Electronic On-Board Recorders and Hours of Service Supporting Documents |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
February 1, 2011
[Federal Register: February 1, 2011 (Volume 76, Number 21)]
[Proposed Rules]
[Page 5537-5555]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe11-18]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390, and 395
[Docket No. FMCSA-2010-0167]
RIN 2126-AB20
Electronic On-Board Recorders and Hours of Service Supporting
Documents
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs)
to require certain motor carriers operating commercial motor vehicles
(CMVs) in interstate commerce to use electronic on-board recorders
(EOBRs) to document their drivers' hours of service (HOS). Under this
proposal, all motor carriers currently required to maintain Records of
Duty Status (RODS) for HOS recordkeeping would be required to use EOBRs
to systematically and effectively monitor their drivers' compliance
with HOS requirements. Additionally, this proposal sets forth the
supporting documents that all motor carriers currently required to use
RODS would still be required to obtain and keep, as required by section
113(a) of the Hazardous Materials Transportation Authorization Act
(HMTAA). It explains, however, that although motor carriers subject to
the proposed EOBR requirements would still need to retain some
supporting documents, they would be relieved of the requirements to
retain supporting documents to verify driving time. FMCSA also proposes
to require all motor carriers--both RODS and timecard users--to
systematically monitor their drivers' compliance with HOS requirements.
Motor carriers would be given 3 years after the effective date of the
final rule to comply with these requirements.
DATES: Comments must be received on or before April 4, 2011. Comments
sent to the Office of Management and Budget (OMB) on the collection of
information must be received by OMB on or before April 4, 2011.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
[[Page 5538]]
2010-0167 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments, including collection of information comments for
the Office of Information and Regulatory Affairs (OIRA), OMB.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001 or by telephone at (202)
366-5370.
SUPPLEMENTARY INFORMATION: This NPRM is organized as follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Collection of Information Comments
E. Pilot Project on Open Government and the Rulemaking Process
II. Abbreviations and Acronyms
III. Legal Basis for the Rulemaking
A. Authority: EOBR
B. Authority: Supporting Documents
IV. Background
A. On-Board Recording Devices--History of HOS Records of Duty
Status (RODS) Regulations
B. Supporting Documents Requirements
1. History of Supporting Documents Requirement
2. Treatment of Supporting Documents in the April 5, 2010, EOBR
Final Rule
V. Agency Proposal
A. Requirement for Mandatory EOBR Use (49 CFR 395.8)
1. Scope
2. Transition Period and Compliance Date
3. Incentives During the Transition
B. Supporting Documents: Discussion of New Proposal
1. HOS Management System
2. Definition of ``Supporting Document'' (49 CFR 395.2)
3. Information in Supporting Documents (49 CFR 395.11(e)(1))
4. Number, Type, and Frequency of Supporting Documents (49 CFR
395.11(e)(2) and (3))
5. Certification Provision (49 CFR 395.11(f))
6. Retention and Maintenance of Supporting Documents (49 CFR
395.8(k)(1))
7. Motor Carrier Self-Compliance Systems
VI. Rulemaking Analyses
I. Public Participation and Request for Comments
FMCSA encourages you to participate in this rulemaking by
submitting comments and related materials. All comments received will
be posted without change to http://www.regulations.gov and will include
any personal information you provide.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2010-0167), indicate the specific section of this
document to which each 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 e-mail address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov and
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu, select
``Proposed Rules,'' insert ``FMCSA-2010-0167'' in the ``Keyword'' box,
and click ``Search.'' When the new screen appears, click on ``Submit a
Comment'' in the ``Actions'' column. 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 and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble,
available in the docket, go to http://www.regulations.gov and click on
the ``read comments'' box in the upper right hand side of the screen.
Then, in the ``Keyword'' box insert ``FMCSA-2010-0167'' and click
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions''
column. Finally, in the ``Title'' column, click on the document you
would like to review. If you do not have access to the Internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the Department of Transportation
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
C. Privacy Act
Anyone may search the electronic form of 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 DOTs complete Privacy Act
Statement in the Federal Register notice published on April 11, 2000
(65 FR 19476).
D. Collection of Information Comments
If you have comments on the collection of information discussed in
this notice of proposed rulemaking (NPRM), you must also send those
comments to the OIRA, OMB. To ensure that your comments are received on
time, the preferred methods of submission are by e-mail to oira_
submissions@omb.eop.gov (include docket number ``FMCSA-2010-0167'' and
``Attention: Desk Officer for FMCSA, DOT'' in the subject line of the
e-mail) or fax at 202-395-6566. An alternate, though slower, method is
by U.S. mail to the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 17th Street, NW., Washington, DC
20503, ATTN: Desk Officer, FMCSA, DOT.
E. Pilot Project on Open Government and the Rulemaking Process
On January 21st, 2009, President Obama issued a Memorandum on
Transparency and Open Government in which he described how: ``Public
engagement enhances the Government's effectiveness and improves the
quality of its decisions. Knowledge is widely dispersed in society, and
public officials benefit from having access to that dispersed
knowledge.''
To support the President's open government initiative, DOT has
partnered with the Cornell eRulemaking Initiative (CeRI) in a pilot
project, Regulation Room, to discover the best ways of using Web 2.0
and social networking technologies to: (1) Alert the public, including
those who sometimes
[[Page 5539]]
may not be aware of rulemaking proposals, such as individuals, public
interest groups, small businesses, and local government entities that
rulemaking is occurring in areas of interest to them; (2) increase
public understanding of each proposed rule and the rulemaking process;
and (3) help the public formulate more effective individual and
collaborative input to DOT. Over the course of several rulemaking
initiatives, CeRI will use different Web technologies and approaches to
enhance public understanding and participation, work with DOT to
evaluate the advantages and disadvantages of these techniques, and
report their findings and conclusions on the most effective use of
social networking technologies in this area.
DOT and the Obama Administration are striving to increase effective
public involvement in the rulemaking process and strongly encourage all
parties interested in this rulemaking to visit the Regulation Room Web
site, http://www.regulationroom.org, to learn about the rule and the
rulemaking process, to discuss the issues in the rule with other
persons and groups, and to participate in drafting comments that will
be submitted to DOT. In this rulemaking, CeRI will submit to the
rulemaking docket a Summary of the discussion that occurs on the
Regulation Room site; participants will have the chance to review a
draft and suggest changes before the Summary is submitted. Participants
who want to further develop ideas contained in the Summary, or raise
additional points, will have the opportunity to collaboratively draft
joint comments that will be also be submitted to the rulemaking docket
before the comment period closes.
Note that Regulation Room is not an official DOT Web site, and so
participating in discussion on that site is not the same as commenting
in the rulemaking docket. The Summary of discussion and any joint
comments prepared collaboratively on the site will become comments in
the docket when they are submitted to DOT by CeRI. At any time during
the comment period, anyone using Regulation Room can also submit
individual views to the rulemaking docket through the Federal
rulemaking portal Regulations.gov, or by any of the other methods
identified at the beginning of this Notice.
For questions about this project, please contact Brett Jortland in
the DOT Office of General Counsel at (202) 366-9314 or at
brett.jortland@dot.gov.
II. Abbreviations and Acronyms
Advanced Notice of Proposed Rulemaking--ANPRM
American National Standards Institute--ANSI
American Standard Code for Information Interchange--ASCII
American Trucking Associations--ATA
Automatic On-Board Recording Devices--AOBRD
Behavior Analysis Safety Improvement Categories--BASICs
Clean Air Act--CAA
Code of Federal Regulations--CFR
Commercial Driver's License--CDL
Commercial Motor Vehicle--CMV
Comprehensive Safety Analysis--CSA
Department of Labor--DOL
Department of Transportation--DOT
Electronic On-Board Recorder--EOBR
Environmental Assessment--EA
Federal Highway Administration--FHWA
Federal Motor Carrier Safety Administration--FMCSA
Federal Motor Carrier Safety Regulations--FMCSRs
Federal Register--FR
Fleet Management System--FMS
Global Positioning System--GPS
Hazardous Materials--HM
Hazardous Materials Transportation Authorization Act of 1994--HMTAA
Hours-of-Service--HOS
Interstate Commerce Commission--ICC
Interstate Commerce Commission Termination Act of 1995--ICCTA
Intelligent Vehicle Highway System Act--IVHSA
Long-Haul--LH
Motor Carrier Management Information System--MCMIS
Motor Carrier Safety Assistance Program--MCSAP
National Environmental Policy Act of 1969--NEPA
National Transportation Safety Board--NTSB
North American Industrial Classification System--NAICS
Notice of Proposed Rulemaking--NPRM
Office of Information and Regulatory Affairs--OIRA
Office of Management and Budget--OMB
On-duty-not-driving--ODND
Personal Identification Number--PIN
Personally Identifiable Information--PII
Power Unit--PU
Privacy Impact Assessment--PIA
Record of Duty Status--RODS
Regulatory Impact Analysis--RIA
Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy for
Users--SAFETEA-LU
Safety Management System--SMS
Short-Haul--SH
Small Business Administration--SBA
Supplemental Notice of Proposed Rulemaking--SNPRM
Transportation Equity Act for the 21st Century--TEA-21
United States Code--U.S.C.
Value of a Statistical Life--VSL
III. Legal Basis for the Rulemaking
This NPRM would improve CMV safety and reduce paperwork burden by
increasing the use of EOBRs within the motor carrier industry, which
will improve HOS compliance. The approach has three components: (1)
Requiring EOBRs to be used by considerably more motor carriers and
drivers than those covered by the Agency's April 5, 2010 final rule
that addressed the remedial use of EOBRs for motor carriers with
significant HOS violations (2) requiring motor carriers to develop and
maintain systematic HOS oversight of their drivers, and (3) simplifying
the supporting documents requirements so motor carriers can make the
best use of EOBRs and their support systems as their primary means of
recording HOS information and ensuring HOS compliance.
A. Authority: EOBR
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
that ``[t]he Secretary of Transportation may prescribe requirements
for--(1) Qualifications and maximum hours of service of employees of,
and safety of operation and equipment of, a motor carrier; and (2)
qualifications and maximum hours of service of employees of, and
standards of equipment of, a motor private carrier, when needed to
promote safety of operation.'' This NPRM 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.
The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984, now codified at 49 U.S.C. 31136) (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;
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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 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 the operators of
commercial motor vehicles''--does ``not impair drivers' ability to
operate the vehicles safely'' (49 U.S.C. 31136(a)(2)). EOBRs that are
properly designed, used, and maintained would not only permit motor
carriers to schedule vehicle and driver operations more efficiently,
but would also enable motor carriers to more effectively and accurately
track their drivers' on-duty driving hours, thus preventing HOS
violations and resulting crashes. Requirements that motor carriers
retain certain other supporting documents, in addition to EOBR records,
further assist the Agency in ensuring driver and motor carrier
compliance with the HOS rules. Driver compliance with the HOS rules, in
turn, helps ensure that ``the physical condition of [commercial motor
vehicle drivers] is adequate to enable them to operate the vehicles
safely'' (49 U.S.C. 31136(a)(3)). Indeed, the Agency considered whether
this proposal would impact driver health under 49 U.S.C. 31136(a)(3)
and (a)(4). Because the proposal could increase compliance with the HOS
regulations, including driving and off-duty time requirements, it would
actually have a positive effect on the physical condition of drivers.
(See the discussion of health impacts at Section VI of this NPRM
regarding environmental analyses.)
The requirements in 49 U.S.C. 31136(a)(1) concerning safe motor
vehicle maintenance, equipment, and loading are not germane to this
proposed rule because EOBRs and supporting documents influence driver
operational safety rather than vehicular and mechanical safety.
Consequently, the Agency has not assessed the proposed rule against
that requirement. However, to the limited extent 49 U.S.C. 31136(a)(1)
pertains specifically to driver safety, the Agency has taken this
statutory requirement into account throughout the proposal.
