Policy on the Retention of Supporting Documents and the Use of Electronic Mobile Communication/Tracking Technology in Assessing Motor Carriers' and Commercial Motor Vehicle Drivers' Compliance With the Hours of Service Regulations, 32984-32987 [2010-13901]

Download as PDF 32984 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Notices cprice-sewell on DSK8KYBLC1PROD with NOTICES FMCSA received 17 comments. Nine commenters supported NAAA, primarily because they are experiencing the same shortage of qualified CDL drivers described by NAAA in its application. Five commenters opposed NAAA’s application, including Advocates for Highway and Auto Safety and safety agencies of three States. The commenters pointed out that if this exemption were in place, NAAA drivers would be transporting hazardous materials more dangerous than those permitted by Section 393.3(f)(3)(v), and would be doing so without demonstrating basic competency in CMV operations. The drivers would also avoid two requirements for the HM endorsement: Successful completion of the written HM test required by 49 CFR 383.135, and a determination of ‘‘not a security threat,’’ by the Transportation Security Administration (TSA) pursuant to 49 CFR 383.141(b). The commenters also pointed out that NAAA failed to propose an alternative method of assessing the knowledge and skills of these CMV drivers, as required by 49 CFR 381.415(c)(6)–(c)(8). FMCSA found that NAAA failed to demonstrate how it would ensure that the operations of its members under the exemption would achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the exemption. USCHI U.S. Custom Harvesters Inc. (USCHI) is a trade association whose members engage in specialized farming operations during the harvest season. Custom harvesters typically travel from farm to farm using diesel-powered farm machinery to harvest crops for clients. Due to the time-sensitive nature of harvesting operations, custom harvesters typically operate for only a day or two at a farm and move quickly on to the next farm. In some localities, diesel fuel distributors are not equipped to transport diesel fuel, a hazardous material, to the fields as frequently as these operations require, so customharvesters bring commercial motor vehicles (CMVs) with them to transport the diesel fuel. They hire drivers to operate the CMVs, but the FMCSRs require that those operating CMVs transporting placardable quantities of diesel fuel have an HM endorsement on their CDL. USCHI asserts that the seasonal nature of custom-harvesting operations provides a very limited timeframe for the recruitment of the number of CDL drivers, with HM endorsement, needed by the customharvesting industry. Many potential drivers lack only an HM endorsement VerDate Mar<15>2010 13:40 Jun 09, 2010 Jkt 220001 on their CDL. USCHI asserts that too much time is consumed in taking the HM test, and obtaining TSA’s ‘‘not-asecurity-threat’’ clearance, to allow them to be available to drive HM CMV’s when the custom-harvesting season begins. USCHI asked FMCSA to conduct a pilot program under 49 CFR part 381 (subparts C and D) so that its members could demonstrate that their CMV drivers can transport placardable quantities of diesel fuel in support of custom-harvesting operations safely without obtaining an HM endorsement; but the USCHI pilot proposal failed to include alternative measures to ensure that safety would not deteriorate if their CMV drivers were allowed to haul HM without an HM endorsement. The design of the pilot program proposed by USCHI failed to satisfy the safety performance goals of the FMCSRs, as required by 49 CFR 381.400(c). Conclusion FMCSA carefully reviewed NAAA’s application for exemption and the public comments received on it, and also carefully reviewed USCHI’s suggestion for a pilot program. The Agency concluded that the NAAA application failed to demonstrate how it would ensure that the operations of its members under the exemption would achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the exemption. The Agency concluded that the USCHI suggestion for a pilot program failed to satisfy the safety performance goals of the FMCSRs, as required by 49 CFR 381.400(c). Accordingly, FMCSA denied NAAA’s application for exemption, and USCHI’s suggestion for a pilot program. Issued on: June 4, 2010. Larry W. Minor, Associate Administrator for Policy and Program Development. [FR Doc. 2010–13903 Filed 6–9–10; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2010–0168] Policy on the Retention of Supporting Documents and the Use of Electronic Mobile Communication/Tracking Technology in Assessing Motor Carriers’ and Commercial Motor Vehicle Drivers’ Compliance With the Hours of Service Regulations AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 ACTION: Notice of Regulatory Guidance and Policy Change. SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) provides notice to the motor carrier industry and the public of regulatory guidance and policy changes regarding the retention of supporting documents and the use of electronic mobile communication/tracking technology in assessing motor carriers’ and commercial motor vehicle drivers’ compliance with the hours of service regulations. DATES: Effective Date: This change in policy is effective July 12, 2010. Comments should be submitted on or before July 9, 2010. Late-filed comments will be considered to the extent practicable. ADDRESSES: You may submit comments (identified by Docket Number FMCSA– 2010–0168) using any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: West Building, Ground Floor, Room W12– 140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays. • Fax: 202–493–2251. Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s Privacy Act Statement for the Federal Docket Management System published in the Federal Register on January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/ 2008/pdf/E8-785.pdf. FOR FURTHER INFORMATION CONTACT: Mr. David Mancl, Team Leader, Enforcement and Compliance Division, MC–ECE, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202–493–0442. Web site address: http://www.fmcsa.dot.gov. SUPPLEMENTARY INFORMATION: Background In 1997, the Federal Highway Administration (FHWA), FMCSA’s predecessor agency, issued a policy memorandum recognizing that advanced technologies, which were E:\FR\FM\10JNN1.SGM 10JNN1 cprice-sewell on DSK8KYBLC1PROD with NOTICES Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Notices emerging and being implemented within the industry, offered an opportunity to improve operational and safety performance. To promote and encourage the use of these new technologies in the industry’s operations and overall safety management, the Agency limited the use of the data and records generated by advanced technologies for checking hours of service compliance during reviews and regulatory enforcement actions. After more than a decade, the Agency’s policy achieved its purpose; the once emerging technologies are today a widely accepted and essential component of the industry’s logistics, operations and safety management systems. FMCSA therefore rescinded the 1997 policy on November 19, 2008, effective December 19, 2008. (73 FR 69717) On December 24, 2008, the Associate Administrator for Enforcement and Program Delivery issued an internal Agency policy memorandum titled: ‘‘Use of Advanced Information Technology Policy.’’ This memorandum informed FMCSA and State enforcement personnel that FMCSA would exercise its full statutory authority under 49 U.S.C. 504(c) to inspect and copy records of a motor carrier. If a motor carrier uses Global Positioning Systems (GPS) or other electronic mobile communication/tracking technology during the ordinary course of its business, FMCSA has the authority to request these records and use them during the course of an investigation. FMCSA considers electronic mobile communication/tracking records to be supporting documents, as they record the time, date, and/or location of motor vehicles and/or drivers. Since December 2008, there has been some confusion concerning FMCSA’s use of these technologies for enforcement purposes and the requirements for motor carriers to retain and produce related records upon demand. The Agency has identified the need for further guidance regarding the use of electronic mobile communication/tracking records to verify compliance with 49 CFR Part 395, Hours of Service Drivers. Today’s Policy, therefore, supersedes the December 2008 Policy. Following up its commitment as stated in the April 2010 final rule, Electronic On-Board Recorders (EOBRs) for Hours-of-Service (HOS) Compliance, 75 FR 17208, FMCSA is drafting a notice of proposed rulemaking (NPRM) to further advance motor carrier safety through improved HOS compliance. This NPRM will have three components: VerDate Mar<15>2010 13:40 Jun 09, 2010 Jkt 220001 (1) Proposing that EOBRs be required for considerably more motor carriers and drivers, (2) proposing that motor carriers be required to develop and maintain systematic and effective HOS oversight for their drivers, and (3) proposing, pursuant to Sec. 113 of the Hazardous Materials Transportation Authorization Act of 1994, title I of Public Law 103– 311, 108 Stat. 1673 (Aug. 26, 1994) (HMTAA), requirements for motor carriers to retain HOS supporting documents. The Agency anticipates publishing the NPRM by the end of 2010 and publishing a final rule within 24 months. In clarifying current enforcement practices, today’s guidance moves toward the anticipated NPRM. Policy This Policy is intended to be used by enforcement personnel as guidance in making enforcement decisions. Nothing in this Policy is intended to alter a motor carrier’s duty to ensure that its employees and agents are complying with all applicable regulations. A motor carrier is responsible for the acts and omissions of its employees and agents with respect to regulatory compliance. Previous policy statements have used the terms ‘‘GPS’’ and ‘‘Advanced Information Technology’’ to describe electronic mobile communication/ tracking technology. FMCSA recognizes that these terms are no longer adequate to describe electronic mobile communication/tracking technology. Such technologies can no longer be considered ‘‘advanced’’ as they are now widely accepted and used in the industry. Likewise, electronic mobile communication/tracking systems may rely on technology other than GPS to determine the time, date, and/or location of motor vehicles and/or drivers. For ease of discussion in this Policy, the use of the phrases ‘‘electronic mobile communication/tracking technology,’’ ‘‘electronic mobile communication/tracking systems,’’ and ‘‘electronic mobile communication/ tracking records’’ shall be deemed to include those technologies and records that allow a motor carrier to identify the location of a motor vehicle or driver, or that allow a motor carrier to send or receive messages to or