Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 63997

1Public Law 74–255, 49 Stat. 543, August 9, 

1935.

2Public Law 98–554, Title II, 98 Stat. 2832, 

October 30, 1984.

3See the section below headed Motor Carrier 

Responsibilities for a discussion of the Federal 

appellate court decisions and the section headed 

Collection and Retention of Supporting Documents 

for a discussion of the administrative decisions.

4See the section headed Regulatory Impact 

Analysis for the discussion of how the agency 

estimated the $14.2 million costs.

By the Commission. 

Bryant L. VanBrakle, 

Secretary.

[FR Doc. 04–24467 Filed 11–2–04; 8:45 am] 

BILLING CODE 6730–01–C

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 379, 381, 385, 390, and 

395

[Docket No. FMCSA–1998–3706] 

RIN 2126–AA76

Hours of Service of Drivers; 

Supporting Documents

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT.

ACTION: Supplemental notice of 

proposed rulemaking (SNPRM); request 

for comments. 

SUMMARY: The FMCSA intends to clarify 

that each motor carrier has the duty 

under the current regulations to: Verify 

the accuracy of drivers’ hours of service 

(HOS) and records of duty status 

(RODS), and this obligation extends to 

the HOS and RODS of independent 

drivers or owner-operators while 

driving for the motor carrier; ensure 

each driver collects and submits to the 

employing motor carrier all supporting 

documents with the RODS; and ensure 

all motor carriers know of the 

requirement to maintain supporting 

documents in a method that allows 

cross reference to the RODS. This notice 

also proposes a supporting document 

based self-monitoring system that would 

be the carrier’s primary method for 

ensuring compliance with the HOS 

regulations. In recognition of developing 

technologies, the FMCSA proposes to 

permit the use of electronic documents 

as a supplement to, and, in certain 

circumstances, in lieu of, paper 

supporting documents. The intended 

effect of this proposal is to provide 

clearer and more detailed definitions of 

‘‘supporting documents’’, ‘‘employee’’, 

‘‘driver’’, and a requirement for each 

motor carrier to use a self-monitoring 

system to verify accuracy of HOS and 

RODS.

DATES: We must receive your comments 

by January 3, 2005.

ADDRESSES: You may submit comments 

identified by DOT DMS Docket Number 

FMCSA–1998–3706 by any of the 

following methods: 

• Web site: http://dms.dot.gov.

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to http://

dms.dot.gov, including any personal 

information provided. Please see the 

Privacy Act heading for further 

information.

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

dms.dot.gov at any time or to Room PL–

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal Holidays. 

Privacy Act: Anyone is able to search 

the electronic form of all 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 DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (65 FR 

19477) or you may visit http://

dms.dot.gov.

Comments received after the comment 

closing date will be included in the 

docket and we will consider late 

comments to the extent practicable. The 

FMCSA may, however, issue a final rule 

at any time after the close of the 

comment period.

FOR FURTHER INFORMATION CONTACT: Mr. 

Jerry Fulnecky, Office of Enforcement 

and Compliance, (202) 366–4553, 

FMCSA, Department of Transportation, 

400 Seventh Street, SW., Washington, 

DC 20590.

SUPPLEMENTARY INFORMATION: 

Legal Basis for the Rulemaking 

This rulemaking is required by, and 

based on, section 113 (Driver’s Record 

of Duty Status) of the Hazardous 

Materials Transportation Authorization 

Act of 1994, Pub. L. 103–311, August 

26, 1994, 108 Stat. 1673, at 1676 

(hereinafter the HMTAA). Section 113, 

however, assumes the existence of 

FMCSA’s more general authority to 

regulate the HOS of commercial motor 

vehicle (CMV) drivers and related 

matters. That authority is conferred by 

the Motor Carrier Act of 1935,1 now 

codified at 49 U.S.C. 31502(b), and the 

Motor Carrier Safety Act of 1984,2 49 

U.S.C. 31136(a).

Section 113(a) requires FMCSA to 

amend 49 CFR part 395 to improve both 

driver and carrier compliance with the 

HOS regulations and the effectiveness 

and efficiency of HOS enforcement, at a 

cost reasonable to the motor carrier 

industry. As described in detail later in 

the preamble, this proposal would close 

the loopholes that made it possible for 

some operators to obscure their 

violations of the HOS rules by failing to 

collect, retain, or properly to index, 

documents that could be used to check 

the accuracy of drivers’ RODS. Drivers—

both employees and owner-operators—

would be required to collect all 

documents that could be used to 

evaluate RODS data, put their name or 

the vehicle number on those documents 

and forward them to the employing 

motor carrier. The carrier would have to 

maintain these records and collect 

related documents from other sources 

that could be used to check each 

driver’s RODS. All of these records 

would have to be available to special 

agents in the same manner as RODS 

themselves. The enforceability of the 

HOS regulations would be substantially 

improved. As for the cost of the 

proposal, there would be none if motor 

carriers and drivers were in full 

compliance with the current supporting 

documents regulation, as interpreted by 

a series of administrative and Federal 

appellate court decisions.3 Because that 

is not the case, the costs will be borne 

by motor carriers not now collecting, 

retaining, and/or indexing supporting 

documents. FMCSA estimates the 

annual cost of the rule would be $14.2 

million,4 a modest sum given the very 

large carrier and driver population that 

would be covered by it. The 

63998 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

5See the section headed Section-By-Section 

Analysis for the discussion about proposed 

paragraphs § 395.10(e) and (f).

6Public Law 105–178, 112 Stat. 107, at 401, June 

9, 1998.

requirements of Section 113(a) would 

therefore be satisfied.

More specifically, section 113(b)(1) 

provides that the new rules must require 

written or electronic documents used by 

a motor carrier in connection with a 

specific trip to include at least the 

driver’s name or the vehicle’s number, 

thus ensuring that the document can be 

tied to a particular driver and used as 

a supporting document to verify the 

accuracy of his/her RODS. This 

requirement would be met by proposed 

§ 395.10(e) and (f).5 The former would 

require both the driver and the motor 

carrier to identify each supporting 

document and to add the driver’s name, 

the date and the vehicle number, if that 

data does not already appear on the 

document. The latter would require the 

motor carrier to identify supporting 

documents, including those received 

from sources other than the driver, and 

to maintain them in a manner that 

permits them to be matched to a 

particular driver’s RODS on a particular 

day.

Section 113(b)(2) requires a regulatory 

provision specifying the number and 

kind of supporting documents that must 

be retained by a motor carrier. The new 

regulatory definition of ‘‘supporting 

document’’ in § 395.2 would cover any 

document generated or received by a 

carrier or driver during the normal 

course of business that could be used to 

verify a driver’s RODS. We are 

proposing and requesting comments on 

a long, but not exclusive, list of 

examples. 

Section 113(b)(3) requires a regulatory 

provision specifying how long a motor 

carrier must maintain HOS records; that 

period must be at least 6 months from 

the date of receipt. This SNPRM would 

require carriers to maintain RODS and 

all associated supporting documents for 

6 months from the date of receipt 

(§ 395.8(k)(1)). 

Section 113(b)(4) requires a provision 

authorizing motor carriers (individually 

or in groups), on a case-by-case basis, to 

use ‘‘self-compliance systems’’ that 

ensure driver compliance with the HOS 

rules and allow enforcement officers to 

audit those systems to validate 

compliance. As explained below in the 

section entitled ‘‘Supplemental 

Proposal,’’ FMCSA believes the 

exemptions authorized in 1998 by 

section 4007 of the Transportation 

Equity Act for the 21st Century 6 (TEA–

21)—now codified at 49 U.S.C. 31315(b) 

and 31136(e) and 49 CFR part 381, 

subpart C—dovetail perfectly with the 

‘‘self-compliance systems’’ mandated 

here. The agency will therefore entertain 

requests for HOS self-compliance 

systems that meet the statutory standard 

for an exemption, i.e., maintenance of 

the same level of safety under the 

exemption as would be achieved by 

complying with the Federal Motor 

Carrier Safety Regulations (FMCSRs).

Section 113(b)(5) requires a regulatory 

provision allowing case-by-case waivers 

of the RODS requirements of part 395 

for motor carriers (either individually or 

in groups) when sufficient supporting 

documentation is provided to 

enforcement personnel by an intelligent 

vehicle-highway system, as defined in 

section 6059 of the Intelligent VehicleHighway Systems Act of 1991. FMCSA 

has determined that, contrary to 

Congressional expectations, Intelligent 

Transportation (IT) systems have not yet 

advanced to the point where electronic 

monitoring of supporting documents by 

enforcement officers is a feasible 

substitute for RODS. The motor carrier 

industry has been quite reluctant to 

integrate its data systems with those of 

the enforcement community in a way 

that would allow real-time access to 

supporting documents. FMCSA is 

therefore unable to carry out this 

mandate quite the way Congress 

intended. Nonetheless, the agency will 

entertain exemption requests under part 

381 if motor carriers believe they can 

demonstrate compliance with the HOS 

requirement without the use of RODS. 

Section 113(c) defines ‘‘supporting 

document’’ for purposes of that section. 

The agency’s new definition of the term 

in § 395.2 would meet the statutory 

requirement. 

With one exception, all of the 

requirements of section 113 would 

therefore be met. That exception reflects 

the agency’s inability to carry out 

section 113(b)(5), given the current state 

of IT systems. 

As indicated above, section 113 

assumes the existence of FMCSA’s 

general rulemaking authority. The 

Motor Carrier Act of 1935 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’’ (49 U.S.C. 

31502(b)). This SNPRM is based on the 

agency’s authority to regulate 

‘‘maximum hours of service of 

employees.’’ Although the proposal 

would not change the substantive HOS 

regulations, it would make them easier 

to enforce and thus more effective, an 

objective implied by the grant of 

authority. 

The Motor Carrier Safety Act of 1984 

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; 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)). 

This SNPRM is based primarily on the 

mandates to ensure that CMVs are 

‘‘operated safely’’ and that the 

responsibilities imposed on drivers ‘‘do 

not impair their ability to operate the 

vehicles safely’’ (49 U.S.C. 31136(a)(1) 

and (2), respectively). Enhanced 

compliance with the HOS regulations 

will help to improve the operational 

safety of CMVs. This proposal would 

also make it easier for FMCSA to 

document, penalize, and deter cases 

where motor carriers permit, urge, or 

require drivers to exceed the HOS 

limits, thereby impairing their ability to 

drive safely. 

Background on Hours of Service, 

RODS, and the Verification of RODS 

The FMCSA requires that the number 

of hours a driver may operate a CMV be 

limited on a daily and weekly basis. 

These HOS requirements, found in part 

395 of Title 49 of the Code of Federal 

Regulations (49 CFR part 395), are 

intended to provide drivers with 

opportunities to obtain sleep, and 

thereby reduce the risk of drivers 

operating CMVs while drowsy, tired, or 

fatigued. There is evidence that the 

majority of CMV crashes occur as a 

result of human error, that human error 

is often the result of inattention or 

diminished vigilance, and that 

inattention or diminished vigilance can 

often be the result of fatigue. Fatigue 

relates often to poor sleep quality and/

or quantity, and poor sleep quality or 

quantity relates often to working 

schedules of CMV drivers. To facilitate 

enforcement of the HOS requirements, 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 63999

the FMCSA requires that motor carriers 

collect and maintain paper RODS (daily 

logs) prepared by the drivers. Motor 

carriers have the option of requiring that 

their drivers use automatic on-board 

recording devices in lieu of paper daily 

logs. The driver and/or the motor carrier 

are subject to administrative civil 

penalties for failure to make or preserve 

RODS, or for making any false report in 

connection with RODS. They are also 

subject to criminal penalties for such 

violations.

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 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 (ICC) explained 

the original two purposes of the RODS 

as follows:

‘‘[to allow for] 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 FMCSA is authorized, 

by 49 U.S.C. 504(c), to inspect and copy 

any record of a carrier, lessor, or 

association and to inspect the 

equipment of a carrier, or lessor, or 

other person controlling, controlled by, 

or under common control with a carrier, 

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 

FMCSA regulations or orders. 

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 

FMCSA 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 before being dispatched. 

This provides the motor carrier with a 

valuable management tool to efficiently 

dispatch trips within the HOS 

limitations. 

The FMCSA has learned from 

experience that in order for the motor 

carriers to ensure that drivers are alert 

and not fatigued, motor carriers must 

maintain self-monitoring systems that 

compare RODS to supporting 

documents. The Federal Highway 

Administration (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, 

required 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. 