Section 9104 of the Truck and Bus Safety and Regulatory Reform Act
(Pub. L. 100-690, November 18, 1988, 102 Stat. 4181, at 4529) also
anticipates the Secretary promulgating ``a regulation about the use of
monitoring devices on commercial motor vehicles to increase compliance
by operators of the vehicles with hours of service regulations'' and
requires the Agency to ensure that any such device is not used to
``harass vehicle operators'' (49 U.S.C. 31137(a)).
Based on the statutory framework reviewed previously, FMCSA has the
authority to adopt an industry-wide requirement that all motor carriers
subject to HOS requirements under 49 CFR part 395 install and use EOBR-
based systems.
B. Authority: Supporting Documents
Section 113(a) of the HMTAA requires the Secretary to prescribe
regulations to improve--(A) compliance by CMV drivers and motor
carriers with HOS requirements; and (B) the effectiveness and
efficiency of Federal and State enforcement officers reviewing such
compliance. The cost of such regulations must be reasonable to drivers
and motor carriers (section 113(a)(2)).
HMTAA section 113(b) describes what elements must be covered in the
new regulations. HMTAA section 113(b)(1) states that the 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 [RODS].'' The
legislative history emphasizes that requiring the retention of
supporting documents would allow enforcement personnel to support or
disprove allegations of HOS violations, including preventing firms from
playing ``hide and seek'' or discarding supporting documents (S. 1640,
140 Cong. Rec. S11320, S11323, 1994 WL 422479, August 11, 1994).
Section 113(b)(1) further directs the Secretary to include in the
regulations a description of identification items (that include either
driver name or vehicle number) that would facilitate matching these
supporting documents with RODS.
Section 113(b)(2) states that the regulations shall specify the
``number, type, and frequency of supporting documents that must be
retained by the carrier.''
Section 113(b)(3) requires that the regulations specify that
supporting documents shall be retained by the motor carrier for at
least 6 months from the date of a document's receipt.
Section 113(b)(4) calls for the Agency to draft regulations ``* * *
to authorize, on a case-by-case basis, self compliance systems * * *''
for motor carriers, including ``a group'' of motor carriers.
Under section 113(b)(5), the Agency shall include a provision in
its regulations that allows the Agency to issue waivers from certain
requirements under 49 CFR 395.8(k) when sufficient supporting
documentation is provided to enforcement personnel through an
intelligent-vehicle highway system, as defined by section 6059 of the
Intelligent Vehicle Highway Systems Act (IVHSA) (Pub. L. 102-240,
December 18, 1991, 105 Stat. 2189, 2195). The Federal Highway
Administration (FHWA), the predecessor organization to FMCSA within the
Department of Transportation (DOT), did not draft the regulations
authorized under section 113(b)(5). The IVHSA was subsequently repealed
(see section 5213 of TEA-21, 112 Stat. 463); there currently is no
statutory guidance on waivers as the term was used in section
113(b)(5). However, this provision does not affect this rulemaking
because other regulatory avenues exist for motor carriers to apply for
waivers, exemptions, and pilot programs.
Section 113(c) defines a supporting document as ``any document that
is generated or received by a motor carrier or commercial motor vehicle
driver in the normal course of business that could be used, as produced
or with additional identifying information, to verify the accuracy of a
driver's record of duty status.'' Consequently, this NPRM does not
propose to require generation of new documents outside the normal
course of the carrier's business.
IV. Background
A. On-Board Recording Devices--History of HOS Records of Duty Status
(RODS) Regulations \1\
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\1\ For a more complete regulatory history of EOBRs, please
refer to the preambles of the 2004 EOBR ANPRM and 2007 EOBR NPRM
(Docket: FMCSA-2004-18940).
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Current Federal HOS regulations (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 (exceptions are listed in 49 CFR 395.1(k), (n), and (o)).
Such rules are needed to prevent CMV operators from driving for long
periods without opportunities to obtain adequate sleep. Sufficient
sleep is necessary to ensure that a driver is alert behind the wheel
and able to respond appropriately to changes in the driving
environment.
With certain exceptions,\2\ motor carriers and drivers are required
by 49 CFR 395.8 to keep RODS to track
[[Page 5541]]
driving, on-duty, and off-duty time. FMCSA and State agencies use these
records to ensure compliance with the HOS rules.
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\2\ These exceptions are listed in 49 CFR 395.1.
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On April 5, 2010, the Agency issued a final rule that addressed the
limited, remedial use of EOBRs for motor carriers with significant HOS
violations (75 FR 17208). That final rule required a motor carrier that
was found during a compliance review to have a 10 percent violation
rate for any HOS regulation in Appendix C of 49 CFR part 385 to install
and use EOBRs on all of that carrier's CMVs. The compliance or
implementation date for the rule is June 4, 2012. Although FMCSA
received comments recommending expanding the reach of the rule beyond
the number of motor carriers the 2010 remedial directive is estimated
to affect, the limited scope of the NPRM prevented the Agency from
doing so. As noted in the preamble to the 2010 final rule, however,
FMCSA recognizes that the potential safety risks associated with HOS
violations are such that mandatory EOBR use for a broader population
might be appropriate. Accordingly, this proposed rule would expand the
scope of mandatory EOBR use beyond the population of motor carriers
that are or would be subject to a remedial directive as a result of the
April 2010 final rule.
This NPRM honors the Agency's commitment to safety by taking action
to improve compliance with the HOS rules. It responds to issues that
would have been addressed in the April 2010 final rule were it not for
the limited scope of the NPRM. As FMCSA noted in its April 2010 final
rule:
Numerous commenters to the NPRM [January 18, 2007 (72 FR 2340)]
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.
B. Supporting Documents Requirements
1. History of Supporting Documents Requirement
A fundamental principle of the FMCSRs, stated in 49 CFR 390.11, is
that a motor carrier has the duty to require its drivers to comply with
the FMCSRs, including HOS-related duties and prohibitions. Motor
carriers have historically required their drivers, as a condition of
employment, to provide supporting documents, such as fuel receipts,
toll receipts, bills of lading, and repair invoices. They compare these
documents to the drivers' entries on the RODS (or the record provided
by the automatic on-board recording device (AOBRD) or EOBR, if such a
device is used) to help verify the accuracy of the HOS reported by
their CMV drivers. The FMCSRs require motor carriers to retain these
supporting documents, as well as the paper and electronic RODS, for a
period of 6 months from the date of receipt.
Although the FMCSRs have always required a ``remarks'' section to
augment the duty status information contained in the RODS document, it
was not until January 1983 that the use of supporting documents was
explicitly required. The final rule revising the recordkeeping
requirements for 49 CFR part 395 to explicitly require supporting
documents was published November 26, 1982 (47 FR 53383); but the rule
did not define the term ``supporting documents,'' and questions arose
concerning what the Agency expected motor carriers to retain.
On November 17, 1993 the Agency published regulatory guidance
(Regulatory Guidance for the Federal Motor Carriers Safety Regulations
(58 FR 60734)) on a variety of topics, including supporting documents.
Supporting documents were the subject of Question 10 for 49 CFR 395.8
which provides in pertinent part:
Question 10: What regulation, interpretation, and/or
administrative ruling requires a motor carrier to retain supporting
documents and what are those documents?
Guidance: Section 395.8(k)(1) requires motor carriers to retain
all supporting documents at their principal places of business for a
period of 6 months from date of receipt.
Supporting documents are the records of the motor carrier which
are maintained in the ordinary course of business and used by the
motor carrier to verify the information recorded on the driver's
record of duty status.
Examples are: Bills of lading, carrier pros, freight bills,
dispatch records, driver call-in records, gate record receipts,
weight/scale tickets, fuel receipts, fuel billing statements, toll
receipts, international registration plan receipts, international
fuel tax agreement receipts, trip permits, port of entry receipts,
cash advance receipts, delivery receipts, lumper receipts,
interchange and inspection reports, lessor settlement sheets, over/
short and damage reports, agricultural inspection reports, CVSA
reports, accident reports, telephone billing statements, credit card
receipts, driver fax reports, on-board computer reports, border
crossing reports, custom declarations, traffic citations,
overweight/oversize reports and citations, and/or other documents
directly related to the motor carrier's operation, which are
retained by the motor carrier in connection with the operation of
its transportation business.
The following year, in HMTAA section 113, Congress directed the
Agency to prescribe regulations to amend 49 CFR part 395 to improve
driver and motor carrier compliance with the HOS regulations. (See the
Legal Basis section of this NPRM.) Section 113 also defined supporting
documents in a manner nearly identical to the Agency's regulatory
guidance: ``For purposes of this section, a supporting document is any
document that is generated or received by a motor carrier or commercial
motor vehicle driver in the normal course of business that could be
used, as produced or with additional identifying information, to verify
the accuracy of a driver's record of duty status'' (HMTAA sec.
113(b)(1)).
In its revised regulatory guidance, published on April 4, 1997
(Regulatory Guidance for the Federal Motor Carrier Safety Regulations
(62 FR 16370)), the Agency emphasized the need for motor carriers to
provide adequate HOS oversight. Specifically, the Agency added two Q&A
guidance items to 49 CFR 395.3:
Question 7: What is the liability of a motor carrier for hours
of service violations?
Guidance: The carrier is liable for violations of the hours of
service regulations if it had or should have had the means by which
to detect the violations. Liability under the FMCSRs does not depend
upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their
employees even though the carrier contends that it did not require
or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their
employees. Neither intent to commit, nor actual knowledge of, a
violation is a necessary element of that liability. Carriers
``permit'' violations of the hours of service regulations by their
employees if they fail to have in place management systems that
effectively prevent such violations (65 FR 16370, 16424).
A year later, on April 20, 1998, the Agency published an NPRM in
which it proposed to define ``supporting documents'' identically to the
HMTAA definition (63 FR 19457). It also proposed requiring motor
carriers to develop and use an HOS supporting document auditing system
that would include a procedural manual. The manual would identify the
types of documents used, specify how the audit system would work, how
drivers recording inaccurate information on their RODS would be
notified, and how a carrier would take corrective action to improve
drivers' compliance. If a motor carrier did not have a supporting
document auditing system, it would have to maintain various types of
business documents and require its drivers to collect and submit those
[[Page 5542]]
documents in order to support the accuracy of the drivers' RODS.
Finally, the NPRM proposed to allow use of ``automated, electronic, or
laser technology'' systems to maintain copies of records or documents,
including those requiring a signature, so long as the motor carrier was
able to provide alternate means for signature verification.
Many commenters to the 1998 NPRM expressed concern that the Agency
was considering addressing HOS supporting documents separately from the
HOS advance notice of proposed published on November 5, 1996 (61 FR
57252). FMCSA responded by including proposed changes to the methods of
verifying HOS compliance through supporting documents in its May 2,
2000, NPRM on HOS regulations (65 FR 25540). The supporting documents
section of that NPRM focused upon operations involving long or regional
trips away from a home base with little supervision of, contact with,
or control over the driver. The Agency proposed that the paperwork
burdens for all other operations be minimized and stated that, whenever
possible, FMCSA would be prepared to accept records that are required
by other Federal agencies. Notably, the Department of Labor's (DOLs)
Wage and Hour Division regulations require motor carrier employers to
maintain time records for 2 years (29 CFR part 516). The Agency
believed this approach would meet the requirements of section 113 of
the HMTAA and be consistent with the dual objectives of (1) improving
the enforcement of the HOS regulations and (2) simplifying the
recordkeeping requirements of motor carriers.
