[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Proposed Rules]
[Pages 19457-19467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10252]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 390 and 395
[Docket No. FHWA-98-3706]
RIN 2125-AD52
Hours of Service of Drivers; Supporting Documents
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
-----------------------------------------------------------------------
SUMMARY: The FHWA proposes to amend the hours-of-service (HOS)
recordkeeping requirements of its regulations. The Hazardous Materials
Transportation Authorization Act of 1994 mandated that amendments be
made to these regulations. The FHWA, with this NPRM, proposes a
supporting document auditing system that all motor carriers would use
to support the accuracy of the drivers' Records of Duty Status (RODS)
and Hours of Service (HOS). Additionally, this NPRM would specify that
failure to have such a system would require the motor carrier to
maintain various types of business documents and all drivers employed
by that motor carrier to collect and submit such documents in order to
support the accuracy of the drivers' RODS. The proposed auditing
systems and document retention proposal would enable the motor
carriers, Federal, State, and local enforcement officials to compare
business documents with drivers' records of duty status to monitor
drivers' compliance with the HOS and RODS requirements. This proposed
rule would require drivers and motor carriers to make use of documents
generated or received in the normal course of business to verify the
accuracy of a driver's record of duty status. The use of electronic
recordkeeping methods is proposed as a preferred alternative to paper
supporting document records.
DATES: Comments should be received by June 19, 1998.
ADDRESSES: Signed, written comments should refer to the docket number
appearing at the top of this document and must be submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. All comments received will be available for
examination at the above address between 10 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.
For Internet users, all comments received will be available for
examination at the universal resource locator--http://dms.dot.gov--24
hours each day, 365 days each year. Please follow the instructions on-
line for more information and help.
FOR FURTHER INFORMATION CONTACT: For information regarding program
issues: Mr. David Miller, Office of Motor Carrier Research and
Standards, (202) 366-4009, or for information regarding legal issues:
Mr. Joseph Solomey, Office of the Chief Counsel, (202) 366-0834,
Federal Highway Administration, Department of Transportation, 400
Seventh Street, SW., Washington, D.C. 20590.
SUPPLEMENTARY INFORMATION:
The Difference Between This RIN 2125-AD52 and RIN 2125-AD93
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. This NPRM is the first document
being published for RIN 2125-AD52. Use this RIN when cross referencing
this action with the Unified Agenda.
This document is not an NPRM for RIN 2125-AD93, Hours of Service of
Drivers. The FHWA published an ANPRM on November 5, 1996 for RIN 2125-
AD93 (61 FR 57251). The FHWA is analyzing the comments for RIN 2125-
AD93 and will publish an NPRM in the future based upon those comments
and the accompanying scientific data.
The FHWA will likely incorporate this NPRM, or any final rule
resulting from this NPRM, into the upcoming NPRM for RIN 2125-AD93.
Please limit your analysis, though, and any comments you may have, to
how this NPRM would affect the current 49 CFR part 395. Please do not
comment on how these changes might affect RIN 2125-AD93 and the ICC
Termination Act of 1995. You will be given an additional opportunity to
comment at the time the FHWA publishes the NPRM for RIN 2125-AD93.
Electronic Availability
An electronic copy of this document may be downloaded using a
computer, modem, and suitable communications software from the
Government Printing Office (GPO) electronic bulletin board service
(telephone: 202-512-1661). Internet users may reach the GPO's web page
at: http://www.access.gpo.gov/su__docs/aces/aaces002.html
[[Page 19458]]
Background of Daily Logs (RODS) and the Verification of RODS
The HOS rules were first issued in the late 1930's (Ex Parte No.
MC-2, 3 M.C.C. 665). Since that time, drivers have had the
responsibility to prepare a RODS. The original pocket rulebook from
1939 states that carriers and drivers would be liable for the accuracy
of entries made by drivers on the RODS. The Interstate Commerce
Commission explained the original purposes of the RODS as follows:
[to provide] a standardized type of record to be maintained of the
daily driving time and the weekly hours on duty which would be in
the possession of each driver and which would enable a highway
patrolman or other enforcement officer to determine immediately upon
the stopping of the vehicle whether the driver had been on duty or
was driving in violation of our regulations. * * * [and] to provide
a record from which our field representatives could readily
determine whether or not the carriers are complying with the
regulations. 24 M.C.C. 413
In order to determine whether carriers are complying with the HOS
regulations, the FHWA is authorized, by statute, to inspect and copy
any record, and to inspect any property, or equipment of a carrier,
lessor, association, or other person subject to the provisions of 49
U.S.C. 31502, as long as these actions were made in furtherance of an
investigation and regardless of whether or not the records were
required to be maintained by the FHWA regulations or orders. See 49
U.S.C. 501(b).
A third purpose of the RODS is that they enable motor carriers, at
the time of dispatch, to ensure their drivers have sufficient time to
safely complete trips within the HOS regulations. The FHWA believes
many motor carriers began to realize this purpose in the early years of
the regulation.
Over the last 60 years, many motor carriers have regularly audited
or inspected drivers' RODS for accuracy to ensure their drivers are
complying with the HOS regulations. This enables the motor carriers to
verify, through their own self-monitoring system, that drivers are
accurately reporting their HOS. It also allows drivers to calculate
their available hours prior to being dispatched. This provides the
motor carrier with a valuable management tool to efficiently dispatch
trips within the HOS limitations.
In general, motor carriers use many different types of business
records to document various business transactions: Accident and
incident reports are used, for instance, to support claims to insurers
and defend against lawsuits; bills of lading are written transportation
contracts between shippers and carriers that identify the freight, who
is to receive it, the place of delivery, and the terms of the
agreement; and border crossing reports are used to establish time and
mileage in a foreign country. Carrier pros (waybills) are descriptions
of the goods sent with a carrier freight shipment. Cash advance
receipts are used to document cash advances to drivers. Credit and
debit card receipts and statements are used to reconcile credit and
debit account balances. Customs declarations are used to document the
type and quantity of freight which crossed a border point. Delivery
receipts are used to document the act of transferring possession of a
shipment, usually between a carrier and a consignee, but also between a
consignor and a carrier, and one carrier to another carrier who
receives the freight. Dispatch and assignment records are used to
schedule and control pickup and delivery of freight, especially in the
scheduling and control of intercity traffic and intracity pickup and
delivery. Driver reports (facsimile or call-in logs) are used to track
a driver's progress. Expense vouchers are used to account for all
expenses. Freight bills are used to describe the freight, its weight,
amount of charges, taxes, and whether collect or prepaid charges. Fuel
billing statements are used to reconcile the quantity of fuel consumed
and the cost of the fuel for internal expense reports. Fuel receipts
are used in conjunction with fuel billing statements to reconcile the
quantity of fuel consumed and the cost of the fuel for internal expense
reports. Gate receipts are used to control access to terminals and to
determine when access and departure from the terminal were
accomplished. Global positioning and cellular systems provide two-way
communications technology between the driver and the carrier. The
global positioning systems also provide a means by which motor carrier
management may determine the CMVs operational efficiency. Such
operating parameters including engine speed, engine oil pressure, and
cargo space temperature may be provided by such systems. Data provided
by the global and cellular systems help management estimate a driver's
time of arrival at the next destination and the condition of the CMV
and its contents much faster than land-based, wire telephone
communications. Inspection reports are used to determine whether the
motor carrier needs to improve monitoring of its vehicles or drivers.
