Electronic On-Board Recorders and Hours of Service Supporting Documents, 5537-5555 [2011-2093]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

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


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 395

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


Electronic On-Board Recorders and Hours of Service Supporting 
Documents

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

ACTION: Notice of proposed rulemaking.

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

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

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

[[Page 5538]]

2010-0167 using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. 
e.t., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments, including collection of information comments for 
the Office of Information and Regulatory Affairs (OIRA), OMB.

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

SUPPLEMENTARY INFORMATION: This NPRM is organized as follows:

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

I. Public Participation and Request for Comments

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

A. Submitting Comments

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

B. Viewing Comments and Documents

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

C. Privacy Act

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

D. Collection of Information Comments

    If you have comments on the collection of information discussed in 
this notice of proposed rulemaking (NPRM), you must also send those 
comments to the OIRA, OMB. To ensure that your comments are received on 
time, the preferred methods of submission are by e-mail to oira_submissions@omb.eop.gov (include docket number ``FMCSA-2010-0167'' and 
``Attention: Desk Officer for FMCSA, DOT'' in the subject line of the 
e-mail) or fax at 202-395-6566. An alternate, though slower, method is 
by U.S. mail to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street, NW., Washington, DC 
20503, ATTN: Desk Officer, FMCSA, DOT.

E. Pilot Project on Open Government and the Rulemaking Process

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

[[Page 5539]]

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

II. Abbreviations and Acronyms

Advanced Notice of Proposed Rulemaking--ANPRM
American National Standards Institute--ANSI
American Standard Code for Information Interchange--ASCII
American Trucking Associations--ATA
Automatic On-Board Recording Devices--AOBRD
Behavior Analysis Safety Improvement Categories--BASICs
Clean Air Act--CAA
Code of Federal Regulations--CFR
Commercial Driver's License--CDL
Commercial Motor Vehicle--CMV
Comprehensive Safety Analysis--CSA
Department of Labor--DOL
Department of Transportation--DOT
Electronic On-Board Recorder--EOBR
Environmental Assessment--EA
Federal Highway Administration--FHWA
Federal Motor Carrier Safety Administration--FMCSA
Federal Motor Carrier Safety Regulations--FMCSRs
Federal Register--FR
Fleet Management System--FMS
Global Positioning System--GPS
Hazardous Materials--HM
Hazardous Materials Transportation Authorization Act of 1994--HMTAA
Hours-of-Service--HOS
Interstate Commerce Commission--ICC
Interstate Commerce Commission Termination Act of 1995--ICCTA
Intelligent Vehicle Highway System Act--IVHSA
Long-Haul--LH
Motor Carrier Management Information System--MCMIS
Motor Carrier Safety Assistance Program--MCSAP
National Environmental Policy Act of 1969--NEPA
National Transportation Safety Board--NTSB
North American Industrial Classification System--NAICS
Notice of Proposed Rulemaking--NPRM
Office of Information and Regulatory Affairs--OIRA
Office of Management and Budget--OMB
On-duty-not-driving--ODND
Personal Identification Number--PIN
Personally Identifiable Information--PII
Power Unit--PU
Privacy Impact Assessment--PIA
Record of Duty Status--RODS
Regulatory Impact Analysis--RIA
Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy for 
Users--SAFETEA-LU
Safety Management System--SMS
Short-Haul--SH
Small Business Administration--SBA
Supplemental Notice of Proposed Rulemaking--SNPRM
Transportation Equity Act for the 21st Century--TEA-21
United States Code--U.S.C.
Value of a Statistical Life--VSL

III. Legal Basis for the Rulemaking

    This NPRM would improve CMV safety and reduce paperwork burden by 
increasing the use of EOBRs within the motor carrier industry, which 
will improve HOS compliance. The approach has three components: (1) 
Requiring EOBRs to be used by considerably more motor carriers and 
drivers than those covered by the Agency's April 5, 2010 final rule 
that addressed the remedial use of EOBRs for motor carriers with 
significant HOS violations (2) requiring motor carriers to develop and 
maintain systematic HOS oversight of their drivers, and (3) simplifying 
the supporting documents requirements so motor carriers can make the 
best use of EOBRs and their support systems as their primary means of 
recording HOS information and ensuring HOS compliance.

A. Authority: EOBR

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August 
9, 1935, now codified at 49 U.S.C. 31502(b)) (the 1935 Act) provides 
that ``[t]he Secretary of Transportation may prescribe requirements 
for--(1) Qualifications and maximum hours of service of employees of, 
and safety of operation and equipment of, a motor carrier; and (2) 
qualifications and maximum hours of service of employees of, and 
standards of equipment of, a motor private carrier, when needed to 
promote safety of operation.'' This NPRM addresses ``safety of 
operation and equipment'' of motor carriers and ``standards of 
equipment'' of motor private carriers and, as such, is well within the 
authority of the 1935 Act.
    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984, now codified at 49 U.S.C. 31136) (the 
1984 Act) provides concurrent authority to regulate drivers, motor 
carriers, and vehicle equipment. It requires the Secretary to:

    Prescribe regulations on commercial motor vehicle safety. The 
regulations shall prescribe minimum safety standards for commercial 
motor vehicles. At a minimum, the regulations shall ensure that--(1) 
commercial motor vehicles are maintained, equipped, loaded, and 
operated safely; (2) the responsibilities imposed on operators of 
commercial motor vehicles do not impair their ability to operate the 
vehicles safely; (3) the physical condition of operators of 
commercial motor vehicles is adequate to enable them to operate the 
vehicles safely;

[[Page 5540]]

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

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

B. Authority: Supporting Documents

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

IV. Background

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

[[Page 5541]]

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

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

B. Supporting Documents Requirements

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

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

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

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

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

[[Page 5542]]

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

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

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

[[Page 5543]]

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

V. Agency Proposal

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

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

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

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

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

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

[[Page 5544]]

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

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

    Although not analyzed as part of this rulemaking action, FMCSA also 
requests comments on the advantages, disadvantages, and practicality of 
a potential exemption from the EOBR requirements for motor carriers 
with few or no HOS violations.
    Finally, FMCSA proposes changing the term ``activity'' to 
``status'' in Sec.  395.8(e)(1) to clarify that HOS requirements 
include completing records of duty status--a commonly used term of art 
in part 395.
2. Transition Period and Compliance Date
    It is likely that a final rule resulting from this NPRM would be 
published sometime prior to the June 4, 2012, compliance date for the 
April 2010 EOBR final rule. As stated in 49 CFR 385.805, FMCSA can 
issue remedial directives to any motor carrier subject to 49 CFR part 
395 of the FMCSRs on and after June 4, 2012. Even if the final rule 
were to take effect shortly after publication, today's NPRM does not 
propose to change the compliance date of the April 2010 final rule.
    The remedial directive provision in the April 2010 rule allows the 
Agency to require motor carriers to use EOBRs and also to retain a 
wider range of supporting documents than otherwise would be required. 
Even after the compliance date proposed in this NPRM for the transition 
to mandatory EOBR use, the Agency would retain the authority to issue 
remedial directives to:
     Motor carriers subject to 49 CFR part 395 but not 
otherwise required to use AOBRDs or EOBRs, and
     Motor carriers who use EOBRs, but have HOS violations that 
would trigger a remedial directive could be required to retain and 
maintain supporting documents verifying driving time.
    In proposing a compliance date for mandatory use of EOBRs, the 
Agency considered the safety benefits as well as the potential cost 
impacts to motor carriers. The annualized cost for a motor carrier that 
does not currently use a fleet management system (FMS) or other ``EOBR-
ready'' system ranges from $525 to $785 per power unit (PU). For a 
motor carrier that uses an ``EOBR-ready'' FMS, the annualized cost is 
$92 per PU. Considering that the estimated annual revenue per PU (on an 
industry-wide basis) is approximately $172,000, the annual cost of an 
EOBR is between 0.3 percent and 0.5 percent of operating revenue. When 
the costs of purchasing, completing, auditing, and storing paper RODS, 
and the potential for improved productivity resulting from motor 
carriers' having access to more comprehensive EOBR data are considered, 
using EOBRs can actually be less expensive than using RODS.\6\
---------------------------------------------------------------------------

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

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

[[Page 5545]]

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

B. Supporting Documents: Discussion of New Proposal

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

    \7\ Drivers operating under the 49 CFR 395.1(e) and (2) 
provisions are not subject to 49 CFR 395.8. 49 CFR 395.8(k) is the 
requirement for supporting documents. If a driver is eligible to use 
timecards, the carrier does not have to maintain supporting 
documents for those days.
---------------------------------------------------------------------------

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

[[Page 5546]]

control and other critical safety communication systems and thus pose 
additional safety risks.
4. Number, Type, and Frequency of Supporting Documents (49 CFR 
395.11(e)(2) and (3))
Number
    The number of documents that a motor carrier would need to examine, 
review, and retain will vary according to the motor carrier's 
operational circumstances. For example, operations where a motor 
carrier's drivers pick up fully-loaded trailers at one consignee, drive 
for several hundred miles, drop the trailer at its destination, and 
pick up another fully-loaded trailer from another consignee would have 
fewer on-duty non-driving periods than an operation where a driver 
brings an empty trailer to a shipper, loads it, and drops portions of 
the load at many receivers' locations. The number of documents could 
also vary according to the type and variety of a driver's daily 
assignments the quality and completeness of the supporting documents 
available, as well as the geographic area and commercial character of 
the region in which the carrier operates.
Type
    Consistent with the direction provided in section 113(b)(2) of the 
HMTAA, this NPRM addresses the ``type'' of supporting documents that 
must be used to verify RODS. In doing so, the Agency recognizes the 
diversity of carrier operations and operational circumstances, and 
provides a flexible range of document types that a carrier can use to 
define its compliance system, appropriate with its needs. Examples of 
the types of documents that may be used to satisfy the supporting 
documents requirement are set out in the definition of ``hours of 
service management system'' in proposed 49 CFR 395.2. In contrast to 
the broad range of documents used as examples of supporting documents 
in current guidance at 49 CFR 395.8(k)(1), the Agency would require the 
motor carrier to retain sufficient supporting documents from the 
following four categories: (1) Payroll; (2) trip-related expense 
records and receipts; (3) FMS communication logs; and (4) a bill of 
lading or equivalent document. The supporting documents retained in