Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 5537 

ERP = 72.57¥17.08*log10(HAAT) 

* * * * * 

8. Section 73.622 is amended by 

revising paragraphs (f)(6) and (f)(7) to 

read as follows: 

§ 73.622 Digital television table of 

allotments. 

* * * * * 

(f) * * * 

(6) A DTV station that operates on a 

channel 2–6 allotment will be allowed 

a maximum ERP of 40 kW if its antenna 

HAAT is at or below 305 meters and the 

station is located in Zone I or a 

maximum ERP of 45 kW if its HAAT is 

at or below 305 meters and the station 

is located in Zone II or Zone III. An 

existing DTV station that operates on a 

channel 2–6 allotment may request an 

increase in power and/or HAAT up to 

these power levels, provided that the 

increase also complies with the 

provisions of paragraph (f)(5) of this 

section. 

(i) For DTV stations located in Zone 

I that operate on channels 2–6 with an 

antenna HAAT that exceeds 305 meters, 

the allowable maximum ERP, expressed 

in decibels above 1 kW (dBk) is 

determined using the following formula, 

with HAAT expressed in meters: 

ERPmax = 98.57 ¥ 33.24*log10(HAAT) 

(ii) For DTV stations located in Zone 

II or Zone III that operate on channels 

2–6 with an antenna HAAT that exceeds 

305 meters, the allowable maximum 

ERP level is determined from the 

following table (the allowable maximum 

ERP for intermediate values of HAAT is 

determined using linear interpolation 

based on the units employed in the 

table): 

MAXIMUM ALLOWABLE ERP AND ANTENNA HEIGHT FOR DTV STATIONS IN ZONES II OR III ON CHANNELS 2–6 

Antenna HAAT 

(meters) 

ERP 

(kW) 

610 ............................................ 10 

580 ............................................ 11 

550 ............................................ 12 

520 ............................................ 14 

490 ............................................ 16 

460 ............................................ 19 

425 ............................................ 22 

395 ............................................ 26 

365 ............................................ 31 

335 ............................................ 37 

305 ............................................ 45 

(iii) For DTV stations located in Zone 

II or Zone III that operate on channels 

2–6 with an antenna HAAT that exceeds 

610 meters, the allowable maximum 

ERP expressed in decibels above 1 kW 

(dBk) is determined using the following 

formula, with HAAT expressed in 

meters: 

ERPmax = 57.57 ¥ 17.08*log10(HAAT) 

(7) A DTV station that operates on a 

channel 7–13 allotment will be allowed 

a maximum ERP of 120 kW if its 

antenna HAAT is at or below 305 meters 

and the station is located in Zone I or 

a maximum ERP of 160 kW if its HAAT 

is at or below 305 meters and the station 

is located in Zone II or Zone III. An 

existing DTV station that operates on a 

channel 7–13 allotment may request an 

increase in power and/or HAAT up to 

these power levels, provided that the 

increase also complies with the 

provisions of paragraph (f)(5) of this 

section. 

(i) For DTV stations located in Zone 

I that operate on channels 7–13 with an 

antenna HAAT that exceeds 305 meters, 

the allowable maximum ERP, expressed 

in decibels above 1 kW (dBk) is 

determined using the following formula, 

with HAAT expressed in meters: 

ERPmax = 103.35 ¥ 33.24*log10(HAAT) 

(ii) For DTV stations located in Zone 

II or Zone III that operate on channels 

7–13 with an antenna HAAT above 305 

meters, the allowable maximum ERP 

level is determined from the following 

table (the allowable maximum ERP for 

intermediate values of HAAT is 

determined using linear interpolation 

based on the units employed in the 

table): 

MAXIMUM ALLOWABLE ERP AND ANTENNA HEIGHT FOR DTV STATIONS IN ZONES II OR III ON CHANNELS 7–13 

Antenna HAAT 

(meters) 

ERP 

(kW) 

610 ............................................ 30 

580 ............................................ 34 

550 ............................................ 40 

520 ............................................ 47 

490 ............................................ 54 

460 ............................................ 64 

425 ............................................ 76 

395 ............................................ 92 

365 ............................................ 110 

335 ............................................ 132 

305 ............................................ 160 

(iii) For DTV stations located in Zone 

II or Zone III that operate on channels 

7–13 with an antenna HAAT that 

exceeds 610 meters, the allowable 

maximum ERP expressed in decibels 

above 1 kW (dBk) is determined using 

the following formula, with HAAT 

expressed in meters: 

ERPmax = 62.34 ¥ 17.08*log10(HAAT) 

* * * * * 

[FR Doc. 2011–2102 Filed 1–31–11; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 385, 390, and 395 

[Docket No. FMCSA–2010–0167] 

RIN 2126–AB20 

Electronic On-Board Recorders and 

Hours of Service Supporting 

Documents 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

proposes to amend the Federal Motor 

Carrier Safety Regulations (FMCSRs) to 

require certain motor carriers operating 

commercial motor vehicles (CMVs) in 

interstate commerce to use electronic 

on-board recorders (EOBRs) to 

document their drivers’ hours of service 

(HOS). Under this proposal, all motor 

carriers currently required to maintain 

Records of Duty Status (RODS) for HOS 

recordkeeping would be required to use 

EOBRs to systematically and effectively 

monitor their drivers’ compliance with 

HOS requirements. Additionally, this 

proposal sets forth the supporting 

documents that all motor carriers 

currently required to use RODS would 

still be required to obtain and keep, as 

required by section 113(a) of the 

Hazardous Materials Transportation 

Authorization Act (HMTAA). It 

explains, however, that although motor 

carriers subject to the proposed EOBR 

requirements would still need to retain 

some supporting documents, they 

would be relieved of the requirements to 

retain supporting documents to verify 

driving time. FMCSA also proposes to 

require all motor carriers—both RODS 

and timecard users—to systematically 

monitor their drivers’ compliance with 

HOS requirements. Motor carriers 

would be given 3 years after the 

effective date of the final rule to comply 

with these requirements. 

DATES: Comments must be received on 

or before April 4, 2011. Comments sent 

to the Office of Management and Budget 

(OMB) on the collection of information 

must be received by OMB on or before 

April 4, 2011. 

ADDRESSES: You may submit comments 

identified by Docket Number FMCSA– 

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5538 Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 

2010–0167 using any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building, 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: West 

Building, Ground Floor, Room W12– 

140, 1200 New Jersey Avenue, SE., 

between 9 a.m. and 5 p.m. e.t., Monday 

through Friday, except Federal holidays. 

• Fax: 202–493–2251. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments, including collection of 

information comments for the Office of 

Information and Regulatory Affairs 

(OIRA), OMB. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Deborah M. Freund, Vehicle and 

Roadside Operations Division, Office of 

Bus and Truck Standards and 

Operations, Federal Motor Carrier Safety 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001 or by telephone at (202) 366–5370. 

SUPPLEMENTARY INFORMATION: This 

NPRM is organized as follows: 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

D. Collection of Information Comments 

E. Pilot Project on Open Government and 

the Rulemaking Process 

II. Abbreviations and Acronyms 

III. Legal Basis for the Rulemaking 

A. Authority: EOBR 

B. Authority: Supporting Documents 

IV. Background 

A. On-Board Recording Devices—History 

of HOS Records of Duty Status (RODS) 

Regulations 

B. Supporting Documents Requirements 

1. History of Supporting Documents 

Requirement 

2. Treatment of Supporting Documents in 

the April 5, 2010, EOBR Final Rule 

V. Agency Proposal 

A. Requirement for Mandatory EOBR Use 

(49 CFR 395.8) 

1. Scope 

2. Transition Period and Compliance Date 

3. Incentives During the Transition 

B. Supporting Documents: Discussion of 

New Proposal 

1. HOS Management System 

2. Definition of ‘‘Supporting Document’’ (49 

CFR 395.2) 

3. Information in Supporting Documents 

(49 CFR 395.11(e)(1)) 

4. Number, Type, and Frequency of 

Supporting Documents (49 CFR 

395.11(e)(2) and (3)) 

5. Certification Provision (49 CFR 

395.11(f)) 

6. Retention and Maintenance of 

Supporting Documents (49 CFR 

395.8(k)(1)) 

7. Motor Carrier Self-Compliance Systems 

VI. Rulemaking Analyses 

I. Public Participation and Request for 

Comments 

FMCSA encourages you to participate 

in this rulemaking by submitting 

comments and related materials. All 

comments received will be posted 

without change to http://www.

regulations.gov and will include any 

personal information you provide. 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (FMCSA–2010–0167), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online or by fax, mail, or hand 

delivery, but please use only one of 

these means. FMCSA recommends that 

you include your name and a mailing 

address, an e-mail address, or a phone 

number in the body of your document 

so that FMCSA can contact you if there 

are questions regarding your 

submission. 

To submit your comment online, go to 

http://www.regulations.gov and click on 

the ‘‘submit a comment’’ box, which will 

then become highlighted in blue. In the 

‘‘Document Type’’ drop down menu, 

select ‘‘Proposed Rules,’’ insert 

‘‘FMCSA–2010–0167’’ in the ‘‘Keyword’’ 

box, and click ‘‘Search.’’ When the new 

screen appears, click on ‘‘Submit a 

Comment’’ in the ‘‘Actions’’ column. If 

you submit your comments by mail or 

hand delivery, submit them in an 

unbound format, no larger than 81⁄2 by 

11 inches, suitable for copying and 

electronic filing. If you submit 

comments by mail and would like to 

know that they reached the facility, 

please enclose a stamped, self-addressed 

postcard or envelope. 

FMCSA will consider all comments 

and material received during the 

comment period and may change this 

proposed rule based on your comments. 

B. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble, 

available in the docket, go to http://

www.regulations.gov and click on the 

‘‘read comments’’ box in the upper right 

hand side of the screen. Then, in the 

‘‘Keyword’’ box insert ‘‘FMCSA–2010– 

0167’’ and click ‘‘Search.’’ Next, click the 

‘‘Open Docket Folder’’ in the ‘‘Actions’’ 

column. Finally, in the ‘‘Title’’ column, 

click on the document you would like 

to review. If you do not have access to 

the Internet, you may view the docket 

online by visiting the Docket 

Management Facility in Room W12–140 

on the ground floor of the Department 

of Transportation West Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

C. Privacy Act 

Anyone may search the electronic 

form of comments received into any of 

our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review DOTs 

complete Privacy Act Statement in the 

Federal Register notice published on 

April 11, 2000 (65 FR 19476). 

D. Collection of Information Comments 

If you have comments on the 

collection of information discussed in 

this notice of proposed rulemaking 

(NPRM), you must also send those 

comments to the OIRA, OMB. To ensure 

that your comments are received on 

time, the preferred methods of 

submission are by e-mail to oira_

submissions@omb.eop.gov (include 

docket number ‘‘FMCSA–2010–0167’’ 

and ‘‘Attention: Desk Officer for 

FMCSA, DOT’’ in the subject line of the 

e-mail) or fax at 202–395–6566. An 

alternate, though slower, method is by 

U.S. mail to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW., Washington, DC 20503, 

ATTN: Desk Officer, FMCSA, DOT. 

E. Pilot Project on Open Government 

and the Rulemaking Process 

On January 21st, 2009, President 

Obama issued a Memorandum on 

Transparency and Open Government in 

which he described how: ‘‘Public 

engagement enhances the Government’s 

effectiveness and improves the quality 

of its decisions. Knowledge is widely 

dispersed in society, and public officials 

benefit from having access to that 

dispersed knowledge.’’ 

To support the President’s open 

government initiative, DOT has 

partnered with the Cornell eRulemaking 

Initiative (CeRI) in a pilot project, 

Regulation Room, to discover the best 

ways of using Web 2.0 and social 

networking technologies to: (1) Alert the 

public, including those who sometimes 

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Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 5539 

may not be aware of rulemaking 

proposals, such as individuals, public 

interest groups, small businesses, and 

local government entities that 

rulemaking is occurring in areas of 

interest to them; (2) increase public 

understanding of each proposed rule 

and the rulemaking process; and (3) 

help the public formulate more effective 

individual and collaborative input to 

DOT. Over the course of several 

rulemaking initiatives, CeRI will use 

different Web technologies and 

approaches to enhance public 

understanding and participation, work 

with DOT to evaluate the advantages 

and disadvantages of these techniques, 

and report their findings and 

conclusions on the most effective use of 

social networking technologies in this 

area. 

DOT and the Obama Administration 

are striving to increase effective public 

involvement in the rulemaking process 

and strongly encourage all parties 

interested in this rulemaking to visit the 

Regulation Room Web site, http://www.

regulationroom.org, to learn about the 

rule and the rulemaking process, to 

discuss the issues in the rule with other 

persons and groups, and to participate 

in drafting comments that will be 

submitted to DOT. In this rulemaking, 

CeRI will submit to the rulemaking 

docket a Summary of the discussion that 

occurs on the Regulation Room site; 

participants will have the chance to 

review a draft and suggest changes 

before the Summary is submitted. 

Participants who want to further 

develop ideas contained in the 

Summary, or raise additional points, 

will have the opportunity to 

collaboratively draft joint comments 

that will be also be submitted to the 

rulemaking docket before the comment 

period closes. 

Note that Regulation Room is not an 

official DOT Web site, and so 

participating in discussion on that site 

is not the same as commenting in the 

rulemaking docket. The Summary of 

discussion and any joint comments 

prepared collaboratively on the site will 

become comments in the docket when 

they are submitted to DOT by CeRI. At 

any time during the comment period, 

anyone using Regulation Room can also 

submit individual views to the 

rulemaking docket through the Federal 

rulemaking portal Regulations.gov, or by 

any of the other methods identified at 

the beginning of this Notice. 

For questions about this project, 

please contact Brett Jortland in the DOT 

Office of General Counsel at (202) 366– 

9314 or at brett.jortland@dot.gov. 

II. Abbreviations and Acronyms 

Advanced Notice of Proposed 

Rulemaking—ANPRM 

American National Standards 

Institute—ANSI 

American Standard Code for 

Information Interchange—ASCII 

American Trucking Associations—ATA 

Automatic On-Board Recording 

Devices—AOBRD 

Behavior Analysis Safety Improvement 

Categories—BASICs 

Clean Air Act—CAA 

Code of Federal Regulations—CFR 

Commercial Driver’s License—CDL 

Commercial Motor Vehicle—CMV 

Comprehensive Safety Analysis—CSA 

Department of Labor—DOL 

Department of Transportation—DOT 

Electronic On-Board Recorder—EOBR 

Environmental Assessment—EA 

Federal Highway Administration— 

FHWA 

Federal Motor Carrier Safety 

Administration—FMCSA 

Federal Motor Carrier Safety 

Regulations—FMCSRs 

Federal Register—FR 

Fleet Management System—FMS 

Global Positioning System—GPS 

Hazardous Materials—HM 

Hazardous Materials Transportation 

Authorization Act of 1994—HMTAA 

Hours-of-Service—HOS 

Interstate Commerce Commission—ICC 

Interstate Commerce Commission 

Termination Act of 1995—ICCTA 

Intelligent Vehicle Highway System 

Act—IVHSA 

Long-Haul—LH 

Motor Carrier Management Information 

System—MCMIS 

Motor Carrier Safety Assistance 

Program—MCSAP 

National Environmental Policy Act of 

1969—NEPA 

National Transportation Safety Board— 

NTSB 

North American Industrial 

Classification System—NAICS 

Notice of Proposed Rulemaking—NPRM 

Office of Information and Regulatory 

Affairs—OIRA 

Office of Management and Budget— 

OMB 

On-duty-not-driving—ODND 

Personal Identification Number—PIN 

Personally Identifiable Information—PII 

Power Unit—PU 

Privacy Impact Assessment—PIA 

Record of Duty Status—RODS 

Regulatory Impact Analysis—RIA 

Safe, Accountable, Flexible, Efficient 

Transportation Act: A Legacy for 

Users—SAFETEA–LU 

Safety Management System—SMS 

Short-Haul—SH 

Small Business Administration—SBA 

Supplemental Notice of Proposed 

Rulemaking—SNPRM 

Transportation Equity Act for the 21st 

Century—TEA–21 

United States Code—U.S.C. 

