Regulatory Guidance Concerning Electronic Signatures and Documents, 411-414 [2010-33238]

Download as PDF Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices 2. Air: Clean Air Act [42 U.S.C. 7401– 7671(q)]. 3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]; Landscaping and Scenic Enhancement (Wildflowers) [23 SUPPLEMENTARY INFORMATION: Notice is U.S.C. 319]. hereby given that the FHWA has taken 4. Wildlife: Endangered Species Act final agency actions subject to 23 U.S.C. [16 U.S.C. 1531–1544 and Section 139(l)(1) by issuing approvals for the 1536]; Marine Mammal Protection Act following highway project in the State [16 U.S.C. 1361]; Fish and Wildlife of Alaska: Project Number ACSTP– Coordination Act [16 U.S.C. 661– 0001(277)/56047; Project Location: The 667(d)]; Migratory Bird Treaty Act [16 KAC Project (Northern Access-Erickson U.S.C. 703–712]. Alternative with the Southern 5. Historic and Cultural Resources: Alignment). The project is planned to be Section 106 of the National Historic constructed in two phases. Phase 1 Preservation Act of 1966, as amended construction is a two lane facility with [16 U.S.C. 470(f) et seq.]; Archeological a minimum 8,200-foot bridge length which begins at the intersection of Point Resources Protection Act of 1977 [16 MacKenzie Road and Burma Road in the U.S.C. 470(aa)–470(ii)]; Archeological and Historic Preservation Act [16 U.S.C. Mat-Su, and follows Point MacKenzie 469–469(c)]; Native American Grave Road southward approximately 9.5 Protection and Repatriation Act miles to the Port MacKenzie District boundary. It then diverges east on a new (NAGPRA) [25 U.S.C. 3001–3013]. 6. Social and Economic: Civil Rights alignment and loops north of Lake Act of 1964 [42 U.S.C. 2000(d)– Lorraine before making a broad turn 2000(d)(1)]; American Indian Religious southward to the western bluff of Knik Freedom Act [42 U.S.C. 1996]; Farmland Arm. The crossing of the Knik Arm Protection Policy Act (FPPA) [7 U.S.C. follows the Southern Alignment to east side, south along the bluffs, then follows 4201–4209]. 7. Wetlands and Water Resources: the boundaries of Elmendorf Air Force Clean Water Act (Section 404, Section Base and the Port of Anchorage. The 401, Section 319) [33 U.S.C. 1251– initial connection to downtown 1377]; Land and Water Conservation Anchorage will go under Government Hill using the Erickson Street alternative Fund (LWCF) [16 U.S.C. 4601–4604]; Safe Drinking Water Act (SDWA) [42 with a cut and cover tunnel and U.S.C. 300(f)–300(j)(6)]; Rivers and connections to A and C Streets. When Harbors Act of 1899 [33 U.S.C. 401– traffic warrants Phase 2 will be 406]; Wild and Scenic Rivers Act [16 constructed, which includes widening U.S.C. 1271–1287]; Emergency the roadway to four lanes and Wetlands Resources Act [16 U.S.C. constructing a connection across Ship 3921, 3931]; Wetlands Mitigation [23 Creek to Ingra and Gambell Streets. U.S.C. 103(b)(6)(M) and 133(b)(11)]; The actions by the Federal agencies, Flood Disaster Protection Act, 42 U.S.C. and the laws under which such actions 4001–4128. were taken, are described in the Final 8. Executive Orders: E.O. 11990 Environmental Impact Statement (FEIS)/ Protection of Wetlands; E.O. 11988 Final Section 4(f) Evaluation for the Floodplain Management; E.O. 12898, project, approved on December 22, Federal Actions to Address 2007, in the FHWA Record of Decision Environmental Justice in Minority (ROD) issued on December 15, 2010, and in other documents in the FHWA or Populations and Low Income Populations; E.O. 11593 Protection and KABATA project files. The FEIS, ROD, Enhancement of Cultural Resources; and other project records are available by contacting the FHWA or KABATA at E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; E.O. 13175 the addresses provided above. The Consultation and Coordination with FHWA FEIS and ROD can be viewed Indian Tribal Governments; E.O. 11514 and downloaded from the project Web site at http://www.knikarmbridge.com or Protection and Enhancement of viewed at the addresses provided above. Environmental Quality; E.O. 13112 Invasive Species. This notice applies to all Federal agency decisions as of the issuance date (Catalog of Federal Domestic Assistance of this notice and all laws under which Program Number 20.205, Highway Planning such actions were taken, including but and Construction. The regulations implementing Executive Order 12372 not limited to: regarding intergovernmental consultation on 1. General: National Environmental Federal programs and activities apply to this Policy Act (NEPA) [42 U.S.C. 4321– program.) 4351]; Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128]. Authority: 23 U.S.C. 139(l)(1). jlentini on DSKJ8SOYB1PROD with NOTICES Authority (KABATA), 550 West 7th Avenue, Suite 1850, Anchorage, Alaska 99501; office hours 8 a.m. to 5 p.m. (AST), phone (907) 269–6698; e-mail andrew.niemic@alaska.gov. VerDate Mar<15>2010 14:35 Jan 03, 2011 Jkt 223001 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 411 Issued on: December 16, 2010. Sandra Garcia-Aline, Assistant Division Administrator, Juneau, Alaska. [FR Doc. 2010–33085 Filed 1–3–11; 8:45 am] BILLING CODE 4910–RY–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration Regulatory Guidance Concerning Electronic Signatures and Documents Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of regulatory guidance. AGENCY: FMCSA issues regulatory guidance concerning the use of electronic signatures and documents to comply with FMCSA regulations. This guidance provides the motor carrier industry, Federal, State, and local motor carrier enforcement officials, and other interested parties with uniform information regarding FMCSA’s acceptance of electronic signature on documents required