[Federal Register Volume 76, Number 21 (Tuesday, February 1, 2011)]
[Proposed Rules]
[Pages 5537-5555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2093]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 395

[Docket No. FMCSA-2010-0167]
RIN 2126-AB20


Electronic On-Board Recorders and Hours of Service Supporting 
Documents

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) 
to require certain motor carriers operating commercial motor vehicles 
(CMVs) in interstate commerce to use electronic on-board recorders 
(EOBRs) to document their drivers' hours of service (HOS). Under this 
proposal, all motor carriers currently required to maintain Records of 
Duty Status (RODS) for HOS recordkeeping would be required to use EOBRs 
to systematically and effectively monitor their drivers' compliance 
with HOS requirements. Additionally, this proposal sets forth the 
supporting documents that all motor carriers currently required to use 
RODS would still be required to obtain and keep, as required by section 
113(a) of the Hazardous Materials Transportation Authorization Act 
(HMTAA). It explains, however, that although motor carriers subject to 
the proposed EOBR requirements would still need to retain some 
supporting documents, they would be relieved of the requirements to 
retain supporting documents to verify driving time. FMCSA also proposes 
to require all motor carriers--both RODS and timecard users--to 
systematically monitor their drivers' compliance with HOS requirements. 
Motor carriers would be given 3 years after the effective date of the 
final rule to comply with these requirements.

DATES: Comments must be received on or before April 4, 2011. Comments 
sent to the Office of Management and Budget (OMB) on the collection of 
information must be received by OMB on or before April 4, 2011.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-

[[Page 5538]]

2010-0167 using any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
    <bullet> 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.
    <bullet> 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.
    <bullet> Fax: 202-493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments, including collection of information comments for 
the Office of Information and Regulatory Affairs (OIRA), OMB.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations, Federal Motor Carrier Safety Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001 or by telephone at (202) 
366-5370.

SUPPLEMENTARY INFORMATION: This NPRM is organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Collection of Information Comments
    E. Pilot Project on Open Government and the Rulemaking Process
II. Abbreviations and Acronyms
III. Legal Basis for the Rulemaking
    A. Authority: EOBR
    B. Authority: Supporting Documents
IV. Background
    A. On-Board Recording Devices--History of HOS Records of Duty 
Status (RODS) Regulations
    B. Supporting Documents Requirements
    1. History of Supporting Documents Requirement
    2. Treatment of Supporting Documents in the April 5, 2010, EOBR 
Final Rule
V. Agency Proposal
    A. Requirement for Mandatory EOBR Use (49 CFR 395.8)
    1. Scope
    2. Transition Period and Compliance Date
    3. Incentives During the Transition
    B. Supporting Documents: Discussion of New Proposal
    1. HOS Management System
    2. Definition of ``Supporting Document'' (49 CFR 395.2)
    3. Information in Supporting Documents (49 CFR 395.11(e)(1))
    4. Number, Type, and Frequency of Supporting Documents (49 CFR 
395.11(e)(2) and (3))
    5. Certification Provision (49 CFR 395.11(f))
    6. Retention and Maintenance of Supporting Documents (49 CFR 
395.8(k)(1))
    7. Motor Carrier Self-Compliance Systems
VI. Rulemaking Analyses

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments and related materials. All comments received will 
be posted without change to http://www.regulations.gov and will include 
any personal information you provide.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (FMCSA-2010-0167), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. FMCSA recommends that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that FMCSA can contact you if there are questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov and 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu, select 
``Proposed Rules,'' insert ``FMCSA-2010-0167'' in the ``Keyword'' box, 
and click ``Search.'' When the new screen appears, click on ``Submit a 
Comment'' in the ``Actions'' column. If you submit your comments by 
mail or hand delivery, submit them in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
facility, please enclose a stamped, self-addressed postcard or 
envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble, 
available in the docket, go to http://www.regulations.gov and click on 
the ``read comments'' box in the upper right hand side of the screen. 
Then, in the ``Keyword'' box insert ``FMCSA-2010-0167'' and click 
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions'' 
column. Finally, in the ``Title'' column, click on the document you 
would like to review. If you do not have access to the Internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

C. Privacy Act

    Anyone may search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review DOTs complete Privacy Act 
Statement in the Federal Register notice published on April 11, 2000 
(65 FR 19476).

D. Collection of Information Comments

    If you have comments on the collection of information discussed in 
this notice of proposed rulemaking (NPRM), you must also send those 
comments to the OIRA, OMB. To ensure that your comments are received on 
time, the preferred methods of submission are by e-mail to <a href="/cdn-cgi/l/email-protection#67080e1506381412050a0e14140e08091427080a054902081749000811"><span class="__cf_email__" data-cfemail="b3dcdac1d2ecc0c6d1dedac0c0dadcddc0f3dcded19dd6dcc39dd4dcc5">[email protected]</span></a> (include docket number ``FMCSA-2010-0167'' and 
``Attention: Desk Officer for FMCSA, DOT'' in the subject line of the 
e-mail) or fax at 202-395-6566. An alternate, though slower, method is 
by U.S. mail to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street, NW., Washington, DC 
20503, ATTN: Desk Officer, FMCSA, DOT.

E. Pilot Project on Open Government and the Rulemaking Process

    On January 21st, 2009, President Obama issued a Memorandum on 
Transparency and Open Government in which he described how: ``Public 
engagement enhances the Government's effectiveness and improves the 
quality of its decisions. Knowledge is widely dispersed in society, and 
public officials benefit from having access to that dispersed 
knowledge.''
    To support the President's open government initiative, DOT has 
partnered with the Cornell eRulemaking Initiative (CeRI) in a pilot 
project, Regulation Room, to discover the best ways of using Web 2.0 
and social networking technologies to: (1) Alert the public, including 
those who sometimes

[[Page 5539]]

may not be aware of rulemaking proposals, such as individuals, public 
interest groups, small businesses, and local government entities that 
rulemaking is occurring in areas of interest to them; (2) increase 
public understanding of each proposed rule and the rulemaking process; 
and (3) help the public formulate more effective individual and 
collaborative input to DOT. Over the course of several rulemaking 
initiatives, CeRI will use different Web technologies and approaches to 
enhance public understanding and participation, work with DOT to 
evaluate the advantages and disadvantages of these techniques, and 
report their findings and conclusions on the most effective use of 
social networking technologies in this area.
    DOT and the Obama Administration are striving to increase effective 
public involvement in the rulemaking process and strongly encourage all 
parties interested in this rulemaking to visit the Regulation Room Web 
site, http://www.regulationroom.org, to learn about the rule and the 
rulemaking process, to discuss the issues in the rule with other 
persons and groups, and to participate in drafting comments that will 
be submitted to DOT. In this rulemaking, CeRI will submit to the 
rulemaking docket a Summary of the discussion that occurs on the 
Regulation Room site; participants will have the chance to review a 
draft and suggest changes before the Summary is submitted. Participants 
who want to further develop ideas contained in the Summary, or raise 
additional points, will have the opportunity to collaboratively draft 
joint comments that will be also be submitted to the rulemaking docket 
before the comment period closes.
    Note that Regulation Room is not an official DOT Web site, and so 
participating in discussion on that site is not the same as commenting 
in the rulemaking docket. The Summary of discussion and any joint 
comments prepared collaboratively on the site will become comments in 
the docket when they are submitted to DOT by CeRI. At any time during 
the comment period, anyone using Regulation Room can also submit 
individual views to the rulemaking docket through the Federal 
rulemaking portal Regulations.gov, or by any of the other methods 
identified at the beginning of this Notice.
    For questions about this project, please contact Brett Jortland in 
the DOT Office of General Counsel at (202) 366-9314 or at 
<a href="/cdn-cgi/l/email-protection#fd9f8f988989d397928f89919c9399bd999289d39a928b"><span class="__cf_email__" data-cfemail="6f0d1d0a1b1b4105001d1b030e010b2f0b001b41080019">[email protected]</span></a>.

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;

[[Page 5540]]

and (4) the operation of commercial motor vehicles does not have a 
deleterious effect on the physical condition of the operators (49 
U.S.C. 31136(a)).

    Section 211 of the 1984 Act also grants the Secretary broad power 
in carrying out motor carrier safety statutes and regulations to 
``prescribe recordkeeping and reporting requirements'' and to ``perform 
other acts the Secretary considers appropriate'' (49 U.S.C. 31133(a)(8) 
and (10)).
    The HOS regulations are designed to ensure that driving time--one 
of the principal ``responsibilities imposed on the operators of 
commercial motor vehicles''--does ``not impair drivers' ability to 
operate the vehicles safely'' (49 U.S.C. 31136(a)(2)). EOBRs that are 
properly designed, used, and maintained would not only permit motor 
carriers to schedule vehicle and driver operations more efficiently, 
but would also enable motor carriers to more effectively and accurately 
track their drivers' on-duty driving hours, thus preventing HOS 
violations and resulting crashes. Requirements that motor carriers 
retain certain other supporting documents, in addition to EOBR records, 
further assist the Agency in ensuring driver and motor carrier 
compliance with the HOS rules. Driver compliance with the HOS rules, in 
turn, helps ensure that ``the physical condition of [commercial motor 
vehicle drivers] is adequate to enable them to operate the vehicles 
safely'' (49 U.S.C. 31136(a)(3)). Indeed, the Agency considered whether 
this proposal would impact driver health under 49 U.S.C. 31136(a)(3) 
and (a)(4). Because the proposal could increase compliance with the HOS 
regulations, including driving and off-duty time requirements, it would 
actually have a positive effect on the physical condition of drivers. 
(See the discussion of health impacts at Section VI of this NPRM 
regarding environmental analyses.)
    The requirements in 49 U.S.C. 31136(a)(1) concerning safe motor 
vehicle maintenance, equipment, and loading are not germane to this 
proposed rule because EOBRs and supporting documents influence driver 
operational safety rather than vehicular and mechanical safety. 
Consequently, the Agency has not assessed the proposed rule against 
that requirement. However, to the limited extent 49 U.S.C. 31136(a)(1) 
pertains specifically to driver safety, the Agency has taken this 
statutory requirement into account throughout the proposal.
    Section 9104 of the Truck and Bus Safety and Regulatory Reform Act 
(Pub. L. 100-690, November 18, 1988, 102 Stat. 4181, at 4529) also 
anticipates the Secretary promulgating ``a regulation about the use of 
monitoring devices on commercial motor vehicles to increase compliance 
by operators of the vehicles with hours of service regulations'' and 
requires the Agency to ensure that any such device is not used to 
``harass vehicle operators'' (49 U.S.C. 31137(a)).
    Based on the statutory framework reviewed previously, FMCSA has the 
authority to adopt an industry-wide requirement that all motor carriers 
subject to HOS requirements under 49 CFR part 395 install and use EOBR-
based systems.

B. Authority: Supporting Documents

    Section 113(a) of the HMTAA requires the Secretary to prescribe 
regulations to improve--(A) compliance by CMV drivers and motor 
carriers with HOS requirements; and (B) the effectiveness and 
efficiency of Federal and State enforcement officers reviewing such 
compliance. The cost of such regulations must be reasonable to drivers 
and motor carriers (section 113(a)(2)).
    HMTAA section 113(b) describes what elements must be covered in the 
new regulations. HMTAA section 113(b)(1) states that the regulations 
must allow for a ``written or electronic document * * * to be used by a 
motor carrier or by an enforcement officer as a supporting document to 
verify the accuracy of a driver's record of duty status [RODS].'' The 
legislative history emphasizes that requiring the retention of 
supporting documents would allow enforcement personnel to support or 
disprove allegations of HOS violations, including preventing firms from 
playing ``hide and seek'' or discarding supporting documents (S. 1640, 
140 Cong. Rec. S11320, S11323, 1994 WL 422479, August 11, 1994). 
Section 113(b)(1) further directs the Secretary to include in the 
regulations a description of identification items (that include either 
driver name or vehicle number) that would facilitate matching these 
supporting documents with RODS.
    Section 113(b)(2) states that the regulations shall specify the 
``number, type, and frequency of supporting documents that must be 
retained by the carrier.''
    Section 113(b)(3) requires that the regulations specify that 
supporting documents shall be retained by the motor carrier for at 
least 6 months from the date of a document's receipt.
    Section 113(b)(4) calls for the Agency to draft regulations ``* * * 
to authorize, on a case-by-case basis, self compliance systems * * *'' 
for motor carriers, including ``a group'' of motor carriers.
    Under section 113(b)(5), the Agency shall include a provision in 
its regulations that allows the Agency to issue waivers from certain 
requirements under 49 CFR 395.8(k) when sufficient supporting 
documentation is provided to enforcement personnel through an 
intelligent-vehicle highway system, as defined by section 6059 of the 
Intelligent Vehicle Highway Systems Act (IVHSA) (Pub. L. 102-240, 
December 18, 1991, 105 Stat. 2189, 2195). The Federal Highway 
Administration (FHWA), the predecessor organization to FMCSA within the 
Department of Transportation (DOT), did not draft the regulations 
authorized under section 113(b)(5). The IVHSA was subsequently repealed 
(see section 5213 of TEA-21, 112 Stat. 463); there currently is no 
statutory guidance on waivers as the term was used in section 
113(b)(5). However, this provision does not affect this rulemaking 
because other regulatory avenues exist for motor carriers to apply for 
waivers, exemptions, and pilot programs.
    Section 113(c) defines a supporting document as ``any document that 
is generated or received by a motor carrier or commercial motor vehicle 
driver in the normal course of business that could be used, as produced 
or with additional identifying information, to verify the accuracy of a 
driver's record of duty status.'' Consequently, this NPRM does not 
propose to require generation of new documents outside the normal 
course of the carrier's business.