Value of a Statistical Life—VSL 

III. Legal Basis for the Rulemaking 

This NPRM would improve CMV 

safety and reduce paperwork burden by 

increasing the use of EOBRs within the 

motor carrier industry, which will 

improve HOS compliance. The 

approach has three components: 

(1) Requiring EOBRs to be used by 

considerably more motor carriers and 

drivers than those covered by the 

Agency’s April 5, 2010 final rule that 

addressed the remedial use of EOBRs for 

motor carriers with significant HOS 

violations (2) requiring motor carriers to 

develop and maintain systematic HOS 

oversight of their drivers, and (3) 

simplifying the supporting documents 

requirements so motor carriers can make 

the best use of EOBRs and their support 

systems as their primary means of 

recording HOS information and 

ensuring HOS compliance. 

A. Authority: EOBR 

The Motor Carrier Act of 1935 (Pub. 

L. 74–255, 49 Stat. 543, August 9, 1935, 

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

1935 Act) provides that ‘‘[t]he Secretary 

of Transportation may prescribe 

requirements for—(1) Qualifications and 

maximum hours of service of employees 

of, and safety of operation and 

equipment of, a motor carrier; and (2) 

qualifications and maximum hours of 

service of employees of, and standards 

of equipment of, a motor private carrier, 

when needed to promote safety of 

operation.’’ This NPRM addresses 

‘‘safety of operation and equipment’’ of 

motor carriers and ‘‘standards of 

equipment’’ of motor private carriers 

and, as such, is well within the 

authority of the 1935 Act. 

The Motor Carrier Safety Act of 1984 

(Pub. L. 98–554, Title II, 98 Stat. 2832, 

October 30, 1984, now codified at 49 

U.S.C. 31136) (the 1984 Act) provides 

concurrent authority to regulate drivers, 

motor carriers, and vehicle equipment. 

It requires the Secretary to: 

Prescribe regulations on commercial motor 

vehicle safety. The regulations shall prescribe 

minimum safety standards for commercial 

motor vehicles. At a minimum, the 

regulations shall ensure that—(1) commercial 

motor vehicles are maintained, equipped, 

loaded, and operated safely; (2) the 

responsibilities imposed on operators of 

commercial motor vehicles do not impair 

their ability to operate the vehicles safely; (3) 

the physical condition of operators of 

commercial motor vehicles is adequate to 

enable them to operate the vehicles safely; 

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5540 Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 

1For a more complete regulatory history of 

EOBRs, please refer to the preambles of the 2004 

EOBR ANPRM and 2007 EOBR NPRM (Docket: 

FMCSA–2004–18940). 

2These exceptions are listed in 49 CFR 395.1. 

and (4) the operation of commercial motor 

vehicles does not have a deleterious effect on 

the physical condition of the operators (49 

U.S.C. 31136(a)). 

Section 211 of the 1984 Act also 

grants the Secretary broad power in 

carrying out motor carrier safety statutes 

and regulations to ‘‘prescribe 

recordkeeping and reporting 

requirements’’ and to ‘‘perform other 

acts the Secretary considers 

appropriate’’ (49 U.S.C. 31133(a)(8) and 

(10)). 

The HOS regulations are designed to 

ensure that driving time—one of the 

principal ‘‘responsibilities imposed on 

the operators of commercial motor 

vehicles’’—does ‘‘not impair drivers’ 

ability to operate the vehicles safely’’ (49 

U.S.C. 31136(a)(2)). EOBRs that are 

properly designed, used, and 

maintained would not only permit 

motor carriers to schedule vehicle and 

driver operations more efficiently, but 

would also enable motor carriers to 

more effectively and accurately track 

their drivers’ on-duty driving hours, 

thus preventing HOS violations and 

resulting crashes. Requirements that 

motor carriers retain certain other 

supporting documents, in addition to 

EOBR records, further assist the Agency 

in ensuring driver and motor carrier 

compliance with the HOS rules. Driver 

compliance with the HOS rules, in turn, 

helps ensure that ‘‘the physical 

condition of [commercial motor vehicle 

drivers] is adequate to enable them to 

operate the vehicles safely’’ (49 U.S.C. 

31136(a)(3)). Indeed, the Agency 

considered whether this proposal would 

impact driver health under 49 U.S.C. 

31136(a)(3) and (a)(4). Because the 

proposal could increase compliance 

with the HOS regulations, including 

driving and off-duty time requirements, 

it would actually have a positive effect 

on the physical condition of drivers. 

(See the discussion of health impacts at 

Section VI of this NPRM regarding 

environmental analyses.) 

The requirements in 49 U.S.C. 

31136(a)(1) concerning safe motor 

vehicle maintenance, equipment, and 

loading are not germane to this 

proposed rule because EOBRs and 

supporting documents influence driver 

operational safety rather than vehicular 

and mechanical safety. Consequently, 

the Agency has not assessed the 

proposed rule against that requirement. 

However, to the limited extent 49 U.S.C. 

31136(a)(1) pertains specifically to 

driver safety, the Agency has taken this 

statutory requirement into account 

throughout the proposal. 

Section 9104 of the Truck and Bus 

Safety and Regulatory Reform Act (Pub. 

L. 100–690, November 18, 1988, 102 

Stat. 4181, at 4529) also anticipates the 

Secretary promulgating ‘‘a regulation 

about the use of monitoring devices on 

commercial motor vehicles to increase 

compliance by operators of the vehicles 

with hours of service regulations’’ and 

requires the Agency to ensure that any 

such device is not used to ‘‘harass 

vehicle operators’’ (49 U.S.C. 31137(a)). 

Based on the statutory framework 

reviewed previously, FMCSA has the 

authority to adopt an industry-wide 

requirement that all motor carriers 

subject to HOS requirements under 49 

CFR part 395 install and use EOBRbased systems. 

B. Authority: Supporting Documents 

Section 113(a) of the HMTAA requires 

the Secretary to prescribe regulations to 

improve—(A) compliance by CMV 

drivers and motor carriers with HOS 

requirements; and (B) the effectiveness 

and efficiency of Federal and State 

enforcement officers reviewing such 

compliance. The cost of such 

regulations must be reasonable to 

drivers and motor carriers (section 

113(a)(2)). 

HMTAA section 113(b) describes 

what elements must be covered in the 

new regulations. HMTAA section 

113(b)(1) states that the regulations must 

allow for a ‘‘written or electronic 

document * * * to be used by a motor 

carrier or by an enforcement officer as 

a supporting document to verify the 

accuracy of a driver’s record of duty 

status [RODS].’’ The legislative history 

emphasizes that requiring the retention 

of supporting documents would allow 

enforcement personnel to support or 

disprove allegations of HOS violations, 

including preventing firms from playing 

‘‘hide and seek’’ or discarding 

supporting documents (S. 1640, 140 

Cong. Rec. S11320, S11323, 1994 WL 

422479, August 11, 1994). Section 

113(b)(1) further directs the Secretary to 

include in the regulations a description 

of identification items (that include 

either driver name or vehicle number) 

that would facilitate matching these 

supporting documents with RODS. 

Section 113(b)(2) states that the 

regulations shall specify the ‘‘number, 

type, and frequency of supporting 

documents that must be retained by the 

carrier.’’ 

Section 113(b)(3) requires that the 

regulations specify that supporting 

documents shall be retained by the 

motor carrier for at least 6 months from 

the date of a document’s receipt. 

Section 113(b)(4) calls for the Agency 

to draft regulations ‘‘* * * to authorize, 

on a case-by-case basis, self compliance 

systems * * *’’ for motor carriers, 

including ‘‘a group’’ of motor carriers. 

Under section 113(b)(5), the Agency 

shall include a provision in its 

regulations that allows the Agency to 

issue waivers from certain requirements 

under 49 CFR 395.8(k) when sufficient 

supporting documentation is provided 

to enforcement personnel through an 

intelligent-vehicle highway system, as 

defined by section 6059 of the 

Intelligent Vehicle Highway Systems 

Act (IVHSA) (Pub. L. 102–240, 

December 18, 1991, 105 Stat. 2189, 

2195). The Federal Highway 

Administration (FHWA), the 

predecessor organization to FMCSA 

within the Department of 

Transportation (DOT), did not draft the 

regulations authorized under section 

113(b)(5). The IVHSA was subsequently 

repealed (see section 5213 of TEA–21, 

112 Stat. 463); there currently is no 

statutory guidance on waivers as the 

term was used in section 113(b)(5). 

However, this provision does not affect 

this rulemaking because other 

regulatory avenues exist for motor 

carriers to apply for waivers, 

exemptions, and pilot programs. 

Section 113(c) defines a supporting 

document as ‘‘any document that is 

generated or received by a motor carrier 

or commercial motor vehicle driver in 

the normal course of business that could 

be used, as produced or with additional 

identifying information, to verify the 

accuracy of a driver’s record of duty 

status.’’ Consequently, this NPRM does 

not propose to require generation of new 

documents outside the normal course of 

the carrier’s business. 

IV. Background 

A. On-Board Recording Devices— 

History of HOS Records of Duty Status 

(RODS) Regulations 1

Current Federal HOS regulations 

(49 CFR part 395) limit the number of 

hours a CMV driver may drive. The 

regulations also limit, during each 7- or 

8-day period, the maximum on-duty 

time before driving is prohibited 

(exceptions are listed in 49 CFR 

395.1(k), (n), and (o)). Such rules are 

needed to prevent CMV operators from 

driving for long periods without 

opportunities to obtain adequate sleep. 

Sufficient sleep is necessary to ensure 

that a driver is alert behind the wheel 

and able to respond appropriately to 

changes in the driving environment. 

With certain exceptions,2 motor 

carriers and drivers are required by 49 

CFR 395.8 to keep RODS to track 

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Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 5541 

driving, on-duty, and off-duty time. 

FMCSA and State agencies use these 

records to ensure compliance with the 

HOS rules. 

On April 5, 2010, the Agency issued 

a final rule that addressed the limited, 

remedial use of EOBRs for motor 

carriers with significant HOS violations 

(75 FR 17208). That final rule required 

a motor carrier that was found during a 

compliance review to have a 10 percent 

violation rate for any HOS regulation in 

Appendix C of 49 CFR part 385 to 

install and use EOBRs on all of that 

carrier’s CMVs. The compliance or 

implementation date for the rule is June 

4, 2012. Although FMCSA received 

comments recommending expanding 

the reach of the rule beyond the number 

of motor carriers the 2010 remedial 

directive is estimated to affect, the 

limited scope of the NPRM prevented 

the Agency from doing so. As noted in 

the preamble to the 2010 final rule, 

however, FMCSA recognizes that the 

potential safety risks associated with 

HOS violations are such that mandatory 

EOBR use for a broader population 

might be appropriate. Accordingly, this 

proposed rule would expand the scope 

of mandatory EOBR use beyond the 

population of motor carriers that are or 

would be subject to a remedial directive 

as a result of the April 2010 final rule. 

This NPRM honors the Agency’s 

commitment to safety by taking action 

to improve compliance with the HOS 

rules. It responds to issues that would 

have been addressed in the April 2010 

final rule were it not for the limited 

scope of the NPRM. As FMCSA noted in 

its April 2010 final rule: 

Numerous commenters to the NPRM 

[January 18, 2007 (72 FR 2340)] stated that 

the proposal still would not require EOBR 

use by enough carriers to make a meaningful 

difference in highway safety, relative to the 

total carrier population. The FMCSA 

acknowledges the safety concerns of the 

commenters. In response to those concerns, 

the Agency will explore the safety benefits of 

a broader EOBR mandate in a new 

rulemaking proceeding that will begin in the 

near future. 

B. Supporting Documents Requirements 

1. History of Supporting Documents 

Requirement 

A fundamental principle of the 

FMCSRs, stated in 49 CFR 390.11, is 

that a motor carrier has the duty to 

require its drivers to comply with the 

FMCSRs, including HOS-related duties 

and prohibitions. Motor carriers have 

historically required their drivers, as a 

condition of employment, to provide 

supporting documents, such as fuel 

receipts, toll receipts, bills of lading, 

and repair invoices. They compare these 

documents to the drivers’ entries on the 

RODS (or the record provided by the 

automatic on-board recording device 

(AOBRD) or EOBR, if such a device is 

used) to help verify the accuracy of the 

HOS reported by their CMV drivers. The 

FMCSRs require motor carriers to retain 

these supporting documents, as well as 

the paper and electronic RODS, for a 

period of 6 months from the date of 

receipt. 

Although the FMCSRs have always 

required a ‘‘remarks’’ section to augment 

the duty status information contained in 

the RODS document, it was not until 

January 1983 that the use of supporting 

documents was explicitly required. The 

final rule revising the recordkeeping 

requirements for 49 CFR part 395 to 

explicitly require supporting documents 

was published November 26, 1982 

(47 FR 53383); but the rule did not 

define the term ‘‘supporting 

documents,’’ and questions arose 

concerning what the Agency expected 

motor carriers to retain. 

On November 17, 1993 the Agency 

published regulatory guidance 

(Regulatory Guidance for the Federal 

Motor Carriers Safety Regulations 

(58 FR 60734)) on a variety of topics, 

including supporting documents. 

Supporting documents were the subject 

of Question 10 for 49 CFR 395.8 which 

provides in pertinent part: 

Question 10: What regulation, 

interpretation, and/or administrative ruling 

requires a motor carrier to retain supporting 

documents and what are those documents? 

Guidance: Section 395.8(k)(1) requires 

motor carriers to retain all supporting 

documents at their principal places of 

business for a period of 6 months from date 

of receipt. 

Supporting documents are the records of 

the motor carrier which are maintained in the 

ordinary course of business and used by the 

motor carrier to verify the information 

recorded on the driver’s record of duty status. 

Examples are: Bills of lading, carrier pros, 

freight bills, dispatch records, driver call-in 

records, gate record receipts, weight/scale 

tickets, fuel receipts, fuel billing statements, 

toll receipts, international registration plan 

receipts, international fuel tax agreement 

receipts, trip permits, port of entry receipts, 

cash advance receipts, delivery receipts, 

lumper receipts, interchange and inspection 

reports, lessor settlement sheets, over/short 

and damage reports, agricultural inspection 

reports, CVSA reports, accident reports, 

telephone billing statements, credit card 

receipts, driver fax reports, on-board 

computer reports, border crossing reports, 

custom declarations, traffic citations, 

overweight/oversize reports and citations, 

and/or other documents directly related to 

the motor carrier’s operation, which are 

retained by the motor carrier in connection 

with the operation of its transportation 

business. 