The April 2003 HOS final rule did not implement the HMTAA provision
for supporting documents as proposed. One of the reasons was that the
Agency decided to not move forward with its May 2000 proposal for five
motor carrier operational categories (long-haul (LH), regional, and
three types of local operations), with significantly different
recordkeeping requirements for the local and for the regional and LH
carriers. However, the final rule did state (at 68 FR 22490):
A motor carrier's responsibility for compliance with the HOS
regulations remains clear. The motor carrier is responsible for and
must police the actions of its employees. This obligation under the
FMCSRs was affirmed by the Associate Administrator for what was then
the Office of Motor Carriers (of the FHWA). In the Matter of Horizon
Transportation, Inc., 55 FR 43292 (October 26, 1990) (Final Order
February 12, 1990). A motor carrier's responsibility for the actions
of independent contractors and owner operators it uses was outlined
in the matter of In re R.W. Bozel Transfers, Inc, 58 FR 16918 (March
31, 1993) (Final Order August 6, 1992); and more recently In the
Matter of Commodity Carriers, Inc., (Order Appointing Administrative
Law Judge March 25, 1997). Likewise, each motor carrier must have a
system in place that allows it to effectively monitor compliance
with the FMCSRs, especially those aimed at the issue of this Final
Rule--driver fatigue [see In re National Retail Transportation, Inc.
(Final Order: Decision on Review September 12, 1996)]. The United
States Court of Appeals for the Sixth Circuit affirmed in A.D.
Transport Express Inc. v. Federal Motor Carrier Safety
Administration, 290 F. 3d 761 (6th Cir. 2002), that supporting
documents must be maintained in a common sense manner so that FMCSA
investigators can ``verify dates, times, and locations of drivers
recorded on the RODS.'' More recently, the DC Circuit agreed that
the term ``supporting documents'' in the current rule encompasses
any document that could be used to support the RODS. That decision
also found an FMCSA requirement that supporting documents must be
maintained in a fashion that permits the matching of those records
to the original drivers' RODS as a reasonable interpretation of 49
CFR 395.8(k)(1). In fact, the Court concluded that all the FMCSA is
asking is that carriers refrain from destroying the agency's ability
to match records with their associated drivers (Darrell Andrews
Trucking v. Federal Motor Carrier Safety Administration, 296 F. 3d
1120 (DC Cir. 2002)).
FMCSA published a supplemental NPRM (SNPRM) on supporting documents
on November 3, 2004 (69 FR 63997). The SNPRM proposed that motor
carriers must review and verify the HOS records of both employee
drivers and independent owner-operators proposed to require that
drivers submit to the motor carrier all supporting documents along with
the RODS; and specified that motor carriers must maintain supporting
documents in a method that allows cross reference to the RODS. The
SNPRM also proposed a self-monitoring system for supporting documents
that would be a carrier's primary method for ensuring compliance with
the HOS regulations: An FMCSA Special Agent or other authorized
government safety official could deem a system to be effective if fewer
than 10 percent of the drivers' paper RODS or AOBRD records were found
to be false. Finally, the SNPRM also proposed to permit the use of
electronic documents as a supplement to, and, in certain circumstances,
in lieu of, paper supporting documents.
Commenters on the SNPRM raised concerns with the number and quality
of supporting documents drivers and carriers were expected to obtain
and retain; the lack of specificity of the self-monitoring system; the
potential burdens for motor carriers to verify, inspect, and maintain
these documents and link them to RODS; and the availability of
sufficient FMCSA resources to enforce the regulation and to assess
applications for exemptions. In addition, the Agency discovered a
longstanding error in the computation of the information collection
burden associated with the HOS regulations. This error had caused the
Agency to significantly underestimate the information collection burden
attributable to the SNPRM. FMCSA withdrew the SNPRM on October 25, 2007
(72 FR 60614).
The use of advanced technologies in the supporting documents
context was the subject of FMCSA and predecessor agency enforcement
policy. In August 1997, an enforcement policy memorandum limited the
use of advanced technology, mainly global positioning system (GPS)
records, during investigations regarding motor carrier compliance with
FMCSRs. At the time the memorandum was issued, the Agency stated that
it recognized that the technologies, which were emerging and being
implemented within the industry in 1997, offered a positive opportunity
to advance operational safety performance. At the same time, the time-
and-location information the new technologies provided was noted to be
considerably more precise than location information handwritten in a
paper RODS and could tip the playing field to the disadvantage of
carriers that had adopted those technologies. In order to promote and
encourage motor carriers to use these new technologies in their
operations and safety management systems, the Agency decided to limit
its use of technology data and electronically produced records during
reviews and for regulatory enforcement purposes.
In the years since the Agency established that policy, the use of
advanced vehicle location tracking technologies has become widely
accepted and an integral component of motor carriers' logistics, fleet
operations, and safety management systems. Reasoning that the 1997
policy had achieved its purpose, FMCSA rescinded the policy on November
19, 2008 (73 FR 69717). On a related matter, the Agency formally re-
initiated work on the Supporting Documents Rulemaking in July 2009.
On January 15, 2010, the American Trucking Associations (ATA) filed
a Petition for a Writ of Mandamus in the United States Court of Appeals
for the District of Columbia Circuit (DC Cir. No. 10-1009). ATA
petitioned the court to direct FMCSA to issue an NPRM on
[[Page 5543]]
``supporting documents'' in conformance with the requirements set forth
in section 113 of the HMTAA within 60 days after the issuance of the
writ and a final rule no later than 6 months after the issuance of the
NPRM. The court granted the petition for writ of mandamus on September
30, 2010, ordering FMCSA to issue an NPRM on the supporting document
regulations by December 30, 2010. A copy of the Petition for Writ has
been placed in the docket for this NPRM. Partially in response to
petitioner's court filing, FMCSA issued interim guidance on HOS
supporting documents and mobile communications/tracking policy on June
10, 2010 (75 FR 32984). In addition to removing certain documents from
the list of supporting documents a carrier must maintain, that guidance
confirmed that carriers are liable for the actions of their employees
if they have the means by which to detect HOS violations. The guidance
made it clear that the 1997 enforcement policy memorandum had been made
less relevant by the widespread use of vehicle location tracking
technologies. Today's proposed rule would supersede, in most respects,
that interim guidance.
2. Treatment of Supporting Documents in the April 5, 2010, EOBR Final
Rule
The April 2010 final rule sets forth new performance standards for
devices and systems used to produce electronic HOS records. It also
mandates the use of these devices by motor carriers that have
demonstrated serious noncompliance with the HOS regulations. In
addition, the rule provides incentives to encourage motor carriers to
use EOBRs on a voluntary basis by providing relief from the requirement
that such motor carriers maintain supporting documents to verify
driving time. Because the Agency agrees with numerous commenters that
EOBRs with GPS or similar location data produce regular time and CMV
location position histories sufficient to verify adequately a driver's
on-duty driving activities, 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 on-
duty not driving (ODND) activities and off-duty status (75 FR 17208, at
17212, 17233, and 17234).
V. Agency Proposal
This NPRM would improve CMV safety and reduce paperwork burdens by
increasing the use of EOBRs within the motor carrier industry, which
will improve HOS compliance. The approach has three components: (1)
Requiring EOBRs to be used by considerably more motor carriers and
drivers than the April 2010 final rule, (2) requiring motor carriers to
develop and maintain systematic HOS oversight of their drivers, and (3)
simplifying the supporting documents requirements so motor carriers can
make the best use of EOBRs and their support systems as their primary
means of recording HOS information and ensuring HOS compliance. FMCSA
believes this approach strikes an appropriate balance between promoting
highway safety and minimizing cost and operational burdens on motor
carriers in certain operations that have inherently less crash risk.
A. Requirement for Mandatory EOBR Use (49 CFR 395.8)
FMCSA proposes mandatory installation and use of EOBRs in all CMVs
for which the use of RODS is currently required. CMVs operating in
interstate commerce using accurate and true time records to record
drivers' HOS under the provisions of 49 CFR 395.1(e)(1) and (2) may
continue to use these records. While they are not required to install
and use EOBRs, nothing in this proposed rule precludes them from doing
so.
A key factor that allowed the Agency to consider proposing a
broader EOBR mandate was the rise in the estimate of the Economic Value
of a Statistical Life (VSL). As FMCSA discussed in the April 2010 EOBR
final rule, DOT issued a memorandum on February 5, 2008, instructing
its modal agencies to estimate the economic value of preventing a human
fatality at $6 million. See ``Treatment of the 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 VSL, which was used in the
Regulatory Impact Analysis (RIA) for the EOBR NPRM (Docket: FMCSA-2004-
18940), was $3.0 million. Given that the VSL doubled, the net benefits
of the April 5, 2010, rule, as well as those of other FMCSA rules under
development, were recalculated using the new figures. This
recalculation resulted in a reappraisal of the regulatory options by
the Agency. Moreover, a broader mandate is more cost effective because
of the widespread availability and functionality of on-board
communications and logistics management systems already adopted in the
motor carrier industry.\3\
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\3\ More information about the widespread availability can be
found in Appendix F of the RIA associated with this rulemaking.
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1. Scope
FMCSA proposes mandatory installation and use of EOBRs in
interstate CMVs currently required to complete RODS under 49 CFR 395.8.
Under today's proposal, motor carriers currently allowed to use time
cards could continue to do so under the provisions of 49 CFR
395.1(e)(1).
The provisions of 49 CFR 395.1(e)(2),\4\ which also permit time-
card use, are available to drivers of property-carrying CMVs that do
not require a CDL and who operate within a 150 air-mile radius of the
driver's normal work-reporting location under the current provisions.
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\4\ There are currently proposals to change these. Please see
NPRM for the HOS Rulemaking (75 FR 80014, December 21, 2010) for
more information.
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In short, all SH drivers that record their HOS using the timecard
provision of 49 CFR 395.1(e)(1) and (2) may continue to use timecards.
The Agency acknowledges that drivers working for motor carriers that
keep timecards under 49 CFR 395.1(e)(1) and (2) may occasionally
operate beyond the parameters of those provisions (for example, by
operating outside the specified 100- or 150-air-mile radii). Under this
NPRM, they would be allowed to continue using RODS for those days, as
opposed to using EOBRs. The Agency requests commenters' views related
to this matter. Specifically, should motor carriers whose drivers
usually operate within the limits of the 49 CFR 395.1(e)(1) and (2)
provisions, but occasionally beyond them, be required always to use
EOBRs? For these carriers, what threshold should trigger EOBR use?
Should the threshold be based upon the amount of time drivers operate
beyond the time limits or the number of miles traveled beyond the
distance limits (for example, 1 day per week, 2 days per week, 5 days
per month, or another threshold)? Should the threshold be based upon
the proportion of drivers working for a given motor carrier who operate
beyond the time or distance limits?
The Agency considered including carriers, vehicles, and drivers of
bulk HM in this NPRM. It did so because a crash involving a CMV
transporting bulk HM can endanger a large number of people, cause
significant damage to infrastructure, and generate greater traffic
congestion than a crash involving a CMV transporting other cargoes.
Although these events are infrequent,
[[Page 5544]]
the Pipeline and Hazardous Materials Safety Administration's Hazardous
Materials Risk Management Program considers the potential risks they
pose to persons, property, and the environment to be ``low probability,
high consequence events'' (Comparative Risks of Hazardous Materials and
Non-Hazardous Materials Truck Shipment Accidents/Incidents, Final
Report. Prepared for Federal Motor Carrier Safety Administration, March
2001). The Agency seeks additional data and information concerning the
safety of bulk HM carriers in that are not currently required to use
RODS. This will aid the Agency in determining whether to require this
category of motor carriers to use EOBRs.
Similarly, the risk of fatalities or serious injuries when a crash
involves a passenger-carrying CMV is such that the Agency considered
proposing a requirement for EOBR use in this industry sector (excluding
the 9-15 passenger carriers not for direct compensation segment). DOT's
Motor Coach Safety Action Plan notes seven priority action items to
reduce motorcoach crashes, fatalities, and injuries. The first priority
action item is to initiate rulemaking to require EOBRs on all
motorcoaches. The provisions of today's proposal would apply only to
those passenger carrier operations where the driver is required to
complete a RODS. The Agency, however, considered proposing a
requirement for SH motor carriers of passengers to use EOBRs. It seeks
additional data and information about the safety of this group of
carriers, drivers, and vehicles.
