Electronic Documents and Signatures, 16210-16228 [2018-07749]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)]
[Rules and Regulations]
[Pages 16210-16228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07749]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 370, 371, 373, 375, 376, 378, 379, 380, 382, 387, 390, 
391, 395, 396, and 398

[Docket No. FMCSA-2012-0376]
RIN 2126-AB47


Electronic Documents and Signatures

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

ACTION: Final rule.

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SUMMARY: FMCSA amends its regulations to allow the use of electronic 
records and signatures to satisfy FMCSA's regulatory requirements. 
These amendments permit the use of electronic methods to generate, 
certify, sign, maintain, or exchange records so long as the documents 
accurately reflect the required information and can be used for their 
intended purpose. This rule applies only to those documents that 
FMCSA's regulations obligate entities or individuals to retain; it does 
not apply to forms or other documents that must be submitted directly 
to FMCSA unless there are already procedures in place in the 
regulations for electronic submission to FMCSA. This rule partially 
implements the Government Paperwork Elimination Act (GPEA) and the 
Electronic Signatures in Global and National Commerce Act (E-SIGN).

DATES: This final rule is effective June 15, 2018.
    Petitions for Reconsideration of this final rule must be submitted 
to the Administrator of FMCSA in accordance with 49 CFR 389.35 no later 
than May 16, 2018.

FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Office of Policy, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, [email protected].
    If you have questions on viewing or submitting material to the 
docket, contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

I. Rulemaking Documents
    A. Availability of Rulemaking Documents
    B. Privacy Act
II. Executive Summary
    A. Purpose and Summary of the Major Provisions
    B. Benefits and Costs
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking

[[Page 16211]]

V. Background
VI. Proposal of April 28, 2014
VII. Comments and Responses
    A. Overview
    B. Electronic signature
    C. Household Goods (HHG)
    D. Lease and Interchange of Vehicles (Part 376)
    E. Drug and Alcohol Testing
    F. Driver's Records of Duty Status
    G. Miscellaneous Comments
VIII. This Final Rule
IX. Section-by-Section Analysis
    A. Part 370
    B. Part 373
    C. Part 375
    D. Part 376
    E. Part 378
    F. Part 379
    G. Part 380
    H. Part 382
    I. Part 387
    J. Part 390
    K. Part 391
    L. Part 395
    M. Part 398
X. International Impacts
XI. Regulatory Analyses
    A. Executive Order (E.O.) 12866 (Regulatory Planning and 
Review), E.O. 13563 (Improving Regulation and Regulatory Review), 
and DOT Regulatory Policies and Procedures
    B. E.O. 13771 (Reducing Regulation and Controlling Regulatory 
Costs)
    C. Regulatory Flexibility Act
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act (Collection of Information)
    G. E.O. 13132 (Federalism)
    H. E.O. 12988 (Civil Justice Reform)
    I. E.O. 13045 (Protection of Children)
    J. E.O. 12630 (Taking of Private Property)
    K. Privacy
    L. E.O. 12372 (Intergovernmental Review)
    M. E.O. 13211 (Energy Supply, Distribution, or Use)
    N. E.O. 13175 (Indian Tribal Governments)
    O. National Technology Transfer and Advancement Act (Technical 
Standards)
    P. Environment (NEPA, CAA, E.O. 12898 Environmental Justice)

I. Rulemaking Documents

A. Availability of Rulemaking Documents

    For access to docket FMCSA-2012-0376 to read background documents 
and comments received, go to https://www.regulations.gov at any time, or 
to Docket Services at U.S. Department of Transportation, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

B. Privacy Act

    In accordance with 5 U.S.C. 553(c), the U.S. Department of 
Transportation (DOT) solicits comments from the public to better inform 
its rulemaking process. DOT posts these comments, without edit, 
including any personal information the commenter provides, to 
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

II. Executive Summary

A. Summary and Purpose of the Major Provisions

    This rule establishes parity between paper and electronic documents 
and signatures, and expands businesses' and individuals' ability to use 
electronic methods to comply with FMCSA's requirements. This rule 
applies only to documents that FMCSA requires entities to retain. It 
also updates references to outdated recordkeeping and reporting methods 
throughout chapter III of subtitle B of title 49, Code of Federal 
Regulations (49 CFR parts 300-399) to make them technologically 
neutral.
    This rulemaking implements portions of the Government Paperwork 
Elimination Act (GPEA) and the Electronic Signatures in Global and 
National Commerce Act (E-SIGN).

B. Benefits and Costs

    This rule does not impose new requirements, and it is expected to 
provide regulatory relief to the industry. It codifies previously 
issued regulatory guidance that provides flexibility to the industry in 
the use of electronic documents and electronic signatures, and removes 
outdated and obsolete references in the regulatory text. Examples of 
documents affected by this rule include vehicle maintenance records, 
driver qualification files, bills of lading, and business records. 
Regulated entities are provided additional flexibility and may choose 
to conduct business using either electronic versions or traditional 
paper-based versions of these types of documents. Because the choice of 
using electronic methods is optional and not mandatory, and regulated 
entities may continue to use traditional paper-based methods if they 
desire to do so, the Agency expects regulated entities will choose 
those methods that best suit their individual needs. For those 
regulated entities that do choose to use electronic documents and 
methods under this rule, potential cost savings may include reduced 
expenditures on labor time, office and storage space, materials, and 
office equipment.
    Because the previously issued regulatory guidance that is now being 
codified in this final rule has been in place for several years, since 
January 4, 2011, it is believed that many regulated entities for whom 
the use of electronic documents and methods best suits their needs may 
have already made this transition from traditional paper-based methods. 
Therefore, many of the potential cost savings possible from this rule 
may have largely already occurred. It is estimated that though there 
may still be some additional incremental cost savings that could result 
from the regulatory flexibility being codified by this final rule 
(e.g., for any remaining regulated entities that may desire at some 
time to use electronic documents and methods but have not yet made this 
transition), overall these additional cost savings will be minimal.