The following year, in HMTAA 

section 113, Congress directed the 

Agency to prescribe regulations to 

amend 49 CFR part 395 to improve 

driver and motor carrier compliance 

with the HOS regulations. (See the Legal 

Basis section of this NPRM.) Section 113 

also defined supporting documents in a 

manner nearly identical to the Agency’s 

regulatory guidance: ‘‘For purposes of 

this section, a supporting document is 

any document that is generated or 

received by a motor carrier or 

commercial motor vehicle driver in the 

normal course of business that could be 

used, as produced or with additional 

identifying information, to verify the 

accuracy of a driver’s record of duty 

status’’ (HMTAA sec. 113(b)(1)). 

In its revised regulatory guidance, 

published on April 4, 1997 (Regulatory 

Guidance for the Federal Motor Carrier 

Safety Regulations (62 FR 16370)), the 

Agency emphasized the need for motor 

carriers to provide adequate HOS 

oversight. Specifically, the Agency 

added two Q&A guidance items to 49 

CFR 395.3: 

Question 7: What is the liability of a motor 

carrier for hours of service violations? 

Guidance: The carrier is liable for 

violations of the hours of service regulations 

if it had or should have had the means by 

which to detect the violations. Liability 

under the FMCSRs does not depend upon 

actual knowledge of the violations. 

Question 8: Are carriers liable for the 

actions of their employees even though the 

carrier contends that it did not require or 

permit the violations to occur? 

Guidance: Yes. Carriers are liable for the 

actions of their employees. Neither intent to 

commit, nor actual knowledge of, a violation 

is a necessary element of that liability. 

Carriers ‘‘permit’’ violations of the hours of 

service regulations by their employees if they 

fail to have in place management systems 

that effectively prevent such violations 

(65 FR 16370, 16424). 

A year later, on April 20, 1998, the 

Agency published an NPRM in which it 

proposed to define ‘‘supporting 

documents’’ identically to the HMTAA 

definition (63 FR 19457). It also 

proposed requiring motor carriers to 

develop and use an HOS supporting 

document auditing system that would 

include a procedural manual. The 

manual would identify the types of 

documents used, specify how the audit 

system would work, how drivers 

recording inaccurate information on 

their RODS would be notified, and how 

a carrier would take corrective action to 

improve drivers’ compliance. If a motor 

carrier did not have a supporting 

document auditing system, it would 

have to maintain various types of 

business documents and require its 

drivers to collect and submit those 

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5542 Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 

documents in order to support the 

accuracy of the drivers’ RODS. Finally, 

the NPRM proposed to allow use of 

‘‘automated, electronic, or laser 

technology’’ systems to maintain copies 

of records or documents, including 

those requiring a signature, so long as 

the motor carrier was able to provide 

alternate means for signature 

verification. 

Many commenters to the 1998 NPRM 

expressed concern that the Agency was 

considering addressing HOS supporting 

documents separately from the HOS 

advance notice of proposed published 

on November 5, 1996 (61 FR 57252). 

FMCSA responded by including 

proposed changes to the methods of 

verifying HOS compliance through 

supporting documents in its May 2, 

2000, NPRM on HOS regulations (65 FR 

25540). The supporting documents 

section of that NPRM focused upon 

operations involving long or regional 

trips away from a home base with little 

supervision of, contact with, or control 

over the driver. The Agency proposed 

that the paperwork burdens for all other 

operations be minimized and stated 

that, whenever possible, FMCSA would 

be prepared to accept records that are 

required by other Federal agencies. 

Notably, the Department of Labor’s 

(DOLs) Wage and Hour Division 

regulations require motor carrier 

employers to maintain time records for 

2 years (29 CFR part 516). The Agency 

believed this approach would meet the 

requirements of section 113 of the 

HMTAA and be consistent with the dual 

objectives of (1) improving the 

enforcement of the HOS regulations and 

(2) simplifying the recordkeeping 

requirements of motor carriers. 

The April 2003 HOS final rule did not 

implement the HMTAA provision for 

supporting documents as proposed. One 

of the reasons was that the Agency 

decided to not move forward with its 

May 2000 proposal for five motor carrier 

operational categories (long-haul (LH), 

regional, and three types of local 

operations), with significantly different 

recordkeeping requirements for the local 

and for the regional and LH carriers. 

However, the final rule did state (at 68 

FR 22490): 

A motor carrier’s responsibility for 

compliance with the HOS regulations 

remains clear. The motor carrier is 

responsible for and must police the actions 

of its employees. This obligation under the 

FMCSRs was affirmed by the Associate 

Administrator for what was then the Office 

of Motor Carriers (of the FHWA). In the 

Matter of Horizon Transportation, Inc., 55 FR 

43292 (October 26, 1990) (Final Order 

February 12, 1990). A motor carrier’s 

responsibility for the actions of independent 

contractors and owner operators it uses was 

outlined in the matter of In re R.W. Bozel 

Transfers, Inc, 58 FR 16918 (March 31, 1993) 

(Final Order August 6, 1992); and more 

recently In the Matter of Commodity Carriers, 

Inc., (Order Appointing Administrative Law 

Judge March 25, 1997). Likewise, each motor 

carrier must have a system in place that 

allows it to effectively monitor compliance 

with the FMCSRs, especially those aimed at 

the issue of this Final Rule—driver fatigue 

[see In re National Retail Transportation, Inc. 

(Final Order: Decision on Review September 

12, 1996)]. The United States Court of 

Appeals for the Sixth Circuit affirmed in A.D. 

Transport Express Inc. v. Federal Motor 

Carrier Safety Administration, 290 F. 3d 761 

(6th Cir. 2002), that supporting documents 

must be maintained in a common sense 

manner so that FMCSA investigators can 

‘‘verify dates, times, and locations of drivers 

recorded on the RODS.’’ More recently, the 

DC Circuit agreed that the term ‘‘supporting 

documents’’ in the current rule encompasses 

any document that could be used to support 

the RODS. That decision also found an 

FMCSA requirement that supporting 

documents must be maintained in a fashion 

that permits the matching of those records to 

the original drivers’ RODS as a reasonable 

interpretation of 49 CFR 395.8(k)(1). In fact, 

the Court concluded that all the FMCSA is 

asking is that carriers refrain from destroying 

the agency’s ability to match records with 

their associated drivers (Darrell Andrews 

Trucking v. Federal Motor Carrier Safety 

Administration, 296 F. 3d 1120 (DC Cir. 

2002)). 

FMCSA published a supplemental 

NPRM (SNPRM) on supporting 

documents on November 3, 2004 (69 FR 

63997). The SNPRM proposed that 

motor carriers must review and verify 

the HOS records of both employee 

drivers and independent owneroperators proposed to require that 

drivers submit to the motor carrier all 

supporting documents along with the 

RODS; and specified that motor carriers 

must maintain supporting documents in 

a method that allows cross reference to 

the RODS. The SNPRM also proposed a 

self-monitoring system for supporting 

documents that would be a carrier’s 

primary method for ensuring 

compliance with the HOS regulations: 

An FMCSA Special Agent or other 

authorized government safety official 

could deem a system to be effective if 

fewer than 10 percent of the drivers’ 

paper RODS or AOBRD records were 

found to be false. Finally, the SNPRM 

also proposed to permit the use of 

electronic documents as a supplement 

to, and, in certain circumstances, in lieu 

of, paper supporting documents. 

Commenters on the SNPRM raised 

concerns with the number and quality 

of supporting documents drivers and 

carriers were expected to obtain and 

retain; the lack of specificity of the selfmonitoring system; the potential 

burdens for motor carriers to verify, 

inspect, and maintain these documents 

and link them to RODS; and the 

availability of sufficient FMCSA 

resources to enforce the regulation and 

to assess applications for exemptions. In 

addition, the Agency discovered a 

longstanding error in the computation of 

the information collection burden 

associated with the HOS regulations. 

This error had caused the Agency to 

significantly underestimate the 

information collection burden 

attributable to the SNPRM. FMCSA 

withdrew the SNPRM on October 25, 

2007 (72 FR 60614). 

The use of advanced technologies in 

the supporting documents context was 

the subject of FMCSA and predecessor 

agency enforcement policy. In August 

1997, an enforcement policy 

memorandum limited the use of 

advanced technology, mainly global 

positioning system (GPS) records, 

during investigations regarding motor 

carrier compliance with FMCSRs. At the 

time the memorandum was issued, the 

Agency stated that it recognized that the 

technologies, which were emerging and 

being implemented within the industry 

in 1997, offered a positive opportunity 

to advance operational safety 

performance. At the same time, the 

time-and-location information the new 

technologies provided was noted to be 

considerably more precise than location 

information handwritten in a paper 

RODS and could tip the playing field to 

the disadvantage of carriers that had 

adopted those technologies. In order to 

promote and encourage motor carriers to 

use these new technologies in their 

operations and safety management 

systems, the Agency decided to limit its 

use of technology data and 

electronically produced records during 

reviews and for regulatory enforcement 

purposes. 

In the years since the Agency 

established that policy, the use of 

advanced vehicle location tracking 

technologies has become widely 

accepted and an integral component of 

motor carriers’ logistics, fleet 

operations, and safety management 

systems. Reasoning that the 1997 policy 

had achieved its purpose, FMCSA 

rescinded the policy on November 19, 

2008 (73 FR 69717). On a related matter, 

the Agency formally re-initiated work 

on the Supporting Documents 

Rulemaking in July 2009. 

On January 15, 2010, the American 

Trucking Associations (ATA) filed a 

Petition for a Writ of Mandamus in the 

United States Court of Appeals for the 

District of Columbia Circuit (DC Cir. No. 

10–1009). ATA petitioned the court to 

direct FMCSA to issue an NPRM on 

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3More information about the widespread 

availability can be found in Appendix F of the RIA 

associated with this rulemaking. 

4There are currently proposals to change these. 

Please see NPRM for the HOS Rulemaking (75 FR 

80014, December 21, 2010) for more information. 

‘‘supporting documents’’ in conformance 

with the requirements set forth in 

section 113 of the HMTAA within 60 

days after the issuance of the writ and 

a final rule no later than 6 months after 

the issuance of the NPRM. The court 

granted the petition for writ of 

mandamus on September 30, 2010, 

ordering FMCSA to issue an NPRM on 

the supporting document regulations by 

December 30, 2010. A copy of the 

Petition for Writ has been placed in the 

docket for this NPRM. Partially in 

response to petitioner’s court filing, 

FMCSA issued interim guidance on 

HOS supporting documents and mobile 

communications/tracking policy on 

June 10, 2010 (75 FR 32984). In addition 

to removing certain documents from the 

list of supporting documents a carrier 

must maintain, that guidance confirmed 

that carriers are liable for the actions of 

their employees if they have the means 

by which to detect HOS violations. The 

guidance made it clear that the 1997 

enforcement policy memorandum had 

been made less relevant by the 

widespread use of vehicle location 

tracking technologies. Today’s proposed 

rule would supersede, in most respects, 

that interim guidance. 

2. Treatment of Supporting Documents 

in the April 5, 2010, EOBR Final Rule 

The April 2010 final rule sets forth 

new performance standards for devices 

and systems used to produce electronic 

HOS records. It also mandates the use 

of these devices by motor carriers that 

have demonstrated serious 

noncompliance with the HOS 

regulations. In addition, the rule 

provides incentives to encourage motor 

carriers to use EOBRs on a voluntary 

basis by providing relief from the 

requirement that such motor carriers 

maintain supporting documents to 

verify driving time. Because the Agency 

agrees with numerous commenters that 

EOBRs with GPS or similar location 

data produce regular time and CMV 

location position histories sufficient to 

verify adequately a driver’s on-duty 

driving activities, motor carriers 

voluntarily maintaining the time and 

location data produced by EOBRs would 

need to maintain only those additional 

supporting documents that are 

necessary to verify on-duty not driving 

(ODND) activities and off-duty status 

(75 FR 17208, at 17212, 17233, and 

17234). 

V. Agency Proposal 

This NPRM would improve CMV 

safety and reduce paperwork burdens by 

increasing the use of EOBRs within the 

motor carrier industry, which will 

improve HOS compliance. The 

approach has three components: (1) 

Requiring EOBRs to be used by 

considerably more motor carriers and 

drivers than the April 2010 final rule, 

(2) requiring motor carriers to develop 

and maintain systematic HOS oversight 

of their drivers, and (3) simplifying the 

supporting documents requirements so 

motor carriers can make the best use of 

EOBRs and their support systems as 

their primary means of recording HOS 

information and ensuring HOS 

compliance. FMCSA believes this 

approach strikes an appropriate balance 

between promoting highway safety and 

minimizing cost and operational 

burdens on motor carriers in certain 

operations that have inherently less 

crash risk. 

A. Requirement for Mandatory EOBR 

Use (49 CFR 395.8) 

FMCSA proposes mandatory 

installation and use of EOBRs in all 

CMVs for which the use of RODS is 

currently required. CMVs operating in 

interstate commerce using accurate and 

true time records to record drivers’ HOS 

under the provisions of 49 CFR 

395.1(e)(1) and (2) may continue to use 

these records. While they are not 

required to install and use EOBRs, 

nothing in this proposed rule precludes 

them from doing so. 

A key factor that allowed the Agency 

to consider proposing a broader EOBR 

mandate was the rise in the estimate of 

the Economic Value of a Statistical Life 

(VSL). As FMCSA discussed in the 

April 2010 EOBR final rule, DOT issued 

a memorandum on February 5, 2008, 

instructing its modal agencies to 

estimate the economic value of 

preventing a human fatality at $6 

million. See ‘‘Treatment of the Economic 

Value of a Statistical Life in 

Departmental Analyses’’ (available at: 

http://ostpxweb.dot.gov/policy/reports/ 

080205.htm). FMCSA also published a 

notice in the Federal Register 

describing this policy change (73 FR 

35194, June 20, 2008). The previous 

VSL, which was used in the Regulatory 

Impact Analysis (RIA) for the EOBR 

NPRM (Docket: FMCSA–2004–18940), 

was $3.0 million. Given that the VSL 

doubled, the net benefits of the April 5, 

2010, rule, as well as those of other 

FMCSA rules under development, were 

recalculated using the new figures. This 

recalculation resulted in a reappraisal of 

the regulatory options by the Agency. 

Moreover, a broader mandate is more 

cost effective because of the widespread 

availability and functionality of onboard communications and logistics 

management systems already adopted in 

the motor carrier industry.3

1. Scope 

FMCSA proposes mandatory 

installation and use of EOBRs in 

interstate CMVs currently required to 

complete RODS under 49 CFR 395.8. 

Under today’s proposal, motor carriers 

currently allowed to use time cards 

could continue to do so under the 

provisions of 49 CFR 395.1(e)(1). 

The provisions of 49 CFR 395.1(e)(2),4

which also permit time-card use, are 

available to drivers of property-carrying 

CMVs that do not require a CDL and 

who operate within a 150 air-mile 

radius of the driver’s normal workreporting location under the current 

provisions. 

In short, all SH drivers that record 

their HOS using the timecard provision 

of 49 CFR 395.1(e)(1) and (2) may 

continue to use timecards. The Agency 

acknowledges that drivers working for 

motor carriers that keep timecards 

under 49 CFR 395.1(e)(1) and (2) may 

occasionally operate beyond the 

parameters of those provisions (for 

example, by operating outside the 

specified 100- or 150-air-mile radii). 

Under this NPRM, they would be 

allowed to continue using RODS for 

those days, as opposed to using EOBRs. 