FMCSA considered requiring only drivers in LH operations (that is,
those operating beyond a 150 air-mile radius) to use EOBRs. An ``LH
only'' option would address the segment of the motor carrier industry
with the highest safety and HOS compliance gaps and has the highest
estimated net benefit. However, it would not address the safety
concerns associated with SH motor carriers, especially those operations
on the days when RODS, rather than timecards, are required. FMCSA
requests comment on the costs, benefits, and practicality of
implementing a ``LH Only'' option.
The Agency also considered requiring EOBRs for all motor carriers
subject to 49 CFR part 395. The estimated compliance costs of this
``true universal'' approach, which the National Transportation Safety
Board (NTSB) \5\ and others advocated, exceed the estimated safety
benefits for most SH motor carriers; and the overall net benefits are
negative. The option selected in the proposed rule is estimated to
generate benefits that exceed the costs of installing EOBRs and the
costs associated with increased levels of compliance with the HOS
rules. This option also has the highest estimated net benefits of the
options considered for this proposed rulemaking. It also acknowledges
the operational distinctions between motor carriers allowed to use
timecards under 49 CFR 395.1(e)(1) and (2) exclusively, and the other
motor carriers that would be required to use EOBRs. More information
concerning the estimated costs and benefits is available in the RIA
associated with this rulemaking.
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\5\ NTSB Safety Recommendation H-07-041 issued on December 17,
2007.
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Although not analyzed as part of this rulemaking action, FMCSA also
requests comments on the advantages, disadvantages, and practicality of
a potential exemption from the EOBR requirements for motor carriers
with few or no HOS violations.
Finally, FMCSA proposes changing the term ``activity'' to
``status'' in Sec. 395.8(e)(1) to clarify that HOS requirements
include completing records of duty status--a commonly used term of art
in part 395.
2. Transition Period and Compliance Date
It is likely that a final rule resulting from this NPRM would be
published sometime prior to the June 4, 2012, compliance date for the
April 2010 EOBR final rule. As stated in 49 CFR 385.805, FMCSA can
issue remedial directives to any motor carrier subject to 49 CFR part
395 of the FMCSRs on and after June 4, 2012. Even if the final rule
were to take effect shortly after publication, today's NPRM does not
propose to change the compliance date of the April 2010 final rule.
The remedial directive provision in the April 2010 rule allows the
Agency to require motor carriers to use EOBRs and also to retain a
wider range of supporting documents than otherwise would be required.
Even after the compliance date proposed in this NPRM for the transition
to mandatory EOBR use, the Agency would retain the authority to issue
remedial directives to:
Motor carriers subject to 49 CFR part 395 but not
otherwise required to use AOBRDs or EOBRs, and
Motor carriers who use EOBRs, but have HOS violations that
would trigger a remedial directive could be required to retain and
maintain supporting documents verifying driving time.
In proposing a compliance date for mandatory use of EOBRs, the
Agency considered the safety benefits as well as the potential cost
impacts to motor carriers. The annualized cost for a motor carrier that
does not currently use a fleet management system (FMS) or other ``EOBR-
ready'' system ranges from $525 to $785 per power unit (PU). For a
motor carrier that uses an ``EOBR-ready'' FMS, the annualized cost is
$92 per PU. Considering that the estimated annual revenue per PU (on an
industry-wide basis) is approximately $172,000, the annual cost of an
EOBR is between 0.3 percent and 0.5 percent of operating revenue. When
the costs of purchasing, completing, auditing, and storing paper RODS,
and the potential for improved productivity resulting from motor
carriers' having access to more comprehensive EOBR data are considered,
using EOBRs can actually be less expensive than using RODS.\6\
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\6\ Keith R. Klein, Transport America, Chairman MTA,
``Electronic Onboard Recorders and You'' Trucking Minnesota, May
2010.
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The fact remains, however, that the aggregate impact of a wider
EOBR mandate will be significant because of the large number of small
business entities that will be required to install and use EOBRs in
their CMVs. The motor carrier industry is extremely diverse in terms of
the size of fleets, the types of passengers or commodities transported,
and the size of businesses. The Agency anticipates that a motor carrier
operating a fleet of 150 or fewer PUs would likely be considered small
under Small Business Administration (SBA) guidelines. About 99 percent
of motor carriers of property and 96 percent of motor carriers of
passengers in FMCSA's Motor Carrier Management Information System
(MCMIS) would be considered small businesses.
For these reasons, FMCSA is proposing a compliance date for
mandatory EOBR use 3 years after the effective date of a final rule.
The Agency seeks comment on factors it should consider to determine if
the compliance date might need to be adjusted and, if so, how. For
example, should larger motor carriers be required to install and use
EOBRs earlier than smaller ones; and what should the number of PUs be
to determine this size threshold? Should EOBR use be phased-in over a
period of time, in proportion to the number of PUs in a motor carrier's
fleet? Are there other potential phase-in schedules FMCSA should
consider? If so, please provide supporting data and information.
3. Incentives During the Transition
In the January 2007 NPRM, FMCSA acknowledged the concern at that
time of many motor carriers that voluntary installation of EOBRs would
place them
[[Page 5545]]
at a competitive disadvantage compared to carriers not using EOBRs. In
response, FMCSA's April 2010 EOBR final rule provided two incentives to
promote motor carriers' use of EOBRs that comply with 49 CFR 395.16:
(1) Motor carriers voluntarily using EOBRs that comply with 49 CFR
395.16 will receive partial relief from the supporting documents
requirements of 49 CFR part 395. Specifically, these motor carriers
will no longer be required to retain and maintain supporting documents
related to driving time because this information will be maintained by
and be accessible from the EOBR.
(2) The HOS portion of a compliance review will include both
focused and random samples, but only the random sample results will be
used to assign the carrier a safety fitness rating under 49 CFR part
385. If FMCSA finds a 10 percent or higher HOS-violation rate based on
an initial focused sample, this may be used as the basis for a possible
civil penalty. The assessment would also include a random sampling of
the motor carrier's overall HOS records; this would be used as the
basis for a safety fitness rating. Motor carriers required to use EOBRs
under the terms of a remedial directive do not have access to this
incentive.
These incentives would continue to be available to motor carriers
that voluntarily use EOBRs, until the compliance date of the final rule
resulting from this rulemaking.
B. Supporting Documents: Discussion of New Proposal
1. HOS Management System
Motor carriers have a duty to ensure that their drivers are
complying with the requirements and prohibitions imposed upon them (49
CFR 390.11). This proposed rulemaking would explicitly continue the
obligation of motor carriers to use the information contained in
supporting documents to ensure that their drivers comply with
prescribed HOS limits.\7\ The manner in which those documents are
generated would not be material--the duty applies equally to documents
generated by electronic mobile communications/tracking systems as well
as to paper records (49 CFR 395.11(a)). Motor carriers could be deemed
to have knowledge of the contents of those documents (49 CFR
395.11(b)).
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\7\ Drivers operating under the 49 CFR 395.1(e) and (2)
provisions are not subject to 49 CFR 395.8. 49 CFR 395.8(k) is the
requirement for supporting documents. If a driver is eligible to use
timecards, the carrier does not have to maintain supporting
documents for those days.
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An HOS management system refers to the controls, policies,
programs, practices, and procedures used by a motor carrier to
systematically and effectively monitor each driver's compliance with
HOS requirements and to verify the accuracy of the information
contained in each driver's RODS (49 CFR 395.11(a)). A motor carrier's
duty to maintain an HOS management system, as explained in this NPRM,
is analogous to its duties in other management areas that are already
prescribed in the driver and vehicle regulations, such as 49 CFR 382.10
(motor carrier duty to ensure compliance with part 40 controlled
substances and alcohol regulations), 49 CFR 391.1 (general duty of
motor carriers to ensure qualifications of drivers), 49 CFR 391.25
(motor carrier duty to make annual inquiry and review of driving
record), and 49 CFR 396.3 (motor carrier duty to make systematic
inspection, repair, and maintenance of CMVs).
FMCSA also proposes to amend 49 CFR part 385, Safety Fitness
Procedures, Appendices B and C, to include among the listed acute and
critical citations a motor carrier's failure to adopt and properly
administer an ``hours of service management system.'' To meet the
safety fitness standard in 49 CFR part 385, a motor carrier would have
to have in place the controls, policies, programs, practices, and
procedures to systematically and effectively monitor each driver's
compliance with HOS requirements.
2. Definition of ``Supporting Document'' (49 CFR 395.2)
FMCSA proposes to adopt verbatim the statutory definition from
HMTAA section 113(c): ``A supporting document is any document that is
generated or received by a motor carrier or CMV driver in the normal
course of business that could be used, as produced or with additional
identifying information, to verify the accuracy of a driver's RODS.''
Significantly, this Congressional direction expands the definition of
``supporting documents'' beyond Agency practice to include all
documents that ``could be used'' to verify drivers' RODS.
3. Information in Supporting Documents (49 CFR 395.11(e))
Collectively, the supporting documents required must provide the
motor carrier (and a safety investigator) with the driver's
identification and a complete and accurate history of the driver's duty
status, by date, time, and location. Therefore, as proposed in 49 CFR
395.11(e)(1), the proposed requirements for supporting documents would
include certain elements. The descriptions of these elements would be
consistent with the requirements of the April 2010 EOBR final rule.
Safety investigators and other designated officials of FMCSA have the
authority to request any record of a motor carrier, lessor, or person
controlling or controlled by the motor carrier (49 U.S.C. 504(c)).
Supporting documents must contain the following required elements:
Personal identification, date, time, and location, either in an
individual document or in specified combination, as set forth in
section 395.11(e).
Driver Identification
The driver's name, or a personal identification number (PIN)
associated with the driver's name, is central to developing a RODS for
each driver subject to the HOS regulations. A unit (vehicle) number may
be used so long as it can be associated with the driver operating the
vehicle at a specific date, time, and location.
Date and Time
The date of an event and the time the event began and ended (time-
stamp) are central to place an event within a sequence of duty status
items. For activities that represent a single point in time, this would
include, for example, the time a CMV entered a shipper's or consignee's
location.
Location
The location description associated with the supporting document
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; ``location'' means the
nearest city, town, or village. If the location information is
automatically recorded on an electronic document, it must be derived
from a source not subject to alteration by the motor carrier, driver,
or third party. Because AOBRDs and EOBRs play a significant role in
motor carrier safety, FMCSA is proposing to modify 49 CFR 395.8(e) to
prohibit tampering with or modifying these devices in such a way that
driver duty status is not accurately recorded.
Related to this, the Agency is also proposing expressly to prohibit
the use of electronic jamming devices that interfere with EOBRs and
other electronic communication or vehicle tracking systems. Although
FMCSA's goal is to forestall the use of jammers to avoid HOS
compliance, some of these devices can interfere with air traffic
[[Page 5546]]
control and other critical safety communication systems and thus pose
additional safety risks.
4. Number, Type, and Frequency of Supporting Documents (49 CFR
395.11(e)(2) and (3))
Number
The number of documents that a motor carrier would need to examine,
review, and retain will vary according to the motor carrier's
operational circumstances. For example, operations where a motor
carrier's drivers pick up fully-loaded trailers at one consignee, drive
for several hundred miles, drop the trailer at its destination, and
pick up another fully-loaded trailer from another consignee would have
fewer on-duty non-driving periods than an operation where a driver
brings an empty trailer to a shipper, loads it, and drops portions of
the load at many receivers' locations. The number of documents could
also vary according to the type and variety of a driver's daily
assignments the quality and completeness of the supporting documents
available, as well as the geographic area and commercial character of
the region in which the carrier operates.