III. Abbreviations and Acronyms

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                 Full name                     Abbreviation or acronym
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American Moving and Storage Association...  AMSA.
Automatic On-Board Recording Device.......  AOBRD.
Atlas Van Lines...........................  Atlas.
American Trucking Associations............  ATA.
Clean Air Act.............................  CAA.
Code of Federal Regulations...............  CFR.
Commercial Motor Vehicle..................  CMV.
U.S. Department of Transportation.........  DOT.
Electronic Logging Device.................  ELD.
Executive Order...........................  EO.
Electronic Signatures in Global and         E-SIGN.
 National Commerce Act.
Fixing America's Surface Transportation     FAST.
 Act.
Federal Register..........................  FR.

[[Page 16212]]

 
Federal Motor Carrier Safety                FMCSA.
 Administration.
Federal Motor Carrier Safety Regulations..  FMCSRs.
Government Paperwork Elimination Act......  GPEA.
Household Goods...........................  HHG.
Hours of Service..........................  HOS.
Motor Carrier Safety Act of 1984..........  1984 Act.
National Motor Freight Traffic Association  NMFTA.
National Environmental Policy Act.........  NEPA.
Notice of Proposed Rulemaking.............  NPRM.
Office of Drug and Alcohol Policy and       ODAPC.
 Compliance.
Owner-Operator Independent Drivers          OOIDA.
 Association, Inc.
Office of Management and Budget...........  OMB.
Paperwork Reduction Act...................  PRA.
Portable Document Format..................  PDF.
Privacy Impact Assessment.................  PIA.
Record of Duty Status.....................  RODS.
United States Code........................  U.S.C.
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IV. Legal Basis for the Rulemaking

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984), as amended, (the 1984 Act) provides 
broad authority to regulate drivers, motor carriers, and vehicle 
equipment. Section 211 of the 1984 Act 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 FMCSA Administrator has been delegated 
authority under 49 CFR 1.87(f) to carry out the functions vested in the 
Secretary of Transportation by 49 U.S.C. chapter 311, subchapters I and 
III, relating to commercial motor vehicle (CMV) programs and safety 
regulation.
    Two Federal statutes govern the Agency's implementation of 
electronic document and signature requirements. The GPEA (Pub. L. 
105.277, Title XVII (Secs. 1701-1710), 112 Stat. 2681-749, 44 U.S.C. 
3504 note) was enacted on October 21, 1998, to improve customer service 
and governmental efficiency through the use of information technology. 
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 and entities the options of: 
(a) Submitting information to 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 (section 
1707). It also encourages agencies to use electronic signature 
alternatives (section 1704). This final rule is concerned only with 
implementing the use of electronic document creation and retention with 
regard to documents and records required to be maintained, and does not 
cover electronic submission to FMCSA, as is discussed more broadly in 
the response to comments below.
    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 contracts, signatures, 
and other legally-required documents, whether in traditional paper or 
electronic form (15 U.S.C. 7001(a)(1)).

V. Background

    In recent years, FMCSA received a number of requests from motor 
carriers and other interested parties asking permission to use 
electronic methods to comply with various Agency regulations that 
require motor carriers and individuals to generate, sign, or store 
documents. Previously, FMCSA made determinations on whether certain 
categories of documents could be generated, signed, or stored 
electronically on a case-by-case basis. However, FMCSA recognized that 
modern technologies and evolving business practices rendered the 
distinction between paper and electronic documents and signatures 
obsolete in most cases.
    FMCSA determined that many businesses and individuals could achieve 
greater efficiencies using electronic methods, but that others might 
prefer paper-based recordkeeping. As a result, FMCSA decided to give 
regulated entities the flexibility to choose which methods to use. On 
January 4, 2011, FMCSA issued regulatory guidance to 49 CFR 390.31 on 
the use of electronic signatures and documents to satisfy FMCSA's 
regulatory requirements. (76 FR 411). That guidance provided that, for 
the 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. The guidance further stated that in order 
for electronic methods to satisfy FMCSA's regulatory requirements, the 
documents or signatures had to accurately reflect the information in 
the record and remain accessible in a form that can be viewed or 
reproduced according to agency rules.
    On April 28, 2014, FMCSA issued a Notice of Proposed Rulemaking 
(NPRM) that proposed incorporating the 2011 guidance into regulations. 
(79 FR 23306). Subsequent to the issuance of the NPRM, FMCSA removed 
guidance question 27 and revised question 28 for 49 CFR 395.8, 
addressing the use of logging software programs for drivers' records of 
duty status (RODS) in order to ensure consistency with FMCSA's