IV. Background

A. On-Board Recording Devices--History of HOS Records of Duty Status 
(RODS) Regulations \1\
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    \1\ For a more complete regulatory history of EOBRs, please 
refer to the preambles of the 2004 EOBR ANPRM and 2007 EOBR NPRM 
(Docket: FMCSA-2004-18940).
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    Current Federal HOS regulations (49 CFR part 395) limit the number 
of hours a CMV driver may drive. The regulations also limit, during 
each 7- or 8-day period, the maximum on-duty time before driving is 
prohibited (exceptions are listed in 49 CFR 395.1(k), (n), and (o)). 
Such rules are needed to prevent CMV operators from driving for long 
periods without opportunities to obtain adequate sleep. Sufficient 
sleep is necessary to ensure that a driver is alert behind the wheel 
and able to respond appropriately to changes in the driving 
environment.
    With certain exceptions,\2\ motor carriers and drivers are required 
by 49 CFR 395.8 to keep RODS to track

[[Page 5541]]

driving, on-duty, and off-duty time. FMCSA and State agencies use these 
records to ensure compliance with the HOS rules.
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    \2\ These exceptions are listed in 49 CFR 395.1.
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    On April 5, 2010, the Agency issued a final rule that addressed the 
limited, remedial use of EOBRs for motor carriers with significant HOS 
violations (75 FR 17208). That final rule required a motor carrier that 
was found during a compliance review to have a 10 percent violation 
rate for any HOS regulation in Appendix C of 49 CFR part 385 to install 
and use EOBRs on all of that carrier's CMVs. The compliance or 
implementation date for the rule is June 4, 2012. Although FMCSA 
received comments recommending expanding the reach of the rule beyond 
the number of motor carriers the 2010 remedial directive is estimated 
to affect, the limited scope of the NPRM prevented the Agency from 
doing so. As noted in the preamble to the 2010 final rule, however, 
FMCSA recognizes that the potential safety risks associated with HOS 
violations are such that mandatory EOBR use for a broader population 
might be appropriate. Accordingly, this proposed rule would expand the 
scope of mandatory EOBR use beyond the population of motor carriers 
that are or would be subject to a remedial directive as a result of the 
April 2010 final rule.
    This NPRM honors the Agency's commitment to safety by taking action 
to improve compliance with the HOS rules. It responds to issues that 
would have been addressed in the April 2010 final rule were it not for 
the limited scope of the NPRM. As FMCSA noted in its April 2010 final 
rule:

    Numerous commenters to the NPRM [January 18, 2007 (72 FR 2340)] 
stated that the proposal still would not require EOBR use by enough 
carriers to make a meaningful difference in highway safety, relative 
to the total carrier population. The FMCSA acknowledges the safety 
concerns of the commenters. In response to those concerns, the 
Agency will explore the safety benefits of a broader EOBR mandate in 
a new rulemaking proceeding that will begin in the near future.

B. Supporting Documents Requirements

1. History of Supporting Documents Requirement
    A fundamental principle of the FMCSRs, stated in 49 CFR 390.11, is 
that a motor carrier has the duty to require its drivers to comply with 
the FMCSRs, including HOS-related duties and prohibitions. Motor 
carriers have historically required their drivers, as a condition of 
employment, to provide supporting documents, such as fuel receipts, 
toll receipts, bills of lading, and repair invoices. They compare these 
documents to the drivers' entries on the RODS (or the record provided 
by the automatic on-board recording device (AOBRD) or EOBR, if such a 
device is used) to help verify the accuracy of the HOS reported by 
their CMV drivers. The FMCSRs require motor carriers to retain these 
supporting documents, as well as the paper and electronic RODS, for a 
period of 6 months from the date of receipt.
    Although the FMCSRs have always required a ``remarks'' section to 
augment the duty status information contained in the RODS document, it 
was not until January 1983 that the use of supporting documents was 
explicitly required. The final rule revising the recordkeeping 
requirements for 49 CFR part 395 to explicitly require supporting 
documents was published November 26, 1982 (47 FR 53383); but the rule 
did not define the term ``supporting documents,'' and questions arose 
concerning what the Agency expected motor carriers to retain.
    On November 17, 1993 the Agency published regulatory guidance 
(Regulatory Guidance for the Federal Motor Carriers Safety Regulations 
(58 FR 60734)) on a variety of topics, including supporting documents. 
Supporting documents were the subject of Question 10 for 49 CFR 395.8 
which provides in pertinent part:

    Question 10: What regulation, interpretation, and/or 
administrative ruling requires a motor carrier to retain supporting 
documents and what are those documents?
    Guidance: Section 395.8(k)(1) requires motor carriers to retain 
all supporting documents at their principal places of business for a 
period of 6 months from date of receipt.
    Supporting documents are the records of the motor carrier which 
are maintained in the ordinary course of business and used by the 
motor carrier to verify the information recorded on the driver's 
record of duty status.
    Examples are: Bills of lading, carrier pros, freight bills, 
dispatch records, driver call-in records, gate record receipts, 
weight/scale tickets, fuel receipts, fuel billing statements, toll 
receipts, international registration plan receipts, international 
fuel tax agreement receipts, trip permits, port of entry receipts, 
cash advance receipts, delivery receipts, lumper receipts, 
interchange and inspection reports, lessor settlement sheets, over/
short and damage reports, agricultural inspection reports, CVSA 
reports, accident reports, telephone billing statements, credit card 
receipts, driver fax reports, on-board computer reports, border 
crossing reports, custom declarations, traffic citations, 
overweight/oversize reports and citations, and/or other documents 
directly related to the motor carrier's operation, which are 
retained by the motor carrier in connection with the operation of 
its transportation business.

    The following year, in HMTAA section 113, Congress directed the 
Agency to prescribe regulations to amend 49 CFR part 395 to improve 
driver and motor carrier compliance with the HOS regulations. (See the 
Legal Basis section of this NPRM.) Section 113 also defined supporting 
documents in a manner nearly identical to the Agency's regulatory 
guidance: ``For purposes of this section, a supporting document is any 
document that is generated or received by a motor carrier or commercial 
motor vehicle driver in the normal course of business that could be 
used, as produced or with additional identifying information, to verify 
the accuracy of a driver's record of duty status'' (HMTAA sec. 
113(b)(1)).
    In its revised regulatory guidance, published on April 4, 1997 
(Regulatory Guidance for the Federal Motor Carrier Safety Regulations 
(62 FR 16370)), the Agency emphasized the need for motor carriers to 
provide adequate HOS oversight. Specifically, the Agency added two Q&A 
guidance items to 49 CFR 395.3:

    Question 7: What is the liability of a motor carrier for hours 
of service violations?
    Guidance: The carrier is liable for violations of the hours of 
service regulations if it had or should have had the means by which 
to detect the violations. Liability under the FMCSRs does not depend 
upon actual knowledge of the violations.
    Question 8: Are carriers liable for the actions of their 
employees even though the carrier contends that it did not require 
or permit the violations to occur?
    Guidance: Yes. Carriers are liable for the actions of their 
employees. Neither intent to commit, nor actual knowledge of, a 
violation is a necessary element of that liability. Carriers 
``permit'' violations of the hours of service regulations by their 
employees if they fail to have in place management systems that 
effectively prevent such violations (65 FR 16370, 16424).

    A year later, on April 20, 1998, the Agency published an NPRM in 
which it proposed to define ``supporting documents'' identically to the 
HMTAA definition (63 FR 19457). It also proposed requiring motor 
carriers to develop and use an HOS supporting document auditing system 
that would include a procedural manual. The manual would identify the 
types of documents used, specify how the audit system would work, how 
drivers recording inaccurate information on their RODS would be 
notified, and how a carrier would take corrective action to improve 
drivers' compliance. If a motor carrier did not have a supporting 
document auditing system, it would have to maintain various types of 
business documents and require its drivers to collect and submit those

[[Page 5542]]

documents in order to support the accuracy of the drivers' RODS. 
Finally, the NPRM proposed to allow use of ``automated, electronic, or 
laser technology'' systems to maintain copies of records or documents, 
including those requiring a signature, so long as the motor carrier was 
able to provide alternate means for signature verification.
    Many commenters to the 1998 NPRM expressed concern that the Agency 
was considering addressing HOS supporting documents separately from the 
HOS advance notice of proposed published on November 5, 1996 (61 FR 
57252). FMCSA responded by including proposed changes to the methods of 
verifying HOS compliance through supporting documents in its May 2, 
2000, NPRM on HOS regulations (65 FR 25540). The supporting documents 
section of that NPRM focused upon operations involving long or regional 
trips away from a home base with little supervision of, contact with, 
or control over the driver. The Agency proposed that the paperwork 
burdens for all other operations be minimized and stated that, whenever 
possible, FMCSA would be prepared to accept records that are required 
by other Federal agencies. Notably, the Department of Labor's (DOLs) 
Wage and Hour Division regulations require motor carrier employers to 
maintain time records for 2 years (29 CFR part 516). The Agency 
believed this approach would meet the requirements of section 113 of 
the HMTAA and be consistent with the dual objectives of (1) improving 
the enforcement of the HOS regulations and (2) simplifying the 
recordkeeping requirements of motor carriers.
    The April 2003 HOS final rule did not implement the HMTAA provision 
for supporting documents as proposed. One of the reasons was that the 
Agency decided to not move forward with its May 2000 proposal for five 
motor carrier operational categories (long-haul (LH), regional, and 
three types of local operations), with significantly different 
recordkeeping requirements for the local and for the regional and LH 
carriers. However, the final rule did state (at 68 FR 22490):

    A motor carrier's responsibility for compliance with the HOS 
regulations remains clear. The motor carrier is responsible for and 
must police the actions of its employees. This obligation under the 
FMCSRs was affirmed by the Associate Administrator for what was then 
the Office of Motor Carriers (of the FHWA). In the Matter of Horizon 
Transportation, Inc., 55 FR 43292 (October 26, 1990) (Final Order 
February 12, 1990). A motor carrier's responsibility for the actions 
of independent contractors and owner operators it uses was outlined 
in the matter of In re R.W. Bozel Transfers, Inc, 58 FR 16918 (March 
31, 1993) (Final Order August 6, 1992); and more recently In the 
Matter of Commodity Carriers, Inc., (Order Appointing Administrative 
Law Judge March 25, 1997). Likewise, each motor carrier must have a 
system in place that allows it to effectively monitor compliance 
with the FMCSRs, especially those aimed at the issue of this Final 
Rule--driver fatigue [see In re National Retail Transportation, Inc. 
(Final Order: Decision on Review September 12, 1996)]. The United 
States Court of Appeals for the Sixth Circuit affirmed in A.D. 
Transport Express Inc. v. Federal Motor Carrier Safety 
Administration, 290 F. 3d 761 (6th Cir. 2002), that supporting 
documents must be maintained in a common sense manner so that FMCSA 
investigators can ``verify dates, times, and locations of drivers 
recorded on the RODS.'' More recently, the DC Circuit agreed that 
the term ``supporting documents'' in the current rule encompasses 
any document that could be used to support the RODS. That decision 
also found an FMCSA requirement that supporting documents must be 
maintained in a fashion that permits the matching of those records 
to the original drivers' RODS as a reasonable interpretation of 49 
CFR 395.8(k)(1). In fact, the Court concluded that all the FMCSA is 
asking is that carriers refrain from destroying the agency's ability 
to match records with their associated drivers (Darrell Andrews 
Trucking v. Federal Motor Carrier Safety Administration, 296 F. 3d 
1120 (DC Cir. 2002)).

