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Electronic Logging Device Revisions Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutcheson Date: 16 September 2022 Subjects: American Government  , Safety
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[Federal Register Volume 87, Number 179 (Friday, September 16, 2022)]
[Proposed Rules]
[Pages 56921-56924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20095]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 386, 390, and 395
[Docket No. FMCSA-2022-0078]
RIN 2126-AC50
Electronic Logging Device Revisions
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Advance notice of proposed rulemaking; request for comments.
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SUMMARY: FMCSA solicits public comment on ways to improve the clarity
of current regulations on the use of electronic logging devices (ELD)
and address certain concerns about the technical specifications raised
by industry stakeholders. The Agency seeks comment in five specific
areas in which the Agency is considering changes: applicability to pre-
2000 engines; addressing ELD malfunctions; the process for removing ELD
products from FMCSA's list of certified devices; technical
specifications; and ELD certification.
DATES: Comments on this notice must be received on or before November
15, 2022.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0078 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2022-0078/document. Follow the online
instructions for submitting comments.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: Mr. Andrew Christopher, Office of
Enforcement and Compliance, (785) 230-1376; Andrew.Christopher@dot.gov.
Office hours are from 7:30 a.m. to 3:30 p.m., CT, Monday through
Friday, except Federal holidays. If you have questions on viewing or
submitting material to the docket, call Dockets Operations, (202) 366-
9826.
SUPPLEMENTARY INFORMATION:
This advance notice of proposed rulemaking (ANPRM) is organized as
follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy
II. Abbreviations
III. Legal Basis for the Rulemaking
IV. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
V. Background
VI. Request for Comments
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
ANPRM, indicate the specific section of this document to which your
comment applies, and provide a reason for each suggestion or
recommendation. You may submit your comments and material online or by
fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing address, an
email address, or a phone number in the body of your document so FMCSA
can contact you if there are questions regarding your submission.
To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2022-0078/document, click on this ANPRM, click
``Comment,'' and type your comment into the text box on the following
screen.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the ANPRM contain commercial or
financial information that is customarily treated as private, that you
actually treat as private, and that is relevant or responsive to the
ANPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission that
constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as
[[Page 56922]]
confidential under the Freedom of Information Act, and they will not be
placed in the public docket of the ANPRM. Submissions containing CBI
should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation
Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001. Any comments FMCSA receives not specifically
designated as CBI will be placed in the public docket for this
rulemaking.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2022-0078/document and
choose the document to review. To view comments, click this ANPRM, then
click ``Browse Comments.'' If you do not have access to the internet,
you may view the docket online by visiting Dockets Operations in Room
W12-140 on the ground floor of the DOT West Building, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. To be sure someone is there to
help you, please call (202) 366-9317 or (202) 366-9826 before visiting
Dockets Operations.
C. Privacy
DOT solicits comments from the public to better inform its
regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL 14--Federal Docket Management System), which
can be reviewed at https://www.govinfo.gov/content/pkg/FR-2008-01-17/pdf/E8-785.pdf.
II. Abbreviations
ANPRM Advance Notice of Proposed Rulemaking
CBI Confidential Business Information
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOT Department of Transportation
ECM Engine Control Module
ELD Electronic Logging Device
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HMTAA Hazardous Materials Transportation Authorization Act of 1994
HOS Hours of Service
MAP-21 Moving Ahead for Progress in the 21st Century Act
NPRM Notice of Proposed Rulemaking
OMB The Office of Management and Budget
RODS Records of Duty Status
The Secretary Secretary of Transportation
SNPRM Supplemental Notice of Proposed Rulemaking
U.S.C. United States Code
III. Legal Basis for the Rulemaking
FMCSA's authority for this rulemaking is derived from several
statutes, which are discussed below.