from its drivers. The application of this Policy to a technology or record does not depend on the method of communication or the technology used to obtain the time and/ or position location information. PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 32985 Supporting Documents Requirements for Motor Carriers Without Qualifying Electronic Mobile Communication/ Tracking Technology Supporting documents are motor carriers’ records that are maintained in the ordinary course of business and may be used by the motor carrier to verify information recorded on the driver’s RODS. On April 4, 1997, as part of a set of guidance and policy statements, FHWA, FMCSA’s predecessor agency, published a list of more than thirty examples of supporting documents that motor carriers needed to retain pursuant to 49 CFR 395.8(k)(1) (62 FR 16370, 16425) (Guidance Question 10). Based on its enforcement experience since 1997, FMCSA recognizes that certain documents in that list are not regularly used by enforcement staff to verify the accuracy of records of duty status (RODS) and that requiring motor carriers to retain these documents is no longer necessary. FMCSA will therefore no longer consider the following to be ‘‘supporting documents’’ and will not require motor carriers to maintain and produce such documents pursuant to 49 CFR 395.8(k)(1): • Driver call-in records; • International registration plan receipts; • International fuel tax agreement receipts; • Trip permits; • Cash advance receipts; and • Driver fax reports (cover sheets). The Agency rescinds the list of examples of supporting documents in the April 4, 1997, Guidance Question 10 and provides the following updated, shorter list: Bills of lading, carrier pros, freight bills, dispatch records, electronic mobile communication/tracking records (as explained below), gate record receipts, weigh/scale tickets, fuel receipts, fuel billing statements, toll receipts, toll billing statements, port of entry receipts, delivery receipts, lumper receipts, interchange and inspection reports, lessor settlement sheets, over/ short and damage reports, agricultural inspection reports, driver and vehicle examination reports, crash reports, telephone billing statements, credit card receipts, border crossing reports, customs declarations, traffic citations and overweight/oversize permits and traffic citations. Motor carriers without qualifying electronic mobile communication/ tracking technology must continue to retain other supporting documents that may be used to verify information on the driver’s RODS. If the motor carrier has multiple offices or terminals and these records are maintained at motor E:\FR\FM\10JNN1.SGM 10JNN1 32986 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Notices cprice-sewell on DSK8KYBLC1PROD with NOTICES carrier locations other than the motor carrier’s principal place of business, see Regulatory Guidance on the Definition of ‘‘Principal Place of Business,’’ July 29, 2009 (74 FR 37653), they must be forwarded to the principal place of business, or other location specified, upon a request by an authorized FMCSA representative or State official in accordance with 49 CFR 390.29. Supporting Documents Requirements for Motor Carriers That Use Qualifying Electronic Mobile Communication/ Tracking Technology If a motor carrier uses a paper RODS system and also uses electronic mobile communication/tracking technology on specific vehicles and can produce electronic mobile communication/ tracking records acceptable to the Agency under this Policy, FMCSA will permit the motor carrier to maintain and submit fewer paper supporting documents. Whether the electronic mobile communication/tracking records are acceptable to the Agency under this Policy or not, the investigator has the authority to demand those records, and he or she may accept them in either printed or electronic form from the motor carrier. These records will be used to assess motor carrier and commercial motor vehicle driver compliance with the HOS regulations and for other evaluations into the safety performance or regulatory compliance of the motor carrier. Electronic mobile communication/tracking records may also be used by the Agency as evidence in any proceeding to enforce Federal motor carrier statutes and regulations. For each vehicle a motor carrier uses for which the motor carrier can produce electronic mobile communication/ tracking records acceptable under this Policy, the motor carrier is no longer required to maintain or produce the following supporting documents pursuant to 49 CFR 395.8(k)(1) for the driver of that vehicle: • Gate record receipts; • Weigh/scale tickets; • Port of entry receipts; • Delivery receipts; • Toll receipts; • Agricultural inspection reports; • Over/short and damage reports; • Driver and vehicle examination reports; 1 • Traffic citations; • Overweight/oversize reports and citations; 1 This notice does not affect motor carriers’ duty to maintain driver and vehicle examination reports in accordance with the retention requirements of 49 CFR part 396. See 49 CFR 396.11(c)(2) and 396.9(d)(3)(ii). VerDate Mar<15>2010 13:40 Jun 09, 2010 Jkt 220001 • Carrier pros; • Credit card receipts; • Border Crossing Reports; • Customs declarations; and • Telephone billing statements. Motor carriers that seek to take advantage of the less burdensome supporting documents retention requirements available under this Policy are precluded in HOS enforcement proceedings