[[Page 16213]]

January 2011 guidance (79 FR 39342, July 10, 2014).
    In addition, Presidential Executive Order (E.O.) 13563, ``Improving 
Regulation and Regulatory Review'' (issued January 18, 2011, and 
published January 21 at 76 FR 3821), prompted DOT to publish a notice 
in the Federal Register on February 16, 2011 (76 FR 8940). This notice 
requested readers to comment on a plan for reviewing existing rules, as 
well as to identify existing rules that may be outmoded, ineffective, 
insufficient, or excessively burdensome. DOT placed all retrospective 
regulatory review comments, including a transcript of a March 14, 2011, 
public meeting, in docket DOT-OST-2011-0025. One of the comments 
submitted to that docket was relevant to this rule, and has been 
included in the comment summary below.\1\
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    \1\ While the Fixing America's Surface Transportation (FAST) Act 
was enacted after publication of the NPRM, FMCSA notes that 
publication of this Final Rule also complies with the mandate found 
in section 5203 of the FAST Act, requiring FMCSA to incorporate 
guidance into regulations if the guidance is still valid after a 
period of 5 years. See, Pubic Law 114-94, 129 Stat. 1312, 1535.
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VI. The 2014 Proposed Rule

    On April 28, 2014, FMCSA published an NPRM titled ``Electronic 
Signatures and Documents'' in the Federal Register (79 FR 23306). FMCSA 
received 17 comments on the NPRM. No public meetings were requested and 
none was held.
    The NPRM proposed to codify FMCSA's guidance issued under Sec.  
390.31 and eliminate references to outdated recordkeeping and reporting 
methods throughout the Agency's regulations. The proposed rule was 
intended to establish parity between paper and electronic documents and 
signatures, and expand businesses' and individuals' ability to use 
electronic methods to comply with FMCSA's requirements. It applied only 
to documents that FMCSA requires individuals or entities to retain. It 
also updated references to outdated recordkeeping and reporting methods 
throughout 49 CFR parts 300-399 to make them technologically neutral.

VII. Comments and Responses

A. Overview

    Seventeen submissions were posted to the docket. One submission was 
a duplicate \2\ and three were outside the scope of this rulemaking, 
leaving 13 relevant submissions. Commenters included four trade 
associations: American Moving and Storage Association (AMSA), American 
Trucking Associations (ATA), National Motor Freight Traffic Association 
(NMFTA), and Owner, Operator, Independent Driver Association (OOIDA). 
Three businesses, Atlas Van Lines (Atlas), KeepTruckin (sic), and First 
Advantage, also provided comments, as did six individuals.
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    \2\ Submission number 013 is a duplicate of number 005.
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Comments Supporting the Rulemaking
    Eight commenters, including the four trade associations, three 
individuals and a business expressed their support for the proposed 
rule. First Advantage agreed with the rule and recommended that 49 CFR 
part 382 be included in its adoption. Trade associations AMSA and NMFTA 
both strongly supported the rulemaking. OOIDA and ATA supported the 
rulemaking, although each had concerns (which are addressed further 
below). Finally, an individual stated ``with technology these days, 
this makes perfect sense.''

B. Electronic Signature

    Comment. An individual commenter expressed concern about the lack 
of description in the preamble concerning the new regulatory language 
in Sec.  390.32(c)(2) and (d). Paragraph Sec.  390.32(c)(2) in the NPRM 
provided a definition of the term electronic signature, using terms 
from the GPEA, to set the performance standard for allowing use of 
electronic signatures. The subparagraph also provided flexibility that 
such an electronic signature may be made using any available technology 
that otherwise satisfies FMCSA's requirements. Paragraph Sec.  
390.32(d) in the NPRM provided that any person or entity may use 
documents signed, certified, generated, maintained, or exchanged using 
electronic methods if the documents accurately reflect the information 
otherwise required to be contained in them. Paragraph (d) also provided 
that records, documents, or signatures generated, maintained, or 
exchanged using electronic methods would not satisfy FMCSA requirements 
if they are not legible or capable of being retained, used for the 
purpose for which they were created, or accurately reproduced for 
reference by any party entitled to access them. This individual 
commenter noted that ``identification and authentication'' have 
specific meanings defining levels of security. This same commenter 
wrote that the NPRM seemed to assume that electronic signatures are 
legible, rather than being nothing more than a PIN or user ID and 
password. Another individual commenter wrote that ``allowing electronic 
signatures needs to be defined.''
    OOIDA was concerned about the security of electronic documents. It 
requested that FMCSA provide clarification through a supplemental 
notice of proposed rulemaking and allow for public comment.
    An anonymous commenter noted FMCSA's requirements implied that it 
would require a level 2 or 3 authentication of a signature, and wrote, 
``FMCSA should explain exactly what it will require in terms of 
authentication and identity proofing (a necessary step in ensuring 
authentication).'' This commenter did not see why FMCSA should require 
that level of authentication. Further, the individual pointed out there 
would be a cost to impose level 2 or 3 authentication requirements that 
FMCSA has not considered.
    FMCSA Response. Based on the confusion generated by the NPRM's 
placement of the definition in Sec.  390.32(c)(2), FMCSA has decided to 
move the definition of ``electronic signature'' to the general 
definition section for all Federal Motor Carrier Safety Regulations 
(FMCSRs) in Sec. Sec.  390.5 and 390.5T. The definition in Sec. Sec.  
390.5 and 390.5T will continue to provide that an electronic signature 
is ``a method of signing an electronic communication that identifies 
and authenticates a particular person as the source of the electronic 
communication and indicates such person's approval of the information 
contained in the electronic communication.''
    FMCSA recognizes that the terms ``identifies'' and 
``authenticates'' carry distinct meanings in the world of information 
technology, particularly when dealing with information security. 
However, these are the terms used in the GPEA to set the performance 
standard for allowing use of electronic signatures. Changing them here 
could have unintended consequences. FMCSA does not use the terms to 
mean that a specific level of information or authentication security 
must be used. Those companies and individuals who would like to use 
electronic signatures are free to decide, for themselves, what level of 
information security they are most comfortable maintaining.
    For FMCSA purposes, we require only that the electronic signatures 
have some level of security to meet the performance standard set forth 
in the statute and regulations. To make it clear that the Sec. Sec.  
390.5 and 390.5T definition of ``electronic signature'' follows the 
GPEA performance standard, this rule will add at the end of the 
Sec. Sec.  390.5 and