Invoices are used to notify payees of the charges to be paid for
transportation services. Interchange reports are used to determine when
and where freight was transferred from one transportation carrier to
another carrier. International Registration Program (IRP) receipts are
used to determine the registration for the specified vehicles.
International Fuel Tax Agreement (IFTA) receipts are used to determine
the payment of fuel tax charges. Lessor settlement sheets are used to
determine the terms of a lease and when a lease has been settled.
Lodging receipts are used to determine driver expenses. Lumper receipts
are used to determine driver expenses for the temporary labor at a
consignor or consignee. On-board computer reports are used to determine
the proper operation of CMVs, including the efficiency of the engine,
transmission, and accessories hooked up to the computer. Over/short and
damage reports are used to make claims for cargo liability claims and
to account to shippers for the freight that has been damaged or freight
that was over counted or under counted. Overweight/oversize reports and
citations are used to determine driver expenses for State size and
weight violations. Port of entry receipts are used to determine when
freight was delivered to or received from a port of entry. Telephone
billing statements are used to determine driver expenses and to
reconcile driver and global positioning system reports. Toll receipts
are used to determine driver expenses. Traffic citations are used to
determine driver expenses for motor carriers that reimburse drivers for
such violations. Reports of CMVs with transponders participating in
automated toll or clearance programs are used to reconcile proper
payment and clearance. Trip permits are used to show that a CMV is
properly authorized by a jurisdiction to operate in that jurisdiction
under the conditions specified in the permit. Trip reports are used to
track driver and CMV actions and weight/scale tickets are used to
determine the net weight of shipments to accurately charge shippers for
transportation services.
These records, among others, are generated by motor carriers for
their own business purposes, or they are received from third parties,
such as consignors, consignees, and vendors for other motor carrier
purposes. Motor carriers have been using these records not only to
document various business transactions, but also to verify the accuracy
of their driver's RODS. Many motor carriers regularly maintain self-
monitoring records for their own internal management purposes. This
practice, over the years, has become a
[[Page 19459]]
standard motor carrier practice among well run, successful, and safe
motor carriers.
The FHWA has learned from safe motor carriers that in order for the
carriers to ensure that drivers are alert and not fatigued, motor
carriers must maintain self-monitoring systems comparing RODS to
supporting business documents. The FHWA decided to adopt this practice
of maintaining ``RODS supporting documents'' as a part of its
regulatory oversight to assist motor carriers in operating safely. The
FHWA published a final rule on November 26, 1982 (47 FR 53383) which,
in part, requires motor carriers operating in interstate commerce to
retain supporting documents, along with drivers' records of duty
status, for at least six months from the date of receipt (49 CFR
395.8(k)). The FHWA did not define the term ``supporting document'' in
that final rule.
The FHWA intended that the term ``supporting document'' refer to
those specific documents, and only those specific documents, that a
motor carrier used in its internally-developed system or program to
verify the accuracy of the driver's duty activities. It was not meant
to encompass all records, but only those that were, indeed, used by the
motor carrier, to verify the dates, times, and locations the driver
recorded. The FHWA received requests in the 1980's and early 1990's for
an interpretation of the term ``supporting document.''
The FHWA published regulatory guidance in the Federal Register on
November 17, 1993 (58 FR 60734, 60761), which provided examples of the
types of supporting documents that should be retained. The regulatory
guidance stated that supporting documents are the records of the motor
carrier maintained in the ordinary course of business that are used, or
could be used, by the motor carrier to verify the information recorded
on a driver's record of duty status. An extensive, but not a complete,
list of the various types of records considered to be examples of
supporting documents was provided in this guidance.
On August 26, 1994, the Hazardous Materials Transportation
Authorization Act of 1994, Pub. L. 103-311, 108 Stat. 1673 (August 26,
1994) (hereinafter the Act) was enacted. Under section 113 of the Act,
the Secretary of Transportation is required to prescribe regulations
amending 49 CFR Part 395 to improve both (A) compliance by commercial
motor vehicle (CMV) drivers and motor carriers with the HOS
requirements, and (B) the effectiveness and efficiency of Federal and
State enforcement officers reviewing such compliance.
The Act directed that the regulations include the following items:
(1) A description of identification items (which include either
driver name or vehicle number) that shall be part of a written or
electronic document to enable such written or electronic documents 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;
(2) A provision specifying the number, type, and frequency of
supporting documents that must be retained by a motor carrier so as to
allow verification of the accuracy of the RODS at a reasonable cost, to
the driver and the motor carrier, of record acquisition and retention;
(3) A provision specifying the period during which supporting
documents shall be retained by the motor carrier. The period shall be
at least six months from the date of a document's receipt;
(4) A provision to authorize, on a case-by-case basis, motor
carrier self-compliance systems that ensure driver compliance with
hours of service requirements and allow Federal and State enforcement
officials the opportunity to conduct independent audits of such systems
to validate compliance with section 395.8(k) of title 49, Code of
Federal Regulations (or successor regulations thereto). Such
authorization may also be provided by the Secretary to a group of motor
carriers that meet specific conditions that may be established by
regulation by the Secretary and that are subject to audit by Federal
and State enforcement officials; and
(5) A provision to allow a waiver, on a case-by-case basis, of
certain requirements of section 395.8(k) of title 49, Code of Federal
Regulations (or successor regulations thereto), when sufficient
supporting documentation is provided directly and at a satisfactory
frequency to enforcement personnel by an intelligent vehicle-highway
system (now referred to as an ``Intelligent Transportation System''
(ITS)), as defined by section 6059 of the Intelligent Vehicle-Highway
Systems Act of 1991 (23 U.S.C. 307 note). Such waiver may also be
allowed for a group of motor carriers that meet specific conditions
that may be established by regulation.
For purposes of the Act, the term ``supporting document'' was
defined to mean ``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.''
Proposal
To satisfy the legislative mandate, the FHWA is proposing to amend
part 395 to include in Sec. 395.2 a definition for the term
``supporting document'' and to add a section entitled Sec. 395.10
Verification and Record Retention.
Definition of Supporting Documents
The FHWA is proposing to use the statutory definition of supporting
documents as provided by Congress in the Act, with the addition of
clarifying language and a list of examples. The proposed list is only a
sampling of the types of documents that the FHWA believes could support
the HOS and the accuracy of RODS. The FHWA is particularly interested
in receiving comments on this approach to implementation of the Act.
Motor Carrier Self-Compliance Systems
Under section 113 of the Act, the FHWA is required to authorize, on
a case-by-case basis, motor carrier self-compliance systems that ensure
driver compliance with FHWA HOS requirements and afford Federal and
State enforcement officers the opportunity to conduct independent
investigations of such systems to assess compliance with 49 CFR 395.3
and 395.8.