from challenging the accuracy of their own electronic mobile communication/tracking records. Qualifying Electronic Mobile Communication/Tracking Technology For each vehicle for which a motor carrier seeks to take advantage of the less burdensome supporting documents retention requirements available under this Policy, the motor carrier must show that the electronic mobile communication/tracking records have the characteristics below: Positioning Frequency: The system must be set up to communicate position location at a rate of at least one time per hour, per vehicle, while the vehicle is in motion. Vehicle Integration: The system must be integrally synchronized with the vehicle. Report Functionality: The system must be capable of generating upon demand a document/record, either printed (paper) or electronically rendered (spreadsheet, portable document format, tagged image file format or other commonly available software format), showing the required Report Content. Report Content: The position history report must include, at a minimum, vehicle identification information, date, time, proximity location (reference points), and latitude and longitude for each position communication. Retention: Motor carriers must maintain position history reports for a period of six months in accordance with 49 CFR 395.8(k)(1). If the motor carrier’s electronic mobile communication/tracking records for a particular vehicle do not qualify under this Policy, the motor carrier must maintain all supporting documents that may be used to assess motor carrier and commercial motor vehicle driver compliance with the HOS regulations, pursuant to 49 CFR 395.8(k)(1). A motor carrier that uses electronic mobile communication/tracking technology in the ordinary course of business for any purpose is expected to include the use of records and information generated by that technology in its HOS oversight activities. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 Related Information A motor carrier’s responsibility to ensure the accuracy of its drivers’ RODS is not limited by the list of examples of supporting documents in this Policy. A motor carrier is liable for false RODS submitted by its drivers and other HOS violations if the motor carrier had or should have had the means by which to detect the violations, regardless of whether the means to detect the violations is included in the list of examples of supporting documents. All motor carriers that use electronic mobile communications/tracking technology, whether or not such technology is qualifying technology under this Policy, must continue to retain data generated by that system in the ordinary course of business. The motor carrier is not required, for purposes of responding to investigations by FMCSA or State enforcement personnel, to convert the data from the format in which it is ordinarily retained. However, if the motor carrier receives in the ordinary course of business electronic or printed reports or other communications in which the data is converted to a more readable or usable format, the motor carrier must retain such reports or communications and provide them to investigators upon demand. If a motor carrier denies the Agency access to its supporting documents, including, without limitation, electronic mobile communication/tracking records, the motor carrier’s action shall be considered a denial of access under 49 U.S.C. 521(b)(2)(E). As with all supporting documents, a failure to maintain electronic mobile communication/tracking records may be cited under 49 CFR 395.8(k)(1). FMCSA recognizes that motor carriers may use electronic mobile communication/tracking technologies for applications other than recording the time, date and/or location of a motor vehicle and/or driver. An electronic record of vehicle performance trends and events such as speeding or hardbraking, or vehicle performance measures such as fuel consumption (MPG) or engine speed (RPM), which may be captured through on-board sensors and transmitted via electronic mobile communication/tracking technology, is not required to be maintained as a supporting document under 49 CFR Part 395. However, if a triggering event or performance measure creates a record of the time, date, and/ or location of a motor vehicle and/or driver, then the time, date and/or location of that event or measure must be retained. E:\FR\FM\10JNN1.SGM 10JNN1 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Notices Other statutes and/or regulations may require the retention of certain listed documents. This Policy does not affect a motor carrier’s responsibility to comply with these other statutes and/or regulations. This Policy is not intended to address motor carriers that use EOBRs under the terms of a remedial directive and EOBRs or Automatic On-Board Recording Devices (AOBRDs) under the terms of a settlement agreement. Carriers subject to a remedial directive or settlement agreement must comply with the terms of that directive or agreement, including requirements to retain particular documents. Issued on: June 4, 2010. William A. Quade, Associate Administrator for Enforcement and Program Delivery. [FR Doc. 2010–13901 Filed 6–9–10; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Orders Limiting Scheduled Operations at John F. Kennedy International Airport and Newark Liberty International Airport AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of limited waiver of the slot usage requirement. cprice-sewell