Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19457

§ 142.312 What EPA action is necessary

when a State proposes to grant a small

system variance to a public water system

serving a population of more than 3,300 and

fewer than 10,000 persons?

(a) At the time a State proposes to

grant a small system variance to a public

water system serving a population of

more than 3,300 and fewer than 10,000

persons, the State must submit the

proposed small system variance and all

supporting information, including

public comments received prior to

proposal, to the Administrator.

(b) The Administrator must approve

or disapprove the small system variance

within 90 days of receipt of the

proposed small system variance and

supporting information. The

Administrator must approve the small

system variance if it meets each

requirement within the Act and this

subpart.

(c) If the Administrator disapproves

the small system variance, the

Administrator must notify the State in

writing of the reasons for disapproval

and the small system variance does not

become effective. The State may

resubmit the small system variance for

review and approval with modifications

to address the objections stated by the

Administrator.

§ 142.313 How will the Administrator

review a State’s program under this

subpart?

(a) The Administrator must

periodically review each State program

under this subpart to determine whether

small system variances granted by the

State comply with the requirements of

the Act, this subpart and the

affordability criteria developed by the

State.

(b) If the Administrator determines

that small system variances granted by

a State are not in compliance with the

requirements of the Act, this subpart or

the affordability criteria developed by

the State, the Administrator shall notify

the State in writing of the deficiencies

and make public the determinations.

(c) The Administrator’s review will be

based in part on quarterly reports

prepared by the States pursuant to

§ 142.15(a)(1) relating to violations of

increments of progress or other violated

terms or conditions of small system

variances.

[FR Doc. 98–10393 Filed 4–17–98; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 390 and 395

[Docket No. FHWA–98–3706]

RIN 2125–AD52

Hours of Service of Drivers;

Supporting Documents

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: The FHWA proposes to

amend the hours-of-service (HOS)

recordkeeping requirements of its

regulations. The Hazardous Materials

Transportation Authorization Act of

1994 mandated that amendments be

made to these regulations. The FHWA,

with this NPRM, proposes a supporting

document auditing system that all motor

carriers would use to support the

accuracy of the drivers’ Records of Duty

Status (RODS) and Hours of Service

(HOS). Additionally, this NPRM would

specify that failure to have such a

system would require the motor carrier

to maintain various types of business

documents and all drivers employed by

that motor carrier to collect and submit

such documents in order to support the

accuracy of the drivers’ RODS. The

proposed auditing systems and

document retention proposal would

enable the motor carriers, Federal, State,

and local enforcement officials to

compare business documents with

drivers’ records of duty status to

monitor drivers’ compliance with the

HOS and RODS requirements. This

proposed rule would require drivers and

motor carriers to make use of documents

generated or received in the normal

course of business to verify the accuracy

of a driver’s record of duty status. The

use of electronic recordkeeping methods

is proposed as a preferred alternative to

paper supporting document records.

DATES: Comments should be received by

June 19, 1998.

ADDRESSES: Signed, written comments

should refer to the docket number

appearing at the top of this document

and must be submitted to the Docket

Clerk, U.S. DOT Dockets, Room PL–401,

400 Seventh Street, SW., Washington,

DC 20590–0001. All comments received

will be available for examination at the

above address between 10 a.m. and 5

p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring

notification of receipt of comments must

include a self-addressed, stamped

envelope or postcard.

For Internet users, all comments

received will be available for

examination at the universal resource

locator—http://dms.dot.gov—24 hours

each day, 365 days each year. Please

follow the instructions on-line for more

information and help.

FOR FURTHER INFORMATION CONTACT: For

information regarding program issues:

Mr. David Miller, Office of Motor

Carrier Research and Standards, (202)

366–4009, or for information regarding

legal issues: Mr. Joseph Solomey, Office

of the Chief Counsel, (202) 366–0834,

Federal Highway Administration,

Department of Transportation, 400

Seventh Street, SW., Washington, D.C.

20590.

SUPPLEMENTARY INFORMATION:

The Difference Between This RIN 2125–

AD52 and RIN 2125–AD93

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. This NPRM is the

first document being published for RIN

2125–AD52. Use this RIN when cross

referencing this action with the Unified

Agenda.

This document is not an NPRM for

RIN 2125–AD93, Hours of Service of

Drivers. The FHWA published an

ANPRM on November 5, 1996 for RIN

2125–AD93 (61 FR 57251). The FHWA

is analyzing the comments for RIN

2125–AD93 and will publish an NPRM

in the future based upon those

comments and the accompanying

scientific data.

The FHWA will likely incorporate

this NPRM, or any final rule resulting

from this NPRM, into the upcoming

NPRM for RIN 2125–AD93. Please limit

your analysis, though, and any

comments you may have, to how this

NPRM would affect the current 49 CFR

part 395. Please do not comment on

how these changes might affect RIN

2125–AD93 and the ICC Termination

Act of 1995. You will be given an

additional opportunity to comment at

the time the FHWA publishes the NPRM

for RIN 2125–AD93.

Electronic Availability

An electronic copy of this document

may be downloaded using a computer,

modem, and suitable communications

software from the Government Printing

Office (GPO) electronic bulletin board

service (telephone: 202–512–1661).

Internet users may reach the GPO’s web

page at: http://www.access.gpo.gov/

suldocs/aces/aaces002.html
19458 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

Background of Daily Logs (RODS) and

the Verification of RODS

The HOS rules were first issued in the

late 1930’s (Ex Parte No. MC–2, 3 M.C.C.

665). Since that time, drivers have had

the responsibility to prepare a RODS.

The original pocket rulebook from 1939

states that carriers and drivers would be

liable for the accuracy of entries made

by drivers on the RODS. The Interstate

Commerce Commission explained the

original purposes of the RODS as

follows:

[to provide] a standardized type of record to

be maintained of the daily driving time and

the weekly hours on duty which would be in

the possession of each driver and which

would enable a highway patrolman or other

enforcement officer to determine

immediately upon the stopping of the vehicle

whether the driver had been on duty or was

driving in violation of our regulations. * * *

[and] to provide a record from which our

field representatives could readily determine

whether or not the carriers are complying

with the regulations. 24 M.C.C. 413

In order to determine whether carriers

are complying with the HOS

regulations, the FHWA is authorized, by

statute, to inspect and copy any record,

and to inspect any property, or

equipment of a carrier, lessor,

association, or other person subject to

the provisions of 49 U.S.C. 31502, as

long as these actions were made in

furtherance of an investigation and

regardless of whether or not the records

were required to be maintained by the

FHWA regulations or orders. See 49

U.S.C. 501(b).

A third purpose of the RODS is that

they enable motor carriers, at the time

of dispatch, to ensure their drivers have

sufficient time to safely complete trips

within the HOS regulations. The FHWA

believes many motor carriers began to

realize this purpose in the early years of

the regulation.

Over the last 60 years, many motor

carriers have regularly audited or

inspected drivers’ RODS for accuracy to

ensure their drivers are complying with

the HOS regulations. This enables the

motor carriers to verify, through their

own self-monitoring system, that drivers

are accurately reporting their HOS. It

also allows drivers to calculate their

available hours prior to being

dispatched. This provides the motor

carrier with a valuable management tool

to efficiently dispatch trips within the

HOS limitations.

In general, motor carriers use many

different types of business records to

document various business transactions:

Accident and incident reports are used,

for instance, to support claims to

insurers and defend against lawsuits;

bills of lading are written transportation

contracts between shippers and carriers

that identify the freight, who is to

receive it, the place of delivery, and the

terms of the agreement; and border

crossing reports are used to establish

time and mileage in a foreign country.

Carrier pros (waybills) are descriptions

of the goods sent with a carrier freight

shipment. Cash advance receipts are

used to document cash advances to

drivers. Credit and debit card receipts

and statements are used to reconcile

credit and debit account balances.

Customs declarations are used to

document the type and quantity of

freight which crossed a border point.