[[Page 16214]]

390.5T definitions a cross reference to the GPEA for the benefit of the 
public's understanding as to where the definition originated.
    Comment. ATA wrote that motor carriers create and store records 
used to demonstrate compliance using electronic on-board recorders. ATA 
commented that FMCSA must explicitly allow drivers to sign and store 
documents transmitted through the electronic on-board recorder by 
clicking an ``I agree'' button. ATA said the NPRM was ambiguous on this 
issue and explained that there is a distinction between the 
characterizations of an electronic signature in Sec.  390.32 of the 
NPRM and in the 2011 guidance, which stated that signatures must 
``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.''
    FMCSA response. We do not believe that the regulation needs to be 
revised to explicitly state that clicking an ``I agree'' button on an 
electronic on-board recorder is an electronic signature. Sections 
390.5T and 390.32, when read together, would already allow for such an 
interpretation so long as the on-board recorder satisfies FMCSA's 
requirements. This means the on-board recorder must accurately reflect 
the information and/or data it is designed to record, must retain the 
information and/or data for the proscribed time period, and must be 
able to accurately reproduce the information and/or data within the 
required timeframes (49 CFR 390.32(d)). Additionally, it must be able 
to show that the user approved the information contained in the on-
board recorder (49 CFR 390.5T).

C. Household Goods (HHG)

Information Provided to a Prospective Shipper (Sec.  375.213)
    Comment. Both AMSA and Atlas strongly supported the ability to 
provide the Ready to Move brochure and Rights and Responsibilities 
booklet to consumers electronically, rather than by hyperlink to 
FMCSA's website. AMSA and Atlas noted, however, that the word ``paper'' 
still remains in Sec.  375.213(a), (b)(1), and (e)(2). AMSA indicated 
that it believed this is an ``oversight'' on the Agency's part. 
Furthermore, AMSA pointed out: ``Eliminating the paper requirement for 
the required Ready to Move brochure and Rights and Responsibilities 
booklet will allow carriers to provide all of that information together 
electronically.''
    Both commenters noted that the only currently available electronic 
method for delivering the required Ready to Move brochure and Rights 
and Responsibilities booklet ``is basically unusable by carriers 
because: (a) It requires that the carrier obtain a receipt that the 
individual shipper has actually received both booklets when the carrier 
is not actually providing them the documents, so does not know when the 
shipper has actually received them in order to be able to obtain an 
honest and truthful receipt; (b) the regulation does not allow the 
carrier to have the shipper access the documents on its website, but 
requires that the shipper go to the FMCSA website to obtain them, 
eliminating any means for the carrier to electronically track that the 
shipper has actually received the documents; and (c) the regulation 
requires that the carrier obtain and keep the required receipt for 3 
years (versus the one year period required for most other documents).''
    FMCSA Response. The Agency agrees with the commenters and amends 
the language in Sec.  375.213(e)(2), by removing the words ``electronic 
or paper.'' FMCSA also eliminates the requirement in Sec.  375.213 for 
the Ready to Move brochure and Rights and Responsibilities booklet to 
be provided only in paper copy or retrieved at a URL. Finally, FMCSA 
removes the need to receive a physical receipt of waiver from the 
shipper as well.
    The proposed rule did not address the length of time a carrier 
needs to keep the receipt in Sec.  375.213(e)(3) because FMCSA resolved 
the issue in 2012. AMSA's and Atlas' June 27, 2014, comments discussed 
reducing the length of time required to maintain the receipt from a 
three-year period to a one-year period. This was almost two years after 
FMCSA harmonized the retention period for the required receipt to one 
year based on AMSA's January 11, 2011, petition. The Agency published a 
direct final rule (DFR) on July 16, 2012 (77 FR 41699), establishing 
the retention period as one year.
HHG Filing of Claims
    Comment. Atlas stated that the rewording of Sec.  370.3 left the 
process for filing complaints unclear. Specifically, Atlas objected to 
the removal of the phrase ``or electronic'' and FMCSA's failure to 
delete the parenthetical statement that followed.
    FMCSA Response. In response to Atlas' comment, the Agency removes 
the parenthetical ``(when agreed to by the carrier and shipper or 
receiver involved)'' from Sec.  370.3(b), because the form of 
communication used is determined by agreement of the parties involved. 
This will clarify that the claimants need to file a claim, either in 
writing or electronically, rather than orally stating a claim. For the 
same reason, the Agency also removes the identical parenthetical phrase 
in Sec.  378.3(a) for the filing and processing of overcharge, 
duplicate payment, or overcollection payments for motor carrier and 
household goods freight forwarder transportation of property.