    FMCSA published a supplemental NPRM (SNPRM) on supporting documents 
on November 3, 2004 (69 FR 63997). The SNPRM proposed that motor 
carriers must review and verify the HOS records of both employee 
drivers and independent owner-operators proposed to require that 
drivers submit to the motor carrier all supporting documents along with 
the RODS; and specified that motor carriers must maintain supporting 
documents in a method that allows cross reference to the RODS. The 
SNPRM also proposed a self-monitoring system for supporting documents 
that would be a carrier's primary method for ensuring compliance with 
the HOS regulations: An FMCSA Special Agent or other authorized 
government safety official could deem a system to be effective if fewer 
than 10 percent of the drivers' paper RODS or AOBRD records were found 
to be false. Finally, the SNPRM also proposed to permit the use of 
electronic documents as a supplement to, and, in certain circumstances, 
in lieu of, paper supporting documents.
    Commenters on the SNPRM raised concerns with the number and quality 
of supporting documents drivers and carriers were expected to obtain 
and retain; the lack of specificity of the self-monitoring system; the 
potential burdens for motor carriers to verify, inspect, and maintain 
these documents and link them to RODS; and the availability of 
sufficient FMCSA resources to enforce the regulation and to assess 
applications for exemptions. In addition, the Agency discovered a 
longstanding error in the computation of the information collection 
burden associated with the HOS regulations. This error had caused the 
Agency to significantly underestimate the information collection burden 
attributable to the SNPRM. FMCSA withdrew the SNPRM on October 25, 2007 
(72 FR 60614).
    The use of advanced technologies in the supporting documents 
context was the subject of FMCSA and predecessor agency enforcement 
policy. In August 1997, an enforcement policy memorandum limited the 
use of advanced technology, mainly global positioning system (GPS) 
records, during investigations regarding motor carrier compliance with 
FMCSRs. At the time the memorandum was issued, the Agency stated that 
it recognized that the technologies, which were emerging and being 
implemented within the industry in 1997, offered a positive opportunity 
to advance operational safety performance. At the same time, the time-
and-location information the new technologies provided was noted to be 
considerably more precise than location information handwritten in a 
paper RODS and could tip the playing field to the disadvantage of 
carriers that had adopted those technologies. In order to promote and 
encourage motor carriers to use these new technologies in their 
operations and safety management systems, the Agency decided to limit 
its use of technology data and electronically produced records during 
reviews and for regulatory enforcement purposes.
    In the years since the Agency established that policy, the use of 
advanced vehicle location tracking technologies has become widely 
accepted and an integral component of motor carriers' logistics, fleet 
operations, and safety management systems. Reasoning that the 1997 
policy had achieved its purpose, FMCSA rescinded the policy on November 
19, 2008 (73 FR 69717). On a related matter, the Agency formally re-
initiated work on the Supporting Documents Rulemaking in July 2009.
    On January 15, 2010, the American Trucking Associations (ATA) filed 
a Petition for a Writ of Mandamus in the United States Court of Appeals 
for the District of Columbia Circuit (DC Cir. No. 10-1009). ATA 
petitioned the court to direct FMCSA to issue an NPRM on

[[Page 5543]]

``supporting documents'' in conformance with the requirements set forth 
in section 113 of the HMTAA within 60 days after the issuance of the 
writ and a final rule no later than 6 months after the issuance of the 
NPRM. The court granted the petition for writ of mandamus on September 
30, 2010, ordering FMCSA to issue an NPRM on the supporting document 
regulations by December 30, 2010. A copy of the Petition for Writ has 
been placed in the docket for this NPRM. Partially in response to 
petitioner's court filing, FMCSA issued interim guidance on HOS 
supporting documents and mobile communications/tracking policy on June 
10, 2010 (75 FR 32984). In addition to removing certain documents from 
the list of supporting documents a carrier must maintain, that guidance 
confirmed that carriers are liable for the actions of their employees 
if they have the means by which to detect HOS violations. The guidance 
made it clear that the 1997 enforcement policy memorandum had been made 
less relevant by the widespread use of vehicle location tracking 
technologies. Today's proposed rule would supersede, in most respects, 
that interim guidance.
2. Treatment of Supporting Documents in the April 5, 2010, EOBR Final 
Rule
    The April 2010 final rule sets forth new performance standards for 
devices and systems used to produce electronic HOS records. It also 
mandates the use of these devices by motor carriers that have 
demonstrated serious noncompliance with the HOS regulations. In 
addition, the rule provides incentives to encourage motor carriers to 
use EOBRs on a voluntary basis by providing relief from the requirement 
that such motor carriers maintain supporting documents to verify 
driving time. Because the Agency agrees with numerous commenters that 
EOBRs with GPS or similar location data produce regular time and CMV 
location position histories sufficient to verify adequately a driver's 
on-duty driving activities, motor carriers voluntarily maintaining the 
time and location data produced by EOBRs would need to maintain only 
those additional supporting documents that are necessary to verify on-
duty not driving (ODND) activities and off-duty status (75 FR 17208, at 
17212, 17233, and 17234).

V. Agency Proposal

    This NPRM would improve CMV safety and reduce paperwork burdens by 
increasing the use of EOBRs within the motor carrier industry, which 
will improve HOS compliance. The approach has three components: (1) 
Requiring EOBRs to be used by considerably more motor carriers and 
drivers than the April 2010 final rule, (2) requiring motor carriers to 
develop and maintain systematic HOS oversight of their drivers, and (3) 
simplifying the supporting documents requirements so motor carriers can 
make the best use of EOBRs and their support systems as their primary 
means of recording HOS information and ensuring HOS compliance. FMCSA 
believes this approach strikes an appropriate balance between promoting 
highway safety and minimizing cost and operational burdens on motor 
carriers in certain operations that have inherently less crash risk.

A. Requirement for Mandatory EOBR Use (49 CFR 395.8)

    FMCSA proposes mandatory installation and use of EOBRs in all CMVs 
for which the use of RODS is currently required. CMVs operating in 
interstate commerce using accurate and true time records to record 
drivers' HOS under the provisions of 49 CFR 395.1(e)(1) and (2) may 
continue to use these records. While they are not required to install 
and use EOBRs, nothing in this proposed rule precludes them from doing 
so.
    A key factor that allowed the Agency to consider proposing a 
broader EOBR mandate was the rise in the estimate of the Economic Value 
of a Statistical Life (VSL). As FMCSA discussed in the April 2010 EOBR 
final rule, DOT issued a memorandum on February 5, 2008, instructing 
its modal agencies to estimate the economic value of preventing a human 
fatality at $6 million. See ``Treatment of the Economic Value of a 
Statistical Life in Departmental Analyses'' (available at: http://ostpxweb.dot.gov/policy/reports/080205.htm). FMCSA also published a 
notice in the Federal Register describing this policy change (73 FR 
35194, June 20, 2008). The previous VSL, which was used in the 
Regulatory Impact Analysis (RIA) for the EOBR NPRM (Docket: FMCSA-2004-
18940), was $3.0 million. Given that the VSL doubled, the net benefits 
of the April 5, 2010, rule, as well as those of other FMCSA rules under 
development, were recalculated using the new figures. This 
recalculation resulted in a reappraisal of the regulatory options by 
the Agency. Moreover, a broader mandate is more cost effective because 
of the widespread availability and functionality of on-board 
communications and logistics management systems already adopted in the 
motor carrier industry.\3\
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    \3\ More information about the widespread availability can be 
found in Appendix F of the RIA associated with this rulemaking.
---------------------------------------------------------------------------

1. Scope
    FMCSA proposes mandatory installation and use of EOBRs in 
interstate CMVs currently required to complete RODS under 49 CFR 395.8. 
Under today's proposal, motor carriers currently allowed to use time 
cards could continue to do so under the provisions of 49 CFR 
395.1(e)(1).
    The provisions of 49 CFR 395.1(e)(2),\4\ which also permit time-
card use, are available to drivers of property-carrying CMVs that do 
not require a CDL and who operate within a 150 air-mile radius of the 
driver's normal work-reporting location under the current provisions.
---------------------------------------------------------------------------

    \4\ There are currently proposals to change these. Please see 
NPRM for the HOS Rulemaking (75 FR 80014, December 21, 2010) for 
more information.
---------------------------------------------------------------------------

    In short, all SH drivers that record their HOS using the timecard 
provision of 49 CFR 395.1(e)(1) and (2) may continue to use timecards. 
The Agency acknowledges that drivers working for motor carriers that 
keep timecards under 49 CFR 395.1(e)(1) and (2) may occasionally 
operate beyond the parameters of those provisions (for example, by 
operating outside the specified 100- or 150-air-mile radii). Under this 
NPRM, they would be allowed to continue using RODS for those days, as 
opposed to using EOBRs. The Agency requests commenters' views related 
to this matter. Specifically, should motor carriers whose drivers 
usually operate within the limits of the 49 CFR 395.1(e)(1) and (2) 
provisions, but occasionally beyond them, be required always to use 
EOBRs? For these carriers, what threshold should trigger EOBR use? 
Should the threshold be based upon the amount of time drivers operate 
beyond the time limits or the number of miles traveled beyond the 
distance limits (for example, 1 day per week, 2 days per week, 5 days 
per month, or another threshold)? Should the threshold be based upon 
the proportion of drivers working for a given motor carrier who operate 
beyond the time or distance limits?
    The Agency considered including carriers, vehicles, and drivers of 
bulk HM in this NPRM. It did so because a crash involving a CMV 
transporting bulk HM can endanger a large number of people, cause 
significant damage to infrastructure, and generate greater traffic 
congestion than a crash involving a CMV transporting other cargoes. 
Although these events are infrequent,

[[Page 5544]]

the Pipeline and Hazardous Materials Safety Administration's Hazardous 
Materials Risk Management Program considers the potential risks they 
pose to persons, property, and the environment to be ``low probability, 
high consequence events'' (Comparative Risks of Hazardous Materials and 
Non-Hazardous Materials Truck Shipment Accidents/Incidents, Final 
Report. Prepared for Federal Motor Carrier Safety Administration, March 
2001). The Agency seeks additional data and information concerning the 
safety of bulk HM carriers in that are not currently required to use 
RODS. This will aid the Agency in determining whether to require this 
category of motor carriers to use EOBRs.
    Similarly, the risk of fatalities or serious injuries when a crash 
involves a passenger-carrying CMV is such that the Agency considered 
proposing a requirement for EOBR use in this industry sector (excluding 
the 9-15 passenger carriers not for direct compensation segment). DOT's 
Motor Coach Safety Action Plan notes seven priority action items to 
reduce motorcoach crashes, fatalities, and injuries. The first priority 
action item is to initiate rulemaking to require EOBRs on all 
motorcoaches. The provisions of today's proposal would apply only to 
those passenger carrier operations where the driver is required to 
complete a RODS. The Agency, however, considered proposing a 
requirement for SH motor carriers of passengers to use EOBRs. It seeks 
additional data and information about the safety of this group of 
carriers, drivers, and vehicles.
    FMCSA considered requiring only drivers in LH operations (that is, 
those operating beyond a 150 air-mile radius) to use EOBRs. An ``LH 
only'' option would address the segment of the motor carrier industry 
with the highest safety and HOS compliance gaps and has the highest 
estimated net benefit. However, it would not address the safety 
concerns associated with SH motor carriers, especially those operations 
on the days when RODS, rather than timecards, are required. FMCSA 
requests comment on the costs, benefits, and practicality of 
implementing a ``LH Only'' option.
    The Agency also considered requiring EOBRs for all motor carriers 
subject to 49 CFR part 395. The estimated compliance costs of this 
``true universal'' approach, which the National Transportation Safety 
Board (NTSB) \5\ and others advocated, exceed the estimated safety 
benefits for most SH motor carriers; and the overall net benefits are 
negative. The option selected in the proposed rule is estimated to 
generate benefits that exceed the costs of installing EOBRs and the 
costs associated with increased levels of compliance with the HOS 
rules. This option also has the highest estimated net benefits of the 
options considered for this proposed rulemaking. It also acknowledges 
the operational distinctions between motor carriers allowed to use 
timecards under 49 CFR 395.1(e)(1) and (2) exclusively, and the other 
motor carriers that would be required to use EOBRs. More information 
concerning the estimated costs and benefits is available in the RIA 
associated with this rulemaking.
---------------------------------------------------------------------------

    \5\ NTSB Safety Recommendation H-07-041 issued on December 17, 
2007.
---------------------------------------------------------------------------