Delivery receipts are used to document

the act of transferring possession of a

shipment, usually between a carrier and

a consignee, but also between a

consignor and a carrier, and one carrier

to another carrier who receives the

freight. Dispatch and assignment

records are used to schedule and control

pickup and delivery of freight,

especially in the scheduling and control

of intercity traffic and intracity pickup

and delivery. Driver reports (facsimile

or call-in logs) are used to track a

driver’s progress. Expense vouchers are

used to account for all expenses. Freight

bills are used to describe the freight, its

weight, amount of charges, taxes, and

whether collect or prepaid charges. Fuel

billing statements are used to reconcile

the quantity of fuel consumed and the

cost of the fuel for internal expense

reports. Fuel receipts are used in

conjunction with fuel billing statements

to reconcile the quantity of fuel

consumed and the cost of the fuel for

internal expense reports. Gate receipts

are used to control access to terminals

and to determine when access and

departure from the terminal were

accomplished. Global positioning and

cellular systems provide two-way

communications technology between

the driver and the carrier. The global

positioning systems also provide a

means by which motor carrier

management may determine the CMVs

operational efficiency. Such operating

parameters including engine speed,

engine oil pressure, and cargo space

temperature may be provided by such

systems. Data provided by the global

and cellular systems help management

estimate a driver’s time of arrival at the

next destination and the condition of

the CMV and its contents much faster

than land-based, wire telephone

communications. Inspection reports are

used to determine whether the motor

carrier needs to improve monitoring of

its vehicles or drivers. Invoices are used

to notify payees of the charges to be

paid for transportation services.

Interchange reports are used to

determine when and where freight was

transferred from one transportation

carrier to another carrier. International

Registration Program (IRP) receipts are

used to determine the registration for

the specified vehicles. International

Fuel Tax Agreement (IFTA) receipts are

used to determine the payment of fuel

tax charges. Lessor settlement sheets are

used to determine the terms of a lease

and when a lease has been settled.

Lodging receipts are used to determine

driver expenses. Lumper receipts are

used to determine driver expenses for

the temporary labor at a consignor or

consignee. On-board computer reports

are used to determine the proper

operation of CMVs, including the

efficiency of the engine, transmission,

and accessories hooked up to the

computer. Over/short and damage

reports are used to make claims for

cargo liability claims and to account to

shippers for the freight that has been

damaged or freight that was over

counted or under counted. Overweight/

oversize reports and citations are used

to determine driver expenses for State

size and weight violations. Port of entry

receipts are used to determine when

freight was delivered to or received from

a port of entry. Telephone billing

statements are used to determine driver

expenses and to reconcile driver and

global positioning system reports. Toll

receipts are used to determine driver

expenses. Traffic citations are used to

determine driver expenses for motor

carriers that reimburse drivers for such

violations. Reports of CMVs with

transponders participating in automated

toll or clearance programs are used to

reconcile proper payment and

clearance. Trip permits are used to show

that a CMV is properly authorized by a

jurisdiction to operate in that

jurisdiction under the conditions

specified in the permit. Trip reports are

used to track driver and CMV actions

and weight/scale tickets are used to

determine the net weight of shipments

to accurately charge shippers for

transportation services.

These records, among others, are

generated by motor carriers for their

own business purposes, or they are

received from third parties, such as

consignors, consignees, and vendors for

other motor carrier purposes. Motor

carriers have been using these records

not only to document various business

transactions, but also to verify the

accuracy of their driver’s RODS. Many

motor carriers regularly maintain selfmonitoring records for their own

internal management purposes. This

practice, over the years, has become a
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19459

standard motor carrier practice among

well run, successful, and safe motor

carriers.

The FHWA has learned from safe

motor carriers that in order for the

carriers to ensure that drivers are alert

and not fatigued, motor carriers must

maintain self-monitoring systems

comparing RODS to supporting business

documents. The FHWA decided to

adopt this practice of maintaining

‘‘RODS supporting documents’’ as a part

of its regulatory oversight to assist motor

carriers in operating safely. The FHWA

published a final rule on November 26,

1982 (47 FR 53383) which, in part,

requires motor carriers operating in

interstate commerce to retain supporting

documents, along with drivers’ records

of duty status, for at least six months

from the date of receipt (49 CFR

395.8(k)). The FHWA did not define the

term ‘‘supporting document’’ in that

final rule.

The FHWA intended that the term

‘‘supporting document’’ refer to those

specific documents, and only those

specific documents, that a motor carrier

used in its internally-developed system

or program to verify the accuracy of the

driver’s duty activities. It was not meant

to encompass all records, but only those

that were, indeed, used by the motor

carrier, to verify the dates, times, and

locations the driver recorded. The

FHWA received requests in the 1980’s

and early 1990’s for an interpretation of

the term ‘‘supporting document.’’

The FHWA published regulatory

guidance in the Federal Register on

November 17, 1993 (58 FR 60734,

60761), which provided examples of the

types of supporting documents that

should be retained. The regulatory

guidance stated that supporting

documents are the records of the motor

carrier maintained in the ordinary

course of business that are used, or

could be used, by the motor carrier to

verify the information recorded on a

driver’s record of duty status. An

extensive, but not a complete, list of the

various types of records considered to

be examples of supporting documents

was provided in this guidance.

On August 26, 1994, the Hazardous

Materials Transportation Authorization

Act of 1994, Pub. L. 103–311, 108 Stat.

1673 (August 26, 1994) (hereinafter the

Act) was enacted. Under section 113 of

the Act, the Secretary of Transportation

is required to prescribe regulations

amending 49 CFR Part 395 to improve

both (A) compliance by commercial

motor vehicle (CMV) drivers and motor

carriers with the HOS requirements, and

(B) the effectiveness and efficiency of

Federal and State enforcement officers

reviewing such compliance.

The Act directed that the regulations

include the following items:

(1) A description of identification

items (which include either driver name

or vehicle number) that shall be part of

a written or electronic document to

enable such written or electronic

documents to be used by a motor carrier

or by an enforcement officer as a

supporting document to verify the

accuracy of a driver’s record of duty

status;

(2) A provision specifying the

number, type, and frequency of

supporting documents that must be

retained by a motor carrier so as to

allow verification of the accuracy of the

RODS at a reasonable cost, to the driver

and the motor carrier, of record

acquisition and retention;

(3) A provision specifying the period

during which supporting documents

shall be retained by the motor carrier.

The period shall be at least six months

from the date of a document’s receipt;

(4) A provision to authorize, on a

case-by-case basis, motor carrier selfcompliance systems that ensure driver

compliance with hours of service

requirements and allow Federal and

State enforcement officials the

opportunity to conduct independent

audits of such systems to validate

compliance with section 395.8(k) of title

49, Code of Federal Regulations (or

successor regulations thereto). Such

authorization may also be provided by

the Secretary to a group of motor

carriers that meet specific conditions

that may be established by regulation by

the Secretary and that are subject to

audit by Federal and State enforcement

officials; and

(5) A provision to allow a waiver, on

a case-by-case basis, of certain

requirements of section 395.8(k) of title

49, Code of Federal Regulations (or

successor regulations thereto), when

sufficient supporting documentation is

provided directly and at a satisfactory

frequency to enforcement personnel by

an intelligent vehicle-highway system

(now referred to as an ‘‘Intelligent

Transportation System’’ (ITS)), as

defined by section 6059 of the

Intelligent Vehicle-Highway Systems

Act of 1991 (23 U.S.C. 307 note). Such

waiver may also be allowed for a group

of motor carriers that meet specific

conditions that may be established by

regulation.

For purposes of the Act, the term

‘‘supporting document’’ was defined to

mean ‘‘any document that is generated

or received by a motor carrier or

commercial motor vehicle driver in the

normal course of business that could be

used, as produced or with additional

identifying information, to verify the

accuracy of a driver’s record of duty

status.’’