The Agency requests commenters’ views 

related to this matter. Specifically, 

should motor carriers whose drivers 

usually operate within the limits of the 

49 CFR 395.1(e)(1) and (2) provisions, 

but occasionally beyond them, be 

required always to use EOBRs? For 

these carriers, what threshold should 

trigger EOBR use? Should the threshold 

be based upon the amount of time 

drivers operate beyond the time limits 

or the number of miles traveled beyond 

the distance limits (for example, 1 day 

per week, 2 days per week, 5 days per 

month, or another threshold)? Should 

the threshold be based upon the 

proportion of drivers working for a 

given motor carrier who operate beyond 

the time or distance limits? 

The Agency considered including 

carriers, vehicles, and drivers of bulk 

HM in this NPRM. It did so because a 

crash involving a CMV transporting 

bulk HM can endanger a large number 

of people, cause significant damage to 

infrastructure, and generate greater 

traffic congestion than a crash involving 

a CMV transporting other cargoes. 

Although these events are infrequent, 

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5NTSB Safety Recommendation H–07–041 issued 

on December 17, 2007. 

6 Keith R. Klein, Transport America, Chairman 

MTA, ‘‘Electronic Onboard Recorders and You’’ 

Trucking Minnesota, May 2010. 

the Pipeline and Hazardous Materials 

Safety Administration’s Hazardous 

Materials Risk Management Program 

considers the potential risks they pose 

to persons, property, and the 

environment to be ‘‘low probability, 

high consequence events’’ (Comparative 

Risks of Hazardous Materials and NonHazardous Materials Truck Shipment 

Accidents/Incidents, Final Report. 

Prepared for Federal Motor Carrier 

Safety Administration, March 2001). 

The Agency seeks additional data and 

information concerning the safety of 

bulk HM carriers in that are not 

currently required to use RODS. This 

will aid the Agency in determining 

whether to require this category of 

motor carriers to use EOBRs. 

Similarly, the risk of fatalities or 

serious injuries when a crash involves a 

passenger-carrying CMV is such that the 

Agency considered proposing a 

requirement for EOBR use in this 

industry sector (excluding the 9–15 

passenger carriers not for direct 

compensation segment). DOT’s Motor 

Coach Safety Action Plan notes seven 

priority action items to reduce 

motorcoach crashes, fatalities, and 

injuries. The first priority action item is 

to initiate rulemaking to require EOBRs 

on all motorcoaches. The provisions of 

today’s proposal would apply only to 

those passenger carrier operations 

where the driver is required to complete 

a RODS. The Agency, however, 

considered proposing a requirement for 

SH motor carriers of passengers to use 

EOBRs. It seeks additional data and 

information about the safety of this 

group of carriers, drivers, and vehicles. 

FMCSA considered requiring only 

drivers in LH operations (that is, those 

operating beyond a 150 air-mile radius) 

to use EOBRs. An ‘‘LH only’’ option 

would address the segment of the motor 

carrier industry with the highest safety 

and HOS compliance gaps and has the 

highest estimated net benefit. However, 

it would not address the safety concerns 

associated with SH motor carriers, 

especially those operations on the days 

when RODS, rather than timecards, are 

required. FMCSA requests comment on 

the costs, benefits, and practicality of 

implementing a ‘‘LH Only’’ option. 

The Agency also considered requiring 

EOBRs for all motor carriers subject to 

49 CFR part 395. The estimated 

compliance costs of this ‘‘true universal’’ 

approach, which the National 

Transportation Safety Board (NTSB) 5

and others advocated, exceed the 

estimated safety benefits for most SH 

motor carriers; and the overall net 

benefits are negative. The option 

selected in the proposed rule is 

estimated to generate benefits that 

exceed the costs of installing EOBRs and 

the costs associated with increased 

levels of compliance with the HOS 

rules. This option also has the highest 

estimated net benefits of the options 

considered for this proposed 

rulemaking. It also acknowledges the 

operational distinctions between motor 

carriers allowed to use timecards under 

49 CFR 395.1(e)(1) and (2) exclusively, 

and the other motor carriers that would 

be required to use EOBRs. More 

information concerning the estimated 

costs and benefits is available in the RIA 

associated with this rulemaking. 

Although not analyzed as part of this 

rulemaking action, FMCSA also requests 

comments on the advantages, 

disadvantages, and practicality of a 

potential exemption from the EOBR 

requirements for motor carriers with few 

or no HOS violations. 

Finally, FMCSA proposes changing 

the term ‘‘activity’’ to ‘‘status’’ in 

§ 395.8(e)(1) to clarify that HOS 

requirements include completing 

records of duty status—a commonly 

used term of art in part 395. 

2. Transition Period and Compliance 

Date 

It is likely that a final rule resulting 

from this NPRM would be published 

sometime prior to the June 4, 2012, 

compliance date for the April 2010 

EOBR final rule. As stated in 49 CFR 

385.805, FMCSA can issue remedial 

directives to any motor carrier subject to 

49 CFR part 395 of the FMCSRs on and 

after June 4, 2012. Even if the final rule 

were to take effect shortly after 

publication, today’s NPRM does not 

propose to change the compliance date 

of the April 2010 final rule. 

The remedial directive provision in 

the April 2010 rule allows the Agency 

to require motor carriers to use EOBRs 

and also to retain a wider range of 

supporting documents than otherwise 

would be required. Even after the 

compliance date proposed in this NPRM 

for the transition to mandatory EOBR 

use, the Agency would retain the 

authority to issue remedial directives to: 

• Motor carriers subject to 49 CFR 

part 395 but not otherwise required to 

use AOBRDs or EOBRs, and 

• Motor carriers who use EOBRs, but 

have HOS violations that would trigger 

a remedial directive could be required 

to retain and maintain supporting 

documents verifying driving time. 

In proposing a compliance date for 

mandatory use of EOBRs, the Agency 

considered the safety benefits as well as 

the potential cost impacts to motor 

carriers. The annualized cost for a motor 

carrier that does not currently use a fleet 

management system (FMS) or other 

‘‘EOBR-ready’’ system ranges from $525 

to $785 per power unit (PU). For a 

motor carrier that uses an ‘‘EOBR-ready’’ 

FMS, the annualized cost is $92 per PU. 

Considering that the estimated annual 

revenue per PU (on an industry-wide 

basis) is approximately $172,000, the 

annual cost of an EOBR is between 0.3 

percent and 0.5 percent of operating 

revenue. When the costs of purchasing, 

completing, auditing, and storing paper 

RODS, and the potential for improved 

productivity resulting from motor 

carriers’ having access to more 

comprehensive EOBR data are 

considered, using EOBRs can actually 

be less expensive than using RODS.6

The fact remains, however, that the 

aggregate impact of a wider EOBR 

mandate will be significant because of 

the large number of small business 

entities that will be required to install 

and use EOBRs in their CMVs. The 

motor carrier industry is extremely 

diverse in terms of the size of fleets, the 

types of passengers or commodities 

transported, and the size of businesses. 

The Agency anticipates that a motor 

carrier operating a fleet of 150 or fewer 

PUs would likely be considered small 

under Small Business Administration 

(SBA) guidelines. About 99 percent of 

motor carriers of property and 96 

percent of motor carriers of passengers 

in FMCSA’s Motor Carrier Management 

Information System (MCMIS) would be 

considered small businesses. 

For these reasons, FMCSA is 

proposing a compliance date for 

mandatory EOBR use 3 years after the 

effective date of a final rule. The Agency 

seeks comment on factors it should 

consider to determine if the compliance 

date might need to be adjusted and, if 

so, how. For example, should larger 

motor carriers be required to install and 

use EOBRs earlier than smaller ones; 

and what should the number of PUs be 

to determine this size threshold? Should 

EOBR use be phased-in over a period of 

time, in proportion to the number of 

PUs in a motor carrier’s fleet? Are there 

other potential phase-in schedules 

FMCSA should consider? If so, please 

provide supporting data and 

information. 

3. Incentives During the Transition 

In the January 2007 NPRM, FMCSA 

acknowledged the concern at that time 

of many motor carriers that voluntary 

installation of EOBRs would place them 

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7 Drivers operating under the 49 CFR 395.1(e) and 

(2) provisions are not subject to 49 CFR 395.8. 49 

CFR 395.8(k) is the requirement for supporting 

documents. If a driver is eligible to use timecards, 

the carrier does not have to maintain supporting 

documents for those days. 

at a competitive disadvantage compared 

to carriers not using EOBRs. In 

response, FMCSA’s April 2010 EOBR 

final rule provided two incentives to 

promote motor carriers’ use of EOBRs 

that comply with 49 CFR 395.16: 

(1) Motor carriers voluntarily using 

EOBRs that comply with 49 CFR 395.16 

will receive partial relief from the 

supporting documents requirements of 

49 CFR part 395. Specifically, these 

motor carriers will no longer be required 

to retain and maintain supporting 

documents related to driving time 

because this information will be 

maintained by and be accessible from 

the EOBR. 

(2) The HOS portion of a compliance 

review will include both focused and 

random samples, but only the random 

sample results will be used to assign the 

carrier a safety fitness rating under 49 

CFR part 385. If FMCSA finds a 10 

percent or higher HOS-violation rate 

based on an initial focused sample, this 

may be used as the basis for a possible 

civil penalty. The assessment would 

also include a random sampling of the 

motor carrier’s overall HOS records; this 

would be used as the basis for a safety 

fitness rating. Motor carriers required to 

use EOBRs under the terms of a 

remedial directive do not have access to 

this incentive. 

These incentives would continue to 

be available to motor carriers that 

voluntarily use EOBRs, until the 

compliance date of the final rule 

resulting from this rulemaking. 

B. Supporting Documents: Discussion of 

New Proposal 

1. HOS Management System 

Motor carriers have a duty to ensure 

that their drivers are complying with the 

requirements and prohibitions imposed 

upon them (49 CFR 390.11). This 

proposed rulemaking would explicitly 

continue the obligation of motor carriers 

to use the information contained in 

supporting documents to ensure that 

their drivers comply with prescribed 

HOS limits.7 The manner in which 

those documents are generated would 

not be material—the duty applies 

equally to documents generated by 

electronic mobile communications/ 

tracking systems as well as to paper 

records (49 CFR 395.11(a)). Motor 

carriers could be deemed to have 

knowledge of the contents of those 

documents (49 CFR 395.11(b)). 

An HOS management system refers to 

the controls, policies, programs, 

practices, and procedures used by a 

motor carrier to systematically and 

effectively monitor each driver’s 

compliance with HOS requirements and 

to verify the accuracy of the information 

contained in each driver’s RODS 

(49 CFR 395.11(a)). A motor carrier’s 

duty to maintain an HOS management 

system, as explained in this NPRM, is 

analogous to its duties in other 

management areas that are already 

prescribed in the driver and vehicle 

regulations, such as 49 CFR 382.10 

(motor carrier duty to ensure 

compliance with part 40 controlled 

substances and alcohol regulations), 

49 CFR 391.1 (general duty of motor 

carriers to ensure qualifications of 

drivers), 49 CFR 391.25 (motor carrier 

duty to make annual inquiry and review 

of driving record), and 49 CFR 396.3 

(motor carrier duty to make systematic 

inspection, repair, and maintenance of 

CMVs). 

FMCSA also proposes to amend 49 

CFR part 385, Safety Fitness Procedures, 

Appendices B and C, to include among 

the listed acute and critical citations a 

motor carrier’s failure to adopt and 

properly administer an ‘‘hours of service 

management system.’’ To meet the safety 

fitness standard in 49 CFR part 385, a 

motor carrier would have to have in 

place the controls, policies, programs, 

practices, and procedures to 

systematically and effectively monitor 

each driver’s compliance with HOS 

requirements. 

2. Definition of ‘‘Supporting Document’’ 

(49 CFR 395.2) 

FMCSA proposes to adopt verbatim 

the statutory definition from HMTAA 

section 113(c): ‘‘A supporting document 

is any document that is generated or 

received by a motor carrier or CMV 

driver in the normal course of business 

that could be used, as produced or with 

additional identifying information, to 

verify the accuracy of a driver’s RODS.’’ 

Significantly, this Congressional 

direction expands the definition of 

‘‘supporting documents’’ beyond Agency 

practice to include all documents that 

‘‘could be used’’ to verify drivers’ RODS. 

3. Information in Supporting Documents 

(49 CFR 395.11(e)) 

Collectively, the supporting 

documents required must provide the 

motor carrier (and a safety investigator) 

with the driver’s identification and a 

complete and accurate history of the 

driver’s duty status, by date, time, and 

location. Therefore, as proposed in 49 

CFR 395.11(e)(1), the proposed 

requirements for supporting documents 

would include certain elements. The 

descriptions of these elements would be 

consistent with the requirements of the 

April 2010 EOBR final rule. Safety 

investigators and other designated 

officials of FMCSA have the authority to 

request any record of a motor carrier, 

lessor, or person controlling or 

controlled by the motor carrier 

(49 U.S.C. 504(c)). 

Supporting documents must contain 

the following required elements: 

Personal identification, date, time, and 

location, either in an individual 

document or in specified combination, 

as set forth in section 395.11(e). 

Driver Identification 

The driver’s name, or a personal 

identification number (PIN) associated 

with the driver’s name, is central to 

developing a RODS for each driver 

subject to the HOS regulations. A unit 

(vehicle) number may be used so long 

as it can be associated with the driver 

operating the vehicle at a specific date, 

time, and location. 

Date and Time 

The date of an event and the time the 

event began and ended (time-stamp) are 

central to place an event within a 

sequence of duty status items. For 

activities that represent a single point in 

time, this would include, for example, 

the time a CMV entered a shipper’s or 

consignee’s location. 

Location 

The location description associated 

with the supporting document must be 

sufficiently precise to enable Federal, 

State, and local enforcement personnel 

to quickly determine the vehicle’s 

geographic location on a standard map 

or road atlas; ‘‘location’’ means the 

nearest city, town, or village. If the 

location information is automatically 

recorded on an electronic document, it 

must be derived from a source not 

subject to alteration by the motor 

carrier, driver, or third party. Because 

AOBRDs and EOBRs play a significant 

role in motor carrier safety, FMCSA is 

proposing to modify 49 CFR 395.8(e) to 

prohibit tampering with or modifying 

these devices in such a way that driver 

duty status is not accurately recorded. 

Related to this, the Agency is also 

proposing expressly to prohibit the use 

of electronic jamming devices that 

interfere with EOBRs and other 

electronic communication or vehicle 

tracking systems. Although FMCSA’s 

goal is to forestall the use of jammers to 

avoid HOS compliance, some of these 

devices can interfere with air traffic 

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control and other critical safety 

communication systems and thus pose 

additional safety risks. 

4. Number, Type, and Frequency of 

Supporting Documents (49 CFR 

395.11(e)(2) and (3)) 

Number 

The number of documents that a 

motor carrier would need to examine, 

review, and retain will vary according to 

the motor carrier’s operational 

circumstances. For example, operations 

where a motor carrier’s drivers pick up 

fully-loaded trailers at one consignee, 

drive for several hundred miles, drop 

the trailer at its destination, and pick up 

another fully-loaded trailer from another 

consignee would have fewer on-duty 

non-driving periods than an operation 

where a driver brings an empty trailer 

to a shipper, loads it, and drops portions 

of the load at many receivers’ locations. 

The number of documents could also 

vary according to the type and variety 

of a driver’s daily assignments the 

quality and completeness of the 

supporting documents available, as well 

as the geographic area and commercial 

character of the region in which the 

carrier operates. 

