49 Cfr 395

Monday,
April 5, 2010

Part II

Department of
Transportation
Federal Motor Carrier Safety
Administration

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49 CFR Parts 350, 385, 395, et al.
Electronic On-Board Recorders for Hoursof-Service Compliance; Final Rule

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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 350, 385, 395, and 396
[Docket No. FMCSA–2004–18940]
RIN 2126–AA89

Electronic On-Board Recorders for
Hours-of-Service Compliance

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AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: The Federal Motor Carrier
Safety Administration (FMCSA) amends
the Federal Motor Carrier Safety
Regulations (FMCSRs) to incorporate
new performance standards for
electronic on-board recorders (EOBRs)
installed in commercial motor vehicles
(CMVs) manufactured on or after June 4,
2012. On-board hours-of-service (HOS)
recording devices meeting FMCSA’s
current requirements and installed in
CMVs manufactured before June 4, 2012
may continue to be used for the
remainder of the service life of those
CMVs.
Motor carriers that have demonstrated
serious noncompliance with the HOS
rules will be subject to mandatory
installation of EOBRs meeting the new
performance standards. If FMCSA
determines, based on HOS records
reviewed during a compliance review,
that a motor carrier has a 10 percent or
greater violation rate (‘‘threshold rate
violation’’) for any HOS regulation listed
in the new Appendix C to part 385,
FMCSA will issue the carrier an EOBR
remedial directive. The motor carrier
will then be required to install EOBRs
in all of its CMVs regardless of their
date of manufacture and use the devices
for HOS recordkeeping for a period of 2
years, unless the carrier (i) already
equipped its vehicles with automatic
on-board recording devices (AOBRDs)
meeting the Agency’s current
requirements under 49 CFR 395.15 prior
to the finding, and (ii) demonstrates to
FMCSA that its drivers understand how
to use the devices.
The FMCSA also changes the safety
fitness standard to take into account a
remedial directive when determining
fitness. Additionally, to encourage
industry-wide use of EOBRs, FMCSA
revises its compliance review
procedures to permit examination of a
random sample of drivers’ records of
duty status after the initial sampling,
and provides partial relief from HOS
supporting documents requirements, if
certain conditions are satisfied, for

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motor carriers that voluntarily use
compliant EOBRs.
Finally, because FMCSA recognizes
that the potential safety risks associated
with some motor carrier categories, such
as passenger carriers, hazardous
materials transporters, and new motor
carriers seeking authority to conduct
interstate operations in the United
States, are such that mandatory EOBR
use for such operations might be
appropriate, the Agency will initiate a
new rulemaking to consider expanding
the scope of mandatory EOBR use
beyond the ‘‘1 x 10’’ carriers that would
be subject to a remedial directive as a
result of today’s rule.
DATES: Effective Date: This final rule is
effective on June 4, 2010.
Compliance Date: Motor carriers must
comply with this final rule by June 4,
2012. The incorporation by reference of
certain publications listed in the rule is
approved by the Director of the Federal
Register as of June 4, 2010.
ADDRESSES:
Docket: For access to the docket to
read background documents including
those referenced in this document, or to
read comments received, go to http://
www.regulations.gov at any time or to
the ground floor, room W12–140, DOT
Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5
p.m. e.t., Monday through Friday,
except Federal holidays.
Privacy Act: Anyone is able to search
the electronic form for all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review U.S. Department of
Transportation’s (DOT) complete
Privacy Act Statement in the Federal
Register published on April 11, 2000
(65 FR 19476) or you may visit http://
dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Ms.
Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of
Bus and Truck Standards and
Operations, (202) 366–5370, Federal
Motor Carrier Safety Administration,
1200 New Jersey Avenue, SE.,
Washington, DC 20590–0001.
SUPPLEMENTARY INFORMATION: This
rulemaking notice is organized as
follows:
Table of Contents
I. Table of Abbreviations
II. Legal Basis for the Rulemaking
III. Executive Summary
IV. Discussion of Comments to the Notice of
Proposed Rulemaking
V. Rulemaking Analyses and Notices

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I. Table of Abbreviations
Following is a list of abbreviations
used in this document.
Advocates Advocates for Highway and
Auto Safety
AMSA American Moving and Storage
Association
ANPRM Advance Notice of Proposed
Rulemaking
ANSI American National Standards
Institute
AOBRDS Automatic On-Board Recording
Devices
ASCII American Standard Code for
Information Interchange
ATA American Trucking Associations
ATRI American Transportation Research
Institute
Boyle Boyle Transportation
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
CR Compliance Review
CSA 2010 Comprehensive Safety Analysis
2010
CVSA Commercial Vehicle Safety Alliance
D Driving
DOE U.S. Department of Energy
DOT U.S. Department of Transportation
EA Environmental Assessment
ECM Electronic Control Module
E.O. Executive Order
EOBR Electronic On-Board Recorder
EU European Union
FedEx FedEx Corporation
FHWA Federal Highway Administration
FIPS Publications Federal Information
Processing Standards Publications
FMCSA Federal Motor Carrier Safety
Administration
FMCSR Federal Motor Carrier Safety
Regulations
FMI Food Marketing Institute
FOIA Freedom of Information Act
FONSI Finding of No Significant Impact
FR Federal Register
GAO Government Accountability Office
GNIS Geographic Names Information
System
GPS Global Positioning System
Hazmat Hazardous Materials
HMTAA Hazardous Materials
Transportation Authorization Act of 1994
HOS Hours of Service
IBT International Brotherhood of Teamsters
ICC Interstate Commerce Commission
ICCTA ICC Termination Act of 1995
ICR Information Collection Request
IEEE Institute of Electrical and Electronic
Engineers
IIHS Insurance Institute for Highway Safety
IRFA Initial Regulatory Flexibility Analysis
ITEC International Truck and Engine
Corporation
J.B. Hunt J.B. Hunt Transport, Inc.
KonaWare KonaWare Transportation and
Logistics
LH Long Haul
Maryland SHA Maryland State Highway
Administration
Maverick Maverick Transportation, LLC
MCMIS Motor Carrier Management
Information System
MCSAP Motor Carrier Safety Assistance
Program
MCSIA Motor Carrier Safety Improvement
Act of 1999

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MTA Minnesota Trucking Association
NEPA National Environmental Policy Act
NHTSA National Highway Traffic Safety
Administration
1984 Act Motor Carrier Safety Act of 1984
1935 Act Motor Carrier Act of 1935
NPGA National Propane Gas Association
NPRDA Notice of Potential Remedial
Directive Applicability
NPRM Notice of Proposed Rulemaking
NPTC National Private Truck Council,
Incorporated
NTSB National Transportation Safety Board
NRMCA National Ready Mixed Concrete
Association
OBD On-Board Diagnostic
ODND On Duty Not Driving
OFF Off Duty
Ohio PUC Public Utilities Commission of
Ohio
OIG Office of the Inspector General
OMB Office of Management and Budget
ON On Duty
OOIDA Owner-Operator Independent
Drivers Association, Inc.
PDA Personal Digital Assistant
PII Personally Identifiable Information
PIA Privacy Impact Assessment
PMAA Petroleum Marketers Association of
America
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
Qualcomm Qualcomm Wireless Business
Solutions
RapidLog RapidLog Corporation
RF Radio Frequency
RIA Regulatory Impact Analysis
RITA Research and Innovative Technology
Administration
RODS Records of Duty Status
RP Recommended Practice
SafeStat Motor Carrier Safety Status
Measuring System
SAFETEA–LU Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A
Legacy for Users
SB Sleeper Berth
SBA Small Business Association
SC&RA Specialized Carriers & Rigging
Association
SEA Safety Evaluation Area
SEISNOSE Significant Economic Impact on
a Substantial Number of Small Entities
SFRM Safety Fitness Rating Methodology
SH Short Haul
Siemens Siemens AG
SNPRM Supplemental Notice of Proposed
Rulemaking
Stat. Statutes
TCA Truckload Carriers Association
TEA–21 Transportation Equity Act for the
21st Century
TMC TPA Technology and Maintenance
Council’s Technical Policy Advisory
Tripmaster Tripmaster Corporation
UMTRI University of Michigan
Transportation Institute
U.S.C. United States Code
UTC Coordinated Universal Time
Verigo Verigo Incorporated
VSL Value of a Statistical Life
Werner Werner Enterprises, Incorporated
XATA XATA Corporation
Xora Xora, Incorporated

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II. Legal Basis for the Rulemaking
The Motor Carrier Act of 1935 (Pub.
L. 74–255, 49 Stat. 543, August 9, 1935,
now codified at 49 U.S.C. 31502(b)) (the
1935 Act) provides ‘‘the Secretary of
Transportation may prescribe
requirements for (1) qualifications and
maximum hours of service of employees
of, and safety of operation and
equipment of, a motor carrier; and (2)
qualifications and maximum hours of
service of employees of, and standards
of equipment of, a motor private carrier,
when needed to promote safety of
operation.’’ This final rule addresses
‘‘safety of operation and equipment’’ of
motor carriers and ‘‘standards of
equipment’’ of motor private carriers
and, as such, is well within the
authority of the 1935 Act. Today’s final
rule allows motor carriers to use
Electronic On-Board Recorders (EOBRs)
in their commercial motor vehicles
(CMVs) to document drivers’
compliance with the HOS requirements;
requires some noncompliant carriers to
install, use, and maintain EOBRs for this
purpose; and updates existing
performance standards for on-board
recording devices.
The Motor Carrier Safety Act of 1984
(Pub. L. 98–554, Title II, 98 Stat. 2832,
October 30, 1984) (the 1984 Act)
provides concurrent authority to
regulate drivers, motor carriers, and
vehicle equipment. It requires the
Secretary to ‘‘prescribe regulations on
commercial motor vehicle safety. The
regulations shall prescribe minimum
safety standards for commercial motor
vehicles. At a minimum, the regulations
shall ensure that—(1) Commercial motor
vehicles are maintained, equipped,
loaded, and operated safely; (2) the
responsibilities imposed on operators of
commercial motor vehicles do not
impair their ability to operate the
vehicles safely; (3) the physical
condition of operators of commercial
motor vehicles is adequate to enable
them to operate the vehicles safely
* * *; and (4) the operation of
commercial motor vehicles does not
have a deleterious effect on the physical
condition of the operators’’ (49 U.S.C.
31136(a)).
Section 211(b) of the 1984 Act also
grants the Secretary broad power, in
carrying out motor carrier safety statutes
and regulations, to ‘‘prescribe
recordkeeping and reporting
requirements’’ and to ‘‘perform other
acts the Secretary considers
appropriate’’ (49 U.S.C. 31133(a)(8) and
(10)).
The HOS regulations are designed to
ensure that driving time—one of the
principal ‘‘responsibilities imposed on

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operators of commercial motor
vehicles’’—does ‘‘not impair their ability
to operate the vehicles safely.’’ (49
U.S.C. 31136(a)(2)). EOBRs that are
properly designed, used, and
maintained will enable motor carriers to
track their drivers’ on-duty driving
hours accurately, thus minimizing
regulatory violations or excessive
driving, and schedule vehicle and driver
operations more efficiently. Driver
compliance with the HOS rules helps
ensure ‘‘the physical condition of
operators of commercial motor vehicles
is adequate to enable them to operate
the vehicles safely’’ (49 U.S.C.
31136(a)(3)). To assist in the
enforcement of the HOS regulations
generally, FMCSA is requiring EOBR
use by motor carriers with the most
serious HOS compliance deficiencies
(‘‘threshold rate violations’’), as
described elsewhere in this final rule.
The Agency considered whether this
final rule would impact driver health
under 49 U.S.C. 31136(a)(3) and (a)(4).
To the extent the final rule has any
effect on the physical condition of
drivers, because the rule is expected to
increase compliance with the HOS
regulations the effect is unlikely to be
deleterious. (See the discussion
regarding health impacts at section 8.4.
and Appendix A in the Environmental
Assessment (EA).)
The requirements in 49 U.S.C.
31136(a)(1) concerning safe motor
vehicle maintenance, equipment, and
loading are not germane to this final
rule, as EOBRs influence driver
operational safety rather than vehicular
and mechanical safety. Consequently,
the Agency has not explicitly assessed
the final rule against that requirement.
However, to the limited extent 49 U.S.C.
31136(a)(1) pertains specifically to
driver safety and safe operation of
commercial vehicles, the Agency has
taken this statutory requirement into
account throughout the final rule. Also,
before prescribing any regulations,
FMCSA must also consider their ‘‘costs
and benefits.’’ (49 U.S.C. 31136 (c)(2)(A)
and 31502(d)). The Agency has taken
these statutory requirements into
account throughout the final rule.
In addition, section 408 of the ICC
Termination Act of 1995 (Pub. L. 104–
88, 109 Stat. 803, 958, December 29,
1995) (ICCTA) requires the Agency to
issue an advance notice of proposed
rulemaking (ANPRM) ‘‘dealing with a
variety of fatigue-related issues
pertaining to commercial motor vehicle
safety (including * * * automated and
tamper-proof recording devices * * *)
not later than March 1, 1996.’’ The
original ANPRM under section 408 of
ICCTA was published on November 5,

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1996 (61 FR 57252), the notice of
proposed rulemaking (NPRM) on May 2,
2000 (65 FR 25540), and the final rule
on April 28, 2003 (68 FR 22456). For a
number of reasons, including lack of
adequate cost and benefit data, FMCSA
decided not to adopt EOBR regulations
in 2003. FMCSA noted, however, that it
planned ‘‘to continue research on EOBRs
and other technologies, seeking to
stimulate innovation in this promising
area’’ (68 FR 22456, 22488, April 28,
2003).
Section 113(a) of the Hazardous
Materials Transportation Authorization
Act of 1994 (Pub. L. 103–311, 108 Stat.
1673, 1676, August 26, 1994) (HMTAA)
required the Secretary to prescribe
regulations to improve (A) compliance
by commercial motor vehicle drivers
and motor carriers with HOS
requirements; and (B) the effectiveness
and efficiency of Federal and State
enforcement officers reviewing such
compliance. HMTAA section 113(b)(1)
states that such regulations must allow
for a written or electronic document
‘‘* * * to be used by a motor carrier or
by an enforcement officer as a
supporting document to verify the
accuracy of a driver’s record of duty
status.’’ Today’s rule sets forth
performance standards, incentives
measures, and remedial requirements
for use of devices that generate
electronic documents, and addresses the
HMTAA mandate.
Section 9104 of the Truck and Bus
Safety and Regulatory Reform Act (Pub.
L. 100–690, title IX, subtitle B, 102 Stat.
4181, 4529, November 18, 1988) also
anticipates the Secretary prescribing ‘‘a
regulation about the use of monitoring
devices on commercial motor vehicles
to increase compliance by operators of
the vehicles with HOS regulations,’’ and
requires the Agency to ensure any such
device is not used to ‘‘harass vehicle
operators’’ (49 U.S.C. 31137(a)). Section
4012 of the Transportation Equity Act
for the 21st Century (Pub. L. 105–178),
112 Stat. 107, 408–409, June 9, 1998)
(TEA–21) makes inapplicable to drivers
of utility service vehicles, during an
emergency period of not more than 30
days, regulations issued under 49 U.S.C.
31502 or 31136 regarding ‘‘the
installation of automatic recording
devices associated with establishing the
maximum driving and on-duty times’’
(49 U.S.C. 31502(e)(1)(C)). The Agency
has taken these statutory requirements
into account throughout the final rule.
Based on the legislative framework
reviewed previously, FMCSA has
statutory authority to adopt an industrywide requirement that all motor carriers
subject to HOS requirements under 49
CFR part 395 install and use EOBR-

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based systems. The Agency has adopted
a more targeted approach in this final
rule, consistent with the scope of the
NPRM which limits the current
rulemaking proceeding to compliancebased regulatory approaches
implemented through a remedial
directive. However, the Agency will
publish a separate notice initiating a
new rulemaking in the near future to
consider expanding the scope of
mandatory EOBR use beyond the
standard set in this rule, consistent with
its full authority and based upon new
data and analyses.
In this final rule, the Agency
establishes criteria for identifying
carriers with threshold rates of HOS
violations. We also establish changes to
the safety fitness standard to ensure
imposition of a remedial directive to
install, use and maintain EOBRs is taken
into account when determining a
carrier’s safety fitness.
The determination of a carrier’s safety
fitness is well within the Secretary’s
authority. Section 215 of the 1984 Act
requires the Secretary to ‘‘determine
whether an owner or operator is fit to
operate safely commercial motor
vehicles,’’ (49 U.S.C. 31144(a)(1)) and to
‘‘maintain by regulation a procedure for
determining the safety fitness of an
owner or operator’’ (49 U.S.C. 31144(b)).
The procedure must include ‘‘specific
initial and continuing requirements
with which an owner or operator must
comply to demonstrate safety fitness’’
(49 U.S.C. 31144(b)(1)).
Section 4009 of TEA–21 prohibits
motor carriers found to be unfit,
according to a safety fitness
determination, from operating
commercial motor vehicles in interstate
commerce. With limited exceptions,
owners and operators determined to be
unfit may not operate commercial motor
vehicles in interstate commerce
beginning on the 61st day after the date
of such fitness determination, or the
46th day after such determination in the
case of carriers transporting passengers
or hazardous materials, ‘‘and until the
Secretary determines such owner or
operator is fit’’ (49 U.S.C. 31144(c)).
Section 4104 of the Safe, Accountable,
Flexible, Efficient Transportation Act: A
Legacy for Users (Pub. L. 109–59, 119
Stat. 1144, August 10, 2005)
(SAFETEA–LU) directs FMCSA to
revoke the registration of a motor carrier
that has been prohibited from operating
in interstate commerce for failure to
comply with the safety fitness
requirements of 49 U.S.C. 31144.
Section 4114(b) of SAFETEA–LU
expands FMCSA jurisdiction into
intrastate operations by amending 49
U.S.C. 31144(c) to further prohibit

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owners or operators of CMVs prohibited
from operating in interstate commerce
because FMCSA has determined they do
not meet the safety fitness requirement,
from operating any CMV that affects
interstate commerce until the Secretary
determines that such owner or operator
is fit.
III. Executive Summary
In its January 18, 2007 NPRM (72 FR
2340), FMCSA proposed three related
elements to address on-board electronic
devices for recording HOS information:
(1) An updated equipment standard in
light of technological advances; (2)
mandated use of EOBRs for motor
carriers that demonstrated a history of
severe noncompliance with the HOS
regulations; and (3) certain incentives to
encourage EOBR use by all motor
carriers. The second element,
concerning the mandated use of EOBRs,
was of greatest concern to commenters.
The FMCSA acknowledges the safety
concerns of Congress, the National
Transportation Safety Board (NTSB),
and the many organizations and
individuals that submitted comments to
the NPRM in support of a broader EOBR
mandate. The Agency has begun work to
evaluate regulatory options for
significantly expanding the population
of carriers covered by an EOBR
mandate.
However, the Agency cannot extend
the EOBR mandate beyond those
covered by this final rule because the
scope of the current rulemaking
proceeding is limited to compliancebased regulatory approaches,
implemented through a remedial
directive. Therefore, FMCSA will
examine the issue of a broader mandate
under a new rulemaking proceeding in
response to the safety concerns raised
by Congress, the NTSB, and commenters
to the docket.
As part of this activity, FMCSA also
intends to gather more information on
the voluntary use of EOBRs and to
assess how increases in the number of
units installed are influencing the costs
of purchase and operation.
In the meantime, focusing on motor
carriers with significant HOS
compliance problems is likely to
improve the safety of the motoring
public on the highways in the near term.
Consistent with the scope of the NPRM,
we are therefore adopting procedures for
issuance of remedial directives
requiring EOBR installation,
maintenance, and use by those motor
carriers with serious HOS
noncompliance.
As discussed in the EOBR Remedial
Directives section of this preamble,
FMCSA examined a variety of

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parameters that might be used to
establish subpopulations of motor
carriers with poor HOS compliance to
which an EOBR mandate might apply.
In focusing on the most severe
violations and the most chronic
violators, we are adopting a mandatoryinstallation ‘‘trigger’’ designed to single
out motor carriers that have a
demonstrated record of poor compliance
with HOS regulations. In today’s rule, as
proposed in the NPRM, we adopt an
EOBR mandatory-use requirement with
a compliance-based trigger. It applies to
motor carriers across all sectors that
have demonstrated poor compliance
with the HOS regulations. The NPRM
details the history of this rulemaking
and the alternatives considered (72 FR
2343).
Previously, an Agency proposal to
mandate EOBRs for CMVs used in longhaul and regional operations was
withdrawn (68 FR 22456, Apr. 28,
2003). The 2004 ANPRM (69 FR 53386)
invited comment on a sector-based
mandate (e.g., long-haul carriers only).
FMCSA considered such broader
mandates and discussed them again in
the NPRM, although they were not
ultimately pursued as regulatory
options. Instead, the NPRM focused on
which remedial directive option to
adopt (72 FR 2372–2374).
The Agency proposed mandating
EOBR installation, maintenance, and
use for a relatively small population of
companies and drivers with a recurrent
HOS compliance problem. EOBRs
would be required for those carriers
determined—based on HOS records
reviewed during each of two
compliance reviews conducted within a
2-year period—to have had a 10 percent
or greater violation rate (‘‘pattern
violation’’) for any regulation in the
proposed Appendix C to 49 CFR part
385 (‘‘2 x 10’’ Remedial Directive
Carriers). As described in more detail in
this preamble, in the final rule the
Agency has chosen the more stringent 1
x 10 remedial approach—whereby
motor carriers with a 10 percent
violation rate of any Appendix C HOS
regulation in any single compliance
review would be subject to a remedial
directive (‘‘1 x 10’’ Remedial Directive
Carriers)—instead of the 2 x 10
approach proposed in the NPRM.
In the development of this final rule,
the Agency found the overall crash rates
of 1 x 10 and 2 x 10 motor carriers are
considerably higher than the crash rates
of the general motor carrier population.
Using data from the FMCSA Motor
Carrier Management Information System
(MCMIS) database and compliance
review databases, crash rates were
computed by dividing total crashes by

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each carrier’s number of power units.
Crash rates were compared between the
1 x 10 and 2 x 10 motor carrier
population and motor carriers in the
general population. The 1 x 10 motor
carriers were found to have a 40 percent
higher crash rate than the general motor
carrier population, and 2 x 10 motor
carriers a 90 percent higher crash rate
than the general motor carrier
population. Many elements of the
analyses of benefits and costs of this
rule use estimates that were derived
from FMCSA’s 2003 estimates
concerning the effects of HOS rules.
This was done to provide analytical
continuity through the 2004–2010
timeframe of the EOBR rulemaking
actions.1 Also, due to data limitation,
FMCSA used outdated studies in the
analysis for this rule. For future HOS
rulemakings, FMCSA will use updated
studies and reports to analyze impacts.
Numerous commenters to the NPRM
stated that the proposal still would not
require EOBR use by enough carriers to
make a meaningful difference in
highway safety, relative to the total
carrier population. The FMCSA
acknowledges the safety concerns of the
commenters. In response to those
concerns, the Agency will explore the
safety benefits of a broader EOBR
mandate in a new rulemaking
proceeding that will begin in the near
future. In the meantime, the final rule’s
application of a remedial directive to
the 1 x 10 motor carriers makes the best
immediate use of Agency resources and
provides immediate safety benefits to
society.
The number of motor carriers that will
be required to install, use and maintain
EOBRs is significantly greater under this
final rule than was proposed in the
NPRM. If FMCSA determines, based on
HOS records reviewed during a single
compliance review, that a motor carrier
had a 10 percent or greater violation rate
for any regulation in the new Appendix
C to Part 385 (‘‘threshold rate
violation’’), FMCSA will issue the
carrier an EOBR remedial directive. The
motor carrier will be required to install
EOBRs meeting the performance
requirements of this final rule in all of
the carrier’s CMVs, regardless of their
date of manufacture, and to use the
devices for HOS recordkeeping
purposes for a period of 2 years. An
exception is provided for carriers that,
prior to the compliance review
determination, already equipped their
vehicles with automatic on-board
recording devices (AOBRDs) meeting
1 Estimates of benefits and costs that will be
developed for future HOS-related rulemaking
actions will use more recent baseline data.

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the Agency’s current requirements
under 49 CFR 395.15 and can
demonstrate to FMCSA that their
drivers understand how to use the
devices.
FMCSA amends the FMCSRs to
provide new performance requirements
for EOBRs used to monitor drivers’ HOS
recording devices. EOBRs will be
required to automatically record the
CMV’s location at each change of duty
status and at intervals while the CMV is
in motion. Current on-board recorders
are not required to do this. EOBRs must
also conform to specific information
processing standards to ensure the
security and integrity of the data that is
recorded. Drivers will be able to add
information to the EOBR record
(‘‘annotate’’) while the EOBR maintains
the original recorded information and
tracks these annotations. The EOBR
support system must be able to provide
a digital file in a specified format for use
by motor carrier safety enforcement
officials.
FMCSA requires on-board recording
devices be integrally synchronized to
the engine. Although the January 2007
NPRM proposed allowing nonsynchronized devices, the Agency
decided to continue requiring that onboard recording devices be integrally
synchronized to ensure the accuracy of
electronic records of duty status.
The Agency also adopts other
performance specifications, in response
to comments that differ from
specifications proposed. These include,
but are not limited to: Increasing the
time interval for recording the
geographic location of a CMV in motion
from 1 minute to 60 minutes; making
the recording of State-line-crossing
information optional; removing the
requirement to record a driver’s
acknowledgement of advisory messages;
reducing the amount of time a CMV is
stationary before the EOBR defaults to
on-duty not driving duty status;
removing the daily ceiling on EOBR
accumulated time inaccuracy or ‘‘time
drift’’; revising the requirements to allow
a driver to enter annotations to denote
use of a CMV as a personal conveyance
and for yard movement; removing the
requirement for an EOBR to display
HOS data in a graph-grid format;
specifying information technology
security and integrity requirements; and
adding and strengthening provisions
concerning driver and motor carrier
responsibilities relating to accurate
EOBR records and support system
performance. The details of the changes
are discussed later in this document.
To ensure a smooth transition from
AOBRDs to EOBRs, the final rule
requires that for CMVs manufactured

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after June 4, 2012, devices installed by
a manufacturer or motor carrier to
record HOS must meet the requirements
of § 395.16. Commercial motor vehicles
manufactured prior to June 4, 2012 may
be equipped with an HOS recording
device that meets the requirements of
either § 395.15 (AOBRD) or § 395.16
(EOBR).
Finally, the final rule provides
incentives for motor carriers to
voluntarily use EOBRs. These include
elimination of the requirement to retain
and maintain supporting documents
related to driving time as this
information will be maintained and
accessible from the EOBR. Additionally,
compliance reviews that reveal a
proposed 10 percent or higher violation
rate based on the initial focused sample
would be expanded to assess a random
sampling of the motor carrier’s overall
HOS records.
Summary of FMCSA’s January 2007
Proposal
On January 18, 2007, FMCSA
proposed amending the FMCSRs to
incorporate new performance standards
for EOBRs installed in commercial
motor vehicles manufactured on or after
the date 2 years following the effective
date of a final rule. On-board HOS
recording devices meeting FMCSA’s
current requirements and voluntarily
installed in CMVs manufactured before
the implementation date of a final rule
will be permitted for use for the
remainder of the service life of those
CMVs.
Under the proposal, motor carriers
that demonstrated a pattern of serious
noncompliance with FMCSA’s HOS
rules would be subject to mandatory
installation of EOBRs meeting the new
performance standards. If FMCSA
determined, based on HOS records
reviewed during each of two
compliance reviews conducted within a
2-year period, that a motor carrier had
a 10 percent or greater violation rate
(‘‘pattern violation’’) for any regulation
in proposed Appendix C to part 385 of
Title 49, CFR, FMCSA would issue the
carrier an EOBR remedial directive. The
motor carrier would be required to
install EOBRs in all of its CMVs
regardless of their date of manufacture
and to use the devices for HOS
recordkeeping for a period of 2 years,
unless the carrier already had equipped
its vehicles with AOBRDs meeting the
Agency’s current requirements under 49
CFR 395.15 and could demonstrate to
FMCSA that its drivers understand how
to use the devices.
We also proposed changes to the
safety fitness standard to ensure
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install, use and maintain EOBRs as
taken into account when determining a
carrier’s safety fitness. Finally, FMCSA
proposed the same incentives for motor
carriers to voluntarily use EOBRs in
their CMVs as are adopted in today’s
final rule: (1) Random sampling of
drivers’ records of duty status; and (2)
partial relief from HOS supporting
documents requirements.
IV. Discussion of Comments to the
NPRM
Overview of Comments
The Agency received 752 comments
on the proposed rule. Of these, 609
expressed opinions without additional
supporting material.
Organizations that provided
comments included the following.
Safety advocacy groups: Advocates
for Highway and Auto Safety
(Advocates); Public Citizen; and
Insurance Institute for Highway Safety
(IIHS).
Drivers’ organizations: International
Brotherhood of Teamsters (IBT) and
Owner-Operator Independent Drivers
Association, Inc. (OOIDA).
National trucking industry
associations: Canadian Trucking
Alliance; Truckload Carriers
Association (TCA); American Trucking
Associations (ATA); National Private
Truck Council, Inc. (NPTC); the
Specialized Carriers & Rigging
Association (SC&RA), and the American
Moving and Storage Association
(AMSA). Additionally, although several
commenters referenced a Technical
Policy Advisory (TPA) developed by the
ATA Technology and Maintenance
Council (TMC), TMC did not comment
independently to the docket.
State trucking associations:
Minnesota Trucking Association (MTA).
EOBR, software, and system
providers: RapidLog Corp. (RapidLog);
PeopleNet; Siemens AG (Siemens);
Tripmaster Corp. (Tripmaster); Xora,
Inc. (Xora); First Advantage; Verigo Inc.
(Verigo); XATA Corp. (XATA);
Qualcomm Wireless Business Solutions
(Qualcomm); KonaWare Transportation
and Logistics (KonaWare), and Report
on Board.
U.S. Government agencies: National
Transportation Safety Board (NTSB) and
the U.S. Department of Energy (DOE).
CMV safety officials’ organization:
Commercial Vehicle Safety Alliance
(CVSA).
State government agencies: Maryland
State Police, Maryland State Highway
Administration (Maryland SHA), and
Public Utilities Commission of Ohio
(Ohio PUC).
Motor carriers: J.B. Hunt Transport,
Inc. (J.B. Hunt); FedEx Corp. (FedEx);

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Werner Enterprises, Inc. (Werner);
Calvary Mountain Express Inc.; River
Transport, Inc.; Boyle Transportation
(Boyle); OTR Transportation; Maverick
Transportation, LLC (Maverick); Metro
Express Inc.; Brenny Specialized, Inc.;
Foreman Transport; Horizontal Boring &
Tunneling Co.; and N&M Transfer Co.,
Inc.
National associations with
transportation interests: International
Foodservice Distributors Association;
National Propane Gas Association
(NPGA); National Ready Mixed
Concrete Association (NRMCA);
Petroleum Transportation and Storage
Association; Petroleum Marketers
Association of America (PMAA); and,
the Food Marketing Institute (FMI).
State association with transportation
interests: Colorado Ready Mixed
Concrete Association.
CMV manufacturer: International
Truck and Engine Corp.
1

Industry-Wide Mandate for EOBRs

FMCSA received 57 comments,
mainly from drivers or individuals, who
believe the Agency should require the
use of EOBRs. Thirty-nine commenters
supported a broader mandate than was
proposed in the NPRM, though not an
industry-wide mandate. Nineteen
commenters supported mandating
EOBRs for all carriers.
Advocates commented, ‘‘enforcement
efficiencies would soar with universal
use of accurate, tamper-proof EOBRs,’’
and argued that the increased
productivity of roadside inspection
officials could significantly improve
motor carrier safety. Several
commenters, including CVSA, NTSB,
and Public Citizen, asserted European
Union nations, Japan, and other
countries that require EOBRs have seen
positive safety results.
Ohio PUC stated a mandate would
greatly increase compliance with the
HOS rules, increase safety, and reduce
the potential for fraud.
Public Citizen, Advocates, and two
vendors stated the proposed rule did not
meet the statutory mandate or
individual guidance concerning an
evaluation of EOBRs, and that the
administrative record of FMCSA’s own
rulemakings contradicted the proposal.
They noted the Agency was required to
consider safety as its highest priority
and to further the highest degree of
safety in motor carrier transportation.
IIHS stated the proposed rule was
‘‘completely at odds with the data on
truck driver fatigue.’’ IIHS cited its
research that found that one in five
drivers fell asleep at the wheel in the
previous month.