    Although not analyzed as part of this rulemaking action, FMCSA also 
requests comments on the advantages, disadvantages, and practicality of 
a potential exemption from the EOBR requirements for motor carriers 
with few or no HOS violations.
    Finally, FMCSA proposes changing the term ``activity'' to 
``status'' in Sec.  395.8(e)(1) to clarify that HOS requirements 
include completing records of duty status--a commonly used term of art 
in part 395.
2. Transition Period and Compliance Date
    It is likely that a final rule resulting from this NPRM would be 
published sometime prior to the June 4, 2012, compliance date for the 
April 2010 EOBR final rule. As stated in 49 CFR 385.805, FMCSA can 
issue remedial directives to any motor carrier subject to 49 CFR part 
395 of the FMCSRs on and after June 4, 2012. Even if the final rule 
were to take effect shortly after publication, today's NPRM does not 
propose to change the compliance date of the April 2010 final rule.
    The remedial directive provision in the April 2010 rule allows the 
Agency to require motor carriers to use EOBRs and also to retain a 
wider range of supporting documents than otherwise would be required. 
Even after the compliance date proposed in this NPRM for the transition 
to mandatory EOBR use, the Agency would retain the authority to issue 
remedial directives to:
    <bullet> Motor carriers subject to 49 CFR part 395 but not 
otherwise required to use AOBRDs or EOBRs, and
    <bullet> 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\
---------------------------------------------------------------------------

    \6\ Keith R. Klein, Transport America, Chairman MTA, 
``Electronic Onboard Recorders and You'' Trucking Minnesota, May 
2010.
---------------------------------------------------------------------------

    The fact remains, however, that the aggregate impact of a wider 
EOBR mandate will be significant because of the large number of small 
business entities that will be required to install and use EOBRs in 
their CMVs. The motor carrier industry is extremely diverse in terms of 
the size of fleets, the types of passengers or commodities transported, 
and the size of businesses. The Agency anticipates that a motor carrier 
operating a fleet of 150 or fewer PUs would likely be considered small 
under Small Business Administration (SBA) guidelines. About 99 percent 
of motor carriers of property and 96 percent of motor carriers of 
passengers in FMCSA's Motor Carrier Management Information System 
(MCMIS) would be considered small businesses.
    For these reasons, FMCSA is proposing a compliance date for 
mandatory EOBR use 3 years after the effective date of a final rule. 
The Agency seeks comment on factors it should consider to determine if 
the compliance date might need to be adjusted and, if so, how. For 
example, should larger motor carriers be required to install and use 
EOBRs earlier than smaller ones; and what should the number of PUs be 
to determine this size threshold? Should EOBR use be phased-in over a 
period of time, in proportion to the number of PUs in a motor carrier's 
fleet? Are there other potential phase-in schedules FMCSA should 
consider? If so, please provide supporting data and information.
3. Incentives During the Transition
    In the January 2007 NPRM, FMCSA acknowledged the concern at that 
time of many motor carriers that voluntary installation of EOBRs would 
place them

[[Page 5545]]

at a competitive disadvantage compared to carriers not using EOBRs. In 
response, FMCSA's April 2010 EOBR final rule provided two incentives to 
promote motor carriers' use of EOBRs that comply with 49 CFR 395.16:
    (1) Motor carriers voluntarily using EOBRs that comply with 49 CFR 
395.16 will receive partial relief from the supporting documents 
requirements of 49 CFR part 395. Specifically, these motor carriers 
will no longer be required to retain and maintain supporting documents 
related to driving time because this information will be maintained by 
and be accessible from the EOBR.
    (2) The HOS portion of a compliance review will include both 
focused and random samples, but only the random sample results will be 
used to assign the carrier a safety fitness rating under 49 CFR part 
385. If FMCSA finds a 10 percent or higher HOS-violation rate based on 
an initial focused sample, this may be used as the basis for a possible 
civil penalty. The assessment would also include a random sampling of 
the motor carrier's overall HOS records; this would be used as the 
basis for a safety fitness rating. Motor carriers required to use EOBRs 
under the terms of a remedial directive do not have access to this 
incentive.
    These incentives would continue to be available to motor carriers 
that voluntarily use EOBRs, until the compliance date of the final rule 
resulting from this rulemaking.

B. Supporting Documents: Discussion of New Proposal

1. HOS Management System
    Motor carriers have a duty to ensure that their drivers are 
complying with the requirements and prohibitions imposed upon them (49 
CFR 390.11). This proposed rulemaking would explicitly continue the 
obligation of motor carriers to use the information contained in 
supporting documents to ensure that their drivers comply with 
prescribed HOS limits.\7\ The manner in which those documents are 
generated would not be material--the duty applies equally to documents 
generated by electronic mobile communications/tracking systems as well 
as to paper records (49 CFR 395.11(a)). Motor carriers could be deemed 
to have knowledge of the contents of those documents (49 CFR 
395.11(b)).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    An HOS management system refers to the controls, policies, 
programs, practices, and procedures used by a motor carrier to 
systematically and effectively monitor each driver's compliance with 
HOS requirements and to verify the accuracy of the information 
contained in each driver's RODS (49 CFR 395.11(a)). A motor carrier's 
duty to maintain an HOS management system, as explained in this NPRM, 
is analogous to its duties in other management areas that are already 
prescribed in the driver and vehicle regulations, such as 49 CFR 382.10 
(motor carrier duty to ensure compliance with part 40 controlled 
substances and alcohol regulations), 49 CFR 391.1 (general duty of 
motor carriers to ensure qualifications of drivers), 49 CFR 391.25 
(motor carrier duty to make annual inquiry and review of driving 
record), and 49 CFR 396.3 (motor carrier duty to make systematic 
inspection, repair, and maintenance of CMVs).
    FMCSA also proposes to amend 49 CFR part 385, Safety Fitness 
Procedures, Appendices B and C, to include among the listed acute and 
critical citations a motor carrier's failure to adopt and properly 
administer an ``hours of service management system.'' To meet the 
safety fitness standard in 49 CFR part 385, a motor carrier would have 
to have in place the controls, policies, programs, practices, and 
procedures to systematically and effectively monitor each driver's 
compliance with HOS requirements.
2. Definition of ``Supporting Document'' (49 CFR 395.2)
    FMCSA proposes to adopt verbatim the statutory definition from 
HMTAA section 113(c): ``A supporting document is any document that is 
generated or received by a motor carrier or CMV driver in the normal 
course of business that could be used, as produced or with additional 
identifying information, to verify the accuracy of a driver's RODS.'' 
Significantly, this Congressional direction expands the definition of 
``supporting documents'' beyond Agency practice to include all 
documents that ``could be used'' to verify drivers' RODS.
3. Information in Supporting Documents (49 CFR 395.11(e))
    Collectively, the supporting documents required must provide the 
motor carrier (and a safety investigator) with the driver's 
identification and a complete and accurate history of the driver's duty 
status, by date, time, and location. Therefore, as proposed in 49 CFR 
395.11(e)(1), the proposed requirements for supporting documents would 
include certain elements. The descriptions of these elements would be 
consistent with the requirements of the April 2010 EOBR final rule. 
Safety investigators and other designated officials of FMCSA have the 
authority to request any record of a motor carrier, lessor, or person 
controlling or controlled by the motor carrier (49 U.S.C. 504(c)).
    Supporting documents must contain the following required elements: 
Personal identification, date, time, and location, either in an 
individual document or in specified combination, as set forth in 
section 395.11(e).
Driver Identification
    The driver's name, or a personal identification number (PIN) 
associated with the driver's name, is central to developing a RODS for 
each driver subject to the HOS regulations. A unit (vehicle) number may 
be used so long as it can be associated with the driver operating the 
vehicle at a specific date, time, and location.
Date and Time
    The date of an event and the time the event began and ended (time-
stamp) are central to place an event within a sequence of duty status 
items. For activities that represent a single point in time, this would 
include, for example, the time a CMV entered a shipper's or consignee's 
location.
Location
    The location description associated with the supporting document 
must be sufficiently precise to enable Federal, State, and local 
enforcement personnel to quickly determine the vehicle's geographic 
location on a standard map or road atlas; ``location'' means the 
nearest city, town, or village. If the location information is 
automatically recorded on an electronic document, it must be derived 
from a source not subject to alteration by the motor carrier, driver, 
or third party. Because AOBRDs and EOBRs play a significant role in 
motor carrier safety, FMCSA is proposing to modify 49 CFR 395.8(e) to 
prohibit tampering with or modifying these devices in such a way that 
driver duty status is not accurately recorded.
    Related to this, the Agency is also proposing expressly to prohibit 
the use of electronic jamming devices that interfere with EOBRs and 
other electronic communication or vehicle tracking systems. Although 
FMCSA's goal is to forestall the use of jammers to avoid HOS 
compliance, some of these devices can interfere with air traffic

[[Page 5546]]

control and other critical safety communication systems and thus pose 
additional safety risks.
4. Number, Type, and Frequency of Supporting Documents (49 CFR 
395.11(e)(2) and (3))
Number
    The number of documents that a motor carrier would need to examine, 
review, and retain will vary according to the motor carrier's 
operational circumstances. For example, operations where a motor 
carrier's drivers pick up fully-loaded trailers at one consignee, drive 
for several hundred miles, drop the trailer at its destination, and 
pick up another fully-loaded trailer from another consignee would have 
fewer on-duty non-driving periods than an operation where a driver 
brings an empty trailer to a shipper, loads it, and drops portions of 
the load at many receivers' locations. The number of documents could 
also vary according to the type and variety of a driver's daily 
assignments the quality and completeness of the supporting documents 
available, as well as the geographic area and commercial character of 
the region in which the carrier operates.
Type
    Consistent with the direction provided in section 113(b)(2) of the 
HMTAA, this NPRM addresses the ``type'' of supporting documents that 
must be used to verify RODS. In doing so, the Agency recognizes the 
diversity of carrier operations and operational circumstances, and 
provides a flexible range of document types that a carrier can use to 
define its compliance system, appropriate with its needs. Examples of 
the types of documents that may be used to satisfy the supporting 
documents requirement are set out in the definition of ``hours of 
service management system'' in proposed 49 CFR 395.2. In contrast to 
the broad range of documents used as examples of supporting documents 
in current guidance at 49 CFR 395.8(k)(1), the Agency would require the 
motor carrier to retain sufficient supporting documents from the 
following four categories: (1) Payroll; (2) trip-related expense 
records and receipts; (3) FMS communication logs; and (4) a bill of 
lading or equivalent document. The supporting documents retained in the 
four categories identified might be individual records within a 
supporting document that covers multiple activities of individual 
drivers (such as dispatch records organized according to individual 
driver assignments) or specific types of activities of multiple drivers 
(such as pickup and delivery records for drivers assigned to one 
shipper's account) to reflect the beginning and end of each on-duty 
non-driving period.
Frequency
    The Agency proposes to require carriers to retain, for each driver, 
at least one supporting document for the beginning and end of each ODND 
period. Only one document would be needed for the beginning and end of 
each ODND period if that document contained all of the data elements 
set forth in proposed 49 CFR 395.11(e) (i.e., driver name or PIN, date 
and time, and location).
    If the motor carrier does not retain one single supporting document 
that shows all of the required data elements, it would be required to 
retain sufficient documents, from any of the four categories listed 
above, to show collectively all of the required information: the driver 
identification and the location, date and time of the duty status 
changes. Such an approach addresses the requirements of section 113(c) 
of HMTAA regarding documents that can be used ``as produced'' 
separately or collectively, ``with additional identifying 
information,'' to verify the accuracy of the driver's RODS.
    The Agency stresses that the types of documents proposed to be 
retained would not normally be generated during periods when drivers 
are actually off-duty. However, FMCSA has the statutory authority to 
request any documents related to the operation of CMVs in interstate 
commerce.
    Additionally, the Agency is responding to section 113(b)(2) of the 
HMTAA concerning ``frequency'' of supporting documents retention by 
adding proposed language under 49 CFR 395.8(h) to require the driver to 
submit all corresponding supporting documents to the employing motor 
carrier within 3 days following the completion of the RODS. Drivers 
will be required to forward supporting documents for which they are 
responsible (mainly, trip-related expense reports and receipts) for 
each day that they provide a RODS. Additionally, reflecting the 
widespread use of both electronic documents and document scanning 
systems, drivers would be required to forward those documents to the 
motor carrier within 3 days of receipt, instead of the 13 days in the 
current regulations (see 49 CFR 395.8(i)). Motor carriers and their 
customers are rapidly moving to electronic, paperless systems that can 
provide near-instantaneous access to HOS-relevant data and records. If 
a supporting document is submitted electronically, the driver should 
submit it the same duty day (49 CFR 395.11(h)).
5. Certification Provision (49 CFR 395.11(f))
    The proposed ``certification provision'' acknowledges the diversity 
of carrier operations and the fact that the proposed minimum number of 
supporting documents will not be available to all drivers and/or 
carriers for all periods for each day of operation. The certification 
provision would allow a carrier that retains none of these supporting 
documents in its normal course of business or, alternatively, does not 
retain sufficient documents from the four categories noted above, to 
certify that no supporting documents were available.
    The certification provision is not a ``loophole,'' however; motor 
carriers that falsely certify the absence of supporting documents would 
be subject to the maximum penalty authorized by law. It is true that 
Congress instructed FMCSA, when assessing civil penalties, to consider 
a number of factors, including the nature, circumstances, extent, and 
gravity of the violation committed, as well as the degree of 
culpability, history of prior offenses, ability to pay, effect on 
ability to continue to do business, and other such matters as justice 
and public safety may require (49 U.S.C. 521(b)(2)(D)). But the 
overriding concern of Congress was clearly stated in the final sentence 
of that provision: ``In each case, the assessment shall be calculated 
to induce further compliance.'' Because motor carriers that submit 
false certifications are deliberately subverting an essential element 
of the hours-of-service regulations and may well be concealing 
practices that place both their own drivers and the public at increased 
risk, FMCSA believes that nothing less than the maximum penalty would 
``induce further compliance.'' The Agency has no desire to impose the 
maximum penalty and does not expect to do so frequently; FMCSA's hope 
is that the deterrent effect of maximum penalties will make such action 
unnecessary. However, the Agency believes it should have these 
penalties available to deal with extreme violations. False 
certification is an egregious--indeed fraudulent--violation of the 
FMCSRs.
6. Retention and Maintenance of Supporting Documents (49 CFR 
395.8(k)(1))
    FMCSA proposes a retention period of 6 months as specified in 
section 113(b)(3) of the HMTAA. This is consistent with the existing 
retention