D. Lease and Interchange of Vehicles (Part 376)

    Comment. OOIDA was concerned that the protections established by a 
lease ``will be compromised if a motor carrier exercises its rights 
under the proposed rule to use electronic documents, but the owner-
operator does not have the means to maintain personal possession at all 
times and refer to it when necessary during the course of the lease.'' 
OOIDA requested several clarifications regarding the proposed 
regulatory text in part 376 related to the responsibility of the motor 
carrier to make documents available to the owner-operator. OOIDA also 
asked how the owner-operator was to store the document on the CMV. 
OOIDA wrote that anything other than a paper copy may be less than 
effective in achieving the purposes of the leasing regulations.
    OOIDA also asked FMCSA to clarify in the final rule that the new 
requirements for electronic signatures are not intended to permit easy 
amendment of a lease or its addendums.
    FMCSA Response. As stated in the introduction, the E-SIGN statute 
requires consent from the consumer to share documents in electronic 
format. This consent should be part of the contract reached by the 
parties, in normal business arrangements, which must be signed by all 
parties indicating their consent to the requirements. We have added 
this requirement (that consent be documented) into 49 CFR 390.32(d), to 
ensure it is clear to all who wish to take advantage of the electronic 
documents and signatures options. If the owner-operator does not have 
the ability to receive and maintain the lease in electronic format, the 
owner-operator should obtain the lease in a format he or she can use, 
i.e., a printed copy.
    In response to OOIDA's request for clarification that the 
requirements for electronic signatures are not intended to permit easy 
amendment of a lease or its addendums, without ratification by both 
parties, FMCSA reiterates that the purpose of this rule is to give 
regulated entities the choice to conduct business using either 
electronic or traditional paper-based methods. This rule does not 
change any substantive legal requirements or business practices. We 
have added language into 49 CFR 379.5

[[Page 16215]]

to include a requirement for the protection of records from 
unauthorized access and modification, to make this clear.

E. Drug and Alcohol Testing

    Comment. First Advantage encouraged the Agency to use electronic 
records and signatures under part 382, ``Controlled Substances and 
Alcohol Use and Testing,'' as this would provide regulatory relief to 
the industry.
    ATA requested that the Agency work with the DOT Office of the 
Secretary to create identical allowances for electronic signatures and 
transmissions related to drug and alcohol testing requesting 
requirements found in 49 CFR part 40.
    FMCSA Response. While FMCSA did not include specific changes to 
part 382 in its NPRM of April 28, 2014, the addition of a new Sec.  
390.32 in this final rule applies to those records that are created 
under part 382. Thus, industry parties may now use electronic records 
to comply with the records retention requirements found in 49 CFR 
382.401, so long as their electronic records captured the information 
required by Sec.  382.401. On December 5, 2016, FMCSA published a final 
rule titled ``Commercial Driver's License Drug and Alcohol 
Clearinghouse,'' (81 FR 87686). That final rule, which falls under part 
382, contemplates the use of electronic signatures for certain 
transactions related to the reporting and receipt of drug and alcohol 
testing information, including an employer's ability to obtain driver 
consent.
    In reviewing the CFR for any additional terms to align with the 
changes proposed in the NPRM, the Agency has included a revision to 
Sec.  382.601(d). FMCSA removes the phrase ``the original of'' in this 
section to reflect the practical reality that there is no real 
distinction between originals and copies of electronic documents. 
Moreover, this change conforms to the changes at Sec.  390.31 which 
permit parties to maintain accurate copies in lieu of originals.
    The DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) 
has not approved the use of electronic signatures or documents to 
satisfy the requirements of the DOT-wide drug and alcohol testing 
regulations, which are found at 49 CFR part 40. The Agency has no 
authority over regulations under 49 CFR part 40. Any questions about 
part 40 regulations should be directed to ODAPC. You may find ODAPC 
contact information at https://www.transportation.gov/odapc.

