Regulatory Guidance Concerning Electronic Signatures and Documents |
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Topics: Federal Motor Carrier Safety Administration
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Anne S. Ferro
January 4, 2011
[Federal Register: January 4, 2011 (Volume 76, Number 2)]
[Notices]
[Page 411-414]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja11-109]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
Regulatory Guidance Concerning Electronic Signatures and
Documents
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of regulatory guidance.
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SUMMARY: FMCSA issues regulatory guidance concerning the use of
electronic signatures and documents to comply with FMCSA regulations.
This guidance provides the motor carrier industry, Federal, State, and
local motor carrier enforcement officials, and other interested parties
with uniform information regarding FMCSA's acceptance of electronic
signature on documents required by the Federal Motor Carrier Safety
Regulations. All prior Agency interpretations and regulatory guidance,
including memoranda and letters, may no longer be relied upon to the
extent they are inconsistent with this guidance.
DATES: Effective Date: This regulatory guidance is effective January 4,
2011.
FOR FURTHER INFORMATION CONTACT: Genevieve D. Sapir, Office of the
Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New
Jersey Ave., SE., Washington, DC 20590-0001, (202) 366-7056; e-mail:
Genevieve.Sapir@dot.gov.
SUPPLEMENTARY INFORMATION:
Legal Basis
The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to the
Secretary of Transportation to regulate certain commercial drivers,
motor carriers, and vehicle equipment. Section 211 of the 1984 Act also
grants the Secretary broad power to ``prescribe recordkeeping and
reporting requirements'' and to ``perform other acts the Secretary
considers appropriate'' in carrying out motor carrier safety statutes
and regulations (49 U.S.C. 31133(a)(8) and (10)). The Administrator of
FMCSA has been delegated authority under 49 CFR 1.73(g) to carry out
the functions vested in the Secretary by 49 U.S.C. chapter 311,
subchapters I and III, relating to
[[Page 412]]
commercial motor vehicle programs and safety regulation.
Two Federal statutes govern the Agency's implementation of
electronic document and signature requirements. The Government
Paperwork Elimination Act (GPEA) (Title XVII (Sec. 1701-1710) of Public
Law 105-277, 112 Stat. 2681-749, 44 U.S.C. 3504 note) was signed into
law on October 21, 1998, to improve customer service and governmental
efficiency through the use of information technology. The Electronic
Signatures in Global and National Commerce Act (E[dash]SIGN) (Pub. L.
106-229, 114 Stat. 464, 15 U.S.C. 7001-7031) was signed into law on
June 30, 2000. E[dash]SIGN was designed to promote the use of
electronic contract formation, signatures and recordkeeping in private
commerce by establishing legal equivalence between traditional paper-
based methods and electronic methods.
The GPEA defines an electronic signature as a method of signing an
electronic communication that: (a) Identifies and authenticates a
particular person as the source of the electronic communication; and
(b) indicates such person's approval of the information contained in
the electronic communication (Section 1710(1)). It also requires
Federal agencies to provide individuals or entities the options of: (a)
Submitting information or transacting with the agency electronically;
and (b) using electronic records retention when practicable. The GPEA
states that electronic records and their related electronic signatures
shall not be denied legal effect, validity or enforceability merely
because they are in electronic form. It also encourages agencies to use
electronic signature alternatives (Sections 1704, 1707).
For any transaction in or affecting interstate or foreign commerce,
E[dash]SIGN supersedes all pre-existing requirements that paper records
be kept so long as: (a) Such records are generated in commercial,
consumer and business transactions between private parties; and (b)
those parties consent to using electronic methods. Specifically, the
statute establishes the legal equivalence for the following types of
documents, whether in traditional paper or electronic form: (a)
Contracts, (b) signatures, and (c) other legally-required documents (15
U.S.C. 7001(a)(1)).
Purpose and Effect of This Guidance
FMCSA received a number of requests from motor carriers and other
interested parties asking permission to use electronic signatures in
lieu of handwritten signatures on paper. This document provides
regulatory guidance concerning the use of electronic signatures and
documents to comply with FMCSA regulations. All prior Agency
interpretations and regulatory guidance, as well as memoranda and
letters, may no longer be relied upon as authoritative to the extent
they are inconsistent with this guidance.
For purposes of complying with any provision in Chapter III of
Subtitle B of Title 49, Code of Federal Regulations (49 CFR parts 300-
399) that requires a document to be created, signed, certified or
retained by any person or entity, that person or entity may, but is not
required to, use electronic methods. Any electronic document or
signature is considered the legal equivalent of a paper document or
signature if it is the functional equivalent with respect to integrity,
accuracy and accessibility. The substance of the document must
otherwise comply with applicable Federal laws and Agency rules.
Anyone may use electronic methods so long as the electronic
documents or signatures accurately reflect the information in the
record and remain accessible in a form that can be accurately viewed
and/or reproduced according to Agency rules. Electronic documents will
not be considered the legal equivalent of traditional paper documents
if they are not capable of being retained and accurately reproduced for
reference by any individual or entity entitled to access by law for the
period of time required by the Agency's recordkeeping requirements. For
example, if an entity is required to produce documents on demand, those
documents may be stored electronically, so long as that entity can
produce them in accordance with the Agency's substantive requirements
(e.g., immediately and without risk of losing or altering data).