Type 

Consistent with the direction 

provided in section 113(b)(2) of the 

HMTAA, this NPRM addresses the 

‘‘type’’ of supporting documents that 

must be used to verify RODS. In doing 

so, the Agency recognizes the diversity 

of carrier operations and operational 

circumstances, and provides a flexible 

range of document types that a carrier 

can use to define its compliance system, 

appropriate with its needs. Examples of 

the types of documents that may be 

used to satisfy the supporting 

documents requirement are set out in 

the definition of ‘‘hours of service 

management system’’ in proposed 49 

CFR 395.2. In contrast to the broad 

range of documents used as examples of 

supporting documents in current 

guidance at 49 CFR 395.8(k)(1), the 

Agency would require the motor carrier 

to retain sufficient supporting 

documents from the following four 

categories: (1) Payroll; (2) trip-related 

expense records and receipts; (3) FMS 

communication logs; and (4) a bill of 

lading or equivalent document. The 

supporting documents retained in the 

four categories identified might be 

individual records within a supporting 

document that covers multiple activities 

of individual drivers (such as dispatch 

records organized according to 

individual driver assignments) or 

specific types of activities of multiple 

drivers (such as pickup and delivery 

records for drivers assigned to one 

shipper’s account) to reflect the 

beginning and end of each on-duty nondriving period. 

Frequency 

The Agency proposes to require 

carriers to retain, for each driver, at least 

one supporting document for the 

beginning and end of each ODND 

period. Only one document would be 

needed for the beginning and end of 

each ODND period if that document 

contained all of the data elements set 

forth in proposed 49 CFR 395.11(e) (i.e., 

driver name or PIN, date and time, and 

location). 

If the motor carrier does not retain 

one single supporting document that 

shows all of the required data elements, 

it would be required to retain sufficient 

documents, from any of the four 

categories listed above, to show 

collectively all of the required 

information: the driver identification 

and the location, date and time of the 

duty status changes. Such an approach 

addresses the requirements of section 

113(c) of HMTAA regarding documents 

that can be used ‘‘as produced’’ 

separately or collectively, ‘‘with 

additional identifying information,’’ to 

verify the accuracy of the driver’s 

RODS. 

The Agency stresses that the types of 

documents proposed to be retained 

would not normally be generated during 

periods when drivers are actually offduty. However, FMCSA has the 

statutory authority to request any 

documents related to the operation of 

CMVs in interstate commerce. 

Additionally, the Agency is 

responding to section 113(b)(2) of the 

HMTAA concerning ‘‘frequency’’ of 

supporting documents retention by 

adding proposed language under 49 CFR 

395.8(h) to require the driver to submit 

all corresponding supporting documents 

to the employing motor carrier within 3 

days following the completion of the 

RODS. Drivers will be required to 

forward supporting documents for 

which they are responsible (mainly, 

trip-related expense reports and 

receipts) for each day that they provide 

a RODS. Additionally, reflecting the 

widespread use of both electronic 

documents and document scanning 

systems, drivers would be required to 

forward those documents to the motor 

carrier within 3 days of receipt, instead 

of the 13 days in the current regulations 

(see 49 CFR 395.8(i)). Motor carriers and 

their customers are rapidly moving to 

electronic, paperless systems that can 

provide near-instantaneous access to 

HOS-relevant data and records. If a 

supporting document is submitted 

electronically, the driver should submit 

it the same duty day (49 CFR 395.11(h)). 

5. Certification Provision (49 CFR 

395.11(f)) 

The proposed ‘‘certification provision’’ 

acknowledges the diversity of carrier 

operations and the fact that the 

proposed minimum number of 

supporting documents will not be 

available to all drivers and/or carriers 

for all periods for each day of operation. 

The certification provision would allow 

a carrier that retains none of these 

supporting documents in its normal 

course of business or, alternatively, does 

not retain sufficient documents from the 

four categories noted above, to certify 

that no supporting documents were 

available. 

The certification provision is not a 

‘‘loophole,’’ however; motor carriers that 

falsely certify the absence of supporting 

documents would be subject to the 

maximum penalty authorized by law. It 

is true that Congress instructed FMCSA, 

when assessing civil penalties, to 

consider a number of factors, including 

the nature, circumstances, extent, and 

gravity of the violation committed, as 

well as the degree of culpability, history 

of prior offenses, ability to pay, effect on 

ability to continue to do business, and 

other such matters as justice and public 

safety may require (49 U.S.C. 

521(b)(2)(D)). But the overriding 

concern of Congress was clearly stated 

in the final sentence of that provision: 

‘‘In each case, the assessment shall be 

calculated to induce further 

compliance.’’ Because motor carriers 

that submit false certifications are 

deliberately subverting an essential 

element of the hours-of-service 

regulations and may well be concealing 

practices that place both their own 

drivers and the public at increased risk, 

FMCSA believes that nothing less than 

the maximum penalty would ‘‘induce 

further compliance.’’ The Agency has no 

desire to impose the maximum penalty 

and does not expect to do so frequently; 

FMCSA’s hope is that the deterrent 

effect of maximum penalties will make 

such action unnecessary. However, the 

Agency believes it should have these 

penalties available to deal with extreme 

violations. False certification is an 

egregious—indeed fraudulent— 

violation of the FMCSRs. 

6. Retention and Maintenance of 

Supporting Documents (49 CFR 

395.8(k)(1)) 

FMCSA proposes a retention period of 

6 months as specified in section 

113(b)(3) of the HMTAA. This is 

consistent with the existing retention 

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period for other HOS paper and 

electronic documents. However, the 

Agency seeks to clarify that while the 

section heading for current 49 CFR 

395.8(k) is ‘‘Retention of driver’s record 

of duty status,’’ paragraph (k)(1) 

discusses the requirement to ‘‘maintain’’ 

such documents, which is consistent 

with judicial interpretation of 

maintaining documents for subsequent 

use by carrier and Agency personnel. 

Consequently, 49 CFR 395.8(k)(1) would 

be amended merely to add the phrase 

‘‘retain and’’ prior to the term 

‘‘maintain,’’ to indicate the relationship 

between the terms. 

7. Motor Carrier Self-Compliance 

Systems 

The statute requires FMCSA to 

provide exemptions for qualifying ‘‘selfcompliance systems,’’ instead of 

supporting documents retention. In 

satisfaction of HMTAA section 

113(b)(4), the proposed rule would add 

a provision to authorize, on a case-bycase basis, motor carrier self-compliance 

systems (49 CFR 395.11(i)). A motor 

carrier could apply for an exemption 

under existing part 381 provisions for 

additional relief from the requirements 

for retaining supporting documents for 

RODS. Among other things, an 

application for exemption must include 

a statement that explains how the 

applicant would ensure that he or she 

could achieve a level of safety that is 

equivalent to, or greater than, the level 

of safety that would be obtained by 

complying with 49 CFR part 395. We 

request that commenters provide 

information describing their selfcompliance systems, or the systems they 

might anticipate developing. 

VI. Rulemaking Analyses 

Executive Order (E.O.) 12866 

(Regulatory Planning and Review) and 

DOT Regulatory Policies and Procedures 

Under E.O. 12866 (58 FR 51735, 

October 4, 1993) and DOT policies and 

procedures, FMCSA must determine 

whether a regulatory action is 

‘‘significant,’’ and therefore subject to 

OMB review and the requirements of 

the E.O. The Order defines ‘‘significant 

regulatory action’’ as one likely to result 

in a rule that may: 

(1) Have an annual effect on the economy 

of $100 million or more or adversely affect 

in a material way the economy, a sector of 

the economy, productivity, competition, jobs, 

the environment, public health or safety, or 

State, local, or Tribal government or 

communities. 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken or 

planned by another Agency. 

(3) Materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof. 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the President’s 

priorities, or the principles set forth in the 

E.O. 

FMCSA determines that this proposed 

rule would have an annual effect of 

$100 million or more. In addition, 

because of public interest about the 

rulemakings related to HOS compliance, 

it is a significant regulatory action 

within the meaning of the E.O. and 

under the regulatory policies and 

procedures of DOT. The Agency has, 

therefore, conducted an RIA of the costs 

and benefits of this NPRM. The RIA is 

summarized below. The full analysis is 

available in the docket pertaining to this 

rulemaking. 

FMCSA evaluated the costs and 

benefits associated with the proposed 

rule on EOBRs and their affect on 

improving compliance with the 

underlying HOS rules. In the RIA 

associated with this rulemaking, the 

Agency updated its assessment of the 

baseline level of non-compliance with 

the current HOS rules to account for 

changes in certain factors such as 

inflation, a decline in HOS violations 

that has preceded the mandate for EOBR 

use, and the decline in CMV-related 

crashes. Included in this analysis as 

alternative baselines are Options 2 and 

3 from the recently published NPRM for 

the HOS rules for property carriers 

(Option 1 of the HOS NPRM is to retain 

the current HOS rules). The major 

changes for both HOS options 2 and 3 

are to: Allow at most 13 hours of onduty time within the daily driving 

window; limit continuous on-duty drive 

time to 7 hours, at which point a 30 

minute off-duty or sleeper-berth period 

would be required; and to require at 

least two overnight periods in each 

34-hour restart period. HOS Option 2, 

however, also reduces daily drive time 

from 11 to 10 hours, while HOS Option 

3 retains 11 hours of drive time. To 

avoid confusion between the HOS 

options and the options for the EOBR 

NPRM, HOS Option 2 and HOS Option 

3 are referred to as Baseline 2 and 

Baseline 3, respectively. 

The Agency is currently considering 

three options for the EOBR mandate. 

Option 1 would require EOBRs for all 

drivers required to use paper RODS. 

Option 2 expands Option 1 to include 

all passenger-carrying CMVs subject to 

the FMCSRs and all shipments of bulk 

HM, regardless of whether the drivers 

use paper RODs or are exempted from 

doing so, as described under the SH 

operations provisions in § 395.1(e). 

Option 3 would include all CMV 

operations subject to the HOS 

requirements. 

In this NPRM, FMCSA also proposes 

changes to requirements concerning 

HOS supporting documents. The 

Agency has clarified its supporting 

document requirements, recognizing 

that EOBRs themselves serve as the 

most robust form of documentation for 

on-duty driving periods. The Agency 

has been careful not to increase the 

burden associated with retention of the 

supporting documents; but it also 

cannot claim, even with EOBR use, that 

it has reduced the burden of supporting 

documents. 

Although the ‘‘foundation’’ RODS 

burden would drop dramatically, 

primarily due to the elimination of 

paper RODS, the overall supporting 

documents burden would not be 

reduced. This is because carriers will 

still be required to maintain supporting 

documents. In addition, while motor 

carriers may gain efficiencies in 

reviewing electronic RODS, as opposed 

to paper RODS, against supporting 

documents to ensure driver compliance, 

the overall burden of review for this task 

is not expected to change. These 

proposed changes are expected to 

improve the quality and usefulness of 

the supporting documents and, thereby, 

(1) improve the Agency’s ability to 

effectively and efficiently review motor 

carriers’ HOS records, and (2) detect and 

assess violations during on-site 

compliance reviews. The Agency is 

currently unable to evaluate the extent 

to which the proposed changes to the 

supporting documents requirements 

will lead to reductions in crashes. 

The following table (Table 1) 

summarizes the analysis. The figures 

presented are annualized using 7 

percent and 3 percent discount rates. 

TABLE 1—ANNUALIZED COSTS AND BENEFITS (2008 $ MILLIONS) 8

7 Percent discount rate 3 Percent discount rate 

Option 1 Option 2 Option 3 Option 1 Option 2 Option 3 

I—EOBR Costs ........................................................................................ 1,586 1,643 1,939 1,554 1,610 1,900 

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8Compliance costs and safety benefits of the 

current HOS rules and the two alternate baselines 

reflect an estimated EOBR efficacy of 40 percent. 

Carriers would bear compliance costs that they are 

currently avoiding for the 40 percent of the HOS 

violations that continue to occur, and the public 

would accrue the safety benefits from eliminating 

these violations. The full analysis is available in the 

docket pertaining to this rulemaking. The steps 

used to derive the annualized figures in this table 

are also presented in detail in that analysis. 

9There will be paperwork savings due to the 

elimination of paper RODS, but the Agency does 

not expect paperwork savings from changes to the 

supporting document requirements. Reductions to 

paperwork burden accrue only to operations 

required to use RODS, which are fully included in 

Option 1. The operations added in options 2 and 

3 are exempt from paper RODS, and consequently 

would experience no paperwork savings from their 

elimination. 

10Regulatory Analysis for: Hours of Service of 

Drivers; Driver Rest and Sleep for Safe Operations, 

Final Rule—Federal Motor Carrier Safety 

Administration. 68 FR 22456—Published 

4/23/2003. 11The 2000 TTS Blue Book of Trucking 

Companies, number adjusted to 2008 dollars for 

inflation. 12U.S. Small Business Administration, Table of 

Small Business Size Standards matched to North 

American Industry Classification (NAIC) System 

codes, effective August 22, 2008. See NAIC 

subsector 484, Truck Transportation. 

TABLE 1—ANNUALIZED COSTS AND BENEFITS (2008 $ MILLIONS) 8—Continued 

7 Percent discount rate 3 Percent discount rate 

Option 1 Option 2 Option 3 Option 1 Option 2 Option 3 

II—HOS Compliance Costs ..................................................................... 398 404 438 398 404 438 

III—Total Costs (I+II) ............................................................................... 1,984 2,047 2,377 1,952 2,014 2,338 

IV—Paperwork Savings 9 ......................................................................... 1,965 1,965 1,965 1,965 1,965 1,965 

V—Safety Benefits ................................................................................... 734 736 746 734 736 746 

VI—Total Benefits (IV+V) ........................................................................ 2,699 2,701 2,711 2,699 2,701 2,711 

VII—Net Benefits (VI–III) ......................................................................... 715 654 334 747 687 373 

VIII—Baseline 2 (HOS Option 2) Net Benefits ........................................ 799 738 418 831 771 457 

IX—Baseline 3 (HOS Option ) Net Benefits ............................................ 859 798 478 891 831 517 

FMCSA estimates that all options 

presented in this RIA have positive net 

benefits under any baseline, that is, 

under any version of the HOS rules. 

However, the greatest safety impacts of 

the HOS rules are seen in LH 

operations, and the inclusion of SH 

operations diminishes the net benefits 

of this EOBR rule. Therefore Option 3, 

which includes all carrier operations, 

results in much lower net benefits as 

compared to Options 1 and 2. The 

alternative baselines reflect changes to 

the HOS rules that affect only LH, 

RODS-using operations. 

A fundamental purpose of the HOS 

regulations is to reduce crash risk in 

order to improve safety, and as 

elaborated at length in the 2010 HOS 

proposed rule, the Agency has 

concluded that the proposed rules will 

have significant safety benefits. Ideally, 

the agency would have data to directly 

measure crash risk by hours of driving 

and other dimensions for which 

regulations are proposed. Because the 

Agency has been not been able to gather 

such data, it has based its analysis, in 

significant part, on share of crashes that 

are fatigue-coded. 

The agency recognizes that using 

share of crashes that are fatigue-coded 

could have two possible problems: 

Accident inspectors may be more likely 

to code crashes as fatigue-related if the 

driver has been on the road longer. Also, 

the share of crashes that are coded as 

fatigue-related may conceivably increase 

simply because the share of crashes 

caused by other factors goes down. 