[[Page 5547]]

period for other HOS paper and electronic documents. However, the 
Agency seeks to clarify that while the section heading for current 49 
CFR 395.8(k) is ``Retention of driver's record of duty status,'' 
paragraph (k)(1) discusses the requirement to ``maintain'' such 
documents, which is consistent with judicial interpretation of 
maintaining documents for subsequent use by carrier and Agency 
personnel. Consequently, 49 CFR 395.8(k)(1) would be amended merely to 
add the phrase ``retain and'' prior to the term ``maintain,'' to 
indicate the relationship between the terms.
7. Motor Carrier Self-Compliance Systems
    The statute requires FMCSA to provide exemptions for qualifying 
``self-compliance systems,'' instead of supporting documents retention. 
In satisfaction of HMTAA section 113(b)(4), the proposed rule would add 
a provision to authorize, on a case-by-case basis, motor carrier self-
compliance systems (49 CFR 395.11(i)). A motor carrier could apply for 
an exemption under existing part 381 provisions for additional relief 
from the requirements for retaining supporting documents for RODS. 
Among other things, an application for exemption must include a 
statement that explains how the applicant would ensure that he or she 
could achieve a level of safety that is equivalent to, or greater than, 
the level of safety that would be obtained by complying with 49 CFR 
part 395. We request that commenters provide information describing 
their self-compliance systems, or the systems they might anticipate 
developing.

VI. Rulemaking Analyses

Executive Order (E.O.) 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    Under E.O. 12866 (58 FR 51735, October 4, 1993) and DOT policies 
and procedures, FMCSA must determine whether a regulatory action is 
``significant,'' and therefore subject to OMB review and the 
requirements of the E.O. The Order defines ``significant regulatory 
action'' as one likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal government or 
communities.
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another Agency.
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof.
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the E.O.

    FMCSA determines that this proposed rule would have an annual 
effect of $100 million or more. In addition, because of public interest 
about the rulemakings related to HOS compliance, it is a significant 
regulatory action within the meaning of the E.O. and under the 
regulatory policies and procedures of DOT. The Agency has, therefore, 
conducted an RIA of the costs and benefits of this NPRM. The RIA is 
summarized below. The full analysis is available in the docket 
pertaining to this rulemaking.
    FMCSA evaluated the costs and benefits associated with the proposed 
rule on EOBRs and their affect on improving compliance with the 
underlying HOS rules. In the RIA associated with this rulemaking, the 
Agency updated its assessment of the baseline level of non-compliance 
with the current HOS rules to account for changes in certain factors 
such as inflation, a decline in HOS violations that has preceded the 
mandate for EOBR use, and the decline in CMV-related crashes. Included 
in this analysis as alternative baselines are Options 2 and 3 from the 
recently published NPRM for the HOS rules for property carriers (Option 
1 of the HOS NPRM is to retain the current HOS rules). The major 
changes for both HOS options 2 and 3 are to: Allow at most 13 hours of 
on-duty time within the daily driving window; limit continuous on-duty 
drive time to 7 hours, at which point a 30 minute off-duty or sleeper-
berth period would be required; and to require at least two overnight 
periods in each 34-hour restart period. HOS Option 2, however, also 
reduces daily drive time from 11 to 10 hours, while HOS Option 3 
retains 11 hours of drive time. To avoid confusion between the HOS 
options and the options for the EOBR NPRM, HOS Option 2 and HOS Option 
3 are referred to as Baseline 2 and Baseline 3, respectively.
    The Agency is currently considering three options for the EOBR 
mandate. Option 1 would require EOBRs for all drivers required to use 
paper RODS. Option 2 expands Option 1 to include all passenger-carrying 
CMVs subject to the FMCSRs and all shipments of bulk HM, regardless of 
whether the drivers use paper RODs or are exempted from doing so, as 
described under the SH operations provisions in Sec.  395.1(e). Option 
3 would include all CMV operations subject to the HOS requirements.
    In this NPRM, FMCSA also proposes changes to requirements 
concerning HOS supporting documents. The Agency has clarified its 
supporting document requirements, recognizing that EOBRs themselves 
serve as the most robust form of documentation for on-duty driving 
periods. The Agency has been careful not to increase the burden 
associated with retention of the supporting documents; but it also 
cannot claim, even with EOBR use, that it has reduced the burden of 
supporting documents.
    Although the ``foundation'' RODS burden would drop dramatically, 
primarily due to the elimination of paper RODS, the overall supporting 
documents burden would not be reduced. This is because carriers will 
still be required to maintain supporting documents. In addition, while 
motor carriers may gain efficiencies in reviewing electronic RODS, as 
opposed to paper RODS, against supporting documents to ensure driver 
compliance, the overall burden of review for this task is not expected 
to change. These proposed changes are expected to improve the quality 
and usefulness of the supporting documents and, thereby, (1) improve 
the Agency's ability to effectively and efficiently review motor 
carriers' HOS records, and (2) detect and assess violations during on-
site compliance reviews. The Agency is currently unable to evaluate the 
extent to which the proposed changes to the supporting documents 
requirements will lead to reductions in crashes.
    The following table (Table 1) summarizes the analysis. The figures 
presented are annualized using 7 percent and 3 percent discount rates.

                           Table 1--Annualized Costs and Benefits (2008 $ Millions) 8
----------------------------------------------------------------------------------------------------------------
                                                    7 Percent discount rate          3 Percent discount rate
                                               -----------------------------------------------------------------
                                                 Option 1   Option 2   Option 3   Option 1   Option 2   Option 3
----------------------------------------------------------------------------------------------------------------
I--EOBR Costs.................................      1,586      1,643      1,939      1,554      1,610      1,900

[[Page 5548]]

 
II--HOS Compliance Costs......................        398        404        438        398        404        438
III--Total Costs (I+II).......................      1,984      2,047      2,377      1,952      2,014      2,338
IV--Paperwork Savings 9.......................      1,965      1,965      1,965      1,965      1,965      1,965
V--Safety Benefits............................        734        736        746        734        736        746
VI--Total Benefits (IV+V).....................      2,699      2,701      2,711      2,699      2,701      2,711
VII--Net Benefits (VI-III)....................        715        654        334        747        687        373
VIII--Baseline 2 (HOS Option 2) Net Benefits..        799        738        418        831        771        457
IX--Baseline 3 (HOS Option ) Net Benefits.....        859        798        478        891        831        517
----------------------------------------------------------------------------------------------------------------

    FMCSA estimates that all options presented in this RIA have 
positive net benefits under any baseline, that is, under any version of 
the HOS rules. However, the greatest safety impacts of the HOS rules 
are seen in LH operations, and the inclusion of SH operations 
diminishes the net benefits of this EOBR rule. Therefore Option 3, 
which includes all carrier operations, results in much lower net 
benefits as compared to Options 1 and 2. The alternative baselines 
reflect changes to the HOS rules that affect only LH, RODS-using 
operations.
    A fundamental purpose of the HOS regulations is to reduce crash 
risk in order to improve safety, and as elaborated at length in the 
2010 HOS proposed rule, the Agency has concluded that the proposed 
rules will have significant safety benefits. Ideally, the agency would 
have data to directly measure crash risk by hours of driving and other 
dimensions for which regulations are proposed. Because the Agency has 
been not been able to gather such data, it has based its analysis, in 
significant part, on share of crashes that are fatigue-coded.
    The agency recognizes that using share of crashes that are fatigue-
coded could have two possible problems: Accident inspectors may be more 
likely to code crashes as fatigue-related if the driver has been on the 
road longer. Also, the share of crashes that are coded as fatigue-
related may conceivably increase simply because the share of crashes 
caused by other factors goes down. There could be no increase in the 
risk of a fatigue-related crash (the central question), but an increase 
in the share of fatigue-related crashes. The Agency has little evidence 
that either of these factors is a significant problem. Nonetheless, 
while the data are not as complete as FMCSA would like them to be, the 
Agency aimed to limit, to the extent possible, the likelihood that 
drivers will be fatigued, either when they come on duty or during or at 
the end of a working period. Safety benefits are based on this 
reduction in fatigue and an associated reduction in fatigue-coded 
crashes.
---------------------------------------------------------------------------

    \8\ Compliance costs and safety benefits of the current HOS 
rules and the two alternate baselines reflect an estimated EOBR 
efficacy of 40 percent. Carriers would bear compliance costs that 
they are currently avoiding for the 40 percent of the HOS violations 
that continue to occur, and the public would accrue the safety 
benefits from eliminating these violations. The full analysis is 
available in the docket pertaining to this rulemaking. The steps 
used to derive the annualized figures in this table are also 
presented in detail in that analysis.
    \9\ There will be paperwork savings due to the elimination of 
paper RODS, but the Agency does not expect paperwork savings from 
changes to the supporting document requirements. Reductions to 
paperwork burden accrue only to operations required to use RODS, 
which are fully included in Option 1. The operations added in 
options 2 and 3 are exempt from paper RODS, and consequently would 
experience no paperwork savings from their elimination.
---------------------------------------------------------------------------

    FMCSA sought information from the public on driving exposure data 
at each hour in order to be able to calculate relative crash risk at 
each hour. FMCSA seeks the same information for this rule since fatigue 
coded crashes are not the perfect measure of safety benefits from HOS 
compliance. If the agency receives information about relative crash 
risk, the agency will revise and update the benefits calculations for 
this EOBR provision in the final rule stage.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
Federal agencies to consider the effects of the regulatory action on 
small business and other small entities and to minimize any significant 
economic impact. The term ``small entities'' comprises small businesses 
and not-for-profit organizations that are independently owned and 
operated and are not dominant in their fields, and governmental 
jurisdictions with populations of less than 50,000. Accordingly, DOT 
policy requires an analysis of the impact of all regulations on small 
entities, and mandates that agencies strive to lessen any adverse 
effects on these businesses.