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DOE supported the NPRM, but
preferred an industry-wide mandate for
EOBR use to enhance the safety,
security and cost effectiveness of the
transportation of hazardous materials.
DOE believes installation of EOBRs on
all CMVs would enhance highway
safety and HOS compliance of all motor
carriers, including those that DOE uses
to transport shipments of radioactive
materials and waste.
Numerous commenters argued that
EOBRs are needed to improve safety,
but motor carriers will not voluntarily
choose to use EOBRs. In a related vein,
CVSA, NTSB, Siemens, and Report on
Board believed a mandate for all motor
carriers to use EOBRs would be
necessary to obtain the customer base
and economies of scale for vendors to
offer lower-cost EOBRs.
An individual who identified himself
as a safety consultant argued that motor
carriers would not see sufficient
advantages—either through reduced
instances of noncompliance or
reductions in paperwork burdens—to
encourage them to use EOBRs
voluntarily, especially since their
chance of being subjected to a
compliance review is low. He stated
many progressive motor carriers have
installed onboard systems with Global
Positioning System (GPS) tracking
capabilities but do not use them for
HOS recording because drivers object to
it. The consultant contended that by not
mandating universal EOBR use, the
DOT is, in effect, rewarding those who
are unwilling to invest in safety.
IIHS stated that although AOBRDs
have been allowed since 1988 and a
substantial number of motor carriers use
various types of on-board systems, only
a small proportion of carriers use them
to collect HOS data. As evidence that
many motor carriers find EOBRs
affordable and provide many
operational benefits, IIHS cited surveys
of truck drivers indicating about 45
percent of the long-distance drivers in
2005 said there were EOBRs or other onboard computers in their trucks, up
from about 18 percent in 2003 and about
38 percent in 2004.
Some of the commenters believed a
universal EOBR mandate would create a
‘‘level playing field’’ in the motor carrier
business environment. They also stated
it would protect drivers from adverse
actions by their employers in retaliation
for refusing to violate HOS regulations.
Some of the commenters also mentioned
improved readability and simplified
recordkeeping associated with EOBRs
when compared to handwritten records,
as well as assisting motor carrier safety
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their roadside reviews more efficiently
and effectively.
Advocates stated FMCSA had ignored
potential health impacts of using EOBRs
and improving HOS compliance. It said
FMCSA’s concern about the stress on
drivers from using EOBRs distorted the
research results of several studies.
Furthermore, Advocates held, by not
proposing to mandate EOBR use, the
Agency was not helping ‘‘to ameliorate
the adverse health impacts of
exceptionally long working and driving
hours triggered by the Agency’s final
rules in 2003 and in 2005.’’
Response: We understand the
concerns of ATA and J.B. Hunt, among
others, who believe the proposal did not
cover enough carriers. While FMCSA
acknowledges the safety concerns of
those that support an industry-wide
EOBR mandate, the Agency cannot
extend the EOBR mandate in that
manner in this final rule because the
scope of the current rulemaking
proceeding is limited to a compliancebased regulatory approach,
implemented through a remedial
directive. However, the number of
motor carriers that will be required to
install, use and maintain EOBRs is
significantly greater under this final
rule—using the 1 x 10 trigger—than
under the 2 x 10 trigger that was
proposed in the NPRM.
FMCSA recognizes that the potential
safety risks associated with some motor
carrier categories, including passenger
carriers, hazardous materials
transporters, and new entrants, are such
that mandatory EOBR use for such
populations might be appropriate.
However, as noted above, in today’s
rule, we adopt a compliance-based
trigger that focuses on all HOS-violating
motor carriers across all sectors as
proposed in the NPRM. In addition, as
some commenters to the 2007 NPRM
docket indicated, a regulation that
promotes voluntary use of EOBRs, but
that does not mandate it for the majority
of carriers, will not persuade many
carriers to adopt the devices, even
though the devices may generate
improvements in operational
productivity. And, as other commenters
noted, a more universal approach to
EOBR use may create a more level
playing field in the industry.
As stated earlier in this document, the
Agency will initiate a new rulemaking
to consider expanding the scope of
mandatory EOBR use beyond the ‘‘1 x
10’’ carriers that will be subject to a
remedial directive as a result of today’s
rule.
FMCSA acknowledges that some
foreign countries have an industry-wide
mandate for HOS recording devices.

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However, the Agency is not aware of
any published information that
demonstrates that the specific mandate
imposed by those countries has
contributed to any discernible benefits
in safety. Still, the absence of published
information by those governments
should not preclude consideration of
that regulatory option for the U.S. What
is clear is certain motor carriers with
threshold rates of serious HOS
violations have much higher than
average crash rates, and the mandatory
use of EOBRs via a remedial directive
for these high-risk carriers provides a
means to compel such carriers to
achieve compliance with the HOS rules.
In terms of the benefits to motor
carriers arising from EOBR use, FMCSA
agrees that the savings in collecting,
reviewing, and storing paper-based
information alone can make EOBRs (and
AOBRDs) attractive to many motor
carriers. Furthermore, advances in
information technology (particularly
Web-based applications) and wireless
telecommunications are making HOS
monitoring applications—either in
stand-alone form or as part of fleet
management systems—far less costly on
a per-power-unit basis than they were in
the past.
Until several years ago, many onboard recording systems suppliers did
not serve the small-fleet market, which,
according to FMCSA’s motor carrier
census, makes up most of the
population of motor carriers:
approximately 90 percent of motor
carriers operate fewer than 20 power
units. The picture is vastly different
today. It is not only more economical for
motor carriers to use on-board recording
and monitoring systems, but there are
far more suppliers of these systems to
choose from. Vendors anticipate that
customers have a substantial demand
that they can meet, and they are meeting
that demand without an FMCSA
mandate. The revised EOBR systems
cost estimates discussed in the
Rulemaking Analyses and Notices
section of this document and the RIA
reflect these advancements.
In response to Advocates’ comments
on potential health impacts of EOBR
use, the Agency has addressed both
positive and negative health impacts in
Appendix A of the EA for this rule,
which has been placed in the docket.
The Agency carefully reviewed research
on the potentially negative impacts of
electronic monitoring and concluded
that use of EOBRs required in today’s
final rule will not result in negative
impacts on driver health for two
reasons: First, because monitoring of
HOS compliance is an existing, not a
new, requirement; and second, because

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the Agency is requiring EOBRs to
monitor safety, not workplace
productivity. The underlying HOS
regulations are the subject of a separate
rulemaking action. Cost and benefit
estimates of the HOS regulations are
included in the analysis for that
separate rulemaking (72 FR 71247,
December 17, 2007).
2 General Opposition to Mandated Use
of EOBRs
One hundred thirty-six commenters,
the majority of whom were drivers or
individuals, generally opposed any
mandated use of EOBRs. The SC&RA,
TCA, IBT, AMSA, and a driver claimed
that FMCSA had not demonstrated
EOBR use would improve highway
safety. SC&RA questioned FMCSA’s
estimates in the RIA, concerning
relationships between improvements in
HOS compliance and improvements in
safety outcomes resulting from use of
EOBRs.
Several commenters criticized the
Agency for failing to produce any
definitive studies demonstrating the
safety benefits of EOBRs. Some of these
commenters cited the University of
Michigan Transportation Institute
(UMTRI) or American Transportation
Research Institute (ATRI) studies which
concluded that safety benefits were
difficult to assess due to lack of
empirical data. SC&RA stated that a
2006 study by ATRI did not identify
safety benefits. OOIDA likewise
criticized the RIA for assuming EOBRs
would improve compliance rather than
demonstrating that improvement would,
in fact, occur. It also quoted a 1998
UMTRI study concluding EOBRs would
have little or no effect on safety.
Forty of the 136 commenters stated
FMCSA failed to prove that using
EOBRs reduced driver fatigue,
prevented or reduced the severity of
accidents, or lowered operational costs.
IBT expressed concern that employers
would use EOBR data to pressure
drivers to improve their operational
productivity by driving faster and
making shorter stops.
Gantec Trucking stated FMCSA has
not shown that strict compliance with
HOS limits improves safety, considering
that accidents in which the CMV driver
is at fault and fatigue-related accidents
make up a very small percentage of
CMV-involved accidents. Gantec
criticized FMCSA for citing a lack of
evidence to support strengthening
driver training regulations but not
holding itself to the same standard for
proposing EOBR use. Some drivers
believe EOBRs could make drivers less
safe because they believe the accuracy
of an EOBR’s record would force them

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to continue driving when they would
prefer to take a break: With paper
Records of Duty Status (RODS), drivers
can take breaks as needed but not
necessarily record them. Others
questioned how EOBRs could improve
safety because they cannot
automatically detect or record nondriving activity. IBT stated because
drivers would still need to enter nondriving time, they would still falsify
their electronic records, because it is to
their benefit to do so.
Response: FMCSA disagrees with
commenters that believe there are no
circumstances under which the use of
EOBRs should be mandated. The
Agency believes the safety records of
carriers found to have certain threshold
rates of violations of the HOS rules are
a strong indicator of the need to do more
than issue civil penalties. The final rule
requires such carriers to install, use and
maintain EOBRs to better ensure their
drivers comply with the applicable HOS
requirements and provides a means for
prohibiting these motor carriers from
continuing to operate CMVs in interstate
commerce if they fail to comply with
the remedial directive. This action is a
significant first step toward
strengthening the enforcement of the
HOS rules for carriers with threshold
rates of noncompliance.
The use of electronic records allows
deviations from safety and operational
norms to be made more visible because
they can be detected far more rapidly
than with paper records. Also, the
electronic records will enable motor
carriers to develop safety or operational
countermeasures to address these
deviations more efficiently and
effectively. However, the Agency does
not accept the assertion that drivers
would not take breaks from driving
because those breaks would be
recorded.
3

EOBR Remedial Directive

3.1. Applicability of the Remedial
Directive
The Minnesota Trucking Association,
AMSA, and one individual supported
requiring EOBRs only for motor carriers
with a demonstrated a history of serious
noncompliance with the HOS rules.
In contrast, J.B. Hunt and many other
commenters stated the proposed
threshold would not capture enough
carriers to serve as a meaningful
deterrent to noncompliance or to
positively influence highway safety
outcomes. ATA stated that the method
described in the NPRM for determining
whether a remedial directive should be
issued is not likely to dissuade the bulk
of the egregious or defiant HOS

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offenders. ATA recommended focusing
on at least the top 10 percent most
egregious HOS violators. This
population could be determined by use
of valid compliance review data and,
potentially, driver out-of-service rates
for HOS violations from roadside
inspection data. ATA further
recommended, prior to taking remedial
action, FMCSA provide motor carriers
an adequate warning period to give
them an opportunity to institute
improved safety management controls.
If improvement benchmarks were not
adequately attained, then more severe
enforcement action would be warranted.
OOIDA stated the proposed rule
would punish only those carriers that
keep accurate records of their
noncompliance and would not punish
the worst offenders who do not comply
and who disguise their violations.
Numerous commenters including
Maverick and Werner stated the
requirement should apply to the driver
rather than to the carrier. Such
commenters argued that if most of a
carrier’s drivers are not in violation,
mandating an EOBR for the carrier
penalizes compliant drivers, which
increases the cost. Also, if the remedial
directive is applied to a carrier, the noncompliant drivers will simply go to
another carrier to avoid using the EOBR,
which effectively nullifies the potential
benefits from mandating EOBR use.
Werner stated carriers are limited to
taking after-the-fact compliance and
enforcement actions against their
drivers. The carrier should not be
penalized for the actions of noncompliant drivers whom it no longer
employs if the carrier has made an effort
to deal with the drivers’ HOS issues
during their employment. ATA stated a
record of HOS noncompliance should
follow the driver and should only be
considered in assessing the compliance
status of the motor carrier where the
driver is currently employed. ATA
argued, ‘‘Penalties for EOBR violations
should be proportional for all
responsible parties, with special
attention for tampering with the devices
and the data.’’
The National Propane Gas Association
(NPGA)) asserted motor carriers
transporting placardable quantities of
hazardous materials, taken as a whole,
do not represent a risk greater than nonhazmat carriers and should not be
required to use EOBRs. Conversely,
Advocates believes the inherently
higher safety and security risks posed by
hazardous materials transportation and
the special safety concerns related to
passenger motorcoach transportation,
justify mandatory EOBR use for both
categories of motor carriers.

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OOIDA and three individuals objected
to the trigger for imposition of a
remedial directive because they believe
the directives would disproportionately
affect smaller companies. The
individuals noted a company with very
few trucks could be required to install
EOBRs if only one driver is put out-ofservice, while a large company could
have many such drivers and not be
targeted. Moreover, where a minority of
drivers is out of compliance, the
innocent majority of the carrier’s drivers
would be punished by a company-wide
mandate. OOIDA asked if new entrant
safety audits would be included in the
compliance reviews (CRs) considered
for the trigger; if so, it argued, small
businesses would be severely affected
because most new entrants are small
operations. J.B. Hunt suggested FMCSA
consider requiring new entrants to use
EOBRs for a minimum period.
NTSB stated encouraging carriers to
view EOBRs as a means of punishment
would undermine the goal of industrywide acceptance; such broad acceptance
would result in greater safety for all
motorists. Boyle Transportation agreed
the punitive nature of the remedy would
be a disincentive for carriers to install
them.
Some commenters focused on the
perceived underlying problem—the
need for stronger HOS enforcement.
According to Public Citizen, the onus is
still on the Agency to commit to
improving enforcement of HOS
compliance. Advocates stated the rule
would not address the pervasive nature
of HOS violations. It stated RoadCheck
2006 found there was an upward trend
in the number of HOS violations even
though the new HOS rules adopted in
2003 allowed drivers to work longer
hours. CVSA agreed that a more
effective option for dealing with the
habitual HOS offenders is stronger
enforcement. They also noted HOS
noncompliance is indicative of a
systemic management problem within
the carrier’s operation, and the mere
installation of EOBRs will not correct
this problem. Finally, CVSA noted that
government resources needed to
monitor carriers subject to mandatory
EOBR use will be substantial, and the
benefits will not outweigh the costs.
Response: In its September 2004
ANPRM (69 FR 53386), the Agency
requested commenters to address the
scope of the EOBR requirement.
Specifically, the Agency requested
comment on whether it should:
‘‘Propose requiring that motor carriers in
general, or only certain types of motor
carrier operations, use EOBRs.’’ 69 FR
53395. The Agency received numerous
comments on this issue. In the 2007

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NPRM the Agency noted it had the legal
authority to adopt an industry-wide
standard that all motor carriers subject
to the HOS requirements use EOBRs.
The Agency announced it would not
exercise ‘‘the full extent of its authority
at this time, however, and [would]
instead propose a more targeted
approach of mandating EOBR use for
only those carriers with deficient safety
management controls, as demonstrated
by repeated patterns of hours-of-service
violations.’’ 72 FR 2341. The final rule,
similarly, does not require all carriers to
install and use EOBRs, but, consistent
with the NPRM, targets only those
carriers with substantial HOS
noncompliance and associated deficient
safety management controls. This final
rule makes one significant change to the
remedial directive provisions in the
proposed rule, concerning the HOS
noncompliance threshold triggering a
remedial directive for a motor carrier.
The NPRM proposed a so-called ‘‘2 x 10’’
approach as the ‘‘trigger’’ for a remedial
directive. That approach would have
required a final determination of one or
more ‘‘pattern violations’’ of any
regulation in proposed new Appendix C
to part 385 (‘‘Appendix C regulations’’)
during a CR, followed by the discovery
of one or more pattern violations of any
Appendix C regulation during a CR
completed within 2 years after the
closing date of the CR that produced the
first determination. We explained in the
NPRM that a pattern violation would be
‘‘a violation rate equal to or greater than
10 percent of the number of records
reviewed. For example, 25 violations
out of 100 records reviewed would be a
25 percent violation rate and therefore
a pattern violation. This trigger, if
adopted, would result in the issuance of
approximately 465 remedial directives
to install EOBRs annually.’’ 72 FR 2364.
The Agency justified mandating EOBRs
on this subpopulation of carriers, given
that these carriers’ ‘‘severe’’ HOS
compliance deficiencies ‘‘pose a
disproportionate risk to public safety.’’
Id.
After reconsidering the alternatives
discussed in the NPRM (72 FR 2374)
including the proposed ‘‘2 x 10’’
remedial directives trigger, and based on
comments received, the Agency adopts
the considerably more stringent ‘‘1 x 10’’
requirement. As discussed in more
detail below, we agree with the
numerous commenters, including
government agencies, carriers, industry
associations, and safety groups, that the
proposed 2 x 10 trigger would not
mandate EOBR use by enough carriers,
given the total population. Under the
requirement adopted today, carriers

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with a 10 percent violation rate of any
HOS Appendix C regulations in any
single CR will be subject to a remedial
directive. Approximately 5,419 carriers
and 104,428 power units on average will
be subject to this directive per year. This
represents a substantial increase in the
number of remediated carriers
compared to the 2 x 10 proposal, as
further explained in the RIA and section
8, below. The crash rate for such carriers
is more than double the industry
average, (although the crash rate is
slightly lower for the entire 1 x 10 group
than it was for the 2 x 10 group because
of the larger pool of carriers subject to
the remedial directive). However,
FMCSA anticipates the 1 x 10 approach
finalized today will result in greatly
increased HOS compliance, and
therefore safety, in a cost-effective
manner.
The Agency is revising the new 49
CFR 385.803 definitions and acronyms
section and other affected rule text to
replace the term ‘‘pattern’’ violation with
the term ‘‘threshold rate’’ violation.
Concern was raised that use of the term
‘‘pattern violation’’ in the final rule
might lead to confusion with other
‘‘patterns’’ of violations in the FMCSRs
and the Agency’s enforcement structure.
In addition, the Agency believes the
term ‘‘pattern’’ is more aptly applied to
the proposed 2 x 10 trigger, which
required a finding of serious HOS
violations in multiple CRs. Under the
final rule, the finding of a 10 percent
violation rate for an Appendix C
regulation in a single CR will serve as
the trigger for issuance of a remedial
directive.
Two factors that were not operative in
the NPRM analysis influenced the final
rule. First, section 4114 of SAFETEA–
LU was codified in the FMCSRs on July
5, 2007, approximately 6 months after
the EOBR NPRM was published (72 FR
36762 (preamble) and 36788 (regulatory
text) amending 49 CFR 385.7(c), (d), (f),
and (g)). Prior to the enactment of
section 4114, although motor carriers
were required under 49 CFR 390.15 to
record intrastate accidents on their
accident registers, FMCSA did not take
intrastate accidents or safety violations
into account when determining motor
carriers’ safety ratings. Under section
4114, FMCSA must now utilize
interstate motor carriers’ accident and
safety inspection data from intrastate
operations (and from operations in
Mexico or Canada if the carrier also has
U.S. operations) in determining carriers’
safety fitness under 49 U.S.C. 31144.
This includes safety inspection data on
HOS violations while operating in
intrastate commerce. As a result of this
larger universe of violations under

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consideration in the safety fitness
determination process, the number of
carriers subject to the 1 x 10 remedial
directive is now slightly higher than it
would have been prior to enactment of
section 4114.
Second, after issuance of the NPRM,
DOT made an important change to its
evaluation of safety benefits for all
safety rules. This policy has caused the
Agency to revisit the cost benefit
analyses for all rules being developed,
including the EOBR rule. Specifically,
on February 5, 2008, DOT issued a
memorandum to its modal agencies
instructing them to estimate the
economic value of preventing a human
fatality at $5.8 million. See ‘‘Economic
Value of a Statistical Life in
Departmental Analyses’’ (available at
http://ostpxweb.dot.gov/policy/reports/
080205.htm). FMCSA also published a
notice in the Federal Register
describing this policy change (73 FR
35194, June 20, 2008). The previous
value of a statistical life (VSL), which
was used in the RIA for the EOBR
NPRM, was $3.0 million. Given that the
VSL nearly doubled, the net benefits of
this rule, as well as those of other
FMCSA rules under development, were
recalculated using the new figures. This
recalculation resulted in a reappraisal of
all appropriate alternatives by the
Agency, taking into account Agency
analyses concerning safety impacts,
enforcement resources, and data and
comments received.
We fundamentally disagree with
OOIDA’s comment that this rule
mandates EOBRs merely for those
carriers who keep records. In addition to
other HOS violations, failure to
maintain and preserve records of duty
status in accordance with part 395 and
falsification of records are among the 24
separate violations in new Appendix C
that will trigger a remedial directive if
violated at the threshold rate of 10
percent or greater. Other issues related
to supporting documents are discussed
under the heading ‘‘Incentives,’’ section
7, below. Also, the revised trigger
applies to the same carriers as proposed
in the NPRM, namely those that fail to
meet their part 395 compliance
obligations. But we anticipate the final
rule will result in the issuance of a
significantly larger number of remedial
directives because directives can be
triggered after a single compliance
review in which the motor carrier is
found to meet or exceed the violation
rate threshold, rather than after a second
CR that would take place as much as 24
months after the initial set of threshold
violations are found.
As previously mentioned, some
carriers objected to having EOBRs

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imposed based on the actions of HOSnoncompliant drivers who might no
longer be employed at the motor carrier
affected. FMCSA disagrees with this
position. A key to addressing the issue
of non-compliant drivers is for motor
carriers to exercise proper management
controls. These controls should include,
for example, a process for conducting
adequate background checks prior to
employing a new driver and ensuring
that new drivers are adequately trained.
Likewise, if a carrier has adequate
management controls over driving
operations, HOS violations at a rate
greater than 10 percent should not occur
in the first place. To ensure consistent
oversight, FMCSA and its State
enforcement partners must conduct
compliance reviews based on the
drivers employed during the review
period in question. Subsequent
adjustments in a non-compliant driver’s
employment status or a motor carrier’s
pool of employees should not influence
the remedial directive determination.
At this time, the Agency elects not to
require EOBRs for all new entrants or
hazardous material (hazmat) carriers
because these regulatory options are
beyond the compliance-based scope of
the current rulemaking proceeding. The
Agency acknowledges the concerns of
commenters, and plans to consider
these options in preparation for a new
rulemaking examining the expansion
the EOBR mandate.
The remedial directive element of this
final rule treats hazmat carriers, along
with passenger carriers, differently from
other carriers, consistent with our
authority to determine safety fitness of
carriers under 49 U.S.C. 31144 (c)(2)–(3)
and 49 CFR part 385. As discussed in
our NPRM (72 FR 2376) and set forth in
this final rule, passenger and hazmat
carriers will have only 45 days to install
EOBRs after receiving a remedial
directive under § 385.807(b)(1). As with
the current regulations under part 385,
the shorter period reflects the relatively
higher risk to the traveling public
(passenger carriers) and to safety and
security (hazmat) of these carriers’
operations. Non-hazmat property
carriers will have 60 days to comply
under § 385.807(b)(2). Both provisions
are adopted as proposed.
As to applicability of the rule to new
entrant carriers, CRs are not normally
conducted on new entrant carriers,
which are subject to a safety audit
within the 18-month duration of the
new entrant program. However,
enforcement personnel have the
discretion to follow up on a poor safety
audit by conducting a separate CR.
Therefore, new entrants, like other
carriers that must comply with part 395,

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can be subject to a remedial directive
under a scenario where the audit leads
to a CR.
We disagree with the characterization
of a remedial directive to install EOBRs
company-wide as a ‘‘punishment’’ for
the innocent drivers who had no
violations. The directive is intended to
correct a demonstrated deficiency in the
motor carrier’s safety management
controls and is therefore remedial, not
punitive, in nature. This rule does not
revise or impose any new civil
penalties, including penalties for HOS
violations. Moreover, drivers required to
use EOBRs will actually benefit from a
technology that allows for automation of
a manual task that would otherwise
burden the driver. As noted elsewhere,
this rule also does not ‘‘target’’ any
specific industry sector or particular
size of motor carrier operation; instead,
it focuses on carriers with substantial
HOS compliance issues.
We respectfully disagree that this
final rule on EOBRs will have no impact
on HOS enforcement, since the rule
improves the means of detecting HOS
violations within a problem motor
carrier population and thus enhances
HOS enforcement.
3.2 Trigger for Remedial Directive
J.B. Hunt stated that, although the
idea of mandating the least compliant
and least safe carriers to use an EOBR
appears to be a logical approach, there
are problems with this method. It relies
on the premise that all of the ‘‘least
compliant’’ carriers have undergone, or
soon will undergo, a CR. They disagreed
with this premise, noted many carriers
are unrated, and asserted the NPRM
approach assumes the Agency is
uncovering the least safe carriers
through its log book sampling. However,
according to J.B. Hunt, the Agency is
merely selecting from a group of drivers,
not carriers, who have had past
compliance problems.
NTSB objected to using CRs to trigger
remedial directives because so few CRs
are done relative to the number of
carriers and because carriers may be
rated Satisfactory despite long and
consistent histories of violations.
Advocates and Public Citizen also cited
the limited number of CRs conducted
each year, which they said meant that
the ‘‘pattern of violations’’ cannot be
meaningful. Siemens agreed with this
position.
Advocates added that carriers are
selected for CRs using data from
SafeStat, which is deficient in several
ways, as noted by the DOT Office of the
Inspector General (OIG) and the
Government Accountability Office
(GAO). Advocates contend that relying

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on CR data results in severe
underestimation of HOS violations.
Advocates cite OIG’s 2006 conclusion
that without the critical data, FMCSA
cannot accurately identify the high-risk
motor carriers for CRs and enforcement
actions (see ‘‘Significant Improvements
in Motor Carrier Safety Program Since
1999 Act But Loopholes For Repeat
Violators Need Closing,’’ FMCSA Report
Number MH–2006–046, issued April 21,
2006). They also noted small carriers are
not included in SafeStat, yet may be at
high risk of safety violations. Advocates
also assert that the 2 x 10 criterion
further reduces the pool of potential
carriers subject to mandatory use of
EOBRs.
A safety consultant stated CRs are an
inadequate basis for identifying noncompliant carriers. Most carriers are not
rated. Safety inspectors miss violations
because of the volume of CRs they need
to conduct. He also objected to the
distinction between intentional and
non-intentional errors in logs. He noted
‘‘DOT’s own HOS study in 2004’’
suggested as many as 70 percent of longhaul carriers may have utilized false
logs; his experience as auditor indicates
that the figure may be accurate.
J.B. Hunt argued the methodology for
selecting drivers in a CR does not reflect
the overall compliance of the carrier.
Rather, it indicates noncompliance
among the particular drivers selected
(from a population previously identified
as having problems): It does not ensure
that the least safe and compliant
companies are required to install EOBR
units. The NPRM states, ‘‘The overall
safety posture of the motor carrier is not
being measured during the CR.’’ J.B.
Hunt is concerned this means the
desired safety impact of EOBR
installations will not be maximized.
Maryland SHA asked that roadside
inspection data be used to augment data
obtained through a CR. If a carrier fails
a CR, a second CR should not be needed
before the remedial directive is
imposed. Advocates supported this
position. An individual supported using
inspection data, suggesting FMCSA
should set a threshold ratio for HOS
violations found during inspections as
the trigger. One individual
recommended applying the requirement
to carriers that are over 75 percent on
SafeStat. J.B. Hunt recommended
targeting at least carriers in categories A
and B in SafeStat or some other
reasonable measure that would impact a
larger population.
OOIDA also stated until FMCSA
completes its revision of SafeStat and
issues a supporting document final rule,
it will be nearly impossible for OOIDA
to comment on the impact. OOIDA

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believes the public should have another
chance to comment on the trigger when
the new scoring system is in place. In
OOIDA’s view, the Initial Regulatory
Flexibility Analysis (IRFA) must also be
revised at that time.
Response: Consistent with our NPRM,
the Agency will use CR results to
determine whether to issue remedial
directives to carriers, requiring them to
utilize EOBRs. The CR, typically
conducted at the carrier’s place of
business, focuses on carrier
management control as a metric for
determining carrier safety fitness under
49 U.S.C. 31144. 72 FR 2373. As stated
in part 385, noncompliance with critical
regulations, which include all 24 HOS
violations in the new Appendix C to
part 385, ‘‘are quantitatively linked to
inadequate safety management controls
and usually higher than average
accident rates. FMCSA has used
noncompliance with acute regulations
and patterns of noncompliance with
critical regulations since 1989 to
determine motor carriers’ adherence to
the Safety fitness standard in § 385.5’’
Part 385, App. B II(e). The rationale for
using HOS violations under new
Appendix C is consistent with the
current safety fitness determination
process and logically related to current
part 385.
FMCSA believes the CR is the best
assessment method to determine which
carriers should be required to install
EOBRs, since, rather than focusing on
single violations, FMCSA is looking for
threshold rates of noncompliance. The
new definition of threshold rate
violation at § 385.803, applicable to
remedial directives, is entirely
consistent with our current rules
governing safety fitness determinations
in part 385. The current regulations also
require ‘‘more than one violation’’ for a
‘‘pattern of noncompliance,’’ and, where
a number of documents are reviewed, a
finding of violations in 10 percent or
more documents reviewed. Part 385
App. B II(g). Obtaining this large
sampling of records can be best
accomplished during a CR at the
carrier’s place of business. Such an
overview of carrier management and
operational safety oversight is not
possible during a roadside inspection,
as the review is confined to a single
CMV and its driver (or team of drivers),
at a single point in time. Indeed, CRs are
designed to provide a sweeping
assessment of carrier operations and
safety management controls, and the
assessments conducted, based on the
Safety Fitness Rating Methodology
(SFRM), form the basis for carrier safety
ratings. Given the serious nature of the
remedial directive and its potential to

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place a financial burden on the carrier,
we believe such a directive should be
issued only after a broad operational
examination and extensive record
review inherent to the CR process. 72
FR 2373.
A number of commenters criticized
the use of CR results as the trigger for
a remedial directive. Many contended
the use of the CR was inappropriate
because the SafeStat algorithm used as
part of the process of selecting carriers
for CRs does not reliably predict highrisk carriers. These commenters believe
other data, such as that received from
roadside inspections, should be more
fully utilized to determine which
carriers receive CRs at the outset. In fact,
SafeStat does incorporate motor carriers’
roadside inspection outcomes, accident
involvement, CR results, and
enforcement history.
We cannot agree with J.B. Hunt’s
assertion that our basic methodology for
selecting carriers for CRs is flawed. The
SafeStat program continues to be
upgraded to address issues raised by the
GAO and the OIG. According to OIG,
‘‘FMCSA has made improvements in the
data relied upon in SafeStat.’’ (See letter
from Calvin L. Scovel III, Inspector
General, Department of Transportation,
to the Honorable Thomas E. Petri, U.S.
House of Representatives, June 19, 2007.
http://www.oig.dot.gov/
item.jsp?id=2072.) Moreover, a 2007
report from GAO, while suggesting
improvements, nonetheless noted that
SafeStat does a better job of identifying
motor carriers that pose high crash risks
than does a random selection. (See
‘‘Motor Carrier Safety: A Statistical
Approach Will Better Identify
Commercial Carriers That Pose High
Crash Risks Than Does the Current
Federal Approach, U.S. Government
Accountability Office,’’ June 2007,
http://www.gao.gov/new.items/
d07585.pdf.) FMCSA likewise disagrees
with the Advocates’ comment that
SafeStat does not include small motor
carriers. To the contrary, SafeStat does
not exclude carriers based on size, and
the system currently reflects data on
even 1- and 2-truck operators.
As noted in our NPRM, we considered
and rejected using only roadside
inspection data for the remedial
directives trigger because roadside
inspections fail to measure carrier
operations as comprehensively as CRs.
Nevertheless, we acknowledge that far
more roadside inspections are
conducted compared to CRs, and they
are a key and voluminous source of
HOS compliance data. We will continue
to use this valuable roadside data
indirectly in the remedial directives
selection process to inform SafeStat

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selection rankings (72 FR at 2373 n. 5).
Some commenters urged the Agency to
use the Driver Safety Evaluation Area
(SEA) component of SafeStat, which is
based on roadside data, for a remedial
directives trigger. The Driver SEA,
however, combines both HOS and nonHOS violations, rendering its current
use infeasible for a remedial directives
trigger based exclusively on HOS
violations. The Agency is actively
exploring additional ways to tap into
the enormous wealth of roadside data
through its Comprehensive Safety
Analysis (CSA) 2010 initiative.2 In
summary, CR findings will be the only
direct basis to trigger a remedial
directive under today’s final rule.
However, the follow-on rulemaking,
discussed earlier, will explore this and
other methodologies for determining
whether a motor carrier would be
required to install and use EOBRs.