Today's guidance establishes parity between paper and electronic
records and signatures, greatly expanding interested parties' ability
to use electronic methods. FMCSA previously interpreted 49 CFR 390.31
to permit the electronic storage of records so long as they could be
produced within two working days of a request (62 FR 16370). FMCSA
rescinds that interpretation and motor carriers should no longer rely
on that guidance. As stated above, all records, whether electronic or
paper, must be produced within the time frame established by Agency
regulations. This means that if Agency rules require that a document be
produced to the Agency within 48 hours, you must be able to provide the
Agency with an accurate copy of your electronic record within 48 hours.
Similarly, if Agency rules require that a document be produced upon
demand, you must be able to provide the Agency with an accurate copy of
your electronic record upon demand.
This guidance applies to documents required by FMCSA regulations to
be generated and maintained or exchanged by private parties, regardless
of whether the Agency subsequently requires them to be produced or
displayed at the request of an FMCSA official or other parties entitled
to access. This guidance does not apply to documents that individuals
or entities are required to file directly with the Agency. The Agency,
however, has already established electronic filing methods for certain
documents. Interested parties can find out about available filing
methods by consulting specific program information on FMCSA's Web site
(http://www.fmcsa.dot.gov).
Regulatory Guidance
Part 390--Federal Motor Carrier Safety Regulations; General
Sections Interpreted: Section 390.31, Copies of records or documents
Rescind existing Questions 1 and 2 (62 FR 16370), retain existing
Questions 3 and 4 (http://www.fmcsa.dot.gov/rules-regulations/
administration/fmcsr/fmcsrruletext.aspx?reg=390.31&guidance=Y), and add
new Questions 1 and 2 and 5 through 13 as follows:
Question 1: May motor carriers use electronic methods to store
records or documents to satisfy a document retention requirement in
Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49
CFR parts 300-399)?
Guidance: Yes. Anyone may, but is not required to, use electronic
methods to create and store records or documents to satisfy document
retention requirements in Chapter III of Subtitle B of Title 49, Code
of Federal Regulations (49 parts CFR 300-399). This guidance applies
only to documents required to be generated and maintained or exchanged
by private parties, regardless of whether FMCSA subsequently requires
them to be produced or displayed to FMCSA staff or other parties
entitled to access. This guidance does not apply to documents filed
directly with FMCSA. The Agency, however, has already established
electronic filing methods for certain documents. Interested parties can
find out about available filing methods by consulting specific program
information on FMCSA's Web site (http://www.fmcsa.dot.gov).
Question 2: How much time does a motor carrier have to produce
records if the motor carrier maintains all records in an electronic
format?
[[Page 413]]
Guidance: A motor carrier must produce records within the time
frame FMCSA's regulations require, regardless of whether the motor
carrier maintains its records in an electronic or paper format. For
example, if Agency rules require that a document be produced upon
demand, you must be able to provide the Agency with an accurate copy of
your electronic record upon demand. Similarly, if you are a motor
carrier with multiple offices and are allowed 48 hours to produce a
document in accordance with 49 CFR 390.29, you must be able to provide
the Agency with an accurate copy of your electronic record within 48
hours.
Question 3: Using record scanning technology, these requirements
can be fulfilled. Is my understanding of Sec. 390.31(c) correct that
once qualifying documents have been suitably scanned, original paper
documents may be destroyed?
Guidance: Yes, scanned records, which include a verifiable
signature, would fulfill the requirements of Sec. 390.31 and the
original paper documents may be destroyed as stated in Sec. 390.31(c).
Question 4: If my understanding of Sec. 390.31 and its associated
interpretations is correct, will this negate the necessity to maintain
the original road test document as required by Sec. 391.31(g)(1)?
Guidance: Yes, as long as the road test document has been properly
scanned.
Question 5: What is an electronic signature?
Guidance: An electronic signature is a method of signing an
electronic communication that: (1) Identifies and authenticates a
particular person as the source of the electronic communication; and
(2) indicates such person's approval of the information contained in
the electronic communication. An electronic signature may be made using
any available technology that otherwise satisfies FMCSA's requirements.
Question 6: What is an electronic ``captured image'' signature and
does it qualify as an electronic signature?
Guidance: An electronic ``captured image'' signature is a scripted
name or legal mark that, while conventionally created on paper, may
also be created using electronic devices. For example, many
supermarkets and package delivery services use electronic captured
image technology when they permit customers to sign their names in
script using a stylus on an electronic pad. This qualifies as an
electronic signature, so long as the signature and its related document
are electronically bound and can be reproduced together.
Question 7: May anyone use electronic signatures to satisfy a
requirement in Chapter III of Subtitle B of Title 49, Code of Federal
Regulations (49 CFR parts 300-399) that a party sign or certify a
document?