In general, motor carriers use many 

different types of business records to 

document various business transactions, 

such as bills of lading, carrier pro forma 

invoices or waybills, credit and debit 

card receipts, customs declarations, 

delivery receipts, dispatch and 

assignment records, expense vouchers, 

freight bills, fuel billing statements, toll 

receipts, weight scale tickets, etc. These 

records, among others, are generated by 

motor carriers, drivers, and independent 

contractors (including independent 

owner-operators) for their own business 

purposes, or they are received from 

third parties which include consignors, 

consignees, vendors, toll highway 

authorities and operators, and other 

business, regulatory, or law enforcement 

agencies for a variety of 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 drivers’ RODS. 

Many motor carriers regularly maintain 

these records for their own internal 

management purposes. This practice, 

over the years, has become a standard 

motor carrier operating procedure 

among safe motor carriers. While a 

paper based supporting documents 

system continues as the primary method 

for testing the accuracy of drivers’

records of duty status, there is a growing 

use of electronic systems and records by 

motor carriers that add to a motor 

carrier’s ability to verify drivers’

compliance with HOS rules. However, 

the FMCSA has encountered situations 

where the carrier often fails to maintain 

these electronic records for the 6-month 

period currently required for paper 

supporting documents. 

The FHWA published regulatory 

guidance in the Federal Register on 

November 17, 1993 (58 FR 60734, 

60761), and published revised guidance 

on April 4, 1997 (62 FR 16370, 16425), 

that provided examples of the types of 

supporting documents that should be 

retained. Both of these publications 

outlined our position that supporting 

documents are the records of the motor 

carrier maintained in the ordinary 

course of business that are used or could 

have been used by the motor carrier to 

verify the information recorded on a 

driver’s record of duty status, such as 

the examples provided above. An 

extensive, but not a complete, list of the 

various types of records considered to 

be supporting documents is provided in 

this guidance, and it is available on the 

FMCSA Web site at http://

www.fmcsa.dot.gov/rulesregs/fmcsr/

regs/395reg.htm. (Scroll to Question 10 

in the guidance for § 395.8.) 

Motor Carrier Responsibilities 

Regardless of the type of supporting 

document system used by the motor 

carrier, the motor carrier’s responsibility 

for compliance with the FMCSRs 

remains clear. It is well settled that 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 Federal 

Highway Administration) in 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 In re 

R.W. Bozel Transfers, Inc., 58 FR 16918 

(March 31, 1993) (Final Order August 6, 

1992); and more recently in In the 

Matter of Commodity Carriers, Inc.,

Docket No. FHWA–97–2393 (Order 

Appointing Administrative Law Judge 

March 25, 1997) (adopted by the 

Associate Administrator on Review, 

May 27, 1999). Likewise, each motor 

carrier must have a system in place that 

allows it to effectively monitor 

compliance with the FMCSRs, 

especially those aimed at driver fatigue, 

a major safety concern (See In re 

National Retail Transportation, Inc.,

Docket No. FHWA–96–6390, document 

4 (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 

64000 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

documents must be maintained in a 

common sense manner so that FMCSA 

special agents can ‘‘verify dates, times, 

and locations of drivers recorded on the 

RODS.’’ The United States Court of 

Appeals for the District of Columbia 

Circuit, in Darrell Andrews Trucking, 

Inc. v. Federal Motor Carrier Safety 

Administration, 296 F.3d 1120 (D.C. Cir. 

2002), approved FMCSA’s position that 

the term ‘‘supporting document’’

encompasses any document that could 

be used to support the RODS. The D.C. 

Circuit, in its decision, agreed with the 

Sixth Circuit that the FMCSA 

requirement for supporting documents 

to be maintained in a fashion that 

permits the matching of those records to 

the original drivers’ RODS is a 

reasonable interpretation of 49 CFR 

395.8(k)(1). In fact, the D.C. Circuit 

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. 

Previous NPRMs on Hours of Service 

Supporting Documents 

1. 1998 Notice of Proposed Rulemaking 

On April 20, 1998, in response to 

section 113 of the HMTAA, the FHWA 

published an NPRM (63 FR 19457, RIN 

2125–AD52, Docket No. FHWA–98–

3706) requesting comments on a 

proposed definition of ‘‘supporting 

documents’’ for the HOS regulations. 

The FHWA proposed that motor carriers 

develop and maintain effective auditing 

systems that would not have required 

the retention of supporting documents 

to monitor the accuracy of the drivers’

RODS. The NPRM proposed that, if a 

motor carrier fails to have such a 

system, the motor carrier would be 

required to retain various types of 

business documents. The use of 

electronic recordkeeping methods was 

also proposed as a preferred alternative 

to paper records. 

Comments to the April 20, 1998 NPRM 

We received 41 comments in response 

to the 1998 Supporting Documents 

NPRM. Two organizations each 

submitted two comments that were 

counted as separate comments. The 

respondents represented three advocacy 

groups, two consultants to the industry, 

one labor union, 17 motor carriers, 13 

trade associations including one 

motorcoach association, two on-board 

recorder manufacturers, and one State 

government agency. 

Three comments fully supported the 

NPRM. They were from Bestway 

Express, Inc., Insurance Institute for 

Highway Safety (IIHS), and the National 

Propane Gas Association (NPGA). 

Bestway Express had two suggestions, 

in addition to its approval of the 

FMCSA’s efforts. One was to develop:

a process that allows self-assessment in 

program design for safety management. As an 

industry, and partner with Government, we 

need these kinds of initiatives as we go 

forward with performance-based standards. 

The approach that you have developed where 

a carrier can design a self-monitoring system, 

get pre-determined FMCSA assessment of 

that program, and then can implement their 

program is commendable.

Bestway’s other suggestion was that, 

‘‘A self-monitoring system, if SafeStat is 

the performance standards, is the only 

model to use as a long-range 

implementation plan.’’

The NPGA considered the proposal ‘‘a 

significant step in implementation of 

electronic document technology into the 

operations of motor carriers generally.’’

In supporting the proposal, the IIHS 

noted:

Although the proposal is less stringent 

than authorized by the Act [HMTAA], it is an 

important first step in improving truck driver 

and motor carrier compliance with HOS 

rules. Any weakening of the proposed rule 

would contravene the intent of the Act 

[HMTAA].

Twenty-three (23) of the comments 

expressed their belief that the 

supporting documents NPRM should 

have been deferred until it could be 

considered in the context of the overall 

HOS rules. They believed the current 

HOS rule needs repair before the 

supporting documents rule is amended. 

The National Association of Small 

Trucking Companies (NASTC) 

commented that carriers generally 

recognize their obligation ‘‘not only to 

‘trust but to verify’ the [drivers’] logs as 

submitted.’’ It noted that the proposal 

squarely aimed at ‘‘placing the burden 

on the carrier to catch drivers who make 

fraudulent log entries,’’ and that ‘‘the 

DOT cites over 30 different extrinsic 

documents which typically cross a 

trucking company’s desk and suggests 

that some, part, or all of these 

documents can be used as an external 

check to stop log falsifications.’’

Many commenters believed the 

proposal would impose significant 

burdens upon industry by requiring 

records to be kept that are not now 

required. Many believed few if any 

documents are produced for each 

beginning, intermediate, and end of a 

trip and that those documents that are 

produced do not have the information 

required by the statute, such as driver’s 

name and the vehicle number.

Yellow Corporation’s (Yellow) 

comments are indicative of LTL carriers 

generally. Yellow operates between 

fixed terminals, and manages HOS 

compliance through the payroll system, 

which, Yellow notes, is also used by 

investigative personnel during 

compliance reviews. Like many others, 

Yellow sees the proposal as expanding 

the burden of collecting many 

unnecessary records, when its present 

systems are adequate to do the job. 

A few commenters were very 

concerned that the FMCSA had 

misinterpreted and misapplied the 

definition of ‘‘burden’’ in 5 CFR 

1320.3(b)(2). They believed that 

collecting many receipts and keeping 

them for four months as proposed in the 

1998 NPRM is not usual and customary 

in the motor carrier industry. 

The NASTC also believed that the 

supporting documents rule should 

provide examples of acceptable carrier 

programs that would meet the NPRM’s 

requirements. The writer of the 

comments described an intricate system 

of log verification employed by ‘‘one of 

our larger, more sophisticated 

members.’’

Their dispatcher only dispatches drivers 

on loads which their hours of service show 

they can deliver legally. This carrier receives 

its driver’s trip package containing the driver 

prepared record of duty status, toll receipts, 

bills of lading, and many of the other 30+ 

items named in the proposed regulation. All 

of the driver logs are reviewed for 

completeness and compliance with the 10, 

15, and 70 hour rules. Approximately one 

third of the logs, selected randomly, are 

compared to supporting documents to 

determine if there has been any falsification. 

All log violations are noted and the offending 

drivers are notified by letter. Repeated 

violations result in warnings, out of service 

letters and ultimately termination.

He notes, however, that although the 

system could be reduced to writing for 

auditing purposes, the special agent 

conducting a compliance review would 

not be able to verify all the checking 

done by the record clerk, because the 

external documents used for that 

purpose are not retained centrally, or 

maybe not at all. Without reasonable 

guidelines, perhaps in the form of 

models or examples of acceptable 

systems or programs, the motor carrier 

can never know whether its system 

would pass muster. He also observed 

that the proposal fails to deal with 

distinctions between system design and 

system implementation, so that a carrier 

with an effectively designed system may 

be required to start over from scratch 

because a special agent found 

shortcomings in the way it was 

implemented. 

In addition, a few comments provided 

specific responses to the nine questions 

the agency asked primarily related to 

internal self-compliance systems. The 

nine questions asked in the 1998 NPRM 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64001

are reprinted below, along with the 

paraphrased comments of several 

commenters. 

Question (1). What types of selfmonitoring systems should be 

considered in addition to the type 

proposed in this document? 

Yellow contended that any software 

application that verified RODS through 

comparison with internal documents 

should be acceptable, and that the 

FMCSA should not limit a carrier’s 

choice of a self-monitoring system to 

any specific application(s). Alabama 

Power agreed with Yellow so long as the 

self-monitoring scheme would provide a 

reasonable assurance of compliance. 

ROCOR Transportation was satisfied 

with the present system with the 

possible addition of the existing 

interpretive guidance. 

Question (2). Whether and what 

conditions should be imposed upon 

motor carriers (such as accident or out 

of service prevention performance 

history) before the FMCSA would 

authorize a different self-monitoring 

system as an alternative to compliance 

with this proposed rule? 

Yellow Corporation stated: ‘‘The only 

conditions that should be considered in 

determining if the motor carrier must 

change its self monitoring system 

should be those directly related to 

errors/violations in the RODS or 

repeated violations of HOS.’’ Alabama 

Power, on the other hand, believed the 

FMCSA should consider relative 

accident and out-of-service rates. 

Accident and out-of-service rates should 

be established for determining when 

additional monitoring is necessary. 

ROCOR Transportation was satisfied 

with the current system. 

Question (3). Whether motor carriers 

seeking additional authorization should 

have some established safety record 

with the FMCSA or other State or local 

enforcement agencies? 

This question apparently caused some 

confusion as Yellow Corporation 

answered as though the agency were 

asking about expanded operating 

authority, and believed the FMCSA 

should conduct a compliance audit of 

any carrier seeking to expand its 

operation by more than 20 percent. 

Alabama Power believed that carriers or 

industries with established good safety 

records should be exempted from all or 

part of the HOS regulations.

Question (4). What must happen 

before the FMCSA should disallow the 

use of a self-monitoring system or an 

alternative system? 

As noted above, Yellow believed that 

the system should not be blamed for 

failure of individuals to comply, and 

that the FMCSA should establish 

standards for any such system. Alabama 

Power leaned toward a performance 

test, which demonstrates the value of 

the system by performance on the 

highway, i.e., high accident and out-ofservice rates. ROCOR Transportation 

believed the FMCSA special agent ought 

to be able to determine whether a carrier 

is effectively using a system, and make 

recommendations accordingly. 

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? 

Alabama Power believed most 

advanced systems are cost prohibitive, 

especially for utility companies where 

driving is a very minor part of their 

business. ROCOR Transportation 

acknowledged the industry has started 

using satellite technology. 

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? 

Yellow’s position was that the 

standards must recognize that 

differences in operations and practices 

will mean differences in monitoring 

programs. Therefore, variances must be 

considered on a case-by-case basis. 

Alabama Power advocates a more open 

system that suits each carrier’s needs. 

Question (7). Under what 

circumstances should the use of such 

alternative 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. 

Yellow preferred criteria that would 

accurately capture the hours and be 

verifiable to a particular driver through 

a failsafe means, e.g., a code or 

electronic signature. However, the 

company believed ‘‘(o)nly when all 

parties requiring HOS information have 

the most advanced technology can 

alternative systems fully replace the 

current requirement.’’ Alabama Power 

would permit any normal timekeeping 

system when ‘‘the nature of a carrier’s 

or industry’s business limits the 

exposure to public safety,’’ and the 

carrier or industry has an adequate 

commercial motor vehicle safety record. 