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3.3 Implementation of Remedial
Directives
Maryland State Police commented the
remedial directives concept will work
only if there are follow-up actions for
failure to comply with a directive.
Report on Board stated the remedial
directive would have no impact on
problem drivers because police would
not know which carriers are required to
use an EOBR.
Others described the challenges of
measuring impacts. For instance, Boyle
Transportation contended, any benefits
gained could not be extrapolated to the
population at large because only bad
carriers would be included. Public
Citizen declared the number of carriers
affected by the EOBR requirement is too
small a sample to make statistically
significant statements about the
effectiveness of the number of devices
installed. Maryland SHA stated
imposing the requirement should affect
the carrier’s safety fitness
determination. They noted carriers’
ratings are affected by crashes for which
they are not at fault.
J.B. Hunt, AMSA, and two individuals
supported the two-year period for which
a remedial directive would be required.
These commenters generally did not
provide detailed rationales for their
support; however, generally, they
deemed the two-year period adequate to
2 The goal of CSA 2010 is to develop and
implement more effective and efficient ways for
FMCSA, its State partners and industry to reduce
commercial motor vehicle crashes, fatalities, and
injuries. CSA 2010 will help FMCSA and its State
partners contact more carriers and drivers, use
improved data to better identify high risk carriers
and drivers and apply a wider range of
interventions to correct high risk behavior. See
http://www.fmcsa.dot.gov/safety-security/csa2010/
home.htm.

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enable carriers to come into compliance.
AMSA also added that this period
would allow for carriers to adopt
management controls and corrective
action. Advocates opposed the two-year
period, since once the period expired
carriers could remove the devices;
consequently, carriers will view EOBR
not as an asset, but as a punishment.
Maryland SHA and Advocates stated
the 60-day period (with a possible 60day extension) to require EOBR
installation once a remedial directive
has been issued is too long. Carriers
could continue unsafe practices during
this period. Werner and an individual
commenter thought the 60-day period
was too short. Werner stated for all but
the smallest carriers, the 60-day period
would be used to locate a vendor,
negotiate contracts, obtain delivery,
route all trucks to the terminal for
installation, and train the drivers. Some
of these factors are beyond the carrier’s
control. Flexibility is needed to give
more than 60 days if the carrier is
making a good faith effort to comply.
Response: In response to the
Maryland State Police’s assertion that
follow-up action is needed to enforce
remedial directives, proof of compliance
will be required (e.g., receipts), and
FMCSA will disseminate information to
enforcement personnel nationwide
identifying which carriers are required
to use EOBRs. Carriers who do not
comply with a remedial directive will
be ordered out of service. We believe the
prospect of such an order will ensure
compliance for carriers subject to a
remedial directive.
We appreciate that issuance of a
remedial directive requiring installation
of EOBRs for an entire fleet of CMVs
within 60 days may place a serious
burden on certain carriers.
Consequently, we appreciate Werner’s
concern that some factors, such as
picking a vendor, are sometimes beyond
a carrier’s control, and, therefore,
flexibility is needed where a carrier is
making a good faith effort to comply.
We note that, as proposed, today’s rule
allows FMCSA to extend the period
during which carriers subject to a
remedial directive may operate without
EOBRs for up to an additional 60 days
where the Agency determines a carrier
is making a good faith effort to comply
with a remedial directive. As a result,
while the Agency expects compliance
within 60 days, some carriers may have
up to 120 days, at the Agency’s
discretion. Passenger and hazmat
carriers, however, are limited to a
single, non-extendable 45-day period.
We disagree with ATA’s suggestion to
provide a warning opportunity to allow
for compliance improvements prior to

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issuing a remedial directive. Such
improvements, in practice, are difficult
to assess. For instance, would simply
hiring a new safety officer be sufficient?
Or would merely hiring a consultant for
a short time period to conduct a ‘‘quick
fix’’ assessment of the situation be
adequate? And how quickly would
improvement need to be initiated and
implemented, and for how long would
it need to be sustained? These questions
illustrate some of the challenges to the
Agency of verifying if such mitigation
measures are adopted and, if so,
measuring their effectiveness at
addressing the underlying safety
concerns. Discovery of HOS threshold
rate violations indicates a carrier has
serious management control issues
which need to be addressed promptly
and decisively. If the Agency has made
an erroneous finding, that finding can
be challenged under the administrative
review process proposed in the NPRM
and finalized today.
Because the 1 x 10 approach requires
the finding of an HOS Appendix C
threshold rate violation in only a single
CR, the proposed notice of potential
remedial directive applicability
(NPRDA) is no longer necessary and
thus is not included in this final rule.
The administrative review procedures
apply only upon issuance of a remedial
directive. Otherwise, the administrative
review process proposed in the NPRM
is adopted without change in today’s
final rule.
If a motor carrier believes the Agency
committed an error in issuing a notice
of remedial directive and proposed
unfitness determination, the carrier may
request administrative review under
§ 385.817. Challenges to the notice of
remedial directive and proposed
unfitness determination should be
brought within 15 days of the date of the
notice of remedial directive. This
timeframe will allow FMCSA to issue a
written decision before the prohibitions
in § 385.819 go into effect. The filing of
a request for administrative review
under § 385.817 within 15 days of the
notice of remedial directive will stay the
finality of the proposed unfitness
determination until the Agency rules on
the request. Failure to petition the
Agency within the 15-day period may
prevent FMCSA from ruling on the
request before the prohibitions go into
effect. The carrier may still file a request
for administrative review within 90
days of the date of issuance of the notice
of remedial directive and proposed
unfitness determination, although if
such request is not filed within the first
15 days, the Agency may not necessarily
issue a final determination before the
prohibitions go into effect. Challenges to

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issuance of the remedial directive and
proposed unfitness determination are
limited to findings of error relating to
the CR immediately preceding the
notice of remedial directive.
The final rule does not affect current
procedures under § 385.15 for
administrative review of proposed and
final safety ratings issued in accordance
with § 385.11. The Agency is adopting
non-substantive revisions to § 385.15(a),
however, solely to correct two
typographical errors.
A motor carrier subject to a remedial
directive will not be permitted to
request a change to the remedial
directive or proposed determination of
unfitness based upon corrective actions.
In contrast to § 385.17, under which the
Agency considers corrective actions
taken in reviewing a carrier’s request for
a safety rating change, the only
‘‘corrective action’’ the Agency will take
into account in conditionally rescinding
a proposed unfitness determination
under subpart J will be the carrier’s
installation of § 395.16-compliant
EOBRs and satisfaction of the other
conditions of the remedial directive.
The Agency takes this position due to
the severity of the violations upon
which the remedial directive is based,
the need for certainty in remediation of
the motor carrier’s proven safety
management deficiencies, the
challenges of ongoing monitoring of
corrective action, the likely added
deterrent effect, and the Agency’s desire
to promote use of EOBRs in the motor
carrier industry generally.
The Agency may, nevertheless,
consider a carrier’s installation and use
of EOBRs as relevant information that
could, under certain circumstances,
contribute to an improvement of a
carrier’s safety rating under § 385.17(d).
An upgraded safety rating based upon
corrective action under § 385.17 will
have no effect, however, on an
otherwise applicable remedial directive
or proposed unfitness determination. As
noted above, a carrier may be found
unfit based on either failing to meet the
safety rating component of the safety
fitness standard under §§ 385.5(a) and
385.9, or under § 385.5(b), by failing to
install, use or maintain an EOBR, when
subject to a remedial directive under
§ 385.807.
Appeal rights and administrative
review, and the relationship between
the modified fitness determination rule
in § 385.5 and the existing SFRM in
Appendix B to part 385, were discussed
at length in the NPRM. See 72 FR 2376–
2378. Except for the elimination of the
notice of potential remedial directive
applicability, caused by the shift from a
2 x 10 to 1 x 10 trigger, the

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administrative review procedures in the
final rule are unchanged from those in
the proposed rule. The relationship
between the safety fitness determination
and the SFRM likewise is not modified
by any changes made between the
proposed and final rules.
The Agency adds a new paragraph (e)
to § 385.13 to clarify that motor carriers
receiving a final determination of unfit
or a final unsatisfactory safety rating
will receive notice that their motor
carrier registration under 49 U.S.C.
13902 is being revoked.
4 Transition From an AOBRD to EOBR
System
Several commenters, including a
motor carrier and two system providers,
addressed potential challenges for motor
carriers currently using AOBRDs and
other automated HOS monitoring
systems. They were concerned with
how the compliance dates would affect
their use of current AOBRD systems and
expressed concern that the proposed
EOBR regulation would prevent
transferring proprietary systems to new
trucks manufactured after the proposed
compliance date.
Commenters predicted the period of
transitioning could adversely affect
fleets’ adoption of the new devices. For
this reason, a provider suggested the
phase-in period should be fleet-based
rather than vehicle-based, and that
‘‘breaks’’ should be offered to early
adopters of EOBRs.
Response: It is not the Agency’s
intention to make AOBRDs obsolete or
to require compliant motor carriers to
replace their current systems of
maintaining RODS. Only motor carriers
that are subject to a remedial directive
will be required to install, use, and
maintain EOBRs—and those EOBRs will
need to comply with the new
performance requirements. Any carrier
that voluntarily installs an EOBR after
the compliance date must use a device
that meets FMCSA’s new requirements.
Therefore, the Agency does not consider
it appropriate or practical to institute a
‘‘fleet based’’ compliance schedule for
motor carriers that currently use
AOBRDs and are not subject to a
remedial directive. The Agency does not
wish to penalize HOS-compliant motor
carriers by setting an arbitrary phase-out
date for AOBRDs.
FMCSA is aware of many current
systems with capabilities and features
that exceed those required for AOBRDs
and likely meet most if not all of the
new EOBR requirements. Additionally,
AOBRDs and EOBRs record the same
key information and use the same dutystatus codes, so FMCSA does not
believe drivers or motor carriers will

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require a long transition period. In any
event, FMCSA will monitor
developments related to EOBR system
availability associated with the
implementation of this rule.
5

Privacy
Numerous commenters expressed
concerns about non-HOS uses of the
data being collected by EOBRs. Some
commenters suggested the rule have
more restrictions on access to and use
of the data. Some of these commenters
(primarily carriers or carrier
associations) said the rule should
prohibit law enforcement from using the
data for any purposes other than
enforcing HOS rules, such as issuing
speeding tickets. They also said
agencies not involved in enforcing HOS
should be denied access to EOBR data
unless they obtain the consent of the
carrier or driver. Werner Enterprises
said the rule should clarify how long
law enforcement agencies may retain
EOBR data and whether the agencies
may disclose the data to other parties.
ATA, the Canadian Trucking Alliance,
and AMSA suggested carriers are
unlikely to voluntarily adopt EOBRs
unless there are restrictions on the use
of data for purposes other than
enforcing HOS rules. ATA
recommended statutory protections be
provided to carriers pertaining to the
control, ownership, and admissibility/
discoverability of data generated and
derived from EOBRs, and to assure the
privacy rights of drivers.
Some commenters expressed concern
competitors would gain access to data
recorded by EOBRs. One of them was
also concerned shippers or receivers
would start demanding real-time
monitoring of shipments as part of any
contract. Another commenter was
concerned employers would use the
data recorded by EOBRs to push drivers
to drive when it may not be safe to do
so.
Some parties raised the concern that
data recorded by an EOBR could be
used in post-accident litigation. One
commenter favored using EOBR data to
investigate accidents involving tractortrailers, including vehicle speed,
braking, and steering for the last 30–60
seconds of vehicle travel. The Maryland
SHA said only the following entities
should have access to EOBR data for
investigating tractor-trailers accidents:
The Secretary of the U.S. Department of
Transportation, FMCSA, the
enforcement agency that investigates the
crash, the carrier, and the driver or the
driver’s personal representative.
Several commenters contended
EOBRs would violate the privacy of
drivers. Some of these commenters said

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the proposed EOBR requirement would
be unconstitutional in that use of EOBRs
would violate the Fourth Amendment’s
prohibition against searches absent a
warrant or probable cause. Company
drivers employed by carriers with high
HOS violation rates would find
themselves subject to EOBR monitoring
because of the actions of others, which
would not satisfy a requirement of
probable cause.
OOIDA provided extensive comments
asserting that required use of EOBRs
would constitute an unconstitutional
invasion of privacy as drivers have a
legitimate expectation of privacy when
they sleep, eat, and conduct personal
business in their truck while not
driving. OOIDA said despite FMCSA’s
assurances to the contrary, EOBRs
would capture, store, and make
available a variety of personal and
proprietary information on drivers and
carriers (e.g., routes, customer locations,
etc.) not captured or not accessible
through paper logs. The proposed rule
would require EOBRs to capture the
location and time of a truck in motion
every minute. This information would
be electronically transferable and
capable of being stored for later
retrieval. Because a driver can operate a
truck for personal conveyance, the
EOBR would record where the driver
spends his private time. OOIDA asserted
the contemplated use of EOBRs fails to
meet the legal requirements for a
warrantless search. Such constant
electronic surveillance would amount to
a search of the driver as defined by the
Fourth Amendment. Therefore, the use
of EOBRs implicates core privacy
interests, including the right to privacy
in personal information and in
associations. OOIDA further asserted it
is impossible to understand the full
impact of the proposed EOBR rule on
privacy without knowing more about
the pending rulemaking on HOS
supporting documents.
OOIDA said the data captured by
EOBRs is at far greater risk for
dissemination and misuse than data
recorded by log books. It said any data
created by an EOBR that are collected by
the government for investigation or
enforcement or any other reason would
be subject to requests under the
Freedom of Information Act (FOIA) and
could be available by request to anyone,
including the general public. OOIDA
said the U.S. Department of
Transportation’s Research and
Innovative Technology Administration
(RITA) Volpe Center’s report
(‘‘Recommendations Regarding the Use
of Electronic On-Board Recorders
(EOBRs) for Reporting Hours of
Service,’’ September 26, 2005, available

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at http://www.regulations.gov, ID
FMCSA–2004–18940–0351) agreed with
this conclusion. A commenter said
because data collected by Federal
agencies are subject to FOIA, carriers
should not have to report GPS location
data. ATA asked FMCSA to work with
the trucking industry to seek enactment
of Federal statutory protections of EOBR
data. ATA said Federal law should
support and clarify that motor carriers
are the owners of the data recorded by
EOBRs and thus they should have
exclusive control over the data.
Response: This final rule does not
change the Agency’s treatment of HOS
records concerning access, use and
retention. FMCSA’s predecessor
agencies have had the authority to
review drivers’ and motor carriers’
documents since 1937, when the first
HOS regulations were promulgated (3
MCC 665, Dec. 29, 1937; 3 FR 7, Jan. 4,
1938). From the Motor Carrier Act of
1935 onward, Congress has recognized
the Federal Government’s interest in
providing a higher level of safety
oversight to CMV drivers. CMV driver
licensing, driver’s physical
qualifications, training, and
performance of driving and other safety
sensitive duties are subject to Federal
regulation. The Federal Government
also requires records to document the
results of various types of assessments
(such as assessment of physical
qualifications and controlled substances
and alcohol testing) and compliance
with regulations concerning CMV
operations (such as RODS to document
HOS).
The HOS information recorded on
EOBRs will be examined by Federal and
State enforcement personnel when they
conduct compliance reviews or roadside
inspections. Motor carriers will not be
required to upload this HOS
information into Federal or State
information system accessible to the
public. Furthermore, enforcement
agencies will request and retain copies
of HOS information to document
violations and will not disclose private
personal or proprietary information.
The final rule maintains current uses
of HOS data to determine compliance
with the HOS regulations. While we
recognize the important privacy
concerns raised by carriers and drivers,
we believe this final rule carefully
fulfills the Agency’s need for accurate
compliance data without creating any
undue intrusion upon a CMV driver’s
privacy. The only information FMCSA
is requiring EOBRs to collect is that
information necessary to determine
driver and motor carrier compliance
with the HOS regulations.
Consequently, FMCSA did not propose

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in the NPRM, nor will it require in the
final rule, that EOBRs record data on
vehicle speed, braking action, steering
function, or other vehicle performance
parameters necessary for accident
reconstruction. Regarding the concern
over potential use of EOBR data in postcrash litigation, this rule does not affect
the rights of private litigants to seek
discovery. Similarly, existing provisions
governing FMCSA disclosure of motor
carrier and driver information under
FOIA are not affected by this
rulemaking.
The Agency understands some drivers
view their off-duty time and related
information pertaining to their CMV’s
location as being sensitive information.
Although the Agency does not find a
legitimate expectation of privacy in the
public location of a commercial motor
vehicle, it will require automatic
recording of CMV location information
only to the level of precision (State,
county, and Populated Place) shown in
the Geographic Names Information
System (GNIS) maintained by the
United States Geological Survey.
FMCSA is also declining to require
locational tracking more frequently than
once every 60 minutes while the truck
is in motion. The main reason
enforcement personnel would need to
determine a history of a CMV’s location
would be to verify the driver’s HOS
compliance. This can normally be
accomplished by reference to the name
of the nearest city, town, or village,
without the precise geographic
coordinates necessary to identify, for
example, a particular restaurant where a
driver stopped for a meal. This is the
requirement today with AOBRDs, and it
also will be required under new
§ 395.16(f)(4). Except in the context of
an investigation of a crash or a
complaint of alleged FMCSR violations
(when the Agency might inquire into
off-duty time to learn if a driver was
working for another motor carrier or
performing other work during an alleged
off-duty period), FMCSA generally does
not inquire into a driver’s off-duty
activities. The Agency’s interest in
records of duty status that identify the
date, time, and location at each change
of duty status is based on its need to
reconstruct the sequence of events for
trips to determine compliance with the
HOS regulations, including whether the
driver was provided an off-duty period
that could be used to obtain restorative
sleep. If during this enforcement process
FMCSA found evidence of vehicle
activity during a claimed off-duty
period, we would inquire further to
establish the veracity of the RODS.
Briefly described are new provisions
previously proposed in the January 2007

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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
NPRM regarding default status for
EOBRs and audit trails. FMCSA will
require the ‘‘default’’ status for an EOBR
be on-duty not driving (ODND) when
the vehicle is stationary (not moving
and the engine is off) for 5 minutes or
more. When the CMV is stationary and
the driver is in a duty status other than
the ODND default setting, the driver
would need to enter the duty status
manually on the EOBR. The
performance requirements of § 395.16
add a provision for automatically
recording the location of the CMV. The
Agency believes this requirement strikes
an appropriate balance between
improving the accuracy and reliability
of ODND status information and offduty information without intruding
unnecessarily upon the privacy of the
driver. Drivers would still be required to
record the location of each change of
duty status, as currently required under
§§ 395.8 and 395.15. Finally, as stated in
the NPRM (72 FR 2352), the Agency
recognizes the need for a verifiable
EOBR audit trail—a detailed set of
records to verify time and physical
location data for a particular CMV—
must be counterbalanced by privacy
considerations. See also the discussion
on FMCSA’s Privacy Impact Assessment
under preamble section V. Rulemaking
Analyses and Notices.
We disagree with two assertions made
by OOIDA based on the premise that
‘‘any EOBR data collected by the Federal
Government is subject to FOIA and may
be available to any entity or the general
public.’’ OOIDA’s statement is an overly
simplistic interpretation of our
responsibilities under FOIA and DOT
regulations. See 49 CFR part 7. The
Volpe Center statement relied upon by
OOIDA is not the official legal opinion
of FMCSA. The Agency rejects OOIDA’s
interpretation based on the two
scenarios raised.
First, FMCSA rejects the OOIDA
argument that EOBRs will allow a
competitor to obtain access to
information that would be deemed
proprietary, such as carrier routes. If the
information was indeed proprietary, the
information would be exempt from
FOIA disclosure under 5 U.S.C.
552(b)(4). Given that the Agency is only
requiring EOBRs to collect locational
data at each change of duty status and
at intervals of no greater than 60
minutes while the CMV is in motion,
and given that the locational data need
only identify the nearest city, town, or
village, the information gathered is not
likely to be precise enough to allow
routes or customers to be determined. It
is also likely that competitors could, to
some extent, discern motor carriers’
routes by other means. No commenter

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has provided information demonstrating
competitive harm—a showing mandated
by FOIA—would occur from disclosure
of EOBR data as proposed in the NPRM.
In the absence of such a showing, the
Agency has determined today’s final
rule, in conjunction with existing legal
authorities, properly balances the need
to safeguard proprietary information
against the need to enforce safety
statutes and regulations.
Second, OOIDA alleges that FOIA
could be used to obtain personal
information, including truck location.
As a preliminary matter, the Agency
does not agree that the location of a
CMV in a public place qualifies as
‘‘personal information.’’ Moreover, with
respect to genuinely personal
identifying information, FOIA’s
exception for personnel, medical and
similar information at 5 U.S.C. 552(b)(6)
severely restricts the Agency from
disclosing such information. In response
to past FOIA requests for driver RODS
from a carrier, the Agency has redacted
all information that would reveal the
identity of an individual driver. The
Agency need not, and will not, disclose
the name of a driver when the sec.
552(b)(6) exemption allows the Agency
to disclose the HOS records in a
redacted form. The Agency has also
denied FOIA requests seeking
individual driving records in the
Agency’s possession. OOIDA’s
characterization does not accurately
reflect applicable judicial standards for
the disclosure or withholding of private
personal information.
We also disagree with OOIDA’s claim
that required use of EOBRs amounts to
an illegal search under the Fourth
Amendment. It is well-established that
the collection and inspection of
documents and information pursuant to
regulatory guidelines do not violate the
Fourth Amendment. The data that
compliant EOBRs will gather are
comparable in most respects to the data
already required on RODS. Further,
there is no reasonable expectation of
privacy in the location of a CMV, which
can be monitored by the naked eye. The
installation and use of the EOBR will
also be known to the driver, and thus
any expectation of privacy that might
exist in the location of the CMV is
significantly diminished.
6 Performance-Oriented Standards for
EOBR Technology
6.1 Use of Detailed Design
Specifications
A number of commenters disagreed
with FMCSA’s approach of using
performance oriented standards in the
NPRM, and advocated using detailed

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design specifications instead. Three
asked for prescriptive guidance on how
EOBRs must record HOS for drivers
who work for multiple carriers or who
drive multiple CMVs. CMV
manufacturer ITEC stressed the need for
interoperability between EOBRs and the
equipment used by law enforcement
officials, including both hardware
connections and software compatibility.
Siemens criticized the proposed
performance-based approach,
advocating instead a ‘‘single technical
solution’’ to account for HOS for drivers
who operate more than one CMV during
any given day. Siemens believes, based
upon its experience with international
requirements for HOS monitoring, that
an EOBR system’s technical concept
should be ‘‘tailored for the specific
needs and goals of the region in which
they are being considered.’’
Several other commenters, including
XATA, SC&RA, and ATA expressed
concerns with FMCSA’s approach. They
seek specific, uniform, and consistent
EOBR requirements related to EOBR
utility, reliability, tamper-resistance,
accuracy, durability, and effectiveness.
Because electronic equipment
technologies and industry consensus
standards and recommended practices
evolve over time, they questioned
whether FMCSA’s regulation would
provide sufficiently clear direction to
suppliers and users of EOBR systems.
ATA asserted motor carriers would not
adopt EOBRs until their ‘‘compliance’’
was assured. Until that point, ATA
believed motor carriers would not be
able to accurately assess potential
benefits and costs of EOBRs, and the
potential for improving EOBR
technology would be constrained. ATA
recommended FMCSA publish an
SNRPM to revise its proposed
performance specifications.
Siemens and PeopleNet expressed
concern about a need for design
specifications to promote
implementation of EOBR data integrity
requirements. Siemens focused on
EOBR data integrity through operational
and legal chains of custody. Although it
did not elaborate on its reasoning,
Siemens contended neither AOBRDs
nor the proposed EOBRs would protect
data from falsification and called on
FMCSA to standardize file formats,
download protocols, and user interfaces.
Siemens also recommended FMCSA
reference a ‘‘defined’’ [published]
security standard such as the Common
Criteria to define the level of tamper
resistance.
Response: As the commenters point
out, information technology standards
evolve over time; performance standards
allow EOBR suppliers to implement

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solutions that will improve users’ ability
to enter, review, and use data efficiently
and effectively without constraining
innovation or improvements.
Responding to comments concerning
prescriptive requirements to ensure data
integrity during transfers, Appendix A
to part 395 addresses requirements for
hardware, software, and
communications related to transfer of
data from an EOBR to a safety official’s
portable computer. As will be discussed
later in this section, FMCSA has
substantially revised these requirements
in response to the comments on the
NPRM.
Responding to Siemens’comments
about the necessity for a ‘‘single
technical solution’’ for all EOBR
applications, FMCSA disagrees. A full
set of design specifications for
hardware, software, and
communications methods would
impose unnecessary restrictions on the
design of EOBRs and support systems,
limit the ability to adopt emerging
technologies, and constrain motor
carriers with different operational
characteristics from implementing
EOBR applications. However, the data
element dictionary will serve as a guide
to developers of EOBR and support
systems to foster the use of compatible
data structures for the benefit of both
motor carriers and safety oversight
agencies.
Responding to comments concerning
cross-referencing European Union (EU)
standards, FMCSA notes that the EU
Council regulation No. 2135/98 requires
a ‘‘driver card’’ for recording and
transferring HOS data. It does not
include provisions for wireless data
transfer. In contrast, many North
American suppliers of AOBRD systems
currently provide wireless data transfer
capabilities between a CMV and the
motor carrier’s information management
systems via satellite or cellular
transmission. FMCSA does not agree
that data transfer methods requiring the
use of physically removable media
should be mandated, because wireless
data transfer (1) provides motor carriers
considerably more flexibility to
implement HOS and other motor carrier
operational oversight systems, and (2)
does not have an adverse effect on the
quality and integrity of the HOS data.
With respect to data integrity,
although FMCSA is not requiring
specific information technology
structures, the Agency expects motor
carriers and their EOBR system
providers to use appropriate methods
and procedures in the development,
testing, and operation of HOS
information systems to ensure data and
information integrity. However, after

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reviewing the ‘‘Common Criteria’’ cited
by Siemens, ‘‘Common Criteria for
Information Technology Security
Evaluation,’’ the Agency understands
that these requirements were developed
primarily for use with national security
and defense communities and would go
far beyond what is necessary for
monitoring HOS compliance.
6.2 Information and Display
Requirements
6.2.1 Information Content
Requirements
Several commenters objected to the
proposed requirement for EOBRs to
record information currently required
by the HOS regulations, including
shipping information, motor carrier
name and USDOT Number, and a time
and location entry at each change of
duty status. One supplier contended an
EOBR would need a ‘‘full keyboard’’ to
enter this information. Seven
commenters objected to the proposed
requirement to include State line
crossing information, questioning its
relevance to HOS compliance assurance.
Werner asked for clarification of the
‘‘24-hour start time,’’ because it believes
the 24-hour period of the underlying
HOS regulation is affected by the ‘‘split
break’’ and would vary. Although it
noted the ATA Technology and
Maintenance Council’s (TMC) Technical
Policy Advisory (TPA) (collectively,
TMC TPA) recommended the use of the
four codes (i.e., OFF, SB, D, and ON),
Werner asked for flexibility to allow use
of other duty status codes. Conversely,
Siemens held the four codes should be
unique to avoid inconsistencies. ITEC
asked if there was a potential
inconsistency between the diagnostic
event codes and the code words in
Table 3, EOBR Diagnostic Event Codes.
ITEC and a motor carrier asked for
flexibility in coding of latitude and
longitude values to allow software users
to operate outside of North America.
Werner stated its system calculates the
name of the nearest city or town from
latitude/longitude coordinates.
Response: As noted earlier, this
rulemaking updates and revises the
requirements for use of technological
methods to record HOS. It does not
change the underlying HOS regulations.
With the exception of the requirement
to record CMV location hourly while the
CMV is in motion, it does not change
the basic requirements for documenting
HOS-related information (such as motor
carrier identification).
FMCSA disagrees that an EOBR
would need a ‘‘full’’—presumably a fullsized—keyboard. Some of the earliest
AOBRDs did not have full keyboards,

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leading to the requirement in
§ 395.15(d)(2) for a listing of location
codes. Many contemporary devices have
full keyboards (although the dimensions
are considerably smaller than those
used with desktop computers). Others
use partial keypads or touch-sensitive
screens. Information such as the carrier
name, USDOT Number, and shipping
document references can also be entered
automatically through centralized or
administrative applications. These
entries continue to be necessary to
identify the motor carrier, CMV, and
other information related to the
transportation. EOBRs must
accommodate recordkeeping for drivers
who operate multiple CMVs, as
AOBRDs are required to do.
FMCSA agrees that display of State
line crossing information is not
necessary for HOS compliance
assurance purposes and has removed
the requirement from the rule.
Collection of State line crossing
information for fuel tax reporting
purposes will continue to be optional,
as in the current AOBRD rule.
Responding to Werner’s question
about the start time for a 24-hour period,
this regulation has not changed. Both
§§ 395.8(d) and 395.15(c)(10) of the
current rules allow the motor carrier to
select the 24-hour period starting time.
Responding to comments on duty
status coding, the identifiers will remain
‘‘driving’’ or ‘‘D,’’ ‘‘on-duty, not driving’’
or ‘‘ON,’’ ‘‘off-duty’’ or ‘‘OFF,’’ and
‘‘sleeper berth’’ or ‘‘SB.’’ This maintains
consistency with current regulation and
for the transition from AOBRDs to
EOBRs. Also, a driver could enter
explanations concerning duty status
activities (such as a period of ON time
spent loading a trailer or performing
maintenance on a power unit) in the
Remarks section.
In response to ITEC’s question about
event codes, the labels for the event
codes are 6 characters, but the codes
themselves would be 2 characters
(bytes) in length.
In response to the questions about
latitude and longitude codes, the
proposed rule was written with North
American users in mind. FMCSA
recognizes some CMVs may travel
outside North America, and other
nations might want to adapt the FMCSR
requirement. In the interests of
international harmonization, the final
rule makes a nominal revision to the
data dictionary to accommodate a field
for east/west latitude (‘‘E/W’’) and north/
south longitude (‘‘N/S’’). EOBR and
system suppliers may set these fields to
default to ‘‘N’’ and ‘‘E’’ entries.
As to the use of an algorithm to
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village, Question 3 of the Regulatory
Guidance to § 395.15 allows this.
FMCSA intends to allow EOBR systems
to use this method as well. The
Regulatory Guidance is added as
§ 395.16 (f)(4). However, the Agency has
not accepted and will not accept only
latitude-longitude codes as location
records because they do not provide a
safety official with a way to quickly
determine a geographic location on a
standard map or road atlas. (See
§§ 395.15(d) and 395.16(f)(2).) Although
the provision for location codes in
§ 395.16(f)(5) is specific to the United
States, EOBR and system suppliers may
augment their location-tracking
capabilities to include locations outside
the United States.
6.2.2 Driver Acknowledgement of HOS
Limits Alerts § 395.16(o)(4))
Qualcomm and the TMC TPA oppose
the proposal to require a driver to
acknowledge warnings of HOS limits.
The TMC TPA recommends the EOBR
include configurable alert capabilities so
a driver could receive several alerts
before reaching the regulatory limits of
HOS. Qualcomm stated it was unclear
what would be required if the driver
failed to acknowledge warnings. Werner
was concerned about a conflict between
the reporting time for position histories
and the ability to record a 30-minute
warning. In contrast, Maryland SHA
stated the warning should be recorded
in the EOBR and made part of the
driver’s record.
Response: The proposed ‘‘response’’
provision would have required the
driver to interact with the EOBR while
the CMV is in motion, and it is not part
of the final rule. FMCSA does not
believe it is appropriate to require the
driver to interact with the EOBR while
the vehicle is in motion. However, the
requirement for the minimum, 30minute alert remains in the final rule.
6.3 Duty Status Category When
Vehicle Is Not Moving (§ 395.16(d))

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6.3.1 EOBR Must Default to On-Duty/
Not-Driving When Vehicle Is Stationary
for 15 Minutes or More
Werner and the Maryland State Police
agreed with the proposed 15-minute
default to on-duty/not-driving (ODND).
In contrast, Qualcomm and Siemens
asserted the 15-minute period was too
long and that the determination of
driving/non-driving time should be
more flexible and should also reflect
motor carriers’ operational practices in
recording driving time. Siemens
recommended switching to ODND
whenever a CMV stops, contending that
the interpretation of stops should be