by the Federal Motor Carrier Safety Regulations. All prior Agency interpretations and regulatory guidance, including memoranda and letters, may no longer be relied upon to the extent they are inconsistent with this guidance. DATES: Effective Date: This regulatory guidance is effective January 4, 2011. FOR FURTHER INFORMATION CONTACT: Genevieve D. Sapir, Office of the Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave., SE., Washington, DC 20590–0001, (202) 366–7056; e-mail: Genevieve.Sapir@dot.gov. SUMMARY: SUPPLEMENTARY INFORMATION: Legal Basis The Motor Carrier Safety Act of 1984 (Pub. L. 98–554, Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to the Secretary of Transportation to regulate certain commercial drivers, motor carriers, and vehicle equipment. Section 211 of the 1984 Act also grants the Secretary broad power to ‘‘prescribe recordkeeping and reporting requirements’’ and to ‘‘perform other acts the Secretary considers appropriate’’ in carrying out motor carrier safety statutes and regulations (49 U.S.C. 31133(a)(8) and (10)). The Administrator of FMCSA has been delegated authority under 49 CFR 1.73(g) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 311, subchapters I and III, relating to E:\FR\FM\04JAN1.SGM 04JAN1 412 Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices jlentini on DSKJ8SOYB1PROD with NOTICES commercial motor vehicle programs and safety regulation. Two Federal statutes govern the Agency’s implementation of electronic document and signature requirements. The Government Paperwork Elimination Act (GPEA) (Title XVII (Sec. 1701–1710) of Public Law 105–277, 112 Stat. 2681– 749, 44 U.S.C. 3504 note) was signed into law on October 21, 1998, to improve customer service and governmental efficiency through the use of information technology. The Electronic Signatures in Global and National Commerce Act (E-SIGN) (Pub. L. 106–229, 114 Stat. 464, 15 U.S.C. 7001–7031) was signed into law on June 30, 2000. E-SIGN was designed to promote the use of electronic contract formation, signatures and recordkeeping in private commerce by establishing legal equivalence between traditional paper-based methods and electronic methods. The GPEA defines an electronic signature as a method of signing an electronic communication that: (a) Identifies and authenticates a particular person as the source of the electronic communication; and (b) indicates such person’s approval of the information contained in the electronic communication (Section 1710(1)). It also requires Federal agencies to provide individuals or entities the options of: (a) Submitting information or transacting with the agency electronically; and (b) using electronic records retention when practicable. The GPEA states that electronic records and their related electronic signatures shall not be denied legal effect, validity or enforceability merely because they are in electronic form. It also encourages agencies to use electronic signature alternatives (Sections 1704, 1707). For any transaction in or affecting interstate or foreign commerce, E-SIGN supersedes all pre-existing requirements that paper records be kept so long as: (a) Such records are generated in commercial, consumer and business transactions between private parties; and (b) those parties consent to using electronic methods. Specifically, the statute establishes the legal equivalence for the following types of documents, whether in traditional paper or electronic form: (a) Contracts, (b) signatures, and (c) other legally-required documents (15 U.S.C. 7001(a)(1)). Purpose and Effect of This Guidance FMCSA received a number of requests from motor carriers and other interested parties asking permission to use electronic signatures in lieu of handwritten signatures on paper. This document provides regulatory guidance VerDate Mar<15>2010 14:35 Jan 03, 2011 Jkt 223001 concerning the use of electronic signatures and documents to comply with FMCSA regulations. All prior Agency interpretations and regulatory guidance, as well as memoranda and letters, may no longer be relied upon as authoritative to the extent they are inconsistent with this guidance. For purposes of complying with any provision in Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 CFR parts 300–399) that requires a document to be created, signed, certified or retained by any person or entity, that person or entity may, but is not required to, use electronic methods. Any electronic document or signature is considered the legal equivalent of a paper document or signature if it is the functional equivalent with respect to integrity, accuracy and accessibility. The substance of the document must otherwise comply with applicable Federal laws and Agency rules. Anyone may use electronic methods so long as the electronic documents or signatures accurately reflect the information in the record and remain accessible in a form that can be accurately viewed and/or reproduced according to Agency rules. Electronic documents will not be considered the legal equivalent of traditional paper documents if they are not capable of being retained and accurately reproduced for reference by any individual or entity entitled to access by law for the period of time required by the Agency’s recordkeeping requirements. For example, if an entity is required to produce documents on demand, those documents may be stored electronically, so long as that entity can produce them in accordance with the Agency’s substantive requirements (e.g., immediately and without risk of losing or altering data). Today’s guidance establishes parity between paper and electronic records and signatures, greatly expanding interested parties’ ability to use electronic methods. FMCSA previously interpreted 49 