Question (8). What impact would a 

six-month or longer record retention 

requirement have on the Federal 

government, State governments, and 

motor carriers? 

Yellow was firmly opposed to any 

expansion of the present six-month 

retention requirement, which, it 

believed, is more than adequate for 

purposes of evaluating compliance. 

Assuming the retention requirement 

includes all supporting records, the 

company contends a carrier’s 

administrative costs would increase 

significantly. Alabama Power agreed 

that, as written, the proposal would 

significantly increase the administrative 

burden of carriers. ROCOR 

Transportation notes the irony of 

suggesting increased burdens at a time 

when the pressure is on to reduce 

administrative workload. ROCOR would 

have preferred reducing the retention 

period to four months, which would be 

enough to enable FMCSA special agents 

to assess a carrier’s safety posture. 

The Georgia Public Service 

Commission (GPSC) believes the idea of 

reducing the retention time of RODS 

from six months to four months is 

unnecessary. It argued that in the 

current downsizing climate of 

government, six months is barely 

enough time to conduct compliance 

reviews where complaints have been 

received and to follow-up on serious 

crashes. It believed reducing the 

retention period to four months would 

result in time restraints that would not 

work for the governments because the 

workload of State and Federal 

compliance review personnel is 

increasing—not decreasing. They 

concluded that this would allow many 

serious complaints and crash 

investigations to go unfinished, as the 

evidence for substantiating the potential 

violations would have been discarded 

by the motor carriers. They suggested 

this issue is best left alone since most 

carriers and Congress are comfortable 

with the six-month time frame. 

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)? 

Neither Yellow nor Alabama Power 

sees any benefit in longer retention 

requirements. 

FMCSA’s Response to the Comments on 

the 1998 Supporting Documents 

Proposal 

The FMCSA agreed with those 

commenters who wanted to merge the 

supporting documents proposal into the 

HOS rule. The agency was under a 

legislative mandate to issue the NPRM 

on supporting documents, and used the 

opportunity to gather useful opinions 

64002 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

about a more systematic approach to 

monitoring HOS. 

The FMCSA was attentive to the 

comments concerning the 

administrative burdens resulting from 

what some thought was a prescriptive 

alternative. The FMCSA believes the 

NPRM may not have been clear. Many 

commenters seem to have either 

misunderstood the options in the 

original proposal, or, more likely, feared 

too much discretion on the part of 

special agents, in determining the 

effectiveness of any alternate system. 

This was particularly evident in the 

extensive comments of the NASTC. 

NASTC’s comments described a carrier 

program that would definitely have 

satisfied a requirement for an effective 

system, but the writer was apprehensive 

about the possibility that such a model 

program (although it was entirely a 

paper system) could be thwarted by a 

finding by a special agent that some 

element was lacking. 

The actual intent of the proposal was 

captured much more accurately in the 

comments of Bestway, the NPGA and 

the IIHS. The FMCSA attempted to 

convert what, to some, appeared to be 

a very prescriptive statutory 

requirement into a rule that could 

provide an alternative to reliance on 

paperwork. There still appears to be a 

pervasive reluctance on the part of 

industry to employ technology to verify 

compliance with HOS rules. The agency 

understands that certain segments of the 

for-hire motor carrier industry do not 

favor the FHWA’s and FMCSA’s IT 

system joint program encouraging the 

installation and use of such satellite 

technologies for IT purposes, and at the 

same time, permitting FMCSA special 

agents the use of the same technology 

devices to assist in discovering 

violations of HOS regulations. On the 

other hand, there is a great deal of 

anxiety about increasing administrative 

burdens by requiring more verifying 

records to be kept and maintained. 

With respect to the retention period, 

the GPSC has persuaded the FMCSA 

that six months worth of records is 

needed for proper reviewing by Federal 

and State officials of a driver’s and 

carrier’s compliance with the rules and 

for crash investigations. The FMCSA 

has decided to retain the six-month 

requirement in this SNPRM. 

2.2000 Notice of Proposed Rulemaking 

The April 20, 1998, NPRM was 

superseded by the May 2, 2000, Hours 

of Service NPRM (65 FR 25540, RIN 

2126–AA23) [Docket No. FMCSA–97–

2350; formerly FHWA–97–2350 and 

MC–96–28]. The supporting documents 

proposal was incorporated into the 2000 

rulemaking based on comments to the 

1998 NPRM recommending that the 

supporting documents rule be 

considered in the broader context of a 

complete revision of the Hours of 

Service rules. In the May 2000 NPRM, 

the FMCSA attempted to go further than 

the 1998 supporting documents NPRM 

by proposing basic changes to both the 

HOS and the means to verify 

compliance. The 2000 proposal 

addressed the issues raised by those 

commenters who believed the 1998 

supporting documents proposal invited 

a ‘‘one size fits all’’ approach. The May 

2000 proposal focused on those 

operations involving long or regional 

trips away from a home base with little 

carrier supervision of, contact with, or 

control over the driver. The FMCSA 

proposed to minimize the paperwork 

burden for all other operations and, 

whenever possible, to accept records 

that are required by other Federal 

agencies, notably the Department of 

Labor’s Wage and Hour Division. The 

FMCSA stated that this approach would 

be consistent with the requirements of 

section 113 of the HMTAA. 

Comments to the May 2, 2000 NPRM 

Because of the new approach taken in 

the May 2000 NPRM, there were very 

few comments that specifically 

addressed supporting documents. 

Instead commenters focused on the 

overall approach, stating that they found 

it confusing and that it would be hard 

to enforce. 

Supplemental Proposal 

Today’s SNPRM incorporates and 

supercedes both the April 20, 1998, 

supporting document NPRM and the 

supporting documents portion of the 

May 2, 2000, Hours of Service NPRM. 

Because of the original delay in issuing 

an HOS Final Rule based on the May 

2000 NPRM and FMCSA’s 

responsibility to issue regulations based 

on section 113 of the HMTAA, the 

FMCSA is issuing an SNPRM that is 

based on the proposed rules from the 

April 1998 NPRM but also adds entirely 

new language. Today’s proposal 

addresses self-monitoring systems, 

records of duty status, and supporting 

documents for use in monitoring and 

enforcing the HOS (including minimum 

hours off duty, rest, and work) of CMV 

drivers. 

Agency case law, as noted above 

under Motor Carrier Responsibilities, 

interprets the FMCSRs to require motor 

carriers to establish commonsense selfmonitoring systems to verify the 

accuracy of drivers’ HOS and RODS. 

This rule would explicitly require the 

motor carrier to have a systematic 

inspection, verification, and 

maintenance system to verify the 

accuracy of the times and locations of 

each driver for every working day on 

each trip, as well as mileage for each 

trip. The self-monitoring system 

proposed by this rule is not a selfcompliance system as proposed in the 

1998 NPRM. Rather, the FMCSA 

clarifies and strengthens in regulatory 

language the Agency’s implied intent 

that all carriers must establish a RODS 

and supporting document selfmonitoring system to verify accuracy of 

HOS and RODS. 

FMCSA has decided to address the 

self-compliance systems referred to in 

section 113(b)(4) and (b)(5) of the 

HMTAA by allowing motor carriers to 

apply for exemptions under 49 CFR part 

381, subpart C (§§ 381.300 through 

381.330). Although the HMTAA uses 

the term ‘‘waiver,’’ FMCSA believes the 

section 113(b)(5) provision allowing a 

waiver is equivalent to the exemption 

provision under section 4007 of the 

Transportation Equity Act for the 21st 

Century (TEA–21) (codified at 49 U.S.C. 

31315(b)), as distinct from the TEA–21 

waiver provision codified at 49 U.S.C. 

31315(a)(1). This is because section 

31315(a)(1) limits the duration of 

waivers to a period ‘‘not in excess of 

three months.’’ Thus, FMCSA believes 

that allowing a carrier to apply for 

regulatory relief in the form of an 

exemption, rather than a waiver, would 

best serve the industry’s interests and 

comport with Congress’ intent.

The FMCSA is currently studying and 

developing standards required for an 

electronic on-board recorders (EOBR) 

system. See the September 1, 2004, 

advance notice of proposed rulemaking 

(69 FR 53386) requesting public 

comments about EOBRs by November 

30, 2004. It continues to define the 

minimum set of data elements necessary 

to allow safety enforcement personnel to 

determine compliance with the hours of 

service requirements in part 395 of the 

Federal Motor Carrier Safety 

Regulations. The FMCSA will continue 

to study the feasibility, and cost and 

benefits of internal self-compliance 

systems and currently has several 

workgroups studying and reviewing 

electronic systems and their 

capabilities. 

In this SNPRM, the FMCSA adopts 

the position that the use of electronicbased record keeping methods in a 

supporting documents system is 

preferred over traditional paper records. 

The FMCSA proposes to allow motor 

carriers to use electronic, laser or 

automated technology, (e.g. global 

positioning systems (GPS), automatic 

vehicle identifier transponders, 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64003

electronic bills of lading used by 

customs officials in the United States 

(U.S.) and other countries, and state 

driver-vehicle inspection reports using 

pen-based computer systems) in 

conjunction with paper supporting 

documents as long as the electronic 

supporting documents are retained for 

the same period as applies to paper 

supporting documents, are equally 

accessible and reviewable by special 

agents as are their paper counterparts, 

and can be produced, within 48 hours 

of demand, in hard copy. This position 

is in keeping with the requirements of 

the Paperwork Reduction Act of 1995 

that the FMCSA eliminate duplication 

in record keeping and reduce the 

information collection burden on motor 

carriers. However, this SNPRM does not 

lose sight of the preeminent duty placed 

upon the Department of Transportation 

and the FMCSA by Congress to reduce 

crashes and fatalities, and to make the 

highways a safer method of travel. 

Discussion of Specific Requirements 

To satisfy the legislative mandate, the 

FMCSA is proposing to (1) add 

definitions for the terms ‘‘supporting 

document’’, ‘‘employee’’, and ‘‘driver’’

to § 395.2; (2) add a section entitled, 

‘‘§ 395.10 Systematic verification and 

record retention’’; (3) modify the record 

retention requirements in §§ 390.29 and 

390.31; and (4) clarify the motor 

carrier’s responsibility to monitor 

drivers’ compliance with the HOS and 

verify the accuracy of the drivers’

RODS. 

Definition of Supporting Documents 

The FMCSA is proposing in § 395.2 to 

add the statutory definition of 

supporting documents as provided by 

Congress in the HMTAA, 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 FMCSA believes could support 

the HOS and be used to verify the 

accuracy of RODS, when used either by 

themselves or with other documents. 

The FMCSA is also proposing to clarify 

that for the purpose of part 395 

definitions of ‘‘employee’’ and ‘‘driver’’

are the same as defined in § 390.5. Thus 

all commercial motor vehicle drivers 

(including independent contractors) are 

considered to be employees of the motor 

carrier for the purposes of receiving, 

accepting, and submitting to the motor 

carrier any document defined as a 

supporting document while performing 

a transportation function. The FMCSA 

reaffirms in this notice that the term 

‘‘independent contractor’’ includes an 

owner-operator. 

The general rule as to what type of 

document falls into the category of 

‘‘supporting documents’’ was outlined 

by the Administrative Law Judge Burton 

S. Kolko in National Retail 

Transportation in 1993 (In re National 

Retail Transportation, Inc., FHWA–96–

6390, document 3 (July 20, 1993)). In 

1996, the Associate Administrator for 

Motor Carriers subsequently affirmed 

and adopted Judge Kolko’s holding that 

‘‘supporting documents’’ are those 

documents which pass through the 

carrier’s hands in the normal course of 

business and which could be used to 

verify the information recorded on a 

driver’s RODS (In re National Retail 

Transportation, Inc., FHWA–96–6390, 

document 4 (September 12, 1996)). A 

similar definition is found within the 

HMTAA (Pub. L. 103–311, 108 Stat. 

1673 (August 26, 1994)). 

In order to achieve the FMCSA’s goal 

of carrier compliance with the FMCSRs 

by effectively monitoring HOS, the 

motor carrier must be able to accurately 

determine, for each trip and for each 

day of the driver’s trip, the location of 

the driver and the corresponding times 

that the driver was at those locations. To 

do so, a supporting document (whether 

it is paper or electronic based) must be 

verifiable.

Motor Carrier Self-Monitoring Systems 

Considering the Congressional 

mandate in section 113(b)(4) of the 

HMTAA and current state-of-the-art 

electronic technology, the FMCSA 

continues to study, evaluate, and 

develop standards for design and use of 

electronic data in establishing selfcompliance systems. The current 

technology permits motor carriers to 

maintain a dual system of electronic 

tracking and paper supporting 

documents. 