Proposal

To satisfy the legislative mandate, the

FHWA is proposing to amend part 395

to include in § 395.2 a definition for the

term ‘‘supporting document’’ and to add

a section entitled § 395.10 Verification

and Record Retention.

Definition of Supporting Documents

The FHWA is proposing to use the

statutory definition of supporting

documents as provided by Congress in

the Act, with the addition of clarifying

language and a list of examples. The

proposed list is only a sampling of the

types of documents that the FHWA

believes could support the HOS and the

accuracy of RODS. The FHWA is

particularly interested in receiving

comments on this approach to

implementation of the Act.

Motor Carrier Self-Compliance Systems

Under section 113 of the Act, the

FHWA is required to authorize, on a

case-by-case basis, motor carrier selfcompliance systems that ensure driver

compliance with FHWA HOS

requirements and afford Federal and

State enforcement officers the

opportunity to conduct independent

investigations of such systems to assess

compliance with 49 CFR 395.3 and

395.8.

The FHWA has considered this

requirement and believes that most

motor carriers and drivers are meeting

their responsibility to conduct safe

operations by complying with the HOS

regulations. The FHWA further believes

that responsible motor carriers have

already developed self-compliance or

self-monitoring systems and have these

systems in place. The FHWA does not

believe it should impose additional

stringent record-collection and

maintenance requirements on motor

carriers and drivers, when most motor

carriers already have such systems and

are successfully monitoring and

enforcing the regulations.

The FHWA believes it should

continue to allow each motor carrier to

maintain such a system. The FHWA,

though, believes each carrier should

presently be able to describe and

validate to the FHWA that they have an

effective system in place using

supporting documents to audit their

drivers’ HOS and RODS in an accurate

and timely fashion.

In addition, the FHWA seeks

comments on these additional issues:

Question (1) What types of selfmonitoring systems should be
19460 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

considered in addition to the type

proposed in this document?

Question (2) Whether and what

conditions should be imposed upon

motor carriers (such as accident or out

of service prevention performance

history) before the FHWA would

authorize a different self-monitoring

system as an alternative to compliance

with this proposed rule?

Question (3) Whether motor carriers

seeking additional authorization should

have some established safety record

with the FHWA or other State or local

enforcement agencies?

Question (4) What must happen

before the FHWA should disallow the

use of a self-monitoring system or an

alternative system?

Ability to Transfer Paper Supporting

Documents That Contain A Signature to

Automated, Electronic, or Laser

Technology Formats

The FHWA believes that an

alternative self-monitoring system

would have to provide the same

capacity for verification that would be

produced by the collection and

retention of all supporting documents in

their original form. The FHWA proposes

to allow motor carriers to transfer

supporting documents to electronic or

laser technology systems. Section

390.31(d), 49 CFR, now allows all

records to be maintained in computer

technology format, except those

documents containing signatures.

Under this proposal, all supporting

documents, including those requiring a

signature, would be eligible for

retention in electronic, laser or other

automated format, if the motor carrier

can produce and verify, upon demand,

hard copies of the required data. The

FHWA is proposing a conforming

amendment to § 390.31(d). Automated,

electronic, or laser technology systems

that report directly to the driver or the

motor carrier would also be acceptable.

However, the FHWA is also proposing

a requirement that automatic, electronic,

or laser technology systems must be

capable of reproducing the information

stored in such systems for inspection at

the motor carrier’s place of business

within 48 hours of a demand.

Motor Carrier’s Discretion To Use

Technology in Lieu of Paper Supporting

Documents

The FHWA is also proposing to allow

motor carriers to use electronic, laser or

automated technology, (e.g., global

positioning systems (GPS), automatic

vehicle identifier (AVI) transponders,

electronic bills of lading used by

customs officials in the U.S. and other

countries, and State driver-vehicle

inspection reports prepared by using

pen-based computer systems) in lieu of

paper supporting documents.

Other similar technologies that may

now be available or developed in the

future could also be acceptable in lieu

of paper supporting documents.

Question (5) Are there any other

advanced technology systems currently

in use or under development that the

motor carrier industry may use to

validate HOS or support the RODS?

The FHWA would accept the data

supplied by these technologies as

alternatives to supporting documents, if

the motor carrier can produce a printed

copy of the required information at its

principal place of business or other

location within 48 hours after a request

has been made. The FHWA would allow

motor carriers to use any intelligent

transportation system developed now or

in the future in the manner and to the

extent it is effective for HOS and RODS

verification if that system complies with

these general requirements.

Question (6) Should waivers be

considered on a case-by-case basis for

other systems that do not quite meet

these requirements, but may have other

compensating features that produce

equivalent safety results?

Question (7) Under what

circumstances should the use of such

alternatives systems also operate as a

substitute for the requirement to prepare

and maintain RODS? Demonstration of

the effective use of a system in whole or

in part, for verification should obviate

any necessity to further examine the

information produced by the system by

enforcement personnel.

Verification of Records of Duty Status

Using A Self-Monitoring System

As a result of this rulemaking, motor

carriers would be required to maintain

a self-monitoring system capable of

verifying drivers’ HOS and the accuracy

of the duty report categories (on duty,

driving, sleeper berth, off duty, time

reporting for duty each day, time

released from duty each day, and the

total number of hours on duty each day)

recorded by drivers on their RODS for

each trip. The FHWA believes that most

trips produce, or could with relative

ease produce, a document to verify the

time and place of the driver and mileage

of the vehicle at the beginning and

completion of each work day. Various

other supporting documents may be

obtained during the trip. This rule

would require the motor carrier to have

a self-monitoring system to verify the

accuracy of the beginning, intermediate,

and ending times of each working day

on each trip, as well as beginning,

ending and intermediate mileage for

each trip. Absent such a system, which

must be in verifiable, demonstrable form

and used by the motor carrier,

possession and retention of all

supporting documents that could have

been obtained on any given trip would

be presumed and required.

Nothing in this proposal would have

any effect on current exceptions for

automatic on-board recording devices in

accordance with § 395.15.

Section 395.10 would be added to

require motor carriers to have a system

in place that enables the motor carrier

to effectively audit its RODS with

documents that the motor carrier

chooses. The FHWA believes a motor

carrier could fully comply with this

requirement using documents generated

wholly within the motor carrier’s

operation, such as accurate dispatch

records, bills of lading, daily call-in

records, and a variety of receipts.

The motor carrier’s auditing system

must have a reviewable written

procedure that explains in sufficient

detail what documents are used by the

motor carrier’s clerks and management

and how they serve to verify the

accuracy of driver’s RODS. The

procedure would further be required to

explain access to each type of record

used and where maintained, how

drivers are notified of violations found

by the motor carrier, and what

corrective action the motor carrier takes

for violations found by the employer

during its audit.

The motor carrier has the discretion to

develop and use whatever system it

believes would effectively enable it to

ensure that all drivers accurately record

their HOS on the RODS. The system

must, at a minimum, verify the driver’s

beginning and ending times, as well as

such intermediate times, as would

effectively detect HOS violations and

preclude opportunities for false or

inaccurate reporting. It must also

include a system to cross-check mileage

and locations. The FHWA believes that

most motor carriers already have such a

system and others should be able to

establish their self-monitoring system by

describing it in a manual or handbook.

The FHWA believes the proposed

manual may be written on one page or

less in length.

Paragraph (b) of this proposed rule

would specify that the manual be

provided to personnel responsible for

verification of HOS and RODS. The

manual would also be required to be

made available to the FHWA and other

appropriate enforcement agencies upon

a request. Accessibility to the written

system description (manual or

handbook) by FHWA and other

appropriate enforcement agencies
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19461

would normally be required during

compliance reviews at the motor

carrier’s terminals or principal places of

business where records required by part

395 are maintained. The FHWA does

not intend that enforcement officers

conducting roadside inspections would

have access to such a manual or

handbook. These officers would

continue to have full access to RODS

and all supporting documents on the

vehicle or in a driver’s possession at the

time of inspection.