on DSK8KYBLC1PROD with NOTICES SUMMARY: This action announces a limited waiver of the requirements to use Operating Authorizations (slots) at John F. Kennedy International Airport (JFK) and Newark Liberty International Airport (EWR). The FAA will treat as used any Operating Authorization that was scheduled for an operation between JFK or EWR and points in Europe from April 14 through April 26, 2010. The FAA also will grant similar relief on an individual carrier basis following notification for scheduled flights between JFK or EWR and points in Europe canceled due to volcanic ash from April 27 through October 30, 2010. This policy is effective from April 14, 2010 through October 30, 2010. DATES: Effective Date: Effective upon publication. FOR FURTHER INFORMATION CONTACT: Robert Hawks, Office of the Chief Counsel, Regulations Division, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267–7143; e-mail: rob.hawks@faa.gov. SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 13:40 Jun 09, 2010 Jkt 220001 Background On April 14, 2010, an eruption of the ¨ Eyjafjallajokull volcano in Iceland began releasing large quantities of volcanic ash into the air. The resulting volcanic ash cloud spread over a large area of Europe before dissipating. The volcanic ash cloud resulted in widespread airspace restrictions and grounding of aircraft across much of Europe due to safety concerns. Air carriers responded by canceling tens of thousands of flights during an approximately one-week period. Airspace restrictions were relaxed as the volcanic ash cloud dissipated, and most European airspace restrictions were lifted by the evening of April 20. Recovery of normal operations took several days but appeared to return normal at all airports by April 27. Although volcanic ash did not affect aircraft operation within U.S. airspace, the flight cancellations impacted U.S. airports that serve as international gateways, including slot-controlled JFK and EWR. U.S. and foreign carriers canceled transatlantic operations due to airspace closures and had to reposition aircraft before resuming scheduled operations after airspace reopened. After the April airspace closures, volcanic ash has caused intermittent European airspace and airport closures resulting in transatlantic flight cancellations, but these closures have been limited in scope and duration. The ¨ Eyjafjallajokull volcano is predicted to continue erupting over the next several months, and volcanic ash may disrupt aircraft operations throughout this period. By letter dated May 17, 2010, Continental Airlines has asked the FAA to grant a limited waiver of the minimum usage requirement at EWR through the summer scheduling season ending on October 30, 2010, due to the highly unusual and unpredictable nature of airspace and airport closures. Under the orders limiting scheduled operations at the airports, slots must be used at least 80 percent of the time. Slots not meeting the minimum usage rules will be withdrawn.1 The FAA may grant a waiver from the minimum usage requirements in highly unusual and unpredictable conditions that are beyond the control of the carrier and affect carrier operations for a period of five or more consecutive days. Statement of Policy The FAA has determined these unusual circumstances meet the criteria for a limited waiver of the minimum slot usage. The FAA does not intend to 1 74 FR 51648 (Oct. 7, 2009) (EWR); 74 FR 51650 (Oct. 7, 2009) (JFK). PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 32987 routinely grant general waivers to the usage requirements. Rules allow for up to 20 percent nonuse, including planned and unplanned cancellations. These rules are expected to accommodate routine weather and other cancellations under all but the most unusual circumstances. Accordingly, the FAA will grant relief from the use-or-lose requirements for all carriers operating scheduled flights at JFK and EWR to or from points in Europe during the period from April 14 through 26, 2010. The FAA will treat as used any Operating Authorization that was scheduled for an operation between JFK or EWR and points in Europe from April 14 through April 26, 2010. Additionally, the FAA recognizes some carriers have canceled scheduled flights between JFK or EWR and points in Europe since April 26, and further ashrelated cancellations may occur over the coming months. The FAA will grant similar relief on an individual carrier basis for scheduled flights between JFK or EWR and points in Europe canceled due to volcanic ash after April 26. Carriers should advise the FAA Slot Administration Office of volcanic-ashrelated cancellations by e-mail to 7-awaslotadmin@faa.gov to obtain relief. The FAA may revise this policy if there are widespread or long-term impacts similar to the April airspace closures. Issued in Washington, DC, on June 5, 2010. Rebecca B. MacPherson, Associate Chief Counsel for Regulations. [FR Doc. 2010–13994 Filed 6–9–10; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Summary Notice No. PE–2010–28] Petition for Exemption; Summary of Petition Received AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of petition for exemption received. SUMMARY: This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public’s awareness of, and participation in, this aspect of FAA’s regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition. DATES: Comments on this petition must identify the petition docket number E:\FR\FM\10JNN1.SGM 10JNN1