This rule would explicitly require the 

motor carrier to have a self-monitoring 

system to verify the accuracy of the 

driver’s times and locations for each 

working day on each trip, as well as 

mileage for each trip. Under § 395.8(d) 

and (f)(4), drivers already are required to 

record their total miles driving each 

workday. The ‘‘self-monitoring system’’

in this rulemaking differs from the ‘‘selfcompliance system’’ mentioned in the 

HMTAA and the 1998 NPRM. This rule 

strengthens and clarifies the FMCSA’s 

long-standing position that motor 

carriers must actively monitor and 

verify drivers’ HOS and RODS. 

The FMCSA requires motor carriers to 

be responsible for establishing and 

using a system to verify the accuracy of 

RODS and drivers’ HOS. Regardless of 

the type of system used by the motor 

carrier (whether a ‘‘supporting 

document’’ system using traditional 

paper or one using electronic-based 

supporting documents), the motor 

carrier must be able to verify 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. The FMCSA believes that 

most carriers already produce, or could 

produce with relative ease, a document 

to verify the time and place of the driver 

and, as required by regulation, the 

vehicle mileage at the beginning and 

end of each workday. Various other 

supporting documents may be obtained 

during the trip, such as dispatch 

records, bills of lading, daily call-in 

records, shipping and receiving 

invoices, toll receipts, automatic vehicle 

identifier transponder records, and a 

variety of other receipts containing 

verifiable dates, times, and locations 

that can be identified with a specific 

driver. FMCSA considers it the motor 

carrier’s responsibility to determine 

what supporting documents are 

available to the driver and motor carrier 

that could be used to verify the accuracy 

of RODS and HOS and to ensure that 

any electronic or mechanical means to 

reference date, time and location in the 

production of these documents is 

activated. The motor carrier must then 

collect, use, and maintain those 

documents. 

Collection and Retention of Supporting 

Documents 

The FMCSA believes all drivers, 

whether on the company payroll or an 

owner-operator, have a current 

regulatory obligation to comply with the 

HOS and RODS requirements, and to 

cooperate with their motor carrier 

employers by collecting and submitting 

the supporting documents needed to 

verify compliance with the rules. The 

FMCSA is clarifying in § 395.10(d)(2) 

that drivers must submit supporting 

documents to the motor carrier at the 

time the corresponding record of duty 

status is submitted.

The FMCSA would also clarify that 

motor carriers are currently required to 

retain all ‘‘supporting documents’’ that 

all drivers (including independent 

contractors) receive during a trip. This 

retention requirement applies no matter 

how the carrier pays drivers for these 

trips. The FMCSA imposes this 

requirement on the motor carrier under 

whose authority the driver is performing 

transportation services. Documents 

passing through the hands of leased 

drivers would be passing through the 

hands of the motor carrier because 

64004 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

drivers are the employees and 

representatives of the motor carrier for 

purposes of the FMCSRs during the 

course of the transportation service 

provided. This conclusion is consistent 

with the decisions in the National Retail 

Transportation cases discussed above 

and the FMCSRs, and would resolve the 

confusion created by two separate 

administrative cases: (1) In re Ace Doran 

Hauling & Rigging Co., Final Order 

Under 49 CFR 385.15, February 24, 2000 

(see FMCSA–2000–6997, document 4); 

and In the Matter of Ace Doran Hauling 

& Rigging Co., FMCSA–2000–6997 

(Order, July 11, 2000) (see also Order on 

Reconsideration and Final Order with 

Regard to Civil Penalties (February 8, 

2001) and Order Vacating Order on 

Reconsideration and Final Order With 

Regard to Civil Penalties (May 10, 

2001)). In In the Matter of Spears 

Transfer & Expediting, Inc., FMCSA–

2001–9110, document 5 (Decision On 

Petition For Safety Rating Review, April 

26, 2002), FMCSA held that toll receipts 

and other supporting documents 

passing through the hands of a motor 

carrier’s drivers are considered to be in 

the possession of a carrier, even if not 

forwarded to carrier management. 

FMCSA expressly stated that it was 

overruling any finding in the Ace Doran

safety rating appeal inconsistent with 

the Spears decision. However, the 

Spears decision did not overrule Ace 

Doran in its entirety, because the Spears

case involved company drivers rather 

than leased operators. This rule, when 

adopted, would complete the process of 

overruling the February 24, 2000, Order 

in Ace Doran by clarifying that the 

obligation to retain supporting 

documents extends to both independent 

contractors and company drivers. In 

doing so, the rule incorporates the longstanding definition of employee in 49 

CFR 390.5, which states than an 

employee ‘‘includes a driver of a 

commercial motor vehicle (including an 

independent contractor while in the 

course of operating a commercial motor 

vehicle)***’’

The Senate report accompanying the 

HMTAA discussed those situations 

where a motor carrier leases the service 

of drivers, such as independent 

contractors, owner-operators, or fleetbroker 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 HMTAA 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 FMCSA’s 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 HMTAA. He explained 

that ‘‘reports that auditors have been 

forced to retrieve documents from 

garbage dumpsters or play hide-andseek with firms that have a history of 

habitual HOS violations 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 minimus deviation from the 

current rules.’’ See 140 Cong. Rec. 

S11323 (daily ed. August 11, 1994). 

The legislation sets a record retention 

period of at least six months. The 

FMCSA 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 also six months. The FMCSA has 

received a few telephone inquiries 

regarding the retention period for 

‘‘Supporting Data for Reports and 

Statistics; Supporting data for periodical 

reports of * * * hours of service, * * *, 

etc.’’ identified in 49 CFR part 379, 

Appendix A, Item K.2. 

This retention period relates to an old 

FHWA monthly report acquired from 

the 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 Office of Management and Budget’s 

(OMB) regulations in 5 CFR 1320.3(m) 

identifying the definitions of a 

‘‘recordkeeping requirement’’ explain 

that a report is different than the 

retention of a record, notification of the 

existence of records, and disclosure of 

records. The FMCSA believes a report is 

a document submitted directly to the 

FMCSA, as was Form BMC 60 until 

December 15, 1967. In part 379, 

Appendix A, item K.2.’s reference to 

hours of service data, therefore, does not 

have any actual effect upon this 

proposal and therefore, the FMCSA 

proposes to delete item K.2. from 

Appendix A for these reasons.

Ability To Transfer Paper Supporting 

Documents That Contain a Signature to 

Automated, Electronic, or Laser 

Technology Formats 

The FMCSA proposes to allow motor 

carriers to transfer supporting 

documents to electronic or laser 

technology systems. Currently, 

§ 390.31(d) 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, so long as the motor 

carrier can produce an accurate, legible, 

and unaltered printed copy of the 

original supporting document within 48 

hours of demand. The FMCSA is 

therefore proposing a conforming 

amendment to § 390.31(d). Automated, 

electronic, or laser technology systems 

that transmit information or a report 

directly to the driver or the motor 

carrier would also be acceptable. 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64005

However, the FMCSA 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. 

Motor Carrier’s Discretion To Use 

Technology With Paper Supporting 

Documents 

The FMCSA is also proposing to 

allow motor carriers to use electronic, 

laser or automated technology, (e.g., 

GPS, automatic vehicle identifier 

transponders, electronic bills of lading 

used by customs officials in the U.S. 

and other countries, and State drivervehicle inspection reports prepared by 

using pen-based computer systems) 

with paper supporting documents to 

allow the motor carrier to reduce the 

retention of some paper documents. 

However, the electronic data that can be 

used for verification of RODS must be 

maintained for 6 months. 

The FMCSA would accept the data 

supplied by these technologies as 

alternatives to supporting documents, if 

the motor carrier can produce a legible, 

unaltered, printed copy of the required 

information at its principal place of 

business or other location. In the latter 

case, production would be required 

within 48 hours after a request has been 

made. The FMCSA 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. 

The FMCSA’s use of supporting 

document information obtained from 

electronic, laser, or automated 

technologies would be limited to the 

specific purpose of compliance with 

hours of service limits. The FMCSA 

believes the only information it would 

need from these systems would be date, 

time, location, driver, and vehicle 

specific information. The FMCSA 

would not use the information for any 

other purpose. The FMCSA proposes 

that all confidential, proprietary, and 

private information would be redacted 

by the agency before the agency would 

place the hours of service supporting 

information in publicly accessible 

locations. This means that the agency 

would redact such things as consignees 

and consignor names, routes, rates, and 

other proprietary information from any 

records it has acquired for enforcement 

purposes before placing the information 

in public dockets or other places that 

the public may have general access. 

The FMCSA may allow a motor 

carrier to refrain from keeping all 

supporting documents when the agency 

finds a carrier’s HOS compliance and its 

system demonstrate it effectively 

complies with the HOS rules. The 

FMCSA will consider a motor carrier’s 

request to be exempt from the 

supporting document requirements 

under 49 CFR part 381. The FMCSA 

will base its decision on the carrier’s 

HOS compliance as shown by the 

compliance review and the specific 

request the carrier submits. 

The FMCSA also is interested in 

comments from suppliers and 

technology developers concerning the 

possibility of integrating various 

existing electronic data systems, such as 

NorPass and PrePass, to assist motor 

carriers interested in developing 

supporting-document information 

systems in lieu of paper documents. If 

technologically feasible, such 

alternative systems could reduce burden 

by allowing carriers, FMCSA, and State 

and local enforcement agencies to check 

HOS compliance remotely. The 

clearinghouse model may be relevant to 

this concept. The International 

Registration Plan, for example, uses a 

clearinghouse to apportion motor carrier 

registration fees (paid to the base State) 

among States in which registered 

vehicles have been driven. 

The FMCSA would be particularly 

interested in supporting-document 

information systems that could cull out 

dates, times, locations, drivers, and 

vehicle-specific information. The latter 

technology could enable motor carriers 

and FMCSA to redact confidential, 

proprietary, and private information 

(such as consignee and consignor 

names, routes, and rates) that may be 

reviewed or audited by law enforcement 

officials but should not enter the public 

domain.

Location of Records 

Under the proposed changes to 

§ 390.29, 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 if those 

records are kept at a location other than 

the principal place of business. 

Otherwise, records kept at the principal 

place of business must be produced 

upon demand and without unreasonable 

delay. This request for documents can 

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. 

Retention Period 

The FMCSA is proposing that all

supporting documents, whether in 

electronic or paper format, be retained 

for the entire retention period. In this 

proposal, the term ‘‘all supporting 

documents’’ means all documents, 

whether electronic or paper, that can be 

used to verify the driver’s RODS and 

time record entries for any particular 

trip. These documents must be capable 

of being matched by a special agent of 

the FMCSA or other authorized 

representative or a Federal, State, local, 

or tribal government to the original 

drivers’ RODS. 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 FMCSA is proposing that 

these 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 

(see proposed §§ 395.8(k) and 

395.10(h)). 

Appendix B to Part 385, Explanation of 

Safety Rating Process 

Section VII of Appendix B to part 385 

lists critical and acute regulations, 

which play an important role in 

assigning a safety rating. The 

descriptions of section 395.8(i) in this 

section of the appendix would be 

updated to conform to the requirements 

of the SNPRM. New descriptions for the 

clarifications provided at § 395.10 

would also be added, to allow the 

agency to accurately update the safety 

rating process on the effective date of 

the final rule. The FMCSA asks the 

public to comment on whether these 

regulatory citations are appropriate or 

different citations should be used, and 

whether the citations should be 

‘‘critical’’ or ‘‘acute’’ violations. 

Regulatory Impact Analysis 

This SNPRM imposes no new 

regulations and therefore imposes no 

new costs or benefits. The purpose of 

this SNPRM is to bring existing rules 

into conformity with directions given by 

Congress and to remove any potential 

for misunderstanding of the rules by 

motor carriers or enforcement 

personnel. 

As a result of past misunderstandings, 

some motor carriers and drivers do not 

believe the November 26, 1982, final 

64006 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

9Francine LaFontaine, Incentive Contracting in 

Practice: A Detailed Look at Owner Operator Leases 

in the U.S. Truckload Trucking Industry, Working 

Paper, June 2000, available at http://

webuser.bus.umich.edu/Departments/BusEcon/

research/wp.lafontaine.2000.06.06.html.

rule applies to them. They would now 

incur costs which they should have 

incurred with the promulgation of the 

1982 rule. The FMCSA has estimated 

those costs and puts them in the context 

of the benefits necessary to make this 

proposal cost-effective. 

Cost-effectiveness occurs when the 

benefits from a proposal equal or exceed 

the costs. In this case, that is the costeffectiveness of clarifying the rule 

versus ignoring the misinterpretations. 

