduce the number of crashes caused by driver fatigue that could have 
been avoided had the driver complied with the HOS rules. The legal 
basis for this proposed rule is described in Part IV.
4. Small Entities Affected
    FMCSA regulations affect many different industries, and no single 
Small Business Administration (SBA) threshold for determining whether 
an entity is a ``small business'' is applicable to all motor carriers. 
Most for-hire property carriers operate under North American Industrial 
Classification System (NAICS) code 484, truck transportation, although 
some for-hire carriers categorize themselves as ``express delivery 
services'' (NAICS 492110), ``local delivery'' (NAICS 492210), or 
operate primarily in other modes of freight transportation. As shown in 
the table below, the SBA ``small business'' size standard for truck 
transportation and local delivery services is currently $25.5 million 
in revenue per year, and 1,500 employees for express delivery services. 
For other firms in other modes that may also be registered as for-hire 
motor carriers, the size standard is 500 or 1,500 employees. As Table 
8, below, also shows, for-hire passenger operations that FMCSA 
regulates have a size standard of $14 million in annual revenue. This 
rulemaking also affects other industry sectors, including the industry 
descriptions reflected in Table 8.

[[Page 17682]]



                               Table 8--SBA Size Standards for Selected Industries
----------------------------------------------------------------------------------------------------------------
                                                                                 Annual revenue
                NAICS codes                     NAICS industry description         (millions)        Employees
----------------------------------------------------------------------------------------------------------------
481112 and 481212.........................  Freight Air Transportation.......  .................           1,500
482111....................................  Line-Haul Railroads..............  .................           1,500
483111 through 483113.....................  Freight Water Transportation.....  .................             500
484110 through 484230.....................  Freight Trucking.................             $25.5   ..............
492110....................................  Couriers and Express Delivery....  .................           1,500
492210....................................  Local Messengers and Local                     25.5   ..............
                                             Delivery.
485210 through 485510.....................  Bus Transportation...............              14.0   ..............
445110....................................  Supermarkets and Grocery Stores..              30.0   ..............
452111....................................  Department Stores (except                      30.0   ..............
                                             Discount Department Stores).
452112....................................  Discount Department Stores.......              27.0   ..............
452910....................................  Warehouse Clubs and Superstores..              27.0   ..............
452990....................................  Other General Merchandise Stores.              30.0   ..............
453210....................................  Office Supplies and Stationery                 30.0   ..............
                                             Stores.
236115 through 236220.....................  Building Construction............              33.5   ..............
237110....................................  Water and Sewer Line and Related               33.5   ..............
                                             Structures Construction.
237120....................................  Oil and Gas Pipeline and Related               33.5   ..............
                                             Structures Construction.
237130....................................  Power and Communication Line and               33.5   ..............
                                             Related Structures Construction.
237210....................................  Land Subdivision.................               7.0   ..............
237310....................................  Highway, Street, and Bridge                    33.5   ..............
                                             Construction.
237990....................................  Other Heavy and Civil Engineering              33.5   ..............
                                             Construction.
238110 through 238990.....................  Specialty Trade Contractors......              14.0   ..............
111110 through 111998.....................  Crop Production..................               0.75  ..............
112111....................................  Beef Cattle Ranching and Farming.               0.75  ..............
112112....................................  Cattle Feedlots..................               2.5   ..............
112120....................................  Dairy Cattle and Milk Production.               0.75  ..............
112210....................................  Hog and Pig Farming..............               0.75  ..............
112310....................................  Chicken Egg Production...........              12.5   ..............
112320 through 112990.....................  All Other Animal Production......               0.75  ..............
113310....................................  Logging..........................  .................             500
211111 through 213111.....................  Oil and Gas Extraction and Mining  .................             500
----------------------------------------------------------------------------------------------------------------

    Private motor carriers use the CMVs they own or lease to ship their 
own goods or in other regulated transportation activities related to 
their primary business activities. These include, for example, a motor 
carrier that a retail department store chain operates to distribute 
goods from its warehouses to its store locations, dump trucks used by 
construction companies, or passenger transportation services not 
available to the general public. Separate NAICS codes for entities with 
private motor carrier operations are not available; and FMCSA, 
therefore, cannot determine the appropriate size standard to use for 
each case. As shown, the size standards among industries that contain 
private motor carrier operations vary widely, from $0.75 million for 
many types of farms to $33.5 million for building construction firms.
    For for-hire motor carriers, FMCSA examined data from the 2007 
Economic Census to determine the percentage of firms that have revenue 
at or below SBA's thresholds. Although boundaries for the revenue 
categories used in the Economic Census do not exactly coincide with the 
SBA thresholds, FMCSA was able to make reasonable estimates using these 
data. According to the Economic Census, about 99 percent of trucking 
firms had annual revenue less than $25 million; the Agency concluded 
that the percentage would be approximately the same using the SBA 
threshold of $25.5 million. For passenger carriers, the $14 million SBA 
threshold falls between two Economic Census revenue categories, $10 
million and $25 million. The percentages of passenger carriers with 
revenue less than these amounts were 96.7 percent and 98.9 percent, 
respectively. Because the SBA threshold is closer to the lower of these 
two boundaries, FMCSA has assumed that the percent of passenger 
carriers that are small will be closer to 96.7 percent, and is using a 
figure of 97 percent.
    For private carriers, the Agency constructed its estimates under 
the assumption that carriers with more CMVs than the 98.9 percentile of 
for-hire property carriers or the 97 percentile of for-hire passenger 
carriers will also be large. That is, any company large enough to 
maintain a CMV fleet large enough to be considered a large truck or bus 
company will be large within its own industry. Because of NAICS 
classifications, this methodology could overestimate the number of 
small, private carriers. Under this conservative analysis, however, the 
Agency is confident that no small private carrier would be excluded. 
The Agency found that for property carriers, the threshold was 194 
CMVs, and for passenger carriers, it was 89 CMVs. FMCSA identified 
201,725 small private property carriers (99.4 percent of this group), 
and 6,000 small private passenger carriers (100.0 percent of this 
group).
    Table 9 below shows the complete estimates of the number of small 
carriers. All told, FMCSA estimates that 99.1 percent of regulated 
motor carriers are small businesses according to SBA size standards.

[[Page 17683]]



                                                     Table 9--Estimates of Numbers of Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             For-hire        For-hire
                                                              general       specialized      For-hire         Private         Private          Total
                                                              freight         freight        passenger       property        passenger
--------------------------------------------------------------------------------------------------------------------------------------------------------
Carriers................................................         176,000         139,000           8,000         203,000           6,000         532,000
Percentage of Small Carriers............................           98.9%           98.9%           97.0%           99.4%          100.0%           99.1%
Number of Small Carriers................................         174,064         137,471           7,760         201,725           6,000         527,020
--------------------------------------------------------------------------------------------------------------------------------------------------------

5. Reporting, Recordkeeping, and Other Compliance Requirements
    FMCSA believes that implementation of the SNPRM would not require 
additional reporting, recordkeeping, or other paperwork-related 
compliance requirements beyond what are already required in the 
existing regulations. In fact, the SNPRM is estimated to result in 
paperwork savings, particularly from the elimination of paper RODS. 
Furthermore, the carriers would experience compensatory time-saving or 
administrative efficiencies as a result of using ELD records in place 
of paper RODS. The level of savings would vary with the size of the 
carrier implementing the systems (larger carriers generally experience 
greater savings).
    Under current regulations, most CMV drivers are required to fill 
out RODS for every 24-hour period. The remaining population of CMV 
drivers is required to fill out time cards at their workplace 
(reporting location). Motor carriers must retain the RODS (or 
timecards, if used) for 6 months. FMCSA estimates the annual 
recordkeeping cost savings from this proposed rule to be about $705 per 
driver. This comprises $487 for a reduction in time drivers spend 
completing paper RODS and $56 submitting those RODS to their employers; 
$120 for motor carrier clerical staff to handle and file the RODS; and 
$42 for elimination of expenditures on blank paper RODS for drivers. 
Two of the options discussed in the SNPRM extend the ELD mandate to 
carrier operations that are exempt from the RODS. Paperwork savings 
will not accrue to drivers engaged in these operations.
    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. This SNPRM proposes regulatory changes to several parts of 
the FMCSRs, but only those applicable to part 395, ``Hours of Service 
of Drivers,'' would alter or impose information collection 
requirements. The information collection requirements of this NPRM 
would affect OMB Control Number 2126-0001, which is currently approved 
through December 31, 2014, at 184,380,000 burden hours.
    OMB requires agencies to provide a specific, objective estimate of 
the burden hours imposed by their information collection requirements 
(5 CFR 1320.8(a)(4)). This SNPRM proposes a compliance date 2 years 
after the date of publication of the final rule to allow regulated 
entities a reasonable opportunity to satisfy its requirements. The 
reduction in the burden hours resulting from this SNPRM will take 
effect in the third year of the ICR connected with OMB Control Number 
2126-0001. The reduction in the annual burden is estimated to be 
22,093,000 hours. This is an average over the 3 years of this ICR: 
There will be no reduction in the first 2 years, and a reduction of 
66,280,000 hours in the third. This estimated burden reduction includes 
CMVs that voluntarily had ELDs installed in them.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the Rule
    The Agency did not identify any Federal rules that duplicate, 
overlap, or conflict with the rule.
7. Steps To Minimize Adverse Economic Impacts on Small Entities
    Of the population of motor carriers that FMCSA regulates, 99 
percent are considered small entities under the SBA's definition. 
Because small businesses constitute a large part of the demographic the 
Agency regulates, providing exemptions to small business to permit 
noncompliance with safety regulations is not feasible and not 
consistent with good public policy. The safe operation of CMVs on the 
Nation's highways depends on compliance with all of FMCSA's safety 
regulations. Accordingly, the Agency will not allow any motor carriers 
to be exempt from coverage of the proposed rule based solely on a 
status as a small entity.
    FMCSA analyzed an alternative 5-year implementation schedule in the 
previous NPRM that would have provided a longer implementation period 
for small businesses. However, the estimated cost of compliance for 
motor carriers, including small businesses, did not decrease from the 
3-year ``baseline'' proposed implementation period. Furthermore, a 
considerably longer implementation period could compromise the 
consistency of compliance-assurance and enforcement activities, and 
thereby diminish the rule's potential safety benefits. Therefore, the 
Agency's proposal includes a single compliance date for all motor 
carriers that would be subject to the new rule's requirements.
    The Agency recognizes that small businesses may need additional 
information and guidance in order to comply with the proposed 
regulation. To improve their understanding of the proposal and any 
rulemaking that would result from it, FMCSA proposes to conduct 
outreach aimed specifically at small businesses. FMCSA would conduct 
Webinars and other presentations upon request as needed and at no 
charge to the participants. These would be held after the final rule 
has published and before the rule's compliance date. To the extent 
practicable, these presentations would be interactive. Their purpose 
would be to describe in plain language the compliance and reporting 
requirements so they are clear and readily understood by the small 
entities that would be affected.
    ELDs can lead to significant paperwork savings that can offset the 
costs of the devices. The Agency, however, recognizes that these 
devices entail an up-front investment that can be burdensome for small 
carriers. At least one vendor, however, provides free hardware and 
recoups the cost of the device over time in the form of higher monthly 
operating fees. The Agency is also aware of lease-to-own programs that 
allow carriers to spread the purchase costs over several years. 
Nevertheless, the typical carrier would likely be required to spend 
about $800 per CMV to purchase and install ELDs. In addition to 
purchase costs, carriers would also likely spend about $25 per month 
per CMV for monthly service fees.

[[Page 17684]]

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires 
Agencies to evaluate whether an Agency action would result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $143.1 million or more (as adjusted for 
inflation) in any 1 year, and, if so, to take steps to minimize these 
unfunded mandates. As Table 10 shows, this rulemaking would result in 
private sector expenditures in excess of the $143.1 million threshold 
for each of the proposed options. Gross costs, however, are expected to 
be more than offset in savings from paperwork burden reductions. The 
savings will be realized by the same entities that are required to 
employ ELDs.
    The Agency is required by statute to adopt regulations requiring 
that CMVs operated in interstate commerce, operated by drivers required 
to keep RODS, be equipped with ELDs. 49 U.S.C. 31137. To the extent 
this rule implements the direction of Congress in mandating the use of 
ELDs, a written statement under the Unfunded Mandates Reform Act is not 
required. However, the Agency has provided an analysis of the costs to 
the private sector in the Preliminary Regulatory Evaluation available 
in the docket referenced above. Additionally the Agency's proposed 
option provides the lowest cost and highest net benefits of the options 
considered.

                             Table 10--Annualized Net Expenditures by Private Sector
                                                   [millions]
----------------------------------------------------------------------------------------------------------------
                                                                Option 1     Option 2     Option 3     Option 4
----------------------------------------------------------------------------------------------------------------
Total ELD Cost..............................................     $1,270.0       $955.7     $1,722.6     $1,311.1
Total Paperwork Savings.....................................      1,637.7      1,637.7      1,637.7      1,637.7
Net ELD Cost................................................       -367.7       -682.0         84.9       -326.6
----------------------------------------------------------------------------------------------------------------

D. Executive Order 12988 (Civil Justice Reform)

    This SNPRM would meet applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

E. Executive Order 13045 (Protection of Children)

    FMCSA analyzed this action under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. FMCSA determined that 
this SNPRM would not pose an environmental risk to health or safety 
that might affect children disproportionately.

F. Executive Order 12630 (Taking of Private Property)

    This rulemaking would not effect a taking of private property or 
otherwise have takings implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

G. Executive Order 13132 (Federalism)

    A rulemaking has implications for Federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on State or local governments. FMCSA analyzed 
this action in accordance with E.O. 13132. The rule would not have a 
substantial direct effect on States or local governments, nor would it 
limit the policymaking discretion of States. Nothing in this rulemaking 
would preempt any State law or regulation.

H. Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
action.

I. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    FMCSA analyzed this rulemaking in accordance with the principles 
and criteria in E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments. This rulemaking is required by law and does not 
significantly or uniquely affect the communities of the Indian tribal 
governments or impose substantial direct compliance costs on tribal 
governments. Thus, the funding and consultation requirements of E.O. 
13175 do not apply and no tribal summary impact statement is required.

J. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) 
requires Federal agencies to obtain OMB approval of each collection of 
information they conduct, sponsor, or require through agency 
regulations. On December 11, 2011, OMB approved the information 
collection (IC) requirements of part 395 and the Agency's estimate of 
the annual IC burden of 184.38 million burden hours (OMB Control Number 
2126-0001, ``Hours of Service of Drivers''). OMB's approval expires 
December 31, 2014.
    OMB's regulations require agencies to provide a specific, objective 
estimate of the burden hours imposed by their IC requirements [5 CFR 
1320.8(a)(4)]. The IC requirements of part 395 would change when the 
amendments proposed by this SNPRM become final; the IC requirements of 
other parts of the FMCSRs would not be affected by this SNPRM.
    The Agency in this subsection J is estimating the paperwork burden 
of part 395 as amended by the proposals of this SNPRM. The Agency is 
also in this subsection J incorporating revised Agency estimates of the 
population of CMV drivers subject to the recordkeeping requirements of 
part 395. The Agency recently analyzed data in FMCSA's Motor Carrier 
Management Information System \16\ (MCMIS) and revised the Agency's 
estimate of the CMV driver population from the estimate approved by OMB 
in 2011. Customarily, FMCSA provides a separate Federal Register notice 
explaining revised Agency estimates derived solely from updated Agency 
data and inviting public comment. However, to avoid confusion, the 
Agency is presenting a single estimate of the IC burden of part 395 as 
affected by both the changes in Agency data and the proposals of this 
SNPRM.
---------------------------------------------------------------------------

    \16\ Source: FMCSA, Motor Carrier Management Information System 
(MCMIS) registration data as of April 27, 2012.
---------------------------------------------------------------------------

    The net effect of updated Agency data on the CMV driver population 
is that the Agency now estimates that 2.84 million CMV drivers are 
subject to the IC requirements of the HOS rules. In 2011, the Agency 
provided OMB a baseline estimate of 7 million CMV drivers subject to 
the FMCSRs. Current data indicate that this baseline population is 4.32 
million drivers. The Agency reduces this figure to exclude

[[Page 17685]]

short-haul drivers. Short-haul drivers are subject to most of the on-
duty and off-duty requirements of the HOS rules, but are exempt from 
the requirement to maintain an HOS record, or log, on the vehicle. All 
the IC requirements of part 395 are associated with the log, so these 
drivers experience no IC burden under the HOS rules. In 2011, FMCSA 
estimated the population of these short-haul CMV drivers to be 2.4 
million, and derived its estimate of 4.6 million CMV drivers subject to 
the IC requirements of the HOS rules (7 million less 2.4 million). The 
Agency's data indicates that .64 million interstate CMV drivers 
currently qualify for the short-haul exception; accordingly, the Agency 
reduces its baseline estimate of 4.32 million CMV drivers to 3.68 
million (4.32 million less .64 million). The Agency further revises its 
estimate to exclude drivers who operate exclusively in intrastate 
commerce. In 2011, FMCSA included all CMV drivers in its estimate of 
the driver population. However, drivers who operate exclusively in 
intrastate commerce are not subject to part 395. FMCSA has analyzed its 
data and estimates that .84 million CMV drivers operate exclusively in 
intrastate commerce. Consequently, the Agency reduces its baseline 
estimate of the population of CMV drivers by .84 million, to 2.84 
million (3.68 million less .84 million). The Agency estimates that 2.84 
million CMV drivers are subject to the recordkeeping requirements of 
the HOS rules. Though this change is unrelated to this rulemaking and 
not an OMB-approved figure, FMCSA uses these populations in its 
analysis of the rule for simplicity, and will be updating the ICR to 
reflect this change.
    This SNPRM proposes a transition period of 2 years following 
publication of a final ELD rule after which drivers and motor carriers 
would be required to have ELDs in place. OMB regulations require that 
Agencies estimate IC burdens over a period of 3 years after a rule 
becomes final. In the third year after publication of a final ELD rule, 
the Agency estimates the IC burden of part 395 would be reduced by 
66,280,000.00 burden hours; thus, the average reduction in the annual 
burden over the 3-year period would be approximately 22,093,000.00 
burden hours. This estimate incorporates the Agency's estimate of the 
voluntary use of ELDs in years 1 and 2.

K. National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this SNPRM for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and 
determined under DOT environmental procedures Order 5610.1, issued 
March 1, 2004 (69 FR 9680), that this action would have a minor impact 
on the environment. The Environmental Assessment is available for 
inspection or copying at the Regulations.gov website listed under 
ADDRESSES.
    FMCSA also analyzed this action under section 176(c) of the Clean 
Air Act (CAA), as amended (42 U.S.C. 7506(c)), and the U.S. 
Environmental Protection Agency's implementing regulations, 40 CFR part 
93. Pursuant to 40 CFR 93.153, a conformity determination is required 
``for each criteria pollutant or precursor where the total of direct 
and indirect emissions of the criteria pollutant or precursor in a 
nonattainment or maintenance area caused by a Federal action would 
equal or exceed any of the rates in paragraphs (b)(1) or (2) of this 
section.'' FMCSA recognizes that the action taken in this rulemaking 
could slightly affect emissions of criteria pollutants from CMVs. FMCSA 
discusses the air emissions analysis in section 3.2.1. of the draft 
Environmental Assessment for this rule.
    As discussed in section 3.1.2 of the Environmental Assessment, the 
CAA requires additional analysis to determine if this proposed action 
impacts air quality. In determining whether this action conforms to CAA 
requirements in areas designated as nonattainment under section 107 of 
the CAA and maintenance areas established under section 175A of the 
CAA, FMCSA is required (among other criteria) to determine if the total 
direct and indirect emissions are at or above de minimis levels. In the 
case of the alternatives proposed in this SNPRM, as discussed in 
section 3.2.1 (except for the No-Action Alternative), FMCSA considers 
the change in emissions to be an indirect result of the rulemaking 
action. FMCSA is requiring drivers and motor carriers to use ELDs that 
would lead to greater compliance with the HOS regulations, which does 
not directly result in additional emissions releases.
    Although emissions from idling are foreseeable and an indirect 
result of the rulemaking, in order for the idling emissions to qualify 
as `indirect emissions' pursuant to 40 CFR 93.152, they must meet all 
four criteria in the definition: (1) The emissions are caused or 
initiated by the Federal action and originate in the same nonattainment 
or maintenance area but occur at a different time or place as the 
action; (2) they are reasonably foreseeable; (3) FMCSA can practically 
control them; and (4) FMCSA has continuing program responsibility for 
them. FMCSA does not believe the increase of emissions of some criteria 
pollutants or their precursors from this proposed rulemaking meet two 
of the criteria: That FMCSA can practically control the emissions, and 
that FMCSA has continuing program responsibility. FMCSA's statutory 
authority limits its ability to require drivers to choose alternatives 
to idling while taking a rest period. If FMCSA had authority to control 
CMV emissions, the Agency could prohibit idling or require drivers to 
choose an alternative such as electrified truck stops or use of 
auxiliary power units, both of which reduce idling emissions. Moreover, 
based on FMCSA's analysis, it is reasonably foreseeable that the SNPRM 
would not significantly increase total CMV mileage, nor would it change 
the routing of CMVs, how CMVs operate, or the CMV fleet mix of motor 
carriers. Therefore, because the idling emissions do not meet the 
definition of direct or indirect emissions in 40 CFR 93.152, FMCSA has 
determined it is not required to perform a CAA general conformity 
analysis, pursuant to 40 CFR 93.153.\17\
---------------------------------------------------------------------------

    \17\ Additionally, the EPA General Conformity regulations 
provide an exemption for rulemaking activities. See 40 CFR 
93.153(c)(2)(iii).
---------------------------------------------------------------------------

L. Executive Order 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this SNPRM in 
accordance with E.O. 12898 and determined that there are neither 
environmental justice issues associated with its provisions nor any 
collective environmental impact resulting from its promulgation. 
Environmental justice issues would be raised if there were 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations. None of the alternatives analyzed in the 
Agency's deliberations would result in high and adverse environmental 
justice impacts.

M. Executive Order 13211 (Energy Effects)

    FMCSA analyzed this action under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. FMCSA determined that it is not a ``significant energy action'' 
under that E.O. because, although this rulemaking is economically 
significant, it is not likely to have an adverse effect on the supply, 
distribution, or use of energy.

[[Page 17686]]

N. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) requires agencies to ``use technical standards that are developed 
or adopted by voluntary consensus standards bodies'' to carry out 
policy objectives determined by the agencies, unless the standards are 
``inconsistent with applicable law or otherwise impractical.'' This 
requirement pertains to ``performance-based or design-specific 
technical specifications and related management systems practices.'' 
MAP-21 also requires that the Agency adopt a ``standard security level 
for an electronic logging device and related components to be tamper 
resistant by using a methodology endorsed by a nationally recognized 
standards organization'' (49 U.S.C. 31137(b)(2)(C)).
    FMCSA is not aware of any technical standards addressing ELDs. 
However, in today's SNPRM, the Agency employs several publicly-
available consensus standards consistent with these statutory mandates, 
including standards adopted by the World Wide Web Consortium to 
facilitate secure Web based communications, American National Standards 
Institute (ANSI) codes for identification of geographic locations and 
for standard information display, Institute of Electrical and 
Electronic Engineers (IEEE) Standards Association standards addressing 
secure transfer of data with a portable storage device,, International 
Standards Organization standards concerning QR codes, Bluetooth Special 
Interest Group (SIG) standards addressing short-range wireless 
information transfer, and the USB Specification (Revision 2.0). In 
addition, although not developed by a private sector consensus standard 
body, FMCSA also employs the National Institute of Standards and 
Technology (NIST) standards concerning data encryption. A complete list 
of standards that FMCSA proposes for adoption is found in proposed 49 
CFR 395.38 of this SNPRM.

O. E-Government Act of 2002

    The E-Government Act of 2002, Public Law 107-347, Sec.  208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a privacy impact assessment (PIA) for new or substantially changed 
technology that collects, maintains, or disseminates information in an 
identifiable form. FMCSA has completed a PIA in connection with today's 
SNPRM addressing the handling of PII. The PIA is a documented assurance 
that privacy issues have been identified and adequately addressed, 
ensures compliance with laws and regulations related to privacy, and 
demonstrates the DOT's commitment to protect the privacy of any 
personal information we collect, store, retrieve, use, and share. 
Additionally, the publication of the PIA demonstrates DOT's commitment 
to provide appropriate transparency in the ELD rulemaking process. A 
copy of the PIA is available in the docket for this rulemaking.

List of Subjects

49 CFR Part 385

    Administrative practice and procedure, Highway safety, Mexico, 
Motor carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements.

49 CFR Part 386

    Administrative practice and procedure, Brokers, Freight forwarders, 
Hazardous materials transportation, Highway safety, Motor carriers, 
Motor vehicle safety, Penalties.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 395

    Highway safety, Incorporation by reference, Motor carriers, 
Reporting and recordkeeping requirements.
    In consideration of the foregoing, FMCSA proposes to amend 49 CFR 
chapter III, parts 385, 386, 390, and 395 to read as follows:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 continues to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 14701, 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 1.87.
0
2. Amend Appendix B to part 385--Explanation of Safety Rating Process 
section VII by removing the entries for Sec. Sec.  395.8(a), 395.8(e), 
and 395.8(i), and the two entries for Sec.  395.8(k)(1) and adding the 
following violations Sec.  390.36(b)(1), Sec.  395.8(a)(1), Sec.  
395.8(e)(1), Sec.  395.8(e)(2), Sec.  395.8(k)(1), Sec.  395.11(b) or 
(c), Sec.  395.11(d), Sec.  395.11(e), and Sec.  395.30(e) in numerical 
order to read as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  390.36(b)(1) Engaging in harassment of a driver (acute).
* * * * *
    Sec.  395.8(a)(1) Failing to require a driver to make a record 
of duty status using appropriate method (critical).
    Sec.  395.8(e)(1) Making a false report (critical).
    Sec.  395.8(e)(2) Disabling, deactivating, disengaging, jamming, 
or otherwise blocking or degrading a signal transmission or 
reception; tampering with an automatic on-board recording device or 
ELD; or permitting or requiring another person to engage in such 
activity (acute).
    Sec.  395.8(k)(1) Failing to preserve a driver's record of duty 
status or supporting documents for 6 months (critical)
    Sec.  395.11(b) or (c) Failing to maintain a supporting document 
as required by Sec.  395.12(b) or (c) (critical).
    Sec.  395.11(d) Failing to maintain supporting documents in a 
manner that permits the effective matching of the documents to the 
driver's record of duty status (critical).
    Sec.  395.11(e) Altering, defacing, destroying, mutilating, or 
obscuring a supporting document (critical).
    Sec.  395.30(e) Failing to maintain ELD information (acute).
* * * * *

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT 
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS 
PROCEEDINGS

0
3. The authority citation for part 386 is revised to read as follows:

    Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 
311, 313, and 315; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 
U.S.C. 701 note); Sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; 
Sec. 206, Pub. L. 106-159, 113 Stat. 1748, 1763; subtitle B, title 
IV of Pub. L. 109-59, 119 Stat. 1144, 1751-1761; and 49 CFR 1.81 and 
1.87.
0
4. Amend Sec.  386.1 by revising paragraph (a) and adding paragraph (c) 
to read as follows:


Sec.  386.1  Scope of rules in this part.

    (a) Except as provided in paragraph (c) of this section, the rules 
in this part govern proceedings before the Assistant Administrator, who 
also acts as the Chief Safety Officer of the Federal Motor Carrier 
Safety Administration (FMCSA), under applicable provisions of the 
Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 350-
399), including the commercial regulations (49 CFR parts 360-379), and 
the Hazardous Materials Regulations (49 CFR parts 171-180).
* * * * *
    (c)(1) The rules in Sec.  386.12 govern the filing of a complaint 
of a substantial violation and the handling of the

[[Page 17687]]

complaint by the Division Administrator for the State where the 
incident occurs.
    (2) The rules in Sec.  386.12a govern the filing of a complaint of 
a harassment violation under Sec.  390.36 and the handling of the 
complaint by the Division Administrator for the State where the 
incident occurs.
0
5. Revise Sec.  386.12 to read as follows:


Sec.  386.12  Complaint of substantial violation.

    (a) Complaint. Any person alleging that a substantial violation of 
any regulation issued under the Motor Carrier Safety Act of 1984 is 
occurring or has occurred within the preceding 60 days may file a 
written complaint with the FMCSA Division Administrator for the State 
where the incident is occurring or has occurred. A substantial 
violation is one which could reasonably lead to, or has resulted in, 
serious personal injury or death. Allegations brought to the attention 
of other officials of the Agency through letter, email, social media, 
phone call, or other means will be referred to the Division 
Administrator for the State where the incident occurred. Delays in 
transferring the allegations to the appropriate Division Administrator 
do not stay the 60-day period for filing a written complaint. Each 
complaint must be signed by the complainant and must contain:
    (1) The name, address, and telephone number of the person who files 
it;
    (2) The name and address of the alleged violator and, with respect 
to each alleged violator, the specific provisions of the regulations 
that the complainant believes were violated; and
    (3) A concise but complete statement of the facts relied upon to 
substantiate each allegation, including the date of each alleged 
violation.
    (b) Action on complaint. Upon the filing of a complaint of a 
substantial violation under paragraph (a) of this section, the Division 
Administrator shall determine whether the complaint is non-frivolous 
and meets the requirements of paragraph (a) of this section. If the 
Division Administrator determines the complaint is non-frivolous and 
meets the requirements of paragraph (a), the Division Administrator 
shall investigate the complaint. The complainant shall be timely 
notified of findings resulting from such investigation. The Division 
Administrator shall not be required to conduct separate investigations 
of duplicative complaints. If the Division Administrator determines the 
complaint is frivolous or does not meet the requirements of paragraph 
(a), the Division Administrator shall dismiss the complaint and notify 
the complainant in writing of the reasons for the dismissal. If after 
investigation the Division Administrator determines that a violation 
has occurred, the Division Administrator may issue a Notice of 
Violation under Sec.  386.11(b) or a Notice of Claim under Sec.  
386.11(c) of this part.
    (c) Protection of complainant. Notwithstanding the provisions of 
section 552 of title 5, United States Code, the Division Administrator 
shall not disclose the identity of complainants unless it is determined 
that such disclosure is necessary to prosecute a violation. If 
disclosure becomes necessary, the Division Administrator shall take 
every practical means within the Division Administrator's authority to 
ensure that the complainant is not subject to harassment, intimidation, 
disciplinary action, discrimination, or financial loss as a result of 
such disclosure.
0
6. Add Sec.  386.12a to read as follows:


Sec.  386.12a  Complaint of harassment.