The FHWA would allow motor

carriers to specify in their system the

supporting documents, including

automated, electronic, or laser systems,

that would provide the best

opportunities to verify the accuracy of

the records of duty status. If the motor

carrier chooses to require its drivers,

including leased owner-operators and

contractors, to submit toll, bridge, and

fuel receipts as a part of its system,

those drivers must do so.

During a compliance review of the

HOS requirements at the motor carrier’s

place of business, the FHWA or

authorized State inspectors would be

empowered to inspect the motor

carrier’s self-monitoring system’s

manual or handbook to determine its

compliance with this rule, how the

motor carrier is complying with its selfenforcing record-of-duty-status system,

how audit-responsible personnel obtain,

audit, and store inspected supporting

documents, how many violations the

motor carrier has found on its own, and

corrective actions the carrier has taken

with its drivers to improve their

compliance with the HOS requirements.

The reviewer may inspect other motor

carrier records not identified in the

motor carrier’s system, to determine

whether the system is effectively

verifying the accuracy of the RODS. If

the reviewer discovers that the

supporting documents identified by the

motor carrier’s system are not effective

for verifying the accuracy of the RODS,

the reviewer would have several options

ranging from recommending the motor

carrier revise its system to better verify

the RODS accuracy to taking some

enforcement action based upon

evidence of noncompliance or

deception. Subsequent investigations

would determine whether the revised

system is effective, again using other

records not necessarily identified in the

system. If continued problems or a

pattern of HOS violations, falsification,

or inaccurate RODS is discovered, the

FHWA reserves the right to inspect and

copy any other records not identified in

the motor carrier’s system to gauge the

ineffectiveness of the system.

If the reviewer determines that the

motor carrier’s system is deficient (as

opposed to non-existent or unenforced)

because HOS or RODS violations are

going undetected or uncorrected, the

carrier will be put on notice of those

deficiencies and directed to collect and

maintain specific supporting documents

necessary to prevent violations. A motor

carrier would not be cited for failing to

maintain specific types or numbers of

supporting documents on the first

review of the system. Failure to

maintain the documents after the first

review as directed (or as agreed) will be

the basis for future enforcement action.

In addition, penalties may be imposed

for violations of Part 395 discovered

during the compliance review.

This rule would allow the motor

carrier to specify the type and number

of supporting documents used in its

system. If the motor carrier’s selfmonitoring system is effective at

controlling drivers HOS and accuracy of

RODS, the motor carrier would not be

required to maintain other documents

that could be used to support the record

of duty status, but which the motor

carrier does not use in its system.

For example, a motor carrier’s selfmonitoring system specifies five types

of documents (i.e., bills of lading,

delivery receipts, toll receipts, carrier

pros, cellular telephone statements)

which are used effectively by the motor

carrier’s auditing clerks to verify the

accuracy of the drivers HOS and RODS.

If the motor carrier also used satellite

technology to track CMVs, but did not

use the system to verify the drivers’

HOS and RODS, the reviewer would not

necessarily require or expect that motor

carrier to maintain any such electronic

records for the time periods specified in

the rule. Conversely, if the motor carrier

used advanced technology systems to

verify HOS and RODS, the motor carrier

would not be required to maintain the

more conventional supporting

documents. After encountering a system

which is effective on its face,

enforcement personnel need not

demand access to additional records

that the motor carrier is not using in the

system.

Requirements for Motor Carriers Who

Fail To Have a Self-Monitoring System

If it is determined that a motor carrier

does not have a self-monitoring system

to verify the accuracy of the drivers’

RODS, the FHWA would presume that

the motor carrier collects and retains all

supporting documents coming into its

possession directly or through its

drivers or agents for all trips. The

FHWA would demand access to

supporting documents for the beginning

of a trip (or when the driver picks up

passengers or property), and for the end

of the trip (or the delivery of the same

passengers or property). The FHWA

would also demand access to all

receipts, bills, and other documents

supporting the times and locations of

intermediate operations that the motor

carrier knew or should have known had

come into its actual or constructive

possession during regulated

transportation.

A motor carrier who fails to have a

self-monitoring system must require the

drivers to examine all documents they

receive during the normal course of

their duties, including, but not limited

to, documents regarding the operation of

CMVs for motor carriers. The drivers

would have to ensure that the

documents include the necessary items

required by § 395.10(g). The motor

carrier and drivers would both be liable

for violations of this requirement. The

motor carrier may also require, if it

chooses, that its drivers forward all

supporting documents they receive

during their trips as allowed under

§ 395.10(d).

In § 395.10(f), motor carriers that do

not have a self-monitoring system must

require drivers to retain all supporting

documents for the same time periods as

they retain records of duty status.

Records of duty status may be

forwarded to the regular employing

motor carrier immediately after the

record of duty status is completed, or

may be retained by the driver for up to

13 days after completion. Section

395.10(f) would require a driver to

forward all supporting documents to the

motor carrier at the same time the driver

forwards the records of duty status. This

requirement would ensure that drivers

who work for motor carriers that do not

have auditing systems would have all of

the documents that support their

records of duty status and would be able

to make these documents available for

inspection by Federal, State, or local

enforcement officials on the highway.

As a result, drivers would be better

motivated toward HOS compliance and

ensuring the accuracy of their records of

duty status. This would in turn tend to

improve the safety of both the driver’s

performance and the motor carrier’s

CMV operation. Therefore, this

proposal, in the absence of a supporting

document auditing system, should help

to achieve the goal of improving the

safety of CMV operations and the

enforcement of the HOS regulations.

The FHWA currently does not

directly require drivers, including those

used for single trips or drivers used on

an intermittent, casual, or occasional

basis, to provide motor carriers with
19462 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

supporting documents. The FHWA

believes, however, that drivers have an

obligation not only to comply with the

HOS and RODS requirements, but also

to cooperate with their motor carrier

employers by collecting and submitting

the supporting documents needed to

verify compliance with the rules.

Therefore, the FHWA is proposing to

require drivers to submit supporting

documents to the motor carrier at the

time the corresponding record of duty

status is submitted for those motor

carriers that choose not to maintain a

written, verifiable HOS auditing system.

With this rulemaking, the FHWA

would also require motor carriers who

fail to have a self-monitoring system to

retain all ‘‘supporting documents’’ that

all drivers, including owner-operators

and independent contract drivers,

receive during a trip, no matter how the

carrier pays drivers for these trips. This

requirement would be imposed on the

motor carrier under whose authority the

driver is performing transportation

services. Documents passing through

the hands of leased drivers would be, in

effect, passing through the hands of the

motor carrier because drivers are, in

fact, the representatives of the motor

carrier during the course of the

transportation service provided. Thus,

the FHWA does not believe that holding

the motor carrier responsible for

maintaining those documents would be

an undue burden if the motor carrier

does not otherwise provide a

verification system demonstrating its

safety management control.

The Senate report accompanying the

Act discussed those situations where a

motor carrier leases the service of

drivers, such as independent

contractors, owner-operators, and fleetbroker drivers employed by other motor

carriers. S. Rep. No. 217, 103d Cong., 1st

Sess. 1640 (1994). The report noted that

documentation of a leased driver’s duty

status was frequently not obtained and

retained by the motor carrier using the

driver. This report also stated that it was

the intent of the Act to ensure that

supporting documents, generated by

such business arrangements, be retained

by the motor carriers that perform the

transportation service. Additionally, it

is clear that it was Congress’ intent to

facilitate Federal and State enforcement

efforts to document violations of the

HOS regulations.

The FHWA’s motor carrier safety

enforcement personnel have

experienced difficulties in obtaining

supporting documents for trip lease

arrangements between motor carriers

and owner-operators. Senator Exon, the

legislation’s sponsor, discussed the need

for this provision during the floor

debate preceding final passage of the

Act. He explained that ‘‘reports that

auditors have been forced to retrieve

documents from garbage dumpsters or

play hide-and-seek with firms that have

a history of habitual HOS violation give

rise to the need for this provision.’’