Number of Small Entities to Which the Rulemaking Would Apply

    Under criteria established by the SBA, firms with annual revenues 
of less than $25.5 million are considered small for all North American 
Industrial Classification System (NAICS) codes falling under the truck 
transportation sub-sector (NAICS 484) or the bus transportation sub-
sector (NAICS 485). Many motor carriers, however, are private carriers 
that transport goods or passengers for parent companies who are not 
primarily engaged in truck-transportation, for example, airlines, 
railroads, retail stores, and landscaping or home contracting 
businesses with SBA size thresholds associated with their industries 
that are different from those used for truck or bus transportation.
    FMCSA does not collect revenue data for most carriers nor can it 
identify, carrier-by-carrier, to which industry sub-sectors each firm 
belongs. Carriers do, however, report the number of PUs they operate in 
the U.S. on Form MCS-150. With regard to truck PUs, the Agency 
determined in the 2003 Hours of Service Rulemaking RIA \10\ that a PU 
produces about $172,000 in revenue annually (adjusted for 
inflation).\11\ According to the SBA, motor carriers with annual gross 
revenue of $25.5 million are considered small businesses.\12\ This 
equates to about 150 PUs (25,500,000/172,000). FMCSA believes that this 
150 PU figure would be applicable to private carriers as well: Because 
the sizes of the fleets they are able to sustain are indicative of the 
overall size of their operations, large

[[Page 5549]]

CMV fleets can generally only be managed by large firms. There is a 
risk, however, of overstating the number of small businesses because 
the operations of some large non-truck or bus firms may require only a 
small number of CMVs. The Agency has identified about 482,000 motor 
carriers that operate 150 or fewer power units, about 99% of property 
carriers.
---------------------------------------------------------------------------

    \10\ Regulatory Analysis for: Hours of Service of Drivers; 
Driver Rest and Sleep for Safe Operations, Final Rule--Federal Motor 
Carrier Safety Administration. 68 FR 22456--Published 4/23/2003.
    \11\ The 2000 TTS Blue Book of Trucking Companies, number 
adjusted to 2008 dollars for inflation.
    \12\ U.S. Small Business Administration, Table of Small Business 
Size Standards matched to North American Industry Classification 
(NAIC) System codes, effective August 22, 2008. See NAIC subsector 
484, Truck Transportation.
---------------------------------------------------------------------------

    For passenger carriers, the Agency conducted a preliminary analysis 
to estimate the average number of PUs for a small entity earning $7 
million annually, based on an assumption that a passenger carrying CMV 
generates annual revenues of $150,000. This estimate compares 
reasonably to the estimated average annual revenue per PU for the 
trucking industry ($172,000). A lower estimate was used because buses 
generally do not accumulate as many vehicle miles traveled (VMT) per PU 
as trucks,\13\ and it is assumed, therefore, that they would generate 
less revenue on average. The analysis concluded that passenger carriers 
with 47 PUs or fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) 
would be considered small entities. The Agency examined its 
registration data and found that 96 percent of, or just over 19,000, 
interstate passenger carriers have 47 PUs or fewer.
---------------------------------------------------------------------------

    \13\ FMCSA, ``Large Truck and Bus Crash Facts 2008,'' Tables 1 
and 20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008LargeTruckandBusCrashFacts.aspx.
---------------------------------------------------------------------------

Reporting and Recordkeeping

    FMCSA believes that implementation of the proposed rule would not 
require additional reporting, recordkeeping, or other paperwork-related 
compliance requirements beyond those that are already required in the 
existing regulations. In fact, the proposed rule is estimated to result 
in paperwork savings, particularly from the elimination of paper RODS. 
Drivers can complete, review, and submit EOBR records much more rapidly 
compared to paper RODS. Furthermore, motor carriers would experience 
compensatory time-saving and administrative efficiencies as a result of 
using EOBR records in place of paper RODS. The level of savings would 
vary with the size of the carrier implementing the systems (larger 
carriers generally experience greater savings).
    Under current regulations, most CMV drivers are required to fill 
out RODS for every 24-hour period. The remaining population of CMV 
drivers is required to fill out time cards at their workplace 
(reporting location). Motor carriers must retain the RODS (or 
timecards) for 6 months. FMCSA estimates annual recordkeeping cost 
savings from this proposed rule of about $688 per driver. This is 
comprised of $486 for a reduction in time drivers spend completing 
paper RODS and $56 submitting those RODS to their employers; $116 for 
motor carrier clerical staff to handle and file the RODS; and $30 for 
elimination of expenditures on blank paper RODS for drivers. Two of the 
options discussed in this NPRM would extend the EOBR mandate to carrier 
operations that are exempt from the RODS. Paperwork savings would not 
accrue to drivers engaged in these operations.

Help for Small Entities

    Of the population of motor carriers that FMCSA regulates, 99 
percent of motor carriers of property and 96 percent of motor carriers 
of passengers are considered small entities under the SBA's definition. 
Because small businesses are such a large part of the demographic the 
Agency regulates, providing exemptions to small business to permit 
noncompliance with safety regulations is not feasible and not 
consistent with good public policy. The safe operation of CMVs on the 
Nation's highways depends on compliance with all of FMCSA's Safety 
Regulations. Accordingly, the Agency would not allow any motor carriers 
to be exempt from coverage of the rule based solely on a status as a 
small entity.
    FMCSA analyzed an alternative 5-year implementation schedule that 
would have provided a longer implementation period for small 
businesses. However, the estimated cost of compliance for motor 
carriers, including small businesses, did not decrease from the 3-year 
``baseline'' proposed implementation period. Furthermore, a 
considerably longer implementation period could compromise the 
consistency of compliance-assurance and enforcement activities, and, 
thereby, diminish the rule's potential safety benefits. Therefore, the 
Agency's proposal includes a single compliance date for all motor 
carriers that would be subject to the new rule's requirements.
    However, the Agency recognizes that small businesses may need 
additional information and guidance in order to comply with the 
proposed regulation. In order to improve their understanding of the 
proposal and any rulemaking that would result from it, FMCSA proposes 
to conduct outreach aimed specifically at small businesses. FMCSA would 
conduct Webinars and other presentations as needed and upon request, at 
no charge to the participants. These would be held after the final rule 
has published and before the rule's compliance date. To the extent 
practicable, these presentations would be interactive. Their purpose 
would be to describe in plain language the compliance and reporting 
requirements so that they are clear and readily understood by the small 
entities that would be affected
    EOBRs can lead to significant paperwork savings that can in part or 
fully offset the costs of the devices. The Agency, however, recognizes 
that these devices entail a significant up-front investment than can be 
burdensome for small carriers. At least one vendor, however, provides 
free hardware and recoups the cost of the device over time in the form 
of higher monthly operating fees. The Agency is also aware of lease-to-
own programs that allow the carriers to spread the purchase costs over 
several years. Nevertheless, the typical carrier would likely be 
required to spend $1,500-$2,000 per CMV to purchase and install EOBRs, 
and several hundred dollars per year for service fees. This estimate is 
higher than the estimate used in the April 2010 EOBR rulemaking for two 
primary reasons.
    This proposed mandate would be permanent and also would require 
EOBRs to be installed and used in approximately 20 times as many CMVs 
than were estimated to be affected by the April 5, 2010, final rule. 
Therefore, the Agency cannot assume that an adequate number of the 
lower-cost devices would be available to meet the needs of that larger 
market. Current revenue data from the manufacturer of the device cited 
in the April 2010 final rule indicate that its market share is 
relatively low.
    A second reason for using a higher cost for this analysis is that, 
in response to motor carrier customer demand, EOBR suppliers have 
expanded the functionality of their products and services. Hours-of-
service recording and monitoring are functions commonly offered as part 
of comprehensive fleet management systems, rather than in stand-alone 
devices. Many motor carriers are recognizing the potential operational 
benefits they can gain from the use of fleet management systems, and 
the marketplace is responding with products and services tailored to 
motor carriers of all sizes. However, the Agency is not dismissing the 
possibility that ``stand-alone'' EOBRs, providing only hours-of-service 
recording and reporting (similar to the first AOBRDs in the 1980s), may 
be offered for sale or lease at a lower cost than devices with other 
functionalities in addition to HOS compliance. The Agency requests 
comments and data about EOBR cost.

[[Page 5550]]

    Based on direct experience with the devices and conversations with 
vendors, the Agency believes these devices are extremely durable and 
can be kept operational for many years. In addition to purchase costs, 
carriers would also likely spend about $40 per month per CMV for 
monthly service fees.
    On January 18, 2011, the President issued a memorandum entitled 
Regulatory Flexibility, Small Business, and Job Creation. In it, the 
President directed agencies to consider certain flexibilities for small 
entities. Furthermore, the President directed agencies to include an 
explicit justification for not providing such flexibilities and directs 
the agencies, when initiating rulemaking that will have a significant 
economic impact on a substantial number of small entities, to give 
serious consideration to whether and how it is appropriate, consistent 
with law and regulatory objectives, to reduce regulatory burdens on 
small businesses, through increased flexibility. Such flexibility may 
take many forms, including:
    <bullet> Extended compliance dates that take into account the 
resources available to small entities;
    <bullet> Performance standards rather than design standards;
    <bullet> Simplification of reporting and compliance requirements 
(as, for example, through streamlined forms and electronic filing 
options);
    <bullet> Different requirements for large and small firms; and
    <bullet> Partial or total exemptions.
    The President further directs that whenever an executive agency 
chooses, for reasons other than legal limitations, not to provide such 
flexibility in a proposed or final rule that is likely to have a 
significant economic impact on a substantial number of small entities, 
it should explicitly justify its decision not to do so in the 
explanation that accompanies that proposed or final rule. The Agency 
requests public comment on the extent to which flexibility could be 
incorporated into the rulemaking, beyond the options considered in the 
proposal, while fulfilling its safety mandate.
    In establishing FMCSA, Congress's enabling legislation called 
safety ``our highest priority.'' Motor Carrier Safety Improvement Act 
of 1999, sec. 113, Public Law 106-159, 113 Stat. 1748, 1750. Our 
regulatory authority over motor carriers stems from 1935 and has since 
been augmented by comprehensive legislation that conferred broad 
rulemaking authority. We have attempted to balance our statutory 
obligations with the need to consider regulatory alternatives and the 
burdens they present to various entities, including small entities. But 
given our safety mandate, exempting 98% of our regulated population 
from this new requirement based simply on their small business status 
would severely undermine our safety mission and ignore our 
congressional mandate. Our proposal did consider alternatives and 
exemptions, as discussed earlier in this document. The Agency does not 
believe that it is feasible to exempt small businesses from a 
requirement to use EOBRs. Because of the nature of the commercial motor 
vehicle industry, there would be no reliable way for an enforcement 
official to determine if a driver or CMV is operating as a small 
business on a particular day. Even if the Agency could develop a system 
to make that daily determination, it has not been analyzed to determine 
if it could be implemented in a cost beneficial manner.
    Also, as we propose in the regulatory text at 49 CFR 395.11(i) to 
address supporting documents, motor carriers can apply for an exemption 
based on a process under 49 CFR part 381. A motor carrier could apply 
for an exemption under existing part 381 provisions for additional 
relief from the requirements for installing and using EOBRs. Such 
exemptions can be granted for up to two years, and the Agency believes 
this is the best way to balance regulatory relief with its safety 
mission.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires Agencies to 
evaluate whether an Agency action would result in the expenditure by 
State, local and Tribal governments, in the aggregate, or by the 
private sector, of $140.8 million or more (as adjusted for inflation) 
in any 1 year, and if so, to take steps to minimize these unfunded 
mandates. This rule would not result in the expenditure by State, local 
and Tribal governments, in the aggregate, of $140.8 million or more in 
any 1 year, nor would it affect small governments. As Table 2 shows, 
this rulemaking would result in private sector expenditures in excess 
of the threshold for any of the proposed options. Gross costs, however, 
are expected to be more than offset in savings from paperwork burden 
reductions.

    Table 2--Annualized Net Expenditures by Private Sector (Millions)
------------------------------------------------------------------------
                                     Option 1     Option 2     Option 3
------------------------------------------------------------------------
Total EOBR Cost..................       $1,586       $1,643       $1,939
Total Paperwork Savings..........        1,965        1,965        1,965
Net EOBR Cost....................         -379         -322          -26
------------------------------------------------------------------------

E.O. 13132 (Federalism)

    A rule has implications for Federalism under Executive Order 13132 
if it has a substantial direct effect on State or local governments and 
would either preempt State law or impose a substantial direct cost of 
compliance on such governments. This proposed action has been analyzed 
in accordance with E.O. 13132. FMCSA has determined that this rule 
would not have a substantial direct effect on States, nor would it 
limit the policymaking discretion of States. Nothing in this document 
preempts any State law or regulation. A State that fails to adopt the 
proposed amendments, if finalized, within 3 years of the effective date 
of the final rule, will be deemed to have incompatible regulations and 
will not be eligible for Basic Program or Incentive Funds under the 
Motor Carrier Safety Assistance Program in accordance with 49 CFR 
350.335(b).

E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
rule.

Indian Tribal Governments

    This proposed rule does not have Tribal implications under E.O. 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.

