[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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; [email protected]. 
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

[[Page 56923]]

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\
---------------------------------------------------------------------------

    \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).

---------------------------------------------------------------------------

[[Page 56924]]

    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]
BILLING CODE 4910-EX-P