Further, Senator Exon stated that ‘‘the

object of this provision is to help make

the roads safer by giving enforcement

personnel the ability to catch flagrant

abusers. It is not designed to create a

trap for drivers who receive, for

example, a pre-stamped toll receipt or to

unfairly punish drivers for a de minimis

deviation from the current rules.’’ 140

Cong. Rec. S11323 (daily ed. August 11,

1994).

The legislation sets a record retention

period of at least six months. The

FHWA believes that this requirement

was based upon Congress’ intent to have

supporting documents maintained for

an identical period as the time required

for duty status record retention, which

is six months. The FHWA is considering

reducing the record of duty status

retention period to four months, as the

FHWA believes it is better able to

investigate and sufficiently document a

current pattern of HOS violations with

records of more recent vintage. If the

FHWA reduces the retention period for

RODS to four months, the FHWA

believes it would be unnecessary to

require motor carriers to keep the

documents that support the RODS for an

additional two months. The FHWA

believes that keeping a supporting

record for two months beyond that

which is needed by the FHWA would be

contrary to the intent of the Paperwork

Reduction Act of 1995. The FHWA is

proposing a six-month retention period

for supporting documents in this NPRM,

but the FHWA would like comments on

whether the FHWA should reduce the

period for retaining RODS to four

months. The FHWA would also like

comments whether it should seek

legislative authority to (1) reduce the

supporting document retention period

to four months or (2) eliminate the

supporting document retention period

mandate and allow the FHWA to set the

supporting document retention period

to any future RODS retention period.

The FHWA has identified a retention

period for ‘‘Supporting Data for Reports

and Statistics; Supporting data for

periodical reports of * * * hours of

service, * * *, etc.’’ See 49 CFR 379,

Appendix A, Item K.2. The FHWA has

received a few telephone inquiries

regarding this retention period. This

retention period relates to an old FHWA

monthly report acquired from the

Interstate Commerce Commission (ICC)

in 1966. The FHWA required the report

until December 15, 1967. The FHWA

had required every motor carrier, other

than a private carrier of property, to

report on a Form BMC 60:

every instance during the calendar month

covered thereby in which a driver employed

or used by it has been required or permitted

to be on duty, or to drive or operate a motor

vehicle in excess of the hours * * *

Class I motor carriers of passengers and

Classes I and II motor carriers of

property also had to file the same Form

BMC 60 report—

for every calendar month in which no driver

employed or used by it has been required or

permitted to be on duty, or to drive or

operate a motor vehicle in excess of the hours

* * * See 32 FR 7128, May 11, 1967.

The FHWA had a retention period of

three years. The FHWA removed the

reporting requirement on December 15,

1967 (32 FR 17941). The ICC and the

Surface Transportation Board never

removed the retention period from its

preservation of records list. Based upon

the savings clause in the ICC

Termination Act of 1995, the FHWA

transferred the former ICC’s

preservation of records lists to the

FHWA regulations on June 21, 1997 (62

FR 32040). This action provided the

initial appearance of a conflict between

parts 379 and 395 with respect to HOS

supporting data and HOS supporting

documents.

The proposal in this document in no

way involves ‘‘reporting’’ data similar to

the former report Form BMC–60. This

proposal only relates to motor carrier

recordkeeping requirements and a motor

carrier’s comparison of its own records

to the driver’s records of duty status.

The OMB’s regulations in 5 CFR

1320.3(m) identifying the definitions of

a ‘‘recordkeeping requirement’’ explain

a report is different than the retention of

a record, notification of the existence of

records, and disclosure of records. The

FHWA believes a report is a document

submitted to the FHWA, as was Form

BMC 60 up until December 15, 1967.

Item K.2.’s reference to hours of service

data, therefore, does not have any actual

effect upon this proposal.

The FHWA believes it should cite

RODS violations primarily when an

investigator finds drivers or carriers are

concealing excess hours. The FHWA

does not wish to expend scarce

enforcement resources on mere

recordkeeping violations that may result

from sloppy bookkeeping. The FHWA

believes motor carriers should provide

drivers adequate opportunities for sleep,

personal hygiene, and family matters,

and limit the driver’s hours on duty to

prevent CMV crashes caused by loss of

alertness from working too long or not
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19463

getting enough rest. Accurate recording

of hours driven, on duty, and off duty,

of course, is intended to assure that

drivers are afforded the rest periods they

need and plays an important role in

monitoring and enforcing compliance

with the driving limitations.

Question (8) What impact would a

six-month or longer record retention

requirement have on the Federal

government, State governments, and

motor carriers?

Question (9) Would we enhance

enforcement and prosecution efforts

with the longer retention requirement

(e.g., the ability to adequately enforce

the rules, collect evidence for a criminal

case, prepare the case, and successfully

prosecute drivers or motor carriers for

deliberately or recklessly violating HOS

restrictions)?

Under this proposal, motor carriers

could retain their time records, RODS

and supporting documents at a location

of their choice. However, the location

would have to be suitable for preserving

the records so that they would not be

damaged or lost. In addition, a motor

carrier must be able to produce such

records at its principal place of business

within 48 hours of a request by an

authorized enforcement official. This

request for documents could be made by

telephone, fax, mail, or by other means.

Saturdays, Sundays and holidays would

be excluded from the computation of

the 48-hour period of time. This 48-hour

period would provide a reasonable

amount of time for documents to be sent

via overnight mail. Furthermore, most

business operations with electronic

transfer capabilities could probably

produce information in a shorter period.

The FHWA is proposing that, in the

absence of a written and operational

verification system, ALL supporting

documents be retained for the entire

retention period. In this proposal, the

term ‘‘all supporting documents’’ means

all documents that are used to support

the driver’s RODS and time record

entries for any particular trip. These

documents must be connected to the

driver or the vehicle used on the trip. A

variety of documents may be obtained

by a driver, or provided directly to a

motor carrier, which could meet the

requirements of this proposed rule.

Some trips may result in only two or

three supporting documents while

others may result in many more

documents. In addition, supporting

documents may be required to be kept

for longer periods based upon other

Federal, State, or local laws, rules, or

orders (e.g., Internal Revenue Service

rules). The FHWA is proposing that the

supporting documents must be kept for

six months after receipt by the motor

carrier, unless a longer period of time is

required by another authority.

The FHWA believes that all motor

carriers obtain many records and

documents in the normal course of

business that link the records or

documents to the driver or vehicle and

that motor carriers have not always

considered these other records or

documents when asked to produce

supporting documents in past

compliance reviews. A motor carrier,

however, would now have the duty to

ensure that it has an independent means

of verifying the driver’s HOS and the

accuracy of the driver’s RODS for trips

made on behalf of the motor carrier,

including those trips made using leased

drivers and/or vehicles.

Rulemaking Analyses and Notices

All comments received before the

close of business on the comment

closing date shown above will be

considered and will be available for

examination in the FHWA Docket at the

above address. Comments received after

the comment closing date will be filed

in the FHWA Docket identified above

and will be considered to the extent

practicable, but the FHWA may issue a

final rule anytime after the close of the

comment period. In addition to late

comments, the FHWA will also

continue to file in the docket relevant

information that becomes available after

the comment closing date, and

interested persons should continue to

examine the docket for new material.

For Internet users, all comments

received will be available for

examination at the universal resource

locator—http:\\dms.dot.gov—24 hours

each day, 365 days each year.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this

document does not contain a significant

regulatory action under Executive Order

12866. The FHWA has estimated that

this rulemaking will have an annual

economic impact on the motor carrier

industry of less than $100 million. It is

a significant regulation under the

Department of Transportation’s

regulatory policies and procedures,

because this regulation has substantial

public interest. As discussed below,

current FHWA regulations have

required the retention of supporting

documents since 1982, and responsible

motor carriers have collected and

retained such documents both in the

ordinary course of business and for

purposes of regulatory compliance. This

rule would require motor carriers to

establish systems to verify drivers’

RODS or, alternatively, to describe HOS

supporting documents in terms of their

effectiveness to verify drivers’ HOS. In

addition, this rule explains how

supporting documents are to be

collected, where they must be kept, and

for how long. This rulemaking action

would not create a serious inconsistency

with any other agency’s action or

materially alter the budgetary impact of

any entitlements, grants, user fees, or

loan programs. Evaluation of the costs of

this proposed rule is fully described

below in the Paperwork Reduction Act

section.