F. Driver's Records of Duty Status

    Comment. Commenters asked that the regulatory guidance for Sec.  
395.8, regarding the use of electronic devices to keep a driver's RODS, 
be addressed. Commenters, including ATA and KeepTruckin (sic), a mobile 
technology-related firm, wanted the new rule to specifically address 
how RODS and other HOS documents could be provided to an enforcement 
officer at roadside. ATA interpreted the need for an ``accurate copy'' 
as requiring that drivers retain paper copies to satisfy law 
enforcement requests. Two individual commenters and KeepTruckin asked 
if RODS would have to be printed or if they could be displayed on a 
tablet or smart phone. A commenter asked if RODS and supporting 
documents could be sent electronically. A commenter asked if a driver 
had to submit the original log book or if it could be faxed to the 
motor carrier and printed out when needed.
    ATA stated that FMCSA should allow the use of electronic documents 
at roadside, and eliminate question 28 of the DOT Interpretations for 
Sec.  395.8 that requires the ability to print paper RODS. It did not 
believe that there is a ``compelling government interest'' in requiring 
paper copies at roadside inspection. ATA said that, currently, the risk 
of fraud is no greater than for paper documents. Tablet and smart phone 
technology can present the documents required at roadside in an easily 
reviewable format and transmit them electronically.
    FMCSA Response. As noted in Section V, Background, above, 
interpretative guidance issued under 49 CFR 395.8 that was in effect 
during the NPRM comment period was subsequently revised, consistent 
with FMCSA's July 2014 guidance on electronic signatures and documents 
(79 FR 39342, July 10, 2014). This revision rendered multiple comments 
obsolete. The July 2014 guidance addressed logging software programs 
that do not qualify as automatic on-board recording devices (AOBRDs) or 
electronic logging devices (ELDs). The Agency is in the process of 
reviewing all regulatory guidance previously issued by FMCSA. Any 
changes to existing guidance for Sec.  395.8, Sec.  395.15, or other 
sections addressed in this rulemaking will be considered during that 
review. In the meantime, the existing guidance remains in effect.
    This rule modifies 49 CFR 395.15 governing use of AOBRDs. 
Provisions pertaining to ELDs were addressed in a separate rulemaking 
(80 FR 78292, December 16, 2015). The ELD final rule also addressed the 
handling of supporting documents during inspections beginning December 
18, 2017. The ATA comment erroneously presumes that the reference to an 
electronic document constituting an ``accurate copy'' would mean that 
drivers would need to have paper documents available for inspections. 
While there will be circumstances where paper RODS may be required, the 
need for production of paper records will diminish over time with the 
adoption of this rule and implementation of FMCSA's ELD final rule.
    FMCSA has long acknowledged drivers' ability to satisfy their 
obligation to submit paper RODS to their motor carrier employer by 
scanning the original documents and submitting them electronically (75 
FR 32860, June 10, 2010). Submission of supporting documents can be 
handled in the same manner.

G. Miscellaneous Comments

    Comment. NFMTA and ATA recommended that the rule be expanded to 
include documents that FMCSA receives as well. An individual commenter 
stated that ``FMCSA regulations still require paper signatures on many 
daily reports; creating a paperwork burden to technology adoption.'' 
This commenter requested that FMCSA adopt technology and remove current 
barriers.
    OOIDA was concerned that the Agency would consider electronic 
documents as more accurate than other methods in regards to the 
recording of HOS. OOIDA wrote that a document is only as accurate as 
the information recorded by its author.
    ATA expressed their confusion of what constitutes an electronic 
signature.
    FMCSA Response. FMCSA understands the position of those who seek to 
broaden the scope of this rule to allow electronic signatures on forms 
submitted to FMCSA. In fact, FMCSA has in certain situations made it 
possible for industry to use electronic signatures and submit 
information in limited electronic format. As an example, Certified 
Medical Examiners may use electronic signatures, if they choose to do 
so, to sign medical forms, certificates, and a new driver medication 
report. If FMCSA requests these forms, they are uploaded in portable 
document format (PDF) to the Medical Examiner's account associated with 
the National Registry of Certified Medical Examiners for FMCSA to 
access. Unfortunately, adapting all FMCSA systems to allow for use of 
electronic signatures and submissions

[[Page 16216]]

would significantly delay the implementation of this rule for use by 
third parties, as it would require FMCSA to develop and implement 
technology systems to allow for direct submission to FMCSA from 
regulated parties. Such development is often a multi-year process, as 
has been seen in the ongoing implementation for the online Unified 
Registration System. FMCSA sees no reason the opportunity for private 
parties to use electronic signatures and records retention should be 
dependent on FMCSA's ability to receive submissions electronically. 
Doing so would delay potential benefits to be gained by third parties. 
Thus, FMCSA is moving forward with this final rule, and will continue 
to look for opportunities to expand electronic submission options in 
the future.
    FMCSA's intent is to provide the industry with an electronic 
signature option for all instances where regulations currently require 
the more traditional pen and ink signatures on documents to be created 
and maintained by third parties (i.e., not submitted to FMCSA). We 
welcome any input as to specific instances where we may have 
inadvertently omitted the electronic signature option. This input can 
be submitted using the information listed in the FOR FURTHER 
INFORMATION CONTACT section of this final rule.
    In response to OOIDA's concern, FMCSA notes that this rule merely 
establishes parity between paper and electronic documents and gives the 
industry more flexibility. The Agency does not intend to give 
preference to electronic or paper records.
    With regard to ATA's confusion over what constitutes an electronic 
signature, FMCSA is purposely providing a performance standard, as 
opposed to defining a specific technology to be used. There are 
numerous ways to electronically sign a document. We leave to the 
parties involved in the transaction to determine the method most 
appropriate for their purposes.\3\
---------------------------------------------------------------------------

    \3\ For general information on electronic signatures, the agency 
recommends Nunno, Richard M., ``Electronic Signatures'', Library of 
Congress' Congressional Research Service, CRS Rep. RS20344, Jan. 19, 
2001, pgs. 1-2 at https://digital.library.unt.edu/ark:/67531/metacrs1448/m1/1/high_res_d/RS20344_2001Jan19.pdf, accessed March 9, 
2018.
---------------------------------------------------------------------------