The FHWA has considered this requirement and believes that most
motor carriers and drivers are meeting their responsibility to conduct
safe operations by complying with the HOS regulations. The FHWA further
believes that responsible motor carriers have already developed self-
compliance or self-monitoring systems and have these systems in place.
The FHWA does not believe it should impose additional stringent record-
collection and maintenance requirements on motor carriers and drivers,
when most motor carriers already have such systems and are successfully
monitoring and enforcing the regulations.
The FHWA believes it should continue to allow each motor carrier to
maintain such a system. The FHWA, though, believes each carrier should
presently be able to describe and validate to the FHWA that they have
an effective system in place using supporting documents to audit their
drivers' HOS and RODS in an accurate and timely fashion.
In addition, the FHWA seeks comments on these additional issues:
Question (1) What types of self-monitoring systems should be
[[Page 19460]]
considered in addition to the type proposed in this document?
Question (2) Whether and what conditions should be imposed upon
motor carriers (such as accident or out of service prevention
performance history) before the FHWA would authorize a different self-
monitoring system as an alternative to compliance with this proposed
rule?
Question (3) Whether motor carriers seeking additional
authorization should have some established safety record with the FHWA
or other State or local enforcement agencies?
Question (4) What must happen before the FHWA should disallow the
use of a self-monitoring system or an alternative system?
Ability to Transfer Paper Supporting Documents That Contain A Signature
to Automated, Electronic, or Laser Technology Formats
The FHWA believes that an alternative self-monitoring system would
have to provide the same capacity for verification that would be
produced by the collection and retention of all supporting documents in
their original form. The FHWA proposes to allow motor carriers to
transfer supporting documents to electronic or laser technology
systems. Section 390.31(d), 49 CFR, now allows all records to be
maintained in computer technology format, except those documents
containing signatures.
Under this proposal, all supporting documents, including those
requiring a signature, would be eligible for retention in electronic,
laser or other automated format, if the motor carrier can produce and
verify, upon demand, hard copies of the required data. The FHWA is
proposing a conforming amendment to Sec. 390.31(d). Automated,
electronic, or laser technology systems that report directly to the
driver or the motor carrier would also be acceptable. However, the FHWA
is also proposing a requirement that automatic, electronic, or laser
technology systems must be capable of reproducing the information
stored in such systems for inspection at the motor carrier's place of
business within 48 hours of a demand.
Motor Carrier's Discretion To Use Technology in Lieu of Paper
Supporting Documents
The FHWA is also proposing to allow motor carriers to use
electronic, laser or automated technology, (e.g., global positioning
systems (GPS), automatic vehicle identifier (AVI) transponders,
electronic bills of lading used by customs officials in the U.S. and
other countries, and State driver-vehicle inspection reports prepared
by using pen-based computer systems) in lieu of paper supporting
documents.
Other similar technologies that may now be available or developed
in the future could also be acceptable in lieu of paper supporting
documents.
Question (5) Are there any other advanced technology systems
currently in use or under development that the motor carrier industry
may use to validate HOS or support the RODS?
The FHWA would accept the data supplied by these technologies as
alternatives to supporting documents, if the motor carrier can produce
a printed copy of the required information at its principal place of
business or other location within 48 hours after a request has been
made. The FHWA would allow motor carriers to use any intelligent
transportation system developed now or in the future in the manner and
to the extent it is effective for HOS and RODS verification if that
system complies with these general requirements.
Question (6) Should waivers be considered on a case-by-case basis
for other systems that do not quite meet these requirements, but may
have other compensating features that produce equivalent safety
results?
Question (7) Under what circumstances should the use of such
alternatives systems also operate as a substitute for the requirement
to prepare and maintain RODS? Demonstration of the effective use of a
system in whole or in part, for verification should obviate any
necessity to further examine the information produced by the system by
enforcement personnel.
Verification of Records of Duty Status Using A Self-Monitoring System
As a result of this rulemaking, motor carriers would be required to
maintain a self-monitoring system capable of verifying drivers' HOS and
the accuracy of the duty report categories (on duty, driving, sleeper
berth, off duty, time reporting for duty each day, time released from
duty each day, and the total number of hours on duty each day) recorded
by drivers on their RODS for each trip. The FHWA believes that most
trips produce, or could with relative ease produce, a document to
verify the time and place of the driver and mileage of the vehicle at
the beginning and completion of each work day. Various other supporting
documents may be obtained during the trip. This rule would require the
motor carrier to have a self-monitoring system to verify the accuracy
of the beginning, intermediate, and ending times of each working day on
each trip, as well as beginning, ending and intermediate mileage for
each trip. Absent such a system, which must be in verifiable,
demonstrable form and used by the motor carrier, possession and
retention of all supporting documents that could have been obtained on
any given trip would be presumed and required.
Nothing in this proposal would have any effect on current
exceptions for automatic on-board recording devices in accordance with
Sec. 395.15.
Section 395.10 would be added to require motor carriers to have a
system in place that enables the motor carrier to effectively audit its
RODS with documents that the motor carrier chooses. The FHWA believes a
motor carrier could fully comply with this requirement using documents
generated wholly within the motor carrier's operation, such as accurate
dispatch records, bills of lading, daily call-in records, and a variety
of receipts.
The motor carrier's auditing system must have a reviewable written
procedure that explains in sufficient detail what documents are used by
the motor carrier's clerks and management and how they serve to verify
the accuracy of driver's RODS. The procedure would further be required
to explain access to each type of record used and where maintained, how
drivers are notified of violations found by the motor carrier, and what
corrective action the motor carrier takes for violations found by the
employer during its audit.
The motor carrier has the discretion to develop and use whatever
system it believes would effectively enable it to ensure that all
drivers accurately record their HOS on the RODS. The system must, at a
minimum, verify the driver's beginning and ending times, as well as
such intermediate times, as would effectively detect HOS violations and
preclude opportunities for false or inaccurate reporting. It must also
include a system to cross-check mileage and locations. The FHWA
believes that most motor carriers already have such a system and others
should be able to establish their self-monitoring system by describing
it in a manual or handbook. The FHWA believes the proposed manual may
be written on one page or less in length.
Paragraph (b) of this proposed rule would specify that the manual
be provided to personnel responsible for verification of HOS and RODS.
The manual would also be required to be made available to the FHWA and
other appropriate enforcement agencies upon a request. Accessibility to
the written system description (manual or handbook) by FHWA and other
appropriate enforcement agencies
[[Page 19461]]
would normally be required during compliance reviews at the motor
carrier's terminals or principal places of business where records
required by part 395 are maintained. The FHWA does not intend that
enforcement officers conducting roadside inspections would have access
to such a manual or handbook. These officers would continue to have
full access to RODS and all supporting documents on the vehicle or in a
driver's possession at the time of inspection.
The FHWA would allow motor carriers to specify in their system the
supporting documents, including automated, electronic, or laser
systems, that would provide the best opportunities to verify the
accuracy of the records of duty status. If the motor carrier chooses to
require its drivers, including leased owner-operators and contractors,
to submit toll, bridge, and fuel receipts as a part of its system,
those drivers must do so.