CFR 390.31 to permit the electronic storage of records so long as they could be produced within two working days of a request (62 FR 16370). FMCSA rescinds that interpretation and motor carriers should no longer rely on that guidance. As stated above, all records, whether electronic or paper, must be produced within the time frame established by Agency regulations. This means that if Agency rules require that a document be produced to the Agency within 48 hours, you must be able to provide the Agency with an accurate copy of your electronic record within 48 hours. Similarly, if Agency rules require that a document be produced upon PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 demand, you must be able to provide the Agency with an accurate copy of your electronic record upon demand. This guidance applies to documents required by FMCSA regulations to be generated and maintained or exchanged by private parties, regardless of whether the Agency subsequently requires them to be produced or displayed at the request of an FMCSA official or other parties entitled to access. This guidance does not apply to documents that individuals or entities are required to file directly with the Agency. The Agency, however, has already established electronic filing methods for certain documents. Interested parties can find out about available filing methods by consulting specific program information on FMCSA’s Web site (http://www.fmcsa.dot.gov). Regulatory Guidance Part 390—Federal Motor Carrier Safety Regulations; General Sections Interpreted: Section 390.31, Copies of records or documents Rescind existing Questions 1 and 2 (62 FR 16370), retain existing Questions 3 and 4 (http://www.fmcsa.dot.gov/ rules-regulations/administration/fmcsr/ fmcsrruletext. aspx?reg=390.31&guidance=Y), and add new Questions 1 and 2 and 5 through 13 as follows: Question 1: May motor carriers use electronic methods to store records or documents to satisfy a document retention requirement in Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 CFR parts 300–399)? Guidance: Yes. Anyone may, but is not required to, use electronic methods to create and store records or documents to satisfy document retention requirements in Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 parts CFR 300–399). This guidance applies only to documents required to be generated and maintained or exchanged by private parties, regardless of whether FMCSA subsequently requires them to be produced or displayed to FMCSA staff or other parties entitled to access. This guidance does not apply to documents filed directly with FMCSA. The Agency, however, has already established electronic filing methods for certain documents. Interested parties can find out about available filing methods by consulting specific program information on FMCSA’s Web site (http:// www.fmcsa.dot.gov). Question 2: How much time does a motor carrier have to produce records if the motor carrier maintains all records in an electronic format? E:\FR\FM\04JAN1.SGM 04JAN1 jlentini on DSKJ8SOYB1PROD with NOTICES Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices Guidance: A motor carrier must produce records within the time frame FMCSA’s regulations require, regardless of whether the motor carrier maintains its records in an electronic or paper format. For example, if Agency rules require that a document be produced upon demand, you must be able to provide the Agency with an accurate copy of your electronic record upon demand. Similarly, if you are a motor carrier with multiple offices and are allowed 48 hours to produce a document in accordance with 49 CFR 390.29, you must be able to provide the Agency with an accurate copy of your electronic record within 48 hours. Question 3: Using record scanning technology, these requirements can be fulfilled. Is my understanding of § 390.31(c) correct that once qualifying documents have been suitably scanned, original paper documents may be destroyed? Guidance: Yes, scanned records, which include a verifiable signature, would fulfill the requirements of § 390.31 and the original paper documents may be destroyed as stated in § 390.31(c). Question 4: If my understanding of § 390.31 and its associated interpretations is correct, will this negate the necessity to maintain the original road test document as required by § 391.31(g)(1)? Guidance: Yes, as long as the road test document has been properly scanned. Question 5: What is an electronic signature? Guidance: An electronic signature is a method of signing an electronic communication that: (1) Identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person’s approval of the information contained in the electronic communication. An electronic signature may be made using any available technology that otherwise satisfies FMCSA’s requirements. Question 6: What is an electronic ‘‘captured image’’ signature and does it qualify as an electronic signature? Guidance: An electronic ‘‘captured image’’ signature is a scripted name or legal mark that, while conventionally created on paper, may also be created using electronic devices. For example, many supermarkets and package delivery services use electronic captured image technology when they permit customers to sign their names in script using a stylus on an electronic pad. This qualifies as an electronic signature, so long as the signature and its related document are electronically bound and can be reproduced together. VerDate Mar<15>2010 14:35 Jan 03, 2011 Jkt 223001 Question 7: May anyone use electronic signatures to satisfy a requirement in Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 CFR parts 300–399) that a party sign or certify a document? Guidance: Yes. Anyone may, but is not required to, use electronic