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part of the compliance software, rather
than the data record.
Commenters suggested two distance
thresholds for an EOBR to record a CMV
in motion as ‘‘D.’’ Werner suggested a 2mile threshold, while Qualcomm and
the TMC TPA recommended a 1-mile
threshold. For changing a default status
from D to ODND, Werner recommended
if a vehicle moves less than 1 mile, a 5minute stop would reset the movement
threshold. The ‘‘driving stop’’ situation
should alert the driver of duty status
change and allow the driver to override
the default. For example, the duty status
would remain D if the CMV were
stopped in traffic or when the driver
operated auxiliary vehicle functions
while seated at the driving controls.
Response: FMCSA agrees that a 15minute period is too long. Section
395.16(d) has been revised to require
that an EOBR automatically record
driving time, and the EOBR’s entry must
change to on-duty not driving when the
CMV is stationary for 5 minutes or
more. The driver must then enter the
proper duty status. If the CMV is being
used as a personal conveyance, the
driver must affirmatively enter an
annotation before the CMV begins to
move.
FMCSA agrees with the TMC TPA’s
interpretation concerning the entry of
the time of a duty status change: it must
be done when the change takes place.
6.3.2 Recording and Confirmation of
On-Duty Not Driving and Driving Status
Several commenters, including
Werner, Qualcomm, ATA, the MTA,
and the authors of the TMC TPA asked
FMCSA to clarify how to record duty
status information when the CMV is in
motion, but the driver is not in a
‘‘driving’’ status. These situations
include a maintenance technician
repositioning a CMV in a motor carrier’s
yard and a driver using a CMV as a
personal conveyance. Commenters also
cited the draft TMC TPA’s treatment of
situations where a driver fails to log on
to the EOBR, prompting the driver and
continuing to record driving time if the
driver ignores the prompt, and allowing
a driver to confirm previous driving
time, and generating a system error if a
driver ignores prompts.
Response: As is the case with
AOBRDs, the driver would need to
select and enter the proper duty status
and make the appropriate entry in the
‘‘Remarks’’ section of the record. This
rule does not change the way FMCSA
defines ODND activities. In response to
the questions concerning use of a CMV
as a personal conveyance, FMCSA has
revised §§ 395.16(d)(1) and 395.16(h)(3).
If a CMV is being used as a personal

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conveyance, the driver must
affirmatively enter an annotation before
the CMV begins to move.
6.3.3 Other Comments on Duty Status
Defaults
IBT, OOIDA, TCA and 23 other
commenters stated that the need for
manual entry of non-driving status
creates the same potential for violations
of the HOS rules as the present system.
For many drivers, ODND time may
account for a substantial proportion of
their work schedules. Because drivers
may receive less pay for hours ODND
than for driving time—or no pay at all—
they have an economic incentive to
under-report the number of those hours.
OOIDA contends if drivers were
compensated for this time most
deficiencies in drivers’ recording their
ODND time would disappear.
Response: FMCSA is not aware of any
devices currently available that would
enable automatic recording of all
categories of duty status, nor did any
commenters suggest that such devices
are available. Given concerns about
personal privacy in general, we do not
believe proposing the use of personal
activity monitors for HOS compliance
purposes would be appropriate. Despite
the need to require the driver to
manually enter some kinds of
information, FMCSA believes the
automatic recording of CMV location
information will assist the Agency in
investigating potential violations of part
395.
As to drivers’ compensation for
ODND time, driver compensation is not
within FMCSA’s jurisdiction.
6.4 Malfunction Alert System
Several commenters opposed the
proposed requirement for an EOBR to
provide an audible and visual signal
when it ceases to function properly
(§ 395.16(o)(6)). KonaWare, Qualcomm,
TMC, Werner, and FedEx believe the
requirement for a failure-alert system
would add to the costs of an EOBR.
Qualcomm expressed concern that
driver alerts for minor interruptions in
device operation, such as loss of mobile
communications network coverage for
very short periods of time should not be
required while the CMV is being driven.
Instead, Qualcomm believes they should
be indicated only when the vehicle is
stopped or if they affect required data
capture, requiring the driver to enter
remarks or amend a record.
The TMC TPA and Qualcomm
recommended FMCSA allow the driver
to fill in missing data for non-critical
sensor failure. The data would be
‘‘annotated’’ as driver-added
information, and a record of the sensor

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failure would be included in the log
data. ATA said more specificity was
needed on driver reporting, carrier
correction, and sensor failures.
Response: FMCSA continues to
believe it is necessary to require the
malfunction alert system required for
EOBRS in § 395.16 remain essentially
the same as that currently required for
AOBRDs in § 395.15(i)(4). FMCSA
agrees with the commenters that certain
types of brief interruptions in operation
should not be considered an ‘‘EOBR
device failure.’’ In particular, the Agency
acknowledges location information can
be momentarily lost due to signal
blockages, such as from bridges or
geographic features. The Agency revises
§ 395.16(o) to clarify subsystem and
sensor failure alert.
6.5 Synchronization of EOBR to
Vehicle (§ 395.16(e) and (g))
Most commenters strongly disagreed
with the proposal to allow EOBRs
without integral synchronization with
the vehicle. Vendor commenters XATA,
Qualcomm, Tripmaster, Siemens, and
PeopleNet, motor carriers Boyle
Transportation, Fil-Mor Express, and
J.B. Hunt, safety advocacy groups IIHS
and Advocates, and CVSA and TMC
provided extensive comments opposing
the Agency’s proposal to allow the use
of EOBRs that are not synchronized
with the CMV. Various commenters
addressed both the need for integral
synchronization and the inability of
GPS technologies to provide driving
time and CMV travel-distance
information with sufficient accuracy.
XATA commented that a duty status
other than D is difficult to automate, so
the D status must be as accurate as
possible. A connection to the engine
makes it possible to automatically enter
the vehicle identification, so only the
driver’s identification must be entered
manually. XATA suggested entering
both items of identification manually
increases opportunities for falsification
and difficulty of auditing.
Tripmaster was concerned nonsynchronized EOBRs could not be
designed to prevent tampering and
manipulation. Tripmaster recommended
synchronization include obtaining
power from the vehicle, obtaining
distance from vehicle-based sensors or
networks, and ensuring the device could
not be deactivated without visible signs
of tampering. Tripmaster also believed
FMCSA could generate more realistic
performance standards for synchronized
than for non-synchronized EOBRs.
Tripmaster and the TMC TPA noted the
inherent inaccuracies of GPS-based
distance measurement (citing a
University of Oregon study that found

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GPS-based distance accuracy to range
from 75 percent to 94 percent of actual
distance traveled). Tripmaster added
that non-synchronized devices could
provide location data from the driver
carrying the device on his/her person,
well beyond what is required to verify
the accuracy of the RODS and that
auditing the electronic RODS records for
non-synchronized EOBRs would be
problematic, particularly if there would
be no supporting documents to verify
driving time.
IIHS and Advocates stated FMCSA
failed to provide evidence the nonsynchronized EOBRs can provide secure
and accurate records, be made tamperresistant, or ensure records will be
related to a unique truck, driver, and
carrier. Advocates was particularly
concerned FMCSA’s proposed approach
would eliminate the Agency’s ability to
assess the design and operational
integrity of EOBRs.
With respect to use of GPS
technologies substituting for integral
synchronization, Qualcomm, ITEC, and
other commenters cited problems
associated with losing the GPS signal.
GPS technology suffers from ‘‘canyon
effect’’ in urban areas, where tall
buildings and tunnels can block the
communications pathways to the GPS
satellites, and even relying on GPS
signals for distance traveled on a
minute-by-minute basis may not achieve
the accuracy FMCSA desired in the
NPRM. Furthermore, the straight line
point-to-point distances computed
between recording intervals is less than
actual travel distances over curved
segments of highway. For this reason,
Boyle Transportation favored a
requirement for EOBRs to have GPS
capability and to be synchronized to the
engine, to improve both tamperresistance and the ability to calibrate the
device.
A number of commenters stated nonsynchronized systems would be
vulnerable to tampering and
manipulation. Tripmaster, J.B. Hunt,
and PeopleNet noted non-tethered
devices can be turned on and off or
removed from the vehicle and left
behind, leading to falsification of travel
distance and duty status information.
J.B. Hunt, Tripmaster, PeopleNet and
the TMC TPA noted physically blocking
a GPS receiver’s antenna (such as by
covering it with aluminum foil) was
completely effective in blocking the
signal, and the signal could be
corrupted by a noisy radio frequency
(RF) transmitter. Siemens added that
unsynchronized EOBRs would be
useless for enforcement if used by
drivers willing to cheat because their
data integrity would be no better than

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with manual RODS. Additionally, safety
officials would not have an enhanced
tool to detect falsification; and, if EOBRs
were to be mandated only in the context
of a remedial action, this flaw would be
magnified. Siemens added that there is
no way to prevent interruption of signal
availability (for example, in tunnels or
when the driver turns it off
purposefully).
Only a few commenters supported the
proposal to allow non-integrallysynchronized EOBRs. Verigo described
its PDA-based electronic logbook and
questioned the justification for a more
complex system. Xora supported nonintegrally synchronized EOBRs on the
basis of their lower costs and potential
wider adoption. ATA stated it would
support unsynchronized EOBRs only if:
(1) Effective controls could be
developed to prevent or minimize
system weakness, especially deliberate
blockage or loss of data; or (2)
sufficiently severe penalties could deter
these violations. CVSA believed
untethered EOBRs might be possible in
the future.
Response: After considering the
comments on this issue, FMCSA
decided to require EOBRs to be
integrally synchronized with the CMV
in which it is installed. This parallels
the current requirement for AOBRDs in
§ 395.15. The definition of an ‘‘integrally
synchronized’’ device in the final rule is
as proposed in the January 2007 NPRM.
The current definition of AOBRD in
§ 395.2 calls for the device to be
‘‘integrally synchronized with specific
operations of the commercial motor
vehicle in which it is installed.’’ It
implicitly defines synchronization
through a performance-based
requirement: ‘‘At a minimum, the device
must record engine use, road speed,
miles driven, the date, and time of day.’’
The final rule is explicit in its
definition: an integrally-synchronized
AOBRD or EOBR must receive and
record the engine use status for the
purpose of deriving on-duty driving
status from a source or sources internal
to the CMV.
The NPRM based the proposed use of
non-synchronized devices upon the
assumed accuracy of those devices to
measure the distance traveled by a
CMV. After reviewing the comments
that questioned those assumptions,
FMCSA decided it would be prudent to
conduct a limited field test of several of
these devices. The Agency entered into
an interagency agreement with the
Volpe Center to perform this work. The
results of this effort are documented in
the report, ‘‘Evaluation of the Accuracy
and Reliability of GPS-Based Methods
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Distance,’’ which has been placed in the
docket for this rulemaking.
The study assessed the performance
of commercial off-the-shelf GPS
receivers using various types of
antennas and antenna mount
configurations and waypoint time
intervals (that is, time intervals during
the trips) of 10, 30, 60, and 120 seconds.
The vehicles’ odometers were calibrated
on a certified course and the GPSderived measurements were compared
to those corrected odometer readings.
The accuracy for vehicle driving
distance measurements made within
this study ranged from 1.9 percent to
10.6 percent less than actual baseline
driving distance. In light of this
significant level of inaccuracy, FMCSA
concluded that the integral
synchronization requirement should
remain.
6.6 Accuracy and Frequency of Data
Recorded by EOBRs

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6.6.1

Rounding

ATA and Werner stated the rule
should not place a motor carrier that
elects to use EOBRs at a disadvantage
over those that do not. One specific
issue was that of ‘‘rounding’’ information
recorded on paper RODS to the nearest
15 minutes. ATA offered an example of
a driver beginning to drive at 6:55 a.m.
after a 10-hour off-duty period. If the
driver used a paper RODS the time
would be entered as ‘‘7:00 a.m.,’’ and the
driver would be in compliance with the
HOS regulations. However, if ‘‘6:55
a.m.’’ appeared on the RODS the driver
would be in violation.
Response: In the situation these
commenters describe, there is an
inherent advantage for the use of
handwritten RODS. The 15-minute grid
on the RODS allows for flexibility in
estimating start and stop times (i.e.,
changes in duty status). Question 1 of
the Regulatory Guidance for § 395.8
[available through http://
www.fmcsa.dot.gov] states that short
periods of time (less than 15 minutes)
are to be noted in the Remarks section
of the RODS. By contrast, a driver using
an EOBR (or an AOBRD) could be cited
for any time period over or under the
prescribed requirements. However,
FMCSA believes such small differences
are not likely under most circumstances
to warrant enforcement action,
particularly when they are few and
isolated.
6.6.2

Location Information, General

Two commenters addressed the
precision of location information.
KonaWare recommended a location
precision only to the level of the nearest

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city, with latitude-longitude data
included in the detailed record to
complement it. Qualcomm questioned
the meaning of the phrase, ‘‘correspond
to Census Bureau 2000 Gazetteer County
Subdivision data,’’ and whether that
referenced source is the most current.
FedEx stated the Census Bureau 2000
Gazetteer ‘‘County Subdivision’’ data did
not correspond to actual city names that
would make sense to a person viewing
the location. FedEx held the
requirements in § 395.15(d)(1) give a
person enough information to determine
the location of status changes (i.e., city,
town, or village, with State
abbreviation).
Response: FMCSA proposed to
include latitude and longitude in the
Data Elements Dictionary. The Agency
proposed ‘‘nearest populated place’’ per
Federal Information Processing
Standard Publication 55 (FIPS 55)
because ‘‘city’’ has a specific meaning
under some States’ laws: in some
jurisdictions, there are many populated
places in FIPS 55 that are not ‘‘cities.’’
In response to Qualcomm’s question,
the County Subdivision information is
contained in FIPS 55. The FIPS 55 data
set has been integrated into the U.S.
Geological Survey’s Geographic Names
Information System (GNIS), and all
references to that source in the final rule
will reflect this change.
6.6.3 Frequency of Recording Location
Information (§ 395.16(f))
Many commenters believed the
proposed 1 minute update interval was
excessive and unwarranted. PeopleNet,
XATA, Boyle Transportation, FedEx,
and several others were concerned the
size of the resulting dataset would lead
to significantly higher onboard data
storage and data transfer costs.
Qualcomm, ATA, and others indicated
such a frequent recording interval
should not be required when the CMV’s
motion and mileage are determined
through a synchronized, tamperresistant interface with vehicle sensors.
The TMC TPA stated minute-byminute location history should be
required only for purposes of auditing
GPS-based mileage accuracy of a nonsynchronized EOBR. Also, XATA
contended that the requirement for
location recording frequency should
take into consideration whether or not
EOBR synchronization would be
required.
ITEC recommended a recording
interval of no less than every 5 minutes,
citing reduced onboard storage, as well
as data transmission and costs, both
from CMV office and CMV roadside
inspector’s computers. PeopleNet
suggested a 5- or 15-minute interval

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might be sufficient so long as accurate
mileage information were recorded from
the CMV’s electronic control module
(ECM). FedEx recommended a 75minute interval for sending data to the
host (back office) and a 15-minute
location record. CVSA supported the 1minute interval and plus or minus 1
percent accuracy. DriverTech also
supported the 1-minute interval.
Some commenters, including ATA,
Tripmaster, and J.B. Hunt,
recommended FMCSA retain the
current requirement to record the CMV
location only at each change of duty
status. Werner cited its practice of
receiving hourly updates of CMV
position.
Response: FMCSA acknowledges the
commenters’ concerns about the
proposed 1-minute recording interval.
The final rule requires location and time
to be recorded at an interval of no
greater than 60 minutes while the
vehicle is in motion. The reason for
selecting an appropriate locationrecording interval is to ensure travel
distance and the associated driving time
are recorded and reported at a level of
accuracy appropriate to ensure HOS
compliance. Based on the information
provided by commenters and the
Agency’s decision to continue to require
that on-board recorders be integrally
synchronized, the Agency believes the
new requirement achieves an
appropriate balance between accuracy
and affordability.
As discussed in the NPRM and in the
preamble of this final rule, the Agency
expects the addition of the requirement
to automatically record location
information will significantly improve
the accuracy of driving time
information.
6.6.4 Clock Drift
Qualcomm recommended several
revisions to the proposed requirements,
including a requirement for the clock
drift tolerance for systems with or
without mobile communications to not
exceed 3 minutes at any time. These
systems should be calibrated at least
every 3 months. For systems without
mobile communications, vehicle system
clocks should be calibrated at least 3
times per year against an external
trusted source. Motor carriers should
maintain records of all clock
recalibrations, including the degree of
adjustment.
ATA stated the clock accuracy
requirement should be realistic and the
regulation needs to address how clock
accuracy is managed. ATA cited the
TMC TPA and its discussion of the
Technology and Maintenance Council’s
Recommended Practice 1219(T) (TMC

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RP 1219(T)). TMC RP 1219(T)
recommends that clock drift be checked
periodically. EOBRs with mobile
communications and/or GPS may
recalibrate, or use calibrated network or
GPS time, on a continuous basis. Clock
resets and recalibration adjustments
should be made only by a trained
technician. Adjustments that exceed the
allowable threshold should be entered
into the EOBR’s maintenance record.
Werner asserted a requirement for
clock accuracy would provide no
significant benefit to the system. Werner
cited questions raised in the TMC TPA,
particularly the proposed 2 second per
day time drift. Siemens stated the clock
requirement is achievable, but will
require a periodic synchronization with
a trusted time reference. Tripmaster
recommended FMCSA consider a
requirement for clock time drift of less
than 1 minute per month and that it be
checked every 3 months.
The TMC TPA also provided specific
recommendations for recalibration of
EOBR clocks: (1) Clock drift should not
exceed 1 minute with calibration
required at least every 3 months; (2)
clocks determined to drift more than an
average of 1 minute per month must be
repaired or replaced; (3) EOBRs with
mobile communications and/or GPS
should recalibrate or use calibrated
network or GPS time on a continuous
basis; (4) clock resets and recalibration
adjustments (exceeding the allowable
threshold) should be maintained with
carrier records and should be made only
by a trained technician.
Response: Section 395.16(e)(2) of the
proposed rule addressed date and time
information that could not be altered by
a motor carrier or a driver. FMCSA is
not specifying a maximum daily time
drift in the final rule. However,
§ 395.16(e)(4) provides that the time
deviation must not exceed 10 minutes
from Coordinated Universal Time (UTC)
at any time.
6.6.5 Distance-Traveled Accuracy
(§ 395.16(g))
Several commenters expressed
concern with the NPRM’s proposal for
accuracy of CMV distance travel: nonsynchronized EOBRs, which obtain
distance-traveled information from a
source external to the CMV, must be
accurate within 1 percent of actual
distance traveled over a 24-hour period.
Most comments centered on the
difference between the proposed
requirement in the NPRM for EOBRs
and industry consensus standards for
odometers. Qualcomm, ITEC, Xora,
Tripmaster, and Siemens expressed
concern that the NPRM’s provisions did
not align with the state-of-the-practice.

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They cited SAE J1226, ‘‘Surface Vehicle
Recommended Practice: Electronic
Speedometer Specification—On Road.’’
Section 5.1 of that document, Overall
Design Variation, states the overall
odometer accuracy ‘‘shall be within
minus 4 percent to plus 4 percent for
each actual unit of distance of travel
over the operating range of the
instrument. The design limits should
not, however, be construed as absolute
under all operating conditions.’’ Thus,
according to Qualcomm, the best-case
scenario for a non-synchronized EOBR
would be a plus or minus 5 percent
error in the mileage calculation. In
short, for systems capturing mileage
from the vehicle ECM odometer,
Qualcomm recommended the odometer
should be maintained consistent with
the vehicle manufacturer’s specification
for odometer recalibration.
Qualcomm and other commenters
recommended FMCSA reference SAE
J1708 (‘‘Serial Data Communications
Between Microcomputer Systems in
Heavy-Duty Vehicle Applications’’) for
communications with the vehicle data
bus. Qualcomm also stated the
requirements of § 395.16 should address
conditions where location history data
are incomplete due to limitations in
obtaining satellite fixes and should
specify when a driver should record
HOS information in a paper RODS. ATA
and Werner offered similar concerns.
ATA stated odometer accuracy is
outside the control of the EOBR supplier
and excessive calibration requirements
would be operationally problematic and
costly.
ITEC and several other commenters
noted, although recording to within 1
percent of the odometer is reasonable,
the overall accuracy for distance data
should be 5 percent because an absolute
accuracy of plus or minus 1 percent of
the actual distance may not always be
achievable. A key reason is that the
rolling radius of the vehicle’s drive axle
tires changes with ambient temperature,
inflation pressure, load, and tire wear,
and these changes can exceed 1 percent.
An odometer is calibrated using the tire
manufacturer’s recommended
revolutions per mile, and the vehicle
owner must maintain this rolling radius
when the vehicle’s tires change from
replacement, recapping, or regrooving.
Response: In § 395.16(g)(3), the
Agency requires the distance-traveled
information recorded by the EOBR
should not be less accurate than the
information obtained from the CMV’s
odometer.
Because FMCSA will allow only
integrally synchronized EOBRs, the
proposed rule text concerning distancetraveled information from a source

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external to the CMV, is not included in
the final rule.
Responding to the request to formally
reference SAE J1708, we do not believe
this is necessary because it is one of
several engineering consensus standards
that address on-vehicle communications
networks that can provide engine use
status. The Agency does not wish to
preclude the use of other standards,
existing or in development.
Concerning commenters’ references to
SAE J1226, FMCSA notes that this
Recommended Practice also refers users
to SAE J862, ‘‘Factors Affecting
Accuracy of Mechanically Driven
Automotive Speedometer-Odometers.’’
Among other things, this document
describes nine factors that can affect
odometer readings, four of which relate
to tires.
6.7 Review and Amendment of
Records by Drivers (§ 395.16(h))
6.7.1 Driver Amendments of EOBR
RODS.
Qualcomm recommended the
regulations be more flexible to allow
driver annotations of the records, to the
same degree it is possible with paper
RODS, to include annotating yard
moves to reposition CMVs, as well as
noting driving time in stop-and-go
traffic. Qualcomm also asserted that
driving status information automatically
generated should not be subject to
alteration, but a driver should be able to
‘‘claim’’ driving time if he or she
neglected to log-on. Qualcomm
recommended drivers should also be
allowed to review and accept or reject
any administrative amendments, and
administrative staff be required to
reconcile and assign all driving (vehicle
movement) periods with drivers. Both
drivers and administrative personnel
should be able to annotate and reconcile
manual data entries such as tractor and
trailer numbers.
Werner sought clarification of the
term ‘‘annotation,’’ arguing the driver
should be able to amend non-driving
status periods at any time and should be
able to request authorized
administrative personnel to amend
driving time entries, but disagreed that
correction of typographical errors
should generate an audit trail. The
system should keep a digital record or
other evidence showing any
amendments made after the driving
records were approved by the driver and
identifying the amendments by time,
date, personnel involved, and the reason
for the amendment. Werner objected to
limiting the driver to making corrections
to the RODS only before the first driving
period of the day or following the last

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period of the day, because it would
place an unnecessary burden on the
driver and force a driver who has made
an error to drive the rest of the day with
incorrect records. According to Werner,
driver acceptance of the technology is
critical to its use in the industry, and
every reasonable effort should be made
to keep the systems forgiving and driver
friendly. DriverTech stated allowances
need to be made for legitimate truck
moves.
DriverTech stated there needs to be a
reasonableness factor to correct honest
mistakes and suggested a limit of one
duty status correction per 24 hours. The
TMC TPA stated that the data capture
and data integrity requirements
proposed in the NPRM needed better
definition and improved usability. For
example, they recommended that for the
most common cases, the driver and
administrative records amendment
process needs to be more thoroughly
defined and practical to ensure drivers
submit complete and accurate electronic
logs. The process of making and
reviewing amendments made by
administrative personnel needs to
address more specific situations. TMC
RP 1219(T)), currently under
development by the ATA Technology
and Maintenance Council S. 12 Onboard
Vehicle Electronics Study Group,
outlines a recommended process that it
believes better ensures data accuracy
and accountability. Automated
recording of duty status changes and
effective recording of overrides need
more specificity to address yard moves
and stopped-in-traffic scenarios. RP
1219(T) recommended amendments be
limited to eight specific items.
Response: In § 395.16(h)(3), FMCSA
selected the term ‘‘annotate’’ rather than
‘‘amend.’’ Annotating a record implies
adding information, generally for the
purpose of clarifying it. Amending a
record implies changing it. An EOBR
must automatically record driving time
(§ 395.16(d)(1)) so there should be no
need for a driver to request designated
administrative personnel to amend a
driving record. Section 395.16(h)(3) has
been revised to include use of a CMV as
a personal conveyance. It requires the
driver to annotate the corresponding
driving time entry to reflect such use.
As discussed earlier, § 395.16(d)(1)
requires the EOBR to automatically
record driving time. Altering driving
time records is prohibited. However,
remarks may be added to annotate the
record. Section 395.16(h)(3) has been
revised to address this.

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6.7.2 Other Comments on Driver
Interaction With EOBRs
Several commenters offered
recommendations about driver
interaction with EOBRs. Several
commenters offered recommendations
about driver interaction with EOBRs.
For example, when team drivers use a
CMV equipped with an EOBR, they
suggested the non-driving team member
be allowed to make entries in the EOBR
while the CMV is moving. Others
suggested a method for the driver to
override pre-programmed duty status
change thresholds (such as between
driving and on duty). Still others
recommended FMCSA consider adding
distance and time thresholds for ‘‘yard
moves’’ and for ‘‘non-allocated driving
time.’’
Werner stated there had been little
consideration or analysis of driver
acceptance. The ideal system should
take into account the need for driver
training and the differing levels of
technical sophistication.
Response: This rule does not alter the
treatment of the duty status of team
drivers. The final rule allows
annotations of the EOBR’s electronic
RODS. Whether an annotation is
characterized as an ‘‘override’’ or by
another term, the annotation must add
information to the HOS record—it must
not overwrite or delete information.
Because of the enormous variations in
motor carriers’ individual policies and
practices, FMCSA does not believe it
would be appropriate to establish a
single uniform threshold for nonallocated driving time.
Today’s rule, like the 1988 AOBRD
rule, is performance-based and
anticipates developers of EOBRs will
work with their motor carrier clients to
ensure the devices are appropriately
designed and configured. Motor carriers
must ensure drivers are trained to use
the new EOBRs properly.
6.8 Safety Officials’ Access to HOS
Information
6.8.1 EOBR Must Be Capable of
Producing Duty Status Records for the
Current Day and the Previous 7 Days
(§ 395.16(k))
Werner asked if an EOBR needed to
retain 7 days of RODS in the device
itself, or if the information could be
stored on a server. Werner also asked for
clarification on provisions for
safeguarding and retention of
transferred data to portable computers
used by roadside inspection officials.
Response: RODS data need not be
stored on the EOBR. Section
395.16(k)(1) allows use of ‘‘information
stored in and retrievable from the EOBR

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or motor carrier support system
records.’’ As is the case in the current
AOBRD rule, § 395.15(b)(4), HOS data
must consist of information ‘‘stored in
and retrievable from’’ the device. As for
enforcement officials’ duties regarding
safeguarding and retention of
information is concerned, the HOS
information they obtain from (or via)
EOBRs must be handled and
safeguarded in the same way as other
records obtained during the conduct of
enforcement activities. (See preamble
section IV. Discussion of Comments to
the NPRM; 5. Privacy, Agency
response.)
6.8.2 EOBR Must Be Able To Produce,
Upon Demand, a Driver’s HOS Chart
Using a Graph-Grid Format in Either
Electronic or Printed Form (§ 395.16(i)
and (n))
CVSA supported the use of a graphgrid format. However, numerous
commenters, including Qualcomm,
Tripmaster, the TMC TPA, Werner, and
ATA questioned the need for the EOBR
device itself to produce the graph-grid
format.
Qualcomm, Tripmaster, and ATA
believed the display requirements
should be limited to specific
information (such as driver information
and the sequence of changes of duty
status) in the vehicle, and other data
should be made available by electronic
data transfer or reports from a motor
carrier’s office system. Werner, XATA,
and the TMC TPA suggested, other than
placing HOS information in a familiar
format, there is no real reason for an
EOBR to display data in a graph-grid
format they believe computers used by
roadside safety personnel should be able
to handle this task. The Maryland SHA
offered a similar comment. Conversely,
ITEC stated it did not believe the data
format provided in Appendix A, Table
1, could be used to produce a graphgrid.
Qualcomm and ATA noted many
legacy systems and devices could
potentially meet proposed EOBR
requirements, save two: the proposed
display requirements and the viewableoutside-the-cab requirement. The latter
is a concern because many new devices
are dashboard-mounted. Because the
format specification does not address
requirements for display size, character
resolution, scrolling, and navigation,
they question how usable the display
would be.
A motor carrier questioned whether
EOBRs could produce the required HOS
information, and another contended
FMCSA did not offer a standardized
method for retrieving EOBR recorded
data because not all agencies will have

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the proper equipment to access a
driver’s logs.
A few commenters offered
alternatives, such as using an integrated
printer with the EOBR rather than a
mobile display. One asked how an
alternative display format would be
approved.
The Maryland SHA stated the
requirement that the data be displayed
in ‘‘either electronic or printed form’’
presents problems. If the EOBR provides
the HOS information in electronic
format only, the officer will have no
substantive evidence or paper copy for
court purposes, which will hamper
adjudication processes. Maryland SHA
urged FMCSA to assess how these
changes will impact roadside
enforcement activities, as not all
enforcement officers have laptop
computers from which to receive or
review HOS data retrieved from an
EOBR.
Response: The provision at
§ 395.16(i)(2) would allow electronic
transmission of an EOBR-generated
RODS for display on another device,
such as a PDA or portable computer
used by a safety official at a roadside
inspection. FMCSA amends paragraph
(i)(2) and subsection (n) to clarify the
requirement for the EOBR to enable
RODS data to be transferred to an
enforcement official’s PDA or portable
computer. The Agency also revises the
rule text to remove the proposed design
requirement to display the graph-grid on
the EOBR device.
The Agency also clarifies that data
transfer methods discussed in the
NPRM and adopted in this final rule are
meant to facilitate a one-way transfer of
data from the EOBR to the enforcement
official’s computer and not the reverse.
Several commenters appeared to
interpret this provision as a requirement
for EOBRs to be able to interact with
each other, and for any EOBRs to be able
to interact with any office support
systems. FMCSA leaves the decisions on
whether to provide this level of
interoperability to EOBR system
providers. Rather, the proposed
specifications were developed based on
the assumption the Agency would
provide the software capable of: (1)
Initiating the data transfer, (2)
transforming the EOBR-generated
standard flat file into the desired
graphical output on enforcement
officials’ electronic equipment (i.e.,
computer, PDA, etc.), and (3)
determining whether the RODS
information was in compliance with 49
CFR part 395.
EOBR system suppliers and motor
carriers would not need to determine
how to achieve interoperability with

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enforcement officials’ various types of
equipment and software. Under the
Motor Carrier Safety Assistance Program
(MCSAP), enforcement officials operate
FMCSA-approved hardware with
inspection software compatible with
FMCSA systems to conduct roadside
inspections. The proposed data format
and transmission protocols have been
tested to work with enforcement
officials’ tools. This was the rationale
for proposing the EOBR make data
available in a flat file format, the
simplest of formats (as opposed to
requiring a specific hierarchical or
relational database form), and for setting
forth specific communications
protocols.
The same would apply to information
generated by the motor carrier’s office
systems. The safety investigator uses
FMCSA-approved equipment and
FMCSA-issued software to conduct the
compliance review at the motor carrier’s
place of business. Systems capable of
producing the flat file delineated in
Appendix A to part 395, Table 2, would
be fully compatible with the compliance
review software, and they would meet
Agency requirements under the new
§ 395.16(i).
Responding to the SHA, FMCSA will
require EOBRs display the driver’s duty
status sequence, as is currently required
for AOBRDs. The Agency will also
require drivers’ HOS records be made
available in digital form to inspection
officials.
6.8.3 EOBR Must Be Able To Produce
Upon Demand a Digital File of the
Driver’s HOS (§ 395.16(i)(2))
The TMC TPA stated security of
digital EOBR data needs to be
considered, citing security threats
external to the EOBR in the data transfer
process. Xora supported an EOBR that
could obtain HOS information from a
centralized server, and one that could be
physically handed to roadside
inspection officials. Werner asked
FMCSA to define ‘‘immediately’’ in the
context of an inspection. It noted a
driver will need the opportunity to
verify the recently created logs for
accuracy. If the system maintains the log
data off the truck for some or all of the
period being checked, a reasonable
delay may be incurred in sending the
data to the truck in some form.
Response: Motor carriers and their
EOBR system providers must use
appropriate methods and procedures in
the development, testing, and operation
of HOS information systems to ensure
data and information integrity. Rather
than specifying testing and assessment
procedures, the Agency again focuses on
performance requirements for the EOBR

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user. Under new § 395.16(o)(2), the
EOBR and associated support systems
must not permit alteration or erasure of
the original information collected
concerning the driver’s hours of service,
or alteration of the source data streams
used to provide that information, and
under § 395.16(p)(1), the motor carrier
must not 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 its EOBR
support systems that use the original
information and source data streams.
As to defining ‘‘immediately,’’ FMCSA
requires CMV drivers to maintain their
EOBR records current to the last change
in duty status and encourages safety
officials to exercise reasonable
discretion in allowing the drivers
sufficient time to access the HOS
records from the EOBR, or from the
motor carrier’s support system.
6.8.4 Information Must Be Accessible
to Safety Assurance Officials Without
Requiring Them To Enter In or Upon the
CMV (§ 395.16(i)(4))
CVSA supported the requirement that
information displayed on the EOBR be
accessible to safety assurance officials
without requiring the officials to enter
in or upon the CMV. However, one
driver stated moving the EOBR in and
out of the truck would lead to electronic
problems. He suggested using a cable to
connect it to a computer.
Response: FMCSA agrees with CVSA.
The final rule will retain the proposed
requirement that information displayed
on the EOBR be made accessible to
safety assurance officials without
requiring them to enter in or upon the
CMV. It will not be necessary to
physically remove an EOBR from its
mounting in a CMV cab. The
enforcement official will provide a cable
to the driver to plug into the EOBR, or
request the driver initiate a wireless
transfer of the RODS data to the officer’s
portable computer.
6.8.5 Electronic Records Must Be
Transferable to Portable Computers in
the Specified Format (§ 395.16(i)(6))
A number of commenters provided
comments related to the need for safety
officials to obtain digital records from
EOBRs to conduct roadside inspections.
CVSA held EOBRs should use
standardized data formats and have a
standardized interface for law
enforcement so that training,
compliance evaluation, and monitoring
are effective and simplified. CVSA
stated it would be better to equip

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inspectors to print the record, which
they will need as evidence.
Regarding security encryption, data
security, and how these interact with
enforcement roadside computers, the
SHA commented that not all MCSAP
agencies’ safety inspection officials have
laptop computers in their patrol
vehicles and or wireless platform
capabilities from the patrol vehicle.
Ohio PUC stressed the need for
technological solutions to improve
inspection officials’ ability to read and
interpret electronic HOS records. The
MTA and OOIDA also stressed the need
for training these officials in the use of
EOBRs and interpretation of HOS data.
CVSA stated electronic records must
adhere to common, uniform, and strict
standards so inspection officials can
read the data on laptops or handheld
computers. However, CVSA had
concerns with the possibility of these
files introducing a virus or otherwise
damaging the inspection official’s
operating system or software.
Qualcomm stated the use of XML or
other file formats should be considered
for Internet file transfers. It is also
recommended the specifications be
deferred to an industry standards
approach to address any ongoing
changes in security, technology, or data
requirements, rather than by including
them in a regulation. The TMC TPA
offered a similar comment related to
insulating a regulation from
technological change. The document
advocated a hardwired connection
between the EOBR and the vehicle data
bus and a network neutral wireless
connection to obtain data via the
Internet from a secure server. ITEC
stated it assumed that, because it was
not discussed, FMCSA did not intend to
require that EOBR data be downloaded
onto portable media. Werner questioned
the cost of being able to download data.
Ohio PUC stated the rule must have
verifiable provisions to ensure EOBRs
are standardized with a uniform format
that all carriers must use to display
information. These must be easily read
by roadside inspection personnel and
designed to include a standard means of
allowing enforcement personnel to
download information from the devices.
Response: FMCSA agrees with
commenters that it will be critical for
roadside inspection officials to be
prepared to interact with the new
EOBRs. The Agency has set the
compliance date to provide sufficient
time for this transition. As discussed
above, the final rule specifies the use of
standardized file formats and
communications interfaces to support
the needs of safety officials operating in
the field.