Regulatory Flexibility Act

To meet the requirements of the

Regulatory Flexibility Act (5 U.S.C.

601–612), the FHWA has evaluated the

effects of this rule on small entities and

has determined that this regulatory

action would not have a significant

economic impact on a substantial

number of small entities.

The FHWA estimates there are about

422,000 motor carriers subject to this

rule, 90 percent of which are small

entities. For the purposes of this

evaluation, the FHWA considered motor

carriers with ten or fewer drivers to

qualify as small entities.

Small entities, as well as large

entities, have been prosecuted for

making, or allowing drivers to make,

false entries upon RODS since the late

1930’s. Since 1982, small entities have

been required to maintain supporting

documents along with their drivers’

RODS. As a good business practice,

small entities are believed to be

reviewing, inspecting, or auditing their

drivers’ RODS and comparing them

with the motor carrier’s supporting

documents to determine the accuracy of

the RODS. This rule would convert a

previously established motor carrier

business practice into an explicit

requirement. Small entities would be

required to document the system they

have been using to verify the drivers

RODS are accurate. It is believed that

most small entities have not

documented the system they are using

to verify their drivers’ RODS. This rule

would require these systems to be

reduced to writing.

After a small entity has documented

its self-monitoring system in writing,

the FHWA would not require the entity

to retain subsequently generated or

received documents which were not

called for by that entity’s selfmonitoring system. This would relieve

small entities from a potentially large

burden of record collection. Many

noncompliant small entities may

perceive an increased burden; however,

the FHWA believes that this increased
19464 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

burden will actually result from the

entities finally having to comply with

the preexisting supporting document

requirement the cost of which these

entities have been avoiding by not

complying with the rule until now.

Executive Order 12612 (Federalism

Assessment)

This action has been analyzed by the

principles and criteria contained in

Executive Order 12612, and it has been

determined that this proposal does not

have sufficient federalism implications

to warrant the preparation of a

federalism assessment.

The amendments proposed in this

document would not preempt any State

law or regulation. These changes, if

adopted, would not limit the policy

making discretion of the States. The

only additional cost or burden

potentially imposed on the States

because of this action would be the

requirement that the States incorporate

these proposed changes into their safety

regulations as a condition of the receipt

of Federal grants for safety enforcement.

This requirement would not infringe

upon the State’s ability to discharge

traditional State governmental functions

because interstate commerce, which is

the subject of these regulations, has

traditionally been governed in the first

instance by Federal laws. In addition,

the FHWA would not require as a

condition of the Motor Carrier Safety

Assistance Program (MCSAP) that the

States adopt this proposal for intrastate

safety regulations, but would expect

phased in voluntary compatibility.

Public Law 104–4 (Unfunded Mandates

Reform Act of 1995)

This action has also been analyzed by

the principles and criteria contained in

Public Law 104–4, and it has been

determined that this proposal does not

have an unfunded mandate within the

meaning of the Unfunded Mandates

Reform Act.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This proposal contains new collection

of information requirements for

purposes of the Paperwork Reduction

Act of 1995, 44 U.S.C. 3501–3520. The

new information collection

requirements in this proposal are

mandated by section 113 of the

Hazardous Materials Transportation

Authorization Act of 1994 (Pub. L. 103–

311, 108 Stat. 1676). This section

requires that each written or electronic

document that is used as a supporting

document have a description of

identification items to include either the

driver’s name or vehicle number. This

would require motor carriers to ensure

that the driver’s name or vehicle

number is on each document used to

verify time records. The statute also

requires the supporting document must

be kept for at least six months. The

FHWA, since 1982, has required that all

supporting documents must be collected

and kept for six months. This collection

of documents and retention period is

not a new paperwork burden. This

collection of documents and retention

period has been calculated into past

paperwork burden approvals of the

Office of Management and Budget

(OMB).

New Information Collection Proposal

Collection of Information: Driver’s

Records of Duty Status.

Under the new OMB regulations

found at 5 CFR 1320 and entitled

Controlling Paperwork Burdens on the

Public (1995), the FHWA is required to

estimate the burden its regulations

impose to generate, maintain, retain,

disclose, or provide information to or

for the FHWA including (i) reviewing

instructions; (ii) developing, acquiring,

installing, and utilizing technology and

systems for the purpose of collecting,

validating, and verifying information;

(iii) developing, acquiring, installing,

and utilizing technology and systems for

the purpose of processing and

maintaining information; (iv)

developing, acquiring, installing, and

utilizing technology and systems for the

purpose of disclosing and providing

information; (v) adjusting the existing

ways to comply with any previously

applicable instructions and

requirements; (vi) training personnel to

be able to respond to a collection of

information; (vii) searching data

sources; (viii) completing and reviewing

the collection of information; and (ix)

transmitting, or otherwise disclosing the

information.

This proposed rule would add

additional requirements to the OMBapproved budget for 2125–0016. Each

motor carrier would be required to

develop and implement an effective

self-monitoring system that audits

supporting documents and compares

the supporting documents to RODS.

Motor carriers failing to develop and

implement an effective self-monitoring

system would be presumed to be taking

the necessary actions to obtain and

retain every supporting document that

the carriers or their drivers generate or

receive in the normal course of business

that would accurately support the

beginning, intermediate, and ending

times of each driver’s daily trips in

interstate commerce.

If the carrier fails to have a selfmonitoring system, the carriers would

also have to ensure that each document

has the driver’s name or vehicle number

on it. In addition, the motor carrier

would have to ensure that reasonably

reliable references to date, time, and

location on the documents corroborate

the date, times, and locations on the

driver’s record of duty status.

In the statute, as stated above, the

term ‘‘supporting document’’ was

defined to mean ‘‘any document that is

generated or received by a motor carrier

or commercial motor vehicle driver in

the normal course of business that could

be used, as produced or with additional

identifying information, to verify the

accuracy of a driver’s record of duty

status.’’ The FHWA believes that every

document that is generated and received

by a motor carrier or commercial motor

vehicle driver in the normal course of

business is used or retained by the

motor carrier for usual and customary

purposes and should not be considered

to be a burden for purposes of 5 CFR

1320.3(b).

The FHWA’s Motor Carrier

Management Information System

(MCMIS) indicated that in October 1997

there were about 2,216,000 drivers and

422,000 motor carriers operating in

interstate commerce. Of the 2.216

million drivers, the FHWA estimates 20

percent (443,200 drivers) operate within

241 air-kilometer (100 air-mile) radius

from their normal work reporting

location, five percent (110,800) operate

for motor carriers who equip CMVs with

automatic on-board recording devices,

and the remaining 75 percent use the

paper log book system.

In the March 11, 1998 Federal

Register (63 FR 11948), the FHWA

opened a docket and requested

comments regarding the current

collection of information requirements

without respect to this proposal. This

proposal would add collection of

information requirements to the March

11 estimate.

The FHWA estimates the public

recordkeeping burden for this proposed

collection of information to be 949,500

burden hours for the first year of

implementation and 17,737 for the

second and subsequent years. This

would result from the necessary system

changes the regulations would require a
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19465

motor carrier to do with respect to the

following six things:

(1) A motor carrier must determine

the types of supporting documents

providing the most effective means to

compare drivers RODS to supporting

documents.

(2) A motor carrier must prepare a

written document, in either an

electronic or paper format, definitively

specifying the auditing system’s

capabilities.