During a compliance review of the HOS requirements at the motor
carrier's place of business, the FHWA or authorized State inspectors
would be empowered to inspect the motor carrier's self-monitoring
system's manual or handbook to determine its compliance with this rule,
how the motor carrier is complying with its self-enforcing record-of-
duty-status system, how audit-responsible personnel obtain, audit, and
store inspected supporting documents, how many violations the motor
carrier has found on its own, and corrective actions the carrier has
taken with its drivers to improve their compliance with the HOS
requirements. The reviewer may inspect other motor carrier records not
identified in the motor carrier's system, to determine whether the
system is effectively verifying the accuracy of the RODS. If the
reviewer discovers that the supporting documents identified by the
motor carrier's system are not effective for verifying the accuracy of
the RODS, the reviewer would have several options ranging from
recommending the motor carrier revise its system to better verify the
RODS accuracy to taking some enforcement action based upon evidence of
noncompliance or deception. Subsequent investigations would determine
whether the revised system is effective, again using other records not
necessarily identified in the system. If continued problems or a
pattern of HOS violations, falsification, or inaccurate RODS is
discovered, the FHWA reserves the right to inspect and copy any other
records not identified in the motor carrier's system to gauge the
ineffectiveness of the system.
If the reviewer determines that the motor carrier's system is
deficient (as opposed to non-existent or unenforced) because HOS or
RODS violations are going undetected or uncorrected, the carrier will
be put on notice of those deficiencies and directed to collect and
maintain specific supporting documents necessary to prevent violations.
A motor carrier would not be cited for failing to maintain specific
types or numbers of supporting documents on the first review of the
system. Failure to maintain the documents after the first review as
directed (or as agreed) will be the basis for future enforcement
action. In addition, penalties may be imposed for violations of Part
395 discovered during the compliance review.
This rule would allow the motor carrier to specify the type and
number of supporting documents used in its system. If the motor
carrier's self-monitoring system is effective at controlling drivers
HOS and accuracy of RODS, the motor carrier would not be required to
maintain other documents that could be used to support the record of
duty status, but which the motor carrier does not use in its system.
For example, a motor carrier's self-monitoring system specifies
five types of documents (i.e., bills of lading, delivery receipts, toll
receipts, carrier pros, cellular telephone statements) which are used
effectively by the motor carrier's auditing clerks to verify the
accuracy of the drivers HOS and RODS. If the motor carrier also used
satellite technology to track CMVs, but did not use the system to
verify the drivers' HOS and RODS, the reviewer would not necessarily
require or expect that motor carrier to maintain any such electronic
records for the time periods specified in the rule. Conversely, if the
motor carrier used advanced technology systems to verify HOS and RODS,
the motor carrier would not be required to maintain the more
conventional supporting documents. After encountering a system which is
effective on its face, enforcement personnel need not demand access to
additional records that the motor carrier is not using in the system.
Requirements for Motor Carriers Who Fail To Have a Self-Monitoring
System
If it is determined that a motor carrier does not have a self-
monitoring system to verify the accuracy of the drivers' RODS, the FHWA
would presume that the motor carrier collects and retains all
supporting documents coming into its possession directly or through its
drivers or agents for all trips. The FHWA would demand access to
supporting documents for the beginning of a trip (or when the driver
picks up passengers or property), and for the end of the trip (or the
delivery of the same passengers or property). The FHWA would also
demand access to all receipts, bills, and other documents supporting
the times and locations of intermediate operations that the motor
carrier knew or should have known had come into its actual or
constructive possession during regulated transportation.
A motor carrier who fails to have a self-monitoring system must
require the drivers to examine all documents they receive during the
normal course of their duties, including, but not limited to, documents
regarding the operation of CMVs for motor carriers. The drivers would
have to ensure that the documents include the necessary items required
by Sec. 395.10(g). The motor carrier and drivers would both be liable
for violations of this requirement. The motor carrier may also require,
if it chooses, that its drivers forward all supporting documents they
receive during their trips as allowed under Sec. 395.10(d).
In Sec. 395.10(f), motor carriers that do not have a self-
monitoring system must require drivers to retain all supporting
documents for the same time periods as they retain records of duty
status. Records of duty status may be forwarded to the regular
employing motor carrier immediately after the record of duty status is
completed, or may be retained by the driver for up to 13 days after
completion. Section 395.10(f) would require a driver to forward all
supporting documents to the motor carrier at the same time the driver
forwards the records of duty status. This requirement would ensure that
drivers who work for motor carriers that do not have auditing systems
would have all of the documents that support their records of duty
status and would be able to make these documents available for
inspection by Federal, State, or local enforcement officials on the
highway. As a result, drivers would be better motivated toward HOS
compliance and ensuring the accuracy of their records of duty status.
This would in turn tend to improve the safety of both the driver's
performance and the motor carrier's CMV operation. Therefore, this
proposal, in the absence of a supporting document auditing system,
should help to achieve the goal of improving the safety of CMV
operations and the enforcement of the HOS regulations.
The FHWA currently does not directly require drivers, including
those used for single trips or drivers used on an intermittent, casual,
or occasional basis, to provide motor carriers with
[[Page 19462]]
supporting documents. The FHWA believes, however, that drivers have an
obligation not only to comply with the HOS and RODS requirements, but
also to cooperate with their motor carrier employers by collecting and
submitting the supporting documents needed to verify compliance with
the rules. Therefore, the FHWA is proposing to require drivers to
submit supporting documents to the motor carrier at the time the
corresponding record of duty status is submitted for those motor
carriers that choose not to maintain a written, verifiable HOS auditing
system.
With this rulemaking, the FHWA would also require motor carriers
who fail to have a self-monitoring system to retain all ``supporting
documents'' that all drivers, including owner-operators and independent
contract drivers, receive during a trip, no matter how the carrier pays
drivers for these trips. This requirement would be imposed on the motor
carrier under whose authority the driver is performing transportation
services. Documents passing through the hands of leased drivers would
be, in effect, passing through the hands of the motor carrier because
drivers are, in fact, the representatives of the motor carrier during
the course of the transportation service provided. Thus, the FHWA does
not believe that holding the motor carrier responsible for maintaining
those documents would be an undue burden if the motor carrier does not
otherwise provide a verification system demonstrating its safety
management control.
The Senate report accompanying the Act discussed those situations
where a motor carrier leases the service of drivers, such as
independent contractors, owner-operators, and fleet-broker drivers
employed by other motor carriers. S. Rep. No. 217, 103d Cong., 1st
Sess. 1640 (1994). The report noted that documentation of a leased
driver's duty status was frequently not obtained and retained by the
motor carrier using the driver. This report also stated that it was the
intent of the Act to ensure that supporting documents, generated by
such business arrangements, be retained by the motor carriers that
perform the transportation service. Additionally, it is clear that it
was Congress' intent to facilitate Federal and State enforcement
efforts to document violations of the HOS regulations.