Given Congressional direction and an 

internal desire for clarity, consistency, 

and fairness, ignoring the 

misinterpretations is not an option. A 

meaningful reality check and 

perspective will be obtained by going 

through the calculations. For this 

analysis, FMCSA assumes that 25 

percent of drivers and owner-operators 

are not in compliance with the existing 

regulation. The cost to bring them into 

compliance would be $14.2 million per 

year. As explained in the Regulatory 

Evaluation in the docket, in order for 

this proposal to be cost-effective, it 

would have to deter an estimated 228 

crashes, including 2.3 fatal crashes. 

FMCSA seeks comment and data 

whether its 25 percent estimate is 

correct. 

Benefits 

The direct benefits of this rule are 

better conformity with the instructions 

of Congress, better clarity, and more 

even and thorough enforcement of HOS 

regulations. Enforcement is only a 

shadow benefit of the real benefit 

sought, which is safer roadways. 

Conformity and clarity are desirable, 

intangible qualities that do not lend 

themselves to straightforward 

quantification; therefore we do not 

estimate a tangible value for these 

benefits. 

It would be most desirable if the 

FMCSA could directly compute the 

decrease in highway accidents and 

fatalities as a function of easier 

enforcement of HOS rules. Certainly, 

such a function exists in a probabilistic 

sense, but knowing or estimating that 

function would require experimentation 

in the real world, costing real lives. 

Therefore, the agency presents the 

reduction in accidents necessary to 

make this rule cost-effective. 

The FMCSA knows from previous 

studies that accidents occur roughly in 

proportion, with fatalities being the 

rarest and property-damage-only (PDO) 

being the most common. The agency has 

not found anything in this SNPRM to 

suggest that it would affect one severity 

category differently from any other, so 

the agency assumes that those 

proportions would be unaltered.

TABLE 1.—NUMBER OF CRASHES AND COSTS IN 2000, BY SEVERITY

PDO Injury Fatal Total 

Crashes 7 .................................................................................................................. 338,000 96,000 4,917 438,917

Percentage ............................................................................................................... 77% 22% 1% 100%

Cost per Crash 8 ...................................................................................................... $5,026 $100,382 $3,650,810

7FMCSA, ‘‘Large Truck Crash Facts 2000,’’ Tables 13 through 18. 2002. 

8Zaloshnja, Eduard, Ted Miller, and Rebecca Spicer (National Technical Information Service, Springfield, VA) Costs of Large Truck- and BusInvolved Crashes, October 2000. (Inflated to 2002 dollars.) 

Keeping the ratio constant, averting 

one accident involving a fatality also 

averts 22 accidents with injuries and 77 

accidents with PDO. Therefore, a 

measure that averts one fatal accident 

results in total savings of approximately 

$6,246,216 from the 100 total accidents 

avoided. Even if these costs were 

considered new costs, the rule would 

only have to avert 228 accidents 

annually to be cost-beneficial, of which 

about 2.3 would involve a fatality, 50.2 

would involve an injury, and 175.5 

would involve PDO. Multiplying these 

values by the corresponding values from 

Table 1 yields $14.3 million in savings 

from reducing the accident rate. 

Costs 

While the FMCSA does not believe 

this SNPRM would impose any costs 

because all of its requirements are 

already required, the FMCSA has 

prepared the following analysis to show 

the effects on those not complying with 

the current rule. Their costs should be 

attributed to existing rules, even if, due 

to misunderstanding, they only begin 

assuming those costs after this 

clarification. 

Drivers whose records have not been 

retained would have to place identifying 

information on all supporting 

documents that could be used to verify 

their RODS. Recognizing that no two 

trips are the same regarding the amount 

of documentation produced, the FMCSA 

used standard figures to approximate 

the central tendency of costs. The 

FMCSA assumes that ten pieces of 

information would need to be kept from 

each full day of travel. The agency 

estimates that it would take 

approximately 15 seconds to write the 

necessary information on each 

document. Assuming 250 full workdays 

in a year, this totals 625 minutes, or 

10.42 hours, per driver per year. Using 

Bureau of Labor Statistics (BLS) data on 

‘‘Median Weekly Earnings’’ from the 

Occupational Employment and Wages 

Estimates data for 1999 and 2000, the 

agency estimates average truck driver’s 

wages of $15.82 per hour (including a 

20 percent increase to account for 

employee fringe benefits). Annualized, 

this is $165 per driver affected. 

The FMCSA assumes that this cost is 

imposed only on owner-operators not 

complying correctly with the current 

rule. According to Professor Francine 

LaFontaine of the University of 

Michigan, there are approximately 

300,000 owner-operators.9 The FMCSA 

believes that most of these owneroperators are complying with these 

provisions. If only 75 percent of owneroperators are currently collecting and 

retaining the required supporting 

documents, 75,000 (0.25 times 300,000) 

are not. This translates into an annual 

compliance cost of $12.4 million 

(75,000 times $165).

Owner-operators would also have to 

perform the administrative tasks of 

filing, maintaining, periodically 

deleting, and, if inspected, retrieving the 

supporting documents. This whole 

process would take between 1 and 2 

hours annually, depending on many 

factors. The agency uses a proxy of one 

and a half hours and the same wage rate 

(since this calculation would come out 

of driving for owner-operators). This 

amounts to just under another $1.8 

million, for a total of $14.2 million.

Motor carriers must have a selfmonitoring system in place. This system 

should explain how they use supporting 

documents (and other means) to ensure 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64007

that their drivers comply with the HOS 

regulations. Since this is not a new 

requirement, it would not impose any 

additional costs to motor carriers. 

Section-by-Section Analysis 

Part 379, Appendix A, Row K.2

As discussed above in the section 

headed ‘‘Collection and Retention of 

Supporting Documents,’’ the FMCSA 

proposes to amend appendix A to 49 

CFR part 379 to remove the phrase 

‘‘hours of service,’’ from item K.2. This 

would remove an obsolete reference to 

a report that has not been required since 

December 15, 1967. 

Part 385, Appendix B, Section VII 

As discussed above in the section 

headed ‘‘Appendix B to Part 385 

Explanation of Safety Rating Process,’’

the FMCSA proposes to revise the 

citation for § 395.8(i) and to add 

citations for § 395.10(a), (e), and (f) to 

the section VII list of acute and critical 

regulations. These citations play an 

important role in assigning a safety 

rating. The description for § 395.8(i) is 

being updated to conform to the 

requirements of this SNPRM. New 

descriptions for paragraphs § 395.10(a), 

(e), and (f) are also being added to allow 

the agency to accurately update the 

safety rating process on the effective 

date of a subsequent final rule. 

Section 390.5 Definitions 

The FMCSA proposes to amend the 

definition of the term ‘‘employee’’

originally adopted from the Motor 

Carrier Safety Act of 1984, Pub. L. 98–

554, Oct. 30, 1984, Sec. 204(2), 98 Stat. 

2829, 2833 (MCSA) (now codified at 49 

U.S.C. 31132(2)). ‘‘The Committee 

emphasize[d] that its inclusion of 

independent contractors under the 

definition of employee is for the 

purpose of [the MCSA] only; the 

Committee [did] not intend that this 

definition be construed as affecting the 

interpretation of the Internal Revenue 

Service as to the status of independent 

contractors under the tax laws.’’

‘‘Independent owner-operators’’

employment status posed a unique 

problem to the [Congressional] drafters’

of the MCSA. ‘‘An independent owneroperator owns his own truck and drives 

it. He also may own several other trucks 

and have several drivers working for 

him. There is no question that the 

commercial motor vehicles he drives 

and his driving should be subject to the 

same safety rules as other commercial 

motor vehicles on the highway. All 

commercial motor vehicles if 

improperly maintained or operated pose 

a significant threat to the public safety.’’

S. Rpt. 98–424, page 7. 

Independent owner-operators’

employment status and inclusion in the 

MCSA has continually posed unique 

problems for owner-operators to 

understand their responsibilities and 

unique problems for FMCSA’s 

enforcement of the regulations. Based 

on these continuing problems, the 

FMCSA proposes to add the phrase 

‘‘and an owner-operator’’ after the 

phrase ‘‘independent contractor.’’ The 

Congressional intent was that term 

‘‘independent contractor’’ would 

substitute for the term owner-operators, 

however, many owner-operators and 

motor carriers may have forgotten this 

history. Adding the phrase after the 

phrase ‘‘independent contractor’’ should 

ensure motor carriers and drivers 

understand that the MCSA’s generic 

term ‘‘employee’’ used by the FMCSA 

includes owner-operators. The FMCSA 

also wants to restate that using the term 

‘‘employee’’ continues the FMCSA’s and 

Congressional intent that the term does 

not affect the interpretation of the 

Internal Revenue Service as to the status 

of independent contractors under the 

tax laws. 

Section 390.29 Location of Records 

and Documents 

The FMCSA proposes to amend 

paragraph (b) by requiring the 

immediate production of records and 

documents that a motor carrier 

maintains at each principal place of 

business. The current requirement is 

silent as to when a motor carrier must 

produce records and documents that a 

motor carrier maintains at each 

principal place of business. Motor 

carriers have attempted to stall FMCSA 

special agents from conducting 

unannounced or short notice on-site 

investigations at the principal place of 

business generally providing the reason 

that § 390.29(b) allows them to produce 

records for up to 48 hours after a 

demand is made. The FMCSA never 

intended to allow such practices. The 

proposal would make clear that all 

records and documents which are 

maintained at the principal place of 

business where an investigation is 

occurring must be produced upon 

demand by a special agent of the 

FMCSA or other authorized 

representative of a Federal, State, local, 

or tribal government. 

Paragraph (b)(2) would continue to 

allow records and documents that motor 

carriers maintain at their regional offices 

or driver work-reporting locations to be 

made available for inspection within 48 

hours after a demand is made. The 

FMCSA would continue to exclude 

Saturdays, Sundays, and Federal 

holidays from the computation of the 

48-hour period of time. 

Section 390.31 Copies of Records or 

Documents 

The FMCSA proposes to revise 

paragraph (d) to incorporate guidance 

that was published allowing automated, 

electronic, or laser technology systems 

to store copies of records or documents 

provided the motor carrier can produce 

an accurate, legible, and unaltered 

printed copy of the required data and 

provided that alternate means for 

signature verification are available. If 

the FMCSA adopts this proposed 

paragraph, the two interpretations 

published on April 4, 1997 (62 FR 

16730) on page 16408, column three for 

§ 390.31 would become obsolete and 

unnecessary. 

Section 395.1 Scope of the Rules in 

This Part 

The FMCSA proposes to move the 

introductory phrase of § 395.8(a) to 

§ 395.1(p). The FHWA moved the three 

exceptions and exemptions contained in 

the CFR before August 31, 1992 at 

§§ 395.8(k)(2) Retention of driver’s 

record of duty status, 395.8(l)(1) 100 airmile radius, and 395.8(l)(2) Hawaiian 

driver’s records of duty status to § 395.1 

on July 30, 1992 (57 FR 33638, at 

33645). The FMCSA intends to move 

the exception for private motor carrier 

of passengers (nonbusiness) and its 

drivers to § 395.1 to list the various 

exceptions and exemptions in one 

convenient location at the front of part 

395.

Section 395.2 Definitions 

The FMCSA proposes to revise the 

introductory phrase of § 395.2 to ensure 

that the public knows that all 

definitions used in Part 395 that are not 

separately defined in this section are 

defined in § 390.5. 

Section 395.8 Records of Duty Status 

As discussed above under the sectionby-section subheading ‘‘§ 395.1 Scope 

of the rules in this part,’’ the FMCSA 

proposes to revise the introductory 

phrase of paragraph (a) to move the 

exception for private motor carriers of 

passengers (nonbusiness) and their 

drivers to § 395.1(p). 

The FMCSA proposes to revise 

paragraph (d)(3) to include coach and 

bus vehicle numbers to be included on 

the record of duty status. 

Paragraph (i) would revise the current 

requirement to include that motor 

carriers and drivers must collect 

supporting documents along with the 

records of duty status. The FMCSA 

64008 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

intends that the use of the term 

‘‘systematically’’ in this section and 

subsequent sections would have the 

ordinary common-sense definition to 

mean a methodical procedure that is 

marked by thoroughness and regularity. 

The FMCSA proposes paragraph (k) 

would revise the current requirement to 

include that motor carriers and drivers 

must retain systematically supporting 

documents and the records of duty 

status. 

Section 395.10 Systematic Verification 

and Record Retention 

This proposed new section would 

clarify existing requirements that have 

been implied by the FMCSA and its 

predecessors and upheld by the D.C. 

and Sixth Circuit Courts. 

First, the FMCSA would clarify that 

every motor carrier must systematically 

and effectively monitor its drivers’

hours of service and the accuracy of the 

information contained on drivers’

records of duty status by comparing 

paper records of duty status, automatic 

on-board recording device records, or 

GPS records with information contained 

in supporting documents. Supporting 

documents could include third-party 

records, including State weight or toll 

receipts or transponder records 

maintained on behalf of States by 

providers such as PrePass or NorPass. 