There could be no increase in the risk 

of a fatigue-related crash (the central 

question), but an increase in the share 

of fatigue-related crashes. The Agency 

has little evidence that either of these 

factors is a significant problem. 

Nonetheless, while the data are not as 

complete as FMCSA would like them to 

be, the Agency aimed to limit, to the 

extent possible, the likelihood that 

drivers will be fatigued, either when 

they come on duty or during or at the 

end of a working period. Safety benefits 

are based on this reduction in fatigue 

and an associated reduction in fatiguecoded crashes. 

FMCSA sought information from the 

public on driving exposure data at each 

hour in order to be able to calculate 

relative crash risk at each hour. FMCSA 

seeks the same information for this rule 

since fatigue coded crashes are not the 

perfect measure of safety benefits from 

HOS compliance. If the agency receives 

information about relative crash risk, 

the agency will revise and update the 

benefits calculations for this EOBR 

provision in the final rule stage. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601–612) requires Federal 

agencies to consider the effects of the 

regulatory action on small business and 

other small entities and to minimize any 

significant economic impact. The term 

‘‘small entities’’ comprises small 

businesses and not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

Accordingly, DOT policy requires an 

analysis of the impact of all regulations 

on small entities, and mandates that 

agencies strive to lessen any adverse 

effects on these businesses. 

Number of Small Entities to Which the 

Rulemaking Would Apply 

Under criteria established by the SBA, 

firms with annual revenues of less than 

$25.5 million are considered small for 

all North American Industrial 

Classification System (NAICS) codes 

falling under the truck transportation 

sub-sector (NAICS 484) or the bus 

transportation sub-sector (NAICS 485). 

Many motor carriers, however, are 

private carriers that transport goods or 

passengers for parent companies who 

are not primarily engaged in trucktransportation, for example, airlines, 

railroads, retail stores, and landscaping 

or home contracting businesses with 

SBA size thresholds associated with 

their industries that are different from 

those used for truck or bus 

transportation. 

FMCSA does not collect revenue data 

for most carriers nor can it identify, 

carrier-by-carrier, to which industry 

sub-sectors each firm belongs. Carriers 

do, however, report the number of PUs 

they operate in the U.S. on Form MCS– 

150. With regard to truck PUs, the 

Agency determined in the 2003 Hours of 

Service Rulemaking RIA 10 that a PU 

produces about $172,000 in revenue 

annually (adjusted for inflation).11

According to the SBA, motor carriers 

with annual gross revenue of $25.5 

million are considered small 

businesses.12 This equates to about 150 

PUs (25,500,000/172,000). FMCSA 

believes that this 150 PU figure would 

be applicable to private carriers as well: 

Because the sizes of the fleets they are 

able to sustain are indicative of the 

overall size of their operations, large 

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13FMCSA, ‘‘Large Truck and Bus Crash Facts 

2008,’’ Tables 1 and 20; http://fmcsa.dot.gov/factsresearch/LTBCF2008/Index-2008LargeTruckandBus

CrashFacts.aspx. 

CMV fleets can generally only be 

managed by large firms. There is a risk, 

however, of overstating the number of 

small businesses because the operations 

of some large non-truck or bus firms 

may require only a small number of 

CMVs. The Agency has identified about 

482,000 motor carriers that operate 150 

or fewer power units, about 99% of 

property carriers. 

For passenger carriers, the Agency 

conducted a preliminary analysis to 

estimate the average number of PUs for 

a small entity earning $7 million 

annually, based on an assumption that 

a passenger carrying CMV generates 

annual revenues of $150,000. This 

estimate compares reasonably to the 

estimated average annual revenue per 

PU for the trucking industry ($172,000). 

A lower estimate was used because 

buses generally do not accumulate as 

many vehicle miles traveled (VMT) per 

PU as trucks,13 and it is assumed, 

therefore, that they would generate less 

revenue on average. The analysis 

concluded that passenger carriers with 

47 PUs or fewer ($7,000,000 divided by 

$150,000/PU = 46.7 PU) would be 

considered small entities. The Agency 

examined its registration data and found 

that 96 percent of, or just over 19,000, 

interstate passenger carriers have 47 

PUs or fewer. 

Reporting and Recordkeeping 

FMCSA believes that implementation 

of the proposed rule would not require 

additional reporting, recordkeeping, or 

other paperwork-related compliance 

requirements beyond those that are 

already required in the existing 

regulations. In fact, the proposed rule is 

estimated to result in paperwork 

savings, particularly from the 

elimination of paper RODS. Drivers can 

complete, review, and submit EOBR 

records much more rapidly compared to 

paper RODS. Furthermore, motor 

carriers would experience compensatory 

time-saving and administrative 

efficiencies as a result of using EOBR 

records in place of paper RODS. The 

level of savings would vary with the 

size of the carrier implementing the 

systems (larger carriers generally 

experience greater savings). 

Under current regulations, most CMV 

drivers are required to fill out RODS for 

every 24-hour period. The remaining 

population of CMV drivers is required 

to fill out time cards at their workplace 

(reporting location). Motor carriers must 

retain the RODS (or timecards) for 6 

months. FMCSA estimates annual 

recordkeeping cost savings from this 

proposed rule of about $688 per driver. 

This is comprised of $486 for a 

reduction in time drivers spend 

completing paper RODS and $56 

submitting those RODS to their 

employers; $116 for motor carrier 

clerical staff to handle and file the 

RODS; and $30 for elimination of 

expenditures on blank paper RODS for 

drivers. Two of the options discussed in 

this NPRM would extend the EOBR 

mandate to carrier operations that are 

exempt from the RODS. Paperwork 

savings would not accrue to drivers 

engaged in these operations. 

Help for Small Entities 

Of the population of motor carriers 

that FMCSA regulates, 99 percent of 

motor carriers of property and 96 

percent of motor carriers of passengers 

are considered small entities under the 

SBA’s definition. Because small 

businesses are such a large part of the 

demographic the Agency regulates, 

providing exemptions to small business 

to permit noncompliance with safety 

regulations is not feasible and not 

consistent with good public policy. The 

safe operation of CMVs on the Nation’s 

highways depends on compliance with 

all of FMCSA’s Safety Regulations. 

Accordingly, the Agency would not 

allow any motor carriers to be exempt 

from coverage of the rule based solely 

on a status as a small entity. 

FMCSA analyzed an alternative 5-year 

implementation schedule that would 

have provided a longer implementation 

period for small businesses. However, 

the estimated cost of compliance for 

motor carriers, including small 

businesses, did not decrease from the 

3-year ‘‘baseline’’ proposed 

implementation period. Furthermore, a 

considerably longer implementation 

period could compromise the 

consistency of compliance-assurance 

and enforcement activities, and, 

thereby, diminish the rule’s potential 

safety benefits. Therefore, the Agency’s 

proposal includes a single compliance 

date for all motor carriers that would be 

subject to the new rule’s requirements. 

However, the Agency recognizes that 

small businesses may need additional 

information and guidance in order to 

comply with the proposed regulation. In 

order to improve their understanding of 

the proposal and any rulemaking that 

would result from it, FMCSA proposes 

to conduct outreach aimed specifically 

at small businesses. FMCSA would 

conduct Webinars and other 

presentations as needed and upon 

request, at no charge to the participants. 

These would be held after the final rule 

has published and before the rule’s 

compliance date. To the extent 

practicable, these presentations would 

be interactive. Their purpose would be 

to describe in plain language the 

compliance and reporting requirements 

so that they are clear and readily 

understood by the small entities that 

would be affected 

EOBRs can lead to significant 

paperwork savings that can in part or 

fully offset the costs of the devices. The 

Agency, however, recognizes that these 

devices entail a significant up-front 

investment than can be burdensome for 

small carriers. At least one vendor, 

however, provides free hardware and 

recoups the cost of the device over time 

in the form of higher monthly operating 

fees. The Agency is also aware of leaseto-own programs that allow the carriers 

to spread the purchase costs over 

several years. Nevertheless, the typical 

carrier would likely be required to 

spend $1,500–$2,000 per CMV to 

purchase and install EOBRs, and several 

hundred dollars per year for service 

fees. This estimate is higher than the 

estimate used in the April 2010 EOBR 

rulemaking for two primary reasons. 

This proposed mandate would be 

permanent and also would require 

EOBRs to be installed and used in 

approximately 20 times as many CMVs 

than were estimated to be affected by 

the April 5, 2010, final rule. Therefore, 

the Agency cannot assume that an 

adequate number of the lower-cost 

devices would be available to meet the 

needs of that larger market. Current 

revenue data from the manufacturer of 

the device cited in the April 2010 final 

rule indicate that its market share is 

relatively low. 

A second reason for using a higher 

cost for this analysis is that, in response 

to motor carrier customer demand, 

EOBR suppliers have expanded the 

functionality of their products and 

services. Hours-of-service recording and 

monitoring are functions commonly 

offered as part of comprehensive fleet 

management systems, rather than in 

stand-alone devices. Many motor 

carriers are recognizing the potential 

operational benefits they can gain from 

the use of fleet management systems, 

and the marketplace is responding with 

products and services tailored to motor 

carriers of all sizes. However, the 

Agency is not dismissing the possibility 

that ‘‘stand-alone’’ EOBRs, providing 

only hours-of-service recording and 

reporting (similar to the first AOBRDs in 

the 1980s), may be offered for sale or 

lease at a lower cost than devices with 

other functionalities in addition to HOS 

compliance. The Agency requests 

comments and data about EOBR cost. 

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5550 Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 

Based on direct experience with the 

devices and conversations with vendors, 

the Agency believes these devices are 

extremely durable and can be kept 

operational for many years. In addition 

to purchase costs, carriers would also 

likely spend about $40 per month per 

CMV for monthly service fees. 

On January 18, 2011, the President 

issued a memorandum entitled 

Regulatory Flexibility, Small Business, 

and Job Creation. In it, the President 

directed agencies to consider certain 

flexibilities for small entities. 

Furthermore, the President directed 

agencies to include an explicit 

justification for not providing such 

flexibilities and directs the agencies, 

when initiating rulemaking that will 

have a significant economic impact on 

a substantial number of small entities, to 

give serious consideration to whether 

and how it is appropriate, consistent 

with law and regulatory objectives, to 

reduce regulatory burdens on small 

businesses, through increased 

flexibility. Such flexibility may take 

many forms, including: 

• Extended compliance dates that 

take into account the resources available 

to small entities; 

• Performance standards rather than 

design standards; 

• Simplification of reporting and 

compliance requirements (as, for 

example, through streamlined forms and 

electronic filing options); 

• Different requirements for large and 

small firms; and 

• Partial or total exemptions. 

The President further directs that 

whenever an executive agency chooses, 

for reasons other than legal limitations, 

not to provide such flexibility in a 

proposed or final rule that is likely to 

have a significant economic impact on 

a substantial number of small entities, it 

should explicitly justify its decision not 

to do so in the explanation that 

accompanies that proposed or final rule. 

The Agency requests public comment 

on the extent to which flexibility could 

be incorporated into the rulemaking, 

beyond the options considered in the 

proposal, while fulfilling its safety 

mandate. 

In establishing FMCSA, Congress’s 

enabling legislation called safety ‘‘our 

highest priority.’’ Motor Carrier Safety 

Improvement Act of 1999, sec. 113, 

Public Law 106–159, 113 Stat. 1748, 

1750. Our regulatory authority over 

motor carriers stems from 1935 and has 

since been augmented by 

comprehensive legislation that 

conferred broad rulemaking authority. 

We have attempted to balance our 

statutory obligations with the need to 

consider regulatory alternatives and the 

burdens they present to various entities, 

including small entities. But given our 

safety mandate, exempting 98% of our 

regulated population from this new 

requirement based simply on their small 

business status would severely 

undermine our safety mission and 

ignore our congressional mandate. Our 

proposal did consider alternatives and 

exemptions, as discussed earlier in this 

document. The Agency does not believe 

that it is feasible to exempt small 

businesses from a requirement to use 

EOBRs. Because of the nature of the 

commercial motor vehicle industry, 

there would be no reliable way for an 

enforcement official to determine if a 

driver or CMV is operating as a small 

business on a particular day. Even if the 

Agency could develop a system to make 

that daily determination, it has not been 

analyzed to determine if it could be 

implemented in a cost beneficial 

manner. 

Also, as we propose in the regulatory 

text at 49 CFR 395.11(i) to address 

supporting documents, motor carriers 

can apply for an exemption based on a 

process under 49 CFR part 381. A motor 

carrier could apply for an exemption 

under existing part 381 provisions for 

additional relief from the requirements 

for installing and using EOBRs. Such 

exemptions can be granted for up to two 

years, and the Agency believes this is 

the best way to balance regulatory relief 

with its safety mission. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 requires Agencies to evaluate 

whether an Agency action would result 

in the expenditure by State, local and 

Tribal governments, in the aggregate, or 

by the private sector, of $140.8 million 

or more (as adjusted for inflation) in any 

1 year, and if so, to take steps to 

minimize these unfunded mandates. 

This rule would not result in the 

expenditure by State, local and Tribal 

governments, in the aggregate, of $140.8 

million or more in any 1 year, nor 

would it affect small governments. As 

Table 2 shows, this rulemaking would 

result in private sector expenditures in 

excess of the threshold for any of the 

proposed options. Gross costs, however, 

are expected to be more than offset in 

savings from paperwork burden 

reductions. 

TABLE 2—ANNUALIZED NET EXPENDITURES BY PRIVATE SECTOR (MILLIONS) 

Option 1 Option 2 Option 3 

Total EOBR Cost ..................................................................................................................................... $1,586 $1,643 $1,939 

Total Paperwork Savings ......................................................................................................................... 1,965 1,965 1,965 

Net EOBR Cost ....................................................................................................................................... ¥379 ¥322 ¥26 

E.O. 13132 (Federalism) 

A rule has implications for 

Federalism under Executive Order 

13132 if it has a substantial direct effect 

on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on such governments. This 

proposed action has been analyzed in 

accordance with E.O. 13132. FMCSA 

has determined that this rule would not 

have a substantial direct effect on States, 

nor would it limit the policymaking 

discretion of States. Nothing in this 

document preempts any State law or 

regulation. A State that fails to adopt the 

proposed amendments, if finalized, 

within 3 years of the effective date of 

the final rule, will be deemed to have 

incompatible regulations and will not be 

eligible for Basic Program or Incentive 

Funds under the Motor Carrier Safety 

Assistance Program in accordance with 

49 CFR 350.335(b). 

E.O. 12372 (Intergovernmental Review) 

The regulations implementing E.O. 

12372 regarding intergovernmental 

consultation on Federal programs and 

activities do not apply to this rule. 

Indian Tribal Governments 

This proposed rule does not have 

Tribal implications under E.O. 13175, 

Consultation and Coordination with 

Indian Tribal Governments, because it 

would not have a substantial direct 

effect on one or more Indian Tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

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Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 5551 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

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

Federal agencies must obtain approval 

from OMB for each collection of 

information they conduct, sponsor, or 

require through regulations. This NPRM 

proposes regulatory changes to several 

parts of the FMCSRs, but only those 

applicable to part 395, ‘‘Hours of Service 

of Drivers,’’ would alter or impose 

information collection requirements. 

The information collection requirements 

of this NPRM would affect OMB Control 

Number 2126–0001, which is currently 

approved through August 31, 2011, at 

181,270,000 burden hours. 