The FHWA's motor carrier safety enforcement personnel have
experienced difficulties in obtaining supporting documents for trip
lease arrangements between motor carriers and owner-operators. Senator
Exon, the legislation's sponsor, discussed the need for this provision
during the floor debate preceding final passage of the Act. He
explained that ``reports that auditors have been forced to retrieve
documents from garbage dumpsters or play hide-and-seek with firms that
have a history of habitual HOS violation give rise to the need for this
provision.'' Further, Senator Exon stated that ``the object of this
provision is to help make the roads safer by giving enforcement
personnel the ability to catch flagrant abusers. It is not designed to
create a trap for drivers who receive, for example, a pre-stamped toll
receipt or to unfairly punish drivers for a de minimis deviation from
the current rules.'' 140 Cong. Rec. S11323 (daily ed. August 11, 1994).
The legislation sets a record retention period of at least six
months. The FHWA believes that this requirement was based upon
Congress' intent to have supporting documents maintained for an
identical period as the time required for duty status record retention,
which is six months. The FHWA is considering reducing the record of
duty status retention period to four months, as the FHWA believes it is
better able to investigate and sufficiently document a current pattern
of HOS violations with records of more recent vintage. If the FHWA
reduces the retention period for RODS to four months, the FHWA believes
it would be unnecessary to require motor carriers to keep the documents
that support the RODS for an additional two months. The FHWA believes
that keeping a supporting record for two months beyond that which is
needed by the FHWA would be contrary to the intent of the Paperwork
Reduction Act of 1995. The FHWA is proposing a six-month retention
period for supporting documents in this NPRM, but the FHWA would like
comments on whether the FHWA should reduce the period for retaining
RODS to four months. The FHWA would also like comments whether it
should seek legislative authority to (1) reduce the supporting document
retention period to four months or (2) eliminate the supporting
document retention period mandate and allow the FHWA to set the
supporting document retention period to any future RODS retention
period.
The FHWA has identified a retention period for ``Supporting Data
for Reports and Statistics; Supporting data for periodical reports of *
* * hours of service, * * *, etc.'' See 49 CFR 379, Appendix A, Item
K.2. The FHWA has received a few telephone inquiries regarding this
retention period. This retention period relates to an old FHWA monthly
report acquired from the Interstate Commerce Commission (ICC) in 1966.
The FHWA required the report until December 15, 1967. The FHWA had
required every motor carrier, other than a private carrier of property,
to report on a Form BMC 60:
every instance during the calendar month covered thereby in which a
driver employed or used by it has been required or permitted to be
on duty, or to drive or operate a motor vehicle in excess of the
hours * * *
Class I motor carriers of passengers and Classes I and II motor
carriers of property also had to file the same Form BMC 60 report--
for every calendar month in which no driver employed or used by it
has been required or permitted to be on duty, or to drive or operate
a motor vehicle in excess of the hours * * * See 32 FR 7128, May 11,
1967.
The FHWA had a retention period of three years. The FHWA removed the
reporting requirement on December 15, 1967 (32 FR 17941). The ICC and
the Surface Transportation Board never removed the retention period
from its preservation of records list. Based upon the savings clause in
the ICC Termination Act of 1995, the FHWA transferred the former ICC's
preservation of records lists to the FHWA regulations on June 21, 1997
(62 FR 32040). This action provided the initial appearance of a
conflict between parts 379 and 395 with respect to HOS supporting data
and HOS supporting documents.
The proposal in this document in no way involves ``reporting'' data
similar to the former report Form BMC-60. This proposal only relates to
motor carrier recordkeeping requirements and a motor carrier's
comparison of its own records to the driver's records of duty status.
The OMB's regulations in 5 CFR 1320.3(m) identifying the definitions of
a ``recordkeeping requirement'' explain a report is different than the
retention of a record, notification of the existence of records, and
disclosure of records. The FHWA believes a report is a document
submitted to the FHWA, as was Form BMC 60 up until December 15, 1967.
Item K.2.'s reference to hours of service data, therefore, does not
have any actual effect upon this proposal.
The FHWA believes it should cite RODS violations primarily when an
investigator finds drivers or carriers are concealing excess hours. The
FHWA does not wish to expend scarce enforcement resources on mere
recordkeeping violations that may result from sloppy bookkeeping. The
FHWA believes motor carriers should provide drivers adequate
opportunities for sleep, personal hygiene, and family matters, and
limit the driver's hours on duty to prevent CMV crashes caused by loss
of alertness from working too long or not
[[Page 19463]]
getting enough rest. Accurate recording of hours driven, on duty, and
off duty, of course, is intended to assure that drivers are afforded
the rest periods they need and plays an important role in monitoring
and enforcing compliance with the driving limitations.
Question (8) What impact would a six-month or longer record
retention requirement have on the Federal government, State
governments, and motor carriers?
Question (9) Would we enhance enforcement and prosecution efforts
with the longer retention requirement (e.g., the ability to adequately
enforce the rules, collect evidence for a criminal case, prepare the
case, and successfully prosecute drivers or motor carriers for
deliberately or recklessly violating HOS restrictions)?
Under this proposal, motor carriers could retain their time
records, RODS and supporting documents at a location of their choice.
However, the location would have to be suitable for preserving the
records so that they would not be damaged or lost. In addition, a motor
carrier must be able to produce such records at its principal place of
business within 48 hours of a request by an authorized enforcement
official. This request for documents could be made by telephone, fax,
mail, or by other means. Saturdays, Sundays and holidays would be
excluded from the computation of the 48-hour period of time. This 48-
hour period would provide a reasonable amount of time for documents to
be sent via overnight mail. Furthermore, most business operations with
electronic transfer capabilities could probably produce information in
a shorter period.
The FHWA is proposing that, in the absence of a written and
operational verification system, ALL supporting documents be retained
for the entire retention period. In this proposal, the term ``all
supporting documents'' means all documents that are used to support the
driver's RODS and time record entries for any particular trip. These
documents must be connected to the driver or the vehicle used on the
trip. A variety of documents may be obtained by a driver, or provided
directly to a motor carrier, which could meet the requirements of this
proposed rule. Some trips may result in only two or three supporting
documents while others may result in many more documents. In addition,
supporting documents may be required to be kept for longer periods
based upon other Federal, State, or local laws, rules, or orders (e.g.,
Internal Revenue Service rules). The FHWA is proposing that the
supporting documents must be kept for six months after receipt by the
motor carrier, unless a longer period of time is required by another
authority.
The FHWA believes that all motor carriers obtain many records and
documents in the normal course of business that link the records or
documents to the driver or vehicle and that motor carriers have not
always considered these other records or documents when asked to
produce supporting documents in past compliance reviews. A motor
carrier, however, would now have the duty to ensure that it has an
independent means of verifying the driver's HOS and the accuracy of the
driver's RODS for trips made on behalf of the motor carrier, including
those trips made using leased drivers and/or vehicles.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date shown above will be considered and will be available for
examination in the FHWA Docket at the above address. Comments received
after the comment closing date will be filed in the FHWA Docket
identified above and will be considered to the extent practicable, but
the FHWA may issue a final rule anytime after the close of the comment
period. In addition to late comments, the FHWA will also continue to
file in the docket relevant information that becomes available after
the comment closing date, and interested persons should continue to
examine the docket for new material.