Under 49 U.S.C. 31502(b) (originally enacted as part of the Motor
Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935),
``[t]he Secretary of Transportation may prescribe requirements for--(1)
qualifications and maximum hours of service of employees of, and safety
of operation and equipment of, a motor carrier; and (2) qualifications
and maximum hours of service of employees of, and standards of
equipment of, a motor private carrier, when needed to promote safety of
operation''. The rule requiring the use of electronic logging devices
(ELDs) increases compliance with the hours of service (HOS) regulations
and addresses the ``safety of operation'' of motor carriers subject to
this statute.
Under 49 U.S.C. 31136(a) (originally enacted as part of the Motor
Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832,
Oct. 30, 1984)),) the Secretary of Transportation (Secretary) is
authorized to regulate drivers, motor carriers, and vehicle equipment.
The statute requires the Secretary to prescribe minimum safety
standards for commercial motor vehicles (CMVs) to ensure that--(1) CMVs
are maintained, equipped, loaded, and operated safely; (2)
responsibilities imposed on CMV drivers do not impair their ability to
operate the vehicles safely; (3) drivers' physical condition is
adequate to operate the vehicles safely; (4) the operation of CMVs does
not have a deleterious effect on drivers' physical condition; and (5)
CMV drivers are not coerced by a motor carrier, shipper, receiver, or
transportation intermediary to operate a CMV in violation of
regulations promulgated under 49 U.S.C. 31136 or under chapter 51 or
chapter 313 of 49 U.S.C.. Under 49 U.S.C. 31133(a)(8) and (10), the
Secretary has 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''. The HOS regulations, and the ELDs used to track
compliance with them, ensure that driving time--one of the principal
``responsibilities imposed on the operators of commercial motor
vehicles''--does ``not impair their ability to operate the vehicles
safely'' (49 U.S.C. 31136(a)(2)). Driver and motor carrier compliance
with the HOS rules, as tracked by ELDs, also helps to ensure that
drivers are provided time to obtain restorative rest and thus that
``the physical condition of [CMV drivers] is adequate to enable them to
operate the vehicles safely'' (49 U.S.C. 31136(a)(3)).
FMCSA's regulations requiring the use of ELDs must ensure that ELDs
are not used to ``harass a vehicle operator'' (49 U.S.C. 31137(a)(2)).
This requirement to ensure that electronic driver-monitoring devices
are not used to harass drivers was enacted originally by section 9104
of the Truck and Bus Safety and Regulatory Reform Act (Pub. L. 100-690,
102 Stat. 4181, 4529, Nov. 18, 1988) and was reiterated and amended by
the Moving Ahead for Progress in the 21st Century Act (MAP-21), This
provision is implemented by 49 CFR part 395, subpart B.
Section 113 of the Hazardous Materials Transportation Authorization
Act of 1994 (Pub. L. 103-311, 108 Stat. 1673, 16776-1677, Aug. 26,
1994) requires the Secretary to prescribe regulations to improve
compliance by CMV drivers and motor carriers with HOS requirements and
the efficiency of Federal and State authorized safety officials
reviewing such compliance. Specifically, the Act addresses requirements
for supporting documents. These mandates are implemented by 49 CFR part
395, subpart B.
Under 49 U.S.C. 31137(a) (section 32301(b) of the Commercial Motor
Vehicle Safety Enhancement Act, originally enacted as part of MAP-21
(Pub. L. 112-141, 126 Stat. 405, 786-788, July 6, 2012)), the Secretary
is mandated to adopt regulations requiring that CMVs involved in
interstate commerce, operated by drivers who are required to keep
records of duty status (RODS), be equipped with ELDs. This statute was
implemented by 49 CFR part 395, subpart B.
IV. E.O. 12866 (Regulatory Planning and Review) and E.O. 13563
(Improving Regulation and Regulatory Review)
The Office of Information and Regulatory Affairs within the Office
of Management and Budget (OMB) determined that this ANPRM is not a
significant regulatory action under section 3(f) of E.O. 12866, as
supplemented by E.O. 13563, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order.
Accordingly, OMB has not reviewed it under these orders.