Type
Consistent with the direction provided in section 113(b)(2) of the
HMTAA, this NPRM addresses the ``type'' of supporting documents that
must be used to verify RODS. In doing so, the Agency recognizes the
diversity of carrier operations and operational circumstances, and
provides a flexible range of document types that a carrier can use to
define its compliance system, appropriate with its needs. Examples of
the types of documents that may be used to satisfy the supporting
documents requirement are set out in the definition of ``hours of
service management system'' in proposed 49 CFR 395.2. In contrast to
the broad range of documents used as examples of supporting documents
in current guidance at 49 CFR 395.8(k)(1), the Agency would require the
motor carrier to retain sufficient supporting documents from the
following four categories: (1) Payroll; (2) trip-related expense
records and receipts; (3) FMS communication logs; and (4) a bill of
lading or equivalent document. The supporting documents retained in the
four categories identified might be individual records within a
supporting document that covers multiple activities of individual
drivers (such as dispatch records organized according to individual
driver assignments) or specific types of activities of multiple drivers
(such as pickup and delivery records for drivers assigned to one
shipper's account) to reflect the beginning and end of each on-duty
non-driving period.
Frequency
The Agency proposes to require carriers to retain, for each driver,
at least one supporting document for the beginning and end of each ODND
period. Only one document would be needed for the beginning and end of
each ODND period if that document contained all of the data elements
set forth in proposed 49 CFR 395.11(e) (i.e., driver name or PIN, date
and time, and location).
If the motor carrier does not retain one single supporting document
that shows all of the required data elements, it would be required to
retain sufficient documents, from any of the four categories listed
above, to show collectively all of the required information: the driver
identification and the location, date and time of the duty status
changes. Such an approach addresses the requirements of section 113(c)
of HMTAA regarding documents that can be used ``as produced''
separately or collectively, ``with additional identifying
information,'' to verify the accuracy of the driver's RODS.
The Agency stresses that the types of documents proposed to be
retained would not normally be generated during periods when drivers
are actually off-duty. However, FMCSA has the statutory authority to
request any documents related to the operation of CMVs in interstate
commerce.
Additionally, the Agency is responding to section 113(b)(2) of the
HMTAA concerning ``frequency'' of supporting documents retention by
adding proposed language under 49 CFR 395.8(h) to require the driver to
submit all corresponding supporting documents to the employing motor
carrier within 3 days following the completion of the RODS. Drivers
will be required to forward supporting documents for which they are
responsible (mainly, trip-related expense reports and receipts) for
each day that they provide a RODS. Additionally, reflecting the
widespread use of both electronic documents and document scanning
systems, drivers would be required to forward those documents to the
motor carrier within 3 days of receipt, instead of the 13 days in the
current regulations (see 49 CFR 395.8(i)). Motor carriers and their
customers are rapidly moving to electronic, paperless systems that can
provide near-instantaneous access to HOS-relevant data and records. If
a supporting document is submitted electronically, the driver should
submit it the same duty day (49 CFR 395.11(h)).
5. Certification Provision (49 CFR 395.11(f))
The proposed ``certification provision'' acknowledges the diversity
of carrier operations and the fact that the proposed minimum number of
supporting documents will not be available to all drivers and/or
carriers for all periods for each day of operation. The certification
provision would allow a carrier that retains none of these supporting
documents in its normal course of business or, alternatively, does not
retain sufficient documents from the four categories noted above, to
certify that no supporting documents were available.
The certification provision is not a ``loophole,'' however; motor
carriers that falsely certify the absence of supporting documents would
be subject to the maximum penalty authorized by law. It is true that
Congress instructed FMCSA, when assessing civil penalties, to consider
a number of factors, including the nature, circumstances, extent, and
gravity of the violation committed, as well as the degree of
culpability, history of prior offenses, ability to pay, effect on
ability to continue to do business, and other such matters as justice
and public safety may require (49 U.S.C. 521(b)(2)(D)). But the
overriding concern of Congress was clearly stated in the final sentence
of that provision: ``In each case, the assessment shall be calculated
to induce further compliance.'' Because motor carriers that submit
false certifications are deliberately subverting an essential element
of the hours-of-service regulations and may well be concealing
practices that place both their own drivers and the public at increased
risk, FMCSA believes that nothing less than the maximum penalty would
``induce further compliance.'' The Agency has no desire to impose the
maximum penalty and does not expect to do so frequently; FMCSA's hope
is that the deterrent effect of maximum penalties will make such action
unnecessary. However, the Agency believes it should have these
penalties available to deal with extreme violations. False
certification is an egregious--indeed fraudulent--violation of the
FMCSRs.
6. Retention and Maintenance of Supporting Documents (49 CFR
395.8(k)(1))
FMCSA proposes a retention period of 6 months as specified in
section 113(b)(3) of the HMTAA. This is consistent with the existing
retention
[[Page 5547]]
period for other HOS paper and electronic documents. However, the
Agency seeks to clarify that while the section heading for current 49
CFR 395.8(k) is ``Retention of driver's record of duty status,''
paragraph (k)(1) discusses the requirement to ``maintain'' such
documents, which is consistent with judicial interpretation of
maintaining documents for subsequent use by carrier and Agency
personnel. Consequently, 49 CFR 395.8(k)(1) would be amended merely to
add the phrase ``retain and'' prior to the term ``maintain,'' to
indicate the relationship between the terms.
7. Motor Carrier Self-Compliance Systems
The statute requires FMCSA to provide exemptions for qualifying
``self-compliance systems,'' instead of supporting documents retention.
In satisfaction of HMTAA section 113(b)(4), the proposed rule would add
a provision to authorize, on a case-by-case basis, motor carrier self-
compliance systems (49 CFR 395.11(i)). A motor carrier could apply for
an exemption under existing part 381 provisions for additional relief
from the requirements for retaining supporting documents for RODS.
Among other things, an application for exemption must include a
statement that explains how the applicant would ensure that he or she
could achieve a level of safety that is equivalent to, or greater than,
the level of safety that would be obtained by complying with 49 CFR
part 395. We request that commenters provide information describing
their self-compliance systems, or the systems they might anticipate
developing.
VI. Rulemaking Analyses
Executive Order (E.O.) 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
Under E.O. 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 OMB review and the
requirements of the E.O. 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 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 E.O.
FMCSA determines that this proposed rule would have an annual
effect of $100 million or more. In addition, because of public interest
about the rulemakings related to HOS compliance, it is a significant
regulatory action within the meaning of the E.O. and under the
regulatory policies and procedures of DOT. The Agency has, therefore,
conducted an RIA of the costs and benefits of this NPRM. The RIA is
summarized below. The full analysis is available in the docket
pertaining to this rulemaking.
FMCSA evaluated the costs and benefits associated with the proposed
rule on EOBRs and their affect on improving compliance with the
underlying HOS rules. In the RIA associated with this rulemaking, the
Agency updated its assessment of the baseline level of non-compliance
with the current HOS rules to account for changes in certain factors
such as inflation, a decline in HOS violations that has preceded the
mandate for EOBR use, and the decline in CMV-related crashes. Included
in this analysis as alternative baselines are Options 2 and 3 from the
recently published NPRM for the HOS rules for property carriers (Option
1 of the HOS NPRM is to retain the current HOS rules). The major
changes for both HOS options 2 and 3 are to: Allow at most 13 hours of
on-duty time within the daily driving window; limit continuous on-duty
drive time to 7 hours, at which point a 30 minute off-duty or sleeper-
berth period would be required; and to require at least two overnight
periods in each 34-hour restart period. HOS Option 2, however, also
reduces daily drive time from 11 to 10 hours, while HOS Option 3
retains 11 hours of drive time. To avoid confusion between the HOS
options and the options for the EOBR NPRM, HOS Option 2 and HOS Option
3 are referred to as Baseline 2 and Baseline 3, respectively.
The Agency is currently considering three options for the EOBR
mandate. Option 1 would require EOBRs for all drivers required to use
paper RODS. Option 2 expands Option 1 to include all passenger-carrying
CMVs subject to the FMCSRs and all shipments of bulk HM, regardless of
whether the drivers use paper RODs or are exempted from doing so, as
described under the SH operations provisions in Sec. 395.1(e). Option
3 would include all CMV operations subject to the HOS requirements.
In this NPRM, FMCSA also proposes changes to requirements
concerning HOS supporting documents. The Agency has clarified its
supporting document requirements, recognizing that EOBRs themselves
serve as the most robust form of documentation for on-duty driving
periods. The Agency has been careful not to increase the burden
associated with retention of the supporting documents; but it also
cannot claim, even with EOBR use, that it has reduced the burden of
supporting documents.
Although the ``foundation'' RODS burden would drop dramatically,
primarily due to the elimination of paper RODS, the overall supporting
documents burden would not be reduced. This is because carriers will
still be required to maintain supporting documents. In addition, while
motor carriers may gain efficiencies in reviewing electronic RODS, as
opposed to paper RODS, against supporting documents to ensure driver
compliance, the overall burden of review for this task is not expected
to change. These proposed changes are expected to improve the quality
and usefulness of the supporting documents and, thereby, (1) improve
the Agency's ability to effectively and efficiently review motor
carriers' HOS records, and (2) detect and assess violations during on-
site compliance reviews. The Agency is currently unable to evaluate the
extent to which the proposed changes to the supporting documents
requirements will lead to reductions in crashes.
The following table (Table 1) summarizes the analysis. The figures
presented are annualized using 7 percent and 3 percent discount rates.
Table 1--Annualized Costs and Benefits (2008 $ Millions) 8
----------------------------------------------------------------------------------------------------------------
7 Percent discount rate 3 Percent discount rate
-----------------------------------------------------------------
Option 1 Option 2 Option 3 Option 1 Option 2 Option 3
----------------------------------------------------------------------------------------------------------------
I--EOBR Costs................................. 1,586 1,643 1,939 1,554 1,610 1,900
[[Page 5548]]
II--HOS Compliance Costs...................... 398 404 438 398 404 438
III--Total Costs (I+II)....................... 1,984 2,047 2,377 1,952 2,014 2,338
IV--Paperwork Savings 9....................... 1,965 1,965 1,965 1,965 1,965 1,965
V--Safety Benefits............................ 734 736 746 734 736 746
VI--Total Benefits (IV+V)..................... 2,699 2,701 2,711 2,699 2,701 2,711
VII--Net Benefits (VI-III).................... 715 654 334 747 687 373
VIII--Baseline 2 (HOS Option 2) Net Benefits.. 799 738 418 831 771 457
IX--Baseline 3 (HOS Option ) Net Benefits..... 859 798 478 891 831 517
----------------------------------------------------------------------------------------------------------------
FMCSA estimates that all options presented in this RIA have
positive net benefits under any baseline, that is, under any version of
the HOS rules. However, the greatest safety impacts of the HOS rules
are seen in LH operations, and the inclusion of SH operations
diminishes the net benefits of this EOBR rule. Therefore Option 3,
which includes all carrier operations, results in much lower net
benefits as compared to Options 1 and 2. The alternative baselines
reflect changes to the HOS rules that affect only LH, RODS-using
operations.
A fundamental purpose of the HOS regulations is to reduce crash
risk in order to improve safety, and as elaborated at length in the
2010 HOS proposed rule, the Agency has concluded that the proposed
rules will have significant safety benefits. Ideally, the agency would
have data to directly measure crash risk by hours of driving and other
dimensions for which regulations are proposed. Because the Agency has
been not been able to gather such data, it has based its analysis, in
significant part, on share of crashes that are fatigue-coded.
The agency recognizes that using share of crashes that are fatigue-
coded could have two possible problems: Accident inspectors may be more
likely to code crashes as fatigue-related if the driver has been on the
road longer. Also, the share of crashes that are coded as fatigue-
related may conceivably increase simply because the share of crashes
caused by other factors goes down. There could be no increase in the
risk of a fatigue-related crash (the central question), but an increase
in the share of fatigue-related crashes. The Agency has little evidence
that either of these factors is a significant problem. Nonetheless,
while the data are not as complete as FMCSA would like them to be, the
Agency aimed to limit, to the extent possible, the likelihood that
drivers will be fatigued, either when they come on duty or during or at
the end of a working period. Safety benefits are based on this
reduction in fatigue and an associated reduction in fatigue-coded
crashes.