signatures to satisfy the requirements of Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 CFR parts 300–399) that he or she sign or certify a document. This guidance applies only to documents requiring signatures that are generated and maintained or exchanged by private parties, regardless of whether the Agency subsequently requires them to be produced or displayed to FMCSA staff or other parties entitled to access. This guidance does not apply to documents filed directly with the Agency. The Agency, however, has already established electronic filing methods for certain documents. Interested parties can find out about available filing methods by consulting specific program information on FMCSA’s Web site (http:// www.fmcsa.dot.gov). Question 8: Are motor carriers and other interested parties required to use electronic methods? Guidance: No. Interested entities may choose whether or not to use electronic methods or traditional paper methods. Where there are two parties to a transaction, both parties must agree to conduct business using electronic methods. Question 9: Will a document generated using any available electronic method satisfy the requirements of Chapter III of Subtitle B of Title 49, Code of Federal Regulations? Guidance: No. An electronic document must fulfill the same function as a paper document. Documents generated using electronic methods may be used only if they accurately reflect the information in the record and remain accessible in a form that can be accurately reproduced for later reference. Documents generated using electronic methods will not be considered the legal equivalent of traditional paper documents if they are not capable of being retained and accurately reproduced for reference by any party entitled to access. For example, if FMCSA rules require that a document be produced upon demand, you must be able to provide the Agency with an accurate copy of your electronic record upon demand. Similarly, if you are a motor carrier with multiple offices and are allowed 48 hours to produce a document in accordance with 49 CFR 390.29, you PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 413 must be able to provide the Agency with an accurate copy of your electronic record within 48 hours. It would not be sufficient to display the information on your computer terminal in your place of business. You must produce a copy that the Agency can refer to at a later date. Similarly, it would not be sufficient to provide a document with incomplete information or without a signature (whether electronic or handwritten), if required. Your electronic storage system must be capable of transferring a complete, accurate copy of the document to the Agency. Unless the agent requesting the information specifies otherwise, you should be prepared to produce paper copies of the electronically-stored records or documents within the applicable time frame. This means that if you are required to produce documents on demand, those documents may be stored electronically, so long as you can produce them in accordance with the Agency’s substantive requirements (e.g., immediately and without risk of losing or altering data). For an electronic document to be the legal equivalent of a paper document, it must be the functional equivalent with respect to integrity, accuracy and accessibility. Question 10: If FMCSA or another agency entitled to access documents requests that I produce a copy of a document or signature, may I produce an electronic copy? Guidance: Yes, however, you must be able to reproduce or transmit the document so the Agency can refer to it at a later date. The acceptable method of transmission may vary, depending on compatibility with the information systems and how the Agency or other entity entitled to access plans to use the document. Under some circumstances, electronic transfer may be acceptable. In other cases, you may be required to print paper copies of the electronicallystored records or documents. You should be prepared to produce paper copies within the time frame specified in the applicable regulations, unless the particular investigator specifically advises you that he or she is capable of accepting electronically transferred copies. Question 11: May I use electronic methods to generate, sign, maintain and/or exchange any record the FMCSA regulations require without requesting an exemption or obtaining prior permission? Guidance: You may use electronic methods to generate, sign, maintain and/or exchange any document that is generated and maintained or exchanged by private parties, regardless of whether FMCSA subsequently requires them to E:\FR\FM\04JAN1.SGM 04JAN1 414 Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices be produced or displayed to Agency staff or other parties entitled to access. You do not need to request an exemption or obtain prior permission so long as the electronic record meets all of the regulation’s substantive requirements and remains accessible in a form that can be accurately reproduced for later reference. (This does not apply to documents filed directly with the Agency. See Question No. 6.) Examples of documents generated, maintained or exchanged by private parties include, but are not limited to: Employment applications, driver histories and other qualification records, leases formed under 49 CFR part 376, driver-vehicle inspection reports, and records of duty status. These are only examples of documents about which FMCSA received specific questions and is not an exhaustive list of the types of documents that can be generated, signed, maintained or exchanged electronically. Question 12: May I convert a paper document to an electronic document by typing the substantive information on the paper document