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6.8.6 Communications information
interchange methods (§ 395.16(i))
Qualcomm, TMC, ITEC, Tripmaster,
and ATA opposed the wireless
information interchange standards cited
in the proposed rule because they
would be likely to become outdated.
The TMC TPA stated the wireless
methods are prone to connection
management, interoperability, and
security issues, as well as changes in
technical standards.
Qualcomm recommended FMCSA use
TMC RP 1219(T) for technical
requirements. In addition, they
recommended citing SAE J1708, ‘‘Serial
Data Communications Between
Microcomputer Systems in Heavy-Duty
Vehicle Applications,’’ in reference to
wired communications links using the
vehicle data bus. They also
recommended FMCSA consider
referencing SAE J1939, ‘‘Recommended
Practice for a Serial Control and
Communications Vehicle Network.’’
Qualcomm also asked FMCSA to
consider submitting a standards request
to the Society of Automotive Engineers
subcommittees for J1939 and J1708 to
address tamper-resistance technical
specifications for capturing information
from electronic control modules
transmitting over the vehicle data bus.
Qualcomm and the TMC TPA
recommended two methods for
information reporting they believed
would be technology neutral for EOBR
devices and are expected to have
significant longevity in availability.
They recommended use of the vehicle
data bus for a wired data transfer from
the EOBR to a roadside inspection
device (because this approach is similar
to that used for on-board diagnostic
(OBD) emissions inspections); and use
of the Internet for wireless data transfers
from the EOBR (device and/or support
system) with the roadside inspection
system (device and/or host support
system). Although they noted additional
security standards would be required to
ensure proper authentication between
devices and data transfer security, they
recommended these be addressed
through industry standards rather than
by regulation.
Qualcomm and the TMC TPA both
believe use of Universal Serial Bus
(USB) or a serial port would not be
appropriate for a wired data transfer.
They cited problems with pin
configurations and software driver
requirements, as well as the long-term
viability of wired USB, because wireless
USB standards are under development.
On the other hand, they appear to favor
use of the Internet for wireless data
transfers from the EOBR (and/or its

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support system) to the roadside
inspection system (device and/or host
support system). Many EOBR systems
maintain near real-time
communications with secure centralized
support systems, and they believe
virtually all safety officials conducting
roadside inspections can use network
connectivity to retrieve this information
from a support system (or directly) with
Internet file transfers. Qualcomm
believed the Internet file data transfer
approach will be able to accommodate
changes in wireless communications
standards and has high probability of
still working flawlessly over a 10-year or
longer time frame.
Qualcomm held use of Wireless Local
Area Network (WLAN) and Wireless
Personal Area Network (WPAN)
technologies for peer-to-peer wireless
connections are not appropriate in
EOBRs and law enforcement systems
because they have significant security
vulnerabilities and are prone to
connection management issues.
Qualcomm also supported wired
transfer via the CMV’s data bus.
Qualcomm, Tripmaster, and ATA
referenced TMC RP 1210(B) (Serial
Communications Application Program
Interface). For wireless, they referenced
RP 1216 (the vehicle-to-office data
communications standard). Qualcomm
stated the latter standard brings
efficiencies to the industry because it
puts aside any proprietary
communications protocols and allows
for wireless communications (via radio
frequency, infrared, satellite, cellular, or
WLAN) between a trucking company’s
office and its fleet.
ITEC recommended dropping the
Bluetooth wireless standard, which is
not interoperable with IEEE 802.11 and
RS–232 (which is out-of-date), and
adding IEEE 802.11p. ITEC-supported
USB 2.0.
CVSA suggested that, while FMCSA
may not want to specify the
communications technologies because
they change so rapidly, the more
important aspects related to the data are
security, content, and timeliness of the
information availability. Werner stated
any wireless access should be
adequately protected.
KonaWare stated FMCSA should not
specify data transfer technology. If data
transfer is needed, submission of data to
law enforcement within 48 to 72 hours
should be acceptable.
Siemens expressed concern about
costs for wireless data extraction.
Although they noted FMCSA included
these costs in its estimate of operating
costs as a necessary item for mobile
phone solutions and fleet management
systems, they were concerned these

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costs were not addressed for minimally
compliant, tethered EOBR solutions that
could use other methods to transfer data
for backup purposes. Siemens was
concerned owner-operators, small
carriers, and carriers operating within
limited geographic areas would not
benefit from wireless data extraction of
HOS data.
PeopleNet stated the records should
be available in wireless or wired format,
but not both. FedEx stated the protocols
and application interfaces needed to
perform the data download are not
defined. A great deal of definition
would be required to successfully
implement a roadside exchange as
suggested in the NPRM, and changing
technology could make several of the
suggested physical transport layers
obsolete. FedEx suggested wireless as a
transport layer (802.11g and Bluetooth),
but stated the pairing methodology
between EOBR and roadside device
must be defined. It also stressed the
need for the Agency to define a method
for authentication between the EOBR
and roadside device, an especially
important concern if the Agency
contemplated using wireless
technology.
Response: The final rule requires the
use of wired (direct physical
connection) and wireless
communications (WiFi and cellular, as
described in more detail below) of the
electronic RODS data record. For a
wired transfer, the roadside enforcement
official will provide a cable to the driver
to be inserted into the EOBR’s USB data
port.
FMCSA is revising the requirements
for the content of the data file that
would be downloaded from an EOBR to
an enforcement official’s portable
computer to remove the name of the
driver and co-driver in the records
downloaded at roadside. The driver and
co-driver will be identified by employee
identification number(s) in that
downloaded record. Enforcement
officials may verify the identity of the
driver (and co-driver) from documents
such as a driver’s license and would
enter that information into their
portable computers to generate
inspection reports and violation
documents. This change is being made
because the combination of a name and
other information in a transmitted
record places the record in the category
of personally identifiable information
(PII). PII must be encrypted, and
encryption adds considerably to the
complexity of software design,
implementation, and maintenance.
These factors would increase the costs
to EOBR suppliers, motor carriers, and
FMCSA. FMCSA stresses this change

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affects only those records downloaded
at roadside. All other records
maintained in EOBRs and support
systems must include the driver’s and
co-driver’s names. This includes records
requested by safety assurance officials at
a motor carrier’s place of business.
The primary goal of the EOBR device
itself is to collect and safeguard data.
There are numerous industry consensus
standards and recommended practices
in this field, and FMCSA believes
developers of EOBRs and EOBR support
systems are in the best position to select
and use those standards and practices to
ensure their motor carrier customers are
able to maintain the confidentiality,
integrity, and availability of HOS data
and information.
To ensure a reliable means of data
exchange between each EOBR device
and a roadside safety official’s portable
computer, the following hardware
interface specifications are required:
1. Each EOBR device must implement
a single USB compliant interface
featuring a Type-B connector.
2. USB interface must comply with
USB V1.1 and V2.0 USB signaling
standards.
3. The USB interface must implement
the Mass Storage class (08h) for
[software] driverless operation.
FMCSA will not allow the use of
portable storage devices, e.g., thumb
drives, for the transfer of the electronic
RODS because they are not capable of
meeting the necessary authentication
requirements.
6.9 Identification of the Driver
(§ 395.16(j))
6.9.1 FMCSA’s Approach of Not
Specifying Identification Method
CVSA supported the idea of providing
flexibility regarding how drivers are
identified. However, CVSA said FMCSA
should specify a minimum performance
requirement including standardized and
explicit test procedures and
expectations. ITEC approved of the
decision to allow motor carriers to
choose among competing technologies
for driver identification. The company
said driver identification technologies
would be a key cost factor in the
implementation of EOBRs.
Several commenters, including IBT,
OOIDA, and AMSA, disagreed with
FMCSA’s approach, contending the rule
should be more specific regarding the
identification of drivers. IBT was
concerned unscrupulous drivers’ use of
false identification could undermine
efforts to improve HOS compliance.
Qualcomm, Siemens, and the TMC TPA
said the rule should have security
requirements that address detailed

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policies and procedures for driver
identity management. They also
requested the requirements cover the
use of third parties for EOBR security
administration and audit.
One commenter recommended using
employee ID numbers to identify
drivers, while another proposed using
an identification code made up of the
driver’s license number and the
abbreviation of the issuing State.
Response: FMCSA agrees the
identification of the driver of a CMV is
key to implementation of this rule.
However, imposing a set of standards to
assign and manage driver and employee
identification numbers is unnecessary to
effectuate this rulemaking and is more
appropriately addressed through motor
carriers’ internal processes.
This final rule requires the driver’s
name as part of the EOBR’s record
maintained by the motor carrier.
However, it will not require the driver’s
name to be part of the information
transmitted from the EOBR or a support
system during the course of a roadside
inspection because the combination of a
name and the other information is
considered personally identifiable
information and is subject to stringent
and complex encryption requirements.
As discussed earlier, enforcement
officials will verify the identity of the
driver (and co-driver) from documents
such as a driver’s license.
FMCSA’s interest is that each driver
used by a motor carrier is uniquely
identified for purposes of recordkeeping
and the motor carrier ensures that
drivers enter duty status information
accurately. How individual drivers are
identified—by name, by employee
number, or by another code—is left to
a motor carrier’s discretion. However,
we very strongly discourage a motor
carrier from using a Social Security
number or driver’s license number
because of the potential for persons to
obtain access to information that is not
relevant to HOS compliance assurance.
It is a motor carrier’s responsibility to
select and implement information
security policies—including issuing and
updating identification and information
system access codes—appropriate to its
own operations.
Responding to Qualcomm’s question
concerning recording the hours of
drivers who use more than one vehicle,
an EOBR support system must account
for this, as today’s AOBRDs are required
to do. Although not explicitly required
in the regulation, error-checking
procedures in the support system also
should flag a driver who is shown as
operating multiple CMVs on the same
day, during the same period of time.
AOBRDs have been required to identify

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which driver of a team is operating the
CMV at any given time—and EOBRs
must do the same. Each driver must be
assigned a unique identifier.
6.10 Maintenance and Repair
(§ 395.16(p))

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6.10.1 Motor Carrier Must Ensure
EOBRs Are Calibrated, Maintained, and
Recalibrated
Werner said the requirement for
motor carriers to ensure EOBRs are
calibrated, maintained, and recalibrated
should not be imposed without serious
cost/benefit analysis. The carrier said
this requirement could be a substantial
burden for many carriers who have
trucks that are not home-based at a
terminal.
Qualcomm and TMC said the
requirements for motor carriers should
also address security management and
administration of EOBR systems. They
also said the rule should provide criteria
for when third-party services must be
used if carriers do not have appropriate
resources for security management.
Maverick Transportation asked
FMCSA to clarify how often EOBRs
would need to be recalibrated and how
long a carrier would need to retain
calibration, maintenance, and
recalibration records.
Response: Section 395.15(i)(8) the of
current regulations requires that
AOBRDs be maintained and recalibrated
in accordance with the manufacturer’s
recommendations. Considering the
range of approaches (now and in the
future), it would not be realistic for
FMCSA to specify maintenance
intervals for EOBRs. The text of the rule
adopted here parallels the proposed
regulation but adds a requirement for
calibration. This initial calibration
would be done at the time of initial
installation, if the characteristics of the
device require it. Concerning security
management and administration, those
are information technology matters, and
any third-party performing this work for
a motor carrier would do so as the
carrier’s agent and under the carrier’s
direction. Retention of EOBR
maintenance and calibration records is
addressed in the general inspection,
repair, and maintenance requirements of
current § 396.3, because an EOBR, like
an AOBRD, is an ‘‘additional part or
accessory which may affect safety of
operations.’’ These records must be
maintained for 1 year or 6 months after
a CMV leaves the motor carrier’s
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6.11 Testing and Certification
Procedures
6.11.1 Manufacturer Self-Certification
(§ 395.16(q))
Qualcomm expressed support for the
provision allowing EOBR manufacturers
to self-certify their products. The
company said the self-certification
approach is consistent with the
requirements in § 395.15 and should be
continued. Maverick Transportation
agreed with manufacturer selfcertification, but asserted EOBR
manufacturers should face penalties if
their products are later found to be noncompliant.
Conversely, several motor carrier and
EOBR manufacturer commenters
believed FMCSA’s proposed
requirement for AOBRD and EOBR
manufacturers to self-certify their
devices did not provide a sufficient
level of assurance to convince carriers to
voluntarily use EOBRs. These
commenters indicated carriers would be
more willing to invest in EOBRs if
FMCSA or an independent testing entity
evaluated and certified devices as
conforming products. J.B. Hunt stated
that, because most of today’s EOBR
manufacturers are small businesses,
they probably would not have the
financial resources to properly
indemnify the carrier if FMCSA were to
find the devices noncompliant. Werner
made similar comments, noting the
contracts offered by EOBR vendors
would likely restrict a carrier’s right to
recover from the vendor if the system
were found to be non-compliant.
CVSA recommended FMCSA and the
National Highway Traffic Safety
Administration create a more rigorous,
third-party certification program for
EOBRs. It also recommended the
establishment of an advisory board to
create and maintain a list of approved
EOBRs. This advisory board could
operate similarly to those groups that
are involved with speed-measuring
instruments and breath alcohol testing
devices.
Qualcomm and ATA offered the
alternative of ‘‘strong self-certification.’’
An international standard, ISO/IEC
17050, would be used as a basis for
requiring manufacturers to document
their conformance with a standard. An
EOBR manufacturer’s declaration of
conformity would be subject to
standardized documentation
requirements and audits. They noted
this approach would require a
government or industry entity to audit
supporting materials for conformity
declarations and to maintain a registry
of conforming products. ATA stated
such an authority does not currently

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exist. Tempering its support of thirdparty certification, ATA cautioned that
FMCSA should balance the potential
benefits of third-party certification
against the potential for increased cost
of EOBR devices and possible delays in
the introduction of new devices and
technology due to the need to
satisfactorily complete a certification
process.
Response: The Agency is aware that a
working group of the ATA’s Technology
and Maintenance Council S. 12 Onboard
Vehicle Electronics Study Group is
currently preparing a draft
recommended engineering practice,
TMC RP 1219(T), ‘‘Guidelines for
Electronic On-Board Recorders.’’ Several
commenters included this document as
an attachment to their comments.
Although the final rule does not
establish a formal FMCSA oversight
process for EOBR testing and
certification, it is possible that more
widespread use of EOBRs may bring
compliance concerns to light. Therefore,
FMCSA will monitor motor carriers’
compliance with EOBR and support
system requirements as part of its safety
oversight programs.
6.11.2 Other Comments on Testing and
Certification Procedures
The Ohio PUC asked that the rule
provide for periodic certification of the
reliability and integrity of EOBRs, with
specific penalties for failure to comply;
and it maintained widespread violations
could occur without such provisions.
The MTA suggested the rule require
EOBR manufacturers to warranty
performance of their products for at
least 5 years.
Response: FMCSA takes seriously
penalties related to false records but
does not believe it would be appropriate
to set a prescriptive requirement for
‘‘recertifying’’ EOBRs according to a
fixed schedule. The self-certification
process will remain part of the FMCSRs.
FMCSA does not have the authority to
impose a requirement for a warranty
period or warranty terms.
6.12 Other Comments on Proposed
EOBR Standards
Several commenters believe the
NPRM did not adequately address a
requirement to make EOBRs ‘‘tamperproof.’’ Siemens said FMCSA should
require EOBRs to be tested and certified
against a defined security standard by
independent laboratories. Advocates
criticized FMCSA for proposing no
specific controls for ensuring that
EOBRs are tamper-proof, contending the
Agency ‘‘must set minimum
requirements for what constitutes
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and their key components.’’ Advocates
called upon FMCSA to ensure that
EOBRs are both tamper-proof and
designed to indicate any attempts at
tampering. CVSA suggested FMCSA
review the EU Information Technology
Security Evaluation process with regard
to EOBRs. A team driver who had used
an EOBR said her motor carrier had
altered the hours recorded by the
device, and FMCSA must ensure against
improper alteration of data by drivers,
carriers, or law enforcement personnel.
Two commenters said the burden of
making EOBRs tamper-proof should rest
on the shoulders of the manufacturers
and FMCSA, and that all aspects of
tampering should be resolved before
installation.
Response: The September 2005 report
prepared by the Volpe Center:
‘‘Recommendations Regarding the Use of
Electronic On-Board Recorders (EOBRs)
for Reporting Hours of Service,’’
addresses a range of methods to prevent,
to the greatest extent practicable,
tampering with the physical EOBR
device, as well as the electronic records
it holds. The revised text of
§ 395.16(p)(1) prohibits the motor
carrier from permitting or requiring
alteration or erasure of original
information or the source data streams
used to provide it. This covers both
physical and electronic alterations and
erasures.
FMCSA reviewed the EU typespecification for electronic tachographs
early in this rulemaking process. The
type-specification is highly designprescriptive for both the hardware and
software elements of the electronic
tachograph and support systems. By
contrast, FMCSA regulatory policy
expresses a strong preference for
performance-based regulations.
Furthermore, because the EU directive
for the electronic tachograph is based
upon a compliance-assurance model
that is dramatically different from that
of FMCSA, FMCSA continues to believe
adopting it would be inappropriate.
And, as discussed above, the final rule
will continue to require manufacturer
self-certification of EOBRs and their
support systems.
6.12.1 Environmental Specifications
For operating temperature, Qualcomm
and ITEC said the typical industry
standards for device functionality while
installed in commercial vehicles (¥40
to 85 °C) exceed the rule’s requirements
for the temperature range at which
EOBRs must be able to operate (¥20 to
120 °F (¥29 to 49 °C)). Both commenters
suggested the rule defer to industry
standards for environmental
performance, specifically SAE standard

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J1455, ‘‘Recommended Environmental
Practices for Electronic Equipment
Design in Heavy-Duty Vehicle
Applications.’’ TMC offered a similar
comment.
NTSB stated the NPRM failed to
address damage-resistance and datasurvivability, and asked for performance
standards for these issues.
Response: FMCSA agrees with
Qualcomm, ITEC, and TMC and in the
final rule revises the environmental
operating ranges (temperature, etc.) for
EOBRs. In response to NTSB, FMCSA
considers it appropriate to require
EOBRs to comply with the same
generally-accepted industry consensus
standards for durability and reliability
as other electronic components used in
trucks and buses, but not to go beyond
these standards in terms of crash- or
fire- survivability.
6.12.2 Reconstruction of RODS After
EOBR Failure
Werner and the Maryland State Police
questioned the requirement that a driver
reconstruct RODS for the past 7 days in
the event of an EOBR failure. The two
commenters doubted that drivers would
be able to do this unless the data had
been printed out, transmitted to the
carrier, or backed up in some other way.
Response: Records must be available
for the current day and the past 7 days
so safety officials can review them
during roadside inspections. This is not
a new requirement; it currently applies
to both paper RODS and AOBRDs
(§§ 395.8(k), 395.15(b)(2)). The 7 days’
worth of records can include those
records already transmitted to the motor
carrier.
6.12.3 Requirement To Carry EOBR
Instructions and Blank RODS
(§ 395.16(l))
ITEC said the rule should be clarified
to allow a motor carrier to maintain the
EOBR instruction sheet and blank RODS
forms either separately or together.
Qualcomm expressed support for the
requirement that CMVs carry
instructional material. TMC TPA
suggested FMCSA be more specific
about the content of the instruction
sheet to assure greater consistency and
usability.
Response: The requirement in the
final rule is identical to the current one
for AOBRDS (§ 395.15). It does not
specify that the instructions and blank
RODS forms be bound in a single
document, only that the driver have
both of them on board the CMV.
7. Incentives To Promote EOBR Use
FMCSA is adopting as proposed two
incentives for motor carriers that

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voluntarily install and use EOBRs
compliant with section 395.16. First,
after the traditional targeted review of
their drivers’ HOS compliance, FMCSA
will conduct random reviews of such
carriers’ drivers for purposes of
determining these carriers’ safety
ratings. Second, such carriers will be
granted relief from the supporting
documents requirements for purposes of
recording on-duty driving time. FMCSA
requested comment on these two
incentives, as well as on possible
additional incentives, including
granting flexibility in the HOS rules
themselves.
7.1 Random Review for Motor Carriers
Voluntarily Using EOBRs
Numerous commenters, including
Report on Board, Werner, Maverick,
SCRA, and IIHS, said random review of
a motor carriers HOS compliance, as
opposed to a focused review, would not
provide enough incentive to make
voluntary installation of EOBRs
attractive. Both IIHS and Report on
Board held only a mandate requiring
EOBRs will work. Report on Board
commented that carriers believe they are
competitively disadvantaged by using
EOBRs. Because focused sampling
would continue, with violations
imposed based on that sampling, it felt
that there would be little reason for
carriers to voluntarily adopt EOBRs.
SCRA stated there were no statistical
data provided on safety enhancement or
cost benefits to support this element of
the proposed rule, arguing that
application of technology should
provide tangible cost benefits and easily
recognizable advantages for all required
to comply.
Several commenters objected to the
incentive because they believed it
would place some carriers at an unfair
disadvantage. OOIDA stated FMCSA is
proposing to lessen scrutiny of carriers
that adopt EOBRs while increasing
scrutiny of other carriers, most of whom
will be small. OOIDA also stated the
proposal is inconsistent with CSA 2010
since that initiative relies heavily on
focused review of problem drivers based
on roadside data. ‘‘Without any proof
that EOBRs improve HOS compliance or
the safe operation of commercial motor
vehicles, FMCSA cannot justify the
creation of such a dichotomous
enforcement strategy.’’ One carrier was
also concerned the proposal places
small carriers at a disadvantage because
they cannot afford EOBRs, and they will
be given the same scrutiny as those
mandated to use EOBRs.
While Maverick supported the
random sampling incentive, Advocates
stated the implication is that the

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outcome of EOBR use is not improved
oversight and enforcement of safety
management controls. Advocates
asserted the proposal would lead to
‘‘more extensive HOS violations and
lack of enforcement.’’
Response: One objective of CSA 2010
is to leverage the capabilities of existing
technologies to make compliance and
enforcement efforts more effective and
efficient. FMCSA believes policies that
encourage the adoption of EOBRs are
consistent with CSA 2010. (See the
earlier discussion of CSA 2010 and
roadside data in preamble section IV.
Discussion of Comments to the NPRM;
3.2 Trigger for remedial directive. The
motor carrier industry previously
expressed concern that FMCSA’s
current HOS sampling techniques
during compliance reviews are not
random across all areas of a carrier’s
operation. Rather, the compliance
review procedures direct the safety
investigators to focus on known
problem areas and drivers first. If the
number of violations discovered using
the existing policy of focused sampling
exceeds 10 percent of the records
reviewed, a less than satisfactory safety
fitness rating is proposed. Thus,
industry members argue, a motor
carrier’s overall safety fitness rating can
be adversely affected based only on a
focused review of known problem
drivers or areas of a motor carrier’s
operation without consideration of a
motor carrier’s overall HOS compliance
status or violation rate.
FMCSA does not agree that motor
carriers under the proposed incentive
will be subject to less-thorough reviews.
Under the incentive proposed and
adopted today, all motor carriers taking
advantage of this incentive, and all
owner-operators leased to such carriers,
will be subject to the same level of
initial review as under current
procedures, which focus first on drivers
involved in crashes and those with
known HOS violations. Violations
resulting from this initial focused
sample will continue to be considered
for compliance improvement and
enforcement purposes. However, under
the incentive, a CR that revealed a
proposed 10 percent or higher violation
rate based on the initial focused sample
will be expanded through random
sampling to look at a broader segment
of the motor carrier’s overall operation.
Only the HOS violations resulting from
this expanded review will be used to
determine a carrier’s safety rating.
This incentive is justified on several
grounds. The HOS portion of CRs on
motor carriers using EOBRs can be done
far more efficiently than traditional
reviews of logbooks and supporting

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documents, thus allowing motor
carriers—as well as FMCSA reviewers—
to do more thorough and comprehensive
checks of HOS records for accuracy and
possible falsification. The Agency
expects EOBR use to lower voluntaryadopter-carriers’ rates of serious HOS
violations, which, as noted above, are
related to higher than average crash
rates. As a result, safety will be
promoted. Because civil penalties will
still be imposed and SafeStat scores will
still be affected if violations are
discovered during the targeted review,
carriers will continue to be motivated to
correct HOS compliance problems. See
72 FR 2378–2379. FMCSA emphasizes
that the Agency will continue to bring
civil penalty enforcement cases against
both drivers and carriers for HOS
violations discovered during the initial
focused HOS review, even though that
analysis will not be used for purposes
of determining the carrier’s safety rating.
7.2 Partial Relief From Supporting
Documentation (§ 395.11)
Several commenters, including
Maverick, SC&RA, TCA, J.B. Hunt, and
AMSA, generally supported the
incentive providing relief from the
requirement to maintain supporting
documents relating to driving time.
Commenters, including Maverick and
SC&RA, stated EOBRs will capture
much of the same information as
supporting documents. Continuing to
require supporting documents becomes
a disincentive for using EOBRs.
AMSA stated retaining and
reconciling such corroborating
documents is a financial, storage, and
organizational burden on carriers, and
relief from these burdens might provide
the desired incentive for a carrier to
consider adopting EOBRs. ATA stated
that managing supporting documents
takes 258 million hours a year; the
potential costs could be billions of
dollars. FedEx noted the NPRM claimed
the EOBRs would reduce compliance
costs and increase productivity, but if
the supporting document requirements
are not dropped, those claims were
overstated or wrong. If regulators
require or allow technology to replace
paperwork for HOS, FedEx commented
the Agency should replace all
paperwork for that requirement.
Otherwise, it is an indication that either
the technology is not ready for
implementation or the technical
specifications should be revisited.
MTA, Boyle, NPTC, ATA, and FedEx
sought elimination of the supporting
documents requirement for those with
EOBRs. NPTC stated companies that use
EOBRs to supervise driver operations
and have effective management systems

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should not be required to undertake the
additional administrative task of
collecting and maintaining supporting
documents to verify the non-driving
portion of a driver’s hours. If a company
is found to be significantly noncompliant in its HOS management,
NPTC asserts FMCSA could use its
enforcement authority to impose
additional and more stringent
supporting document requirements on
that carrier and its drivers.
In contrast, J.B. Hunt said supporting
documents cannot be eliminated, but
carriers should not have to retain
documents that show only time and
location. If the document does not have
any objective information that discloses
the driver’s non-driving activities, it
would not be of value in an EOBR
world. Additionally J.B. Hunt states
that, in most over-the-road operations,
driving time is the most important
contributor to driver fatigue. For
example, loading and unloading times
can be significant, but supporting
documents are of little value in
determining the duration of on-duty
activity. Siemens stated law
enforcement is unlikely to accept
reduced supporting documents over the
long term, and inadequate performance
standards lead States and law
enforcement to ignore EOBRs.
One owner/operator said this
proposed relief was an unfair advantage
to motor carriers who could afford
EOBRs.
Response: FMCSA agrees compliant
EOBRs produce regular time and CMV
location position histories sufficient to
adequately verify a driver’s on-duty
driving activities. Under this final rule,
motor carriers voluntarily maintaining
the time and location data produced by
EOBRs would need to maintain only
those additional supporting documents
that are necessary to verify ODND
activities and off-duty status.
It is not in the best interest of public
safety to provide relief from supporting
document requirements necessary to
verify ODND status. Providing such
relief could make verification and
enforcement of ODND activities
extremely difficult, if not impossible in
some cases. For privacy reasons, the
requirements for compliant EOBRs stop
short of the electronic, video or other
driver monitoring measures that would
be necessary to verify individuals’ onduty not driving time and activities
through use of automated recorders.
FMCSA disagrees with FedEx that
failure to eliminate all supporting
document requirements is an indication
that EOBR technology is not yet ready
for implementation. FMCSA considers
the ability to relieve supporting

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document requirements related to onduty and driving time significant in
itself. Blanket relief from all supporting
document requirements was not
proposed in the NPRM and is not
included as part of this final rule.