    (a) Complaint. (1) A driver, as defined in Sec.  390.5, alleging 
harassment prohibited by Sec.  390.36 by a motor carrier is occurring 
or has occurred within the preceding 60 days may file a written 
complaint with the FMCSA Division Administrator for the State where the 
incident is occurring or has occurred. Allegations brought to the 
attention of other officials in the Agency through letter, email, 
social media, phone call, or other means will be referred to the 
Division Administrator for the State where the incident occurred. 
Delays in transferring the allegations to the appropriate Division 
Administrator do not stay the 60-day period for filing a written 
complaint.
    (2) Each complaint must be signed by the driver and must contain:
    (i) The name, address, and telephone number of the driver who files 
it;
    (ii) The name and address of the alleged violator; and
    (iii) A concise but complete statement describing the alleged 
action taken by the motor carrier that the driver claims constitutes 
harassment, including:
    (A) How the ELD or other technology used in combination with and 
not separable from the ELD was used to contribute to harassment; and
    (B) How the motor carrier's action violated either Sec.  392.3 or 
part 395.
    (3) Each complaint may include any supporting evidence that will 
assist the Division Administrator in determining the merits of the 
complaint.
    (b) Action on complaint. Upon the filing of a complaint of a 
substantial violation under paragraph (a) of this section, the Division 
Administrator shall determine whether the complaint is non-frivolous 
and meets the requirements of paragraph (a) of this section. If the 
Division Administrator determines the complaint is non-frivolous and 
meets the requirements of paragraph (a), the Division Administrator 
shall investigate the complaint. The complainant shall be timely 
notified of findings resulting from such investigation. The Division 
Administrator shall not be required to conduct separate investigations 
of duplicative complaints. If the Division Administrator determines the 
complaint is frivolous or does not meet the requirements of paragraph 
(a), the Division Administrator shall dismiss the complaint and notify 
the complainant in writing of the reasons for the dismissal. If after 
investigation the Division Administrator determines that a violation 
has occurred, the Division Administrator may issue a Notice of 
Violation under Sec.  386.11(b) or a Notice of Claim under Sec.  
386.11(c) of this part.
    (c) Protection of complainant. Notwithstanding the provisions of 
section 552 of title 5, United States Code, the Division Administrator 
shall not disclose the identity of complainants unless it is determined 
that such disclosure is necessary to prosecute a violation. If 
disclosure becomes necessary, the Division Administrator shall take 
every practical means within the Division Administrator's authority to 
ensure that the complainant is not subject to harassment, intimidation, 
disciplinary action, discrimination, or financial loss as a result of 
such disclosure.
0
7. Amend appendix B to part 386 by adding paragraph (a)(7) to read as 
follows:

Appendix B to Part 386--Penalty Schedule; Violations and Monetary 
Penalties

* * * * *
    (a) * * *
    (7) Harassment. In instances of a violation of Sec.  
390.36(b)(1) the Agency may consider the ``gravity of the 
violation,'' for purposes of 49 U.S.C. 521(b)(2)(D), sufficient to 
warrant imposition of penalties up to the maximum permitted by law.
* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
8. The authority citation for part 390 continues to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; 
sec. 212, 217, 229, Pub. L. 106-159, 113 Stat.

[[Page 17688]]

1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 
4114 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 
1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 114, 1745; 
sections 32101(d) and 34934, Pub. L. 112-141, 126 Stat. 405, 778, 
830; and 49 CFR 1.87.
0
9. Add Sec.  390.36 to read as follows:


Sec.  390.36  Harassment of drivers prohibited.

    (a) Harass or harassment defined. As used in this section, harass 
or harassment means an action by a motor carrier toward a driver 
employed by the motor carrier (including an independent contractor 
while in the course of operating a commercial motor vehicle on behalf 
of the motor carrier) involving the use of information available to the 
motor carrier through an ELD, as defined in Sec.  395.2 of this 
chapter, or through other technology used in combination with and not 
separable from the ELD, that the motor carrier knew, or should have 
known, would result in the driver violating Sec.  392.3 or part 395 of 
this chapter.
    (b) Prohibition against harassment. (1) No motor carrier may harass 
a driver.
    (2) Nothing in paragraph (b)(1) of this section shall be construed 
to prevent a motor carrier from using technology allowed under this 
subchapter to monitor productivity of a driver provided that such 
monitoring does not result in harassment.
    (c) Complaint process. A driver who believes he or she was the 
subject of harassment by a motor carrier may file a written complaint 
under Sec.  386.12a of this subchapter.

PART 395--HOURS OF SERVICE OF DRIVERS

0
10. The authority citation for part 395 continues to read as follows:

    Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132, 
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. 
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; 
and 49 CFR 1.87.
0
11. In Part 395 redesignate Sec.  395.1 through Sec.  395.19 as subpart 
A, and add a new subpart heading to read as follows:

Subpart A--General

0
12. Amend Sec.  395.1 by revising introductory text paragraphs (e)(1) 
and (e)(2) to read as follows:


Sec.  395.1  Scope of rules in this part.

* * * * *
    (e) * * * (1) 100 air-mile radius driver. A driver is exempt from 
the requirements of Sec.  395.8 and Sec.  395.11 if:
* * * * *
    (2) Operators of property-carrying commercial motor vehicles not 
requiring a commercial driver's license. Except as provided in this 
paragraph, a driver is exempt from the requirements of Sec.  
395.3(a)(2), 395.8, and 395.11 and ineligible to use the provisions of 
Sec.  395.1(e)(1), (g), and (o) if:
* * * * *
0
13. Amend Sec.  395.2 by adding the definitions for Electronic logging 
device (ELD) and Supporting document, in alphabetical order, to read as 
follows:


Sec.  395.2  Definitions.

* * * * *
    Electronic logging device (ELD) means a device or technology that 
automatically records a driver's driving time and facilitates the 
accurate recording of the driver's hours of service, and that meets the 
requirements of subpart B of this part.
* * * * *
    Supporting document means a document, in any medium, generated or 
received by a motor carrier in the normal course of business as 
described in Sec.  395.11 that can be used, as produced or with 
additional identifying information, by the motor carrier and 
enforcement officials to verify the accuracy of a driver's record of 
duty status.
* * * * *
0
14. Add Sec.  395.7 to read as follows:


Sec.  395.7  Enforcement proceedings.

    (a) General. A motor carrier is liable for any act or failure to 
act by an employee, as defined in Sec.  390.5, that violates any 
provision of part 395 if the act or failure to act is within the course 
of the motor carrier's operations. The fact that an employee may also 
be liable for a violation in a proceeding under this subchapter based 
on the employee's act or failure to act does not affect the liability 
of the motor carrier.
    (b) Burden of proof. Notwithstanding any other provision of this 
subchapter, the burden of proof is on a motor carrier to prove that the 
employee was acting outside the scope of the motor carrier's operations 
when committing an act or failing to act in a manner that violates any 
provision of this part.
    (c) Imputed knowledge of documents. A motor carrier shall be deemed 
to have knowledge of any document in its possession and any document 
that is available to the motor carrier and that the motor carrier could 
use in ensuring compliance with this part. ``Knowledge of any 
document'' means knowledge of the fact that a document exists and the 
contents of the document.
0
15. Amend Sec.  395.8 by:
0
a. Removing and reserving paragraph (i),
0
b. Revising paragraphs (a) and (e), and
0
c. Revising the heading of paragraph (k), and paragraph (k)(1) to read 
as follows:


Sec.  395.8  Driver's record of duty status.

    (a)(1) Except for a private motor carrier of passengers 
(nonbusiness), as defined in Sec.  390.5, a motor carrier subject to 
the requirements of this part must require each driver used by the 
motor carrier to record the driver's duty status for each 24-hour 
period using the method prescribed in paragraphs (a)(1)(i) through (iv) 
of this section, as applicable.
    (i) Subject to paragraphs (a)(1)(ii) and (iii) of this section, a 
motor carrier operating commercial motor vehicles must install and 
require each of its drivers to use an ELD to record the driver's duty 
status in accordance with subpart B of this part no later than [DATE 
TWO YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
    (ii) A motor carrier that installs and requires a driver to use an 
automatic on-board recording device in accordance with Sec.  395.15 
before [DATE TWO YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE] may 
continue to use the compliant automatic on-board recording device no 
later than [DATE FOUR YEARS AFTER THE EFFECTIVE DATE OF THE FINAL 
RULE].
    (iii) A motor carrier may require a driver who must complete a 
record of duty status not more than 8 days within any 30-day period to 
record the driver's duty status manually, in accordance with this 
section. The record of duty status must be recorded in duplicate for 
each 24-hour period for which recording is required. The duty status 
shall be recorded on a specified grid, as shown in paragraph (g) of 
this section. The grid and the requirements of paragraph (d) of this 
section may be combined with any company form.
    (iv) Subject to paragraph (a)(1)(i) through (iii) of this section, 
until [DATE TWO YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], a 
motor carrier operating commercial motor vehicles shall require each of 
its drivers to record the driver's record of duty status:
    (A) Using an ELD that meets the requirements of subpart B of this 
part;
    (B) Using an automatic on-board recording device that meets the 
requirements of Sec.  395.15; or

[[Page 17689]]

    (C) Manually, recorded on a specified grid as shown in paragraph 
(g) of this section. The grid and the requirements of paragraph (d) of 
this section may be combined with any company form. The record of duty 
status must be recorded in duplicate for each 24-hour period for which 
recording is required.
    (2) A driver operating a commercial motor vehicle must:
    (i) Record the driver's duty status using one of the methods under 
paragraph (a)(1) of this section and
    (ii) Submit the driver's record of duty status to the motor carrier 
within 8 days of the 24-hour period to which the record pertains.
    (3) Unless an extension of time has been granted under Sec.  
395.34(d), a motor carrier required to use an ELD is in violation of 
paragraph (a)(1)(i) of this section during any period in which the 
motor carrier is operating a commercial motor vehicle while the ELD is 
malfunctioning.
* * * * *
    (e)(1) No driver or motor carrier may make a false report in 
connection with a duty status.
    (2) No driver or motor carrier shall disable, deactivate, 
disengage, jam, or otherwise block or degrade a signal transmission or 
reception, or reengineer, reprogram, or otherwise tamper with an 
automatic on-board recording device or ELD so that the device does not 
accurately record and retain required data.
    (3) No driver or motor carrier shall permit or require another 
person to disable, deactivate, disengage, jam, or otherwise block or 
degrade a signal transmission or reception, or reengineer, reprogram, 
or otherwise tamper with an automatic on-board recording device or ELD 
so that the device does not accurately record and retain required data.
* * * * *
    (i) [Reserved]
* * * * *
    (k) Retention of driver's record of duty status and supporting 
documents. (1) A motor carrier shall retain and maintain records of 
duty status and supporting documents required under this part for each 
of its drivers for a period of not less than 6 months from the date of 
receipt.
* * * * *
0
16. Add Sec.  395.11 to read as follows:


Sec.  395.11  Supporting documents.

    (a) Applicability. The supporting document provisions under this 
section take effect [DATE TWO YEARS AFTER THE EFFECTIVE DATE OF FINAL 
RULE].
    (b) Submission of supporting documents to motor carrier. Except for 
a private motor carrier of passengers (nonbusiness), a driver must 
submit to the driver's employer the driver's supporting documents 
required to be maintained under this section within 8 days of either 
the 24-hour period to which the documents pertain or the day the 
document comes into the driver's possession, whichever is later.
    (c) Supporting document retention. (1) Subject to paragraph (d) of 
this section, a motor carrier must maintain each supporting document 
generated or received in the normal course of business in the following 
categories for each of its drivers for every 24-hour period to verify 
on-duty not driving time in accordance with Sec.  395.8(k):
    (i) Each bill of lading, itinerary, schedule, or equivalent 
document that indicates the origin and destination of each trip;
    (ii) Each dispatch record, trip record, or equivalent document;
    (iii) Each expense receipt related to any on-duty not driving time;
    (iv) Each electronic mobile communication record, reflecting 
communications transmitted through a fleet management system; and
    (v) Each payroll record, settlement sheet, or equivalent document 
that indicates what and how a driver was paid.
    (2)(i) A supporting document must include each of the following 
data elements:
    (A) On the document or on another document that enables the carrier 
to link the document to the driver, the driver's name or personal 
identification number (PIN) or a unit (vehicle) number if the unit 
number can be associated with the driver operating the unit;
    (B) The date, which must be the date at the location where the date 
is recorded;
    (C) The location, which must include the name of the nearest city, 
town, or village to enable Federal, State, or local enforcement 
personnel to quickly determine a vehicle's location on a standard map 
or road atlas; and
    (D) Subject to paragraph (c)(2)(ii) of this section, the time, 
which must be convertible to the local time at the location where it is 
recorded.
    (ii) If a driver has fewer than 10 supporting documents containing 
the four data elements under paragraph (c)(2)(i) of this section for a 
24-hour period, a document containing the data elements under 
(c)(2)(i)(A)-(C) of this section is considered a supporting document 
for purposes of paragraph (d) of this section.
    (d) Maximum number of supporting documents. (1) Subject to 
paragraphs (d)(3) and (4) of this section, a motor carrier need not 
maintain more than 10 supporting documents for an individual driver's 
24-hour period under paragraph (c) of this section.
    (2) In applying the limit on the number of documents required under 
paragraph (d)(1) of this section, each electronic mobile communication 
record applicable to an individual driver's 24-hour period shall be 
counted as a single document.
    (3) If a driver submitted more than 10 supporting documents for a 
24-hour period, a motor carrier must retain the supporting documents 
containing earliest and latest time indication among the 10 supporting 
documents maintained.
    (4) In addition to other supporting documents required under this 
section, and notwithstanding the maximum number of documents under 
paragraph (d)(1) of this section, a motor carrier that requires a 
driver to complete a paper record of duty status under Sec.  
395.8(a)(1)(iii) must maintain toll receipts for any period when the 
driver kept paper records of duty status.
    (e) Link to driver's record of duty status. A motor carrier must 
maintain supporting documents in such a manner that they may be 
effectively matched to the corresponding driver's record of duty 
status.
    (f) Prohibition of destruction. No motor carrier or driver may 
obscure, deface, destroy, mutilate, or alter existing information 
contained in a supporting document.
    (g)(1) On request during a roadside inspection, a driver must make 
available to an authorized Federal, State, or local official for the 
official's review any supporting document in the driver's possession.
    (2) A driver need not produce a supporting document under paragraph 
(g)(1) of this section in a format other than the format in which the 
driver possesses it.
    (h) Self-compliance systems. (1) FMCSA may authorize on a case-by-
case basis motor carrier self-compliance systems.
    (2) Requests for use of a supporting document self-compliance 
system may be submitted to FMCSA under the procedures described in 49 
CFR part 381, subpart C (Procedures for Applying for Exemptions).
    (3) FMCSA will consider requests concerning types of supporting 
documents maintained by a motor carrier under Sec.  395.8(k)(1) and the 
method by which a driver retains and maintains a copy of the record of 
duty

[[Page 17690]]

status for the previous 7 days and makes it available for inspection 
while on duty in accordance with Sec.  395.8.
0
17. Amend Sec.  395.15 by revising paragraph (a) to read as follows:


Sec.  395.15  Automatic on-board recording devices.