[[Page 5551]]

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. This NPRM proposes regulatory changes to several parts of 
the FMCSRs, but only those applicable to part 395, ``Hours of Service 
of Drivers,'' would alter or impose information collection 
requirements. The information collection requirements of this NPRM 
would affect OMB Control Number 2126-0001, which is currently approved 
through August 31, 2011, at 181,270,000 burden hours.
    As described under the analysis concerning E.O. 12866, nearly all 
of the estimated reduction in paperwork burden that would result from 
this rulemaking would come from a reduction in the burden associated 
with the elimination of RODS for nearly all motor carrier operations. 
This reduction would not take place, however, until three years after 
the effective date of a final rule resulting from this proposed 
rulemaking action.
    OMB requires agencies to provide a specific, objective estimate of 
the burden hours imposed by their information collection requirements 
(5 CFR 1320.8(a)(4)). This NPRM proposes a compliance date 3 years 
after the date of publication of the final rule to allow regulated 
entities a reasonable opportunity to satisfy its requirements. The PRA 
limits estimates of paperwork burdens to a 3-year period. During the 
initial 3 years following publication of the final rule, the 
requirements of part 395, including information collection 
requirements, would remain unchanged. At an appropriate time, the 
Agency would provide notice and request public comment on the changes 
in the paperwork burden of part 395 resulting from implementation of 
the rule after the 3-year period. At the present time, the Agency 
believes that the regulatory changes proposed by this NPRM will 
ultimately effect a net reduction in the paperwork burden of OMB 
Control Number 2126-0001 (See the RIA for more information). The Agency 
requests information concerning any changes in paperwork burden from 
motor carriers currently using EOBR devices.

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321 et seq., as amended) requires Federal agencies to consider the 
consequences of, and prepare a detailed statement on, all major Federal 
actions significantly affecting the quality of the human environment. 
In accordance with its procedures for implementing NEPA (FMCSA Order 
5610.1, Chapter 2.D.4(c) and Appendix 3), FMCSA prepared a draft 
Environmental Assessment (EA) to review the potential impacts of this 
proposed rulemaking. The draft EA findings are summarized below. The 
full EA is in the docket pertaining to this rulemaking.
    Implementation of this proposed action would alter to some extent 
the operation of CMVs. However, the proposal, if implemented, would not 
require any new construction or change significantly the number of CMVs 
in operation. FMCSA finds, therefore, that noise, endangered species, 
cultural resources protected under the National Historic Preservation 
Act, wetlands, and resources protected under section 4(f) would not be 
impacted by this rulemaking.
    The EA finds negligible impacts on air quality and no adverse 
effect on public safety. FMCSA anticipates that drivers of CMVs 
operated by carriers required to use EOBRs would increase their 
compliance with the requirements of the HOS rules. From an emissions 
standpoint, this could lead to drivers taking more off-duty time parked 
with the engine idling, which increases engine emissions on a per-mile 
basis. This rulemaking, however, also has the potential to prevent CMV 
crashes and resulting emissions. When emissions that would otherwise 
result from prevented CMV crashes are subtracted from the emissions 
generated by additional compliance with the HOS regulations, FMCSA 
determines that the overall change in pollutants would be negligible. 
Because of the enhanced HOS compliance that is likely to result from 
this rulemaking, it is also likely that the rulemaking would result in 
an increase in public safety. Drivers for carriers brought into HOS 
compliance would experience reduced crash risk and be less likely to 
have crashes. Separately, the rulemaking proposes to eliminate the use 
of paper-based RODS documentation, which reduces paper use.
    As discussed in the EA, FMCSA also analyzed this proposed rule 
under the Clean Air Act, as amended (CAA) section 176(c), (42 U.S.C. 
7401 et seq.) and implementing regulations promulgated by the 
Environmental Protection Agency.
    FMCSA concludes that the rule changes would have an overall minimal 
impact on the environment, and therefore would not require an 
environmental impact statement. The provisions under the proposed 
action do not, individually or collectively, pose any significant 
environmental impact. FMCSA requests comments on this analysis.

E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA determines that the proposed rule would not significantly 
affect energy supply, distribution, or use. Therefore, no Statement of 
Energy Effects is required.

E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks, requires agencies issuing ``economically 
significant'' rules that involve an environmental health or safety risk 
that may disproportionately affect children, to include an evaluation 
of the regulation's environmental health and safety effects on 
children. As discussed previously, this proposed rule is economically 
significant; but it would cause no environmental or health risk that 
disproportionately affects children.

E.O. 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

E.O. 12630 (Taking of Private Property)

    This rule would not effect a taking of private property or 
otherwise have taking implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) requires Federal agencies proposing to adopt Government technical 
standards to consider whether voluntary consensus standards are 
available. If the Agency chooses to adopt its own standards in place of 
existing voluntary consensus standards, it must explain its decision in 
a separate statement to OMB.
    FMCSA determined that there are no voluntary national consensus 
standards for the design of EOBRs as complete units. However, as a part 
of the April 2010 EOBR final rule, the Agency found there are many 
voluntary consensus standards concerning communications and information 
interchange methods that could be referenced as part of comprehensive 
performance-based requirements for EOBRs to ensure their reliable and 
consistent utilization by motor carriers and enforcement officers. For 
example, the digital character set

[[Page 5552]]

requirement references the American Standard Code for Information 
Interchange (ASCII) character set specifications, the most widely used 
form of which is ANSI X3.4-1986. This is described in the Document 
Information Systems--Coded Character Sets--7-Bit ASCII (ANSI document 
ANSI INCITS 4-1986 (R2002)) published by the American National 
Standards Institute (ANSI). In another example, the Agency would 
reference the 802.11 family of standards for wireless communication 
published by Institute of Electrical and Electronics Engineers (IEEE). 
The April 2010 EOBR final rule incorporated by reference these 
standards, and others, in 49 CFR 395.18.
    As part of the development of the April 2010 EOBR final rule, FMCSA 
reviewed and evaluated the European Commission Council Regulations 
3821/85 (analog tachograph) and 2135/98 (digital tachograph). These are 
not voluntary standards, but rather are design-specific type-
certification programs. The Agency concluded that these standards lack 
several features and functions (such as CMV location tracking and the 
ability for the driver to enter remarks) that FMCSA believes are 
necessary to include in its proposed performance-based regulation. It 
further concluded that the standards require other features (such as an 
integrated license document on the driver's data card) that are not 
appropriate for U.S. operational practices.

Privacy Impact Assessment

    Section 522(a)(5) of the Transportation, Treasury, Independent 
Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108-
447, div. H, 118 Stat. 2809 at 3268) requires DOT and certain other 
Federal agencies to conduct a privacy impact assessment of each 
proposed rule that will affect the privacy of individuals. Although the 
Agency determined that the same personally identifiable information 
(PII) for CMV drivers currently collected as part of the RODS and 
supporting documents requirements would continue to be collected under 
this rulemaking, it recognizes the significance of the decision to 
require, even in limited circumstances, that PII, previously kept in 
paper copy, now be kept electronically. Privacy is a significant 
consideration in FMCSA's development of this proposal. As stated 
earlier, FMCSA recognizes that the need for a verifiable EOBR audit 
trail (a detailed set of records to verify time, date, and physical 
location data for a particular CMV) must be counterbalanced by privacy 
considerations. As part of the development of the April 2010 EOBR final 
rule, the Agency considered, but rejected, certain alternative 
technologies to monitor drivers' HOS (including in-cab video cameras 
and bio-monitors) as too invasive of personal privacy. All CMV drivers 
subject to 49 CFR part 395 must have their HOS accounted for to ensure 
they have adequate opportunities for rest. This NPRM would not change 
the Agency's policies, practices, or regulations regarding its own 
collection and storage of HOS records of individual drivers whose RODS 
are reviewed. It would not change the technology by which compliance is 
to be documented, as stated in the April 2010 EOBR final rule, in a way 
that enhances both the sharing of information and its capacity to be 
data processed.
    As stated in the April 2010 final rule, and as is the case with all 
FMCSRs, the HOS information recorded on EOBRs would be accessible to 
Federal and State enforcement personnel only when compliance assurance 
activities are conducted at the facilities of motor carriers subject to 
the RODS requirement or when the CMVs of those carriers are inspected 
at roadside. Motor carriers would not be required to upload this 
information into Federal or State information systems accessible to the 
public. This would aid data security and ensure that general EOBR data 
collection does not result in a new or revised Privacy Act System of 
Records for FMCSA. (Evidence of violation of any FMCSA requirements 
uncovered during a compliance or enforcement activity is transferred to 
a DOT/FMCSA Privacy Act System of Records.) As FMCSA has previously 
discussed regarding EOBRs, the Agency complies with the Freedom of 
Information Act in implementing DOT regulations (75 FR 17221, April 5, 
2010; 49 CFR part 7).
    What this NPRM would change, and change significantly, is the 
capacity of HOS data to be processed and converted to more usable 
information for the purpose of determining drivers' and motor carriers' 
compliance with the HOS regulations. Although no CMV operator would be 
required to upload this data to a Federal or State database accessible 
to the public, the electronic formulation of the data would make it 
easier for a CMV operator to keep track of the activities of its 
drivers. Similarly, Federal and State law enforcement and safety 
authorities, including FMCSA, would be better able to do the same. As 
shown in other contexts, the increased accessibility, accuracy, and 
reliability of geospatial location information has made electronically 
generated and preserved data attractive to a variety of audiences. As 
discussed above, the Agency has tailored this NPRM to recognize the 
privacy interests of CMV drivers.
    The entire privacy impact assessment is available in the docket for 
this proposed rule.

List of Subjects

49 CFR Part 385

    Administrative practice and procedure, Highway safety, Mexico, 
Motor carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

    For the reasons stated in the preamble, FMCSA is proposing to amend 
49 CFR Chapter III as follows:

PART 385--SAFETY FITNESS PROCEDURES

    1. The authority citation for part 385 continues to read as 
follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 
5113,13901-13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 
31502; Sec. 113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 
350, Pub. L. 107-87; and 49 CFR 1.73.

    2. Amend Sec.  385.3 by adding a definition for the term ``Hours of 
Service Management System'' in alphabetical order to read as follows:


Sec.  385.3  Definitions and acronyms.

* * * * *
    Hours of Service Management System is defined in Sec.  395.2 of 
this subchapter.
* * * * *
    3. Amend Section VII of Appendix B to part 385, by adding the 
following violations in numerical order to read as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  395.8(e)(1) Failing to require a driver to complete the 
record of duty status required by either this section, Sec.  395.15 
or Sec.  395.16; failing to preserve a record or making false 
reports (critical).
    Sec.  395.8(e)(2) Failure to prohibit a driver from disabling, 
deactivating, disengaging,

[[Page 5553]]

jamming or otherwise blocking or degrading a signal transmission or 
reception; tampering with an automatic on-board recorder or 
electronic on-board recorder (critical).
* * * * *
    Sec.  395.11(a) Failing to establish, implement, and maintain an 
hours-of-service management system with controls, policies, 
programs, practices, and procedures to effectively monitor each 
driver's compliance with the hours of service requirements, and to 
prevent and detect violations of Part 395 (acute).
    Sec.  395.11(c) Failing to identify each supporting document or 
maintain the supporting documents in such a manner that permits the 
matching of those records to the driver's original record of duty 
status (critical).
    Sec.  395.11(d) Intentionally destroying, mutilating, or 
altering a supporting document; or failing to prevent alteration of 
supporting documents; failing to prevent alteration of supporting 
documents which reduces their accuracy (acute).
    Sec.  395.11(e) Failing to maintain all elements of the 
supporting documents as required by this section or Sec.  395.8. 
(critical).
    Sec.  395.11(f) Making a false certification regarding the 
receipt or retention of supporting documents (acute).
    Sec.  395.11(g) Failing to maintain all elements of the 
supporting documents as required in a remedial directive (acute).
    Sec.  395.11(h) Failing to forward, within 3 days of the 24-hour 
period to which the document pertains, or the day the document comes 
into the driver's or motor carrier's possession, whichever is later, 
all required supporting documents and the original of the record of 
duty status. Failing to forward supporting documents provided 
electronically from the driver to the carrier within 24 hours 
(critical).
* * * * *
    4. Amend Appendix C to part 385 by adding the following violations 
in numerical order to read as follows:

Appendix C to Part 385--Regulations Pertaining to Remedial Directives 
in Part 385, Subpart J

* * * * *
    Sec.  395.8(e)(1) Failing to require a driver to complete the 
record of duty status required by either this section, Sec.  395.15 
or Sec.  395.16; failing to preserve a record or making false 
reports (critical).
    Sec.  395.8(e)(2) Failure to prohibit a driver from disabling, 
deactivating, disengaging, jamming or otherwise blocking or 
degrading a signal transmission or reception; tampering with an 
automatic on-board recorder or electronic on-board recorder 
(critical).
* * * * *
    Sec.  395.11(a) Failing to establish, implement, and maintain an 
hours-of-service management system with controls, policies, 
programs, practices, and procedures to effectively monitor each 
driver's compliance with the hours of service requirements, and to 
prevent and detect violations of part 395 (acute).
    Sec.  395.11(c) Failing to identify each supporting document or 
maintain the supporting documents in such a manner that permits the 
matching of those records to the driver's original record of duty 
status (critical).
    Sec.  395.11(d) Intentionally destroying, mutilating, or 
altering a supporting document; or failing to prevent alteration of 
supporting documents; failing to prevent alteration of supporting 
documents which reduces their accuracy (acute).
    Sec.  395.11(e) Failing to maintain all elements of the 
supporting documents as required by this section or Sec.  395.8. 
(critical).
    Sec.  395.11(f) Making a false certification regarding the 
receipt or retention of supporting documents (acute).
    Sec.  395.11(g) Failing to maintain all elements of the 
supporting documents as required in a remedial directive (acute).
    Sec.  395.11(h) Failing to submit or forward by mail the 
driver's supporting documents, within 3 days of the 24-hour period 
to which the document pertains, or the day the document comes into 
the driver's or motor carrier's possession, whichever is later, all 
required supporting documents and the original of the record of duty 
status. Failing to forward supporting documents provided 
electronically from the driver to the carrier within 24 hours 
(critical).