into an electronic format such as a database? Guidance: By typing the substantive information from a paper document into an electronic format such as a database, you are creating a new electronic record, not creating an electronic copy of the original. While you may generate and maintain such documents for your own use, they do not take the place of the original documents. To preserve an accurate copy of the original paper document, you must use scanning or other ‘‘image capture’’ technology. See Questions 3 and 4 for additional guidance. Question 13: Is an electronic signature valid if a person only has access to an excerpt or summary at the time he or she signs a document? Guidance: No. If you only provide an excerpt or summary at the time someone signs a document you may not subsequently attach his or her electronic signature to the complete document. Issued on: December 29, 2010. Anne S. Ferro, Administratior. jlentini on DSKJ8SOYB1PROD with NOTICES [FR Doc. 2010–33238 Filed 1–3–11; 8:45 am] BILLING CODE 4910–EX–P VerDate Mar<15>2010 14:35 Jan 03, 2011 DEPARTMENT OF TRANSPORTATION Federal Railroad Administration Tier 1 Environmental Impact Statement for the Los Angeles to San Luis Obispo (LOSSAN North) Rail Corridor Improvements Studies: Los Angeles, Ventura, Santa Barbara, San Luis Obispo counties, California Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of intent to prepare an environmental impact statement. AGENCY: FRA is issuing this notice to advise the public that FRA with the California Department of Transportation (Caltrans) will jointly prepare a Tier-1 environmental impact statement (EIS) and a program environmental impact report (EIR) for rail corridor improvements to the Los Angeles to San Luis Obispo (LOSSAN North) rail corridor (LOSSAN North Program). FRA is also issuing this notice to solicit public and agency input into the development of the scope of the EIR/EIS and to advise the public that outreach activities conducted by Caltrans and its representatives will be considered in the preparation of the EIR/EIS. The objective of the Tier-1 EIR/EIS is to evaluate alternatives and present thorough environmental analysis to help make corridor level decisions regarding the level of intercity passenger rail service provided in the corridor, including variations in train frequency, trip time, and on-time performance. DATES: Locations, dates, and start and end times for public meetings involving the EIS are listed in the SUPPLEMENTARY INFORMATION section of this notice. FOR FURTHER INFORMATION CONTACT: For further information regarding the Tier-1 environmental review, please contact: Ms. Lea Simpson, Manager, California Department of Transportation, Division of Rail, MS 74, PO Box 942874, Sacramento, CA 94274–0001, (telephone 916–654–7184) or Ms. Melissa Elefante DuMond, Environmental Protection Specialist, Office of Railroad Policy and Development, Federal Railroad Administration, 1200 New Jersey Avenue, SE. (Mail Stop 20), Washington, DC 20590, (telephone 202– 493–6366). SUPPLEMENTARY INFORMATION: SUMMARY: Purpose and Need FRA and Caltrans have determined that improvements to the existing LOSSAN North rail corridor are necessary to meet the expected growth in population and resulting increases in Jkt 223001 PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 intercity travel demand between Los Angeles and San Luis Obispo. As a result of this growth in travel demand, their travel delays from the growing congestion on California’s highways and at airports will increase. In terms of passenger volume, the LOSSAN corridor is the second-busiest intercity rail corridor in the nation, after the Northeast Corridor connecting Washington DC, New York, and Boston. However, rail capacity constraints result in rail congestion and travel delays which is compounded by delays related to weather conditions, accidents and other factors which collectively result in unreliable rail service. In addition, in some cases rail infrastructure has not been upgraded or improved in over one hundred years. Goals of the project underlying the environmental review include increasing the cost-effectiveness of State-supported intercity passenger rail systems; increasing the rail capacity on existing routes; reduction in running times to attract additional riders and to provide a more attractive service; and improvement to the safety of Statesupported intercity rail service. Rail Services Along Corridor Amtrak uses the LOSSAN rail corridor for the Pacific Surfliner Service between Los Angeles and San Luis Obispo that is supported by Caltrans. Amtrak’s Coast Starlight (service between Los Angeles, the Bay Area, and Portland/Seattle) also operates on the corridor. The Southern California Regional Rail Authority also uses the LOSSAN rail corridor for their Metrolink commuter rail service between Los Angeles and Ventura. Union Pacific operates freight service along the corridor. Environmental Review Process The EIS/EIR will be developed in accordance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 and the Council on Environmental Quality (CEQ) regulations (40 CFR part 1500 et seq.) implementing NEPA; the California Environmental Quality Act (CEQA), Division 13, Public Resources Code; and FRA’s Procedures for Considering Environmental Impacts (64 FR 28545; May 26, 1999). The FRA and the Caltrans will use a tiered process, as provided for in 40 CFR 1508.28 and in accordance with FRA Procedures for the completion of the environmental review of the LOSSAN North Program. ‘‘Tiering’’ is a staged environmental review process often applied to environmental reviews for complex transportation projects. The initial phase (Tier-1 EIS) of this process will E:\FR\FM\04JAN1.SGM 04JAN1