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7.2.1 EOBRs and the Supporting
Documents Rule
Several commenters raised the
relationship of this rule with the
supporting documents rule. ATA stated
FMCSA should complete the supporting
document rule as soon as possible.
FedEx said the rule should be
coordinated with the EOBR rule, OOIDA
and CVSA asserted until the supporting
document rule is complete, the public
does not have enough information to
evaluate the incentives.
FMCSA published the supporting
documents Supplemental Notice of
Proposed Rulemaking on November 3,
2004 (69 FR 63997), and proposed
requirements for the collection and use
of documents to verify the accuracy of
driver records of duty status. It
proposed language to clarify the duties
of motor carriers and drivers with
respect to supporting documents and
requested further comments on the
issue. FMCSA withdrew this
rulemaking action on October 25, 2007
(72 FR 60614) based on issues with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520) analysis supporting
this action. After the paperwork analysis
that accurately identifies the
information collection burden
associated with the existing supporting
documents requirements is complete,
the Agency intends to initiate a new
rulemaking action. This will ensure the
new rulemaking proposal is based on an
accurate and comprehensive
understanding of the existing
information collection inventory.
FMCSA does not wish to delay the
benefits of this rulemaking pending
completion of the supporting
documents rule. Therefore, this
rulemaking provides for relief from the
existing supporting document
requirements related to on-duty driving
activities for motor carriers that
voluntarily install EOBRs.
7.3 Suggestions for Other Incentives
MTA recommended any violations
occurring when the truck is being used
as a personal conveyance should be
assigned only to the driver, not the
carrier. It suggested carriers should not
be subject to violations for speeding
based on GPS data, and also that RODS
violations should be weighted as other
categories are, not at twice the value.
ATA suggested including positive
credits or points for carriers in the

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SafeStat selection criteria as applied to
the safety management and Driver SEAs.
ATA also suggested FMCSA offer relief
from the 2-point assessment in the
safety rating methodology for a pattern
of HOS violations. It also recommended
the use of random sampling in
conducting compliance reviews. In the
event these incentives cannot be
achieved through provisions in
regulations, FMCSA should provide
motor carriers the ability to test and
apply these incentives through pilot
programs and an expedited exemption
process.
ATA, TCA, J.B. Hunt, Fil-Mor
Express, AMSA, and two individuals
recommended tax incentives. Two
individuals also recommended tax
breaks. TCA stated log auditing for
EOBR logs should be done only at
roadside inspections, not by the carriers.
DriverTech stated the fleets and EOBR
manufacturers should be exempt from
lawsuits on product and usage liability.
CTA recommended FMCSA consider
allowing minor variances in driving, onduty and off-duty time, up to a specified
limit. CTA did not see this as an
incentive to encourage EOBR use by
compliant carriers; rather, it considered
it to be a reasonable enforcement
approach to avoid unwarranted
penalties. Other commenters made
similar suggestions.
J.B. Hunt suggested a number of
incentives. It recommended providing
EOBR carriers with a credit on their
Inspection Selection System score to
allow their drivers to more frequently
bypass inspection stations. J.B. Hunt
said this may help gain much needed
driver acceptance. Only carriers with a
good history of well maintained
equipment (Equipment Safety
Evaluation Area (SEA) value or Out-ofService rates less than a certain score)
should qualify for this incentive.
J.B. Hunt said the Agency should
make a commitment in the final rule to
work cooperatively with other agencies
and governmental entities in an effort to
exempt EOBR units from the Federal
Excise Tax (FET) for original equipment
manufacturer installations and
equipment retrofitting and to provide
for an accelerated depreciation or
expensing option for tax purposes. It
recommended ensuring EOBR carriers
are able to gain the benefit of the ‘‘IntraCity Multiple Stop’’ rule by permitting
the driver to show very short
movements (totaling less than 1 percent
of daily miles traveled) combined with
other driving in the same city. This
should also apply to consolidating
ODND time as currently permitted when
logging on paper.

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AMSA stated, without sufficient
incentives, HHG carriers would find it
too expensive to install EOBRs and
implement the supporting systems.
An individual suggested original
equipment manufacturer-installed
EOBRs should come with the option to
switch providers.
Response: FMCSA believes the
majority of other incentive ideas offered,
including tax incentives, are outside the
scope of this rulemaking. FMCSA does
not believe it is in the best interest of
public safety to count threshold rates of
HOS violations the same as other
violations in our safety fitness rating
methodology, as suggested by the
Minnesota Trucking Association and the
ATA. To do so would effectively allow
motor carriers to continue in operation
with a Satisfactory safety fitness rating
and 100 percent HOS noncompliance as
long as deficiencies were not
documented in other areas of the motor
carrier’s operation. Also, FMCSA did
not propose, and will not require,
EOBRs to collect vehicle speed data.
8. Economic Analysis and Other
Rulemaking Analyses and Notices
8.1

Economic Costs

8.1.1 Viability of EOBR Market
Without a Broad Mandate
Three commenters, Report on Board,
Siemens, and CVSA, stated a broader
mandate would lead to lower device
costs. Report on Board claims it did not
see a viable market for its own product
without an industry-wide mandate.
Siemens reported its device would cost
20 percent more under a long-haul
mandate compared to what it would
cost under an industry-wide mandate
and mentioned that component costs
should fall over time. However, IIHS
pointed out there is already a market for
these devices, and questions of unit-cost
and availability are no longer relevant.
Response: FMCSA assumes that the
price of EOBRs under an industry-wide
mandate should be considered from a
long-run equilibrium perspective—i.e.,
assuming manufacturers have had
enough time to enter the industry and
expand capacity to meet demand. Under
those conditions, prices should be
driven to where they allow efficient
manufacturers to cover their production
costs and provide an adequate profit.
The production of more units may
allow manufacturers to take advantage
of economies of scale (whereby fixed
costs are spread over more units) and
produce EOBRs at lower per-unit cost.
The degree to which economies of scale
would reduce costs is uncertain,
however. Current and would-be EOBR
manufacturers would, for the most part,

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already be able to take advantage of
considerable economies of scope 3
because they (1) Currently produce
similar products, (2) already possess the
necessary technical expertise,
organizational infrastructure,
distribution networks, and some of the
necessary manufacturing equipment,
and (3) have access to variable inputs
(materials and labor). Independent of
the number of EOBRs produced, firms
would not necessarily need to make
outlays for many of these fixed inputs.
Similarly, though manufacturers might
be expected to achieve manufacturing
cost savings through ‘‘learning by doing’’
(that is, finding more efficient
manufacturing methods as cumulative
output increases), it is not clear to what
extent learning effects have already been
exhausted in the course of
manufacturing very similar devices.
Finally, uncertainty about the number of
new manufacturers entering the
expanded market makes it impossible to
estimate the number of units per
manufacturer, which is a key variable in
determining both scale and learning
effects.
FMCSA agrees that the cost of EOBRs’
electronic components—EOBRs
generally borrow components from
existing technology—should trend
down, assuming that plentiful supplies
of electronic parts continue. However,
and given the circumstances noted
above, FMCSA does not have sufficient
data at this time that would allow it to
estimate the effects of greater
production volumes on EOBR costs, and
hence on EOBR prices. In the face of
substantial uncertainty over the extent
of any reduction in EOBR prices as a
result of greater sales volumes, FMCSA
has assumed that the market price for
EOBRs would remain unchanged
regardless of the breadth of the mandate,
for the purposes of this rule. The data
and price projections will be explored
further in the follow-on rulemaking,
discussed earlier.
The Agency agrees with IIHS that
availability should not be a
consideration and that EOBR prices are
not prohibitive. Report on Board’s claim
that it did not see a viable market
without FMCSA’s delivering captive
customers is not supported by current
market conditions: Not only are
numerous manufacturers already
engaged in this business, but the market
for these devices could extend beyond
U.S. borders. In both the NPRM and this
final rule, the Agency examined a
variety of devices, including the lowest
3 Economies of scope: Per-unit or average total
cost of production decreases as a result of
increasing the number of different goods produced.

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cost device submitted for consideration.
The analysis for the final rule is
premised on the use of only a low cost
device.
8.1.2 Alternative Device Cost
Estimates
Report on Board, Siemens, NPGA, and
TCA offered estimates of EOBR device
costs ranging from $300 to $3,000.
Siemens stated the low cost device
considered in the NPRM would not be
practicable due to its low operational
life, and offered a $300 price estimate
for its own minimally compliant device,
which it claims has a ten-year
operational life with periodic
maintenance and upgrades; the
annualized cost of this device would be
$69.
Response: Since the NPRM was
published, FMCSA has actively
monitored EOBR technology (both
devices with and without extra fleet
management applications) currently
being sold in North America. It
conducted its analysis in that NPRM
using a range of devices priced from
$100 to $2000, a range into which most
of the devices subsequently described
by commenters fall. The Agency
categorically rejects the assertion motor
carriers will need to spend $3000 for a
device that meets the performance
standards of this rule. FMCSA agrees
the cost-savings of the low cost device
originally considered was severely
curtailed by its assumed short
operational life. Since publishing the
NPRM, the Agency has become aware of
other compliant low cost EOBRs, and
has focused its analysis on one of them,
while carefully considering all of the
costs particular to this device.
8.1.3 Comments on Associated Costs
Eight commenters mentioned costs
associated with EOBRs in addition to
the individual device costs. AMSA,
SC&RA, Werner, the Maryland State
Police, TCA, and ATA stated driver and
other employee training expenses would
be significant. Werner, AMSA, the
Maryland State Police, and ATA
mentioned installation costs. FedEx,
SC&RA, ATA, TCA, and NPGA stated
the Agency should consider
administrative costs for such
expenditures as computer software and
hardware, data extraction, and
administrative staff; NPGA further
stated computing equipment to process
EOBR data could cost as much as
$15,000 per carrier, and such expense
would be disproportionately large for its
members, who, on average, have 9 or
fewer trucks. AMSA, SC&RA, Maryland
State Police, and ATA commented
inspection, maintenance, and repair

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costs should be factored in. AMSA,
SC&RA, and ATA stated airtime costs
for data extraction should be accounted
for, while Siemens stated a single
annual operating cost figure it has
estimated for its low-cost device
includes all airtime costs.
Werner and ATA pointed to device
calibration as possibly resulting in
significant cost. Werner stated
calibration requirements may impose
significant costs on the carrier if
calibration cannot be easily done by
existing staff and asked how often
calibration will or should be required.
This could represent a substantial
burden for many carriers that have
trucks that are not based at a terminal.
ATA also listed driver technical
demands, external report generation,
and the costs for some fleets of moving
from existing systems to new systems as
potentially adding costs.
Response: With the exception of
calibration costs, which FMCSA does
not believe to be significant, the Agency
included all of the costs referenced by
commenters. In any event, commenters
for the most part did not offer any
alternative cost figures for the Agency to
consider. Regarding repair,
maintenance, and upgrade costs, the
Agency currently bases its estimates on
a device that is leased from its
manufacturer and does not have these
costs associated with it. Cost and benefit
estimates now explicitly account for
current use of AOBRDs, devices that
would meet the requirements of this
rule, and fleet management systems that
can be upgraded to EOBR functionality.
The Agency does not believe NPGA’s
assertion that office computer
equipment for processing EOBR data
‘‘could be as much as $15,000’’ is
reasonable, particularly for its members,
who, on average, have nine or fewer
trucks. The Agency has made every
attempt not to understate any costs,
although all cost estimates are
constrained by the criterion that EOBR
systems meet the minimum
requirements of this rule. In addition,
hypothetically large cost figures are not
germane, because carriers incur
excessive costs at their own choosing,
not because the rule requires them to do
so. Costs of office equipment have been
eliminated in this analysis because the
EOBR provider hosts all records on a
secure Web site and includes the price
of this service in its monthly fee.
Every device is configured differently,
and not all devices share the same costs.
The complexity and cost of installation,
for example, can vary widely by device,
and the costs of even similarly
configured devices can differ greatly.
FMCSA presented the costs particular to

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the three devices it considered; it could
not present costs as if these had been
any other devices. Likewise, the current
analysis focuses on the actual costs of
implementing the low cost device
presented. As in the NPRM, costs
particular to that device are explicitly
accounted for. The goal of the cost
analysis is to demonstrate how the
performance standards of this rule may
be met with minimal cost, not to
estimate the costs of every possible
device.

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8.1.4 Costs of Training Law
Enforcement
The Maryland SHA and ATA stated
the cost of training enforcement officers
to review electronic logs should be
included. The Maryland SHA added
State enforcement officials would also
be asked to provide ‘‘inspection services
for verification of electronic-on-boardrecorder installation and operation,’’
although enforcement personnel are
neither trained electronics installers nor
mechanics. The Maryland SHA also
stated not all enforcement personnel
have laptop computers in their patrol
vehicles, and those that do may not
have wireless connectivity; it would be
impossible to check electronic logs
under these circumstances. Additionally
enforcement personnel should not be
asked to perform this function as
staffing reserves are already strained
with more important duties—e.g.,
roadside inspections, homeland security
activities, etc. Maryland SHA stated
FMCSA should fully assess the effects
on enforcement. No funding is being
provided to enforce the new provisions.
Response: The Agency has carefully
considered the costs to State
enforcement staff. The Agency has
already increased its cost estimates after
recognizing that training in reviewing
electronic records will always represent
an additional cost, and will never
simply replace the current training in
paper RODS. In response to the
Maryland SHA’s concerns, the Agency
has estimated costs of inspecting EOBR
devices, and the costs of equipment
purchases and upgrades for accessing
and reviewing electronic records.
8.2 Paperwork Savings
Six entities commented on paperwork
benefits and driver’s time use. PMAA
stated the time saved from not filling
out logs is not significant. However, the
Maryland SHA agrees that EOBRs will
save time, and SC&RA stated
automation should reduce
administrative burden. Report on Board
estimated annual per truck paperwork
burden costs $2,029. Public Citizen
commented electronic records are more

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easily collected and analyzed, and such
information could be used to more
accurately track and monetize time
wasted at loading docks, which would
benefit drivers paid by the mile or trip.
Verigo, a manufacturer of manual
electronic logs that lack the automatic
recording features required of AOBRDs
and EOBRs, stated FMCSA is relatively
silent on the issue of HOS auditing and
management reporting.
Response: Paperwork savings figure
prominently into this rule’s analysis,
and have been carefully considered. The
paperwork burden associated with
RODS includes the time spent filling
them out, reviewing them, and filing
them. FMCSA’s estimate of the
paperwork burden of filling out RODS is
6.5 minutes per day per driver, and 3
minutes per day per driver for review
and filing. Trucking companies may not
recognize all the benefits of paperwork
savings if they pay drivers by the mile
or trip and do not compensate drivers
for time spent filling out logs. Costs
directly borne by drivers are as
important as costs borne by motor
carriers, and, as other commenters have
pointed out and the RIA shows, the time
saving to drivers can be significant. The
Agency also agrees with Public Citizen
that insofar as EOBRs accurately capture
total on-duty time, drivers may benefit
when wasted time, such as excessive
time spent at loading docks, is
documented. Nevertheless, this
potential benefit is not included in the
RIA because the Agency cannot predict
if this added recording of on duty time
will translate into driver compensation,
and if so, whether this would be a
transfer from motor carriers or paid for
via higher prices charged to shippers.
8.3 Regulatory Flexibility Act Analysis
(Small Entities)
Forty commenters, including 15
carriers and 13 drivers, expressed
opinions on the impact on small
entities. PMAA stated the cost would be
a heavy burden for small companies.
TCA stated with high fuel costs and
expected tighter emission controls
increasing the costs of new trucks, the
cost of EOBRs is one more burden the
majority of these carriers cannot afford.
The Maryland State Police said
mandating EOBRs could be
economically disastrous for some
carriers. OOIDA said the burden would
be disproportionately borne by small
entities, which do not have the
purchasing power of larger carriers or
the large number of revenue producing
drivers across whom to spread EOBR
costs; non-safety economic advantages
of EOBRs also come at a cost and
typically are only useful to those

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managing large fleets. OOIDA also
stated small carriers are more likely to
be selected for reviews, although until
SafeStat is revised, it is difficult to be
certain on that point; larger carriers are
more sophisticated about disguising
noncompliance.
OOIDA also commented the most
burdensome cost to small-business
carriers will be the loss of drivers who
are unwilling to drive for an EOBRmandated motor carrier. As posited by
OOIDA, for example, the cost of the
initial installation of an EOBR into an
existing truck has been estimated to be
between $1,000 and $3,000. Either the
motor carriers will face that cost for
each truck, or the owner-operator will
bear that cost. That cost may be
prohibitive for a small-business, and
owner-operators who face such a cost
will quickly look for work for another
carrier. Under either scenario, a motor
carrier facing the mandate will go out of
business.
Response: All carriers are harmed, but
especially small carriers, by companies
that gain a competitive advantage by
violating safety regulations. Although
the majority of carriers are small
businesses, most will not be subject to
the remedial directive. Any competitive
advantage gained by a small carrier by
violating HOS will likely come at the
expense of carriers with similar
characteristics—size, geography, market
share.
Regarding comments concerning
costs, costs for the most part are
proportional to the number of power
units a carrier would need to outfit.
Carriers would incur an annual net
expense of less than $100 per power
unit, less than 0.1 percent of annual
revenue per power unit. Furthermore,
even these modest costs are avoidable as
long as carriers comply with the HOS
rules.
8.4 Comments on Driver Health
Considerations
Three commenters criticized the
Agency for failing to adequately
consider driver health impacts in this
rule. IBT stated carriers will use EOBRs
to pressure drivers to increase
productivity, which would increase
their stress levels and adversely impact
their health, and OOIDA stated the
stress of being monitored alone is
enough to harm driver health.
Advocates, however, stated FMCSA’s
concern about the stress of using EOBRs
distorted the research results of several
studies, and the Agency had ignored
potential health impacts of using EOBRs
and improving compliance. Advocates
contended the Agency’s regulatory
analysis ignored ‘‘evidence of adverse

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health impacts from the very long
working hours associated with HOS
violations.’’ Furthermore, by not
proposing to mandate EOBR use,
Advocates held the Agency was not
helping ‘‘to ameliorate the adverse
health impacts of exceptionally long
working and driving hours triggered by
the Agency’s final rules in 2003 and in
2005.’’
Response: The Agency has addressed
both positive and negative health
impacts in Appendix A to the EA for
this rule, which has been placed in the
docket. The Agency carefully reviewed
research on the potentially negative
impacts of electronic monitoring and
concluded that the use of EOBRs
required in today’s final rule will not
result in negative impacts on driver
health for two reasons: First, because
monitoring of HOS compliance is an
existing, not a new, requirement; and
second, because the Agency is requiring
EOBRs to monitor safety, not workplace
productivity.
The Agency has also not been able to
statistically quantify significant health
benefits from improved HOS
compliance, although at least some
benefits are anticipated to result, for at
least some drivers. Cost and benefit
estimates of the HOS regulations are
included in the analysis for that
separate rulemaking 72 FR 71247 (Dec.
17, 2007). In addition, the underlying
HOS regulations are the subject of a
separate rulemaking action 72 FR 71247
(Dec. 17, 2007).
V. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures

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Under Executive Order 12866 (58 FR
51735, October 4, 1993) and DOT
policies and procedures, FMCSA must
determine whether a regulatory action is
‘‘significant,’’ and therefore subject to
Office of Management and Budget
(OMB) review and the requirements of
the Executive Order. The Order defines
‘‘significant regulatory action’’ as one
likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the

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environment, public health or safety, or
State, local, or Tribal government or
communities.
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency.
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof.
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
FMCSA has determined this rule will
have an annual effect of $100 million or
more, and is, therefore, an economically
significant regulatory action within the
meaning of the Executive Order and
under the regulatory policies and
procedures of DOT because of the level
of public interest in rulemakings related
to hours-of-service (HOS) compliance.
The Agency has therefore conducted an
RIA of the costs and benefits of this rule.
The RIA is summarized below. The full
analysis is available in the docket.
After reconsidering the discussion in
the NPRM, and based on comments
received, FMCSA examined two
regulatory options for the final rule—the
2 x 10 remedial directive proposed in
the NPRM, and the considerably broader
and more stringent 1 x 10 remedial
directive. We understand the concerns
of ATA and J.B. Hunt, among others,
who believe the proposal did not cover
enough carriers. While FMCSA
acknowledges the safety concerns of
those that support an industry-wide
EOBR mandate, the Agency cannot
extend the EOBR mandate in that
manner in this final rule because the
scope of the current rulemaking
proceeding is limited to a compliancebased regulatory approach,
implemented through a remedial
directive. However, the number of
motor carriers that will be required to
install, use and maintain EOBRs is
significantly greater under this final
rule—using the 1 x 10 trigger—than
under the 2 x 10 trigger that was
proposed in the NPRM. The RIA
examines the costs and benefits of two
regulatory options, the 2 x 10 and the
1 x 10 remedial directives.
Cost information was gathered from
publicly available marketing materials
and contact with EOBR vendors. The

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RIA focuses on the least expensive
device determined to be compliant with
the rule.4 We do not expect all carriers
to use this specific device, only that it
represents a device at the low end of the
cost range of an EOBR that the Agency
believes would be compliant with the
provisions of the final rule.
For many carriers, this rule would not
require new equipment. Some carriers
already use AOBRDs, AOBRDs with
enhanced functionality, or onboard
systems with EOBR functionality, which
the rule will allow them to continue
using provided certain conditions are
met. These carriers are excluded from
cost and benefit calculations when
appropriate. Other carriers employ Fleet
Management Systems (FMS) that are
capable of fulfilling this rule’s
requirements with the activation of
available hardware or software
functions. Estimates of costs are lower
for carriers that already have partial or
complete EOBR functionality.
Costs were estimated on an
annualized basis over a ten-year
horizon. Costs and benefits that accrue
throughout the year are presented at
their present value at the beginning of
the year. Training time costs for drivers,
administrative staff, and State
enforcement personnel were estimated.
The analysis estimates the cost to
carriers of coming into compliance with
HOS and corresponding safety benefits
as induced through EOBR use. Cost
savings on paper log purchase, use, and
processing are also assessed.
Safety benefits of EOBR use are
assessed by estimating reductions in
HOS violations and resulting reductions
in fatigue-related crashes. Other nonsafety health effects (positive and
negative) for drivers, as a result of the
potential decreased driving time based
on increased pressure on drivers to
comply with the HOS regulations, are
considered but not quantified in this
analysis.
The estimates of the total net benefits
are presented below: Of the two
regulatory options, the 1 x 10 remedial
directive yields higher total net benefit.
4 The least expensive device that satisfies the
requirements of the rule was found to be the
RouteTracker sold by Turnpike Global. Cost data
are based on the use of this device with the Sprint
network.

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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
TOTAL ANNUAL NET BENEFITS
[Millions]
Regulatory option 1:
1 x 10 remedial
directive

Total Costs ...........................................................................................................................
Total Benefits .......................................................................................................................

($139)
182

Net Benefits ..................................................................................................................

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Additionally, the overall crash rates of
both the 1 x 10 remedial directive motor
carriers and the 2 x 10 remedial
directive motor carriers are considerably
higher than the crash rates of the general
motor carrier population. Using data
from MCMIS and compliance review
databases, crash rates were computed by
dividing total crashes by each carrier’s
number of power units. The Agency
compared crash rates between the
general motor carrier population and 1
x 10 remedial directive motor carriers as
well as between the general motor
carrier population and 2 x 10 remedial
directive motor carriers. The 1 x 10
remedial directive motor carriers were
found to have a 40 percent higher crash
rate than that of other carriers that have
undergone compliance reviews, and 2 x
10 remedial directive motor carriers had
a 90 percent higher crash rate than that
of other carriers that have undergone
compliance reviews. The final rule’s
application of a remedial directive to
the 1 x 10 remedial directive motor
carriers makes the best use of Agency
resources and provides considerably
higher net benefits to society.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(Pub. L. 96–354, 5 U.S.C. 601 et seq.),
requires agencies to consider the impact
of regulations on small businesses,
small non-profit organizations, and
small governmental jurisdictions, unless
the Agency determines that a rule is not
expected to have a significant economic
impact on a substantial number of small
entities (SEISNOSE). The remedial
directive aspect of this rule will be
applicable to about 2,800 motor carriers
in the first year and 5,700 motor carriers
each year thereafter. The Agency
estimates that the total net cost of this
rule will be less than $100 per power
unit per year, compared to revenues of
over $100,000 per power unit per year.
Based on the number of carriers affected
and the overall cost impact to these
carriers, the Agency does not expect this
rule to have a SEISNOSE. The Agency
has prepared a small business impact
analysis for this rule that discusses its
estimates of small business impacts.

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This analysis has been placed in the
docket.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501 et seq.),
Federal agencies must obtain approval
from OMB for each collection of
information they conduct, sponsor, or
require through regulations. The
FMCSA determined that this rule will
affect the OMB Control Number 2126–
0001, ‘‘Hours of Service of Drivers
Regulation, Supporting Documents,’’
information collection request (ICR),
approved at 184,380,000 burden hours
through December 31, 2011. The PRA
requires agencies to provide a specific,
objectively supported estimate of
burden hours that will be imposed by
the information collection. See 5 CFR
1320.8. The requirement triggering the
paperwork burden imposed by
FMCSA’s records of duty status
requirement is set forth at 49 CFR 395.8.
The FMCSA estimated that the
remedial provisions of this final rule,
requiring the installation, use, and
maintenance of EOBRs by motor carriers
with a threshold rate of serious HOS
violations, would affect approximately
5,700 motor carriers that employ
129,000 drivers annually. The use of
EOBRs will reduce the annual burden
hours for FMCSA’s information
collection OMB Control Number 2126–
0001 by 3,110,000 hours. The FMCSA’s
revised estimate of the annual burden of
the IC is 181,270,000 hours
(184,380,000¥3,110,000).
A supporting statement reflecting this
assessment will be submitted to OMB
together with this final rule.
Privacy Impact Assessment
Section 522(a)(5) of the
Transportation, Treasury, Independent
Agencies, and General Government
Appropriations Act, 2005, (Pub. L. 108–
447, div. H, 118 Stat. 2809, 3268)
requires the Department of
Transportation and certain other Federal
agencies to conduct a privacy impact
assessment (PIA) of each proposed rule
that will affect the privacy of
individuals. The Agency conducted a

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43

Regulatory option 2:
2 x 10 remedial
directive
($14)
22
8

PIA for the NPRM, and we have
augmented the PIA for this final rule
and placed the revised version in the
docket. Although the Agency
determined that the same personally
identifiable information (PII) for CMV
drivers currently collected as part of the
RODS and supporting documents
requirements would continue to be
collected under this rulemaking, it
recognized the significance of the
decision to require, even in limited
circumstances, that PII previously kept
in paper copy now be kept
electronically. Privacy was a significant
consideration in FMCSA’s development
of this proposal. As stated earlier, we
recognize that the need for a verifiable
EOBR audit trail—a detailed set of
records to verify time and physical
location data for a particular CMV—
must be counterbalanced by privacy
considerations. The Agency considered,
but rejected, certain alternative
technologies to monitor drivers’ HOS
(including in-cab video cameras and
bio-monitors) as too invasive of personal
privacy. All CMV drivers subject to 49
CFR part 395 must have their HOS
accounted for to ensure they have
adequate opportunities for rest. This
final rule would not change the
Agency’s policies, practices, or
regulations regarding its own collection
and storage of HOS records of
individual drivers whose RODS are
reviewed. The expanded review
procedures under the random review
incentive, however, would enlarge the
population of drivers whose RODS are
reviewed for those carriers. It would
also change the technology by which
compliance is to be documented, in a
way that facilitates both the sharing of
information and its capacity to be data
processed.
As before, the HOS information
recorded on EOBRs would be accessible
to Federal and State enforcement
personnel only when compliance
assurance activities are conducted at the
facilities of motor carriers subject to the
RODS requirement or when the CMVs of
those carriers are inspected at roadside.
Motor carriers would not be required to
upload this information into Federal or

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State information systems accessible to
the public. This would aid data security
and ensure that general EOBR data
collection does not result in a new or
revised Privacy Act System of Records
for FMCSA. (Evidence of violation of
any FMCSA requirements uncovered
during either of these activities is
transferred to a DOT/FMCSA Privacy
Act record system.) Data accuracy
concerning drivers’ RODS should
improve as a result of the new
performance standards for EOBRs,
allowing drivers to make EOBR entries
to identify any errors or inconsistencies
in the data, and mandating EOBR use by
motor carriers with a history of serious
HOS noncompliance.
What would change, and change
significantly, is the capacity of this data
to be processed and converted to more
usable information for the purpose of
determining drivers’ and motor carriers’
compliance with the HOS regulations.
Although no CMV operator would be
required to upload this data to a Federal
or State database accessible to the
public, the electronic formulation of the
data would make it easier for a CMV
operator to keep track of the activities of
its drivers. Similarly, Federal and State
law enforcement and safety authorities,
including FMCSA, would be better able
to do the same. As shown in other
contexts, the increased accessibility,
accuracy, and reliability of geospatial
location information has made
electronically generated and preserved
data attractive to a variety of audiences.
On balance, we must compel use of
these devices in those situations
described in this rule. The entire
privacy impact assessment is available
in the docket for this rule.
Unfunded Mandates Reform Act
This rule would not result in the net
expenditure by State, local and Tribal
governments, in the aggregate, or by the
private sector, of $141,300,000 or more
in any one year, nor would it affect
small governments. Therefore, no
actions are deemed necessary under the
provisions of the Unfunded Mandates
Reform Act of 1995.

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Executive Order 13132 (Federalism)
This rulemaking would not preempt
or modify any provision of State law,
impose substantial direct unreimbursed
compliance costs on any State, or
diminish the power of any State to
enforce its own laws. Accordingly, this
rulemaking does not have Federalism
implications warranting the application
of Executive Order 13132.

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Executive Order 12372
(Intergovernmental Review)
The regulations implementing E.O.
12372 regarding intergovernmental
consultation on Federal programs and
activities do not apply to this rule.
National Environmental Policy Act
The National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq., as amended) requires Federal
agencies to consider the consequences
of, and prepare a detailed statement on,
all major Federal actions significantly
affecting the quality of the human
environment. In accordance with its
procedures for implementing NEPA
(FMCSA Order 5610.1, Chapter 2.D.4(c)
and Appendix 3), FMCSA prepared an
EA to review the potential impacts of
this rulemaking. The EA findings are
summarized below. The full EA is in the
docket.
Implementation of this action would
alter to some extent the operation of
CMVs. However, the rule will not
require any new construction or change
significantly the number of CMVs in
operation. FMCSA found, therefore, that
noise, hazardous materials, endangered
species, cultural resources protected
under the National Historic Preservation
Act, wetlands, and resources protected
under Section 4(f) of the Department of
Transportation Act would not be
impacted by the rule.
The EA also examined impacts on air
quality and public safety. We anticipate
that drivers of CMVs operated by
carriers that have been issued an EOBR
remedial directive will now take the full
off-duty periods required by the HOS
rules. During off-duty periods, drivers
frequently leave the CMV parked in
‘‘idle,’’ which increases engine
emissions on a per-mile basis. Hence,
drivers for remediated carriers will
cause a modest overall increase in
engine emissions by virtue of additional
drivers coming into compliance with
the HOS regulations. Because the
number of trucks likely to be required
to install EOBRs is relatively small
(139,000 out of 4.2 million total CMVs),
FMCSA determined that the increase in
air toxics would be negligible.
Moreover, because drivers for carriers
brought into HOS compliance will
experience less fatigue and be less likely
to have fatigue-related crashes, there
will be a counterbalancing increase in
public safety.
FMCSA concludes that the rule
changes will have a negligible impact on
the environment. The provisions under
the action do not, individually or
collectively, pose any significant
environmental impact. Therefore, this

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rule change will not require an
environmental impact statement.
Consequently, FMCSA issues a Finding
of No Significant Impact (FONSI) in the
EA for this final rule.
Executive Order 13211 (Energy Supply,
Distribution or Use)
FMCSA determined that the rule will
not significantly affect energy supply,
distribution, or use. No Statement of
Energy Effects is therefore required.
Executive Order 12898 (Environmental
Justice)
FMCSA considered the effects of this
final rule in accordance with Executive
Order 12898 and DOT Order 5610.2 on
addressing Environmental Justice for
Minority Populations and Low-Income
Populations, published April 15, 1997
(62 FR 18377) and determined that there
are no environmental justice issues
associated with this rule or 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 regulatory options
considered in this rulemaking will
result in high and adverse
environmental impacts.
Executive Order 13045 (Protection of
Children)
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks (62 FR 19885,
Apr. 23, 1997), requires agencies issuing
‘‘economically significant’’ rules, if the
regulation also concerns an
environmental health or safety risk that
an agency has reason to believe may
disproportionately affect children, to
include an evaluation of the regulation’s
environmental health and safety effects
on children. Although the rule is
economically significant, it will
improve safety; the rule also would not
have a disproportionate affect on
children. Therefore, FMCSA has
determined that an analysis of the
impacts on children is not required.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 12630 (Taking of
Private Property)
This rule will not effect a taking of
private property or otherwise have

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taking implications under E. O. 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights.
National Technology Transfer and
Advancement Act
The National Technology Transfer
and Advancement Act (15 U.S.C. 272
note) requires Federal agencies
proposing to adopt Government
technical standards to consider whether
voluntary consensus standards are
available. If the Agency chooses to
adopt its own standards in place of
existing voluntary consensus standards,
it must explain its decision in a separate
statement to OMB.
FMCSA determined there are no
voluntary national consensus standards
for the design of EOBRs as complete
units. However, there are many
voluntary consensus standards
concerning communications and
information interchange methods that
could be referenced as part of
comprehensive performance-based
requirements for EOBRs to ensure their
reliable and consistent utilization by
motor carriers and motor carrier safety
compliance assurance officials. For
example, the digital character set would
reference the ASCII (American Standard
Code for Information Interchange)
character set specifications, the most
widely used form of which is ANSI
X3.4–1986. This is described in the
‘‘American National Standard for
Information Systems—Coded Character
Sets—7–Bit American National
Standard Code for Information
Interchange (7–Bit ASCII) (ANSI
document # ANSI INCITS 4–1986
(R2007)) published by the American
National Standards Institute (ANSI).
The standard is available by contacting
the American National Standards
Institute, 11 West 42nd Street, New
York, New York 10036, or by visiting
the ANSI Web site at http://
webstore.ansi.org. In another example,
the Agency would reference the
802.11g–2003 standard as defined in the
802.11–2007 base standard for wireless
communication published by IEEE
(Institute of Electrical and Electronics
Engineers).
We did review and evaluate the
European Commission Council
Regulations 3821/85 (analog
tachograph) and 2135/98 (digital
tachograph). These are not voluntary
standards, but rather are design-specific
type-certification programs. We
concluded these standards lack several
features and functions (such as CMV
location tracking and the ability for the
driver to enter remarks) that FMCSA has
included in its performance-based final

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rule, and require other features (such as
an integrated license document on the
driver’s data card) that are not
appropriate for U.S. operational
practices.
List of Subjects
49 CFR Part 350
Grant programs—transportation,
Highway safety, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
49 CFR Part 385
Administrative practice and
procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting
and recordkeeping.
49 CFR Part 395
Highway safety, Incorporation by
reference, Motor carriers, Reporting and
recordkeeping.
49 CFR Part 396
Highways and roads, Motor carriers,
Motor vehicle equipment, Motor vehicle
safety.
■ For the reasons stated in the preamble,
FMCSA amends 49 CFR chapter III as
set forth below:
PART 350—COMMERCIAL MOTOR
CARRIER SAFETY ASSISTANCE
PROGRAM
1. The authority citation for part 350
is revised to read as follows:

■

Authority: 49 U.S.C. 13902, 31101–31104,
31108, 31136, 31140–31141, 31161, 31310–
31311, 31502; and 49 CFR 1.73.