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

    5. The authority citation for part 390 continues to read as 
follows:

    Authority: 49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136, 
31144, 31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 
1677; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49 
CFR 1.73.

    6. Amend Sec.  390.5 by adding a definition for ``Document,'' in 
alphabetical order, to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Document means any writing and any electronically-stored 
information, including data or data compilation(s), stored in any 
medium from which information may be obtained.
* * * * *

PART 395--HOURS OF SERVICE OF DRIVERS

    7. The authority citation for part 395 continues to read as 
follows:

    Authority: 49 U.S.C. 504, 14122, 31133, 31136, 31502, Sec. 229, 
Pub. L. 106-159, 113 Stat. 1748, 1773 (as transferred by Sec. 4415 
and amended by Sec. 4130-4132 of Pub. L. 106-59, 119 Stat. 1144, at 
1726, 1743-1744); Sec. 4143, Pub. L. 106-59, 119 Stat. 1144, 1744; 
Sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.

    8. Amend Sec.  395.2 by adding the following definitions in 
alphabetical order, to read as follows:


Sec.  395.2  Definitions.

* * * * *
    Hours of service management system means the controls, policies, 
programs, practices, and procedures used by a motor carrier 
systematically and effectively to monitor drivers' compliance with 
hours of service requirements and to verify the accuracy of the 
information contained in drivers' records of duty status. The 
management system must include, at a minimum, the use of documents, 
records, and information generated or received by the motor carrier in 
the normal course of business. These documents and records, and this 
information must include, but are not limited to, driver payroll 
records, trip-related expense reports and receipts, bills of lading or 
equivalent documents, and fleet management system communication records 
(any record of communication between a motor carrier and a driver in 
the normal course of business).
* * * * *
    Motor carrier, as defined in Sec.  390.5, includes, for purposes of 
this part, an owner-operator leased to a carrier subject to a remedial 
directive issued under part 385, subpart J, regardless of whether the 
owner-operator has separate operating authority under part 365 of this 
subchapter.
* * * * *
    Supporting document, for the purposes of this part, means a 
document that is generated or received by the motor carrier in the 
normal course of business that could be used, as produced or with 
additional identifying information, to verify the accuracy of a 
driver's record of duty status.
* * * * *
    9. Amend Sec.  395.8 by revising paragraphs (a) and (e), the 
heading of paragraph (k), and paragraph (k)(1) to read as follows:


Sec.  395.8  Driver's record of duty status.

    (a) Except as provided in Sec.  395.1(e)(1) and (2), every motor 
carrier subject to the requirements of this part must require every 
driver used by the motor carrier to record his/her duty status for each 
24-hour period using the methods prescribed in either paragraphs (a)(1) 
or (2) of this section.
    (1) Every driver who operates a commercial motor vehicle in 
operations other than those described in paragraph (a)(2) of this 
section must record his/her duty status, in duplicate, for each 24-hour 
period. The duty status time

[[Page 5554]]

must be recorded on a specified grid, as shown in paragraph (g) of this 
section. The grid and the requirements of paragraph (d) of this section 
may be combined with any company forms. This format may be used:
    (i) By those operations described in Sec.  395.1(e)(1) and (2), 
where a driver operates a commercial motor vehicle outside of the 
distance radius or for longer periods of time specified in those 
provisions no more than 2 days in any 7-day period; and
    (ii) By those operations subject to Sec.  395.16(a)(3) until 
[INSERT DATE THREE YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
    (2) Every driver operating a commercial motor vehicle must record 
his/her record of duty status using either an automatic on-board 
recording device meeting the requirements of Sec.  395.15 or an 
electronic on-board recorder meeting the requirements of Sec.  395.16 
installed in the vehicle. The requirements of this section apply to: 
All motor carriers required to maintain RODS except those eligible to 
use time records under Sec.  395.1(e)(1) and (2).
* * * * *
    (e)(1) A motor carrier must require drivers to complete the record 
of duty status required by either this section, Sec.  395.15 or Sec.  
395.16 and must preserve a record of such duty status. A motor carrier 
must not make false reports in connection with such duty status.
    (2) No motor carrier shall permit or require any driver used by it 
to disable, deactivate, disengage, jam or otherwise block or degrade a 
signal transmission or reception; or reengineer, reprogram, or 
otherwise tamper with an automatic on-board recorder or electronic on-
board recorder so that the device does not accurately record the duty 
status of a driver; nor shall any driver engage in the activities 
prohibited under this paragraph.
* * * * *
    (k) Retention of driver's record of duty status and supporting 
documents. (1) Each motor carrier shall retain and maintain records of 
duty status and all supporting documents required under this part, for 
each of its drivers, for a period of 6 months from the date of receipt.
* * * * *
    10. Revise Sec.  395.11 to read as follows:


Sec.  395.11  Motor carrier's hours of service management system and 
oversight.

    (a) Scope. (1) Every motor carrier subject to the requirements of 
this part shall establish, use, and maintain an hours of service 
management system, as defined in Sec.  395.2, capable of preventing and 
detecting violations of this part by each of its drivers. The 
management system must include, at a minimum, the use of documents, 
records, and information generated or received by the motor carrier in 
the normal course of business.
    (2) This section also applies to motor carriers and owner-operators 
that have been issued a remedial directive to install, use, and 
maintain EOBRs unless otherwise provided in the remedial directive.
    (b) A motor carrier shall be deemed to have knowledge of any and 
all documents in its possession, and any and all documents that are 
available to the motor carrier and that the carrier could use in its 
hours of service management system. ``Knowledge of a document'' means 
knowledge of both the fact that it exists and its specific contents.
    (c) The motor carrier must maintain supporting documents in such a 
way that they may be effectively matched to the corresponding driver's 
record of duty status.
    (d) A motor carrier or a driver must not obscure, deface, destroy, 
mutilate, or alter existing information contained in the supporting 
document.
    (e) Supporting documents required (motor carriers not subject to a 
Remedial Directive under 49 CFR part 385, subpart J):
    (1) In addition to records generated from EOBRs that meet, at a 
minimum, the requirements of Sec.  395.16, motor carriers must retain 
and maintain the documents required by this section for every drivers' 
duty day. Except as provided in paragraph (e)(3) of this section, a 
supporting document or documents must contain the following 
information:
    (i) Driver name or personal identification number (PIN) associated 
with the driver's name, or another identifying number that is issued to 
the driver. A unit (vehicle) number may be used so long as it can be 
associated with the driver operating the vehicle at a specific date, 
time, and location.
    (ii) The date. The date recorded must be the date at the location 
where it is recorded. If the date is automatically recorded on an 
electronic document, it must be obtained, transmitted, and recorded in 
such a way that it cannot be altered by a motor carrier, driver, or 
third party.
    (iii) The time. The time recorded must be convertible to the local 
time at the location where it is recorded. If the time is automatically 
recorded on an electronic document, it must be obtained, transmitted, 
and recorded in such a way that it cannot be altered by a motor 
carrier, driver, or third party.
    (iv) The location. The location description must include the name 
of the nearest city, town, or village to enable Federal, State, and 
local enforcement personnel to quickly determine the vehicle's 
geographic location on a standard map or road atlas. If the location 
information is automatically recorded on an electronic document, it 
must be derived from a source not subject to alteration by the motor 
carrier, driver, or third party.
    (2) For any non-driving period after coming on duty following 10 
consecutive hours off duty, with the exception of any sleeper berth 
period of at least 2 hours but less than 10 consecutive hours pursuant 
to Sec.  395.1(g)(1)(ii)(A)(2) and any off-duty period of at least 2 
hours but less than 8 consecutive hours pursuant to Sec.  395.1(g)(3), 
drivers and motor carriers must retain and maintain at least one 
document as described in this paragraph from among the four categories 
listed below:
    (i) Payroll;
    (ii) Trip-related expense records and receipts;
    (iii) Fleet management system communication logs; and
    (iv) A bill of lading or equivalent document.
    (3) If a motor carrier retains a single supporting document that 
shows the driver identification, date, time, and location for the 
beginning and end of any on-duty not driving period, that is the only 
document the carrier must retain and maintain for that period. However, 
if the motor carrier does not retain and maintain one single supporting 
document that shows all of these items, it must retain and maintain 
sufficient documentation from the categories listed above to show the 
driver identification and (i) the location, and date, and time of the 
duty status change, when used together, or (ii) the location, date, and 
time of the duty status changes.
    (f) If a motor carrier does not receive or retain any supporting 
documents from the classes of documents listed in paragraph (e)(2) of 
this section, then the motor carrier must certify that it does not or 
did not receive these documents. If a motor carrier is found to have 
falsely certified to not having supporting documents, it would be 
subject to a civil penalty for falsification. Motor carriers submitting 
false certifications are subject to the maximum penalty authorized 
under 5 U.S.C. 521, irrespective of the Uniform Fine Assessment 
algorithm or other Agency

[[Page 5555]]

penalty calculations implementing 49 U.S.C. 521(b)(2)(D).
    (g) Supporting documents required (motor carriers subject to a 
Remedial Directive under 49 CFR part 385, subpart J). Motor carriers 
subject to a Remedial Directive must retain and maintain all supporting 
documents as described in that directive.
    (h) The driver must submit or forward by mail the driver's 
supporting documents and the original record of duty status to the 
regular employing motor carrier within 3 days of the 24-hour period to 
which the receipt pertains, or the day the document comes into the 
driver's or motor carrier's possession, whichever is later. If a 
supporting document is submitted electronically, the driver shall 
submit the supporting document within 24 hours.
    (i) FMCSA may authorize on a case-by-case basis, motor carrier 
self-compliance systems.
    (1) Requests for supporting document self-compliance systems may be 
submitted to FMCSA under the procedures described in 49 CFR part 381, 
subpart C (Exemptions).
    (2) FMCSA will consider requests concerning types of supporting 
documents maintained by the motor carrier under Sec.  395.8(k)(1) and 
the method by which a driver retains and maintains a copy of the record 
of duty status for the previous 7 days and makes it available for 
inspection while on duty in accordance with Sec.  395.8(k)(2).
    (j) Motor carriers maintaining date, time, and location data 
produced by an EOBR that complies with Sec.  395.16 need only maintain 
additional supporting documents (e.g., driver payroll records, fuel 
receipts) that provide the ability to verify non-driving status 
according to the requirements of Sec.  395.8(a)(2).
    11. Amend Sec.  395.16 by revising paragraph (a) to read as 
follows:


Sec.  395.16  Electronic on-board recording devices.

    (a) This section applies to electronic on-board recording devices 
(EOBRs) used to record the driver's hours of service as specified by 
part 395. Every driver required by a motor carrier to use an EOBR shall 
use such device to record the driver's hours of service.
    (1) Motor carriers subject to a remedial directive to install, use, 
and maintain EOBRs, issued in accordance with 49 CFR part 385, subpart 
J, must comply with this section.
    (2) For commercial motor vehicles manufactured on and after June 4, 
2012, motor carriers must install and use an electronic device that 
meets the requirements of this section to record hours of service.
    (3) Motor carriers operating commercial motor vehicles must install 
EOBRs and require their drivers to use an EOBR to record the driver's 
hours of service except for commercial motor vehicles operated by 
drivers eligible to use only accurate and true time records to record 
drivers' hours of service under the provisions of Sec.  395.1(e)(1) and 
(2).
    (4) Motor carriers must install and require their drivers to use 
hours-of-service recording devices in accordance with this section in 
their commercial motor vehicles no later than [INSERT DATE THREE YEARS 
AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
* * * * *

    Issued on: January 26, 2011.
Anne S. Ferro,
Administrator, FMCSA.
[FR Doc. 2011-2093 Filed 1-31-11; 8:45 am]
BILLING CODE 4910-EX-P


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