Agencies

[Federal Register Volume 75, Number 111 (Thursday, June 10, 2010)]
[Notices]
[Pages 32984-32987]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13901]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2010-0168]


Policy on the Retention of Supporting Documents and the Use of 
Electronic Mobile Communication/Tracking Technology in Assessing Motor 
Carriers' and Commercial Motor Vehicle Drivers' Compliance With the 
Hours of Service Regulations

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

ACTION: Notice of Regulatory Guidance and Policy Change.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
provides notice to the motor carrier industry and the public of 
regulatory guidance and policy changes regarding the retention of 
supporting documents and the use of electronic mobile communication/
tracking technology in assessing motor carriers' and commercial motor 
vehicle drivers' compliance with the hours of service regulations.

DATES: Effective Date: This change in policy is effective July 12, 
2010. Comments should be submitted on or before July 9, 2010. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments (identified by Docket Number FMCSA-
2010-0168) using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316), or 
you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: Mr. David Mancl, Team Leader, 
Enforcement and Compliance Division, MC-ECE, Federal Motor Carrier 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Telephone: 202-493-0442. Web site address: http://www.fmcsa.dot.gov.

SUPPLEMENTARY INFORMATION: 

Background

    In 1997, the Federal Highway Administration (FHWA), FMCSA's 
predecessor agency, issued a policy memorandum recognizing that 
advanced technologies, which were

[[Page 32985]]

emerging and being implemented within the industry, offered an 
opportunity to improve operational and safety performance. To promote 
and encourage the use of these new technologies in the industry's 
operations and overall safety management, the Agency limited the use of 
the data and records generated by advanced technologies for checking 
hours of service compliance during reviews and regulatory enforcement 
actions.
    After more than a decade, the Agency's policy achieved its purpose; 
the once emerging technologies are today a widely accepted and 
essential component of the industry's logistics, operations and safety 
management systems. FMCSA therefore rescinded the 1997 policy on 
November 19, 2008, effective December 19, 2008. (73 FR 69717)
    On December 24, 2008, the Associate Administrator for Enforcement 
and Program Delivery issued an internal Agency policy memorandum 
titled: ``Use of Advanced Information Technology Policy.'' This 
memorandum informed FMCSA and State enforcement personnel that FMCSA 
would exercise its full statutory authority under 49 U.S.C. 504(c) to 
inspect and copy records of a motor carrier. If a motor carrier uses 
Global Positioning Systems (GPS) or other electronic mobile 
communication/tracking technology during the ordinary course of its 
business, FMCSA has the authority to request these records and use them 
during the course of an investigation. FMCSA considers electronic 
mobile communication/tracking records to be supporting documents, as 
they record the time, date, and/or location of motor vehicles and/or 
drivers.
    Since December 2008, there has been some confusion concerning 
FMCSA's use of these technologies for enforcement purposes and the 
requirements for motor carriers to retain and produce related records 
upon demand. The Agency has identified the need for further guidance 
regarding the use of electronic mobile communication/tracking records 
to verify compliance with 49 CFR Part 395, Hours of Service Drivers. 
Today's Policy, therefore, supersedes the December 2008 Policy.
    Following up its commitment as stated in the April 2010 final rule, 
Electronic On-Board Recorders (EOBRs) for Hours-of-Service (HOS) 
Compliance, 75 FR 17208, FMCSA is drafting a notice of proposed 
rulemaking (NPRM) to further advance motor carrier safety through 
improved HOS compliance. This NPRM will have three components: (1) 
Proposing that EOBRs be required for considerably more motor carriers 
and drivers, (2) proposing that motor carriers be required to develop 
and maintain systematic and effective HOS oversight for their drivers, 
and (3) proposing, pursuant to Sec. 113 of the Hazardous Materials 
Transportation Authorization Act of 1994, title I of Public Law 103-
311, 108 Stat. 1673 (Aug. 26, 1994) (HMTAA), requirements for motor 
carriers to retain HOS supporting documents. The Agency anticipates 
publishing the NPRM by the end of 2010 and publishing a final rule 
within 24 months. In clarifying current enforcement practices, today's 
guidance moves toward the anticipated NPRM.

Policy

    This Policy is intended to be used by enforcement personnel as 
guidance in making enforcement decisions. Nothing in this Policy is 
intended to alter a motor carrier's duty to ensure that its employees 
and agents are complying with all applicable regulations. A motor 
carrier is responsible for the acts and omissions of its employees and 
agents with respect to regulatory compliance.
    Previous policy statements have used the terms ``GPS'' and 
``Advanced Information Technology'' to describe electronic mobile 
communication/tracking technology. FMCSA recognizes that these terms 
are no longer adequate to describe electronic mobile communication/
tracking technology. Such technologies can no longer be considered 
``advanced'' as they are now widely accepted and used in the industry. 
Likewise, electronic mobile communication/tracking systems may rely on 
technology other than GPS to determine the time, date, and/or location 
of motor vehicles and/or drivers. For ease of discussion in this 
Policy, the use of the phrases ``electronic mobile communication/
tracking technology,'' ``electronic mobile communication/tracking 
systems,'' and ``electronic mobile communication/tracking records'' 
shall be deemed to include those technologies and records that allow a 
motor carrier to identify the location of a motor vehicle or driver, or 
that allow a motor carrier to send or receive messages to or from its 
drivers. The application of this Policy to a technology or record does 
not depend on the method of communication or the technology used to 
obtain the time and/or position location information.