---------------------------------------------------------------------------
\8\ Compliance costs and safety benefits of the current HOS
rules and the two alternate baselines reflect an estimated EOBR
efficacy of 40 percent. Carriers would bear compliance costs that
they are currently avoiding for the 40 percent of the HOS violations
that continue to occur, and the public would accrue the safety
benefits from eliminating these violations. The full analysis is
available in the docket pertaining to this rulemaking. The steps
used to derive the annualized figures in this table are also
presented in detail in that analysis.
\9\ There will be paperwork savings due to the elimination of
paper RODS, but the Agency does not expect paperwork savings from
changes to the supporting document requirements. Reductions to
paperwork burden accrue only to operations required to use RODS,
which are fully included in Option 1. The operations added in
options 2 and 3 are exempt from paper RODS, and consequently would
experience no paperwork savings from their elimination.
---------------------------------------------------------------------------
FMCSA sought information from the public on driving exposure data
at each hour in order to be able to calculate relative crash risk at
each hour. FMCSA seeks the same information for this rule since fatigue
coded crashes are not the perfect measure of safety benefits from HOS
compliance. If the agency receives information about relative crash
risk, the agency will revise and update the benefits calculations for
this EOBR provision in the final rule stage.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
Federal agencies to consider the effects of the regulatory action on
small business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses.
Number of Small Entities to Which the Rulemaking Would Apply
Under criteria established by the SBA, firms with annual revenues
of less than $25.5 million are considered small for all North American
Industrial Classification System (NAICS) codes falling under the truck
transportation sub-sector (NAICS 484) or the bus transportation sub-
sector (NAICS 485). Many motor carriers, however, are private carriers
that transport goods or passengers for parent companies who are not
primarily engaged in truck-transportation, for example, airlines,
railroads, retail stores, and landscaping or home contracting
businesses with SBA size thresholds associated with their industries
that are different from those used for truck or bus transportation.
FMCSA does not collect revenue data for most carriers nor can it
identify, carrier-by-carrier, to which industry sub-sectors each firm
belongs. Carriers do, however, report the number of PUs they operate in
the U.S. on Form MCS-150. With regard to truck PUs, the Agency
determined in the 2003 Hours of Service Rulemaking RIA \10\ that a PU
produces about $172,000 in revenue annually (adjusted for
inflation).\11\ According to the SBA, motor carriers with annual gross
revenue of $25.5 million are considered small businesses.\12\ This
equates to about 150 PUs (25,500,000/172,000). FMCSA believes that this
150 PU figure would be applicable to private carriers as well: Because
the sizes of the fleets they are able to sustain are indicative of the
overall size of their operations, large
[[Page 5549]]
CMV fleets can generally only be managed by large firms. There is a
risk, however, of overstating the number of small businesses because
the operations of some large non-truck or bus firms may require only a
small number of CMVs. The Agency has identified about 482,000 motor
carriers that operate 150 or fewer power units, about 99% of property
carriers.
---------------------------------------------------------------------------
\10\ Regulatory Analysis for: Hours of Service of Drivers;
Driver Rest and Sleep for Safe Operations, Final Rule--Federal Motor
Carrier Safety Administration. 68 FR 22456--Published 4/23/2003.
\11\ The 2000 TTS Blue Book of Trucking Companies, number
adjusted to 2008 dollars for inflation.
\12\ U.S. Small Business Administration, Table of Small Business
Size Standards matched to North American Industry Classification
(NAIC) System codes, effective August 22, 2008. See NAIC subsector
484, Truck Transportation.
---------------------------------------------------------------------------
For passenger carriers, the Agency conducted a preliminary analysis
to estimate the average number of PUs for a small entity earning $7
million annually, based on an assumption that a passenger carrying CMV
generates annual revenues of $150,000. This estimate compares
reasonably to the estimated average annual revenue per PU for the
trucking industry ($172,000). A lower estimate was used because buses
generally do not accumulate as many vehicle miles traveled (VMT) per PU
as trucks,\13\ and it is assumed, therefore, that they would generate
less revenue on average. The analysis concluded that passenger carriers
with 47 PUs or fewer ($7,000,000 divided by $150,000/PU = 46.7 PU)
would be considered small entities. The Agency examined its
registration data and found that 96 percent of, or just over 19,000,
interstate passenger carriers have 47 PUs or fewer.
---------------------------------------------------------------------------
\13\ FMCSA, ``Large Truck and Bus Crash Facts 2008,'' Tables 1
and 20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-
2008LargeTruckandBusCrashFacts.aspx.
---------------------------------------------------------------------------
Reporting and Recordkeeping
FMCSA believes that implementation of the proposed rule would not
require additional reporting, recordkeeping, or other paperwork-related
compliance requirements beyond those that are already required in the
existing regulations. In fact, the proposed rule is estimated to result
in paperwork savings, particularly from the elimination of paper RODS.
Drivers can complete, review, and submit EOBR records much more rapidly
compared to paper RODS. Furthermore, motor carriers would experience
compensatory time-saving and administrative efficiencies as a result of
using EOBR records in place of paper RODS. The level of savings would
vary with the size of the carrier implementing the systems (larger
carriers generally experience greater savings).
Under current regulations, most CMV drivers are required to fill
out RODS for every 24-hour period. The remaining population of CMV
drivers is required to fill out time cards at their workplace
(reporting location). Motor carriers must retain the RODS (or
timecards) for 6 months. FMCSA estimates annual recordkeeping cost
savings from this proposed rule of about $688 per driver. This is
comprised of $486 for a reduction in time drivers spend completing
paper RODS and $56 submitting those RODS to their employers; $116 for
motor carrier clerical staff to handle and file the RODS; and $30 for
elimination of expenditures on blank paper RODS for drivers. Two of the
options discussed in this NPRM would extend the EOBR mandate to carrier
operations that are exempt from the RODS. Paperwork savings would not
accrue to drivers engaged in these operations.
Help for Small Entities
Of the population of motor carriers that FMCSA regulates, 99
percent of motor carriers of property and 96 percent of motor carriers
of passengers are considered small entities under the SBA's definition.
Because small businesses are such a large part of the demographic the
Agency regulates, providing exemptions to small business to permit
noncompliance with safety regulations is not feasible and not
consistent with good public policy. The safe operation of CMVs on the
Nation's highways depends on compliance with all of FMCSA's Safety
Regulations. Accordingly, the Agency would not allow any motor carriers
to be exempt from coverage of the rule based solely on a status as a
small entity.
FMCSA analyzed an alternative 5-year implementation schedule that
would have provided a longer implementation period for small
businesses. However, the estimated cost of compliance for motor
carriers, including small businesses, did not decrease from the 3-year
``baseline'' proposed implementation period. Furthermore, a
considerably longer implementation period could compromise the
consistency of compliance-assurance and enforcement activities, and,
thereby, diminish the rule's potential safety benefits. Therefore, the
Agency's proposal includes a single compliance date for all motor
carriers that would be subject to the new rule's requirements.
However, the Agency recognizes that small businesses may need
additional information and guidance in order to comply with the
proposed regulation. In order to improve their understanding of the
proposal and any rulemaking that would result from it, FMCSA proposes
to conduct outreach aimed specifically at small businesses. FMCSA would
conduct Webinars and other presentations as needed and upon request, at
no charge to the participants. These would be held after the final rule
has published and before the rule's compliance date. To the extent
practicable, these presentations would be interactive. Their purpose
would be to describe in plain language the compliance and reporting
requirements so that they are clear and readily understood by the small
entities that would be affected
EOBRs can lead to significant paperwork savings that can in part or
fully offset the costs of the devices. The Agency, however, recognizes
that these devices entail a significant up-front investment than can be
burdensome for small carriers. At least one vendor, however, provides
free hardware and recoups the cost of the device over time in the form
of higher monthly operating fees. The Agency is also aware of lease-to-
own programs that allow the carriers to spread the purchase costs over
several years. Nevertheless, the typical carrier would likely be
required to spend $1,500-$2,000 per CMV to purchase and install EOBRs,
and several hundred dollars per year for service fees. This estimate is
higher than the estimate used in the April 2010 EOBR rulemaking for two
primary reasons.
This proposed mandate would be permanent and also would require
EOBRs to be installed and used in approximately 20 times as many CMVs
than were estimated to be affected by the April 5, 2010, final rule.
Therefore, the Agency cannot assume that an adequate number of the
lower-cost devices would be available to meet the needs of that larger
market. Current revenue data from the manufacturer of the device cited
in the April 2010 final rule indicate that its market share is
relatively low.
A second reason for using a higher cost for this analysis is that,
in response to motor carrier customer demand, EOBR suppliers have
expanded the functionality of their products and services. Hours-of-
service recording and monitoring are functions commonly offered as part
of comprehensive fleet management systems, rather than in stand-alone
devices. Many motor carriers are recognizing the potential operational
benefits they can gain from the use of fleet management systems, and
the marketplace is responding with products and services tailored to
motor carriers of all sizes. However, the Agency is not dismissing the
possibility that ``stand-alone'' EOBRs, providing only hours-of-service
recording and reporting (similar to the first AOBRDs in the 1980s), may
be offered for sale or lease at a lower cost than devices with other
functionalities in addition to HOS compliance. The Agency requests
comments and data about EOBR cost.
[[Page 5550]]
Based on direct experience with the devices and conversations with
vendors, the Agency believes these devices are extremely durable and
can be kept operational for many years. In addition to purchase costs,
carriers would also likely spend about $40 per month per CMV for
monthly service fees.
On January 18, 2011, the President issued a memorandum entitled
Regulatory Flexibility, Small Business, and Job Creation. In it, the
President directed agencies to consider certain flexibilities for small
entities. Furthermore, the President directed agencies to include an
explicit justification for not providing such flexibilities and directs
the agencies, when initiating rulemaking that will have a significant
economic impact on a substantial number of small entities, to give
serious consideration to whether and how it is appropriate, consistent
with law and regulatory objectives, to reduce regulatory burdens on
small businesses, through increased flexibility. Such flexibility may
take many forms, including:
Extended compliance dates that take into account the
resources available to small entities;
Performance standards rather than design standards;
Simplification of reporting and compliance requirements
(as, for example, through streamlined forms and electronic filing
options);
Different requirements for large and small firms; and
Partial or total exemptions.
The President further directs that whenever an executive agency
chooses, for reasons other than legal limitations, not to provide such
flexibility in a proposed or final rule that is likely to have a
significant economic impact on a substantial number of small entities,
it should explicitly justify its decision not to do so in the
explanation that accompanies that proposed or final rule. The Agency
requests public comment on the extent to which flexibility could be
incorporated into the rulemaking, beyond the options considered in the
proposal, while fulfilling its safety mandate.
In establishing FMCSA, Congress's enabling legislation called
safety ``our highest priority.'' Motor Carrier Safety Improvement Act
of 1999, sec. 113, Public Law 106-159, 113 Stat. 1748, 1750. Our
regulatory authority over motor carriers stems from 1935 and has since
been augmented by comprehensive legislation that conferred broad
rulemaking authority. We have attempted to balance our statutory
obligations with the need to consider regulatory alternatives and the
burdens they present to various entities, including small entities. But
given our safety mandate, exempting 98% of our regulated population
from this new requirement based simply on their small business status
would severely undermine our safety mission and ignore our
congressional mandate. Our proposal did consider alternatives and
exemptions, as discussed earlier in this document. The Agency does not
believe that it is feasible to exempt small businesses from a
requirement to use EOBRs. Because of the nature of the commercial motor
vehicle industry, there would be no reliable way for an enforcement
official to determine if a driver or CMV is operating as a small
business on a particular day. Even if the Agency could develop a system
to make that daily determination, it has not been analyzed to determine
if it could be implemented in a cost beneficial manner.