Agencies

[Federal Register Volume 76, Number 2 (Tuesday, January 4, 2011)]
[Notices]
[Pages 411-414]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-33238]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration


Regulatory Guidance Concerning Electronic Signatures and 
Documents

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

ACTION: Notice of regulatory guidance.

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

SUMMARY: FMCSA issues regulatory guidance concerning the use of 
electronic signatures and documents to comply with FMCSA regulations. 
This guidance provides the motor carrier industry, Federal, State, and 
local motor carrier enforcement officials, and other interested parties 
with uniform information regarding FMCSA's acceptance of electronic 
signature on documents required by the Federal Motor Carrier Safety 
Regulations. All prior Agency interpretations and regulatory guidance, 
including memoranda and letters, may no longer be relied upon to the 
extent they are inconsistent with this guidance.

DATES: Effective Date: This regulatory guidance is effective January 4, 
2011.

FOR FURTHER INFORMATION CONTACT: Genevieve D. Sapir, Office of the 
Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New 
Jersey Ave., SE., Washington, DC 20590-0001, (202) 366-7056; e-mail: 
Genevieve.Sapir@dot.gov.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to the 
Secretary of Transportation to regulate certain commercial drivers, 
motor carriers, and vehicle equipment. Section 211 of the 1984 Act also 
grants the Secretary broad power to ``prescribe recordkeeping and 
reporting requirements'' and to ``perform other acts the Secretary 
considers appropriate'' in carrying out motor carrier safety statutes 
and regulations (49 U.S.C. 31133(a)(8) and (10)). The Administrator of 
FMCSA has been delegated authority under 49 CFR 1.73(g) to carry out 
the functions vested in the Secretary by 49 U.S.C. chapter 311, 
subchapters I and III, relating to

[[Page 412]]

commercial motor vehicle programs and safety regulation.
    Two Federal statutes govern the Agency's implementation of 
electronic document and signature requirements. The Government 
Paperwork Elimination Act (GPEA) (Title XVII (Sec. 1701-1710) of Public 
Law 105-277, 112 Stat. 2681-749, 44 U.S.C. 3504 note) was signed into 
law on October 21, 1998, to improve customer service and governmental 
efficiency through the use of information technology. The Electronic 
Signatures in Global and National Commerce Act (E[dash]SIGN) (Pub. L. 
106-229, 114 Stat. 464, 15 U.S.C. 7001-7031) was signed into law on 
June 30, 2000. E[dash]SIGN was designed to promote the use of 
electronic contract formation, signatures and recordkeeping in private 
commerce by establishing legal equivalence between traditional paper-
based methods and electronic methods.
    The GPEA defines an electronic signature as a method of signing an 
electronic communication that: (a) Identifies and authenticates a 
particular person as the source of the electronic communication; and 
(b) indicates such person's approval of the information contained in 
the electronic communication (Section 1710(1)). It also requires 
Federal agencies to provide individuals or entities the options of: (a) 
Submitting information or transacting with the agency electronically; 
and (b) using electronic records retention when practicable. The GPEA 
states that electronic records and their related electronic signatures 
shall not be denied legal effect, validity or enforceability merely 
because they are in electronic form. It also encourages agencies to use 
electronic signature alternatives (Sections 1704, 1707).
    For any transaction in or affecting interstate or foreign commerce, 
E[dash]SIGN supersedes all pre-existing requirements that paper records 
be kept so long as: (a) Such records are generated in commercial, 
consumer and business transactions between private parties; and (b) 
those parties consent to using electronic methods. Specifically, the 
statute establishes the legal equivalence for the following types of 
documents, whether in traditional paper or electronic form: (a) 
Contracts, (b) signatures, and (c) other legally-required documents (15 
U.S.C. 7001(a)(1)).

Purpose and Effect of This Guidance

    FMCSA received a number of requests from motor carriers and other 
interested parties asking permission to use electronic signatures in 
lieu of handwritten signatures on paper. This document provides 
regulatory guidance concerning the use of electronic signatures and 
documents to comply with FMCSA regulations. All prior Agency 
interpretations and regulatory guidance, as well as memoranda and 
letters, may no longer be relied upon as authoritative to the extent 
they are inconsistent with this guidance.
    For purposes of complying with any provision in Chapter III of 
Subtitle B of Title 49, Code of Federal Regulations (49 CFR parts 300-
399) that requires a document to be created, signed, certified or 
retained by any person or entity, that person or entity may, but is not 
required to, use electronic methods. Any electronic document or 
signature is considered the legal equivalent of a paper document or 
signature if it is the functional equivalent with respect to integrity, 
accuracy and accessibility. The substance of the document must 
otherwise comply with applicable Federal laws and Agency rules.
    Anyone may use electronic methods so long as the electronic 
documents or signatures accurately reflect the information in the 
record and remain accessible in a form that can be accurately viewed 
and/or reproduced according to Agency rules. Electronic documents will 
not be considered the legal equivalent of traditional paper documents 
if they are not capable of being retained and accurately reproduced for 
reference by any individual or entity entitled to access by law for the 
period of time required by the Agency's recordkeeping requirements. For 
example, if an entity is required to produce documents on demand, those 
documents may be stored electronically, so long as that entity can 
produce them in accordance with the Agency's substantive requirements 
(e.g., immediately and without risk of losing or altering data).
    Today's guidance establishes parity between paper and electronic 
records and signatures, greatly expanding interested parties' ability 
to use electronic methods. FMCSA previously interpreted 49 CFR 390.31 
to permit the electronic storage of records so long as they could be 
produced within two working days of a request (62 FR 16370). FMCSA 
rescinds that interpretation and motor carriers should no longer rely 
on that guidance. As stated above, all records, whether electronic or 
paper, must be produced within the time frame established by Agency 
regulations. This means that if Agency rules require that a document be 
produced to the Agency within 48 hours, you must be able to provide the 
Agency with an accurate copy of your electronic record within 48 hours. 
Similarly, if Agency rules require that a document be produced upon 
demand, you must be able to provide the Agency with an accurate copy of 
your electronic record upon demand.
    This guidance applies to documents required by FMCSA regulations to 
be generated and maintained or exchanged by private parties, regardless 
of whether the Agency subsequently requires them to be produced or 
displayed at the request of an FMCSA official or other parties entitled 
to access. This guidance does not apply to documents that individuals 
or entities are required to file directly with the Agency. The Agency, 
however, has already established electronic filing methods for certain 
documents. Interested parties can find out about available filing 
methods by consulting specific program information on FMCSA's Web site 
(http://www.fmcsa.dot.gov).