(3) The written document must

identify the supporting documents, by

common name, the motor carrier uses to

verify the accuracy of the driver’s hours

of service or record of duty status.

(4) The written document must

describe how the system is used.

(5) The written document must

describe the procedure to be used to

promptly notify a driver who has

recorded information inaccurately on a

record of duty status which is required

by § 395.8.

(6) The written document must

describe the corrective action the motor

carrier would take to improve the

driver’s compliance with providing

accurate information.

The FHWA assumes most motor

carriers, especially the 90 percent of

motor carriers who are small entities,

would not incur any reproduction costs

or distribution costs under this

proposed rule. Most motor carriers

would have one manual with system

description for office use and would not

need to reproduce the document. Motor

carriers with ten or fewer drivers

generally do not have multiple

terminals and the FHWA would

presume the carrier have only one or

two people involved in the verification

of RODS at their principal place of

business. For the ten percent of motor

carriers that are large entities, the

FHWA estimates they would make an

average of ten copies and distribute

them accordingly.

The FHWA intends that this

document would be a working

document and would not be archived. It

would be used by personnel on a daily

basis as an important reference and

management tool for the self-monitoring

auditing procedure as many responsible

motor carriers do now. The FHWA

would also expect motor carriers to

review and revise the system on a

periodic, but infrequent, basis as the

need arises. The FHWA has computed

the paperwork burden based upon an

annual review and revision schedule.

Since the FHWA has required motor

carriers ensure the accuracy of the

RODS and the regulations provide that

they are liable to prosecution for the

making of false reports in connection

with such duty activities, the FHWA

believes most motor carriers choose to

fulfill their responsibilities for highway

safety by auditing and comparing their

RODS and supporting documents to

determine whether drivers have made

false reports of their duty activities.

Thus, the FHWA believes the time

necessary to audit and compare RODS

and supporting documents does not

need to be included in the burden

estimate. The FHWA’s time estimate for

identifying supporting documents and

preparing a written system description

would be 3 additional hours per carrier

per year.

The FHWA calculates motor carriers

must develop a policy in the first year

this proposed rule would be final. The

FHWA calculates motor carriers would

spend an average of 3 hours developing

and writing out the policy. The FHWA

calculates motor carriers would

consume an estimated 949,500 burden

hours developing its policies.

The FHWA calculates an estimated

17,737 burden hours for the second and

third years. The FHWA estimates there

are new carriers equaling one percent of

the total number of motor carriers

beginning business each year who must

develop a policy and the other motor

carriers must review their policies. The

FHWA estimates 50 percent of the

reviewed policies would have to be

amended.

Organizations and individuals

desiring to submit comments only on

the information collection requirements

must direct them to the Office of

Information and Regulatory Affairs,

OMB, Room 10235, New Executive

Office Building, Washington, D.C.

20503; Attention: Desk Officer for

Federal Highway Administration.

Please send a copy of any comments

you send to the OMB to the FHWA, too.

The FHWA considers comments by

the public on this proposed collection of

information in the following four ways:

(1) Evaluating whether the proposed

collection of information is necessary

for the proper performance of the

functions of the FHWA, including

whether the information will have a

practical use.

(2) Evaluating the accuracy of the

FHWA’s estimate of the burden of the

proposed collection of information,

including the validity of the

methodology and assumptions used.

(3) Enhancing the quality, usefulness,

and clarity of the information to be

collected.

(4) Minimizing the burden of

collection of information on those who

are to respond, including through the

use of appropriate automated electronic,

mechanical, or other technological

collection techniques or other forms of

information technology; e.g., permitting

electronic submission of responses.

OMB must make a decision

concerning the collection of information

contained in these proposed regulations

between 30 and 60 days after

publication of this document in the

Federal Register. Therefore, a comment

made directly to OMB will have its full

effect of OMB receives it within 30 days

of publication. This does not affect the

deadline for the public to comment to

the FHWA on the proposed regulations.

Invitation to Comment

Interested persons are invited to

submit comments and recommendations

regarding these proposed regulations to

the FHWA docket found at the top of

this document.

What If the FHWA Had Implemented

the Statute As Written

The FHWA has calculated the burden

hours for the statute. The FHWA has

named 45 possible documents as

examples in the definition of

‘‘supporting documents’’ proposed in

this NPRM. The FHWA estimated one

half of these 45 would generally be

available each trip for most runs. Using

23 of the 45 documents and based upon

the statute, the motor carrier would

have had to audit each one as the carrier

obtained or received the document for

the following five minimum items.

1. Date.

2. Time.

3. Location.

4. Driver’s name.

5. Vehicle’s number.

The time to compare the documents

to the RODS, filing, and storing the 23

records would be more than is currently

expected and more than is proposed in

this NPRM. The FHWA believes the

increased burdens would be unusual

and uncustomary and thus believe a

burden would be imposed by the

statute. Calculating these costs into the

estimate, the FHWA believes the burden

imposed by the statute would be at least

219,095,423 hours.

The FHWA has calculated the second

year total operating and maintenance

financial burden for maintaining the

records for the current six-month

retention period and also for a fourmonth and one-year retention period.

The FHWA’s estimate of the total costs

before subtracting the costs of the wages

paid to recordkeepers would be as

follows for RODS and supporting

documents.
19466 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

SECOND YEAR TOTAL OPERATING AND

MAINTENANCE COSTS

4 month retention period .. $1,112,614,000

6 month retention period .. 1,114,201,000

One year retention period 1,122,611,000

National Environmental Policy Act

The agency has analyzed this action

for the purposes of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321–4347) and has determined

that this action will not affect the

quality of the environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects

49 CFR Part 390

Highway safety, Highways and roads,

Motor carriers, Motor vehicle

identification and marking, Reporting

and recordkeeping requirements.

49 CFR Part 395

Global positioning systems, Highway

safety, Highways and roads, Intelligent

Transportation Systems, Motor carriers,

Motor vehicle safety, Reporting and

recordkeeping requirements.

Issued: April 10, 1998.

Gloria J. Jeff,

Deputy Administrator, Federal Highway

Administration.

In consideration of the foregoing, the

FHWA is proposing to amend Title 49,

CFR, chapter III, parts 390 and 395 as

set forth below:

PART 390—FEDERAL MOTOR

CARRIER SAFETY REGULATIONS;

GENERAL

1. The authority citation for part 390

is revised to read as follows:

Authority: 49 U.S.C. 5901–5907, 31132,

31133, 31136, 31502, and 31504; and 49 CFR

1.48.

§ 390.31 [Amended]

2. Section 390.31(d) is revised to read

as follows:

§ 390.31 Copies of records or documents.

* * * * *

(d) Exception. All records may be

maintained through the use of

automated, electronic, or laser

technology systems provided the motor

carrier can produce, within 48 hours of

a demand, a printed copy of the

required data; provided that alternate

means for signature verification are

available.

PART 395—HOURS OF SERVICE OF

DRIVERS

3. The authority citation for part 395

is revised to read as follows:

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

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

108 Stat. 1676; and 49 CFR 1.48.

4. Section 395.2 is amended by

adding the following definition,

alphabetically, to read as follows:

§ 395.2 Definitions.

* * * * *

Supporting document means any

document that is generated or received

by a motor carrier or commercial motor

vehicle driver in the normal course of

business that could be used, as

produced or with additional identifying

information, to verify the accuracy of a

driver’s record of duty status. For the

purposes of this definition, any

document means any record or

document, either written or electronic,

that is available individually or in

combination with other records or

documents, to verify the accuracy of a

driver’s record of duty status because of

its potential to provide a reasonably

accurate reference to dates, times and

locations. Examples of supporting

documents are: Accident/incident

reports, bills of lading, border crossing

reports, carrier pros (waybills), cash

advance receipts, credit card receipts

and statements, customs declarations,

delivery receipts, dispatch/assignment

records, driver reports (facsimile or callin logs), expense vouchers, freight bills,

fuel billing statements, fuel receipts,

gate receipts, global positioning reports,

inspection reports, invoices, interchange

reports, International Registration

Program receipts, International Fuel Tax

Agreement receipts, lessor settlement

sheets, lodging receipts, lumper

receipts, on-board computer reports,

over/short and damage reports,

overweight/oversize reports and

citations, port of entry receipts,

telephone billing statements, toll

receipts, traffic citations, transponder

reports, trip permits, trip reports,

waybills, and weight/scale tickets.