Also, as we propose in the regulatory text at 49 CFR 395.11(i) to
address supporting documents, motor carriers can apply for an exemption
based on a process under 49 CFR part 381. A motor carrier could apply
for an exemption under existing part 381 provisions for additional
relief from the requirements for installing and using EOBRs. Such
exemptions can be granted for up to two years, and the Agency believes
this is the best way to balance regulatory relief with its safety
mission.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 requires Agencies to
evaluate whether an Agency action would result in the expenditure by
State, local and Tribal governments, in the aggregate, or by the
private sector, of $140.8 million or more (as adjusted for inflation)
in any 1 year, and if so, to take steps to minimize these unfunded
mandates. This rule would not result in the expenditure by State, local
and Tribal governments, in the aggregate, of $140.8 million or more in
any 1 year, nor would it affect small governments. As Table 2 shows,
this rulemaking would result in private sector expenditures in excess
of the threshold for any of the proposed options. Gross costs, however,
are expected to be more than offset in savings from paperwork burden
reductions.
Table 2--Annualized Net Expenditures by Private Sector (Millions)
------------------------------------------------------------------------
Option 1 Option 2 Option 3
------------------------------------------------------------------------
Total EOBR Cost.................. $1,586 $1,643 $1,939
Total Paperwork Savings.......... 1,965 1,965 1,965
Net EOBR Cost.................... -379 -322 -26
------------------------------------------------------------------------
E.O. 13132 (Federalism)
A rule has implications for Federalism under Executive Order 13132
if it has a substantial direct effect on State or local governments and
would either preempt State law or impose a substantial direct cost of
compliance on such governments. This proposed action has been analyzed
in accordance with E.O. 13132. FMCSA has determined that this rule
would not have a substantial direct effect on States, nor would it
limit the policymaking discretion of States. Nothing in this document
preempts any State law or regulation. A State that fails to adopt the
proposed amendments, if finalized, within 3 years of the effective date
of the final rule, will be deemed to have incompatible regulations and
will not be eligible for Basic Program or Incentive Funds under the
Motor Carrier Safety Assistance Program in accordance with 49 CFR
350.335(b).
E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rule.
Indian Tribal Governments
This proposed rule does not have Tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
[[Page 5551]]
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. This NPRM proposes regulatory changes to several parts of
the FMCSRs, but only those applicable to part 395, ``Hours of Service
of Drivers,'' would alter or impose information collection
requirements. The information collection requirements of this NPRM
would affect OMB Control Number 2126-0001, which is currently approved
through August 31, 2011, at 181,270,000 burden hours.
As described under the analysis concerning E.O. 12866, nearly all
of the estimated reduction in paperwork burden that would result from
this rulemaking would come from a reduction in the burden associated
with the elimination of RODS for nearly all motor carrier operations.
This reduction would not take place, however, until three years after
the effective date of a final rule resulting from this proposed
rulemaking action.
OMB requires agencies to provide a specific, objective estimate of
the burden hours imposed by their information collection requirements
(5 CFR 1320.8(a)(4)). This NPRM proposes a compliance date 3 years
after the date of publication of the final rule to allow regulated
entities a reasonable opportunity to satisfy its requirements. The PRA
limits estimates of paperwork burdens to a 3-year period. During the
initial 3 years following publication of the final rule, the
requirements of part 395, including information collection
requirements, would remain unchanged. At an appropriate time, the
Agency would provide notice and request public comment on the changes
in the paperwork burden of part 395 resulting from implementation of
the rule after the 3-year period. At the present time, the Agency
believes that the regulatory changes proposed by this NPRM will
ultimately effect a net reduction in the paperwork burden of OMB
Control Number 2126-0001 (See the RIA for more information). The Agency
requests information concerning any changes in paperwork burden from
motor carriers currently using EOBR devices.
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 a draft
Environmental Assessment (EA) to review the potential impacts of this
proposed rulemaking. The draft EA findings are summarized below. The
full EA is in the docket pertaining to this rulemaking.
Implementation of this proposed action would alter to some extent
the operation of CMVs. However, the proposal, if implemented, would not
require any new construction or change significantly the number of CMVs
in operation. FMCSA finds, therefore, that noise, endangered species,
cultural resources protected under the National Historic Preservation
Act, wetlands, and resources protected under section 4(f) would not be
impacted by this rulemaking.
The EA finds negligible impacts on air quality and no adverse
effect on public safety. FMCSA anticipates that drivers of CMVs
operated by carriers required to use EOBRs would increase their
compliance with the requirements of the HOS rules. From an emissions
standpoint, this could lead to drivers taking more off-duty time parked
with the engine idling, which increases engine emissions on a per-mile
basis. This rulemaking, however, also has the potential to prevent CMV
crashes and resulting emissions. When emissions that would otherwise
result from prevented CMV crashes are subtracted from the emissions
generated by additional compliance with the HOS regulations, FMCSA
determines that the overall change in pollutants would be negligible.
Because of the enhanced HOS compliance that is likely to result from
this rulemaking, it is also likely that the rulemaking would result in
an increase in public safety. Drivers for carriers brought into HOS
compliance would experience reduced crash risk and be less likely to
have crashes. Separately, the rulemaking proposes to eliminate the use
of paper-based RODS documentation, which reduces paper use.
As discussed in the EA, FMCSA also analyzed this proposed rule
under the Clean Air Act, as amended (CAA) section 176(c), (42 U.S.C.
7401 et seq.) and implementing regulations promulgated by the
Environmental Protection Agency.
FMCSA concludes that the rule changes would have an overall minimal
impact on the environment, and therefore would not require an
environmental impact statement. The provisions under the proposed
action do not, individually or collectively, pose any significant
environmental impact. FMCSA requests comments on this analysis.
E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA determines that the proposed rule would not significantly
affect energy supply, distribution, or use. Therefore, no Statement of
Energy Effects is required.
E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks, requires agencies issuing ``economically
significant'' rules that involve an environmental health or safety risk
that may disproportionately affect children, to include an evaluation
of the regulation's environmental health and safety effects on
children. As discussed previously, this proposed rule is economically
significant; but it would cause no environmental or health risk that
disproportionately affects children.
E.O. 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
E.O. 12630 (Taking of Private Property)
This rule would not effect a taking of private property or
otherwise have 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 that there are no voluntary national consensus
standards for the design of EOBRs as complete units. However, as a part
of the April 2010 EOBR final rule, the Agency found 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 enforcement officers. For
example, the digital character set
[[Page 5552]]
requirement references the American Standard Code for Information
Interchange (ASCII) character set specifications, the most widely used
form of which is ANSI X3.4-1986. This is described in the Document
Information Systems--Coded Character Sets--7-Bit ASCII (ANSI document
ANSI INCITS 4-1986 (R2002)) published by the American National
Standards Institute (ANSI). In another example, the Agency would
reference the 802.11 family of standards for wireless communication
published by Institute of Electrical and Electronics Engineers (IEEE).
The April 2010 EOBR final rule incorporated by reference these
standards, and others, in 49 CFR 395.18.
As part of the development of the April 2010 EOBR final rule, FMCSA
reviewed and evaluated 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. The Agency concluded that these standards lack
several features and functions (such as CMV location tracking and the
ability for the driver to enter remarks) that FMCSA believes are
necessary to include in its proposed performance-based regulation. It
further concluded that the standards require other features (such as an
integrated license document on the driver's data card) that are not
appropriate for U.S. operational practices.
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 at 3268) requires DOT and certain other
Federal agencies to conduct a privacy impact assessment of each
proposed rule that will affect the privacy of individuals. 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 recognizes the significance of the decision to
require, even in limited circumstances, that PII, previously kept in
paper copy, now be kept electronically. Privacy is a significant
consideration in FMCSA's development of this proposal. As stated
earlier, FMCSA recognizes that the need for a verifiable EOBR audit
trail (a detailed set of records to verify time, date, and physical
location data for a particular CMV) must be counterbalanced by privacy
considerations. As part of the development of the April 2010 EOBR final
rule, 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 NPRM 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. It would not change the technology by which compliance is
to be documented, as stated in the April 2010 EOBR final rule, in a way
that enhances both the sharing of information and its capacity to be
data processed.
As stated in the April 2010 final rule, and as is the case with all
FMCSRs, 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 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 a compliance or enforcement activity is transferred to
a DOT/FMCSA Privacy Act System of Records.) As FMCSA has previously
discussed regarding EOBRs, the Agency complies with the Freedom of
Information Act in implementing DOT regulations (75 FR 17221, April 5,
2010; 49 CFR part 7).
What this NPRM would change, and change significantly, is the
capacity of HOS 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. As
discussed above, the Agency has tailored this NPRM to recognize the
privacy interests of CMV drivers.
The entire privacy impact assessment is available in the docket for
this proposed rule.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Mexico,
Motor carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, FMCSA is proposing to amend
49 CFR Chapter III as follows:
PART 385--SAFETY FITNESS PROCEDURES
1. The authority citation for part 385 continues to read as
follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109,
5113,13901-13905, 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.
2. Amend Sec. 385.3 by adding a definition for the term ``Hours of
Service Management System'' in alphabetical order to read as follows:
Sec. 385.3 Definitions and acronyms.
* * * * *
Hours of Service Management System is defined in Sec. 395.2 of
this subchapter.
* * * * *
3. Amend Section VII of Appendix B to part 385, by adding the
following violations in numerical order to read as follows:
Appendix B to Part 385--Explanation of Safety Rating Process
* * * * *
VII. List of Acute and Critical Regulations
* * * * *
Sec. 395.8(e)(1) Failing to require a driver to complete the
record of duty status required by either this section, Sec. 395.15
or Sec. 395.16; failing to preserve a record or making false
reports (critical).
Sec. 395.8(e)(2) Failure to prohibit a driver from disabling,
deactivating, disengaging,
[[Page 5553]]
jamming or otherwise blocking or degrading a signal transmission or
reception; tampering with an automatic on-board recorder or
electronic on-board recorder (critical).
* * * * *
Sec. 395.11(a) Failing to establish, implement, and maintain an
hours-of-service management system with controls, policies,
programs, practices, and procedures to effectively monitor each
driver's compliance with the hours of service requirements, and to
prevent and detect violations of Part 395 (acute).
Sec. 395.11(c) Failing to identify each supporting document or
maintain the supporting documents in such a manner that permits the
matching of those records to the driver's original record of duty
status (critical).
Sec. 395.11(d) Intentionally destroying, mutilating, or
altering a supporting document; or failing to prevent alteration of
supporting documents; failing to prevent alteration of supporting
documents which reduces their accuracy (acute).
Sec. 395.11(e) Failing to maintain all elements of the
supporting documents as required by this section or Sec. 395.8.
(critical).
Sec. 395.11(f) Making a false certification regarding the
receipt or retention of supporting documents (acute).
Sec. 395.11(g) Failing to maintain all elements of the
supporting documents as required in a remedial directive (acute).
Sec. 395.11(h) Failing to forward, within 3 days of the 24-hour
period to which the document pertains, or the day the document comes
into the driver's or motor carrier's possession, whichever is later,
all required supporting documents and the original of the record of
duty status. Failing to forward supporting documents provided
electronically from the driver to the carrier within 24 hours
(critical).
* * * * *
4. Amend Appendix C to part 385 by adding the following violations
in numerical order to read as follows:
Appendix C to Part 385--Regulations Pertaining to Remedial Directives
in Part 385, Subpart J
* * * * *
Sec. 395.8(e)(1) Failing to require a driver to complete the
record of duty status required by either this section, Sec. 395.15
or Sec. 395.16; failing to preserve a record or making false
reports (critical).
Sec. 395.8(e)(2) Failure to prohibit a driver from disabling,
deactivating, disengaging, jamming or otherwise blocking or
degrading a signal transmission or reception; tampering with an
automatic on-board recorder or electronic on-board recorder
(critical).
* * * * *
Sec. 395.11(a) Failing to establish, implement, and maintain an
hours-of-service management system with controls, policies,
programs, practices, and procedures to effectively monitor each
driver's compliance with the hours of service requirements, and to
prevent and detect violations of part 395 (acute).
Sec. 395.11(c) Failing to identify each supporting document or
maintain the supporting documents in such a manner that permits the
matching of those records to the driver's original record of duty
status (critical).