    (a) Authority to use. (1) A motor carrier that installs and 
requires a driver to use an automatic on-board recording device in 
accordance with this section before [DATE TWO YEARS AFTER THE EFFECTIVE 
DATE OF THE FINAL RULE] may continue to use the compliant automatic on-
board recording device no later than [DATE FOUR YEARS AFTER THE 
EFFECTIVE DATE OF THE FINAL RULE]. Otherwise, the authority to use 
automatic on-board recording devices (AOBRDs) under this section ends 
on [DATE TWO YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
    (2) A motor carrier may require a driver to use an automatic on-
board recording device to record the driver's hours of service.
    (3) Every driver required by a motor carrier to use an automatic 
on-board recording device shall use such device to record the driver's 
hours of service.
* * * * *


Sec. Sec.  395.16-395.19  [Reserved]

0
18. Add and reserve Sec. Sec.  395.16 through 395.19.
0
19. Amend part 395 by adding a new subpart B, consisting of Sec. Sec.  
395.20 through 395.38, and Appendix to Subpart B of Part 395, to read 
as follows:

Subpart B--Electronic Logging Devices (ELDs)

Sec.  395.20 ELD applicability and scope.
Sec.  395.22 Motor carrier responsibilities--In general.
Sec.  395.24 Driver responsibilities--In general.
Sec.  395.26 ELD data automatically recorded.
Sec.  395.28 Special driving categories; other driving statuses.
Sec.  395.30 ELD record submissions, edits, annotations, and data 
retention.
Sec.  395.32 Non-authenticated driver logs.
Sec.  395.34 ELD malfunctions and data diagnostic events.
Sec.  395.36 Driver access to records.
Sec.  395.38 Incorporation by reference.
Appendix to Subpart B of Part 395--Functional Specifications for All 
Electronic Logging Devices (ELDS)

Subpart B--Electronic Logging Devices (ELDs)


Sec.  395.20  ELD applicability and scope.

    (a) Scope. This subpart applies to ELDs used to record a driver's 
hours of service under Sec.  395.8(a).
    (b) Applicability. An ELD used after [DATE TWO YEARS AFTER THE 
EFFECTIVE DATE OF FINAL RULE] must meet the requirements of this 
subpart.
    (c) ELD system. Throughout this subpart, a reference to an ELD 
includes, to the extent applicable, an ELD support system.


Sec.  395.22  Motor carrier responsibilities--In general.

    (a) Registered ELD required. A motor carrier required to use an ELD 
must use only an ELD that is listed on the Federal Motor Carrier Safety 
Administration's registered ELDs list, accessible through the Agency's 
Web site.
    (b) User rights management. (1) This paragraph (b) of this section 
applies to a motor carrier whose drivers use ELDs and to the motor 
carrier's support personnel who have been authorized by the motor 
carrier to access ELD records and make or suggest authorized edits.
    (2) A motor carrier must:
    (i) Actively manage ELD accounts, including creating, deactivating, 
and updating accounts, and ensure that properly authenticated 
individuals have ELD accounts with appropriate rights;
    (ii) Assign a unique ELD username to each user account with the 
required user identification data;
    (iii) Ensure that a driver's license used in the creation of an ELD 
driver account is valid and corresponds to the intended driver; and
    (iv) Ensure that information entered to create a new account is 
accurate.
    (c) Driver identification data. (1) The ELD user account assigned 
by the motor carrier to a driver requires the following data elements:
    (i) A driver's first and last name, as reflected on the driver's 
license;
    (ii) A unique ELD username selected by the motor carrier;
    (iii) The driver's valid driver's license number; and
    (iv) The State or jurisdiction that issued the driver's license.
    (2) The driver's license number or Social Security number must not 
be used as, or as part of, the username for the account created on an 
ELD.
    (d) Motor carrier support personnel identification data. The ELD 
user account assigned by a motor carrier to support personnel requires 
the following data elements:
    (1) The individual's first and last name, as reflected on a 
government issued identification; and
    (2) A unique ELD username selected by the motor carrier.
    (e) Proper log-in required. The motor carrier must require that its 
drivers and support personnel log into the ELD system using their 
proper identification data.
    (f) Calibration. A motor carrier must ensure that an ELD is 
calibrated and maintained in accordance with the provider's 
specifications.
    (g) Portable ELDs. If a driver uses a portable ELD, the motor 
carrier shall ensure that the ELD is mounted in a fixed position during 
the operation of the commercial motor vehicle and visible to the driver 
when the driver is seated in the normal driving position.
    (h) In-vehicle information. A motor carrier must ensure that its 
drivers possess onboard a commercial motor vehicle an ELD information 
packet containing the following items:
    (1) A user's manual for the driver describing how to operate the 
ELD;
    (2) An instruction sheet for the driver describing the data 
transfer mechanisms supported by the ELD and step-by-step instructions 
for the driver to produce and transfer the driver's hours-of-service 
records to an authorized safety official;
    (3) An instruction sheet for the driver describing ELD malfunction 
reporting requirements and recordkeeping procedures during ELD 
malfunctions; and
    (4) 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 a minimum of 8 days.
    (i) Record backup and security. (1) A motor carrier must maintain 
for 6 months a back-up copy of the ELD records on a device separate 
from that on which the original data are stored.
    (2) A motor carrier must maintain a driver's ELD records so as to 
protect a driver's privacy in a manner consistent with sound business 
practices.
    (j) Record production. When requested by an authorized safety 
official, a motor carrier must produce ELD records in an electronic 
format either on request or, if the motor carrier has multiple offices 
or terminals, within the time permitted under Sec.  390.29.


Sec.  395.24  Driver responsibilities--In general.

    (a) In general. A driver must provide the information the ELD 
requires as prompted by the ELD and required by the motor carrier.
    (b) Driver's duty status. A driver must input the driver's duty 
status by selecting among the following categories available on the 
ELD:
    (1) ``Off duty'' or ``OFF'' or ``1'';
    (2) ``Sleeper berth'' or ``SB'' or ``2'', to be used only if 
sleeper berth is used;
    (3) ``Driving'' or ``D'' or ``3''; or
    (4) ``On-duty not driving'' or ``ON'' or ``4''.
    (c) Miscellaneous data. (1) A driver must manually input the 
following information in the ELD:

[[Page 17691]]

    (i) Annotations, when applicable;
    (ii) Driver's location description, when prompted by the ELD; and
    (iii) Output file comment, when directed by an authorized safety 
officer.
    (2) A driver must manually input or verify the following 
information on the ELD:
    (i) Commercial motor vehicle power unit number;
    (ii) Trailer number(s), if applicable; and
    (iii) Shipping document number, if applicable.
    (d) Driver use of ELD. On request by an authorized safety official, 
a driver must produce and transfer from an ELD the driver's hours-of-
service records in accordance with the instruction sheet provided by 
the motor carrier.


Sec.  395.26  ELD data automatically recorded.

    (a) In general. An ELD provides the following functions and 
automatically records the data elements listed in this section in 
accordance with the requirements contained in the appendix to subpart B 
of part 395.
    (b) Data automatically recorded. The ELD automatically records the 
following data elements:
    (1) Date;
    (2) Time;
    (3) CMV geographic location information;
    (4) Engine hours;
    (5) Vehicle miles;
    (6) Driver or authenticated user identification data;
    (7) Vehicle identification data; and
    (8) Motor carrier identification data.
    (c) Change of duty status. When a driver indicates a change of duty 
status under Sec.  395.24(b), the ELD records the data elements in 
paragraphs (b)(1) through (8) of this section.
    (d) Intermediate recording. (1) When a commercial motor vehicle is 
in motion and there has not been a duty status change or another 
intermediate recording in the previous 1 hour, the ELD automatically 
records an intermediate recording that includes the data elements in 
paragraphs (b)(1) through (8) of this section.
    (2) If the intermediate recording is created during a period when 
the driver indicates authorized personal use of a commercial motor 
vehicle, the data elements in paragraphs (b)(4) and (b)(5) of this 
section (engine hours and vehicle miles) will be left blank and 
paragraph (b)(3) of this section (location) will be recorded with a 
single decimal point resolution (approximately within a 10-mile 
radius).
    (e) Change in special driving category. If a driver indicates a 
change in status under Sec.  395.28(a)(2), the ELD records the data 
elements in paragraphs (b)(1) through (8) of this section.
    (f) Certification of the driver's daily record. The ELD provides a 
function for recording the driver's certification of the driver's 
records for every 24-hour period. When a driver certifies or 
recertifies the driver's records for a given 24-hour period under Sec.  
395.30(b)(2), the ELD records the date, time and driver identification 
data elements in paragraphs (b)(1), (2), and (6) of this section.
    (g) Log in/log out. When an authorized user logs into or out of an 
ELD, the ELD records the data elements in paragraphs (b)(1) and (2) and 
(b)(4) through (8) of this section.
    (h) Engine power up/shut down. When a commercial motor vehicle's 
engine is powered up or powered down, the ELD records the data elements 
in paragraphs (b)(1) through (8) of this section.
    (i) Authorized personal use. If the record is created during a 
period when the driver has indicated authorized personal use of a 
commercial motor vehicle, the data element in paragraph (a)(3) of this 
section is logged with a single decimal point resolution (approximately 
within a 10-mile radius).
    (j) Malfunction and data diagnostic event. When an ELD detects or 
clears a malfunction or data diagnostic event, the ELD records the data 
elements in paragraphs (b)(1) and (2) and (b)(4) through (8) of this 
section.


Sec.  395.28.  Special driving categories; other driving statuses.

    (a) Special driving categories. (1) Motor carrier options. A motor 
carrier may configure an ELD to authorize a driver to indicate that the 
driver is operating a commercial motor vehicle under any of the 
following special driving categories:
    (i) Authorized personal use; and
    (ii) Yard moves.
    (2) Driver's responsibilities. A driver operating a commercial 
motor vehicle under one of the authorized categories listed in 
paragraph (a)(1) of this section:
    (i) Must select on the ELD the applicable special driving category 
before the start of the status and deselect when the indicated status 
ends; and
    (ii) When prompted by the ELD, annotate the driver's ELD record 
describing the driver's activity.
    (b) Drivers exempt from ELD use. A motor carrier may configure an 
ELD to designate a driver as exempt from ELD use.
    (c) Other driving statuses. A driver operating a commercial motor 
vehicle under any exception under Sec.  390.3(f) or Sec.  395.1 who is 
not covered under paragraph (a) or (b) of this section must annotate 
the driver's ELD record explaining the applicable exemption.


Sec.  395.30  ELD record submissions, edits, annotations, and data 
retention.

    (a) True and correct record keeping. A driver and the motor carrier 
must ensure that the driver's ELD records are accurate.
    (b) Review of records and certification by driver. (1) A driver 
must review the driver's ELD records, edit and correct inaccurate 
records, enter any missing information, and certify the accuracy of the 
information.
    (2) Using the certification function of the ELD, the driver must 
certify the driver's records by affirmatively selecting ``Agree'' 
immediately following a statement that reads, ``I hereby certify that 
my data entries and my record of duty status for this 24-hour period 
are true and correct.'' The driver must certify the record immediately 
after the final required entry has been made or corrected for the 24-
hour period.
    (3) The driver must submit the driver's certified ELD records to 
the motor carrier in accordance with Sec.  395.8(a)(2).
    (4) If any edits are necessary after the driver submits the records 
to the motor carrier, the driver must recertify the record after the 
edits are made.
    (c) Edits, entries, and annotations. (1) Subject to the edit 
limitations of an ELD, a driver may edit, enter missing information, 
and annotate ELD recorded events. When edits, additions, or annotations 
are necessary, a driver must use the ELD and respond to the ELD's 
prompts.
    (2) The driver or support personnel must annotate each change or 
addition to a record.
    (3) In the case of team drivers, if there was a mistake resulting 
in the wrong driver being assigned driving-time hours by the ELD, and 
if the team drivers were both indicated in each other's records for 
that period as co-drivers, driving time may be edited and reassigned 
between the team drivers following the procedure supported by the ELD.
    (d) Motor carrier-proposed edits. (1) On review of a driver's 
submitted records, the motor carrier may request edits to a driver's 
records of duty status to ensure accuracy. A driver must confirm or 
reject any proposed change, implement the appropriate edits on the 
driver's record of duty status, and recertify and resubmit the records 
in order for any motor carrier-proposed changes to take effect.
    (2) A motor carrier may not request edits to the driver's 
electronic records

[[Page 17692]]

before the records have been submitted by the driver.
    (3) Edits requested by any system or by any person other than the 
driver must require the driver's electronic confirmation or rejection.
    (e) Coercion prohibited. A motor carrier may not coerce a driver to 
make a false certification of the driver's data entries or record of 
duty status.
    (f) Motor carrier data retention requirements. A motor carrier must 
not alter or erase, or permit or require alteration or erasure of, the 
original information collected concerning the driver's hours of 
service, the source data streams used to provide that information, or 
information contained in any ELD support system that uses the original 
information and source data streams.


Sec.  395.32  Non-authenticated driver logs.

    (a) Tracking non-authenticated operation. The ELD must associate 
the non-authenticated operation of a commercial motor vehicle with a 
single account labeled ``Unidentified Driver'' as soon as the vehicle 
is in motion, if no driver has logged into the ELD.
    (b) Driver. When a driver logs into an ELD, the driver must review 
any unassigned driving time when prompted by the ELD and must:
    (1) Assume any records that belong to the driver under the driver's 
account; or
    (2) Indicate that the records are not attributable to the driver.
    (c) Motor carrier. (1) A motor carrier must ensure that records of 
unidentified driving are reviewed and must:
    (i) Annotate the record, explaining why the time is unassigned; or
    (ii) Assign the record to the appropriate driver to correctly 
reflect the driver's hours of service.
    (2) A motor carrier must retain unidentified driving records for 
each ELD for a minimum of 6 months from the date of receipt.
    (3) During a safety inspection, audit or investigation by an 
authorized safety official, a motor carrier must make available 
unidentified driving records from the ELD corresponding to the time 
period for which ELD records are required.


Sec.  395.34  ELD malfunctions and data diagnostic events.