2. Amend § 350.201 by revising the
introductory text and adding a new
paragraph (z) to read as follows:

■

§ 350.201 What conditions must a State
meet to qualify for Basic Program Funds?

Each State must meet the following 26
conditions:
*
*
*
*
*
(z) Enforce requirements relating to
FMCSA remedial directives issued in
accordance with 49 CFR part 385,
subpart J, including providing
inspection services for verification of
electronic on-board recorder installation
and operation as provided in
§ 385.811(b).
PART 385—SAFETY FITNESS
PROCEDURES
3. Revise the authority citation for part
385 to read as follows:

■

Authority: 49 U.S.C. 113, 504, 521(b),
5105(e), 5109, 13901–13905, 31133, 31135,
31136, 31137(a), 31144, 31148, and 31502;
Sec. 113(a), Pub. L. 103–311; Sec. 408, Pub.
L. 104–88; Sec. 350, Pub. L. 107–87; and 49
CFR 1.73.

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4. Amend § 385.1 by revising
paragraph (a) to read as follows:

■

§ 385.1

Purpose and scope.

(a) This part establishes FMCSA’s
procedures to determine the safety
fitness of motor carriers, to assign safety
ratings, to direct motor carriers to take
remedial action when required, and to
prohibit motor carriers determined to be
unfit from operating a CMV.
*
*
*
*
*
■ 5. Amend § 385.3 by adding a
definition for the term ‘‘safety fitness
determination’’ in alphabetical order, by
removing the existing definition for the
term ‘‘safety ratings,’’ and by adding a
new definition for the term ‘‘safety
rating or rating’’ to read as follows:
§ 385.3

Definitions and acronyms.

*

*
*
*
*
Safety fitness determination means
the final determination by FMCSA that
a motor carrier meets the safety fitness
standard under § 385.5.
Safety rating or rating means a rating
of ‘‘Satisfactory,’’ ‘‘Conditional’’ or
‘‘Unsatisfactory,’’ which the FMCSA
assigns to a motor carrier using the
factors prescribed in § 385.7, as
computed under the Safety Fitness
Rating Methodology (SFRM) set forth in
Appendix B to this part and based on
the carrier’s demonstration of adequate
safety management controls under
§ 385.5(a). A safety rating of
‘‘Satisfactory’’ or ‘‘Conditional’’ is
necessary, but not sufficient, to meet the
overall safety fitness standard under
§ 385.5.
(1) Satisfactory safety rating means
that a motor carrier has in place and
functioning safety management controls
adequate to meet that portion of the
safety fitness standard prescribed in
§ 385.5(a). Safety management controls
are adequate for this purpose if they are
appropriate for the size and type of
operation of the particular motor carrier.
(2) Conditional safety rating means a
motor carrier does not have adequate
safety management controls in place to
ensure compliance with that portion of
the safety fitness standard prescribed in
§ 385.5(a), which could result in
occurrences listed in § 385.5(a)(1)
through (a)(11).
(3) Unsatisfactory safety rating means
a motor carrier does not have adequate
safety management controls in place to
ensure compliance with that portion of
the safety fitness standard prescribed in
§ 385.5(a), and this has resulted in
occurrences listed in § 385.5(a)(1)
through (a)(11).
(4) Unrated carrier means that the
FMCSA has not assigned a safety rating
to the motor carrier.

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■

§ 385.11 Notification of safety rating and
safety fitness determination.

6. Revise § 385.5 to read as follows:

§ 385.5

Safety fitness standard.

A motor carrier must meet the safety
fitness standard set forth in this section.
Intrastate motor carriers subject to the
hazardous materials safety permit
requirements of subpart E of this part
must meet the equivalent State
requirements. To meet the safety fitness
standard, the motor carrier must
demonstrate the following:
(a) It has adequate safety management
controls in place, which function
effectively to ensure acceptable
compliance with applicable safety
requirements to reduce the risk
associated with:
(1) Commercial driver’s license
standard violations (part 383 of this
chapter),
(2) Inadequate levels of financial
responsibility (part 387 of this chapter),
(3) The use of unqualified drivers
(part 391 of this chapter),
(4) Improper use and driving of motor
vehicles (part 392 of this chapter),
(5) Unsafe vehicles operating on the
highways (part 393 of this chapter),
(6) Failure to maintain accident
registers and copies of accident reports
(part 390 of this chapter),
(7) The use of fatigued drivers (part
395 of this chapter),
(8) Inadequate inspection, repair, and
maintenance of vehicles (part 396 of this
chapter),
(9) Transportation of hazardous
materials, driving and parking rule
violations (part 397 of this chapter),
(10) Violation of hazardous materials
regulations (parts 170 through 177 of
this title), and
(11) Motor vehicle accidents, as
defined in § 390.5 of this chapter, and
hazardous materials incidents.
(b) The motor carrier has complied
with all requirements contained in any
remedial directive issued under subpart
J of this part.
■ 7. Amend § 385.9 by revising
paragraph (a) to read as follows:

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§ 385.9

Determination of a safety rating.

(a) Following a compliance review of
a motor carrier operation, FMCSA, using
the factors prescribed in § 385.7 as
computed under the Safety Fitness
Rating Methodology set forth in
Appendix B to this part, shall determine
whether the present operations of the
motor carrier are consistent with that
portion of the safety fitness standard set
forth in § 385.5(a), and assign a safety
rating accordingly.
*
*
*
*
*
■ 8. Amend § 385.11 by revising the
section heading and adding paragraph
(g) to read as follows:

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*

*
*
*
*
(g) If a motor carrier is subject to a
remedial directive and proposed
determination of unfitness under
subpart J of this part, the notice of
remedial directive will constitute the
notice of safety fitness determination. If
FMCSA has not issued a notice of
remedial directive and proposed
determination of unfitness under
subpart J of this part, a notice of a
proposed or final safety rating will
constitute the notice of safety fitness
determination.
■ 9. Amend § 385.13 by adding
paragraph (e) as follows:
§ 385.13 Unsatisfactory rated motor
carriers; prohibition on transportation;
ineligibility for Federal contracts.

*

*
*
*
*
(e) Revocation of operating authority.
If a proposed ‘‘unsatisfactory’’ safety
rating or a proposed determination of
unfitness becomes final, the FMCSA
will, following notice, issue an order
revoking the operating authority of the
owner or operator. For purposes of this
section, the term ‘‘operating authority’’
means the registration required under
49 U.S.C. 13902 and § 392.9a of this
subchapter. Any motor carrier that
operates CMVs after revocation of its
operating authority will be subject to the
penalty provisions listed in 49 U.S.C.
14901.
■ 10. Amend § 385.15 by revising
paragraph (a) to read as follows:
§ 385.15

Administrative review.

(a) A motor carrier may request the
FMCSA to conduct an administrative
review if it believes FMCSA has
committed an error in assigning its
proposed safety rating in accordance
with § 385.11(c) or its final safety rating
in accordance with § 385.11(b).
*
*
*
*
*
■ 11. Amend § 385.17 by adding
paragraphs (k) and (l) to read as follows:
§ 385.17 Change to safety rating based
upon corrective actions.

*

*
*
*
*
(k) An upgraded safety rating based
upon corrective action under this
section will have no effect on an
otherwise applicable notice of remedial
directive, or proposed determination of
unfitness issued in accordance with
subpart J of this part.
(l) A motor carrier may not request a
rescission of a determination of
unfitness issued under subpart J of this
part based on corrective action.
■ 12. Amend § 385.19 by revising
paragraphs (a) and (b) to read as follows:

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§ 385.19

17241

Safety fitness information.

(a) Final safety ratings, remedial
directives, and safety fitness
determinations will be made available
to other Federal and State agencies in
writing, telephonically, or by remote
computer access.
(b) The final safety rating, any
applicable remedial directive(s), and the
safety fitness determination pertaining
to a motor carrier will be made available
to the public upon request. Any person
requesting information under this
paragraph must provide FMCSA with
the motor carrier’s name, principal
office address, and, if known, the
USDOT Number or the Interstate
Commerce Commission MC (ICCMC)
docket number if any.
*
*
*
*
*
■ 13. Amend § 385.407 by revising
paragraph (a) to read as follows:
§ 385.407 What conditions must a motor
carrier satisfy for FMCSA to issue a safety
permit?

(a) Motor carrier safety performance.
(1) The motor carrier:
(i) Must be in compliance with any
remedial directive issued under subpart
J of this part, and
(ii) Must have a ‘‘Satisfactory’’ safety
rating assigned by either FMCSA, under
the Safety Fitness Procedures of this
part, or the State in which the motor
carrier has its principal place of
business, if the State has adopted and
implemented safety fitness procedures
that are equivalent to the procedures in
subpart A of this part.
(2) FMCSA will not issue a safety
permit to a motor carrier that:
(i) Does not certify that it has a
satisfactory security program as required
in § 385.407(b);
(ii) Has a crash rate in the top 30
percent of the national average as
indicated in FMCSA Motor Carrier
Management Information System
(MCMIS); or
(iii) Has a driver, vehicle, hazardous
materials, or total out-of-service rate in
the top 30 percent of the national
average as indicated in the MCMIS.
*
*
*
*
*
■ 14. Amend part 385 by adding a new
subpart J consisting of new §§ 385.801
through 385.819 to read as follows:
Subpart J—Remedial Directives
Sec.
385.801 Purpose and scope.
385.803 Definitions and acronyms.
385.805 Events triggering issuance of
remedial directive and proposed
determination of unfitness.
385.807 Notice and issuance of remedial
directive.
385.809 [Reserved]

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385.811 Proof of compliance with remedial
directive.
385.813 Issuance and conditional
rescission of proposed unfitness
determination.
385.815 Exemption for AOBRD users.
385.817 Administrative review.
385.819 Effective of failure to comply with
remedial directive.

Subpart J—Remedial Directives
§ 385.801

Purpose and scope.

(a) This subpart establishes
procedures for FMCSA’s issuance of
notices of remedial directives and
proposed determinations of unfitness.
(b) This subpart establishes the
circumstances under which FMCSA
will direct motor carriers (including
owner-operators leased to motor
carriers, regardless of whether the
owner-operator has separate operating
authority under part 365), in accordance
with § 385.1(a), to install electronic onboard recorders (EOBRs) in their
commercial motor vehicles as a remedy
for threshold rate violations, as defined
by § 385.803, of the part 395 hours-ofservice regulations listed in Appendix C
to this part.
(c) This subpart establishes the
procedures by which motor carriers may
challenge FMCSA’s issuance of
proposed determinations of unfitness
and remedial directives.
(d) The provisions of this subpart
apply to all motor carriers subject to the
requirements of part 395 of this chapter.

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§ 385.803

Definitions and acronyms.

(a) The definitions in subpart A of this
part and part 390 of this chapter apply
to this subpart, except where otherwise
specifically noted.
(b) As used in this subpart, the
following terms have the meaning
specified:
Appendix C regulation means any of
the regulations listed in Appendix C to
Part 385 of this chapter.
Appendix C violation means a
violation of any of the regulations listed
in Appendix C to part 385 of this
chapter.
Electronic on-board recording device
(EOBR) means an electronic device that
is capable of recording a driver’s duty
hours of service and duty status
accurately and automatically and that
meets the requirements of § 395.16 of
this chapter.
Final determination for purposes of
part 385, subpart J means:
(1) An adjudication under this subpart
upholding a notice of remedial directive
and proposed unfitness determination;
(2) The expiration of the period for
filing a request for administrative
review of remedial directive and

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proposed unfitness determination under
this subpart; or
(3) The entry of a settlement
agreement stipulating that the carrier is
subject to mandatory EOBR installation,
use, and maintenance requirements.
Motor carrier includes owneroperators leased to carriers subject to a
remedial directive, regardless of
whether the owner-operator has
separate operating authority under part
365 of this chapter.
Proposed determination of unfitness
or proposed unfitness determination
means a determination by FMCSA that
a motor carrier will not meet the safety
fitness standard under § 385.5 on a
specified future date unless the carrier
takes the actions necessary to comply
with the terms of a remedial directive
issued under this subpart.
Remedial directive means a
mandatory instruction from FMCSA to
take one or more specified action(s) as
a condition of demonstrating safety
fitness under 49 U.S.C. 31144(b).
Threshold rate violation for the
purposes of this subpart means a
violation rate for any Appendix C
regulation equal to or greater than 10
percent of the number of records
reviewed.
§ 385.805 Events triggering issuance of
remedial directive and proposed
determination of unfitness.

A motor carrier subject to 49 CFR part
395 will be subject to a remedial
directive and proposed unfitness
determination in accordance with this
subpart for threshold rate violations of
any Appendix C regulation or
regulations that have been documented
during a compliance review. A remedial
directive and proposed unfitness
determination will be issued if a
compliance review conducted on the
motor carrier resulted in a final
determination of one or more threshold
rate violations of any Appendix C
regulation are discovered.
§ 385.807 Notice and issuance of remedial
directive.

(a) Following the close of the
compliance review described in
§ 385.805(a), FMCSA will issue the
motor carrier a written notice of
remedial directive and proposed
determination of unfitness. FMCSA will
issue the notice and proposed
determination as soon as practicable,
but not later than 30 days after the close
of the review.
(b) The remedial directive will state
that the motor carrier is required to
install and maintain EOBRs compliant
with § 395.16 of this chapter in all of the
motor carrier’s CMVs and to use the

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EOBRS to record its drivers’ hours of
service pursuant to § 395.16. The motor
carrier shall provide proof of the
installation to FMCSA in accordance
with § 385.811 within the following
time periods:
(1) Motor carriers transporting
hazardous materials in quantities
requiring placarding, and motor carriers
transporting passengers in a CMV, must
install EOBRs and provide proof of the
installation by the 45th day after the
date of the notice of remedial directive.
(2) All other motor carriers must
install EOBRs and provide proof of
installation by the 60th day after the
date of FMCSA’s notice of remedial
directive. If FMCSA determines the
motor carrier is making a good-faith
effort to comply with the terms of the
remedial directive, FMCSA may allow
the motor carrier to operate for up to 60
additional days.
(3) A motor carrier may challenge the
notice of remedial directive and
proposed determination of unfitness in
accordance with § 385.817.
§ 385.809

[Reserved]

§ 385.811 Proof of compliance with
remedial directive.

(a) Motor carriers subject to a
remedial directive to install EOBRs
under this section must provide proof of
EOBR installation by one of the
following:
(1) Submitting all of the carrier’s
CMVs for visual and functional
inspection by FMCSA or qualified State
enforcement personnel.
(2) Transmitting to the FMCSA
service center for the geographic area
where the carrier maintains its principal
place of business all of the following
documentation:
(i) Receipts for all necessary EOBR
purchases.
(ii) Receipts for the installation work.
(iii) Digital or other photographic
evidence depicting the installed devices
in the carrier’s CMVs.
(iv) Documentation of the EOBR serial
number for the specific device
corresponding to each CMV in which
the device has been installed.
(3) If no receipt is submitted for an
installed device or the installation work
in accordance with paragraph (a)(2) of
this section, the carrier must submit a
written statement explaining who
installed the devices, how many devices
were installed, the manufacturer and
model numbers of the devices installed,
and the vehicle identification numbers
of the CMVs in which the devices were
installed.
(b) Visual and functional EOBR
inspections may be performed at any

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FMCSA roadside inspection station or at
the roadside inspection or weigh station
facility of any State that receives Motor
Carrier Safety Assistance Program funds
under 49 U.S.C. 31102 and that provides
such inspection services. The carrier
may also request such inspections be
performed at its principal place of
business.
(c) Motor carriers issued remedial
directives pursuant to this section must
install in all of their CMVs EOBRs
meeting the standards set forth in 49
CFR 395.16. Such motor carriers must
maintain and use the EOBRs to verify
compliance with part 395 for a period
of 2 years following the issuance of the
remedial directive. In addition to any
other requirements imposed by the
FMCSRs, during the period of time the
carrier is subject to a remedial directive
the carrier must maintain all records
and reports generated by the EOBRs
and, upon demand, produce those
records to FMCSA personnel.
(d) Malfunctioning devices. Motor
carriers subject to remedial directives
shall maintain EOBRs installed in their
CMVs in good working order. Such
carriers must cause any malfunctioning
EOBR to be repaired or replaced within
14 days from the date the carrier
becomes aware of the malfunction.
During this repair or replacement
period, carriers subject to a remedial
directive under this part must prepare a
paper record of duty status pursuant to
§ 395.8 of this chapter as a temporary
replacement for the non-functioning
EOBR unit. All other provisions of the
remedial directive will continue to
apply during the repair and replacement
period. Failure to comply with the terms
of this paragraph may subject the
affected CMV and/or driver to an out-ofservice order pursuant to § 396.9(c) and
§ 395.13 of this chapter, respectively.
Repeated violations of this paragraph
may subject the motor carrier to the
provisions of § 385.819.

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§ 385.813 Issuance and conditional
rescission of proposed unfitness
determination.

(a) Simultaneously with the notice of
remedial directive, FMCSA will issue a
proposed unfitness determination. The
proposed unfitness determination will
explain that, if the motor carrier fails to
comply with the terms of the remedial
directive, the carrier will be unfit under
the fitness standard in § 385.5,
prohibited from engaging in interstate
operations and intrastate operations
affecting interstate commerce, and, in
the case of a carrier registered under 49
U.S.C. 13902, have its registration
revoked.

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(b) FMCSA will conditionally rescind
the proposed determination of unfitness
upon the motor carrier’s submission of
sufficient proof of EOBR installation in
accordance with § 385.811.
(c) During the period the remedial
directive is in effect, FMCSA may
reinstate the proposed unfitness
determination and immediately prohibit
the motor carrier from operating in
interstate commerce and intrastate
operations affecting interstate commerce
if the motor carrier violates the
provisions of the remedial directive.
§ 385.815

Exemption for AOBRD users.

(a) Upon written request by the motor
carrier, FMCSA will grant an exception
from the requirements of remedial
directives under this section to motor
carriers that already had installed in all
commercial motor vehicles, at the time
of the compliance review immediately
preceding the issuance of the notice of
remedial directive, AOBRDs compliant
with 49 CFR 395.15 of this chapter.
(b) The carrier will be permitted to
continue using the previously installed
devices if the carrier can satisfactorily
demonstrate to FMCSA that the carrier
and its employees understand how to
use the AOBRDs and the information
derived from them.
(c) The carrier must either use and
maintain the AOBRDs currently in its
CMVs or install new devices
compliance with § 395.16 of this
chapter.
(d) Although FMCSA may suspend
enforcement for noncompliance with
the remedial directive, the directive will
remain in effect; and the hours-ofservice compliance of any motor carrier
so exempted, will be subject to ongoing
FMCSA oversight.
(e) The exemption granted under this
section shall not apply to CMVs
manufactured on or after the date 2
years from the effective date of this rule.
§ 385.817

Administrative review.

(a) A motor carrier may request
FMCSA to conduct an administrative
review if the carrier believes FMCSA
has committed an error in issuing a
notice of remedial directive under
§ 385.807 and proposed unfitness
determination under § 385.813.
Administrative reviews of notices of
remedial directive and proposed
unfitness determinations are limited to
findings in the compliance review
immediately preceding the notice.
(b) The motor carrier’s request must
explain the error it believes FMCSA
committed in issuing the notice of
remedial directive and proposed
unfitness determination. The motor
carrier must include a list of all factual

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17243

and procedural issues in dispute and
any information or documents that
support its argument.
(c) The motor carrier must submit its
request in writing to the Assistant
Administrator, Federal Motor Carrier
Safety Administration, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
The motor carrier must submit on the
same day a copy of the request to
FMCSA counsel in the FMCSA service
center for the geographic area where the
carrier maintains its principal place of
business.
(1) If a motor carrier has received a
notice of remedial directive and
proposed unfitness determination, the
carrier should submit its request in
writing within 15 days from the date of
the notice. This timeframe will allow
FMCSA to issue a written decision
before the prohibitions outlined in
§ 385.819(a) take effect. If the carrier
submits its request for administrative
review within 15 days of the issuance of
the notice of remedial directive and
proposed unfitness determination,
FMCSA will stay the finality of the
proposed unfitness determination until
the Agency has ruled on the carrier’s
request. Failure to submit the request
within this 15-day period may prevent
FMCSA from ruling on the request
before the prohibitions take effect.
(2) A motor carrier must make a
request for an administrative review
within 90 days after the date of the
notice of remedial directive and
proposed determination of unfitness
under § 385.807.
(d) FMCSA may request the motor
carrier to submit additional data or
attend a conference to discuss the
request for review. If the motor carrier
does not provide the information
requested, or does not attend the
conference, FMCSA may dismiss its
request for review.
(e) FMCSA will notify the motor
carrier in writing of its decision
following the administrative review.
FMCSA will complete its review:
(1) Within 30 days after receiving a
request from a hazardous materials or
passenger motor carrier that has
received a proposed unfitness
determination;
(2) Within 45 days after receiving a
request from any other motor carrier
that has received a proposed unfitness
determination;
(3) With respect to requests for
administrative review of notices of
remedial directive, as soon as
practicable but not later than 60 days
after receiving the request.
(f) The decision regarding a proposed
unfitness determination constitutes final
Agency action.

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(g) The provisions of this section will
not affect procedures for administrative
review of proposed or final safety
ratings in accordance with § 385.15 or
for requests for changes to safety ratings
based upon corrective action in
accordance with § 385.17.

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§ 385.819 Effect of failure to comply with
remedial directive.

(a) A motor carrier that fails or refuses
to comply with the terms of a remedial
directive issued under this subpart,
including a failure or refusal to provide
proof of EOBR installation in
accordance with § 385.811, does not
meet the safety fitness standard set forth
in § 385.5(b). With respect to such
carriers, the proposed determination of
unfitness issued in accordance with
§ 385.813 becomes final, and the motor
carrier is prohibited from operating, as
follows:
(1) Motor carriers transporting
hazardous materials in quantities
requiring placarding and motor carriers
transporting passengers in a CMV are
prohibited from operating CMVs in
interstate commerce and in operations
that affect interstate commerce
beginning on the 46th day after the date
of FMCSA’s notice of remedial directive
and proposed unfitness determination.
A motor carrier subject to the
registration requirements of 49 U.S.C.
13901 will have its registration revoked
on the 46th day after the date of
FMCSA’s notice of remedial directive
and proposed unfitness determination.
(2) All other motor carriers are
prohibited from operating a CMV in
interstate commerce and in operations
that affect interstate commerce
beginning on the 61st day after the date
of FMCSA’s notice of remedial directive
and proposed unfitness determination.
A motor carrier subject to the
registration requirements of 49 U.S.C.
13901 will have its registration revoked
on the 61st day after the date of
FMCSA’s notice of remedial directive
and proposed unfitness determination.
If FMCSA determines the motor carrier
is making a good-faith effort to satisfy
the terms of the remedial directive,
FMCSA may allow the motor carrier to
operate for up to 60 additional days.
(b) If a proposed unfitness
determination becomes a final
determination, FMCSA will issue an
order prohibiting the motor carrier from
operating in interstate commerce. If the
motor carrier is required to register
under 49 U.S.C. 13901, FMCSA will
revoke the motor carrier’s registration
on the dates specified in § 385.819(a)(1)
and (a)(2).
(c) If FMCSA has prohibited a motor
carrier from operating in interstate

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commerce under paragraph (a) of this
section and, if applicable, revoked the
carrier’s registration, and the motor
carrier subsequently complies with the
terms and conditions of the remedial
directive and provides proof of EOBR
installation under § 385.811, the carrier
may request FMCSA to lift the
prohibition on operations at any time
after the prohibition becomes effective.
The request should be submitted in
writing in accordance with § 385.817(c).
(d) A Federal Agency must not use for
CMV transportation a motor carrier that
FMCSA has determined is unfit.
(e) Penalties. If a proposed unfitness
determination becomes a final
determination, FMCSA will issue an
order prohibiting the motor carrier from
operating in interstate commerce and
any intrastate operations that affect
interstate commerce and, if applicable,
revoking its registration. Any motor
carrier that operates a CMV in violation
of this section will be subject to the
penalty provisions listed in 49 U.S.C.
521(b).
■ 15. Amend Appendix B to part 385 by
revising paragraphs (b), (c), and (d) and
section VI, paragraph (a), to read as
follows:
Appendix B to Part 385—Explanation
of Safety Rating Process
*

*

*

*

*

(b) As directed, FMCSA promulgated a
safety fitness regulation, entitled ‘‘Safety
Fitness Procedures,’’ which established a
procedure to determine the safety fitness of
motor carriers through the assignment of
safety ratings and established a ‘‘safety fitness
standard’’ that a motor carrier must meet to
obtain a ‘‘Satisfactory’’ safety rating. FMCSA
later amended the safety fitness standard to
add a distinct requirement that motor carriers
also be in compliance with applicable
remedial directives.
(c) To meet the safety fitness standard, a
motor carrier must meet two requirements.
First, the carrier must demonstrate to FMCSA
it has adequate safety management controls
in place that function effectively to ensure
acceptable compliance with the applicable
safety requirements. (See § 385.5(a)). A
‘‘safety fitness rating methodology’’ (SFRM)
developed by FMCSA uses data from
compliance reviews (CRs) and roadside
inspections to rate motor carriers. Second, a
motor carrier must also be in compliance
with any applicable remedial directives
issued in accordance with subpart J. This
second requirement is set forth in § 385.5(b).
(d) The safety rating process developed by
FMCSA is used to:
1. Evaluate the first component of the
safety fitness standard, under § 385.5(a), and
assign one of three safety ratings
(Satisfactory, Conditional, or Unsatisfactory)
to motor carriers operating in interstate
commerce. This process conforms to
§ 385.5(a), Safety fitness standard, and
§ 385.7, Factors to be considered in
determining a safety rating.

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2. Identify motor carriers needing
improvement in their compliance with the
Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous
Materials Regulations (HMRs). These are
carriers rated Unsatisfactory or Conditional.

*

*

*

*

*

VI. Conclusion
(a) FMCSA believes this ‘‘safety fitness
rating methodology’’ is a reasonable approach
to assignment of a safety rating, as required
by the safety fitness regulations (§ 385.9), that
most closely reflects the motor carrier’s
current level of compliance with the safety
fitness standard in § 385.5(a). This
methodology has the capability to
incorporate regulatory changes as they occur.

*

*

*

*

*

16. Add Appendix C to part 385 to
read as follows:

■

Appendix C to Part 385—Regulations
Pertaining to Remedial Directives in
Part 385, Subpart J
§ 395.1(h)(1)(i) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive more than 15 hours (Driving
in Alaska).
§ 395.1(h)(1)(ii) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive after having been on duty 20
hours (Driving in Alaska).
§ 395.1(h)(1)(iii) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive after having been on duty
more than 70 hours in 7 consecutive days
(Driving in Alaska).
§ 395.1(h)(1)(iv) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive after having been on duty
more than 80 hours in 8 consecutive days
(Driving in Alaska).
§ 395.1(h)(2)(i) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive more than 15 hours (Driving
in Alaska).
§ 395.1(h)(2)(ii) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive after having been on duty 20
hours (Driving in Alaska).
§ 395.1(h)(2)(iii) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive after having been on duty
more than 70 hours in 7 consecutive days
(Driving in Alaska).
§ 395.1(h)(2)(iv) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive after having been on duty
more than 80 hours in 8 consecutive days
(Driving in Alaska).
§ 395.1(o) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive after having been on duty 16
consecutive hours.
§ 395.3(a)(1) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive more than 11 hours.
§ 395.3(a)(2) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive after the end of the 14th hour
after coming on duty.
§ 395.3(b)(1) Requiring or permitting a
property-carrying commercial motor vehicle

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driver to drive after having been on duty
more than 60 hours in 7 consecutive days.
§ 395.3(b)(2) Requiring or permitting a
property-carrying commercial motor vehicle
driver to drive after having been on duty
more than 70 hours in 8 consecutive days.
§ 395.3(c)(1) Requiring or permitting a
property-carrying commercial motor vehicle
driver to restart a period of 7 consecutive
days without taking an off-duty period of 34
or more consecutive hours.
§ 395.3(c)(2) Requiring or permitting a
property-carrying commercial motor vehicle
driver to restart a period of 8 consecutive
days without taking an off-duty period of 34
or more consecutive hours.
§ 395.5(a)(1) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive more than 10 hours.
§ 395.5(a)(2) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive after having been on duty 15
hours.
§ 395.5(b)(1) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive after having been on duty
more than 60 hours in 7 consecutive days.
§ 395.5(b)(2) Requiring or permitting a
passenger-carrying commercial motor vehicle
driver to drive after having been on duty
more than 70 hours in 8 consecutive days.
§ 395.8(a) Failing to require driver to
make a record of duty status.
§ 395.8(e) False reports of records of duty
status.
§ 395.8(i) Failing to require driver to
forward within 13 days of completion, the
original of the record of duty status.
§ 395.8(k)(1) Failing to preserve driver’s
record of duty status for 6 months.
§ 395.8(k)(1) Failing to preserve driver’s
records of duty status supporting documents
for 6 months.

PART 395—HOURS OF SERVICE OF
DRIVERS
17. The authority citation for part 395
is revised to read as follows:

■

Authority: 49 U.S.C. 508, 13301, 13902,
31133, 31136, 31502, 31504, and § 204, Pub.
L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701
note); Sec. 114, Pub. L. 103–311, 108 Stat.
1673, 1677; Sec. 217, Pub. L. 106–159, 113
Stat. 1748, 1767; and 49 CFR 1.73.

18. Amend § 395.2 by adding the
following definitions in alphabetical
order:

■

§ 395.2

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§ 395.8

Definitions.

*

*
*
*
*
CD–RW (Compact Disc—ReWriteable) means an optical disc digital
storage format that allows digital data to
be erased and rewritten many times.
The technical and physical
specifications for CD–RW are described
in the document Orange Book Part III:
CD–RW, published by Royal Philips
Electronics.
CMRS (Commercial Mobile Radio
Services) An FCC designation for any
carrier or licensee whose wireless

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network is connected to the public
switched telephone network and/or is
operated for profit. Another common
term for these entities is cellular
telephony providers.
*
*
*
*
*
802.11 is a set of communications and
product compatibility standards for
wireless local area networks (WLAN).
The 802.11 standards are also known as
WiFi by marketing convention.
Electronic on-board recording device
(EOBR) means an electronic device that
is capable of recording a driver’s hours
of service and duty status accurately
and automatically and that meets the
requirements of § 395.16. The device
must be integrally synchronized with
specific operations of the commercial
motor vehicle in which it is installed.
The EOBR must record, at minimum,
the information listed in § 395.16(b).
*
*
*
*
*
Integrally synchronized refers to an
AOBRD or EOBR that receives and
records the engine use status and
distance traveled for the purpose of
deriving on-duty driving status from a
source or sources internal to the CMV.
*
*
*
*
*
USB (Universal Serial Bus) is a serial
bus interface standard for connecting
electronic devices.
UTC (Coordinated Universal Time) is
the international civil time standard,
determined by using highly precise
atomic clocks. It is the basis for civil
standard time in the United States and
its territories. UTC time refers to time
kept on the Greenwich meridian
(longitude zero), which is 5 hours ahead
of Eastern Standard Time. UTC times
are expressed in terms of a 24-hour
clock. Standard time within any U.S.
time zone is offset from UTC by a given
number of hours determined by the time
zone’s distance from the Greenwich
meridian.
*
*
*
*
*
■ 19. Amend § 395.8 by revising
paragraphs (a)(2) and (e) to read as
follows:
Driver’s record of duty status.