Executive Orders 12866 and 13563 require agencies to provide a
meaningful opportunity for public participation. Accordingly, the
Agency has asked commenters to answer a
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variety of questions to elicit practical information about alternative
approaches, including the associated costs and benefits of those
approaches, and relevant scientific, technical, and economic data.
V. Background
Need for Additional Consideration
The ELD final rule (80 FR 78291, Dec. 16, 2015), established
minimum performance and design standards for HOS ELDs; requirements for
the mandatory use of these devices by drivers who were currently
required to prepare HOS RODS; requirements concerning HOS supporting
documents; and measures to address concerns about harassment resulting
from the mandatory use of ELDs. The 2015 final rule is summarized
below.
FMCSA believes that the lessons learned by Agency staff, State
enforcement personnel, ELD providers, and industry over the last few
years can be used to streamline and improve the clarity of the
regulatory text and ELD technical specifications and resolve questions
that have arisen. In addition, technical specifications could be
updated to address concerns raised by affected parties and improve the
functionality of ELDs.
Current HOS and ELD Regulations
The current HOS regulations in 49 CFR part 395 limit the number of
hours a CMV driver may drive. The regulations also limit, during each
7- or 8-day period, the maximum on-duty time before driving is
prohibited. Such rules are needed to ensure drivers stay awake and
alert. Sufficient rest, including sleep and breaks, are necessary to
ensure that a driver is alert behind the wheel and able to respond
appropriately to changes in the driving environment. With certain
exceptions, motor carriers and drivers are required by Sec. 395.8 to
keep RODS to track driving, on-duty, and off-duty time. FMCSA and State
agencies use these records to review and ensure compliance with the HOS
rules. The current ELD regulations are found in subpart B of 49 CFR
part 395, including the ELD Technical Specifications in Appendix A to
subpart B of 49 CFR part 395.
ELD Rulemakings/Proposals
In a March 28, 2014, supplemental notice of proposed rulemaking
(SNPRM) which included a discussion of prior rulemakings regarding
recording devices, FMCSA proposed amendments to the Federal Motor
Carrier Safety Regulations (FMCSRs) to establish minimum performance
and design standards for HOS ELDs, requirements for the mandatory use
of these devices by drivers currently required to prepare HOS RODS,
requirements concerning HOS supporting documents, and measures to
address concerns about harassment resulting from the mandatory use of
ELDs (79 FR 17656). The SNPRM also proposed new ELD technical
specifications and addressed the issue of ELDs being used by motor
carriers to harass drivers. The SNPRM proposed the following four
options: (1) mandate ELDs for all CMV operations subject to 49 CFR part
395; (2) mandate ELDs for all CMV operations where the driver is
required to complete RODS under Sec. 395.8; (3) mandate ELDs for all
CMV operations subject to 49 CFR part 395, with the ELD required to
include or be able to be connected to a printer and print RODS; and (4)
mandate ELDs for all CMV operations where the driver is required to
complete RODS under Sec. 395.8, with the ELD required to include or be
able to be connected to a printer and print RODS.
The Agency published a final rule in the Federal Register (80 FR
78292) on December 16, 2015, which amended the FMCSRs in the following
ways: (1) it established one technical specification for all ELDs that
addressed statutory requirements; (2) it mandated ELDs for drivers
currently using RODS; (3) it clarified supporting document requirements
to allow motor carriers and drivers to comply efficiently with HOS
regulations; and (4) it adopted both procedural and technical
provisions aimed at ensuring that ELDs are not used to harass CMV
operators. The effective date of the final rule was February 16, 2016,
and the principal compliance date was December 18, 2017.