The motor carrier’s required monitoring 

procedure would be methodical, 

thorough, and regular. The procedure 

must allow an FMCSA special agent to 

verify drivers’ records using the 

supporting documents. 

In addition to the system employed by 

one of NASTC’s larger, more 

sophisticated members that was 

described above in the discussion of 

comments to the NPRM, the FMCSA 

believes the following example would 

also be a best practice for what the 

agency is seeking to attain by this 

proposal to require systematic and 

effective monitoring to ensure drivers 

comply with the Federal HOS. 

An Indiana-based motor carrier uses a 

system that combines electronic 

technology and paper supporting 

documents for determining driver 

compliance with HOS requirements. 

This carrier’s system consists of a three 

(3) level false RODS checking system. 

Level One: The first level of the 

analysis uses an electronic interface 

with the fuel billing system 

automatically comparing all fuel 

purchases and cash advances—by date 

and time—with each driver’s daily 

RODS. The system looks for ‘‘on duty 

not driving’’ time which coincides with 

the particular fuel purchase or cash 

advance. A non-match may indicate an 

inaccurate log. However, whether or not 

there is a match, the carrier passes the 

RODS on to Level Two. 

Level Two: The carrier compares 

RODS with any and all receipts that are 

in the driver’s trip envelope for that trip. 

This includes purchase receipts, tolls, 

scales, and any other dated supporting 

documents. 

Level Three: The carrier audits the 

RODS by using ‘‘point-to-point’’ mileage 

software to check the miles and hours 

driven for accuracy. 

In addition to the three-level 

approach above, the carrier also uses 

information from all moving violations, 

accident reports, roadside inspections, 

and motorist complaints to check the 

accuracy of driver’s RODS. 

Using this three-level approach, the 

carrier approaches a 100 percent check 

of all RODS for falsification. In other 

words, their goal is 100 percent with the 

rare instance where there is not enough 

supporting documents for one trip to 

accurately verify the RODS.

Paragraph (b) would clarify that the 

FMCSA would measure the motor 

carrier’s compliance against a certain 

level to determine its effectiveness. The 

level where FMCSA currently 

determines whether too many false 

records and non-compliance exists is 

whether an FMCSA special agent finds 

10 percent or greater drivers’ records to 

be false or in violation. The FMCSA 

may use any supporting documents or 

other evidence, whether or not in the 

motor carrier’s possession, to determine 

the validity of the drivers’ paper or 

automatic records of duty status and the 

effectiveness of the motor carrier’s 

supporting document monitoring 

system. The FMCSA, however, may 

limit its special agents’ use of records 

that the motor carrier does not possess 

or could not have possessed, at the 

FMCSA’s discretion. 

The FMCSA proposes in paragraph (c) 

that it would clarify that the motor 

carrier would be required to begin to 

systematically use effective supporting 

documents that FMCSA believes to be 

more effective to verify the accuracy of 

the hours of service and paper or 

automatic records of duty status, if the 

agency determines the motor carrier’s 

monitoring is ineffective in verifying the 

drivers’ compliance with the hours of 

service and the accuracy of the paper or 

automatic records of duty status. In 

addition, the FMCSA believes it is 

important to note that the phrase 

‘‘verifying the drivers’ compliance with 

the hours of service’’ as is currently 

interpreted would include that the 

agency would determine that a carrier’s 

system is ineffective if the carrier has a 

significant number of HOS violations or 

false RODS. 

Paragraph (d) proposes to clarify that 

the motor carrier’s drivers must retain 

all supporting documents that come into 

the possession of the driver in the 

ordinary course of the driving operation. 

This would include all independent 

contractors and owner operators as 

discussed above. In addition, the 

FMCSA would clarify that the driver 

must provide the supporting documents 

and the paper or automatic records of 

duty status to authorized enforcement 

officials of Federal, State or local 

government upon request or demand as 

well as to the motor carrier. 

The FMCSA proposes in paragraph (e) 

to clarify the motor carrier’s and driver’s 

responsibilities to identify supporting 

documents and the paper or automatic 

record of duty status they support. In 

addition, the regulation would include 

clarifying the responsibility that motor 

carriers and drivers must not obscure or 

deface other information contained in 

the supporting document. The 

responsibility that motor carriers and 

drivers must not obscure or deface other 

information contained in the supporting 

document comes from 49 U.S.C. 521. 

The FMCSA proposes that the 

identification system may include 

legibly adding the driver’s full name, 

date, and vehicle number, if those items 

do not already appear on the document. 

The FMCSA, however, is not requiring 

the carrier or driver add such 

information to cross-reference the 

documents. The current implication in 

the rules is only that a means to crossreference the documents is necessary. 

Thus, a carrier may use a different 

system to cross reference supporting 

documents to RODS. 

Paragraph (f) also proposes to clarify 

the motor carrier’s responsibility to 

identify additional supporting 

documents that it receives from any 

source, but that the driver probably does 

not receive. This would include 

documents generated by the carrier and 

documents from both carrier and thirdparty electronic systems (e.g., GPS 

reports, on-board computer records, 

transponder reports, and scanned or 

electronically mailed documents). 

Various toll authorities are allowing 

carriers to pay tolls using transponders 

for which the carrier may get periodic 

reports of use or charges that the 

FMCSA would consider to be 

supporting documents. In addition, 

electronic-mail messages have become 

widely used between drivers and motor 

carriers. These messages have references 

to dates, times, or locations, which must 

remain activated, and must be kept in a 

manner that permits matching of 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64009

records to the driver’s RODS. Motor 

carriers should recognize, however, that 

such records are not in the public 

domain, and exert appropriate privacy 

controls. 

The FMCSA proposes in paragraph (g) 

to restate the current requirement that 

motor carriers must provide RODS and 

supporting documents to any duly 

authorized Federal, State or local 

government enforcement official upon 

request or demand as is required 

currently, and would continue to be 

required, under §§ 390.29, 390.31, and 

395.8(k). 

Finally, the FMCSA proposes in 

paragraph (h) to clarify that the 

violations of these clarified rules would 

be considered failures of the motor 

carrier’s and driver’s responsibilities to 

verify and maintain records of duty 

status and supporting documents. The 

FMCSA proposes such violations would 

include civil and criminal penalties 

under 49 U.S.C. 521 for such violations 

as: 

(1) Failure to prevent a driver from 

falsifying his records of duty status; 

(2) Failure to prevent alteration of 

supporting documents; 

(3) Alteration of supporting 

documents which changes their 

accuracy; 

(4) Failure to prevent a driver from 

exceeding the hours-of-service; and

(5) Failure to have an effective system 

to verify and maintain records of duty 

status and supporting documents. 

Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

The FMCSA has determined that this 

document does not contain an 

economically significant regulatory 

action under Executive Order 12866. 

The FMCSA has estimated that this 

rulemaking would have an annual 

economic impact on the motor carrier 

industry of less than $100 million. The 

proposal is significant under Executive 

Order 12866 because of substantial 

public interest. The proposal has been 

reviewed by OMB. 

The FMCSA has determined this 

regulatory action is significant under the 

regulatory policies and procedures of 

the DOT because of the high level of 

interest concerning motor carrier safety 

issues expressed by Congress, motor 

carriers, their drivers and other 

employees, State governments, safety 

advocates, and members of the traveling 

public. 

As discussed below, current FMCSA 

regulations have required the retention 

of all supporting documents since 

January 1, 1983, the effective date of the 

November 26, 1982, final rule, and 

responsible motor carriers have 

collected and retained all such 

documents both in the ordinary course 

of business and for purposes of 

regulatory compliance. This rule would 

explicitly require motor carriers to have 

systematic means to inspect, verify, and 

maintain drivers’ HOS and RODS; more 

clearly would define who must collect 

and retain supporting documents; and 

would explain 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. The 

FMCSA discussed the regulatory impact 

analysis earlier in this document under 

the heading Regulatory Impact Analysis. 

Evaluation of the information collection 

costs of this proposed rule is described 

fully below in the Paperwork Reduction 

Act section. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (5 U.S.C. 601–612), the 

agency has evaluated the effects of this 

rulemaking on small entities. The 

Regulatory Flexibility Act requires 

Federal agencies to analyze the impact 

of rulemakings on small entities, unless 

the Agency certifies that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. This proposal does not impose 

any costs on the public and therefore 

does not impose any costs upon small 

entities. FMCSA, however, has prepared 

an Initial Regulatory Flexibility 

Analysis because of the considerable 

public interest in this proposal to show 

the negligible potential economic 

impact it would have on small entities 

domiciled in the United States. We 

performed the analysis in the broadest 

possible terms by counting all the costs 

that small entities might begin to bear as 

a result of this clarification, even if 

those costs should have been borne by 

them all along. 

This Initial Regulatory Flexibility 

Analysis must include the following 

elements:

1. A description of reasons why action 

is being considered; 

2. The objectives of, and legal basis 

for, the rule; 

3. A description and estimated 

number of small entities regulated and 

domiciled in the United States; 

4. A description and estimate of 

compliance requirements including 

differences in cost, if any, for different 

groups of small entities; 

5. Identification of duplication, 

overlap, and conflict with other rules 

and regulations; and 

6. A description of significant 

alternatives to the rule. 

Initial Regulatory Flexibility Analysis 

1. Description of Reasons Action Is 

Being Taken 

The purpose of the proposal is to 

bring existing rules into conformity with 

directions given by Congress and to 

remove any potential for 

misunderstanding of the rules by motor 

carriers or enforcement personnel. As a 

result of past misunderstanding, some 

motor carriers and drivers did not 

believe the rule applied to them. They 

would now incur costs which they 

should have incurred with the passage 

of the rule on November 26, 1982 (47 FR 

53383). 

This SNPRM would clarify existing 

requirements that have been implied by 

the FMCSA and its predecessors and 

upheld by the D.C. and Sixth Circuit 

Courts as discussed above. The SNPRM 

would clarify decisions in the National 

Retail Transportation cases discussed 

above, and would resolve the confusion 

created by two separate administrative 

cases: (1) In re Ace Doran Hauling & 

Rigging Co., Final Order Under 49 CFR 

385.15, February 24, 2000 (see FMCSA–

2000–6997, document 4); and In the 

Matter of Ace Doran Hauling & Rigging 

Co., FMCSA–2000–6997 (Order, July 11, 

2000) (see also Order on 

Reconsideration and Final Order with 

Regard to Civil Penalties (February 8, 

2001) and Order Vacating Order on 

Reconsideration and Final Order With 

Regard to Civil Penalties (May 10, 

2001)). In the Matter of Spears Transfer 

& Expediting, Inc., FMCSA–2001–9110, 

document 5 (Decision On Petition For 

Safety Rating Review, April 26, 2002), 

FMCSA held that toll receipts and other 

supporting documents passing through 

the hands of a motor carrier’s drivers are 

considered to be in the possession of a 

carrier, even if not forwarded to carrier 

management. FMCSA expressly stated 

that it was overruling any finding in the 

Ace Doran safety rating appeal 

inconsistent with the Spears decision. 

However, the Spears decision did not 

overrule Ace Doran in its entirety, 

because the Spears case involved 

company drivers rather than leased 

operators. This proposal, when adopted, 

would complete the process of 

overruling the February 24, 2000, Order 

in Ace Doran by clarifying that the 

obligation to retain supporting 

documents extends to both independent 

contractors and company drivers. In 

doing so, the proposal incorporates the 

64010 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

long-standing definition of employee in 

49 CFR 390.5, which states than an 

employee ‘‘includes a driver of a 

commercial motor vehicle (including an 

independent contractor while in the 

course of operating a commercial motor 

vehicle) * * *’’

2. Objectives and Legal Basis 

The objective for this action is 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. As noted above, the legal 

basis for this rule is section 113 of the 

Hazardous Materials Transportation 

Authorization Act of 1994, Pub. L. 103–

311, 108 Stat. 1673 (August 26, 1994). 

3. Description and Estimated Number of 

Small Entities Regulated and Domiciled 

in the United States 

The main cost generating element of 

this proposal is to bring all owneroperators into compliance with the 

record keeping requirements of the 

hours-of-service regulations. We assume 

25 percent of approximately 300,000 

existing owner-operators are not in 

compliance with the existing 

regulations for cost estimation purposes. 

Owner-operators are acting as either 

drivers or motor carriers. 

4. Description and Estimate of 

Compliance Requirements 

This proposal would apply to those 

small entities regulated by the FMCSA 

that use CMV drivers. It is difficult to 

determine exactly how many small 

entities would be affected by this 

proposal, partly because it is unknown 

how many motor carriers were unaware 

that the existing rule applies to them 

and partly because it is not known yearto-year how many small entities on 

average would use CMV drivers. 