As described under the analysis 

concerning E.O. 12866, nearly all of the 

estimated reduction in paperwork 

burden that would result from this 

rulemaking would come from a 

reduction in the burden associated with 

the elimination of RODS for nearly all 

motor carrier operations. This reduction 

would not take place, however, until 

three years after the effective date of a 

final rule resulting from this proposed 

rulemaking action. 

OMB requires agencies to provide a 

specific, objective estimate of the 

burden hours imposed by their 

information collection requirements (5 

CFR 1320.8(a)(4)). This NPRM proposes 

a compliance date 3 years after the date 

of publication of the final rule to allow 

regulated entities a reasonable 

opportunity to satisfy its requirements. 

The PRA limits estimates of paperwork 

burdens to a 3-year period. During the 

initial 3 years following publication of 

the final rule, the requirements of part 

395, including information collection 

requirements, would remain unchanged. 

At an appropriate time, the Agency 

would provide notice and request 

public comment on the changes in the 

paperwork burden of part 395 resulting 

from implementation of the rule after 

the 3-year period. At the present time, 

the Agency believes that the regulatory 

changes proposed by this NPRM will 

ultimately effect a net reduction in the 

paperwork burden of OMB Control 

Number 2126–0001 (See the RIA for 

more information). The Agency requests 

information concerning any changes in 

paperwork burden from motor carriers 

currently using EOBR devices. 

National Environmental Policy Act 

The National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321 et 

seq., as amended) requires Federal 

agencies to consider the consequences 

of, and prepare a detailed statement on, 

all major Federal actions significantly 

affecting the quality of the human 

environment. In accordance with its 

procedures for implementing NEPA 

(FMCSA Order 5610.1, Chapter 2.D.4(c) 

and Appendix 3), FMCSA prepared a 

draft Environmental Assessment (EA) to 

review the potential impacts of this 

proposed rulemaking. The draft EA 

findings are summarized below. The full 

EA is in the docket pertaining to this 

rulemaking. 

Implementation of this proposed 

action would alter to some extent the 

operation of CMVs. However, the 

proposal, if implemented, would not 

require any new construction or change 

significantly the number of CMVs in 

operation. FMCSA finds, therefore, that 

noise, endangered species, cultural 

resources protected under the National 

Historic Preservation Act, wetlands, and 

resources protected under section 4(f) 

would not be impacted by this 

rulemaking. 

The EA finds negligible impacts on air 

quality and no adverse effect on public 

safety. FMCSA anticipates that drivers 

of CMVs operated by carriers required to 

use EOBRs would increase their 

compliance with the requirements of the 

HOS rules. From an emissions 

standpoint, this could lead to drivers 

taking more off-duty time parked with 

the engine idling, which increases 

engine emissions on a per-mile basis. 

This rulemaking, however, also has the 

potential to prevent CMV crashes and 

resulting emissions. When emissions 

that would otherwise result from 

prevented CMV crashes are subtracted 

from the emissions generated by 

additional compliance with the HOS 

regulations, FMCSA determines that the 

overall change in pollutants would be 

negligible. Because of the enhanced 

HOS compliance that is likely to result 

from this rulemaking, it is also likely 

that the rulemaking would result in an 

increase in public safety. Drivers for 

carriers brought into HOS compliance 

would experience reduced crash risk 

and be less likely to have crashes. 

Separately, the rulemaking proposes to 

eliminate the use of paper-based RODS 

documentation, which reduces paper 

use. 

As discussed in the EA, FMCSA also 

analyzed this proposed rule under the 

Clean Air Act, as amended (CAA) 

section 176(c), (42 U.S.C. 7401 et seq.) 

and implementing regulations 

promulgated by the Environmental 

Protection Agency. 

FMCSA concludes that the rule 

changes would have an overall minimal 

impact on the environment, and 

therefore would not require an 

environmental impact statement. The 

provisions under the proposed action do 

not, individually or collectively, pose 

any significant environmental impact. 

FMCSA requests comments on this 

analysis. 

E.O. 13211 (Energy Supply, Distribution, 

or Use) 

FMCSA determines that the proposed 

rule would not significantly affect 

energy supply, distribution, or use. 

Therefore, no Statement of Energy 

Effects is required. 

E.O. 13045 (Protection of Children) 

E.O. 13045, Protection of Children 

from Environmental Health Risks and 

Safety Risks, requires agencies issuing 

‘‘economically significant’’ rules that 

involve an environmental health or 

safety risk that may disproportionately 

affect children, to include an evaluation 

of the regulation’s environmental health 

and safety effects on children. As 

discussed previously, this proposed rule 

is economically significant; but it would 

cause no environmental or health risk 

that disproportionately affects children. 

E.O. 12988 (Civil Justice Reform) 

This action meets applicable 

standards in sections 3(a) and 3(b)(2) of 

E.O. 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

E.O. 12630 (Taking of Private Property) 

This rule would not effect a taking of 

private property or otherwise have 

taking implications under E.O. 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights. 

National Technology Transfer and 

Advancement Act 

The National Technology Transfer 

and Advancement Act (15 U.S.C. 272 

note) requires Federal agencies 

proposing to adopt Government 

technical standards to consider whether 

voluntary consensus standards are 

available. If the Agency chooses to 

adopt its own standards in place of 

existing voluntary consensus standards, 

it must explain its decision in a separate 

statement to OMB. 

FMCSA determined that there are no 

voluntary national consensus standards 

for the design of EOBRs as complete 

units. However, as a part of the April 

2010 EOBR final rule, the Agency found 

there are many voluntary consensus 

standards concerning communications 

and information interchange methods 

that could be referenced as part of 

comprehensive performance-based 

requirements for EOBRs to ensure their 

reliable and consistent utilization by 

motor carriers and enforcement officers. 

For example, the digital character set 

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requirement references the American 

Standard Code for Information 

Interchange (ASCII) character set 

specifications, the most widely used 

form of which is ANSI X3.4–1986. This 

is described in the Document 

Information Systems—Coded Character 

Sets—7-Bit ASCII (ANSI document 

ANSI INCITS 4–1986 (R2002)) 

published by the American National 

Standards Institute (ANSI). In another 

example, the Agency would reference 

the 802.11 family of standards for 

wireless communication published by 

Institute of Electrical and Electronics 

Engineers (IEEE). The April 2010 EOBR 

final rule incorporated by reference 

these standards, and others, in 49 CFR 

395.18. 

As part of the development of the 

April 2010 EOBR final rule, FMCSA 

reviewed and evaluated the European 

Commission Council Regulations 

3821/85 (analog tachograph) and 

2135/98 (digital tachograph). These are 

not voluntary standards, but rather are 

design-specific type-certification 

programs. The Agency concluded that 

these standards lack several features and 

functions (such as CMV location 

tracking and the ability for the driver to 

enter remarks) that FMCSA believes are 

necessary to include in its proposed 

performance-based regulation. It further 

concluded that the standards require 

other features (such as an integrated 

license document on the driver’s data 

card) that are not appropriate for U.S. 

operational practices. 

Privacy Impact Assessment 

Section 522(a)(5) of the 

Transportation, Treasury, Independent 

Agencies, and General Government 

Appropriations Act, 2005 (Pub. L. 108– 

447, div. H, 118 Stat. 2809 at 3268) 

requires DOT and certain other Federal 

agencies to conduct a privacy impact 

assessment of each proposed rule that 

will affect the privacy of individuals. 

Although the Agency determined that 

the same personally identifiable 

information (PII) for CMV drivers 

currently collected as part of the RODS 

and supporting documents requirements 

would continue to be collected under 

this rulemaking, it recognizes the 

significance of the decision to require, 

even in limited circumstances, that PII, 

previously kept in paper copy, now be 

kept electronically. Privacy is a 

significant consideration in FMCSA’s 

development of this proposal. As stated 

earlier, FMCSA recognizes that the need 

for a verifiable EOBR audit trail (a 

detailed set of records to verify time, 

date, and physical location data for a 

particular CMV) must be 

counterbalanced by privacy 

considerations. As part of the 

development of the April 2010 EOBR 

final rule, the Agency considered, but 

rejected, certain alternative technologies 

to monitor drivers’ HOS (including incab video cameras and bio-monitors) as 

too invasive of personal privacy. All 

CMV drivers subject to 49 CFR part 395 

must have their HOS accounted for to 

ensure they have adequate opportunities 

for rest. This NPRM would not change 

the Agency’s policies, practices, or 

regulations regarding its own collection 

and storage of HOS records of 

individual drivers whose RODS are 

reviewed. It would not change the 

technology by which compliance is to 

be documented, as stated in the April 

2010 EOBR final rule, in a way that 

enhances both the sharing of 

information and its capacity to be data 

processed. 

As stated in the April 2010 final rule, 

and as is the case with all FMCSRs, the 

HOS information recorded on EOBRs 

would be accessible to Federal and State 

enforcement personnel only when 

compliance assurance activities are 

conducted at the facilities of motor 

carriers subject to the RODS 

requirement or when the CMVs of those 

carriers are inspected at roadside. Motor 

carriers would not be required to upload 

this information into Federal or State 

information systems accessible to the 

public. This would aid data security and 

ensure that general EOBR data 

collection does not result in a new or 

revised Privacy Act System of Records 

for FMCSA. (Evidence of violation of 

any FMCSA requirements uncovered 

during a compliance or enforcement 

activity is transferred to a DOT/FMCSA 

Privacy Act System of Records.) As 

FMCSA has previously discussed 

regarding EOBRs, the Agency complies 

with the Freedom of Information Act in 

implementing DOT regulations (75 FR 

17221, April 5, 2010; 49 CFR part 7). 

What this NPRM would change, and 

change significantly, is the capacity of 

HOS data to be processed and converted 

to more usable information for the 

purpose of determining drivers’ and 

motor carriers’ compliance with the 

HOS regulations. Although no CMV 

operator would be required to upload 

this data to a Federal or State database 

accessible to the public, the electronic 

formulation of the data would make it 

easier for a CMV operator to keep track 

of the activities of its drivers. Similarly, 

Federal and State law enforcement and 

safety authorities, including FMCSA, 

would be better able to do the same. As 

shown in other contexts, the increased 

accessibility, accuracy, and reliability of 

geospatial location information has 

made electronically generated and 

preserved data attractive to a variety of 

audiences. As discussed above, the 

Agency has tailored this NPRM to 

recognize the privacy interests of CMV 

drivers. 

The entire privacy impact assessment 

is available in the docket for this 

proposed rule. 

List of Subjects 

49 CFR Part 385 

Administrative practice and 

procedure, Highway safety, Mexico, 

Motor carriers, Motor vehicle safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 390 

Highway safety, Intermodal 

transportation, Motor carriers, Motor 

vehicle safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 395 

Highway safety, Motor carriers, 

Reporting and recordkeeping 

requirements. 

For the reasons stated in the 

preamble, FMCSA is proposing to 

amend 49 CFR Chapter III as follows: 

PART 385—SAFETY FITNESS 

PROCEDURES 

1. The authority citation for part 385 

continues to read as follows: 

Authority: 49 U.S.C. 113, 504, 521(b), 

5105(e), 5109, 5113,13901–13905, 31133, 

31135, 31136, 31137(a), 31144, 31148, and 

31502; Sec. 113(a), Pub. L. 103–311; Sec. 408, 

Pub. L. 104–88; Sec. 350, Pub. L. 107–87; and 

49 CFR 1.73. 

2. Amend § 385.3 by adding a 

definition for the term ‘‘Hours of Service 

Management System’’ in alphabetical 

order to read as follows: 

§ 385.3 Definitions and acronyms. 

* * * * * 

Hours of Service Management System 

is defined in § 395.2 of this subchapter. 

* * * * * 

3. Amend Section VII of Appendix B 

to part 385, by adding the following 

violations in numerical order to read as 

follows: 

Appendix B to Part 385—Explanation 

of Safety Rating Process 

* * * * * 

VII. List of Acute and Critical Regulations 

* * * * * 

§ 395.8(e)(1) Failing to require a driver to 

complete the record of duty status required 

by either this section, § 395.15 or § 395.16; 

failing to preserve a record or making false 

reports (critical). 

§ 395.8(e)(2) Failure to prohibit a driver 

from disabling, deactivating, disengaging, 

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jamming or otherwise blocking or degrading 

a signal transmission or reception; tampering 

with an automatic on-board recorder or 

electronic on-board recorder (critical). 

* * * * * 

§ 395.11(a) Failing to establish, implement, 

and maintain an hours-of-service 

management system with controls, policies, 

programs, practices, and procedures to 

effectively monitor each driver’s compliance 

with the hours of service requirements, and 

to prevent and detect violations of Part 395 

(acute). 

§ 395.11(c) Failing to identify each 

supporting document or maintain the 

supporting documents in such a manner that 

permits the matching of those records to the 

driver’s original record of duty status 

(critical). 

§ 395.11(d) Intentionally destroying, 

mutilating, or altering a supporting 

document; or failing to prevent alteration of 

supporting documents; failing to prevent 

alteration of supporting documents which 

reduces their accuracy (acute). 

§ 395.11(e) Failing to maintain all elements 

of the supporting documents as required by 

this section or § 395.8. (critical). 

§ 395.11(f) Making a false certification 

regarding the receipt or retention of 

supporting documents (acute). 

§ 395.11(g) Failing to maintain all elements 

of the supporting documents as required in 

a remedial directive (acute). 

§ 395.11(h) Failing to forward, within 3 

days of the 24-hour period to which the 

document pertains, or the day the document 

comes into the driver’s or motor carrier’s 

possession, whichever is later, all required 

supporting documents and the original of the 

record of duty status. Failing to forward 

supporting documents provided 

electronically from the driver to the carrier 

within 24 hours (critical). 

* * * * * 

4. Amend Appendix C to part 385 by 

adding the following violations in 

numerical order to read as follows: 

Appendix C to Part 385—Regulations 

Pertaining to Remedial Directives in 

Part 385, Subpart J 

* * * * * 

§ 395.8(e)(1) Failing to require a driver to 

complete the record of duty status required 

by either this section, § 395.15 or § 395.16; 

failing to preserve a record or making false 

reports (critical). 

§ 395.8(e)(2) Failure to prohibit a driver 

from disabling, deactivating, disengaging, 

jamming or otherwise blocking or degrading 

a signal transmission or reception; tampering 

with an automatic on-board recorder or 

electronic on-board recorder (critical). 

* * * * * 

§ 395.11(a) Failing to establish, implement, 

and maintain an hours-of-service 

management system with controls, policies, 

programs, practices, and procedures to 

effectively monitor each driver’s compliance 

with the hours of service requirements, and 

to prevent and detect violations of part 395 

(acute). 

§ 395.11(c) Failing to identify each 

supporting document or maintain the 

supporting documents in such a manner that 

permits the matching of those records to the 

driver’s original record of duty status 

(critical). 

§ 395.11(d) Intentionally destroying, 

mutilating, or altering a supporting 

document; or failing to prevent alteration of 

supporting documents; failing to prevent 

alteration of supporting documents which 

reduces their accuracy (acute). 

§ 395.11(e) Failing to maintain all elements 

of the supporting documents as required by 

this section or § 395.8. (critical). 

§ 395.11(f) Making a false certification 

regarding the receipt or retention of 

supporting documents (acute). 

§ 395.11(g) Failing to maintain all elements 

of the supporting documents as required in 

a remedial directive (acute). 