Regulatory Guidance

Part 390--Federal Motor Carrier Safety Regulations; General

Sections Interpreted: Section 390.31, Copies of records or documents

    Rescind existing Questions 1 and 2 (62 FR 16370), retain existing 
Questions 3 and 4 (http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=390.31&guidance=Y), and add 
new Questions 1 and 2 and 5 through 13 as follows:
    Question 1: May motor carriers use electronic methods to store 
records or documents to satisfy a document retention requirement in 
Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 
CFR parts 300-399)?
    Guidance: Yes. Anyone may, but is not required to, use electronic 
methods to create and store records or documents to satisfy document 
retention requirements in Chapter III of Subtitle B of Title 49, Code 
of Federal Regulations (49 parts CFR 300-399). This guidance applies 
only to documents required to be generated and maintained or exchanged 
by private parties, regardless of whether FMCSA subsequently requires 
them to be produced or displayed to FMCSA staff or other parties 
entitled to access. This guidance does not apply to documents filed 
directly with FMCSA. The Agency, however, has already established 
electronic filing methods for certain documents. Interested parties can 
find out about available filing methods by consulting specific program 
information on FMCSA's Web site (http://www.fmcsa.dot.gov).
    Question 2: How much time does a motor carrier have to produce 
records if the motor carrier maintains all records in an electronic 
format?