(a) * * *
(2) Every driver operating a
commercial motor vehicle equipped
with either an automatic on-board
recording device meeting the
requirements of § 395.15 or an
electronic on-board recorder meeting
the requirements of § 395.16 must
record his or her duty status using the
device installed in the vehicle. The
requirements of this section shall not
apply, except for paragraphs (e) and
(k)(1) and (2) of this section.
*
*
*
*
*

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(e) Failure to complete the record of
duty activities of either this section,
§ 395.15 or § 395.16, failure to preserve
a record of such duty activities, or
making false reports in connection with
such duty activities shall make the
driver and/or the carrier liable to
prosecution.
*
*
*
*
*
■ 20. Add § 395.11 to read as follows:
§ 395.11 Supporting documents for drivers
using EOBRs.

(a) Motor carriers maintaining date,
time and location data produced by a
§ 395.16-compliant EOBR need only
maintain additional supporting
documents (e.g., driver payroll records,
fuel receipts) that provide the ability to
verify on-duty not driving activities and
off-duty status according to the
requirements of § 395.8(k).
(b) This section does not apply to
motor carriers and owner-operators that
have been issued a remedial directive to
install, use, and maintain EOBRs.
■ 21. Amend § 395.13 by revising
paragraph (b)(2) and by adding
paragraph (b)(4) to read as follows:
§ 395.13

Drivers declared out of service.

*

*
*
*
*
(b) * * *
(2) Every driver required to maintain
a record of duty status under § 395.8
must have a record of duty status
current on the day of examination and
for the prior 7 consecutive days.
*
*
*
*
*
(4) No driver shall drive a CMV in
violation of § 385.811(d) of this chapter.
*
*
*
*
*
■ 22. Amend § 395.15 by adding
introductory text to paragraph (a), and
revising paragraph (a)(1) to read as
follows:
§ 395.15 Automatic on-board recording
devices.

(a) Applicability and authority to use.
This section applies to automatic onboard recording devices (AOBRDs) used
to record drivers’ hours of service as
specified by part 395.
(1) A motor carrier may require a
driver to use an AOBRD to record the
driver’s hours of service in lieu of
complying with the requirements of
§ 395.8 of this part. For commercial
motor vehicles manufactured prior to
June 4, 2012, manufacturers or motor
carriers may install an electronic device
to record hours of service if the device
meets the requirements of either this
section or § 395.16.
*
*
*
*
*
■

23. Add § 395.16 to read as follows:

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§ 395.16 Electronic on-board recording
devices.

(a) Applicability and authority to use.
This section applies to electronic onboard recording devices (EOBRs) used
to record the driver’s hours of service as
specified by part 395. Motor carriers
subject to a remedial directive to install,
use and maintain EOBRs, issued in
accordance with 49 CFR part 385,
subpart J, must comply with this
section.
(1) A motor carrier may require a
driver to use an EOBR to record the
driver’s hours of service in lieu of
complying with the requirements of
§ 395.8 of this part. For commercial
motor vehicles manufactured after June
4, 2012, any electronic device installed
in a CMV by a manufacturer or motor
carrier to record hours of service must
meet the requirements of this section.
(2) Every driver required by a motor
carrier to use an EOBR shall use such
device to record the driver’s hours of
service.
(b) Information to be recorded. An
EOBR must record the following
information:
(1) Name of driver and any codriver(s), and corresponding driver
identification information (such as a
user ID and password). However, the
name of the driver and any co-driver is
not required to be transmitted as part of
the downloaded file during a roadside
inspection.
(2) Duty status.
(3) Date and time.
(4) Location of CMV.
(5) Distance traveled.
(6) Name and USDOT Number of
motor carrier.
(7) 24-hour period starting time (e.g.,
midnight, 9 a.m., noon, 3 p.m.).
(8) The multiday basis (7 or 8 days)
used by the motor carrier to compute
cumulative duty hours and driving time.
(9) Hours in each duty status for the
24-hour period, and total hours.
(10) Truck or tractor and trailer
number.
(11) Shipping document number(s), or
name of shipper and commodity.
(c) Duty status categories. An EOBR
must use the following duty statuses:
(1) ‘‘Off duty’’ or ‘‘OFF’’.
(2) ‘‘Sleeper berth’’ or ‘‘SB’’, to be used
only if sleeper berth is used.
(3) ‘‘Driving’’ or ‘‘D’’.
(4) ‘‘On-duty not driving’’ or ‘‘ON’’.
(d) Duty status defaults.
(1) An EOBR must automatically
record driving time. If the CMV is being
used as a personal conveyance, the
driver must affirmatively enter an
annotation before the CMV begins to
move.
(2) When the CMV is stationary for 5
minutes or more, the EOBR must default

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to on-duty not driving, and the driver
must enter the proper duty status.
(3) An EOBR must record the results
of power-on self-tests and diagnostic
error codes.
(e) Date and time.
(1) The date and time must be
recorded on the EOBR output record as
specified under paragraph (i) of this
section at each change of duty status,
and at intervals of no greater than 60
minutes when the CMV is in motion.
The date and time must be displayed on
the EOBR’s visual output device.
(2) The date and time must be
obtained, transmitted, and recorded in
such a way that it cannot be altered by
a motor carrier, driver, or third party.
(3) The driver’s duty status record
must be prepared, maintained, and
submitted using the time standard in
effect at the driver’s home terminal, for
a 24-hour period beginning with the
time specified by the motor carrier for
that driver’s home terminal.
(4) The time must be coordinated to
UTC and the absolute deviation shall
not exceed 10 minutes at any time.
(f) Location.
(1) Information used to determine the
location of the CMV must be derived
from a source not subject to alteration
by the motor carrier or driver.
(2) The location description for the
duty status change, and for intervening
intervals while the CMV is in motion,
must be sufficiently precise to enable
Federal, State, and local enforcement
personnel to quickly determine the
vehicle’s geographic location on a
standard map or road atlas. The term
‘‘sufficiently precise,’’ for purposes of
this paragraph means the nearest city,
town or village.
(3) When the CMV is in motion,
location and time must be recorded at
intervals no greater than 60 minutes.
This recorded information must be
capable of being made available in an
output file format as specified in
Appendix A to this part, but does not
need to be displayed on the EOBR’s
visual output device.
(4) For each change of duty status
(e.g., the place and time of reporting for
work, starting to drive, on-duty not
driving, and where released from work),
the name of the nearest city, town, or
village, with State abbreviation, must be
recorded.
(5) The EOBR must record location
names using codes derived from
satellite or terrestrial sources, or a
combination of these. The location
codes must correspond, at a minimum,
to ANSI INCITS 446–2008, ‘‘American
National Standard for Information
Technology—Identifying Attributes for
Named Physical and Cultural

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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),’’ where
‘‘GNIS Feature Class’’ = ‘‘Populated
Place’’ (incorporated by reference, see
§ 395.18). (For further information, see
also the Geographic Names Information
System (GNIS) at http://
geonames.usgs.gov/domestic/
index.html).
(g) Distance traveled.
(1) Distance traveled must use units of
miles or kilometers driving during each
on-duty driving period and total for
each 24-hour period for each driver
operating the CMV.
(2) If the EOBR records units of
distance in kilometers, it must provide
a means to display the equivalent
distance in miles.
(3) Distance traveled information
obtained from a source internal to the
CMV must be accurate to the distance
traveled as measured by the CMV’s
odometer.
(h) Review of information by driver.
(1) The EOBR must allow for the
driver’s review of each day’s record
before the driver submits the record to
the motor carrier.
(2) The driver must review the
information contained in the EOBR
record and affirmatively note the review
before submitting the record to the
motor carrier.
(3) The driver may annotate only nondriving-status periods and the use of a
CMV as a personal conveyance as
described in paragraph (d)(1) of this
section. The driver must electronically
confirm his or her intention to make any
annotations. The annotation must not
overwrite the original record.
(4) If the driver makes a written entry
on a hardcopy output of an EOBR
relating to his or her duty status, the
entries must be legible and in the
driver’s own handwriting.
(i) Information reporting
requirements.
(1) An EOBR must make it possible
for authorized Federal, State, or local
officials to immediately check the status
of a driver’s hours of service.
(2) An EOBR must produce, upon
demand, a driver’s hours-of-service
record in either electronic or printed
form. It must also produce a digital file
in the format described in Appendix A
to this part. The record must show the
time and sequence of duty status
changes including the driver’s starting
time at the beginning of each day. As an
alternative, the EOBR must be able to
provide a driver’s hours-of-service

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record as described in paragraph (i)(6) of
this section.
(3) This information may be used in
conjunction with handwritten or
printed records of duty status for the
previous 7 days.
(4) Hours-of-service information must
be made accessible to authorized
Federal, State, or local safety assurance
officials for their review without
requiring the official to enter in or upon
the CMV. The output record must
conform to the file format specified in
Appendix A to this part.
(5) The driver must have in his or her
possession records of duty status for the
previous 7 consecutive days available
for inspection while on duty. These
records must consist of information
stored in and retrievable from the EOBR,
handwritten records, records available
from motor carriers’ support systems,
other printed records, or any
combination of these. Electronic records
must be capable of one-way transfer
through wired and wireless methods to
portable computers used by roadside
safety assurance officials and must
provide files in the format specified in
Appendix A to this part. Wired
communication information interchange
methods must comply with the
‘‘Universal Serial Bus Specification
(Revision 2.0) incorporated by reference,
see § 395.18) and additional
specifications in Appendix A, paragraph
2.2 to this part. Wireless communication
information interchange methods must
comply with the requirements of the
802.11g–2003 standard as defined in the
802.11–2007 base standard ‘‘IEEE
Standard for Information Technology—
Telecommunications and information
exchange between systems—Local and
metropolitan area networks—Specific
requirements: Part 11: Wireless LAN
Medium Access Control (MAC) and
Physical Layer (PHY) Specifications’’
(IEEE Std. 802.11–2007) (incorporated
by reference, see § 395.18), or CMRS.
(6) Support systems used in
conjunction with EOBRs at a driver’s
home terminal or the motor carrier’s
principal place of business must be
capable of providing authorized Federal,
State, or local officials with summaries
of an individual driver’s hours of
service records, including the
information specified in § 395.8(d). The
support systems must also provide
information concerning on-board system
sensor failures and identification of
amended and edited data. Support
systems must provide a file in the
format specified in Appendix A to this
part. The system must also be able to
produce a copy of files on portable
storage media (CD–RW, USB 2.0 drive)
upon request of authorized safety

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assurance officials. The support system
may be maintained by a third-party
service provider on behalf of the motor
carrier.
(j) Driver identification. For the driver
to log into the EOBR, the EOBR must
require the driver to enter information
(such as a user ID and password) that
identifies the driver or to provide other
information (such as smart cards,
biometrics) that identifies the driver.
(k) Availability of records of duty
status.
(1) An EOBR must be capable of
producing duty status records for the
current day and the previous 7 days
from either the information stored in
and retrievable from the EOBR or motor
carrier support system records, or any
combination of these.
(2) If an EOBR fails, the driver must
do the following:
(i) Note the failure of the EOBR and
inform the motor carrier within 2 days.
(ii) Reconstruct the record of duty
status for the current day and the
previous 7 days, less any days for which
the driver has records.
(iii) Continue to prepare a
handwritten record of all subsequent
duty status until the device is again
operational.
(iv) A brief (less than 5 minute) loss
of connectivity between the EOBR and
a location-tracking system or the motor
carriers’ support system is not
considered an EOBR failure for the
purpose of this section.
(l) On-board information. Each
commercial motor vehicle must have
onboard the commercial motor vehicle
an information packet containing the
following items:
(1) An instruction sheet describing
how data may be stored and retrieved
from the EOBR.
(2) A supply of blank driver’s records
of duty status graph-grids sufficient to
record the driver’s duty status and other
related information for the duration of
the current trip.
(m) Submission of driver’s record of
duty status.
(1) The driver must submit
electronically, to the employing motor
carrier, each record of the driver’s duty
status.
(2) For motor carriers not subject to
the remedies provisions of part 385
subpart J of this chapter, each record
must be submitted within 13 days of its
completion.
(3) For motor carriers subject to the
remedies provisions of part 385 subpart
J of this chapter, each record must be
submitted within 3 days of its
completion.
(4) The driver must review and verify
that all entries are accurate prior to

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17247

submission to the employing motor
carrier.
(5) The submission of the record of
duty status certifies that all entries made
by the driver are true and correct.
(n) EOBR display requirements. An
EOBR must have the capability of
displaying all of the following
information:
(1) The driver’s name and EOBR login
ID number on all EOBR records
associated with that driver, including
records in which the driver serves as a
co-driver.
(2) The driver’s total hours of driving
during each driving period and the
current duty day.
(3) The total hours on duty for the
current duty day.
(4) Total miles or kilometers of
driving during each driving period and
the current duty day.
(5) Total hours on duty and driving
time for the prior 7-consecutive-day
period, including the current duty day.
(6) Total hours on duty and driving
time for the prior 8-consecutive-day
period, including the current duty day.
(7) The sequence of duty status for
each day, and the time of day and
location for each change of duty status,
for each driver using the device.
(8) EOBR serial number or other
identification, and identification
number(s) of vehicle(s) operated that
day.
(9) Remarks, including fueling,
waypoints, loading and unloading
times, unusual situations, or violations.
(10) Driver’s override of an automated
duty status change to driving if using
the vehicle for personal conveyance or
for yard movement.
(11) The EOBR may record other data
as the motor carrier deems appropriate,
including the date and time of crossing
a State line for purposes of fuel-tax
reporting.
(o) Performance of recorders. A motor
carrier that uses an EOBR for recording
a driver’s records of duty status instead
of the handwritten record must ensure
the EOBR meets the following
requirements:
(1) The EOBR must permit the driver
to enter information into the EOBR only
when the commercial motor vehicle is
at rest.
(2) The EOBR and associated support
systems must not permit alteration or
erasure of the original information
collected concerning the driver’s hours
of service, or alteration of the source
data streams used to provide that
information.
(3) The EOBR must be able to perform
a power-on self-test, as well as a self-test
at any point upon request of an
authorized safety assurance official. The

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EOBR must provide an audible and
visible signal as to its functional status.
It must record the outcome of the selftest and its functional status as a
diagnostic event record in conformance
with Appendix A to this part.
(4) The EOBR must provide an
audible and visible signal to the driver
at least 30 minutes in advance of
reaching the driving time limit and the
on-duty limit for the 24-hour period.
(5) The EOBR must be able to track
total weekly on-duty and driving hours
over a 7- or 8-day consecutive period.
The EOBR must be able to warn a driver
at least 30 minutes in advance of
reaching the weekly duty-/driving-hour
limitation.
(6) The EOBR must warn the driver
via an audible and visible signal that the
device has ceased to function. ‘‘Ceasing
to function’’ for the purpose of this
paragraph does not include brief losses
of communications signals during such
time as, but not limited to, when the
vehicle is traveling through a tunnel.
(7) The EOBR must record a code
corresponding to the reason it has
ceased to function and the date and time
of that event.
(8) The audible signal must be capable
of being heard and discerned by the
driver when seated in the normal
driving position, whether the CMV is in
motion or parked with the engine
operating. The visual signal must be
visible to the driver when the driver is
seated in the normal driving position.
(9) The EOBR must be capable of
recording separately each driver’s duty
status when there is a multiple-driver
operation.
(10) The EOBR device/system must
identify sensor failures and edited and
annotated data when downloaded or
reproduced in printed form.
(11) The EOBR device/system must
identify annotations made to all records,
the date and time the annotations were
made, and the identity of the person
making them.
(12) If a driver or any other person
annotates a record in an EOBR or an
EOBR support system, the annotation
must not overwrite the original contents
of the record.
(p) Motor Carrier Requirements.
(1) The motor carrier must 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 its EOBR
support systems that use the original
information and source data streams.
(2) The motor carrier must ensure the
EOBR is calibrated, maintained, and
recalibrated in accordance with the

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manufacturer’s specifications; the motor
carrier must retain records of these
activities.
(3) The motor carrier’s drivers and
other personnel reviewing and using
EOBRs and the information derived
from them must be adequately trained
regarding the proper operation of the
device.
(4) The motor carrier must maintain a
second copy (back-up copy) of the
electronic hours-of-service files, by
month, on a physical device different
from that on which the original data are
stored.
(5) The motor carrier must review the
EOBR records of its drivers for
compliance with part 395.
(6) If the motor carrier receives or
discovers information concerning the
failure of an EOBR, the carrier must
document the failure in the hours-ofservice record for that driver.
(q) Manufacturer’s self-certification.
(1) The EOBR and EOBR support
systems must be certified by the
manufacturer as evidence that they have
been sufficiently tested to meet the
requirements of § 395.16 and Appendix
A to this part under the conditions in
which they would be used.
(2) The exterior faceplate of the EOBR
must be marked by the manufacturer
with the text ‘‘USDOT–EOBR’’ as
evidence that the device has been tested
and certified as meeting the
performance requirements of § 395.16
and Appendix A to this part.
■ 24. Add § 395.18 to read as follows:
§ 395.18

Matter incorporated by reference.

(a) Incorporation by reference. Certain
materials are incorporated by reference
in part 395, with the approval of the
Director of the Federal Register under 5
U.S.C. 552(a), and 1 CFR part 51. For
materials subject to change, only the
specific version approved by the
Director of the Office of the Federal
Register and specified in the regulation
is incorporated. 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 of the approved material is 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/cfr/ibr-locations.html.
Also, it is available for inspection at the
Federal Motor Carrier Safety
Administration, Office of Bus and Truck
Standards and Operations (MC–PS),
1200 New Jersey Ave., SE., Washington,
DC 20590–00001, (202) 366–4325, and

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is available from the sources listed in
paragraphs (b) and (c) of this section.
(b) Institute of Electrical and
Electronic Engineers (IEEE). 3 Park
Avenue, New York, New York 10016–
5997. Web page is http://www.ieee.org/
web/publications/home; telephone is
(800) 678–4333.
(1) ‘‘IEEE Standard for Information
Technology—Telecommunications and
information exchange between
systems—Local and metropolitan area
networks—Specific requirements: Part
11: Wireless LAN Medium Access
Control (MAC) and Physical Layer
(PHY) Specifications,’’ IEEE Computer
Society, Sponsored by the LAN/MAN
Standards Committee: June 12, 2007
(IEEE Std. 802.11–2007). Incorporation
by reference approved for § 395.16(i);
and Appendix A to part 395, paragraph
2.3.
(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, HewlettPackard, Intel, Lucent, Microsoft, NEC,
Philips; April 27, 2000 (Revision 2.0).
Incorporation by reference approved for
§ 395.16(i) and Appendix A to part 395,
paragraph 2.2.
(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
§ 395.16(f); Appendix A to part 395,
paragraph 1.3, Table 2; and Appendix A
to part 395, paragraph 3.1.1.3. (For
further information, see also the
Geographic Names Information System
(GNIS) at http://geonames.usgs.gov/
domestic/index.html.
(2) [Reserved]
25. Add Appendix A to 49 CFR part
395 to read as follows:

■

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17249

1.1 To facilitate the electronic transfer of
records to roadside inspection personnel and
compliance review personnel, and provide
the ability of various third-party and
proprietary EOBR devices to be

interoperable, a consistent electronic file
format and record layout for the electronic
RODS data to be recorded are necessary. This
EOBR data elements dictionary provides a
standardized and consistent format for EOBR
output data.
EOBR Data File Format
1.2 Regardless of the particular electronic
file type (such as ASCII or XML) ultimately
used for recording the electronic RODS
produced by an EOBR, RODS data must be

recorded according to a ‘‘flat file’’ database
model format. A flat file is a simple database
in which all information is stored in a plain
text format with one database ‘‘record’’ per
line. Each of these data records is divided
into ‘‘fields’’ using delimiters (as in a commaseparate-values data file) or based on fixed
column positions. Table 1 below presents the
general concept of a flat data file consisting
of data ‘‘fields’’ (columns) and data ‘‘records’’
(rows).

1.3 The data elements dictionary
describes the data fields component of the
above framework. Individual data records
must be generated and recorded whenever
there is a change in driver duty status, an
EOBR diagnostic event (such as power-on/

off, self test, etc.), or when one or more data
fields of an existing data record are later
amended. In the last case, the corrected
record must be recorded and noted as
‘‘current’’ in the ‘‘Event Status Code’’ data
field, with the original record maintained in

its unedited form and noted as ‘‘historical’’ in
the ‘‘Event Status Code’’ data field. The EOBR
Data Elements Dictionary is described in
Table 2. The event codes are listed in Table
3.

Appendix A to Part 395—Electronic
On-Board Recorder Performance
Specifications
1. Data Elements Dictionary for Electronic
On-Board Recorders (EOBRs)

TABLE 2—EOBR DATA ELEMENTS DICTIONARY
Data element

Data element definition

Type

Length

Valid values and notes

Driver Identification Data
Driver First Name ......
Driver Last Name ......
Driver PIN/ID .............

First name of the driver ..................................................
Last name, family name, or surname of the driver ........
Numeric identification number assigned to a driver by
the motor carrier.

A ............
A ............
A ............

35
35
40

See Note 1.
See Note 1.

Vehicle Identification Data
Tractor Number .........
Trailer Number ..........
Tractor VIN Number ..

Motor carrier assigned identification number for tractor
unit.
Motor carrier assigned identification number for trailer
Unique vehicle ID number assigned by manufacturer
according to US DOT regulations.

A ............

10

A ............
A ............

10
17

A ............
A ............
A ............

35
35
40

Co-Driver First Name
Co-Driver Last Name
Co-Driver ID ..............

First name of the co-driver .............................................
Last name, family name or surname of the co-driver ....
Numeric identification number assigned to a driver by
the motor carrier.

See Note 1.
See Note 1.

Company Identification Data
Carrier USDOT Number.

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USDOT Number of the motor carrier assigned by
FMCSA.

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

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TABLE 2—EOBR DATA ELEMENTS DICTIONARY—Continued

Data element

Data element definition

Type

Length

Valid values and notes

Carrier Name .............

Name or trade name of the motor carrier company appearing on the Form MCS–150.

A ............

120

A ............

40

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

4

0001 through 9999.

Event Status Code ....

A serial identifier for an event that is unique to a particular vehicle and a particular day.
Character codes for the four driver duty status change
events, State border crossing event, and diagnostic
events.

A ............

3

Event Date ................

The date when an event occurred .................................

N (Date)

8

Event Time ................

The time when an event occurred .................................

N (Time)

6

Event Latitude ...........
Event Longitude ........
Place Name ...............

Latitude of a location where an event occurred ............
Longitude of a location where an event occurred .........
The location codes must correspond, at a minimum, to
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),’’ where ‘‘GNIS Feature Class’’ = ‘‘Populated Place’’ (incorporated by reference, see
§ 395.18). (For further information, see also the Geographic Names Information System (GNIS) at http://
geonames.usgs.gov/domestic/index.html.
Distance in miles to nearest populated place from the
location where an event occurred.
Total vehicle miles (as noted on vehicle odometer or
as measured by any other compliant means such as
vehicle location system, etc.).

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

2,6
3,6
5

OFF = Off Duty
SB = Sleeper Berth
D = On Duty Driving
ON = On Duty Not Driving
DG = Diagnostic.
UTC (universal time) recommended.
Format: YYYYMMDD.
UTC (universal time) recommended.
Format: HHMMSS (hours, minutes, seconds).
Decimal format: XX.XXXXXX.
Decimal format: XXX.XXXXXX.
Unique within a FIPS state code.
Lookup list derived from GNIS.

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

4

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

7

A status of an event, either Current (the most up-todate update or edit) or Historical (the original record
if the record has subsequently been updated or edited).
For diagnostic events (events where the ‘‘Event Status
Code’’ is noted as ‘‘DG’’), records the type of diagnostic performed (e.g., power-on, self test, power-off,
etc.).
Error code associated with an event .............................
The date when an event record was last updated or
edited.
Then time when an event record was last updated or
edited.

A ............

1

With total vehicle mileage recorded
at the time of each event, vehicle
miles traveled while driving, etc.,
can be computed.
C = Current, H = Historical.

A ............

2

(See Table 3).

A ............
N (Date)

2
8

N (Time)

6

(See Table 3).
UTC (universal time) recommended.
Format: YYYYMMDD.
UTC (universal time) recommended.
Format: HHMMSS (hours, minutes, seconds).

An identifier of the person who last updated or edited a
record.
A textual note related to the most recent record update
or edit.

A ............

40

A ............

60

Shipment Data
Shipping Document
Number.

Shipping document number ...........................................
Event Data

Event Sequence ID ...

Place Distance Miles
Total Vehicle Miles ....

Event Update Status
Code.
Diagnostic Event
Code.
Event Error Code ......
Event Update Date ....
Event Update Time ...

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Event Update Person
ID.
Event Update Text ....

Brief narrative regarding reason for
record update or edit.

Note 1: This element must not be included
in the records downloaded from an EOBR or
support system at roadside.

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TABLE 3—EOBR DIAGNOSTIC EVENT CODES

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Code class

Code

Brief
description

Full description
EOBR initial power-on.
EOBR power-off.
EOBR self test successful.
EOBR Malfunction (return unit to factory for
servicing).
System memory error.
Low system supply voltage.
Internal system battery backup low.
EOBR system clock error (clock not set or defective).
EOBR system bypassed (RODS data not collected).
Internal storage memory full (requires download
or transfer to external storage).
System accepted driver data entry.
External memory full (smartcard or other external data storage device full).
Access external storage device failed.

General
General
General
General

System
System
System
System

Diagnostic
Diagnostic
Diagnostic
Diagnostic

..................................
..................................
..................................
..................................

PWR_ON ..........
PWROFF ..........
TESTOK ...........
SERVIC ............

Power on ......................
Power off ......................
test okay .......................
Service .........................

General
General
General
General

System
System
System
System

Diagnostic
Diagnostic
Diagnostic
Diagnostic

..................................
..................................
..................................
..................................

MEMERR ..........
LOWVLT ...........
BATLOW ..........
CLKERR ...........

memory error ...............
Low voltage ..................
battery low ....................
clock error ....................

General System Diagnostic ..................................

BYPASS ...........

Bypass .........................

Data Storage Diagnostic .......................................

INTFUL .............

internal memory full .....

Data Storage Diagnostic .......................................
Data Storage Diagnostic .......................................

DATACC ...........
EXTFUL ............

Data accepted ..............
external memory full ....

Data Storage Diagnostic .......................................

EXTERR ...........

Data Storage Diagnostic .......................................
Data Storage Diagnostic .......................................

DLOADY ...........
DLOADN ...........

external data access
error.
download yes ...............
download no .................

Driver Identification Issue .....................................

NODRID ...........

no driver ID ..................

Driver Identification Issue .....................................
Driver Identification Issue .....................................

PINERR ............
DRIDRD ............

PIN error ......................
Driver ID read ..............

Peripheral Device Issue ........................................
Peripheral Device Issue ........................................
External Sensor Issue ..........................................

DPYERR ...........
KEYERR ...........
NOLTLN ...........

display error .................
keyboard error ..............
no latitude longitude .....

External Sensor Issue ..........................................

NOTSYC ...........

no time synchronization

External Sensor Issue ..........................................

COMERR ..........

communications error ..

External Sensor Issue ..........................................

NO_ECM ..........

no ECM data ................

External Sensor Issue ..........................................

ECM_ID ............

ECM ID number mismatch.

2. Communications Standards for the
Transmittal of Data Files From Electronic
On-Board Recorders (EOBRs)
2.1 EOBRs must produce and store RODS
in accordance with the file format specified
in this Appendix and must be capable of a
one-way transfer of these records through
wired and wireless methods to authorized
safety officials upon request.
2.2 Wired. EOBRs must be capable of
transferring RODS using the ‘‘Universal Serial
Bus Specification (Revision 2.0)
(incorporated by reference, see § 395.18).
Each EOBR device must implement a single
USB compliant interface featuring a Type B
connector. The USB interface must
implement the Mass Storage class (08h) for
driverless operation.
2.3 Wireless. EOBRs must be capable of
transferring RODS using one of the following
wireless standards:
2.3.1 802.11g–2003 standard as defined
in the 802.11–2007 base standard for wireless
communication ‘‘IEEE Standard for
Information Technology—
Telecommunications and information
exchange between systems—Local and
metropolitan area networks—Specific
requirements: Part 11: Wireless LAN Medium

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Access Control (MAC) and Physical Layer
(PHY) Specifications’’ (IEEE Std. 802.11–
2007) (incorporated by reference, see
§ 395.18).
2.3.2 Commercial Mobile Radio Services
(e.g., cellular).
3. Certification of EOBRs To Assess
Conformity With FMCSA Standards
3.1 The following outcome-based
performance requirements must be included
in the self-certification testing conducted by
EOBR manufacturers:
3.1.1 Location
3.1.1.1 The location description for the
duty status change must be sufficiently
precise to enable enforcement personnel to
quickly determine the vehicle’s geographic
location at each change of duty status on a
standard map or road atlas.
3.1.1.2 When the CMV is in motion,
location and time must be recorded at
intervals of no greater than 60 minutes. This
recorded information must be available for an
audit of EOBR data, but is not required to be
displayed on the EOBR’s visual output
device.
3.1.1.3 Location codes derived from
satellite or terrestrial sources, or a

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EOBR data download successful.
Data download rejected (unauthorized request/
wrong Password).
No driver information in system and vehicle is
in motion.
Driver PIN/identification number invalid.
Driver information successfully read from external storage device (transferred to EOBR).
EOBR display malfunction.
EOBR keyboard/input device malfunction.
No latitude and longitude from positioning sensor.
Unable to synchronize with external time reference input.
Unable to communicate with external data link
(to home office or wireless service provider).
No sensory information received from vehicle’s
Engine Control Module (ECM).
ECM identification/serial number mismatch (with
preprogrammed information).

combination thereof must be used. The
location codes must correspond, at
minimum, to the GNIS maintained by the
United States Geological Survey.
3.1.2 Distance traveled
3.1.2.1 Distance traveled may use units of
miles or kilometers driving during each onduty driving period and total for each 24hour period for each driver operating the
CMV.
3.1.2.2 If the EOBR records units of
distance in kilometers, it must provide a
means to display the equivalent distance in
English units.
3.1.2.3 If the EOBR obtains distancetraveled information from a source internal to
the CMV, the information must be accurate
to the CMV’s odometer.
3.1.3 Date and time
3.1.3.1 The date and time must be
reported on the EOBR output record and
display for each change of duty status and at
such additional entries as specified under
‘‘Location.’’
3.1.3.2 The date and time must be
obtained, transmitted, and recorded in such
a way that it cannot be altered by a motor
carrier or driver.

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3.1.3.3 The time must be coordinated to
the Universal Time Clock (UTC) and must
not drift more than 60 seconds per month.
3.1.4 File format and communication
protocols: The EOBR must produce and
transfer a RODS file in the format and
communication methods specified in
sections 1.0 and 2.0 of this Appendix.
3.1.5 Environment
3.1.5.1 Temperature—The EOBR must be
able to operate in temperatures ranging from
¥40 degrees C to 85 degrees C.
3.1.5.2 Vibration and shock—The EOBR
must meet industry standards for vibration
stability and for preventing electrical shocks
to device operators.
3.2 The EOBR and EOBR support systems
must be certified by the manufacturer as
evidence that their design has been
sufficiently tested to meet the requirements
of § 395.16 under the conditions in which
they would be used.

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3.3 The exterior faceplate of EOBRs must
be marked by the manufacturer with the text
‘USDOT–EOBR’ as evidence that the device
has been tested and certified as meeting the
performance requirements of § 395.16.

PART 396—INSPECTION, REPAIR AND
MAINTENANCE
26. The authority citation for part 396
continues to read as follows:

■

Authority: 49 U.S.C. 31133, 31136, and
31502; and 49 CFR 1.73.

27. Amend § 396.9 by revising the
section heading, the heading of
paragraph (c), and paragraph (c)(1) to
read as follows:

■

§ 396.9 Inspection of motor vehicles in
operation.

*

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*

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*

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(c) Motor vehicles declared ‘‘out of
service.’’ (1) Authorized personnel shall
declare and mark ‘‘out of service’’ any
motor vehicle which by reason of its
mechanical condition or loading would
likely cause an accident or a breakdown.
Authorized personnel may declare and
mark ‘‘out of service’’ any motor vehicle
not in compliance with § 385.811(d). An
‘‘Out of Service Vehicle’’ sticker shall be
used to mark vehicles ‘‘out of service.’’
*
*
*
*
*
Issued on: March 19, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010–6747 Filed 4–2–10; 8:45 am]
BILLING CODE 4910–EX–P

*

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