VIII. This Final Rule

    This final rule adopts the NPRM substantially as proposed, thereby 
incorporating previously issued guidance into the CFR. This rule 
establishes parity between paper and electronic documents and 
signatures, and expands businesses' and individuals' ability to use 
electronic methods to comply with certain of the Agency's requirements. 
This rule only applies to documents between private parties that FMCSA 
requires individuals or entities to retain. It also updates references 
to outdated recordkeeping and reporting methods throughout chapter III 
of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 
300-399) to make them technologically neutral.
    This rulemaking implements portions of the GPEA and E-SIGN. It 
removes the words ``original'' and ``written and electronic'' in many 
cases where they still appeared in the regulatory text, in order to 
provide parity between electronic and paper records.
    In response to comments by AMSA and Atlas, FMCSA has also updated 
Sec.  375.213 to allow electronic copies of the Ready to Move brochure 
and Rights and Responsibilities document, provided they receive 
agreement from the customer. Finally, the parenthetical has been 
removed in Sec. Sec.  370.3(b) and 378.3(a) to ensure all claims are 
filed in writing, either by paper or electronically.
    This final rule does not adopt the changes proposed in part 389, 
FMCSA's rulemaking procedures. Those changes are included in the August 
7, 2017, document ``Rulemaking Procedures Update'' covering broader 
changes to part 389 (82 FR 36719). The timing of the part 389 NPRM and 
this final rule were such that addressing all part 389 changes in one 
rulemaking was less confusing than attempting to finalize a few changes 
in this final rule while proposing others in the August 7, 2017, part 
389 NPRM.
    In addition, this rule reflects changes made in the CFR between 
April 2014 when the NPRM was published and April 16, 2018. For further 
discussion of the changes, please see the Section-by-Section Analysis 
in Part IX of this preamble.

IX. Section-by-Section Analysis

    The Agency makes changes throughout its regulations to conform to 
the new definition of ``written or in writing'' at Sec. Sec.  390.5 and 
390.5T, which eliminates the distinction between paper and electronic 
methods of communication. The term ``written'' no longer means ``on 
paper.'' As a result the words ``electronic'' and ``paper'' are removed 
throughout as long as they are no longer needed for an alternative 
reason. This change can be found in parts 370, 371, 373, 375, 376, 378, 
379, 382, 387, 391, 395, 396, and 398, and are not discussed any 
further in this section as they remain unchanged from what was proposed 
in the NPRM.\4\
---------------------------------------------------------------------------

    \4\ Because the changes made in parts 371 and 396 are limited to 
the removal of the words ``electronic'' and ``paper,'' they are not 
discussed any further in the section-by-section analysis.
---------------------------------------------------------------------------

A. Part 370

49 CFR 370.3, 370.5, 370.9
    FMCSA is removing the parenthetical ``(when agreed to by the 
carrier and shipper or receiver involved)'' from 370.3(b) in response 
to comments. All other changes to part 370 remain as proposed in the 
NPRM.
49 CFR 370.7
    In reviewing the CFR, FMCSA discovered an additional instance in 
Sec.  370.7 where existing regulatory text could be updated to align 
with the changes proposed in the NPRM. The Agency is removing 
``original'' as referenced in the ``original bill of lading,'' 
``original invoice,'' and ``a photographic copy of the original 
invoice, or an exact copy thereof or any extract made therefrom . . .'' 
These are either identical or similar to those that were included in 
the NPRM, similar to the discussion in Sec.  390.32 below. FMCSA also 
removes the word ``photographic'' to make this section technologically 
neutral. Motor carriers, freight forwarders, consignees, and consignors 
may still maintain a copy of the invoice or an extract made therefrom, 
but they are free to choose the method of making that copy. We believe 
that notice and comment on these changes is unnecessary as the 
additional revisions are similar, if not identical, to changes that 
were included in the NPRM and garnered no adverse comments.

B. Part 373

49 CFR 373.103
    As proposed in the NPRM, in Sec.  373.103, FMCSA removes references 
to ``original'' documents to reflect the practical reality that there 
is no real distinction between originals and copies of electronic 
documents. Moreover, these changes conform to the changes at Sec.  
390.31 that permit parties to maintain accurate copies in lieu of 
originals.

C. Part 375

49 CFR 375.505
    The changes to Sec.  375.505 make clear that when a household goods 
motor carrier transports a shipment on a collect-on-delivery basis, 
notification of the charges can be made using any method of 
communication, including, but not limited to fax, email, overnight

[[Page 16217]]

courier, certified mail, or return receipt requested.

D. Part 376

49 CFR 376.11
    As proposed in the NPRM, FMCSA amends Sec.  376.11(b)(1) to remove 
the outdated language specifying that receipts for leased equipment may 
be transmitted by mail, telegraph, or similar means of communication. 
Accordingly, the amended section no longer includes references to the 
method of transmitting receipts, thereby giving the parties the freedom 
to choose their own delivery method.
49 CFR 376.12
    In paragraph (g), as proposed in the NPRM, FMCSA eliminates 
outdated references to computer generated documents to eliminate the 
distinction between electronic and manually generated documents. In 
today's business and legal environment, there is no need to afford 
special treatment to computer generated documentation; eliminating this 
special treatment establishes technological neutrality in this section. 
These changes do not mean, however, that parties are prohibited from 
using computers to generate the documents required in this section. To 
the contrary, all parties are free to conduct their business using the 
technology they choose, as long as it otherwise meets the Agency's 
requirements.
    Also, as proposed in the NPRM, in paragraph (1), FMCSA eliminates 
reference to the original of each lease for the same reasons explained 
in the discussion of Sec.  373.103 above.