    (a) Recordkeeping during ELD malfunctions. In case of an ELD 
malfunction, a driver must do the following:
    (1) Note the malfunction of the ELD and provide written notice of 
the malfunction to the motor carrier within 24 hours;
    (2) Reconstruct the record of duty status for the current 24-hour 
period and the previous 7 consecutive days, and record the records of 
duty status on graph-grid paper logs that comply with Sec.  395.8, 
unless the driver already possesses the records or the records are 
retrievable from the ELD; and
    (3) Continue to manually prepare a record of duty status until the 
ELD is serviced and brought back into compliance with this subpart.
    (b) Inspections during malfunctions. When a driver is inspected for 
hours of service compliance during an ELD malfunction, the driver must 
provide the authorized safety official the driver's records of duty 
status manually maintained as specified under paragraphs (a)(2) and (3) 
of this section.
    (c) Driver requirements during ELD data diagnostic events. If an 
ELD indicates that there is a data inconsistency that generates a data 
diagnostic event, the driver must follow the motor carrier's and ELD 
provider's recommendations in resolving the data inconsistency.
    (d) Motor carrier requirements for repair, replacement, or service. 
(1) If a motor carrier receives or discovers information concerning the 
malfunction of an ELD, the motor carrier must take corrective actions 
to correct the malfunction of the ELD within 8 days of discovery of the 
condition or a driver's notification to the motor carrier, whichever 
occurs first.
    (2) A motor carrier seeking to extend the period of time permitted 
for repair, replacement, or service of one or more ELDs shall notify 
the FMCSA Division Administrator for the State of the motor carrier's 
principal place of business within 5 days after a driver notifies the 
motor carrier under paragraph (a)(1) of this section. Each request for 
an extension under this section must be signed by the motor carrier and 
must contain:
    (i) The name, address, and telephone number of the motor carrier 
representative who files the request;
    (ii) The make, model, and serial number of each ELD;
    (iii) The date and location of each ELD malfunction as reported by 
the driver to the carrier; and
    (iv) A concise statement describing actions taken by the motor 
carrier to make a good faith effort to repair, replace, or service the 
ELD units, including why the carrier needs additional time beyond the 8 
days provided by this section.
    (3) If FMCSA determines that the motor carrier is continuing to 
make a good faith effort to ensure repair, replacement, or service to 
address the malfunction of each ELD, FMCSA may allow an additional 
period.
    (4) FMCSA will provide written notice to the motor carrier of its 
determination. The determination may include any conditions that FMCSA 
considers necessary to ensure hours-of-service compliance. The 
determination shall constitute a final agency action.
    (5) A carrier providing a request for extension that meets the 
requirements of paragraph (d)(2) of this section is deemed in 
compliance with Sec.  395.8(a)(1)(i) and (a)(2) until FMCSA makes an 
extension determination under this section, provided the motor carrier 
and driver continue to comply with the other requirements of this 
section.


Sec.  395.36  Driver access to records.

    (a) Records on ELD. Drivers must be able to access their own ELD 
records. A motor carrier must not introduce a process that would 
require a driver to go through the motor carrier to obtain copies of 
the driver's own ELD records if such records exist on or are 
automatically retrievable through the ELD operated by the driver.
    (b) Records in motor carrier's possession. On request, a motor 
carrier must provide a driver with access to and copies of the driver's 
own ELD records unavailable under paragraph (a) of this section during 
the period a motor carrier is required to retain the records under 
Sec.  395.8(k).


Sec.  395.38  Incorporation by reference.

    (a) Incorporation by reference. Certain materials are incorporated 
by reference in part 395, with the approval of the Director of the 
Office of the Federal Register under 5 U.S.C. 552(a), and 1 CFR part 
51. To enforce any edition other than that specified in this section, 
the Federal Motor Carrier Safety Administration must publish notice of 
change in the Federal Register, and the material must be available to 
the public. All approved material is available for inspection at the 
Federal Motor Carrier Safety Administration, Office of Bus and Truck 
Standards and Operations (MC-PS), (202) 366-4325, and is available from 
the sources listed below. It is also available for inspection at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030 or go to 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) Institute of Electrical and Electronic Engineers (IEEE) 
Standards Association. 445 Hoes Lane, Piscataway, NJ 08854-4141. Web 
page is http://standards.ieee.org/index.html. Telephone is (732) 981-
0060.

[[Page 17693]]

    (1) ``Standard for Authentication in Host Attachments of Transient 
Storage Devices,'' IEEE Standards Association: 2009 (IEEE Std. 1667-
2009). Incorporation by reference approved for appendix to subpart B of 
part 395, paragraph 4.10.2.1.
    (2) [Reserved]
    (c) Universal Serial Bus Implementers Forum (USBIF). 3855 SW. 153rd 
Drive, Beaverton, Oregon 97006. Web page is http://www.usb.org. 
Telephone is (503) 619-0426.
    (1) ``Universal Serial Bus Specification,'' Compaq, Hewlett-
Packard, Intel, Lucent, Microsoft, NEC, Philips; April 27, 2000 
(Revision 2.0). Incorporation by reference approved for appendix to 
subpart B of part 395, paragraphs 4.9.1, Table 5, 4.9.2, 4.10.2.1, and 
4.10.3.
    (2) [Reserved]
    (d) American National Standards Institute (ANSI). 11 West 42nd 
Street, New York, New York 10036. Web page is http://webstore.ansi.org. 
Telephone is (212) 642-4900.
    (1) ``ANSI INCITS 446-2008, American National Standard for 
Information Technology--Identifying Attributes for Named Physical and 
Cultural Geographic Features (Except Roads and Highways) of the United 
States, Its Territories, Outlying Areas, and Freely Associated Areas 
and the Waters of the Same to the Limit of the Twelve-Mile Statutory 
Zone (10/28/2008),'' (ANSI INCITS 446-2008). Incorporation by reference 
approved for appendix to subpart B of part 395, paragraph 4.4.2. (For 
further information, see also the Geographic Names Information System 
(GNIS) at http://geonames.usgs.gov/domestic/index.html.)
    (2) ``Information Systems--Coded Character Sets--7-Bit American 
National Standard Code for Information Interchange (7-Bit ASCII),'' 
ANSI INCITS 4-1986 (R2007). Incorporation by reference approved for 
appendix to subpart B of part 395, Table 3 and paragraph 4.8.2.1.
    (e) International Standards Organization (ISO). 1, ch. de la Voie-
Creuse, CP 56--CH-1211, Geneva 20, Switzerland. Web page is http://www.iso.org. Telephone is 41 22 749 03 46.
    (1) ``ISO/IEC 18004:2006 Information technology--Automatic 
identification and data capture techniques--QR Code 2005 bar code 
symbology specification.'' Incorporation by reference approved for 
appendix to subpart B of part 395, paragraph 4.10.2.2.
    (2) ``ISO/IEC 17568 Information technology--Telecommunications and 
information exchange between systems--Close proximity electric 
induction wireless communications.'' Incorporation by reference 
approved for appendix to subpart B of part 395, paragraph 4.10.2.3.
    (f) Internet Engineering Task Force (IETF). C/o Association 
Management Solutions, LLC (AMS) 48377 Freemont Blvd., Suite 117, 
Freemont, CA 94538. Telephone is (510) 492-4080.
    (1) Request for Comment (RFC) 5246-``The Transport Layer Security 
(TLS) Protocol Version 1.2,'' August 2008. Incorporation by reference 
approved for appendix to subpart B of part 395, paragraph 4.10.1.1.
    (2) RFC 5321--``Simple Mail Transfer Protocol,'' October 2008. 
Incorporation by reference approved for appendix to subpart B of part 
395, paragraph 4.10.1.3.
    (3) RFC 5322--``Internet Message Format,'' October 2008. 
Incorporation by reference approved for appendix to subpart B of part 
395, paragraph 4.10.1.3.
    (g) U.S. Department of Commerce, National Institute of Standards 
and Technology (NIST). 100 Bureau Drive, Stop 1070, Gaithersburg, MD 
20899-1070. Web page is http://www.nist.gov. Telephone is (301) 975-
6478.
    (1) ``Federal Information Processing Standards (FIPS) Publication 
197, November 26, 2001, Announcing the ADVANCED ENCRYPTION STANDARD 
(AES).'' Incorporation by reference approved for appendix to subpart B 
of part 395, paragraphs 4.10.1.3 and 4.10.2.1.
    (2) ``Special Publication (SP) 800-32, February 26, 2001, 
Introduction to Public Key Technology and the Federal PKI 
Infrastructure.'' Incorporation by reference approved for appendix to 
subpart B of part 395, paragraphs 4.10.1.1 and 4.10.1.3.
    (h) World Wide Web Consortium (W3C). 32 Vassar Street, Building 32-
G514, Cambridge, MA 02139. Web page is http://www.w3.org. Telephone is 
(617) 253-2613.
    (1) ``Web Services Description Language (WSDL) 1.1, W3C Note 15, 
March 2001,'' Ariba, IBM Research, Microsoft. Incorporation by 
reference approved for appendix to subpart B of part 395, paragraph 
4.10.1.1(1).
    (2) ``Simple Object Access Protocol (SOAP) Version 1.2 Part 1: 
Messaging Framework (Second Edition), W3C Recommendation 27 April 
2007,'' W3C[supreg] (MIT, ERCIM, Keio). Incorporation by reference 
approved for appendix to subpart B of part 395, paragraph 4.10.1.1(2).
    (3) ``Extensible Markup Language (XML) 1.0 (Fifth Edition), W3C 
Recommendation 26 November 2008,'' W3C[supreg] (MIT, ERCIM, Keio). 
Incorporation by reference approved for appendix to subpart B of part 
395, paragraph 4.10.1.1(3).
    (4) RFC 2616 ``Hypertext Transfer Protocol--HTTP/1.1'' 
Incorporation by reference approved for appendix to subpart B of part 
395, paragraph 4.10.1.1.
    (i) Bluetooth SIG, Inc., 5209 Lake Washington Blvd. NE., Suite 350, 
Kirkland, WA 98033. Web page is https://www.bluetooth.org/Technical/Specifications/adopted.htm. Telephone is (425) 691-3535.
    (1) ``Specification of the Bluetooth System: Wireless Connections 
Made Easy,'' Bluetooth SIG Version, Covered Core Package version 2.1 + 
EDR or a higher version. Incorporation by reference approved for 
appendix to subpart B of part 395, paragraph 4.10.1.2.
    (2) [Reserved]

Appendix to Subpart B of Part 395--Functional Specifications for All 
Electronic Logging Devices (ELDs)

Table of Contents

1. SCOPE AND DESCRIPTION
    1.1. ELD Function
    1.2. System User
    1.3. System Architecture
    1.4. System Design
    1.5. Sections of Appendix
2. ABBREVIATIONS
3. DEFINITIONS; NOTATIONS
    3.1. Definitions
    3.1.1. Databus
    3.1.2. ELD Event
    3.1.3. Exempt Driver
    3.1.4. Geo-Location
    3.1.5. Ignition Power Cycle, Ignition Power On Cycle, Ignition 
Power Off Cycle
    3.1.6. Unidentified Driver
    3.2. Notations
4. FUNCTIONAL REQUIREMENTS
    4.1. ELD User Accounts
    4.1.1. Account Types
    4.1.2. Account Creation
    4.1.3. Account Security
    4.1.4. Account Management
    4.1.5. Non-Authenticated Operation
    4.2. ELD-Vehicle Interface
    4.3. ELD Inputs
    4.3.1. ELD Sensing
    4.3.1.1. Engine Power Status
    4.3.1.2. Vehicle Motion Status
    4.3.1.3. Vehicle Miles
    4.3.1.4. Engine Hours
    4.3.1.5. Date and Time
    4.3.1.6. CMV Position
    4.3.1.7. CMV VIN
    4.3.2. Driver's Manual Entries
    4.3.2.1. Driver's Entry of Required Event Data Fields
    4.3.2.2. Driver's Status Inputs
    4.3.2.2.1. Driver's Indication of Duty Status
    4.3.2.2.2. Driver's Indication of Situations Impacting Driving 
Time Recording
    4.3.2.3. Driver's Certification of Records
    4.3.2.4. Driver's Data Transfer Initiation Input

[[Page 17694]]