Supporting Documents Requirements for Motor Carriers Without Qualifying 
Electronic Mobile Communication/Tracking Technology

    Supporting documents are motor carriers' records that are 
maintained in the ordinary course of business and may be used by the 
motor carrier to verify information recorded on the driver's RODS. On 
April 4, 1997, as part of a set of guidance and policy statements, 
FHWA, FMCSA's predecessor agency, published a list of more than thirty 
examples of supporting documents that motor carriers needed to retain 
pursuant to 49 CFR 395.8(k)(1) (62 FR 16370, 16425) (Guidance Question 
10). Based on its enforcement experience since 1997, FMCSA recognizes 
that certain documents in that list are not regularly used by 
enforcement staff to verify the accuracy of records of duty status 
(RODS) and that requiring motor carriers to retain these documents is 
no longer necessary. FMCSA will therefore no longer consider the 
following to be ``supporting documents'' and will not require motor 
carriers to maintain and produce such documents pursuant to 49 CFR 
395.8(k)(1):
     Driver call-in records;
     International registration plan receipts;
     International fuel tax agreement receipts;
     Trip permits;
     Cash advance receipts; and
     Driver fax reports (cover sheets).
    The Agency rescinds the list of examples of supporting documents in 
the April 4, 1997, Guidance Question 10 and provides the following 
updated, shorter list: Bills of lading, carrier pros, freight bills, 
dispatch records, electronic mobile communication/tracking records (as 
explained below), gate record receipts, weigh/scale tickets, fuel 
receipts, fuel billing statements, toll receipts, toll billing 
statements, port of entry receipts, delivery receipts, lumper receipts, 
interchange and inspection reports, lessor settlement sheets, over/
short and damage reports, agricultural inspection reports, driver and 
vehicle examination reports, crash reports, telephone billing 
statements, credit card receipts, border crossing reports, customs 
declarations, traffic citations and overweight/oversize permits and 
traffic citations.
    Motor carriers without qualifying electronic mobile communication/
tracking technology must continue to retain other supporting documents 
that may be used to verify information on the driver's RODS. If the 
motor carrier has multiple offices or terminals and these records are 
maintained at motor

[[Page 32986]]

carrier locations other than the motor carrier's principal place of 
business, see Regulatory Guidance on the Definition of ``Principal 
Place of Business,'' July 29, 2009 (74 FR 37653), they must be 
forwarded to the principal place of business, or other location 
specified, upon a request by an authorized FMCSA representative or 
State official in accordance with 49 CFR 390.29.

Supporting Documents Requirements for Motor Carriers That Use 
Qualifying Electronic Mobile Communication/Tracking Technology

    If a motor carrier uses a paper RODS system and also uses 
electronic mobile communication/tracking technology on specific 
vehicles and can produce electronic mobile communication/tracking 
records acceptable to the Agency under this Policy, FMCSA will permit 
the motor carrier to maintain and submit fewer paper supporting 
documents.
    Whether the electronic mobile communication/tracking records are 
acceptable to the Agency under this Policy or not, the investigator has 
the authority to demand those records, and he or she may accept them in 
either printed or electronic form from the motor carrier. These records 
will be used to assess motor carrier and commercial motor vehicle 
driver compliance with the HOS regulations and for other evaluations 
into the safety performance or regulatory compliance of the motor 
carrier. Electronic mobile communication/tracking records may also be 
used by the Agency as evidence in any proceeding to enforce Federal 
motor carrier statutes and regulations.
    For each vehicle a motor carrier uses for which the motor carrier 
can produce electronic mobile communication/tracking records acceptable 
under this Policy, the motor carrier is no longer required to maintain 
or produce the following supporting documents pursuant to 49 CFR 
395.8(k)(1) for the driver of that vehicle:
     Gate record receipts;
     Weigh/scale tickets;
     Port of entry receipts;
     Delivery receipts;
     Toll receipts;
     Agricultural inspection reports;
     Over/short and damage reports;
     Driver and vehicle examination reports; \1\
---------------------------------------------------------------------------

    \1\ This notice does not affect motor carriers' duty to maintain 
driver and vehicle examination reports in accordance with the 
retention requirements of 49 CFR part 396. See 49 CFR 396.11(c)(2) 
and 396.9(d)(3)(ii).
---------------------------------------------------------------------------

     Traffic citations;
     Overweight/oversize reports and citations;
     Carrier pros;
     Credit card receipts;
     Border Crossing Reports;
     Customs declarations; and
     Telephone billing statements.
    Motor carriers that seek to take advantage of the less burdensome 
supporting documents retention requirements available under this Policy 
are precluded in HOS enforcement proceedings from challenging the 
accuracy of their own electronic mobile communication/tracking records.