Guidance: Yes. Anyone may, but is not required to, use electronic
signatures to satisfy the requirements of Chapter III of Subtitle B of
Title 49, Code of Federal Regulations (49 CFR parts 300-399) that he or
she sign or certify a document. This guidance applies only to documents
requiring signatures that are generated and maintained or exchanged by
private parties, regardless of whether the Agency subsequently requires
them to be produced or displayed to FMCSA staff or other parties
entitled to access. This guidance does not apply to documents filed
directly with the Agency. The Agency, however, has already established
electronic filing methods for certain documents. Interested parties can
find out about available filing methods by consulting specific program
information on FMCSA's Web site (http://www.fmcsa.dot.gov).
Question 8: Are motor carriers and other interested parties
required to use electronic methods?
Guidance: No. Interested entities may choose whether or not to use
electronic methods or traditional paper methods. Where there are two
parties to a transaction, both parties must agree to conduct business
using electronic methods.
Question 9: Will a document generated using any available
electronic method satisfy the requirements of Chapter III of Subtitle B
of Title 49, Code of Federal Regulations?
Guidance: No. An electronic document must fulfill the same function
as a paper document. Documents generated using electronic methods may
be used only if they accurately reflect the information in the record
and remain accessible in a form that can be accurately reproduced for
later reference. Documents generated using electronic methods will not
be considered the legal equivalent of traditional paper documents if
they are not capable of being retained and accurately reproduced for
reference by any party entitled to access.
For example, if FMCSA rules require that a document be produced
upon demand, you must be able to provide the Agency with an accurate
copy of your electronic record upon demand. Similarly, if you are a
motor carrier with multiple offices and are allowed 48 hours to produce
a document in accordance with 49 CFR 390.29, you must be able to
provide the Agency with an accurate copy of your electronic record
within 48 hours. It would not be sufficient to display the information
on your computer terminal in your place of business. You must produce a
copy that the Agency can refer to at a later date. Similarly, it would
not be sufficient to provide a document with incomplete information or
without a signature (whether electronic or handwritten), if required.
Your electronic storage system must be capable of transferring a
complete, accurate copy of the document to the Agency. Unless the agent
requesting the information specifies otherwise, you should be prepared
to produce paper copies of the electronically-stored records or
documents within the applicable time frame. This means that if you are
required to produce documents on demand, those documents may be stored
electronically, so long as you can produce them in accordance with the
Agency's substantive requirements (e.g., immediately and without risk
of losing or altering data). For an electronic document to be the legal
equivalent of a paper document, it must be the functional equivalent
with respect to integrity, accuracy and accessibility.
Question 10: If FMCSA or another agency entitled to access
documents requests that I produce a copy of a document or signature,
may I produce an electronic copy?
Guidance: Yes, however, you must be able to reproduce or transmit
the document so the Agency can refer to it at a later date. The
acceptable method of transmission may vary, depending on compatibility
with the information systems and how the Agency or other entity
entitled to access plans to use the document. Under some circumstances,
electronic transfer may be acceptable. In other cases, you may be
required to print paper copies of the electronically-stored records or
documents. You should be prepared to produce paper copies within the
time frame specified in the applicable regulations, unless the
particular investigator specifically advises you that he or she is
capable of accepting electronically transferred copies.
Question 11: May I use electronic methods to generate, sign,
maintain and/or exchange any record the FMCSA regulations require
without requesting an exemption or obtaining prior permission?
Guidance: You may use electronic methods to generate, sign,
maintain and/or exchange any document that is generated and maintained
or exchanged by private parties, regardless of whether FMCSA
subsequently requires them to
[[Page 414]]
be produced or displayed to Agency staff or other parties entitled to
access. You do not need to request an exemption or obtain prior
permission so long as the electronic record meets all of the
regulation's substantive requirements and remains accessible in a form
that can be accurately reproduced for later reference. (This does not
apply to documents filed directly with the Agency. See Question No. 6.)
Examples of documents generated, maintained or exchanged by private
parties include, but are not limited to: Employment applications,
driver histories and other qualification records, leases formed under
49 CFR part 376, driver-vehicle inspection reports, and records of duty
status. These are only examples of documents about which FMCSA received
specific questions and is not an exhaustive list of the types of
documents that can be generated, signed, maintained or exchanged
electronically.
Question 12: May I convert a paper document to an electronic
document by typing the substantive information on the paper document
into an electronic format such as a database?
Guidance: By typing the substantive information from a paper
document into an electronic format such as a database, you are creating
a new electronic record, not creating an electronic copy of the
original. While you may generate and maintain such documents for your
own use, they do not take the place of the original documents. To
preserve an accurate copy of the original paper document, you must use
scanning or other ``image capture'' technology. See Questions 3 and 4
for additional guidance.
Question 13: Is an electronic signature valid if a person only has
access to an excerpt or summary at the time he or she signs a document?
Guidance: No. If you only provide an excerpt or summary at the time
someone signs a document you may not subsequently attach his or her
electronic signature to the complete document.
Issued on: December 29, 2010.
Anne S. Ferro,
Administratior.
[FR Doc. 2010-33238 Filed 1-3-11; 8:45 am]
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