    4.3.2.5. Driver's Entry of an Output File Comment
    4.3.2.6. Driver's Annotation of Records
    4.3.2.7. Driver's Entry of Location Information
    4.3.2.8. Driver's Record Entry/Edit
    4.3.3. Motor Carrier's Manual Entries
    4.3.3.1. ELD Configuration
    4.3.3.1.1. Configuration of Available Categories Impacting 
Driving Time Recording
    4.3.3.1.2. Configuration of Using ELDs
    4.4. ELD Processing and Calculations
    4.4.1. Conditions for Automatic Setting of Duty Status
    4.4.1.1. Automatic Setting of Duty Status to Driving
    4.4.1.2. Automatic Setting of Duty Status to On-Duty Not Driving
    4.4.1.3. Other Automatic Duty-Status Setting Actions Prohibited
    4.4.2. Geo-Location Conversions
    4.4.3. Date and Time Conversions
    4.4.4. Setting of Event Parameters in Records, Edits, and 
Entries
    4.4.4.1. Event Sequence Identifier (ID) number
    4.4.4.2. Event Record Status, Event Record Origin, Event Type 
Setting
    4.4.4.2.1. Records Automatically Logged by ELD
    4.4.4.2.2. Driver Edits
    4.4.4.2.3. Driver entries
    4.4.4.2.4. Driver's Assumption of Unidentified Driver Logs
    4.4.4.2.5. Motor Carrier Edit Suggestions
    4.4.4.2.6. Driver's Actions Over Motor Carrier Edit Suggestions
    4.4.5. Data Integrity Check Functions
    4.4.5.1. Event Data Check
    4.4.5.1.1. Event Checksum Calculation
    4.4.5.1.2. Event Data Check Calculation
    4.4.5.2. Line Data Check
    4.4.5.2.1. Line Checksum Calculation
    4.4.5.2.2. Line Data Check Calculation
    4.4.5.2.3. Line Data Check Value Inclusion in Output File
    4.4.5.3. File Data Check
    4.4.5.3.1. File Checksum Calculation
    4.4.5.3.2. File Data Check Value Calculation
    4.4.5.3.3. File Data Check Value Inclusion in Output File
    4.5. ELD Recording
    4.5.1. Events and Data to Record
    4.5.1.1. Event: Change in Driver's Duty Status
    4.5.1.2. Event: Intermediate Logs
    4.5.1.3. Event: Change in Driver's Indication of Allowed 
Conditions that Impact Driving Time Recording
    4.5.1.4. Event: Driver's Certification of Own Records
    4.5.1.5. Event: Driver's Login/Logout Activity
    4.5.1.6. Event: CMV's Engine Power Up and Shut Down Activity
    4.5.1.7. Event: ELD Malfunction and Data Diagnostics Occurrence
    4.6. ELD's Self-Monitoring of Required Functions
    4.6.1. Compliance Self-Monitoring, Malfunctions and Data 
Diagnostic Events
    4.6.1.1. Power Compliance Monitoring
    4.6.1.2. Engine Synchronization Compliance Monitoring
    4.6.1.3. Timing Compliance Monitoring
    4.6.1.4. Positioning Compliance Monitoring
    4.6.1.5. Data Recording Compliance Monitoring
    4.6.1.6. Monitoring Records Logged under the Unidentified Driver 
Profile
    4.6.1.7. Data Transfer Compliance Monitoring
    4.6.1.8. Other Technology-Specific Operational Health Monitoring
    4.6.2. ELD Malfunction Status Indicator
    4.6.2.1. Visual Malfunction Indicator
    4.6.3. ELD Data Diagnostic Status Indicator
    4.6.3.1. Visual data diagnostics indicator
    4.7. Special Purpose ELD Functions
    4.7.1. Driver's ELD Volume Control
    4.7.2. Driver's Access to Own ELD Records
    4.7.3. Privacy Preserving Provision for Use During Personal Uses 
of a CMV
    4.8. ELD Outputs
    4.8.1. Information To Be Displayed by an ELD
    4.8.2. ELD Data File
    4.8.2.1. ELD Output File Standard
    4.8.2.1.1. Header Segment
    4.8.2.1.2. User List
    4.8.2.1.3. CMV List
    4.8.2.1.4. ELD Event List for Driver's Record of Duty Status
    4.8.2.1.5. Event Annotations, Comments, and Driver's Location 
Description
    4.8.2.1.6. ELD Event List for Driver's Certification of Own 
Records
    4.8.2.1.7. Malfunction and Diagnostic Event Records
    4.8.2.1.8. ELD Login/Logout Report
    4.8.2.1.9. CMV's Engine Power-Up and Shut Down Activity
    4.8.2.1.10. ELD Event Log List for the Unidentified Driver 
Profile
    4.8.2.1.11. File Data Check Value
    4.8.2.2. ELD Output File Name Standard
    4.9. Data Transfer Capability Requirements
    4.9.1. Data Reporting During Roadside Safety Inspections
    4.9.2. Motor Carrier Data Reporting
    4.10. Communications Standards for the Transmittal of Data Files 
from ELDs
    4.10.1. Primary Wireless Data Transfer Mechanisms
    4.10.1.1. Wireless Data Transfer via Web Services
    4.10.1.2. Wireless Data Transfer via Bluetooth[supreg]
    4.10.1.3. Wireless Data Transfer Through E-Mail
    4.10.2. Backup Wired and Proximity Data Transfer Mechanisms
    4.10.2.1. USB 2.0
    4.10.2.2. Data Transfer via Scannable QR Codes
    4.10.2.3. Data Transfer via TransferJetTM
    4.10.2.4. Printout
    4.10.3. Motor Carrier Support System Data Transmission.
5. ELD-CERTIFICATION--REGISTRATION
    5.1. Certification of Conformity with FMCSA Standards
    5.1.1. Registering Online
    5.1.2. Keeping Information Current
    5.1.3. Authentication Information Distribution
    5.2. ELD Provider's Registration.
    5.2.1. Online Certification
    5.2.2. Procedure to Validate an ELD's Authenticity
    5.3. Publicly Available Information
6. REFERENCES
7. DATA ELEMENTS DICTIONARY
    7.1.1. 24-Hour Period Starting Time
    7.1.2. Carrier Name
    7.1.3. Carrier's USDOT Number
    7.1.4. CMV Power Unit Number
    7.1.5. CMV VIN
    7.1.6. Comment/Annotation
    7.1.7. Data Diagnostic Event Indicator Status
    7.1.8. Date
    7.1.9. Distance Since Last Valid Coordinates
    7.1.10. Driver's License Issuing State
    7.1.11. Driver's License Number
    7.1.12. Driver's Location Description
    7.1.13. ELD Account Type
    7.1.14. ELD Authentication Value
    7.1.15. ELD Identifier
    7.1.16. ELD Registration ID
    7.1.17. ELD Username
    7.1.18. Engine Hours
    7.1.19. Event Code
    7.1.20. Event Data Check Value
    7.1.21. Event Record Origin
    7.1.22. Event Record Status
    7.1.23. Event Sequence ID Number
    7.1.24. Event Type
    7.1.25. Exempt Driver Configuration
    7.1.26. File Data Check Value
    7.1.27. First Name
    7.1.28. Geo-Location
    7.1.29. Last Name
    7.1.30. Latitude
    7.1.31. Line Data Check Value
    7.1.32. Longitude
    7.1.33. Malfunction/Diagnostic Code
    7.1.34. Malfunction Indicator Status
    7.1.35. Multiday Basis Used
    7.1.36. Order Number
    7.1.37. Output File Comment
    7.1.38. Shipping Document Number
    7.1.39. Time
    7.1.40. Time Zone Offset from UTC
    7.1.41. Trailer Number(s)
    7.1.42. Vehicle Miles

1. Scope and Description

    This appendix specifies the minimal requirements for an 
electronic logging device (ELD) necessary for an ELD provider to 
build and certify that its technology is compliant with this 
appendix.
    Throughout this appendix, a reference to an ELD includes, to the 
extent applicable, an ELD support system.

1.1. ELD Function

    The ELD discussed in this appendix is an electronic module 
capable of recording the electronic records of duty status for CMV 
drivers using the unit in a driving environment within a CMV and 
meets the compliance requirements in this appendix.

1.2. System Users

    Users of ELDs are:
    (1) CMV drivers employed by a motor carrier; and
    (2) Support personnel who have been authorized by the motor 
carrier to:
    (a) Create, remove and manage user accounts;
    (b) Configure allowed ELD parameters; and
    (c) Access, review and manage drivers' ELD records on behalf of 
the motor carrier.

[[Page 17695]]

1.3. System Architecture

    An ELD may be implemented as a stand-alone technology or within 
another electronic module. It may be installed in a CMV or may be 
implemented on a handheld unit that may be moved from vehicle to 
vehicle. The functional requirements are the same for all types of 
system architecture that may be used in implementing the ELD 
functionality.

1.4. System Design

    An ELD is integrally synchronized with the engine of the CMV 
such that driving time can be automatically recorded for the driver 
operating the CMV and using the ELD.
    An ELD allows for manual inputs from the driver and the motor 
carrier support personnel and automatically captures date and time, 
vehicle position, and vehicle operational parameters.
    An ELD records a driver's electronic RODS and other supporting 
events with the required data elements specified in this appendix 
and retains data to support the performance requirements specified 
in this appendix
    An ELD generates a standard data file output and transfers it to 
an authorized safety official upon request.
    This appendix specifies minimally required data elements that 
must be part of an event record such that a standard ELD output file 
can be produced by all compliant ELDs.
    Figure 1 provides a visual layout of how this appendix is 
generally organized to further explain the required sub-functions of 
an ELD.
BILLING CODE 4910-EX-P
[GRAPHIC] [TIFF OMITTED] TP28MR14.000

BILLING CODE 4910-EX-C

1.5. Sections of Appendix

    Section 2 lists the abbreviations used throughout this appendix.
    Section 3 provides definitions for terms and notations used in 
this document.
    Section 4 lists functional requirements for an ELD. More 
specifically, section 4.1 describes the security requirements for 
account management within an ELD system and introduces the term 
``Unidentified Driver'' account. Section 4.2 explains internal 
engine synchronization requirements and its applicability when used 
in recording a driver's record of duty status in CMVs built before 
and after a threshold model year. Section 4.3 describes the inputs 
of an ELD which includes automatically measured signals by the ELD 
as covered in section 4.3.1, and manual entries by the authenticated 
driver as covered in section 4.3.2 and by the motor carrier as 
covered in section 4.3.3. The ELD requirements for internal 
processing and tracking of information flow are described in section 
4.4 which includes conditions for and prohibitions against automatic 
setting of duty-status in section 4.4.1, required geo-location and 
date and time conversion functions in sections 4.4.2 and 4.4.3, 
respectively, use of event attributes for tracking of edit and entry 
history in section 4.4.4, and the use of data check functions in the 
recording of ELD logs in section 4.4.5 as standard security measures 
for all ELDs. Section 4.5 describes the events an ELD must record 
and the data element each type of an event must include. Section 4.6 
introduces device self-monitoring requirements and standardizes the 
minimal set of malfunctions and data diagnostic events an ELM must 
be able to detect. Section 4.7 introduces technical functions that 
are intended to guard a driver against harassment and introduces a 
privacy preserving provision when a driver operates a CMV for 
personal purposes. Section 4.8 explains ELD outputs, which are the 
information displayed to a user and the standard data output file an 
ELD must produce. Sections 4.9 and 4.10, respectively,

[[Page 17696]]

describe the data reporting requirements and the communications 
protocols.
    Section 5 describes the ELD certification and registration 
process.
    Section 6 lists the cited references throughout this appendix.
    Section 7 provides a data elements dictionary for each data 
element referenced in this appendix.

2. Abbreviations

3pDP Third-party Developers' Partnership
ASCII American Standard Code for Information Interchange
CAN Control Area Network
CMV Commercial Motor Vehicle
ECM Electronic Control Module
ELD Electronic Logging Device
FMCSA Federal Motor Carrier Safety Administration
HOS Hours of Service
HTTP Hypertext Transfer Protocol
HTTPS Hypertext Transfer Protocol Secure
ICD Interface Control Document
SAFER Safety and Fitness Electronic Records
QR Quick Response
RFC Request for Comments
RODS Records of Duty Status
TLS Transport Layer Security
UCT Coordinated Universal Time
USB Universal Serial Bus
WSDL Web Services Definition Language
XML Extensible Markup Language
XOR Exclusive Or {bitwise binary operation{time} 

3. Definitions; Notations

3.1. Definitions

3.1.1. Databus

    A vehicle databus refers to an internal communications network 
that interconnects components inside a vehicle and facilitates 
exchange of data between subsystems typically using serial or 
control area network protocols.

3.1.2. ELD Event

    An ELD event refers to a discrete instance in time when the ELD 
records data with the data elements specified in this appendix. The 
discrete ELD events relate to the driver's duty status and ELD's 
operational integrity. They are either triggered by input from the 
driver (driver's duty status changes, driver's login/logout 
activity, etc.) or triggered by ELD's internal monitoring functions 
(ELD malfunction detection, data diagnostics detection, intermediate 
logs, etc.). ELD events and required data elements for each type of 
ELD events are described in detail in section 4.5.1.

3.1.3. Exempt Driver

    As specified in further detail in section 4.3.3.1.2, an ELD must 
allow a motor carrier to configure an ELD for a driver who may be 
exempt from the use of ELD. Examples of an exempt driver would be a 
100 air-mile radius driver and non-CDL 150-air mile radius driver. 
Even though exempt drivers do not have to use an ELD, in operations 
when an ELD equipped CMV may be shared between exempt and non-exempt 
drivers, motor carriers can use this allowed configuration to avoid 
issues with unidentified driver data diagnostics errors.

3.1.4. Geo-Location

    Geo-location is the conversion of a position measurement in 
latitude/longitude coordinates into a description of the distance 
and direction to a recognizable nearby location name. Geo-location 
information is used in ELD's displayable outputs such as on a 
screen.

3.1.5. Ignition Power Cycle, Ignition Power On Cycle, Ignition Power 
Off Cycle

    An ignition power cycle refers to the engine's power status 
changing from ``on to off'' or ``off to on'', typically with driver 
controlling ignition power by switching the ignition key positions.
    An ignition power on cycle refers to the engine power sequence 
changing from ``off to on and then off''. This refers to a 
continuous period when a CMV's engine is powered.
    An ignition power off cycle refers to the engine power sequence 
changing from ``on to off and then on''. This refers to a continuous 
period when a CMV's engine is not powered.

3.1.6. Unidentified Driver

    ``Unidentified Driver'' refers to the operation of a CMV 
featuring an ELD without an authenticated driver logging in the 
system. Functional specifications in this appendix require an ELD to 
automatically capture driving time under such conditions and 
attribute such records with the unique ``Unidentified Driver'' 
account, as specified in section 4.1.5, until they are reviewed and 
assigned to the true and correct owner of these records.

3.2. Notations

    Throughout this appendix the following notations are used when 
data elements are referenced.

<.> indicates a parameter an ELD must track. For example ELD 
username refers to the unique  or identifier specified 
during the creation of an ELD account with the requirements set 
forth in section 7.1.17.
{.{time}  indicates which of multiple values of a parameter is being 
referenced. For example ELD username {for the co-driver{time}  
refers specifically the ELD username for the co-driver.
 indicates a carriage return or new line or end of current line. 
This notation is used in section 4.8.2 which describes the standard 
ELD output file and in section 4.10.2.4 which describes a standard 
printout report.

4. Functional Requirements

4.1. ELD User Accounts

4.1.1. Account Types

    An ELD must support a user account structure that separates 
drivers and motor carrier's support personnel (i.e. non-drivers).

4.1.2. Account Creation

    Each user of the ELD must have a valid active account on the ELD 
with a unique identifier assigned by the motor carrier.
    Each driver account must require the entry of the driver's 
license number and the State or jurisdiction that issued the 
driver's license into the ELD during the account creation process. 
The driver account must securely store this information on the ELD.
    An ELD must not allow creation of more than one driver account 
associated with a driver's license for a given motor carrier.
    A driver account must not have administrative rights to create 
new accounts on the ELD.
    A support personnel account must not allow recording of ELD data 
for its account holder.
    An ELD must reserve a unique driver account for recording events 
during non-authenticated operation of a CMV. This appendix will 
refer to this account as unidentified driver account.

4.1.3. Account Security

    An ELD must provide secure access to data recorded and stored on 
the system by requiring user authentication during system login.
    Driver accounts must only have access to data associated with 
that driver, protecting the authenticity and confidentiality of the 
collected information.

4.1.4. Account Management

    An ELD must be capable of separately recording and retaining ELD 
data for each individual driver using the ELD.
    An ELD must provide for and require concurrent authentication 
for team drivers.
    If more than one ELD unit is used to record a driver's 
electronic records within a motor carrier's operation, the ELD in 
the vehicle the driver is operating most recently must be able to 
produce a complete ELD report for that driver, on demand, for the 
current 24-hour period and the previous 7 consecutive days.

4.1.5. Non-Authenticated Operation

    An ELD must associate all non-authenticated operation of a CMV 
with a single ELD account labeled unidentified driver.
    If a driver does not log onto the ELD, as soon as the vehicle is 
in motion, the ELD must:
    (a) Provide a visual or visual and audible warning reminding the 
driver to stop and login to the ELD;
    (b) Record accumulated driving and on-duty, not-driving, time in 
accordance with the ELD defaults described in section 4.4.1 under 
the unidentified driver profile; and
    (c) Not allow entry of any information into the ELD other than a 
response to the login prompt.

4.2. ELD-Vehicle Interface

    An ELD must be integrally synchronized with the engine of the 
CMV. Engine synchronization for purposes of ELD compliance means the 
monitoring of the vehicle's engine operation to automatically 
capture engine's power status, vehicle's motion status, miles driven 
value, and engine hours value. Furthermore, an ELD used while 
operating a CMV that is a model year 2000 or later model year, as 
indicated by the vehicle identification number, that has engine 
electronic control module (ECM), must establish a link to the engine 
ECM and receive this information automatically through the serial or 
Control Area Network communication (CAN) protocols supported by the 
vehicle's engine ECM. Otherwise, an ELD may use alternative sources 
to obtain or

[[Page 17697]]

estimate these vehicle parameters with the listed accuracy 
requirements under section 4.3.1.