§ 395.11(h) Failing to submit or forward by 

mail the driver’s supporting documents, 

within 3 days of the 24-hour period to which 

the document pertains, or the day the 

document comes into the driver’s or motor 

carrier’s possession, whichever is later, all 

required supporting documents and the 

original of the record of duty status. Failing 

to forward supporting documents provided 

electronically from the driver to the carrier 

within 24 hours (critical). 

PART 390—FEDERAL MOTOR 

CARRIER SAFETY REGULATIONS; 

GENERAL 

5. The authority citation for part 390 

continues to read as follows: 

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

31132, 31133, 31136, 31144, 31151, 31502, 

31504; sec. 204, Pub. L. 104–88, 109 Stat. 

803, 941 (49 U.S.C. 701 note); sec. 114, Pub. 

L. 103–311, 108 Stat. 1673, 1677; sec. 212, 

217, 229, Pub. L. 106–159, 113 Stat. 1748, 

1766, 1767, 1773; sec. 4136, Pub. L. 109–59, 

119 Stat. 1144, 1745 and 49 CFR 1.73. 

6. Amend § 390.5 by adding a 

definition for ‘‘Document,’’ in 

alphabetical order, to read as follows: 

§ 390.5 Definitions. 

* * * * * 

Document means any writing and any 

electronically-stored information, 

including data or data compilation(s), 

stored in any medium from which 

information may be obtained. 

* * * * * 

PART 395—HOURS OF SERVICE OF 

DRIVERS 

7. The authority citation for part 395 

continues to read as follows: 

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

31136, 31502, Sec. 229, Pub. L. 106–159, 113 

Stat. 1748, 1773 (as transferred by Sec. 4415 

and amended by Sec. 4130–4132 of Pub. L. 

106–59, 119 Stat. 1144, at 1726, 1743–1744); 

Sec. 4143, Pub. L. 106–59, 119 Stat. 1144, 

1744; Sec. 113, Pub. L. 103–311, 108 Stat. 

1673, 1676; and 49 CFR 1.73. 

8. Amend § 395.2 by adding the 

following definitions in alphabetical 

order, to read as follows: 

§ 395.2 Definitions. 

* * * * * 

Hours of service management system 

means the controls, policies, programs, 

practices, and procedures used by a 

motor carrier systematically and 

effectively to monitor drivers’ 

compliance with hours of service 

requirements and to verify the accuracy 

of the information contained in drivers’ 

records of duty status. The management 

system must include, at a minimum, the 

use of documents, records, and 

information generated or received by the 

motor carrier in the normal course of 

business. These documents and records, 

and this information must include, but 

are not limited to, driver payroll 

records, trip-related expense reports and 

receipts, bills of lading or equivalent 

documents, and fleet management 

system communication records (any 

record of communication between a 

motor carrier and a driver in the normal 

course of business). 

* * * * * 

Motor carrier, as defined in § 390.5, 

includes, for purposes of this part, an 

owner-operator leased to a carrier 

subject to a remedial directive issued 

under part 385, subpart J, regardless of 

whether the owner-operator has 

separate operating authority under part 

365 of this subchapter. 

* * * * * 

Supporting document, for the 

purposes of this part, means a document 

that is generated or received by the 

motor carrier in the normal course of 

business that could be used, as 

produced or with additional identifying 

information, to verify the accuracy of a 

driver’s record of duty status. 

* * * * * 

9. Amend § 395.8 by revising 

paragraphs (a) and (e), the heading of 

paragraph (k), and paragraph (k)(1) to 

read as follows: 

§ 395.8 Driver’s record of duty status. 

(a) Except as provided in § 395.1(e)(1) 

and (2), every motor carrier subject to 

the requirements of this part must 

require every driver used by the motor 

carrier to record his/her duty status for 

each 24-hour period using the methods 

prescribed in either paragraphs (a)(1) or 

(2) of this section. 

(1) Every driver who operates a 

commercial motor vehicle in operations 

other than those described in paragraph 

(a)(2) of this section must record his/her 

duty status, in duplicate, for each 

24-hour period. The duty status time 

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5554 Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 

must be recorded on a specified grid, as 

shown in paragraph (g) of this section. 

The grid and the requirements of 

paragraph (d) of this section may be 

combined with any company forms. 

This format may be used: 

(i) By those operations described in 

§ 395.1(e)(1) and (2), where a driver 

operates a commercial motor vehicle 

outside of the distance radius or for 

longer periods of time specified in those 

provisions no more than 2 days in any 

7-day period; and 

(ii) By those operations subject to 

§ 395.16(a)(3) until [INSERT DATE 

THREE YEARS AFTER THE EFFECTIVE 

DATE OF THE FINAL RULE]. 

(2) Every driver operating a 

commercial motor vehicle must record 

his/her record of duty status using 

either an automatic on-board recording 

device meeting the requirements of 

§ 395.15 or an electronic on-board 

recorder meeting the requirements of 

§ 395.16 installed in the vehicle. The 

requirements of this section apply to: 

All motor carriers required to maintain 

RODS except those eligible to use time 

records under § 395.1(e)(1) and (2). 

* * * * * 

(e)(1) A motor carrier must require 

drivers to complete the record of duty 

status required by either this section, 

§ 395.15 or § 395.16 and must preserve 

a record of such duty status. A motor 

carrier must not make false reports in 

connection with such duty status. 

(2) No motor carrier shall permit or 

require any driver used by it to disable, 

deactivate, disengage, jam or otherwise 

block or degrade a signal transmission 

or reception; or reengineer, reprogram, 

or otherwise tamper with an automatic 

on-board recorder or electronic on-board 

recorder so that the device does not 

accurately record the duty status of a 

driver; nor shall any driver engage in 

the activities prohibited under this 

paragraph. 

* * * * * 

(k) Retention of driver’s record of duty 

status and supporting documents. 

(1) Each motor carrier shall retain and 

maintain records of duty status and all 

supporting documents required under 

this part, for each of its drivers, for a 

period of 6 months from the date of 

receipt. 

* * * * * 

10. Revise § 395.11 to read as follows: 

§ 395.11 Motor carrier’s hours of service 

management system and oversight. 

(a) Scope. (1) Every motor carrier 

subject to the requirements of this part 

shall establish, use, and maintain an 

hours of service management system, as 

defined in § 395.2, capable of preventing 

and detecting violations of this part by 

each of its drivers. The management 

system must include, at a minimum, the 

use of documents, records, and 

information generated or received by the 

motor carrier in the normal course of 

business. 

(2) This section also applies to motor 

carriers and owner-operators that have 

been issued a remedial directive to 

install, use, and maintain EOBRs unless 

otherwise provided in the remedial 

directive. 

(b) A motor carrier shall be deemed to 

have knowledge of any and all 

documents in its possession, and any 

and all documents that are available to 

the motor carrier and that the carrier 

could use in its hours of service 

management system. ‘‘Knowledge of a 

document’’ means knowledge of both 

the fact that it exists and its specific 

contents. 

(c) The motor carrier must maintain 

supporting documents in such a way 

that they may be effectively matched to 

the corresponding driver’s record of 

duty status. 

(d) A motor carrier or a driver must 

not obscure, deface, destroy, mutilate, or 

alter existing information contained in 

the supporting document. 

(e) Supporting documents required 

(motor carriers not subject to a 

Remedial Directive under 49 CFR part 

385, subpart J): 

(1) In addition to records generated 

from EOBRs that meet, at a minimum, 

the requirements of § 395.16, motor 

carriers must retain and maintain the 

documents required by this section for 

every drivers’ duty day. Except as 

provided in paragraph (e)(3) of this 

section, a supporting document or 

documents must contain the following 

information: 

(i) Driver name or personal 

identification number (PIN) associated 

with the driver’s name, or another 

identifying number that is issued to the 

driver. A unit (vehicle) number may be 

used so long as it can be associated with 

the driver operating the vehicle at a 

specific date, time, and location. 

(ii) The date. The date recorded must 

be the date at the location where it is 

recorded. If the date is automatically 

recorded on an electronic document, it 

must be obtained, transmitted, and 

recorded in such a way that it cannot be 

altered by a motor carrier, driver, or 

third party. 

(iii) The time. The time recorded must 

be convertible to the local time at the 

location where it is recorded. If the time 

is automatically recorded on an 

electronic document, it must be 

obtained, transmitted, and recorded in 

such a way that it cannot be altered by 

a motor carrier, driver, or third party. 

(iv) The location. The location 

description must include the name of 

the nearest city, town, or village to 

enable Federal, State, and local 

enforcement personnel to quickly 

determine the vehicle’s geographic 

location on a standard map or road 

atlas. If the location information is 

automatically recorded on an electronic 

document, it must be derived from a 

source not subject to alteration by the 

motor carrier, driver, or third party. 

(2) For any non-driving period after 

coming on duty following 10 

consecutive hours off duty, with the 

exception of any sleeper berth period of 

at least 2 hours but less than 10 

consecutive hours pursuant to 

§ 395.1(g)(1)(ii)(A)(2) and any off-duty 

period of at least 2 hours but less than 

8 consecutive hours pursuant to 

§ 395.1(g)(3), drivers and motor carriers 

must retain and maintain at least one 

document as described in this paragraph 

from among the four categories listed 

below: 

(i) Payroll; 

(ii) Trip-related expense records and 

receipts; 

(iii) Fleet management system 

communication logs; and 

(iv) A bill of lading or equivalent 

document. 

(3) If a motor carrier retains a single 

supporting document that shows the 

driver identification, date, time, and 

location for the beginning and end of 

any on-duty not driving period, that is 

the only document the carrier must 

retain and maintain for that period. 

However, if the motor carrier does not 

retain and maintain one single 

supporting document that shows all of 

these items, it must retain and maintain 

sufficient documentation from the 

categories listed above to show the 

driver identification and (i) the location, 

and date, and time of the duty status 

change, when used together, or (ii) the 

location, date, and time of the duty 

status changes. 

(f) If a motor carrier does not receive 

or retain any supporting documents 

from the classes of documents listed in 

paragraph (e)(2) of this section, then the 

motor carrier must certify that it does 

not or did not receive these documents. 

If a motor carrier is found to have falsely 

certified to not having supporting 

documents, it would be subject to a civil 

penalty for falsification. Motor carriers 

submitting false certifications are 

subject to the maximum penalty 

authorized under 5 U.S.C. 521, 

irrespective of the Uniform Fine 

Assessment algorithm or other Agency 

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Federal Register / Vol. 76, No. 21 / Tuesday, February 1, 2011 / Proposed Rules 5555 

penalty calculations implementing 49 

U.S.C. 521(b)(2)(D). 

(g) Supporting documents required 

(motor carriers subject to a Remedial 

Directive under 49 CFR part 385, 

subpart J). Motor carriers subject to a 

Remedial Directive must retain and 

maintain all supporting documents as 

described in that directive. 

(h) The driver must submit or forward 

by mail the driver’s supporting 

documents and the original record of 

duty status to the regular employing 

motor carrier within 3 days of the 24- 

hour period to which the receipt 

pertains, or the day the document comes 

into the driver’s or motor carrier’s 

possession, whichever is later. If a 

supporting document is submitted 

electronically, the driver shall submit 

the supporting document within 24 

hours. 

(i) FMCSA may authorize on a caseby-case basis, motor carrier selfcompliance systems. 

(1) Requests for supporting document 

self-compliance systems may be 

submitted to FMCSA under the 

procedures described in 49 CFR part 

381, subpart C (Exemptions). 

(2) FMCSA will consider requests 

concerning types of supporting 

documents maintained by the motor 

carrier under § 395.8(k)(1) and the 

method by which a driver retains and 

maintains a copy of the record of duty 

status for the previous 7 days and makes 

it available for inspection while on duty 

in accordance with § 395.8(k)(2). 

(j) Motor carriers maintaining date, 

time, and location data produced by an 

EOBR that complies with § 395.16 need 

only maintain additional supporting 

documents (e.g., driver payroll records, 

fuel receipts) that provide the ability to 

verify non-driving status according to 

the requirements of § 395.8(a)(2). 

11. Amend § 395.16 by revising 

paragraph (a) to read as follows: 

§ 395.16 Electronic on-board recording 

devices. 

(a) This section applies to electronic 

on-board recording devices (EOBRs) 

used to record the driver’s hours of 

service as specified by part 395. Every 

driver required by a motor carrier to use 

an EOBR shall use such device to record 

the driver’s hours of service. 

(1) Motor carriers subject to a 

remedial directive to install, use, and 

maintain EOBRs, issued in accordance 

with 49 CFR part 385, subpart J, must 

comply with this section. 

(2) For commercial motor vehicles 

manufactured on and after June 4, 2012, 

motor carriers must install and use an 

electronic device that meets the 

requirements of this section to record 

hours of service. 

(3) Motor carriers operating 

commercial motor vehicles must install 

EOBRs and require their drivers to use 

an EOBR to record the driver’s hours of 

service except for commercial motor 

vehicles operated by drivers eligible to 

use only accurate and true time records 

to record drivers’ hours of service under 

the provisions of § 395.1(e)(1) and (2). 

(4) Motor carriers must install and 

require their drivers to use hours-ofservice recording devices in accordance 

with this section in their commercial 

motor vehicles no later than [INSERT 

DATE THREE YEARS AFTER THE 

EFFECTIVE DATE OF THE FINAL 

RULE]. 

* * * * * 

Issued on: January 26, 2011. 

Anne S. Ferro, 

Administrator, FMCSA. 

[FR Doc. 2011–2093 Filed 1–31–11; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

RIN 0648–AX70 

Fisheries of the Northeastern United 

States; Monkfish; Amendment 5 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability of a fishery 

management plan amendment; request 

for comments. 

SUMMARY: NMFS announces that the 

New England Fishery Management 

Council (NEFMC) has submitted 

Amendment 5 to the Monkfish Fishery 

Management Plan (FMP) (Amendment 

5), incorporating a draft Environmental 

Assessment (EA) and an Initial 

Regulatory Flexibility Analysis (IRFA), 

for review by the Secretary of 

Commerce. NMFS is requesting 

comments from the public on 

Amendment 5, which was developed by 

the New England and Mid-Atlantic 

Fishery Management Councils 

(Councils) to bring the Monkfish FMP 

into compliance with the annual catch 

limit (ACL) and accountability measure 

(AM) requirements of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). 

DATES: Public comments must be 

received on or before April 4, 2011. 

ADDRESSES: A draft EA was prepared for 

Amendment 5 that describes the 

proposed action and other considered 

alternatives, and provides a thorough 

analysis of the impacts of the proposed 

measures and alternatives. Copies of 

Amendment 5, including the draft EA 

and the IRFA, are available on request 

from Paul J. Howard, Executive Director, 

New England Fishery Management 

Council (Council), 50 Water Street, 

Newburyport, MA 01950. These 

documents are also available online at 

http://www.nefmc.org. 

You may submit comments, identified 

by 0648–AX70, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: Allison 

McHale. 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930. Mark the 

outside of the envelope, ‘‘Comments on 

Monkfish Amendment 5.’’ 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All personal identifying 

information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit confidential 

business information or otherwise 

sensitive or protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Allison McHale, Fishery Policy Analyst, 

(978) 281–9103; fax: (978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

The monkfish fishery is jointly 

managed by the Councils, with the 

NEFMC having the administrative lead. 

The fishery extends from Maine to 

North Carolina, and is divided into two 

management units: The Northern 

Fishery Management Area (NFMA) and 

the Southern Fishery Management Area 

(SFMA). 

The Councils developed Amendment 

5 with the primary goal of bringing the 

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