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    Guidance: A motor carrier must produce records within the time 
frame FMCSA's regulations require, regardless of whether the motor 
carrier maintains its records in an electronic or paper format. For 
example, if Agency rules require that a document be produced upon 
demand, you must be able to provide the Agency with an accurate copy of 
your electronic record upon demand. Similarly, if you are a motor 
carrier with multiple offices and are allowed 48 hours to produce a 
document in accordance with 49 CFR 390.29, you must be able to provide 
the Agency with an accurate copy of your electronic record within 48 
hours.
    Question 3: Using record scanning technology, these requirements 
can be fulfilled. Is my understanding of Sec.  390.31(c) correct that 
once qualifying documents have been suitably scanned, original paper 
documents may be destroyed?
    Guidance: Yes, scanned records, which include a verifiable 
signature, would fulfill the requirements of Sec.  390.31 and the 
original paper documents may be destroyed as stated in Sec.  390.31(c).
    Question 4: If my understanding of Sec.  390.31 and its associated 
interpretations is correct, will this negate the necessity to maintain 
the original road test document as required by Sec.  391.31(g)(1)?
    Guidance: Yes, as long as the road test document has been properly 
scanned.
    Question 5: What is an electronic signature?
    Guidance: An electronic signature is a method of signing an 
electronic communication that: (1) Identifies and authenticates a 
particular person as the source of the electronic communication; and 
(2) indicates such person's approval of the information contained in 
the electronic communication. An electronic signature may be made using 
any available technology that otherwise satisfies FMCSA's requirements.
    Question 6: What is an electronic ``captured image'' signature and 
does it qualify as an electronic signature?
    Guidance: An electronic ``captured image'' signature is a scripted 
name or legal mark that, while conventionally created on paper, may 
also be created using electronic devices. For example, many 
supermarkets and package delivery services use electronic captured 
image technology when they permit customers to sign their names in 
script using a stylus on an electronic pad. This qualifies as an 
electronic signature, so long as the signature and its related document 
are electronically bound and can be reproduced together.
    Question 7: May anyone use electronic signatures to satisfy a 
requirement in Chapter III of Subtitle B of Title 49, Code of Federal 
Regulations (49 CFR parts 300-399) that a party sign or certify a 
document?
    Guidance: Yes. Anyone may, but is not required to, use electronic 
signatures to satisfy the requirements of Chapter III of Subtitle B of 
Title 49, Code of Federal Regulations (49 CFR parts 300-399) that he or 
she sign or certify a document. This guidance applies only to documents 
requiring signatures that are generated and maintained or exchanged by 
private parties, regardless of whether the Agency subsequently requires 
them to be produced or displayed to FMCSA staff or other parties 
entitled to access. This guidance does not apply to documents filed 
directly with the Agency. The Agency, however, has already established 
electronic filing methods for certain documents. Interested parties can 
find out about available filing methods by consulting specific program 
information on FMCSA's Web site (http://www.fmcsa.dot.gov).
    Question 8: Are motor carriers and other interested parties 
required to use electronic methods?
    Guidance: No. Interested entities may choose whether or not to use 
electronic methods or traditional paper methods. Where there are two 
parties to a transaction, both parties must agree to conduct business 
using electronic methods.
    Question 9: Will a document generated using any available 
electronic method satisfy the requirements of Chapter III of Subtitle B 
of Title 49, Code of Federal Regulations?
    Guidance: No. An electronic document must fulfill the same function 
as a paper document. Documents generated using electronic methods may 
be used only if they accurately reflect the information in the record 
and remain accessible in a form that can be accurately reproduced for 
later reference. Documents generated using electronic methods will not 
be considered the legal equivalent of traditional paper documents if 
they are not capable of being retained and accurately reproduced for 
reference by any party entitled to access.
    For example, if FMCSA rules require that a document be produced 
upon demand, you must be able to provide the Agency with an accurate 
copy of your electronic record upon demand. Similarly, if you are a 
motor carrier with multiple offices and are allowed 48 hours to produce 
a document in accordance with 49 CFR 390.29, you must be able to 
provide the Agency with an accurate copy of your electronic record 
within 48 hours. It would not be sufficient to display the information 
on your computer terminal in your place of business. You must produce a 
copy that the Agency can refer to at a later date. Similarly, it would 
not be sufficient to provide a document with incomplete information or 
without a signature (whether electronic or handwritten), if required. 
Your electronic storage system must be capable of transferring a 
complete, accurate copy of the document to the Agency. Unless the agent 
requesting the information specifies otherwise, you should be prepared 
to produce paper copies of the electronically-stored records or 
documents within the applicable time frame. This means that if you are 
required to produce documents on demand, those documents may be stored 
electronically, so long as you can produce them in accordance with the 
Agency's substantive requirements (e.g., immediately and without risk 
of losing or altering data). For an electronic document to be the legal 
equivalent of a paper document, it must be the functional equivalent 
with respect to integrity, accuracy and accessibility.
    Question 10: If FMCSA or another agency entitled to access 
documents requests that I produce a copy of a document or signature, 
may I produce an electronic copy?
    Guidance: Yes, however, you must be able to reproduce or transmit 
the document so the Agency can refer to it at a later date. The 
acceptable method of transmission may vary, depending on compatibility 
with the information systems and how the Agency or other entity 
entitled to access plans to use the document. Under some circumstances, 
electronic transfer may be acceptable. In other cases, you may be 
required to print paper copies of the electronically-stored records or 
documents. You should be prepared to produce paper copies within the 
time frame specified in the applicable regulations, unless the 
particular investigator specifically advises you that he or she is 
capable of accepting electronically transferred copies.
    Question 11: May I use electronic methods to generate, sign, 
maintain and/or exchange any record the FMCSA regulations require 
without requesting an exemption or obtaining prior permission?
    Guidance: You may use electronic methods to generate, sign, 
maintain and/or exchange any document that is generated and maintained 
or exchanged by private parties, regardless of whether FMCSA 
subsequently requires them to

[[Page 414]]

be produced or displayed to Agency staff or other parties entitled to 
access. You do not need to request an exemption or obtain prior 
permission so long as the electronic record meets all of the 
regulation's substantive requirements and remains accessible in a form 
that can be accurately reproduced for later reference. (This does not 
apply to documents filed directly with the Agency. See Question No. 6.) 
Examples of documents generated, maintained or exchanged by private 
parties include, but are not limited to: Employment applications, 
driver histories and other qualification records, leases formed under 
49 CFR part 376, driver-vehicle inspection reports, and records of duty 
status. These are only examples of documents about which FMCSA received 
specific questions and is not an exhaustive list of the types of 
documents that can be generated, signed, maintained or exchanged 
electronically.
    Question 12: May I convert a paper document to an electronic 
document by typing the substantive information on the paper document 
into an electronic format such as a database?
    Guidance: By typing the substantive information from a paper 
document into an electronic format such as a database, you are creating 
a new electronic record, not creating an electronic copy of the 
original. While you may generate and maintain such documents for your 
own use, they do not take the place of the original documents. To 
preserve an accurate copy of the original paper document, you must use 
scanning or other ``image capture'' technology. See Questions 3 and 4 
for additional guidance.
    Question 13: Is an electronic signature valid if a person only has 
access to an excerpt or summary at the time he or she signs a document?
    Guidance: No. If you only provide an excerpt or summary at the time 
someone signs a document you may not subsequently attach his or her 
electronic signature to the complete document.

    Issued on: December 29, 2010.
Anne S. Ferro,
Administratior.
[FR Doc. 2010-33238 Filed 1-3-11; 8:45 am]
BILLING CODE 4910-EX-P