4.3. ELD Inputs

4.3.1. ELD Sensing

4.3.1.1. Engine Power Status

    An ELD must be powered within 15 seconds of the vehicle's engine 
receiving power and must remain powered for as long as the vehicle's 
engine stays powered.

4.3.1.2. Vehicle Motion Status

    An ELD must automatically determine whether a CMV is in motion 
or stopped by comparing the vehicle speed information with respect 
to a set speed threshold as follows:
    (1) Once the vehicle speed exceeds the set speed threshold, it 
must be considered in motion.
    (2) Once in motion, the vehicle must be considered in motion 
until its speed falls to 0 miles per hour and stays at 0 miles per 
hour for 3 consecutive seconds. Then, the vehicle will be considered 
stopped.
    (3) An ELD's set speed threshold for determination of the in-
motion state for the purpose of this section must not be 
configurable to greater than 5 miles per hour.
    If an ELD is required to have a link to the vehicle's engine 
ECM, vehicle speed information must be acquired from the engine ECM. 
Otherwise, vehicle speed information must be acquired using an 
independent source apart from the positioning services described 
under section 4.3.1.6 and must be accurate within 3 
miles per hour of the CMV's true ground speed for purposes of 
determining the in-motion state for the CMV.

4.3.1.3. Vehicle Miles

    An ELD must monitor vehicle miles as accumulated by a CMV over 
the course of an ignition power on cycle (accumulated vehicle miles) 
and over the course of CMV's operation (total vehicle miles). 
Vehicle miles information must use or must be converted to units of 
whole miles.
    If the ELD is required to have a link to the vehicle's engine 
ECM as specified in section 4.2:
    (1) The ELD must monitor the engine ECM's odometer message 
broadcast and use it to log total vehicle miles information; and
    (2) The ELD must use the odometer message to determine 
accumulated vehicle miles since engine's last power on instance.
    Otherwise, the accumulated vehicle miles indication must be 
obtained or estimated from a source that is accurate to within 
10% of miles accumulated by the CMV over a 24-hour 
period as indicated on the vehicle's odometer display.

4.3.1.4. Engine Hours

    An ELD must monitor engine hours of the CMV over the course of 
an ignition power on cycle (elapsed engine hours) and over the 
course of the CMV's operation total engine hours. Engine hours must 
use or must be converted to hours in intervals of a tenth of an 
hour.
    If an ELD is required to have a link to the vehicle's engine 
ECM, the ELD must monitor engine ECM's total engine hours message 
broadcast and use it to log total engine hours information. 
Otherwise, engine hours must be obtained or estimated from a source 
that monitors the ignition power of the CMV and must be accurate 
within 0.1 hour of the engine's total operation within a 
given ignition power on cycle.

4.3.1.5. Date and Time

    The ELD must obtain and record the date and time information 
automatically without allowing any external input or interference 
from a motor carrier, driver, or any other person.
    The ELD time must be synchronized to Coordinated Universal Time 
(UCT) and the absolute deviation from UCT must not exceed 10 minutes 
at any point in time.

4.3.1.6. CMV Position

    An ELD must have the capability to automatically determine the 
position of the CMV in standard latitude/longitude coordinates with 
the accuracy and availability requirements of this section.
    ELD must obtain and record this information without allowing any 
external input or interference from a motor carrier, driver, or any 
other person.
    CMV position measurement must be accurate to 0.5 
mile of absolute position of the CMV when an ELD measures a valid 
latitude/longitude coordinate value.
    Position information must be obtained in or converted into 
standard signed latitude and longitude values and must be expressed 
as decimal degrees to hundreds of a degree precision (i.e., a 
decimal point and two decimal places).
    Measurement accuracy combined with the reporting precision 
requirement implies that position reporting accuracy will be in the 
order of 1mile of absolute position of the CMV during 
the course of a CMV's commercial operation.
    During periods of a driver's indication of personal use of the 
CMV, measurement reporting precision requirement is further reduced 
to be expressed as decimal degrees to tenths of a degree (i.e. a 
decimal point and single decimal place) as further specified in 
section 4.7.3.
    An ELD must be able to acquire a valid position measurement at 
least once every 5 miles of driving; however, CMV location 
information is only recorded during ELD events as specified in 
section 4.5.1.

4.3.1.7. CMV VIN

    The vehicle identification number (VIN) for the power unit of a 
CMV must be automatically obtained from the engine ECM and recorded 
if it is available on the vehicle databus.

4.3.2. Driver's Manual Entries

    An ELD must prompt the driver to input information into the ELD 
only when the CMV is stationary and driver's duty status is not on-
duty driving, except for the condition specified in section 4.4.1.2.
    If the driver's duty status is driving, an ELD must only allow 
the driver who is operating the CMV to change the driver's duty 
status to another duty status.
    A stopped vehicle must maintain zero (0) miles per hour speed to 
be considered stationary for purposes of information entry into an 
ELD.
    An ELD must allow an authenticated co-driver who is not driving, 
but who has logged into the ELD prior to the vehicle being in motion 
to make entries over his or her own records when the vehicle is in 
motion. The ELD must not allow co-drivers to switch driving roles 
when the vehicle is in motion.

4.3.2.1. Driver's Entry of Required Event Data Fields

    An ELD must provide a means for a driver to manually enter 
information pertaining to driver's ELD records such as CMV power 
unit number as specified in section 7.1.4, trailer number(s) as 
specified in section 7.1.41 and shipping document number as 
specified in 7.1.38.
    If these fields are populated automatically by motor carrier's 
ELD system, the ELD must provide means for the driver to review such 
information and make corrections as necessary.

4.3.2.2. Driver's Status Inputs

4.3.2.2.1. Driver's Indication of Duty Status

    An ELD must provide a means for the authenticated driver to 
select a driver's duty status. The ELD must use the ELD duty status 
categories listed in Table 1.

                     Table 1--Duty Status Categories
------------------------------------------------------------------------
          Duty status                Abbreviation          Data coding
------------------------------------------------------------------------
Off Duty......................  OFF...................                 1
Sleeper Berth.................  SB....................                 2
Driving.......................  D.....................                 3
On-duty Not Driving...........  ON....................                 4
------------------------------------------------------------------------


[[Page 17698]]

4.3.2.2.2. Driver's Indication of Situations Impacting Driving Time 
Recording

    An ELD must provide means for a driver to indicate the beginning 
and end of a period when the driver may use the CMV for authorized 
personal use, or for performing yard moves. The ELD must acquire 
this status in a standard format from the category list in Table 2. 
This list must be supported independent of the duty status 
categories described in section 4.3.2.2.1.

   Table 2--Categories for Driver's Indication of Situations Impacting
                         Driving Time Recording
------------------------------------------------------------------------
           Category                  Abbreviation          Data coding
------------------------------------------------------------------------
Authorized Personal Use of CMV  PC....................                 1
Yard Moves....................  YM....................                 2
Default: None.................  ......................                 0
------------------------------------------------------------------------

    An ELD must allow a driver to only select categories that a 
motor carrier enables by configuration for that driver, as described 
in section 4.3.3.1.1.
    An ELD must only allow one category to be selected at any given 
time and use the latest selection by the driver.
    The ELD must prompt the driver to enter an annotation upon 
selection of a category from Table 2 and record driver's entry.
    A driver's indication of special driving situation must reset to 
none if the ELD or CMV's engine goes through a power off cycle (ELD 
or CMV's engine turns off and then on) except if the driver has 
indicated authorized personal use of CMV, in which case, the ELD 
must require confirmation of continuation of the authorized personal 
use of CMV condition by the driver. If not confirmed by the driver 
and the vehicle is in motion, the ELD must default to none.

4.3.2.3. Driver's Certification of Records

    An ELD must include a function whereby a driver can certify the 
driver's records at the end of a 24-hour period. This function, when 
selected, must display a statement that reads ``I hereby certify 
that my data entries and my record of duty status for this 24-hour 
period are true and correct.'' Driver must be prompted to select 
``Agree'' or ``Not ready.'' Driver's affirmative selection of 
``Agree'' must be recorded as an event.
    An ELD must only allow the authenticated driver to certify 
records associated with that driver.
    If any edits are necessary after the driver certifies the 
records for a given 24-hour period, the ELD must require and prompt 
the driver to re-certify the updated records.
    If there are any past records on the ELD (excluding the current 
24-hour period) that requires certification or re-certification by 
the driver, the ELD must indicate the required driver action on the 
ELD's display and prompt the driver to take the necessary action 
during the login and logout processes.

4.3.2.4. Driver's Data Transfer Initiation Input

    An ELD must provide a standardized single-step driver interface 
for compilation of driver's ELD records and initiation of the data 
transfer to authorized safety officials when requested during a 
roadside inspection.
    The ELD must input the data transfer request from the driver, 
require confirmation, present and request selection of the supported 
data transfer options by the ELD, and prompt for entry of the output 
file comment as specified in section 4.3.2.5. Upon confirmation, the 
ELD must generate the compliant output file and perform the data 
transfer.
    The supported single-step data transfer initiation mechanism 
(such as a switch or an icon on a touch-screen display) must be 
clearly marked and visible to the driver when the vehicle is 
stopped.

4.3.2.5. Driver's Entry of an Output File Comment

    An ELD must accommodate the entry of an output file comment up 
to 60 characters long. If an authorized safety official provides a 
key phrase or code during an inspection to be included in the output 
file comment, it must be entered and embedded into the electronic 
ELD records in the exchanged dataset as specified in section 
4.8.2.1.1. The default value for the output file comment must be 
blank. This output file comment must be used only for the creation 
of the related data files for the intended time, place, and ELD 
user.

4.3.2.6. Driver's Annotation of Records

    An ELD must allow for a driver to add annotations in text format 
to recorded, entered, or edited ELD events.
    The ELD must require annotations to be 4 characters or longer, 
including embedded spaces if driver annotation is required and 
driver is prompted by the ELD.

4.3.2.7. Driver's Entry of Location Information

    An ELD must allow manual entry of a CMV's location by the driver 
in text format in support of the driver edit requirements described 
in section 4.3.2.8.
    Driver's manual location entry must be available as an option to 
a driver only when prompted by the ELD under allowed conditions as 
described in section 4.6.1.4.
    A manual location entry must show ``M'' in the latitude/
longitude coordinates fields in ELD records.

4.3.2.8. Driver's Record Entry/Edit

    An ELD must provide a mechanism for a driver to review, edit, 
and annotate the driver's ELD records when a notation of errors or 
omissions is necessary or enter the driver's missing ELD records 
subject to the requirements specified in this section.
    An ELD must not permit alteration or erasure of the original 
information collected concerning the driver's ELD records or 
alteration of the source data streams used to provide that 
information.

4.3.2.8.1. Mechanism for Driver Edits and Annotations

    If a driver edits or annotates an ELD record or enters missing 
information the act must not overwrite the original record.
    The ELD must use the process outlined in section 4.4.4.2 to 
configure required event attributes to track the edit history of 
records.
    Driver edits must be accompanied by an annotation. The ELD must 
prompt the driver to annotate edits.

4.3.2.8.2. Driver Edit Limitations

    An ELD must not allow or require the editing or manual entry of 
records with the following event types, as described in section 
7.1.24:

------------------------------------------------------------------------
             Event Type                           Description
------------------------------------------------------------------------
2...................................  An intermediate log,
5...................................  A driver's login/logout activity,
6...................................  CMV's engine power up/shut down,
                                       or
7...................................  ELD malfunctions and data
                                       diagnostic events.
------------------------------------------------------------------------

    An ELD must not allow automatically recorded driving time to be 
shortened. An ELD must not allow the ELD username associated with an 
ELD record to be edited or reassigned, except under the following 
circumstances:
    (1) Assignment of Unidentified Driver records. ELD events 
recorded under the ``Unidentified Driver'' profile may be edited and 
assigned to the driver associated with the record; and
    (2) Correction of errors with team drivers. In the case of team 
drivers, the driver account associated with the driving time records 
may be edited and reassigned between the team drivers if there was a 
mistake resulting in a mismatch between the actual driver and the 
driver recorded by the ELD and if the team drivers were both 
indicated in each other's records as a co-driver. The ELD must 
require each co-driver to confirm the change for the corrective 
action to take effect.

4.3.3. Motor Carrier's Manual Entries

    An ELD must restrict availability of motor carrier entries 
outlined in this subsection only to authenticated ``support 
personnel'' account holders.

4.3.3.1. ELD Configuration

    If an ELD or a technology that includes an ELD function offers 
configuration options to the motor carrier or the driver that are 
not otherwise addressed or prohibited in this appendix, the 
configuration options must not

[[Page 17699]]

affect the ELD's compliance with the requirements of this rule for 
each configuration setting of the ELD.

4.3.3.1.1. Configuration of Available Categories Impacting Driving Time 
Recording

    An ELD must allow a motor carrier to unilaterally configure the 
availability of each of the three categories listed on Table 2 that 
the motor carrier chooses to authorize for each of its drivers. By 
default, none of these categories must be available to a new driver 
account without the motor carrier proactively configuring their 
availability.
    A motor carrier may change the configuration for the 
availability of each category for each of its drivers. Changes to 
the configuration setting must be recorded on the ELD and 
communicated to the applicable authenticated driver during the ELD 
login process.

4.3.3.1.2. Configuration of Using ELDs

    An ELD must provide the motor carrier an ability to configure a 
driver account exempt from use of an ELD.
    The ELD must default the setting of this configuration option 
for each new driver account created on an ELD to no exemption. An 
exemption must be proactively configured for an applicable driver 
account by the motor carrier. The ELD must prompt the motor carrier 
to annotate the record and provide an explanation for the 
configuration of exemption.
    If a motor carrier configures a driver account to be exempt, the 
ELD must present the configured indication that is in effect for 
that driver during the ELD login and logout processes.
    If a motor carrier configures a driver account as exempt the ELD 
must continue to record ELD driving time but suspend detection of 
missing data elements data diagnostic event for the driver described 
in section 4.6.1.5 and data transfer compliance monitoring function 
described in section 4.6.1.7 when such driver is authenticated on 
the ELD.

4.3.3.2. Motor Carrier's Post-Review Electronic Edit Requests

    An ELD may allow the motor carrier (via a monitoring algorithm 
or support personnel) to screen, review, and request corrective 
edits to the driver's certified (as described in section 4.3.2.3) 
and submitted records through the ELD system electronically. If this 
function is implemented by the ELD, the ELD must also support 
functions for the driver to see and review the requested edits.
    Edits requested by anyone or any system other than the driver 
must require the driver's electronic confirmation or rejection.