* * * * *

5. Section 395.8 is amended by

revising paragraph (k) to read as follows:

§ 395.8 Driver’s record of duty status.

* * * * *

(k) Retention of driver’s record of duty

status. (1) Driver’s records of duty status

for each calendar month may be

retained at the driver’s home terminal or

other regular reporting location until the

20th day of the succeeding calendar

month. Such records shall then be

forwarded to the carrier’s principal

place of business, or such alternate

location as the motor carrier designates

for record retention purposes, where

they shall be retained with all

supporting documents for six months

from the original date of receipt. Within

48 hours (Saturdays, Sundays and

official holidays excluded) after a

Federal, State, or local enforcement

official has made an authorized request

(for inspection and verification of the

hours-of-service requirements and the

accuracy of the driver’s records of duty

status), a motor carrier shall make

available all records of duty status and

supporting documents at the motor

carrier’s principal place of business.

(2) The driver shall retain a copy of

each record of duty status for the

previous 7 consecutive days that shall

be in his or her possession and available

for inspection while on duty.

6. Section 395.10 is added to read as

follows:

§ 395.10 Verification and record retention.

(a) Every motor carrier must have a

self-monitoring auditing system,

adequately described in writing, that

can be used effectively to verify the

driver’s hours of service and the

accuracy of the information contained

on the driver’s record of duty status.

The auditing system must be capable of

reproduction and an explanation of the

system must be available in written

form for inspection by authorized

Federal, State or local enforcement

personnel. The explanation of the

system must include:

(1) Identification of the supporting

documents, by common name, the

motor carrier uses to verify the accuracy

of the driver’s hours of service or record

of duty status;

(2) A description of how the system

is used; and

(3) The procedure used to promptly

notify a driver who has recorded

information inaccurately on a record of

duty status which is required by § 395.8

of this part; and

(4) The corrective action the motor

carrier takes or has taken to improve the

driver’s compliance with providing

accurate information.
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19467

(b)(1) The supporting document

auditing system’s procedural manual

must be available to all motor carrier

personnel with responsibility to control

or audit compliance with this part and

must be made available to the FHWA

and other appropriate enforcement

agencies for inspection upon authorized

request or demand. The FHWA and

other appropriate enforcement agencies

will only request inspection of the

written manuals at motor carriers’

principal places of business or other

terminal locations where records

required by this part are maintained.

The manual is not required to be

produced at roadside driver-vehicle

inspection locations.

(2) If the audit system can be

demonstrated to be effective to verify

the actual hours of service performed

and the accuracy of the driver’s record

of duty status, the motor carrier is not

required to maintain any additional

supporting documents, and, in the

absence of reasonably reliable

information supported by documentary

evidence to contradict the system found

to be effective, no demand will be made

for additional supporting documents the

motor carrier may maintain for other

purposes.

(c)(1) Each motor carrier who fails to

have a supporting document auditing

system in accordance with paragraphs

(a) and (b) of this section or fails to

provide the FHWA or other enforcement

officers with a written explanation of

the supporting document auditing

system (manual), will be responsible for

requiring every driver to obtain all

supporting documents from the

beginning of every trip to the end of

every trip, including intermediate

points during the trip. All supporting

documents must be made available for

inspection at the motor carrier’s location

and the FHWA or other enforcement

officers will use a reasonably sufficient

number, in the appropriate enforcement

agency’s discretion, to verify the

accuracy of records of duty status.

(2) Failure by a motor carrier to have

either a supporting document auditing

system, required by paragraphs (a) and

(b) of this section, or, in the absence of

the system, to require the driver to

obtain and forward to the motor carrier

every supporting document that is

provided to the driver during a trip, as

required by this section, may result in

monetary penalties or a compliance

order for failure to comply with the

supporting document auditing system

requirement. A failure by the motor

carrier to adequately control the drivers’

falsification of their records of duty

status may also result in a compliance

order. Failure to comply with such

order may subject a motor carrier to

civil or criminal penalties under 49

U.S.C. 521.

(d) In the absence of a verifiable and

effective record of duty status auditing

system, every motor carrier must require

every driver who is required to prepare

records of duty status to retain and

every driver must retain all supporting

documents containing reasonably

reliable references to date, time, or

location, which may come into the

possession of the driver in the ordinary

course of the driving operation. The

driver must provide the supporting

documents and the records of duty

status:

(1) To any duly authorized

enforcement official of Federal, State or

local government upon request or

demand; and

(2) To the motor carrier at the time the

corresponding record of duty status is

required to be submitted.

(e) The driver must identify the

supporting document required under

paragraph (d) of this section by adding

his or her name, and the time, date,

location and vehicle number, if those

items do not already appear on the

document. The driver’s signature

certifies that all entries required by this

section made by the driver are true and

correct.

(f) The driver must retain a copy of

each supporting document with the

record of duty status to which it relates

for the previous seven consecutive days

in his or her possession and available

for inspection while on duty. Exception.

The requirements of this paragraph do

not apply if the driver has submitted the

original record of duty status with the

supporting documents annexed to the

motor carrier following § 395.8(k)(1) of

this part.

(g) The motor carrier must identify

each supporting document received

from the driver under paragraph (d) of

this section, or from any other source

including self-generated documents, by

noting on the document the following

information, if the information does not

already appear on the document:

(1) The time, date or location of the

event that produced the document;

(2) The driver’s name; and

(3) The vehicle number (i.e., truck,

tractor, or coach).

(h) Retention of supporting

documents. Supporting documents for

each calendar month may be retained at

the driver’s home terminal or other

regular work reporting location until the

20th day of the succeeding calendar

month. Such documents must then be

forwarded to the carrier’s principal

place of business, or any location the

motor carrier chooses, where they must

be retained with all records of duty

status for six months from the original

date of receipt. Within 48 hours

(Saturdays, Sundays and official

holidays excluded) after a Federal, State,

or local enforcement official has made a

valid request or demand (for inspection

and verification of the hours of service

requirements and the accuracy of the

driver’s records of duty status), a motor

carrier must make available all records

of duty status, time records in cases of

100-air mile radius exception, and

supporting documents at the motor

carrier’s principal place of business.

(i) The FHWA may use any evidence

whether or not in the motor carrier’s

possession, to determine compliance

with hours of service requirements and

verify the accuracy of the drivers

records of duty status and the motor

carrier’s supporting document auditing

system. If the FHWA discovers that the

motor carrier’s system is ineffective,

misrepresented, or abused, the FHWA

may require the motor carrier to modify

its system or may require the motor

carrier to collect and maintain all

supporting documents as required by

paragraphs (d) through (h) of this

section. Civil or criminal penalties may

also apply if the motor carrier or driver

are determined to have misrepresented

or abused the system.

[Approved by the Office of

Management and Budget under control

number lllll]

[FR Doc. 98–10252 Filed 4–17–98; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

49 CFR Part 571

Federal Motor Vehicle Safety

Standards; Child Restraint Systems;

Denial of Petition for Rulemaking

AGENCY: National Highway Traffic

Safety Administration (NHTSA),

Department of Transportation.

ACTION: Denial of petition for

rulemaking.

SUMMARY: This document denies a

petition for rulemaking from The

Booster Seat Company Ltd., Hamilton,

New Zealand, requesting that NHTSA

amend the structural integrity

requirement of its Federal motor vehicle

safety standard on child restraint

systems so as to allow its product, a

belt-positioning booster seat made

entirely of polystyrene, to be

manufactured and sold in the United

States. The petitioner believes