For Internet users, all comments received will be available for
examination at the universal resource locator--http:\\dms.dot.gov--24
hours each day, 365 days each year.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not contain a
significant regulatory action under Executive Order 12866. The FHWA has
estimated that this rulemaking will have an annual economic impact on
the motor carrier industry of less than $100 million. It is a
significant regulation under the Department of Transportation's
regulatory policies and procedures, because this regulation has
substantial public interest. As discussed below, current FHWA
regulations have required the retention of supporting documents since
1982, and responsible motor carriers have collected and retained such
documents both in the ordinary course of business and for purposes of
regulatory compliance. This rule would require motor carriers to
establish systems to verify drivers' RODS or, alternatively, to
describe HOS supporting documents in terms of their effectiveness to
verify drivers' HOS. In addition, this rule explains how supporting
documents are to be collected, where they must be kept, and for how
long. This rulemaking action would not create a serious inconsistency
with any other agency's action or materially alter the budgetary impact
of any entitlements, grants, user fees, or loan programs. Evaluation of
the costs of this proposed rule is fully described below in the
Paperwork Reduction Act section.
Regulatory Flexibility Act
To meet the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), the FHWA has evaluated the effects of this rule on
small entities and has determined that this regulatory action would not
have a significant economic impact on a substantial number of small
entities.
The FHWA estimates there are about 422,000 motor carriers subject
to this rule, 90 percent of which are small entities. For the purposes
of this evaluation, the FHWA considered motor carriers with ten or
fewer drivers to qualify as small entities.
Small entities, as well as large entities, have been prosecuted for
making, or allowing drivers to make, false entries upon RODS since the
late 1930's. Since 1982, small entities have been required to maintain
supporting documents along with their drivers' RODS. As a good business
practice, small entities are believed to be reviewing, inspecting, or
auditing their drivers' RODS and comparing them with the motor
carrier's supporting documents to determine the accuracy of the RODS.
This rule would convert a previously established motor carrier business
practice into an explicit requirement. Small entities would be required
to document the system they have been using to verify the drivers RODS
are accurate. It is believed that most small entities have not
documented the system they are using to verify their drivers' RODS.
This rule would require these systems to be reduced to writing.
After a small entity has documented its self-monitoring system in
writing, the FHWA would not require the entity to retain subsequently
generated or received documents which were not called for by that
entity's self-monitoring system. This would relieve small entities from
a potentially large burden of record collection. Many noncompliant
small entities may perceive an increased burden; however, the FHWA
believes that this increased
[[Page 19464]]
burden will actually result from the entities finally having to comply
with the preexisting supporting document requirement the cost of which
these entities have been avoiding by not complying with the rule until
now.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed by the principles and criteria
contained in Executive Order 12612, and it has been determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a federalism assessment.
The amendments proposed in this document would not preempt any
State law or regulation. These changes, if adopted, would not limit the
policy making discretion of the States. The only additional cost or
burden potentially imposed on the States because of this action would
be the requirement that the States incorporate these proposed changes
into their safety regulations as a condition of the receipt of Federal
grants for safety enforcement. This requirement would not infringe upon
the State's ability to discharge traditional State governmental
functions because interstate commerce, which is the subject of these
regulations, has traditionally been governed in the first instance by
Federal laws. In addition, the FHWA would not require as a condition of
the Motor Carrier Safety Assistance Program (MCSAP) that the States
adopt this proposal for intrastate safety regulations, but would expect
phased in voluntary compatibility.
Public Law 104-4 (Unfunded Mandates Reform Act of 1995)
This action has also been analyzed by the principles and criteria
contained in Public Law 104-4, and it has been determined that this
proposal does not have an unfunded mandate within the meaning of the
Unfunded Mandates Reform Act.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
This proposal contains new collection of information requirements
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520. The new information collection requirements in this proposal are
mandated by section 113 of the Hazardous Materials Transportation
Authorization Act of 1994 (Pub. L. 103-311, 108 Stat. 1676). This
section requires that each written or electronic document that is used
as a supporting document have a description of identification items to
include either the driver's name or vehicle number. This would require
motor carriers to ensure that the driver's name or vehicle number is on
each document used to verify time records. The statute also requires
the supporting document must be kept for at least six months. The FHWA,
since 1982, has required that all supporting documents must be
collected and kept for six months. This collection of documents and
retention period is not a new paperwork burden. This collection of
documents and retention period has been calculated into past paperwork
burden approvals of the Office of Management and Budget (OMB).
New Information Collection Proposal
Collection of Information: Driver's Records of Duty Status.
Under the new OMB regulations found at 5 CFR 1320 and entitled
Controlling Paperwork Burdens on the Public (1995), the FHWA is
required to estimate the burden its regulations impose to generate,
maintain, retain, disclose, or provide information to or for the FHWA
including (i) reviewing instructions; (ii) developing, acquiring,
installing, and utilizing technology and systems for the purpose of
collecting, validating, and verifying information; (iii) developing,
acquiring, installing, and utilizing technology and systems for the
purpose of processing and maintaining information; (iv) developing,
acquiring, installing, and utilizing technology and systems for the
purpose of disclosing and providing information; (v) adjusting the
existing ways to comply with any previously applicable instructions and
requirements; (vi) training personnel to be able to respond to a
collection of information; (vii) searching data sources; (viii)
completing and reviewing the collection of information; and (ix)
transmitting, or otherwise disclosing the information.
This proposed rule would add additional requirements to the OMB-
approved budget for 2125-0016. Each motor carrier would be required to
develop and implement an effective self-monitoring system that audits
supporting documents and compares the supporting documents to RODS.
Motor carriers failing to develop and implement an effective self-
monitoring system would be presumed to be taking the necessary actions
to obtain and retain every supporting document that the carriers or
their drivers generate or receive in the normal course of business that
would accurately support the beginning, intermediate, and ending times
of each driver's daily trips in interstate commerce.
If the carrier fails to have a self-monitoring system, the carriers
would also have to ensure that each document has the driver's name or
vehicle number on it. In addition, the motor carrier would have to
ensure that reasonably reliable references to date, time, and location
on the documents corroborate the date, times, and locations on the
driver's record of duty status.
In the statute, as stated above, the term ``supporting document''
was defined to mean ``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.'' The FHWA believes that every document that is generated
and received by a motor carrier or commercial motor vehicle driver in
the normal course of business is used or retained by the motor carrier
for usual and customary purposes and should not be considered to be a
burden for purposes of 5 CFR 1320.3(b).
The FHWA's Motor Carrier Management Information System (MCMIS)
indicated that in October 1997 there were about 2,216,000 drivers and
422,000 motor carriers operating in interstate commerce. Of the 2.216
million drivers, the FHWA estimates 20 percent (443,200 drivers)
operate within 241 air-kilometer (100 air-mile) radius from their
normal work reporting location, five percent (110,800) operate for
motor carriers who equip CMVs with automatic on-board recording
devices, and the remaining 75 percent use the paper log book system.
In the March 11, 1998 Federal Register (63 FR 11948), the FHWA
opened a docket and requested comments regarding the current collection
of information requirements without respect to this proposal. This
proposal would add collection of information requirements to the March
11 estimate.