Sec. 395.11(d) Intentionally destroying, mutilating, or
altering a supporting document; or failing to prevent alteration of
supporting documents; failing to prevent alteration of supporting
documents which reduces their accuracy (acute).
Sec. 395.11(e) Failing to maintain all elements of the
supporting documents as required by this section or Sec. 395.8.
(critical).
Sec. 395.11(f) Making a false certification regarding the
receipt or retention of supporting documents (acute).
Sec. 395.11(g) Failing to maintain all elements of the
supporting documents as required in a remedial directive (acute).
Sec. 395.11(h) Failing to submit or forward by mail the
driver's supporting documents, within 3 days of the 24-hour period
to which the document pertains, or the day the document comes into
the driver's or motor carrier's possession, whichever is later, all
required supporting documents and the original of the record of duty
status. Failing to forward supporting documents provided
electronically from the driver to the carrier within 24 hours
(critical).
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
5. The authority citation for part 390 continues to read as
follows:
Authority: 49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136,
31144, 31151, 31502, 31504; sec. 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. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766,
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49
CFR 1.73.
6. Amend Sec. 390.5 by adding a definition for ``Document,'' in
alphabetical order, to read as follows:
Sec. 390.5 Definitions.
* * * * *
Document means any writing and any electronically-stored
information, including data or data compilation(s), stored in any
medium from which information may be obtained.
* * * * *
PART 395--HOURS OF SERVICE OF DRIVERS
7. The authority citation for part 395 continues to read as
follows:
Authority: 49 U.S.C. 504, 14122, 31133, 31136, 31502, Sec. 229,
Pub. L. 106-159, 113 Stat. 1748, 1773 (as transferred by Sec. 4415
and amended by Sec. 4130-4132 of Pub. L. 106-59, 119 Stat. 1144, at
1726, 1743-1744); Sec. 4143, Pub. L. 106-59, 119 Stat. 1144, 1744;
Sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.
8. Amend Sec. 395.2 by adding the following definitions in
alphabetical order, to read as follows:
Sec. 395.2 Definitions.
* * * * *
Hours of service management system means the controls, policies,
programs, practices, and procedures used by a motor carrier
systematically and effectively to monitor drivers' compliance with
hours of service requirements and to verify the accuracy of the
information contained in drivers' records of duty status. The
management system must include, at a minimum, the use of documents,
records, and information generated or received by the motor carrier in
the normal course of business. These documents and records, and this
information must include, but are not limited to, driver payroll
records, trip-related expense reports and receipts, bills of lading or
equivalent documents, and fleet management system communication records
(any record of communication between a motor carrier and a driver in
the normal course of business).
* * * * *
Motor carrier, as defined in Sec. 390.5, includes, for purposes of
this part, an owner-operator leased to a carrier subject to a remedial
directive issued under part 385, subpart J, regardless of whether the
owner-operator has separate operating authority under part 365 of this
subchapter.
* * * * *
Supporting document, for the purposes of this part, means a
document that is generated or received by the motor carrier in the
normal course of business that could be used, as produced or with
additional identifying information, to verify the accuracy of a
driver's record of duty status.
* * * * *
9. Amend Sec. 395.8 by revising paragraphs (a) and (e), the
heading of paragraph (k), and paragraph (k)(1) to read as follows:
Sec. 395.8 Driver's record of duty status.
(a) Except as provided in Sec. 395.1(e)(1) and (2), every motor
carrier subject to the requirements of this part must require every
driver used by the motor carrier to record his/her duty status for each
24-hour period using the methods prescribed in either paragraphs (a)(1)
or (2) of this section.
(1) Every driver who operates a commercial motor vehicle in
operations other than those described in paragraph (a)(2) of this
section must record his/her duty status, in duplicate, for each 24-hour
period. The duty status time
[[Page 5554]]
must be recorded on a specified grid, as shown in paragraph (g) of this
section. The grid and the requirements of paragraph (d) of this section
may be combined with any company forms. This format may be used:
(i) By those operations described in Sec. 395.1(e)(1) and (2),
where a driver operates a commercial motor vehicle outside of the
distance radius or for longer periods of time specified in those
provisions no more than 2 days in any 7-day period; and
(ii) By those operations subject to Sec. 395.16(a)(3) until
[INSERT DATE THREE YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
(2) Every driver operating a commercial motor vehicle must record
his/her record of duty status using either an automatic on-board
recording device meeting the requirements of Sec. 395.15 or an
electronic on-board recorder meeting the requirements of Sec. 395.16
installed in the vehicle. The requirements of this section apply to:
All motor carriers required to maintain RODS except those eligible to
use time records under Sec. 395.1(e)(1) and (2).
* * * * *
(e)(1) A motor carrier must require drivers to complete the record
of duty status required by either this section, Sec. 395.15 or Sec.
395.16 and must preserve a record of such duty status. A motor carrier
must not make false reports in connection with such duty status.
(2) No motor carrier shall permit or require any driver used by it
to disable, deactivate, disengage, jam or otherwise block or degrade a
signal transmission or reception; or reengineer, reprogram, or
otherwise tamper with an automatic on-board recorder or electronic on-
board recorder so that the device does not accurately record the duty
status of a driver; nor shall any driver engage in the activities
prohibited under this paragraph.
* * * * *
(k) Retention of driver's record of duty status and supporting
documents. (1) Each motor carrier shall retain and maintain records of
duty status and all supporting documents required under this part, for
each of its drivers, for a period of 6 months from the date of receipt.
* * * * *
10. Revise Sec. 395.11 to read as follows:
Sec. 395.11 Motor carrier's hours of service management system and
oversight.
(a) Scope. (1) Every motor carrier subject to the requirements of
this part shall establish, use, and maintain an hours of service
management system, as defined in Sec. 395.2, capable of preventing and
detecting violations of this part by each of its drivers. The
management system must include, at a minimum, the use of documents,
records, and information generated or received by the motor carrier in
the normal course of business.
(2) This section also applies to motor carriers and owner-operators
that have been issued a remedial directive to install, use, and
maintain EOBRs unless otherwise provided in the remedial directive.
(b) A motor carrier shall be deemed to have knowledge of any and
all documents in its possession, and any and all documents that are
available to the motor carrier and that the carrier could use in its
hours of service management system. ``Knowledge of a document'' means
knowledge of both the fact that it exists and its specific contents.
(c) The motor carrier must maintain supporting documents in such a
way that they may be effectively matched to the corresponding driver's
record of duty status.
(d) A motor carrier or a driver must not obscure, deface, destroy,
mutilate, or alter existing information contained in the supporting
document.
(e) Supporting documents required (motor carriers not subject to a
Remedial Directive under 49 CFR part 385, subpart J):
(1) In addition to records generated from EOBRs that meet, at a
minimum, the requirements of Sec. 395.16, motor carriers must retain
and maintain the documents required by this section for every drivers'
duty day. Except as provided in paragraph (e)(3) of this section, a
supporting document or documents must contain the following
information:
(i) Driver name or personal identification number (PIN) associated
with the driver's name, or another identifying number that is issued to
the driver. A unit (vehicle) number may be used so long as it can be
associated with the driver operating the vehicle at a specific date,
time, and location.
(ii) The date. The date recorded must be the date at the location
where it is recorded. If the date is automatically recorded on an
electronic document, it must be obtained, transmitted, and recorded in
such a way that it cannot be altered by a motor carrier, driver, or
third party.
(iii) The time. The time recorded must be convertible to the local
time at the location where it is recorded. If the time is automatically
recorded on an electronic document, it must be obtained, transmitted,
and recorded in such a way that it cannot be altered by a motor
carrier, driver, or third party.
(iv) The location. The location description must include the name
of the nearest city, town, or village to enable Federal, State, and
local enforcement personnel to quickly determine the vehicle's
geographic location on a standard map or road atlas. If the location
information is automatically recorded on an electronic document, it
must be derived from a source not subject to alteration by the motor
carrier, driver, or third party.
(2) For any non-driving period after coming on duty following 10
consecutive hours off duty, with the exception of any sleeper berth
period of at least 2 hours but less than 10 consecutive hours pursuant
to Sec. 395.1(g)(1)(ii)(A)(2) and any off-duty period of at least 2
hours but less than 8 consecutive hours pursuant to Sec. 395.1(g)(3),
drivers and motor carriers must retain and maintain at least one
document as described in this paragraph from among the four categories
listed below:
(i) Payroll;
(ii) Trip-related expense records and receipts;
(iii) Fleet management system communication logs; and
(iv) A bill of lading or equivalent document.
(3) If a motor carrier retains a single supporting document that
shows the driver identification, date, time, and location for the
beginning and end of any on-duty not driving period, that is the only
document the carrier must retain and maintain for that period. However,
if the motor carrier does not retain and maintain one single supporting
document that shows all of these items, it must retain and maintain
sufficient documentation from the categories listed above to show the
driver identification and (i) the location, and date, and time of the
duty status change, when used together, or (ii) the location, date, and
time of the duty status changes.
(f) If a motor carrier does not receive or retain any supporting
documents from the classes of documents listed in paragraph (e)(2) of
this section, then the motor carrier must certify that it does not or
did not receive these documents. If a motor carrier is found to have
falsely certified to not having supporting documents, it would be
subject to a civil penalty for falsification. Motor carriers submitting
false certifications are subject to the maximum penalty authorized
under 5 U.S.C. 521, irrespective of the Uniform Fine Assessment
algorithm or other Agency
[[Page 5555]]
penalty calculations implementing 49 U.S.C. 521(b)(2)(D).
(g) Supporting documents required (motor carriers subject to a
Remedial Directive under 49 CFR part 385, subpart J). Motor carriers
subject to a Remedial Directive must retain and maintain all supporting
documents as described in that directive.
(h) The driver must submit or forward by mail the driver's
supporting documents and the original record of duty status to the
regular employing motor carrier within 3 days of the 24-hour period to
which the receipt pertains, or the day the document comes into the
driver's or motor carrier's possession, whichever is later. If a
supporting document is submitted electronically, the driver shall
submit the supporting document within 24 hours.
(i) FMCSA may authorize on a case-by-case basis, motor carrier
self-compliance systems.
(1) Requests for supporting document self-compliance systems may be
submitted to FMCSA under the procedures described in 49 CFR part 381,
subpart C (Exemptions).
(2) FMCSA will consider requests concerning types of supporting
documents maintained by the motor carrier under Sec. 395.8(k)(1) and
the method by which a driver retains and maintains a copy of the record
of duty status for the previous 7 days and makes it available for
inspection while on duty in accordance with Sec. 395.8(k)(2).
(j) Motor carriers maintaining date, time, and location data
produced by an EOBR that complies with Sec. 395.16 need only maintain
additional supporting documents (e.g., driver payroll records, fuel
receipts) that provide the ability to verify non-driving status
according to the requirements of Sec. 395.8(a)(2).
11. Amend Sec. 395.16 by revising paragraph (a) to read as
follows:
Sec. 395.16 Electronic on-board recording devices.
(a) This section applies to electronic on-board recording devices
(EOBRs) used to record the driver's hours of service as specified by
part 395. Every driver required by a motor carrier to use an EOBR shall
use such device to record the driver's hours of service.
(1) 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.
(2) For commercial motor vehicles manufactured on and after June 4,
2012, motor carriers must install and use an electronic device that
meets the requirements of this section to record hours of service.
(3) Motor carriers operating commercial motor vehicles must install
EOBRs and require their drivers to use an EOBR to record the driver's
hours of service except for commercial motor vehicles operated by
drivers eligible to use only accurate and true time records to record
drivers' hours of service under the provisions of Sec. 395.1(e)(1) and
(2).
(4) Motor carriers must install and require their drivers to use
hours-of-service recording devices in accordance with this section in
their commercial motor vehicles no later than [INSERT DATE THREE YEARS
AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
* * * * *
Issued on: January 26, 2011.
Anne S. Ferro,
Administrator, FMCSA.
[FR Doc. 2011-2093 Filed 1-31-11; 8:45 am]
BILLING CODE 4910-EX-P