However, as of June 2004, there were 

650,000 U.S.-domiciled motor carriers 

on the FMCSA’s Motor Carrier 

Management Information System 

(MCMIS) census file. This includes both 

for-hire and private motor carriers 

domiciled in the United States. The 

Small Business Administration (SBA) 

defines small businesses in the motor 

carrier industry based on thresholds for 

average annual revenues, below which 

SBA considers a motor carrier small. For 

trucking companies, the threshold is 

$21.5 million in annual sales, while for 

motorcoach and related industries the 

threshold is $6 million in annual sales. 

Data from the 1997 Economic Census 

(U.S. Census Bureau), North American 

Industrial Classification System 

(NAICS) Code 4841, ‘‘General Freight 

Trucking,’’ indicates that 99 percent of 

‘‘general freight’’ trucking firms had less 

than $25 million in annual sales in 1997 

(which most closely corresponds to the 

SBA threshold of $21.5 million for 

motor carriers). In the case of passenger 

(or motorcoach) carriers, the 1997 

Economic Census, NAICS Code 4855, 

‘‘Charter Bus Industry,’’ indicates that 

94 percent of charter bus firms had less 

than $5 million in annual sales in 1997 

(which most closely corresponds to the 

SBA threshold of $6 million for 

passenger carriers). 

Because the FMCSA does not have 

annual sales data on private carriers, it 

assumes the revenue and operational 

characteristics of private motor carriers 

are generally similar to those of for-hire 

motor carriers. Regardless of which of 

the above percentages is used (99, 94, or 

96 percent), FMCSA estimates that over 

600,000 of the approximately 650,000 

total motor carriers in the MCMIS 

Census File meet the definition of small 

businesses. 

Although these small entities would 

have to keep records verifying all of 

their employees’ status regarding the 

HOS, there is no additional 

administrative cost borne by most of 

them because they already have to 

maintain those records under the 

current system. Of the three hundred 

thousand (300,000) owner-operators, 

some unknown number are not in 

compliance due to misinterpretation of 

the rule. Now they would incur the 

recordkeeping costs they should have 

incurred since January 1, 1983, which 

are the same as the costs that other 

motor carriers have been bearing.

The FMCSA believes that all the costs 

of this proposal would be borne by 

owner-operators who were required to 

bear them all along but were unaware of 

that fact. 

Data from the 1997 Economic Census, 

NAICS Code 4841 (General Freight 

Trucking) and NAICS Code 4855 

(Charter Bus Industry) are contained in 

the tables 2 and 3.

TABLE 2.—AVERAGE ANNUAL REVENUES OF SMALL TRUCKING FIRMS

[NAICS Code 4841, General Freight Trucking] 

Revenue size 

Number of firms 

(percent of

segment total) 

Average annual 

revenues per firm

(Millions) 

Compliance costs 

per driver ($165 

per driver), as

percent of annual 

revenues per firm 

Less than $25 million ................................................................................................. *27,609 1.33 0.0124

*99 percent of segment total. 

TABLE 3.—AVERAGE ANNUAL REVENUES OF SMALL PASSENGER CARRIERS

[NAICS Code 4855, Charter Bus Industry] 

Revenue size 

Number of firms 

(percent of

segment total) 

Average annual 

revenues per firm

(Millions) 

Compliance costs 

per driver ($165 

per driver), as

percent of annual 

revenues per firm 

Less than $5 million ................................................................................................... *1,022 0.98 0.0168

*94 percent of segment total. 

Since we do not have sufficient 

information to estimate the distribution 

of the number of drivers per small firm, 

we provide reasonable bounds of one 

employee per firm to 30 employees per 

firm. Between these boundaries, the 

costs range from 0.0124 percent and 

0.372 percent of annual revenues. These 

bounds overestimate the effect on the 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64011

larger motor carriers because they 

generally have more than the average 

revenue for firms in this size category. 

Even at 0.372 percent of annual 

revenues (i.e. $4,950 for a firm with 30 

drivers), this rule is clearly not 

imposing a cost burden that would alter 

the market or force firms from the 

industry. 

There are other potentially affected 

industries, listed in Table 4. They are 

less directly affected than the two listed 

above, but still may include some firms 

employing owner-operators who 

wrongly assumed that their employers 

were the ones required to maintain the 

supporting documents for six months. 

These are listed for completeness only, 

as we do not expect many affected small 

entities in any of these industries.

TABLE 4.—OTHER POTENTIALLY AFFECTED INDUSTRIES

NAICS code Alphabetic keywords 2002 NAICS short title 

1112 ........................................................ ‘‘Truck farming, field, bedding plant and seed production’’ ... Other Vegetable (except Potato) and 

Melon Farming. 

2389 ........................................................ ‘‘Aerial or picker truck, construction, rental with operator’’ ... Site Preparation Contractors. 

4251 ........................................................ Fuel oil truck jobbers ............................................................. Wholesale Trade Agents and Brokers. 

4842 ........................................................ ‘‘Trucking used household, office, or institutional furniture 

and equipment’’.

Used Household and Office Goods 

Moving. 

4852 ........................................................ ‘‘Bus line operation, intercity’’ ................................................ Interurban and Rural Bus Transportation. 

4854 ........................................................ ‘‘Bus operation, school and employee’’ ................................. School and Employee Bus Transportation. 

4871 ........................................................ ‘‘Buses, scenic and sightseeing operation’’ ........................... ‘‘Scenic and Sightseeing Transportation, Land’’. 

5621 ........................................................ Dump trucking of rubble or brush with collection or disposal Other Waste Collection. 

7223 ........................................................ Ice cream truck vendors ........................................................ Mobile Food Services. 

5. Compliance Requirements of the Rule 

Although these small entities would 

have to keep records verifying all of 

their employees’ hours-of-service status, 

there is no additional administrative 

cost borne by most of them because they 

already have to maintain those records 

under the current system. Some portion 

of the 300,000 owner-operators would 

now have to incur some additional cost 

related to providing motor carriers 

supporting documents that the owneroperators previously maintained for tax 

reporting and other business expense 

purposes. 

The FMCSA believes that all the costs 

of this proposal would be borne by 

owner-operators who failed to comply 

with our current regulations. These 

owner-operators would require no 

special technical or professional skills 

beyond what they already possess. 

6. A Description of Significant 

Alternatives to the Rule

As explained above, this rule would 

have minimal impact on small 

businesses. Any alternatives would be 

likely to increase the costs rather than 

decrease them since ignoring the 

misunderstanding is not a permissible 

option. For example, changing the 

reporting system so that records are kept 

electronically would be likely to impose 

high initial costs and small maintenance 

and power costs. Reducing the length of 

records retention would reduce costs, 

but only slightly. Short retention 

periods would restrict the special 

agent’s ability to identify patterns that 

indicate unsafe practices. 

FMCSA welcomes comments on these 

or other possible alternatives and their 

impacts on small entities. 

Unfunded Mandates Reform Act of 

1995

This proposed rule would not impose 

a Federal mandate resulting in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $120.7 million or more 

in any one year (in 2003 dollars) (2 

U.S.C. 1531 et seq.). The FMCSA 

believes the total projected cost of this 

proposal is $14.2 million per year and 

that the cost would be borne solely by 

owner-operators. State and local 

governments may see a reduction in 

enforcement costs, but FMCSA has not 

quantified this because it is not clear 

whether they would seek the same 

enforcement level at a lower cost or 

more enforcement at the same cost. For 

the purposes of this analysis, the agency 

assumed the latter. The FMCSA requests 

additional comments whether this 

should be considered a Federal mandate 

resulting in the expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$120.7 million or more in any one year. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501 et seq.), 

Federal agencies must obtain approval 

from the OMB for each collection of 

information they conduct, sponsor, or 

require through regulations. An analysis 

of this Supplemental Notice of Proposed 

Rulemaking has been made by the 

FMCSA, and it has been determined 

that it relates to the currently-approved 

information collection covered by OMB 

Control No. 2126–0001, entitled ‘‘Hoursof-Service of Drivers Regulations.’’

Information Collection 2126–0001, with 

an annual burden of 160,376,492 hours, 

expires on April 30, 2006. 

This SNPRM intends to clarify each 

motor carrier’s hour-of-service and 

records of duty status responsibilities 

under the current regulations. The 

FMCSA has preliminarily determined 

that this proposal would not result in an 

increase in the existing information 

collection burden. However, the agency 

requests public comment on this 

determination. The OMB currently 

approves this information collection as 

follows: 

OMB Control Number: 2126–0001. 

Title: Hours of Service of Drivers 

Regulations. 

Respondents: 1,538,503,200 (motor 

carriers, CMV drivers). 

Estimated Annual Hour Burden for 

the Information Collection: 160,376,492. 

Estimated Annual Cost to 

Respondents: $63,306,510 (4,220,434 

drivers employing logbooks × $15 per 

year per driver). 

Interested parties are invited to send 

comments regarding any aspect of these 

information collection requirements, 

including, but not limited to: 

(1) Whether the collection of 

information is necessary for the 

performance of the functions of the 

FMCSA, including whether the 

information has practical utility, (2) the 

accuracy of the estimated burden, (3) 

ways to enhance the quality, utility, and 

clarity of the collected information, and 

64012 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

(4) ways to minimize the collection 

burden without reducing the quality of 

the information collected. 

If you submit copies of your 

comments to the Office of Management 

and Budget concerning the information 

collection requirements of this 

document, your comments to OMB will 

be most useful if received at OMB by 

December 3, 2004. You should mail, 

hand deliver, or fax a copy of your 

comments to: Attention: Desk Officer for 

the Department of Transportation, 

Docket Library, Office of Information 

and Regulatory Affairs, Office of 

Management and Budget, Room 10102, 

725 17th Street, NW., Washington, DC 

20503, fax: (202) 395–6566. 

National Environmental Policy Act 

The agency analyzed this 

supplemental proposed rule for the 

purpose of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321 et seq.) and determined under our 

environmental procedures Order 5610.1, 

published March 1, 2004 (69 FR 9680), 

that this action is categorically excluded 

(CE) under Appendix 2, paragraph 

6.y.(7) of the Order from further 

environmental documentation. That CE 

relates to establishing regulations and 

actions taken pursuant to the 

regulations concerning prohibitions on 

motor carriers, agents, officers, 

representatives, and employees from 

making fraudulent or intentionally false 

statements on any application, 

certificate, report, or record. In addition, 

the agency believes that the action 

includes no extraordinary 

circumstances that would have any 

effect on the quality of the environment. 

Thus, the action does not require an 

environmental assessment or an 

environmental impact statement.

We have 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. 

Approval of this action is exempt from 

the CAA’s General conformity 

requirement since it involves policy 

development and civil enforcement 

activities, such as, investigations, 

inspections, examinations, and the 

training of law enforcement personnel. 

See 40 CFR 93.153(c)(2). It would not 

result in any emissions increase nor 

would it have any potential to result in 

emissions that are above the general 

conformity rule’s de minimis emission 

threshold levels. Moreover, it is 

reasonably foreseeable that the rule 

would not increase total CMV mileage, 

change the routing of CMVs, how CMVs 

operate, or the CMV fleet-mix of motor 

carriers. This action merely establishes 

standards for hours-of-service 

supporting document entries on records 

of duty status for motor carriers, agents, 

officers, representatives, and CMV 

drivers. 

We seek comment on these 

determinations. 

Executive Order 13211 (Energy Supply, 

Distribution, or Use) 

We have analyzed this proposed 

action under Executive Order 13211, 

Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. The agency has 

determined preliminarily that this 

proposed action would not significantly 

affect the supply, distribution, or use of 

energy. 

Executive Order 13045 (Protection of 

Children) 

We have analyzed this proposed 

action under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. This proposed rule is not an 

economically significant rule and does 

not concern an environmental risk to 

health or safety that may 

disproportionately affect children. 

Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low income 

Populations) 

The FMCSA evaluated the 

environmental effects of the proposed 

action and alternatives in accordance 

with Executive Order 12898 and 

determined that there were no 

environmental justice issues associated 

with revising the supporting documents 

for records of duty status for the hoursof-service regulations. Environmental 

justice issues would be raised if there 

were ‘‘disproportionate’’ and ‘‘high and 

adverse impact’’ on minority or lowincome populations. FMCSA analyzed 

the demographic makeup of the trucking 

industry potentially affected by the 

proposal and determined that there was 

no disproportionate impact on minority 

or low-income populations. 

Executive Order 12988 (Civil Justice 

Reform) 

This proposed action meets 

applicable standards in sections 3(a) 

and 3(b)(2) of Executive Order 12988, 

Civil Justice Reform, to minimize 

litigation, eliminate ambiguity, and 

reduce burden. 