The final rule included: (1) Supporting Documents Requirements--The
maximum number of supporting documents that must be retained was 8. In
addition, the timeframe in which a driver must submit RODS and
supporting documents to a motor carrier was 13 days; (2) Technical
Specifications for ELD--The rule required that electronic data transfer
must be made by either: (a) wireless web services and email or (b)
Bluetooth[supreg] and USB 2.0. Furthermore, to facilitate roadside
inspections, and ensure authorized safety officials are always able to
access this data, including cases of limited connectivity, an ELD must
provide either a display or printout; (3) Exceptions--Two optional ELD
exceptions were added: (a) Driveaway-towaway operations are not
required to use an ELD, provided the vehicle driven is part of the
shipment or is a motor home or a recreation vehicle trailer; and (b)
Drivers are not required to use ELDs when operating CMVs older than
model year 2000; and (4) ELD Certification--To ensure that ELD
providers are afforded due process in case of ELD compliance issues,
FMCSA created a procedure to remove ELD devices from the Agency's list
of certified products.
The Agency clarified its supporting document requirements,
recognizing that ELD records serve as the most robust form of
documentation for on-duty driving periods. The rule also contained
provisions calculated to prevent the use of ELDs to harass drivers. The
compliance dates of the 2015 rule were either December 18, 2017, for
most motor carriers, or December 17, 2019, for carriers that had
voluntarily installed a recording device before the effective date of
the final rule (80 FR 78292).
VI. Request for Comments
The Agency seeks comments and data from the public in response to
this ANPRM. We request that commenters specifically address the issues
listed below, and number their comments to correspond to each issue.
FMCSA anticipates that some of the information and data submitted may
include CBI. Those comments should be filed in accordance with the
requirements of Sec. 389.9,``Treatment of confidential business
information submitted under confidential class determinations,'' and
the instructions in the CBI subheading under ``Public Participation and
Request for Comments'' above.
1. Applicability to Pre-2000 Engines
a. Many vehicles with pre-2000 engines and most vehicles with
rebuilt pre-2000 engines have engine control modules (ECMs) installed
that could accommodate an ELD. Should FMCSA re-evaluate or modify the
applicability of the current ELD regulation for re-built or re-
manufactured CMV engines or glider kits? \1\
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\1\ 40 CFR 1037.801 defines Glider kit as either of the
following:
(1) A new vehicle that is incomplete because it lacks an engine,
transmission, and/or axle(s).
(2) Any other new equipment that is substantially similar to a
complete motor vehicle and is intended to become a complete motor
vehicle with a previously used engine (including a rebuilt or
remanufactured engine). For example, incomplete heavy-duty tractor
assemblies that are made available to secondary vehicle
manufacturers to complete assembly by installing used/remanufactured
engines, transmissions and axles are glider kits. See https://www.ecfr.gov/current/title-40/chapter-I/subchapter-U/part-1037#p-1037.801(Glider%20kit).
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b. Please provide data regarding the size of the glider kit
population utilizing pre-2000 engines.
2. Addressing ELD Malfunctions
Currently, Sec. 395.34(a) requires a driver documenting his or her
RODS to switch to paper logs when an ELD malfunctions. Section
395.34(c) requires a driver to follow the motor carrier and ELD
provider recommendations when a data diagnostic event is logged.
Whenever an ELD fails to record a driver's hours, enforcement personnel
must be able to review the driver's paper logs. By contrast, when an
ELD malfunctions but continues to record the driver's hours accurately,
the driver should not switch to paper logs.
Should FMCSA amend carrier and driver responsibilities in Sec.
395.34 to clarify when a driver must switch to paper logs?
3. Removal Process
a. If an ELD provider goes out of business and fails to self-
revoke, should FMCSA be able to immediately remove the device from the
registered ELD list?
b. The ELD rule requires ELD providers to keep their information
current. However, the rule does not include a time restriction. Should
FMCSA require ELD providers to update their listing within 30 calendar
days of any change to their registration information found in section
5.1.1? Additionally, should ELD providers be required to confirm their
information on an annual basis? Should an ELD provider's ELD be removed
from the FMCSA list if it fails to confirm or update its listing on an
annual basis?
c. Under Section 5.4 Removal of Listed Certification, providers
must respond to the Agency's written notice of required corrective
action within 30 days to remain on the list. Additionally, the provider
is given 60 days after the Agency provides a written modification to
the notice of proposed removal or notice to affirm the proposed removal
under Section 5.4.4. Should FMCSA consider decreasing the 60-day period
to 30 days, in order to more timely remove an ELD listing found with
non-compliance issues that could adversely impact highway safety?
d. Should FMCSA consider any other factors related to a carrier's
continued use of a device that has been removed from the FMCSA list due
to a provider's status (out of business or failure to file an annual
registration update)?