The FHWA estimates the public recordkeeping burden for this
proposed collection of information to be 949,500 burden hours for the
first year of implementation and 17,737 for the second and subsequent
years. This would result from the necessary system changes the
regulations would require a
[[Page 19465]]
motor carrier to do with respect to the following six things:
(1) A motor carrier must determine the types of supporting
documents providing the most effective means to compare drivers RODS to
supporting documents.
(2) A motor carrier must prepare a written document, in either an
electronic or paper format, definitively specifying the auditing
system's capabilities.
(3) The written document must identify the supporting documents, by
common name, the motor carrier uses to verify the accuracy of the
driver's hours of service or record of duty status.
(4) The written document must describe how the system is used.
(5) The written document must describe the procedure to be used to
promptly notify a driver who has recorded information inaccurately on a
record of duty status which is required by Sec. 395.8.
(6) The written document must describe the corrective action the
motor carrier would take to improve the driver's compliance with
providing accurate information.
The FHWA assumes most motor carriers, especially the 90 percent of
motor carriers who are small entities, would not incur any reproduction
costs or distribution costs under this proposed rule. Most motor
carriers would have one manual with system description for office use
and would not need to reproduce the document. Motor carriers with ten
or fewer drivers generally do not have multiple terminals and the FHWA
would presume the carrier have only one or two people involved in the
verification of RODS at their principal place of business. For the ten
percent of motor carriers that are large entities, the FHWA estimates
they would make an average of ten copies and distribute them
accordingly.
The FHWA intends that this document would be a working document and
would not be archived. It would be used by personnel on a daily basis
as an important reference and management tool for the self-monitoring
auditing procedure as many responsible motor carriers do now. The FHWA
would also expect motor carriers to review and revise the system on a
periodic, but infrequent, basis as the need arises. The FHWA has
computed the paperwork burden based upon an annual review and revision
schedule.
Since the FHWA has required motor carriers ensure the accuracy of
the RODS and the regulations provide that they are liable to
prosecution for the making of false reports in connection with such
duty activities, the FHWA believes most motor carriers choose to
fulfill their responsibilities for highway safety by auditing and
comparing their RODS and supporting documents to determine whether
drivers have made false reports of their duty activities. Thus, the
FHWA believes the time necessary to audit and compare RODS and
supporting documents does not need to be included in the burden
estimate. The FHWA's time estimate for identifying supporting documents
and preparing a written system description would be 3 additional hours
per carrier per year.
The FHWA calculates motor carriers must develop a policy in the
first year this proposed rule would be final. The FHWA calculates motor
carriers would spend an average of 3 hours developing and writing out
the policy. The FHWA calculates motor carriers would consume an
estimated 949,500 burden hours developing its policies.
The FHWA calculates an estimated 17,737 burden hours for the second
and third years. The FHWA estimates there are new carriers equaling one
percent of the total number of motor carriers beginning business each
year who must develop a policy and the other motor carriers must review
their policies. The FHWA estimates 50 percent of the reviewed policies
would have to be amended.
Organizations and individuals desiring to submit comments only on
the information collection requirements must direct them to the Office
of Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, D.C. 20503; Attention: Desk Officer for
Federal Highway Administration.
Please send a copy of any comments you send to the OMB to the FHWA,
too.
The FHWA considers comments by the public on this proposed
collection of information in the following four ways:
(1) Evaluating whether the proposed collection of information is
necessary for the proper performance of the functions of the FHWA,
including whether the information will have a practical use.
(2) Evaluating the accuracy of the FHWA's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used.
(3) Enhancing the quality, usefulness, and clarity of the
information to be collected.
(4) Minimizing the burden of collection of information on those who
are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses.
OMB must make a decision concerning the collection of information
contained in these proposed regulations between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment made directly to OMB will have its full effect of OMB receives
it within 30 days of publication. This does not affect the deadline for
the public to comment to the FHWA on the proposed regulations.
Invitation to Comment
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations to the FHWA docket
found at the top of this document.
What If the FHWA Had Implemented the Statute As Written
The FHWA has calculated the burden hours for the statute. The FHWA
has named 45 possible documents as examples in the definition of
``supporting documents'' proposed in this NPRM. The FHWA estimated one
half of these 45 would generally be available each trip for most runs.
Using 23 of the 45 documents and based upon the statute, the motor
carrier would have had to audit each one as the carrier obtained or
received the document for the following five minimum items.
1. Date.
2. Time.
3. Location.
4. Driver's name.
5. Vehicle's number.
The time to compare the documents to the RODS, filing, and storing
the 23 records would be more than is currently expected and more than
is proposed in this NPRM. The FHWA believes the increased burdens would
be unusual and uncustomary and thus believe a burden would be imposed
by the statute. Calculating these costs into the estimate, the FHWA
believes the burden imposed by the statute would be at least
219,095,423 hours.
The FHWA has calculated the second year total operating and
maintenance financial burden for maintaining the records for the
current six-month retention period and also for a four-month and one-
year retention period. The FHWA's estimate of the total costs before
subtracting the costs of the wages paid to recordkeepers would be as
follows for RODS and supporting documents.
[[Page 19466]]
Second Year Total Operating and Maintenance Costs
4 month retention period.............................. $1,112,614,000
6 month retention period.............................. 1,114,201,000
One year retention period............................. 1,122,611,000
National Environmental Policy Act
The agency has analyzed this action for the purposes of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action will not affect the quality of the
environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 390
Highway safety, Highways and roads, Motor carriers, Motor vehicle
identification and marking, Reporting and recordkeeping requirements.
49 CFR Part 395
Global positioning systems, Highway safety, Highways and roads,
Intelligent Transportation Systems, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements.
Issued: April 10, 1998.
Gloria J. Jeff,
Deputy Administrator, Federal Highway Administration.
In consideration of the foregoing, the FHWA is proposing to amend
Title 49, CFR, chapter III, parts 390 and 395 as set forth below:
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
1. The authority citation for part 390 is revised to read as
follows:
Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and
31504; and 49 CFR 1.48.
Sec. 390.31 [Amended]
2. Section 390.31(d) is revised to read as follows:
Sec. 390.31 Copies of records or documents.
* * * * *
(d) Exception. All records may be maintained through the use of
automated, electronic, or laser technology systems provided the motor
carrier can produce, within 48 hours of a demand, a printed copy of the
required data; provided that alternate means for signature verification
are available.
PART 395--HOURS OF SERVICE OF DRIVERS
3. The authority citation for part 395 is revised to read as
follows:
Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec.
113, Pub. L. 103-311, 108 Stat. 1676; and 49 CFR 1.48.
4. Section 395.2 is amended by adding the following definition,
alphabetically, to read as follows:
Sec. 395.2 Definitions.
* * * * *
Supporting document means 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. For the purposes of this definition,
any document means any record or document, either written or
electronic, that is available individually or in combination with other
records or documents, to verify the accuracy of a driver's record of
duty status because of its potential to provide a reasonably accurate
reference to dates, times and locations. Examples of supporting
documents are: Accident/incident reports, bills of lading, border
crossing reports, carrier pros (waybills), cash advance receipts,
credit card receipts and statements, customs declarations, delivery
receipts, dispatch/assignment records, driver reports (facsimile or
call-in logs), expense vouchers, freight bills, fuel billing
statements, fuel receipts, gate receipts, global positioning reports,
inspection reports, invoices, interchange reports, International
Registration Program receipts, International Fuel Tax Agreement
receipts, lessor settlement sheets, lodging receipts, lumper receipts,
on-board computer reports, over/short and damage reports, overweight/
oversize reports and citations, port of entry receipts, telephone
billing statements, toll receipts, traffic citations, transponder
reports, trip permits, trip reports, waybills, and weight/scale
tickets.