Qualifying Electronic Mobile Communication/Tracking Technology

    For each vehicle for which a motor carrier seeks to take advantage 
of the less burdensome supporting documents retention requirements 
available under this Policy, the motor carrier must show that the 
electronic mobile communication/tracking records have the 
characteristics below:
    Positioning Frequency: The system must be set up to communicate 
position location at a rate of at least one time per hour, per vehicle, 
while the vehicle is in motion.
    Vehicle Integration: The system must be integrally synchronized 
with the vehicle.
    Report Functionality: The system must be capable of generating upon 
demand a document/record, either printed (paper) or electronically 
rendered (spreadsheet, portable document format, tagged image file 
format or other commonly available software format), showing the 
required Report Content.
    Report Content: The position history report must include, at a 
minimum, vehicle identification information, date, time, proximity 
location (reference points), and latitude and longitude for each 
position communication.
    Retention: Motor carriers must maintain position history reports 
for a period of six months in accordance with 49 CFR 395.8(k)(1).
    If the motor carrier's electronic mobile communication/tracking 
records for a particular vehicle do not qualify under this Policy, the 
motor carrier must maintain all supporting documents that may be used 
to assess motor carrier and commercial motor vehicle driver compliance 
with the HOS regulations, pursuant to 49 CFR 395.8(k)(1). A motor 
carrier that uses electronic mobile communication/tracking technology 
in the ordinary course of business for any purpose is expected to 
include the use of records and information generated by that technology 
in its HOS oversight activities.

Related Information

    A motor carrier's responsibility to ensure the accuracy of its 
drivers' RODS is not limited by the list of examples of supporting 
documents in this Policy. A motor carrier is liable for false RODS 
submitted by its drivers and other HOS violations if the motor carrier 
had or should have had the means by which to detect the violations, 
regardless of whether the means to detect the violations is included in 
the list of examples of supporting documents.
    All motor carriers that use electronic mobile communications/
tracking technology, whether or not such technology is qualifying 
technology under this Policy, must continue to retain data generated by 
that system in the ordinary course of business. The motor carrier is 
not required, for purposes of responding to investigations by FMCSA or 
State enforcement personnel, to convert the data from the format in 
which it is ordinarily retained. However, if the motor carrier receives 
in the ordinary course of business electronic or printed reports or 
other communications in which the data is converted to a more readable 
or usable format, the motor carrier must retain such reports or 
communications and provide them to investigators upon demand.
    If a motor carrier denies the Agency access to its supporting 
documents, including, without limitation, electronic mobile 
communication/tracking records, the motor carrier's action shall be 
considered a denial of access under 49 U.S.C. 521(b)(2)(E). As with all 
supporting documents, a failure to maintain electronic mobile 
communication/tracking records may be cited under 49 CFR 395.8(k)(1).
    FMCSA recognizes that motor carriers may use electronic mobile 
communication/tracking technologies for applications other than 
recording the time, date and/or location of a motor vehicle and/or 
driver. An electronic record of vehicle performance trends and events 
such as speeding or hard-braking, or vehicle performance measures such 
as fuel consumption (MPG) or engine speed (RPM), which may be captured 
through on-board sensors and transmitted via electronic mobile 
communication/tracking technology, is not required to be maintained as 
a supporting document under 49 CFR Part 395. However, if a triggering 
event or performance measure creates a record of the time, date, and/or 
location of a motor vehicle and/or driver, then the time, date and/or 
location of that event or measure must be retained.

[[Page 32987]]

    Other statutes and/or regulations may require the retention of 
certain listed documents. This Policy does not affect a motor carrier's 
responsibility to comply with these other statutes and/or regulations.
    This Policy is not intended to address motor carriers that use 
EOBRs under the terms of a remedial directive and EOBRs or Automatic 
On-Board Recording Devices (AOBRDs) under the terms of a settlement 
agreement. Carriers subject to a remedial directive or settlement 
agreement must comply with the terms of that directive or agreement, 
including requirements to retain particular documents.

    Issued on: June 4, 2010.
William A. Quade,
Associate Administrator for Enforcement and Program Delivery.
[FR Doc. 2010-13901 Filed 6-9-10; 8:45 am]
BILLING CODE 4910-EX-P