4. Technical Specifications
a. Would ELD providers be able to include, in the output file and
registration, the version numbers of the individual components of the
ELD (e.g., the software version number running on the graphical user
interface/tablet, the firmware running on the gateway/black box, and
the software version number of the back-office software), if any of
these components were required to comply with the ELD regulations?
b. FMCSA requests information on the impact of including the
following data elements to every event. FMCSA believes recording this
information would allow the technical specifications to be modified to
eliminate the requirements of providing power up and shut down events
from vehicles a driver has previously operated that are not associated
with the requested driver's data/RODS:
1. Actual odometer
2. Actual engine hours
3. Location description
4. Geo-location
5. VIN
6. Power unit
7. Shipping document number
8. Trailer number
9. Driver
10. Co-driver if there was one
11. Which driver was driving at the time, if there was a co-driver
c. To more efficiently monitor a vehicle over the course of its
operation, should more frequent intermediate recordings (including the
same data elements listed in 4b.) be required on the quarter hour, half
hour, three-quarter hour, and hour? If not, what would be a reasonable
frequency to require intermediate recordings?
d. FMCSA granted a temporary exception (82 FR 48883, Oct. 20, 2017)
that allowed all motor carriers to configure an ELD with a yard-move
mode that does not require a driver to re-input yard-move status every
time the tractor is powered off. Additionally, the ELD would switch to
a ``driving'' duty status under Sec. 395.24 if (1) the driver inputs
``driving,'' (2) the vehicle exceeds 20 mph, or (3) the vehicle exits
the geo-fenced yard. Should FMCSA consider adding this temporary
exception to the regulation? Are there other factors related to this
temporary exception that should be considered?
e. In the preamble to the 2015 final rule, FMCSA stated that the
driver was expected to enter a new duty status before powering off the
ELD and turning the vehicle off. However, drivers often fail to enter a
new duty status prior to powering off the ELD, resulting in the driver
remaining in driving status. To eliminate the issue, should the ELD
automatically record an on-duty not-driving event following the
recording of an engine shutdown? Are there other options that should be
considered?
f. The industry has reported that the current 5 second requirement
is not enough time for an ELD to obtain the information it has
requested from the ECM, as required by section 4.6.1.2 in the Appendix
to subpart B of part 395. What would be a reasonable amount of time? Is
this an issue only at power up?
g. Should FMCSA consider allowing a driver, rather than the motor
carrier, to change his or her ELD configuration to an exempt status to
help reduce the administrative burden noted by the industry? Should
FMCSA consider expanding the list of special driving categories in
Sec. 395.28(a) to include driving performed under an exemption? If so,
what data should be recorded to specifically identify who made the
change, why the change was made, and where the change took place, to
achieve an equivalent level of safety to prevent falsification?
h. Would the technical specification changes discussed in this
section necessitate a change in ELD hardware? Or could these changes be
pushed to existing ELD devices via a software update? If such updates
are feasible, what would the cost implications be?
i. Should other technical specifications, not addressed in this
list, be considered for revision to improve ELD data recording, data
transfer, cross-border commerce or information security and compliance?
Please provide data to support your suggestion.
j. What action(s) do you recommend FMCSA take to ensure that ELD
specifications remain current with advances in technology?
5. ELD Certification
a. Should FMCSA establish a certification process for ELDs? If so,
what should a certification process consist of?
b. Based on your answer to the above questions, what would be the
costs and benefits of that approach?
c. If a certification process is established, how should existing
devices be treated?
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-20095 Filed 9-15-22; 8:45 am]
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