Executive Order 12630 (Taking of 

Private Property) 

This proposed rule would not affect a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

Executive Order 13132 (Federalism) 

This proposed action has been 

analyzed in accordance with the 

principles and criteria contained in 

Executive Order 13132, dated August 4, 

1999, and it has been determined that it 

would not have significant Federalism 

implications or limit the policymaking 

discretion of the States. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities do not 

apply to this program.

List of Subjects 

49 CFR Part 379

Freight forwarders, Maritime carriers, 

Motor carriers, Moving of household 

goods, Reporting and recordkeeping 

requirements. 

49 CFR Part 381

Motor carriers. 

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.

In consideration of the foregoing, the 

FMCSA proposes to amend 49 CFR 

parts 379, 381, 385, 390, and 395, as set 

forth below:

PART 379—PRESERVATION OF 

RECORDS 

1. The authority citation for part 379 

continues to read as follows:

Authority: 49 U.S.C. 13301, 14122 and 

14123; and 49 CFR 1.73. 

Appendix A to Part 379—[Amended] 

2. Amend Appendix A to 49 CFR part 

379 by removing the phrase ‘‘hours of 

service,’’ from item K.2.

* * * * *

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64013

PART 381—WAIVERS, EXEMPTIONS, 

AND PILOT PROGRAMS 

3. The authority citation for part 381 

is revised to read as follows:

Authority: 49 U.S.C. 31136(e) and 31135; 

sec. 113(b)(4) and (5) of Pub. L. 103–311, 108 

Stat. 1677; and 49 CFR 1.73.

PART 385—SAFETY FITNESS 

PROCEDURES 

4. 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, 31136, 

31144, 31148, and 31502; Sec. 350 of Pub. L. 

107–87; and 49 CFR 1.73.

5. Amend section VII in Appendix B 

to part 385 by revising the citation and 

text for § 395.8(i) and adding citations 

and text for § 395.10(a), (e), and (f), in 

alphanumerical order, to read as 

follows: 

Appendix B to Part 385—Explanation 

of Safety Rating Process

* * * * *

VII. List of Acute and Critical Regulations

* * * * *

§ 395.8(i) Failing to require driver to 

forward within 13 days of completion, the 

original of the record of duty status and all 

supporting documents (critical).

* * * * *

§ 395.10(a) Failing to verify the accuracy of 

paper records of duty status or automatic 

on-board recording device records by 

comparing their information with the 

information contained within each 

supporting document (critical).

§ 395.10(e) Failing to systematically 

identify each supporting document and the 

paper or automatic record of duty status it 

supports (critical).

§ 395.10(f) Failing to maintain each 

supporting document in a manner that 

permits the matching of the record to the 

original driver’s record of duty status 

(critical).

* * * * *

PART 390—FEDERAL MOTOR 

CARRIER SAFETY REGULATIONS; 

GENERAL 

6. The authority citation for part 390 

continues to read as follows:

Authority: 49 U.S.C. 508, 13301, 13902, 

31133, 31136, 31502, 31504, and 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. 217, Pub. L. 106–159, 113 

Stat. 1748, 1767; and 49 CFR 1.73.

7. Amend § 390.5 by revising the 

definition of the term ‘‘employee’’ to 

read as follows:

§ 390.5 Definitions.

* * * * *

Employee means any individual, 

other than an employer, who is 

employed by an employer and who in 

the course of his or her employment 

directly affects commercial motor 

vehicle safety. Such term includes a 

driver of a commercial motor vehicle 

(including an independent contractor 

and an owner-operator while in the 

course of operating a commercial motor 

vehicle), a mechanic, and a freight 

handler. Such term does not include an 

employee of the United States, any 

State, any political subdivision of a 

State, or any agency established under 

a compact between States and approved 

by the Congress of the United States 

who is acting within the course of such 

employment. This definition does not 

affect the status of a driver as an 

independent contractor or employee 

under United States Department of the 

Treasury, Internal Revenue Service 

interpretations of the tax laws or in any 

other context beyond this subchapter.

* * * * *

8. Revise § 390.29(b) to read as 

follows:

§ 390.29 Location of records and 

documents.

* * * * *

(b)(1) All records and documents 

required by this subchapter which are 

maintained at the principal place of 

business must be produced upon 

demand by a special agent of the 

Federal Motor Carrier Safety 

Administration or other authorized 

representative of a Federal, State, local, 

or tribal government. 

(2) All records and documents 

required by this subchapter which are 

maintained at a regional office or driver 

work-reporting location must be made 

available for inspection, upon demand 

by a special agent of the Federal Motor 

Carrier Safety Administration or other 

authorized representative of a Federal, 

State, local, or tribal government at the 

motor carrier’s principal place of 

business or other location specified by 

the special agent or other authorized 

representative within 48 hours after a 

demand is made. Saturdays, Sundays, 

and Federal holidays are excluded from 

the computation of the 48-hour period 

of time. 

9. Revise § 390.31(d) to read as 

follows:

§ 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 an accurate, legible, 

and unaltered printed copy of the 

required data; and provided that 

alternate means for signature 

verification are available.

PART 395—HOURS OF SERVICE OF 

DRIVERS 

10. The authority citation for part 395 

continues to read as follows:

Authority: 49 U.S.C. 504, 14122, 31133, 

31136, and 31502; sec. 113, Pub. L. 103–311, 

108 Stat. 1673, 1676; and 49 CFR 1.73.

11. Amend § 395.1 by revising 

paragraph (a)(1) and adding a new 

paragraph (p) to read as follows:

§ 395.1 Scope of rules in this part. 

(a) General. (1) The rules in this part 

apply to all motor carriers and drivers, 

except as provided in paragraphs (b) 

through (p) of this section.

* * * * *

(p) Private motor carriers of 

passengers (nonbusiness). The 

provisions of § 395.8 do not apply to a 

private motor carrier of passengers 

(nonbusiness) or its drivers. 

12. Amend § 395.2 by revising the 

introductory text and adding the 

definition of ‘‘Supporting document,’’

alphabetically, to read as follows:

§ 395.2 Definitions.

Words or phrases used in this part are 

defined in § 390.5 of this subchapter, 

except as provided in this section—

* * * * *

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 includes, but is not limited to 

any record or document, either written 

or electronic, that is available 

individually or in combination with 

other records or documents, to provide 

a date, time, or location to verify the 

accuracy of a driver’s record of duty 

status. Examples of supporting 

documents include: accident/incident 

reports, bills of lading, border crossing 

reports, carrier pro forma invoices (pros 

or 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 Plan 

64014 Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 

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, weight/scale tickets, and other 

transportation and payroll-related 

documents.

* * * * *

13. Amend § 395.8 by adding 

introductory text and revising 

paragraphs (a), (d)(3), (i), and (k) to read 

as follows:

§ 395.8 Driver’s record of duty status. 

Subject to the exceptions and 

exemptions in § 395.1: 

(a) Every motor carrier must require 

every driver used by the motor carrier 

to systematically and effectively record, 

inspect, verify, and maintain, records of 

all hours of service by duty status for 

each 24-hour period using the methods 

prescribed in either paragraph (a)(1) or 

(2) of this section: 

(1) Every driver who operates a 

commercial motor vehicle must record 

his/her duty status on paper, in 

duplicate, for each 24-hour period. The 

duty status time must be recorded on a 

specified paper 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. The previously 

approved format of the Daily Log, Form 

MCS–59 or the Multi-day Log, MCS–139 

and 139A, which meets the 

requirements of this section, may 

continue to be used; or 

(2) Every driver who operates a 

commercial motor vehicle must record 

his/her duty status by using an 

automatic on-board recording device 

that meets the requirements of § 395.15 

of this part. The requirements of § 395.8 

paragraphs (e) and (k)(1) and (2) of this 

section also apply.

* * * * *

(d) * * *

(3) Vehicle number(s) (Coach, bus, 

truck, tractor, and trailer number(s));

* * * * *

(i) Collecting and filing driver’s paper 

records of duty status and supporting 

documents. Each motor carrier must 

systematically collect drivers’ records of 

duty status and associated supporting 

documents for each driver it uses. The 

driver must systematically collect and 

submit or forward by mail the original 

driver’s record of duty status and all 

associated supporting documents to the 

regular employing motor carrier within 

13 days following the completion of the 

form.

* * * * *

(k) Retention of driver’s record of duty 

status. (1) Each motor carrier must 

systematically maintain records of duty 

status and all associated supporting 

documents for each driver it uses for a 

period of six months from the date of 

receipt. 

(2) The driver must systematically 

retain a copy of each record of duty 

status and all associated supporting 

documents for the previous seven 

consecutive days in his or her 

possession and make it available for 

inspection while on duty.

* * * * *

14. Add § 395.10 to read as follows:

§ 395.10 Systematic verification and 

record retention. 

(a) Every motor carrier must 

systematically and effectively monitor 

its driver’s hours of service and the 

accuracy of the information contained 

on the driver’s record of duty status by 

comparing paper records of duty status, 

as required by § 395.8, or automatic onboard recording device records, as 

required by § 395.15, with information 

contained within supporting 

documents. Each system must enable a 

special agent of the Federal Motor 

Carrier Safety Administration or other 

authorized representative of a Federal, 

State, local, or tribal government to 

verify the drivers’ paper records of duty 

status or automatic on-board recording 

device records using the supporting 

documents. 

(b) A special agent of the Federal 

Motor Carrier Safety Administration or 

other authorized representative of a 

Federal, State, local, or tribal 

government may deem a motor carrier’s 

system to be effective only when the 

special agent or other authorized 

representative finds fewer than 10 

percent of the drivers’ paper records of 

duty status or automatic on-board 

recording device records are false. A 

special agent of the Federal Motor 

Carrier Safety Administration or other 

authorized representative of a Federal, 

State, local, or tribal government may 

use any supporting documents or other 

evidence, whether or not in the motor 

carrier’s possession, to determine the 

validity of the drivers’ paper or 

automatic records of duty status and the 

effectiveness of the motor carrier’s 

supporting document based monitoring 

system. 

(c) If a special agent of the Federal 

Motor Carrier Safety Administration or 

other authorized representative of a 

Federal, State, local, or tribal 

government determines a motor carrier’s 

systematic monitoring is ineffective in 

verifying the drivers’ compliance with 

the hours of service and the accuracy of 

the paper or automatic records of duty 

status, the FMCSA may require the 

carrier to begin to systematically use 

supporting documents that FMCSA 

believes are effective to verify the 

accuracy of the hours of service and 

paper or automatic records of duty 

status. 

(d) Every motor carrier must require 

every driver to retain, and every driver 

must retain, all supporting documents 

containing references to date, time, or 

location, that come into the possession 

of the driver in the ordinary course of 

the driving operation. The driver must 

provide the supporting documents and 

the paper or automatic 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 

driver submits the corresponding record 

of duty status to the motor carrier as 

required by the motor carrier or 

§ 395.8(i) of this part. 

(e) The motor carrier and the driver 

must identify each supporting 

document and the paper or automatic 

record of duty status it supports. A 

motor carrier and a driver must not 

obscure or deface other information 

contained in the supporting document. 

An identification system may include 

legibly adding the driver’s full name, 

date, and vehicle number, if those items 

do not already appear on the document. 

(f) The motor carrier must identify 

each supporting document whether 

received from the driver or from any 

other source including carrier-generated 

documents and electronic systems (i.e., 

global positioning reports, on-board 

computer, transponder reports, scanned, 

or electronically-mailed documents), 

ensure that any electronic or mechanical 

means to reference date, time and 

location in the production of these 

documents is activated, and maintain 

those documents in a manner that 

permits the matching of those records to 

the original driver’s record of duty 

status. 

(g) Supporting documents must be 

provided to any duly authorized 

enforcement official of Federal, State or 

local government upon request or 

demand along with the corresponding 

records of duty status as required in 

§§ 390.29, 390.31, and 395.8(k) of this 

subchapter. 

(h) A motor carrier and a driver may 

be subject to civil or criminal penalties 

under 49 U.S.C. 521 for: 

Federal Register / Vol. 69, No. 212 / Wednesday, November 3, 2004 / Proposed Rules 64015

(1) A failure by the motor carrier to 

prevent a driver from falsifying his 

records of duty status; failure to prevent 

alteration of supporting documents; 

alteration of supporting documents 

which changes their accuracy; or the 

failure to prevent a driver from 

exceeding the hours-of-service; 

(2) A driver’s falsification of a record 

of duty status or alteration of supporting 

documents which changes their 

accuracy; and 

(3) A failure by the motor carrier to 

have an effective system to verify and 

maintain records of duty status and 

supporting documents.

Issued on: October 21, 2004. 

Annette M. Sandberg, 

Administrator.

[FR Doc. 04–24176 Filed 11–2–04; 8:45 am] 

BILLING CODE 4910–EX–P