4.4. ELD Processing and Calculations

4.4.1. Conditions for Automatic Setting of Duty Status

4.4.1.1. Automatic Setting of Duty Status to Driving

    An ELD must automatically record driving time when the vehicle 
is in motion by setting duty status to driving for the driver 
unless, before the vehicle is in motion, the driver:
    (1) Sets the duty status to off-duty and indicates personal use 
of CMV, in which case duty status must remain off-duty until 
driver's indication of the driving condition ends; or
    (2) Sets the duty status to on-duty not driving and indicates 
yard moves, in which case duty status must remain on-duty not 
driving until driver's indication of the driving condition ends.

4.4.1.2. Automatic Setting of Duty Status to On-Duty Not Driving

    When the duty status is set to driving, and the CMV has not been 
in-motion for 5 consecutive minutes, the ELD must prompt the driver 
to confirm continued driving status or enter the proper duty status. 
If the driver does not respond to the ELD prompt within 1-minute 
after receiving the prompt, the ELD must automatically switch the 
duty status to on-duty not driving. The time thresholds for purposes 
of this section must not be configurable.

4.4.1.3. Other Automatic Duty-Status Setting Actions Prohibited

    An ELD must not feature any other automatic records of duty 
setting mechanism than those described in sections 4.4.1.1 and 
4.4.1.2. Duty status changes that are not initiated by the driver, 
including duty status alteration recommendations by motor carrier 
support personnel or a software algorithm, are subject to motor 
carrier edit requirements in section 4.3.3.2.

4.4.2. Geo-Location Conversions

    For each change in duty status, the ELD must convert 
automatically captured vehicle position in latitude/longitude 
coordinates into geo-location information, indicating approximate 
distance and direction to an identifiable location corresponding to 
the name of a nearby city, town, or village, with a State 
abbreviation.
    Geo-location information must be derived from a database that 
contains all cities, towns, and villages with a population of 5,000 
or greater and listed in ANSI INCITS 446-2008 (incorporated by 
reference, see Sec.  395.38), reference (3)(a) in section 6 of this 
appendix.
    An ELD's viewable outputs (such as printouts or displays) must 
feature geo-location information as place names in text format.

4.4.3. Date and Time Conversions

    An ELD must have the capability to convert and track date and 
time captured in UTC standard to the time standard in effect at 
driver's home terminal, taking the daylight savings time changes 
into account by using the parameter ``Time Zone Offset from UTC'' as 
specified in section 7.1.40.
    An ELD must record the driver's record of duty status 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.
    The data element ``Time Zone Offset from UTC'' must be included 
in the ``Driver's certification of Own Records'' events as specified 
in section 4.5.1.4.

4.4.4. Setting of Event Parameters in Records, Edits, and Entries

    This section describes the security measures for configuring and 
tracking event attributes for ELD records, edits, and entries in a 
standardized manner.
    4.4.4.1. Event Sequence Identifier (ID) Number
    Each ELD event must feature an event sequence ID Number.
    The event sequence ID number for each ELD must use continuous 
numbering across all users of that ELD and across engine and ELD 
power on and off cycles.
    An ELD must use the next available event sequence ID number 
(incremented by one) each time a new event log is recorded.
    Event sequence ID number must track at least the last 65,536 
unique events recorded on the ELD.
    The continuous event sequence ID numbering structure used by the 
ELD must be mapped into a continuous hexadecimal number between 0000 
(Decimal 0) and FFFF (Decimal 65535).

4.4.4.2. Event Record Status, Event Record Origin, Event Type Setting

    An ELD must retain the original records even when allowed edits 
and entries are made over a driver's ELD records.
    An ELD must keep track of all event record history, and the 
process used by the ELD must produce the event record status, event 
record origin, and event type for the ELD records in the standard 
categories specified in sections 7.1.22, 7.1.21 and 7.1.24, 
respectively for each record as a standard security measure. For 
example, an ELD may use the process outlined in sections 4.4.4.2.1-
4.4.4.2.6 to meet the requirements of this section.

4.4.4.2.1. Records Automatically Logged by ELD

    At the instance an ELD creates a record automatically, the ELD 
must:
    (1) Set the ``Event Record Status'' to ``1'' (active); and
    (2) Set the ``Event Record Origin'' to ``1'' (automatically 
recorded by ELD).

4.4.4.2.2. Driver Edits

    At the instance of a driver editing existing record(s), the ELD 
must:
    (1) Identify the ELD record(s) being modified for which the 
``Event Record Status'' is currently set to ``1'' (active);
    (2) Acquire driver input for the intended edit and construct the 
ELD record(s) that will replace the record(s) identified in (1) 
above;
    (3) Set the ``Event Record Status'' of the ELD record(s) 
identified in (1) above, which is being modified, to ``2'' 
(inactive-changed);
    (4) Set the ``Event Record Status'' of the ELD record(s) 
constructed in (2) above to ``1'' (active); and
    (5) Set the ``Event Record Origin'' of the ELD record(s) 
constructed in (2) above to ``2'' (edited or entered by the driver).

4.4.4.2.3. Driver Entries

    When a driver enters missing record(s), the ELD must:
    (1) Acquire driver input for the missing entries being 
implemented and construct the new ELD record(s) that will represent 
the driver entries;
    (2) Set the ``event record status'' of the ELD record(s) 
constructed in (1) above to ``1'' (active); and

[[Page 17700]]

    (3) Set the ``event record origin'' of the ELD record(s) 
constructed in (1) above to ``2'' (edited or entered by the driver).

4.4.4.2.4. Driver's Assumption of Unidentified Driver Logs

    When a driver reviews and assumes ELD record(s) logged under the 
unidentified driver profile, the ELD must:
    (1) Identify the ELD record(s) logged under the unidentified 
driver profile that will be reassigned to the driver;
    (2) Use elements of the unidentified driver log(s) from (1) 
above and acquire driver input to populate missing elements of the 
log originally recorded under the unidentified driver profile, and 
construct the new event record(s) for the driver;
    (3) Set the event record status of the ELD record(s) identified 
in (1) above, which is being modified, to ``2'' (inactive-changed);
    (4) Set the event record status of the ELD record(s) constructed 
in (2) above to ``1'' (active); and
    (5) Set the event record origin of the ELD record(s) constructed 
in (2) above to ``4'' (assumed from unidentified driver profile).

4.4.4.2.5. Motor Carrier Edit Suggestions

    If a motor carrier requests an edit on a driver's records 
electronically, the ELD must:
    (1) Identify the ELD record(s) being requested to be modified 
for which the ``event record status'' is currently set to ``1'' 
(active);
    (2) Acquire motor carrier input for the intended edit and 
construct the ELD record(s) that will replace the record identified 
in (1) above --if approved by the driver;
    (3) Set the event record status of the ELD record(s) in (2) 
above to ``3'' (inactive-change requested); and
    (4) Set the event record origin of the ELD record constructed in 
(2) above to ``3'' (edit requested by an authenticated user other 
than the driver).

4.4.4.2.6. Driver's Actions Over Motor Carrier Edit Suggestions

    (1) If edits are requested by the motor carrier to the driver 
over a driver's records electronically, the ELD must implement 
functions for the driver to review the requested edits, see their 
effects and indicate on the ELD whether the driver confirms or 
rejects the requested edit(s).
    (2) If the driver approves the motor carrier's edit suggestion 
the ELD must:
    (a) Set the event record status of the ELD record(s) identified 
under section 4.4.4.2.5(1) being modified, to ``2'' (inactive-
changed); and
    (b) Set the ``event record status'' of the ELD record(s) 
constructed in 4.4.4.2.5(2) to ``1'' (active).
    (3) If the driver disapproves the motor carrier's edit(s) 
suggestion, the ELD must set the ``event record status'' of the ELD 
record(s) identified in 4.4.4.2.5(2) to ``4'' (inactive-change 
rejected).

4.4.5. Data Integrity Check Functions

    An ELD must support standard security measures which require the 
calculation and recording of standard data check values for each ELD 
event recorded, for each line of the output file, and for the entire 
data file to be generated for transmission to an authorized safety 
official or the motor carrier.
    For purposes of implementing data check calculations, the 
alphanumeric-to-numeric mapping provided in Table 3 must be used.
    Each ELD event record type specified in sections 4.5.1.1 and 
4.5.1.3 must include an event data check value, which must be 
calculated as specified in section 4.4.5.1. An event data check 
value must be calculated at the time of the following instances and 
must accompany that event record thereafter:
    (1) When an event record is automatically created by the ELD;
    (2) When an authorized edit is performed by the driver on the 
ELD or on its support systems; and
    (3) When an electronic edit proposal is created by the motor 
carrier through the ELD system.
    Each line of the ELD output file must include a line data check 
value, which must be calculated as specified in section 4.4.5.2.
    Each ELD report must also include a file data check value, which 
must be calculated as specified in section 4.4.5.3.

4.4.5.1. Event Data Check

    The event data check value must be calculated as follows.

4.4.5.1.1. Event Checksum Calculation

    A checksum calculation includes the summation of numeric values 
or mappings of a specified group of alphanumeric data elements. The 
ELD must calculate an event checksum value associated with each ELD 
event at the instance of the event record being created.
    The event record elements that must be included in the checksum 
calculation are the following:
    (1) ,
    (2) ,
    (3) ,
    (4) ,
    (5) ,
    (6) ,
    (7) ,
    (8) ,
    (9) , and
    (10) < ELD username>.
    The ELD must sum the numeric values of all individual characters 
making up the listed data elements using the character to decimal 
value coding specified in Table 3, and use the 8-bit lower byte of 
the hexadecimal representation of the summed total as the event 
checksum value for that event.

4.4.5.1.2. Event Data Check Calculation

    The event data check value must be the hexadecimal 
representation of the output 8-bit byte, after the below bitwise 
operations are performed on the binary representation of the event 
checksum value, as set forth below:
    (1) Three consecutive circular shift left (rotate no carry -
left) operations; and
    (2) A bitwise exclusive OR (XOR) operation with the hexadecimal 
value C3 (decimal 195; binary 11000011).

4.4.5.2. Line Data Check

    A line data check value must be calculated at the time of the 
generation of the ELD output file, to transfer data to authorized 
safety officials or to catalogue drivers' ELD records at a motor 
carrier's facility. A line data check value must be calculated as 
follows.

4.4.5.2.1. Line Checksum Calculation

    The ELD must calculate a line checksum value associated with 
each line of ELD output file at the instance when an ELD output file 
is generated.
    The data elements that must be included in the line checksum 
calculation vary as per the output data file specified in section 
4.8.2.1.
    The ELD must convert each character featured in a line of output 
using the character to decimal value coding specified on Table 3 and 
sum the converted numeric values of each character listed on a given 
ELD output line item (excluding the line data check value being 
calculated), and use the 8-bit lower byte value of the hexadecimal 
representation of the summed total as the line checksum value for 
that line of output.

4.4.5.2.2. Line Data Check Calculation

    The line data check value must be calculated by performing the 
following operations on the binary representation of the line 
checksum value as follows:
    (1) Three consecutive circular shift left (rotate no carry-left) 
operations on the line checksum value; and
    (2) A bitwise XOR operation with the hexadecimal value 96 
(decimal 150; binary 10010110).

4.4.5.2.3. Line Data Check Value Inclusion in Output File

    The calculated line data check value must be appended as the 
last line item of each of the individual line items of the ELD 
output file as specified in the output file format in section 
4.8.2.1.

4.4.5.3. File Data Check

    A file data check value must also be calculated at the time of 
the creation of an ELD output file. A file data check value must be 
calculated as follows.

4.4.5.3.1. File Checksum Calculation

    The ELD must calculate a single 16-bit file checksum value 
associated with an ELD output file at the instance when an ELD 
output file is generated.
    The file data check value calculation must include all 
individual line data check values contained in that file.
    The ELD must sum all individual line data check values contained 
in a data file output created, and use the lower two 8-bit byte 
values of the hexadecimal representation of the summed total as the 
``file checksum'' value.

4.4.5.3.2. File Data Check Value Calculation

    The file data check value must be calculated by performing the 
following operations on the binary representation of the file 
checksum value:
    (1) Three consecutive circular shift left (aka rotate no carry -
left) operations on each 8-bit bytes of the value; and
    (2) A bitwise XOR operation with the hexadecimal value 969C 
(decimal 38556; binary 1001011010011100).
    The file data check value must be the 16-bit output obtained 
from the above process.

[[Page 17701]]

4.4.5.3.3. File Data Check Value Inclusion in Output File

    The calculated 16-bit file data check value must be converted to 
hexadecimal 8-bit bytes and must be appended as the last line item 
of the ELD output file as specified in the output file format in 
section 4.8.2.1.11.
BILLING CODE 4190-EX-P
[GRAPHIC] [TIFF OMITTED] TP28MR14.001


[[Page 17702]]


BILLING CODE 4190-EX-C

4.5. ELD Recording

4.5.1. Events and Data to Record

    An ELD must record data at the following discrete events:

4.5.1.1. Event: Change in Driver's Duty Status

    When a driver's duty status changes, the ELD must associate the 
record with the driver, the record originator--if created during an 
edit or entry--the vehicle, the motor carrier, and the shipping 
document number and must include the following data elements:
    (1)  as described in section 7.1.23;
    (2)  as described in section 7.1.22;
    (3)  as described in section 7.1.21;
    (4)  as described in section 7.1.24;
    (5)  as described in section 7.1.19;
    (6) <{Event{time}  Date> as described in section 7.1.8;
    (7) <{Event{time}  Time> as described in section 7.1.39;
    (8) <{Accumulated{time}  Vehicle Miles> as described in section 
7.1.42;
    (9) <{Elapsed{time}  Engine Hours> as described in section 
7.1.18;
    (10) <{Event{time}  Latitude> as described in section 7.1.30;
    (11) <{Event{time}  Longitude> as described in section 7.1.32;
    (12)  as described in 
section 7.1.9;
    (13)  as described 
in section 7.1.34;
    (14)  
as described in section 7.1.7;
    (15) <{Event{time}  Comment/Annotation> as described in section 
7.1.6;
    (16)  as described in section 
7.1.12; and
    (17)  as described in section 7.1.20.

4.5.1.2. Event: Intermediate Logs

    When a CMV is in motion, as described in section 4.3.1.2, and 
there has not been a duty status change event or another 
intermediate log event recorded in the previous 1-hour period, the 
ELD must record a new intermediate log event.
    The ELD must associate the record to the driver, the vehicle, 
the motor carrier, and the shipping document number, and must 
include the same data elements outlined in section 4.5.1.1 except 
for item (16).

4.5.1.3. Event: Change in Driver's Indication of Allowed Conditions 
That Impact Driving Time Recording

    At each instance when the status of a driver's indication of 
personal use of CMV or yard moves changes, the ELD must record a new 
event. The ELD must associate the record with the driver, the 
vehicle, the motor carrier, and the shipping document number, and 
must include the same data elements outlined in section 4.5.1.1.

4.5.1.4. Event: Driver's Certification of Own Records

    At each instance when a driver certifies or re-certifies that 
driver's records for a given 24-hour period are true and correct, 
the ELD must record the event. The ELD must associate the record 
with the driver, the vehicle, the motor carrier, and the shipping 
document number and must include the following data elements:
    (1)  as described in section 7.1.23;
    (2)  as described in section 7.1.24;
    (3)  as described in section 7.1.19;
    (4)