* * * * *
5. Section 395.8 is amended by revising paragraph (k) to read as
follows:
Sec. 395.8 Driver's record of duty status.
* * * * *
(k) Retention of driver's record of duty status. (1) Driver's
records of duty status for each calendar month may be retained at the
driver's home terminal or other regular reporting location until the
20th day of the succeeding calendar month. Such records shall then be
forwarded to the carrier's principal place of business, or such
alternate location as the motor carrier designates for record retention
purposes, where they shall be retained with all supporting documents
for six months from the original date of receipt. Within 48 hours
(Saturdays, Sundays and official holidays excluded) after a Federal,
State, or local enforcement official has made an authorized request
(for inspection and verification of the hours-of-service requirements
and the accuracy of the driver's records of duty status), a motor
carrier shall make available all records of duty status and supporting
documents at the motor carrier's principal place of business.
(2) The driver shall retain a copy of each record of duty status
for the previous 7 consecutive days that shall be in his or her
possession and available for inspection while on duty.
6. Section 395.10 is added to read as follows:
Sec. 395.10 Verification and record retention.
(a) Every motor carrier must have a self-monitoring auditing
system, adequately described in writing, that can be used effectively
to verify the driver's hours of service and the accuracy of the
information contained on the driver's record of duty status. The
auditing system must be capable of reproduction and an explanation of
the system must be available in written form for inspection by
authorized Federal, State or local enforcement personnel. The
explanation of the system must include:
(1) Identification of the supporting documents, by common name, the
motor carrier uses to verify the accuracy of the driver's hours of
service or record of duty status;
(2) A description of how the system is used; and
(3) The procedure used to promptly notify a driver who has recorded
information inaccurately on a record of duty status which is required
by Sec. 395.8 of this part; and
(4) The corrective action the motor carrier takes or has taken to
improve the driver's compliance with providing accurate information.
[[Page 19467]]
(b)(1) The supporting document auditing system's procedural manual
must be available to all motor carrier personnel with responsibility to
control or audit compliance with this part and must be made available
to the FHWA and other appropriate enforcement agencies for inspection
upon authorized request or demand. The FHWA and other appropriate
enforcement agencies will only request inspection of the written
manuals at motor carriers' principal places of business or other
terminal locations where records required by this part are maintained.
The manual is not required to be produced at roadside driver-vehicle
inspection locations.
(2) If the audit system can be demonstrated to be effective to
verify the actual hours of service performed and the accuracy of the
driver's record of duty status, the motor carrier is not required to
maintain any additional supporting documents, and, in the absence of
reasonably reliable information supported by documentary evidence to
contradict the system found to be effective, no demand will be made for
additional supporting documents the motor carrier may maintain for
other purposes.
(c)(1) Each motor carrier who fails to have a supporting document
auditing system in accordance with paragraphs (a) and (b) of this
section or fails to provide the FHWA or other enforcement officers with
a written explanation of the supporting document auditing system
(manual), will be responsible for requiring every driver to obtain all
supporting documents from the beginning of every trip to the end of
every trip, including intermediate points during the trip. All
supporting documents must be made available for inspection at the motor
carrier's location and the FHWA or other enforcement officers will use
a reasonably sufficient number, in the appropriate enforcement agency's
discretion, to verify the accuracy of records of duty status.
(2) Failure by a motor carrier to have either a supporting document
auditing system, required by paragraphs (a) and (b) of this section,
or, in the absence of the system, to require the driver to obtain and
forward to the motor carrier every supporting document that is provided
to the driver during a trip, as required by this section, may result in
monetary penalties or a compliance order for failure to comply with the
supporting document auditing system requirement. A failure by the motor
carrier to adequately control the drivers' falsification of their
records of duty status may also result in a compliance order. Failure
to comply with such order may subject a motor carrier to civil or
criminal penalties under 49 U.S.C. 521.
(d) In the absence of a verifiable and effective record of duty
status auditing system, every motor carrier must require every driver
who is required to prepare records of duty status to retain and every
driver must retain all supporting documents containing reasonably
reliable references to date, time, or location, which may come into the
possession of the driver in the ordinary course of the driving
operation. The driver must provide the supporting documents and the
records of duty status:
(1) To any duly authorized enforcement official of Federal, State
or local government upon request or demand; and
(2) To the motor carrier at the time the corresponding record of
duty status is required to be submitted.
(e) The driver must identify the supporting document required under
paragraph (d) of this section by adding his or her name, and the time,
date, location and vehicle number, if those items do not already appear
on the document. The driver's signature certifies that all entries
required by this section made by the driver are true and correct.
(f) The driver must retain a copy of each supporting document with
the record of duty status to which it relates for the previous seven
consecutive days in his or her possession and available for inspection
while on duty. Exception. The requirements of this paragraph do not
apply if the driver has submitted the original record of duty status
with the supporting documents annexed to the motor carrier following
Sec. 395.8(k)(1) of this part.
(g) The motor carrier must identify each supporting document
received from the driver under paragraph (d) of this section, or from
any other source including self-generated documents, by noting on the
document the following information, if the information does not already
appear on the document:
(1) The time, date or location of the event that produced the
document;
(2) The driver's name; and
(3) The vehicle number (i.e., truck, tractor, or coach).
(h) Retention of supporting documents. Supporting documents for
each calendar month may be retained at the driver's home terminal or
other regular work reporting location until the 20th day of the
succeeding calendar month. Such documents must then be forwarded to the
carrier's principal place of business, or any location the motor
carrier chooses, where they must be retained with all records of duty
status for six months from the original date of receipt. Within 48
hours (Saturdays, Sundays and official holidays excluded) after a
Federal, State, or local enforcement official has made a valid request
or demand (for inspection and verification of the hours of service
requirements and the accuracy of the driver's records of duty status),
a motor carrier must make available all records of duty status, time
records in cases of 100-air mile radius exception, and supporting
documents at the motor carrier's principal place of business.
(i) The FHWA may use any evidence whether or not in the motor
carrier's possession, to determine compliance with hours of service
requirements and verify the accuracy of the drivers records of duty
status and the motor carrier's supporting document auditing system. If
the FHWA discovers that the motor carrier's system is ineffective,
misrepresented, or abused, the FHWA may require the motor carrier to
modify its system or may require the motor carrier to collect and
maintain all supporting documents as required by paragraphs (d) through
(h) of this section. Civil or criminal penalties may also apply if the
motor carrier or driver are determined to have misrepresented or abused
the system.
[Approved by the Office of Management and Budget under control
number __________]
[FR Doc. 98-10252 Filed 4-17-98; 8:45 am]
BILLING CODE 4910-22-P