E. Part 378

49 CFR 378.4
    In addition to removing ``original'' in Sec.  378.4(c) for the 
reasons discussed in Sec. Sec.  370.7 and 373.103 above, FMCSA has 
introduced a technical amendment in Sec.  378.4(e) to correct a 
misspelling of the word ``orginal'' to be ``original''. The use of this 
``original'' continues to be proper in this context of informing the 
carrier that it must accept copies, but doing so means no one else can 
come forward with the originals and make a duplicate claim. Otherwise, 
this section remains as proposed.

F. Part 379

49 CFR 379.5
    As previously drafted, section 379.5 required motor carriers to 
protect records required under FMCSA's regulations from damage or loss. 
The outdated language in paragraph (a) referred to physical damage that 
generally can pertain only to paper records. FMCSA updates this 
paragraph by changing it to require motor carriers to protect records 
against destruction, deterioration, unauthorized access and 
modification, and data corruption. This change reflects the importance 
of maintaining the integrity of records regardless of the method used 
to maintain them, and responds to those commenters who requested that 
FMCSA ensure electronic records are protected from unauthorized 
amendment. We have updated paragraph (b) to ensure FMCSA is notified in 
any case where the integrity of the record is at issue.
49 CFR 379.7
    As previously drafted, section 379.7 contained outdated record 
preservation language that does not take into account the use of 
computers and modern technology. As proposed in the NPRM, FMCSA 
replaces this language with language that permits companies to preserve 
records using any technology that accurately reflects all of the 
information in the record and remains accessible for later use in 
accordance with the Agency's record keeping requirements. These changes 
conform to the requirements for electronic methods in new Sec.  390.32.

G. Part 380

49 CFR 380.715
    Also in reviewing the CFR, FMCSA discovered an additional instance 
where recently added regulatory text could be updated to align with the 
changes proposed in the NPRM. The Agency has included a revision to 
Sec.  380.715(a). FMCSA replaces the phrase ``assessments (in written 
or electronic format)'' in this section with the phrase ``written 
assessments'' to conform to the new definition of ``written or in 
writing'' at Sec. Sec.  390.5 and 390.5T, which eliminates the 
distinction between paper and electronic methods of communication. We 
believe that notice and comment on this change is unnecessary as the 
additional revision in Sec.  380.715 is similar, if not identical, to 
changes that were included in the NPRM.
49 CFR 380.725
    Entry-level driver training providers are required by Sec.  
380.725(b)(2) to maintain a copy of the driver-trainee's commercial 
learner's permit(s) or commercial driver's license, and Sec.  
380.725(b)(3) requires these training providers maintain copies of 
commercial driver's licenses and applicable endorsements held by 
behind-the-wheel and theory instructors. As mentioned throughout this 
preamble about copies of records, entry-level driver training providers 
are free to choose the method of maintaining copies as long as it meets 
the requirements in Sec.  390.31 which permit parties to maintain 
accurate copies in lieu of originals.

H. Part 382

49 CFR 382.601
    Also while reviewing the CFR, the Agency discovered an additional 
instance where existing regulatory text could be updated to align with 
the changes proposed in the NPRM. In this final rule, FMCSA made an 
additional revision to Sec.  382.601(d). FMCSA removes the phrase ``the 
original of'' in this section for the reasons explained in the 
discussion of Sec.  373.103, above.

I. Part 387

49 CFR 387.7
    As previously drafted, paragraph (b)(1) of Sec.  387.7 required 
insurers and motor carriers to give 35 days' notice prior to cancelling 
the financial responsibility policies required in Sec.  387.9. This 
section formerly established mail as the only method of communicating 
cancellations. As proposed in the NPRM, FMCSA amends this section by 
replacing the word ``mailed'' with the more technologically neutral 
term ``transmitted,'' and ``Proof of mailing'' with ``Proof of 
transmission.'' This establishes parity between mailing and other 
methods of transmission as proof of cancellation.
49 CFR 387.15
    FMCSA amends Sec.  387.15 by removing the outdated 1982 
illustration I and the outdated 1983 illustration II. These 
illustrations represent FMCSA's predecessor Federal Highway 
Administration's Forms MCS-90 and MCS-82. FMCSA will update the forms 
by making non-substantive changes to these OMB-approved forms by 
replacing the terms ``mailed'' with ``transmitted,'' and ``Proof of 
mailing'' with ``Proof of transmission'' for the reasons explained in 
the discussion of Sec.  387.7, above. FMCSA adds a reference to the 
section that the public may access the current OMB-approved versions of 
Forms MCS-90 and MCS-82 at FMCSA's website https://www.fmcsa.dot.gov/mission/forms. Thus, the public will have access to the most current 
OMB-approved forms via FMCSA's website rather than outdated forms in 
Sec.  387.15. This change is in addition to what was proposed in the 
NPRM. Because the illustrations were not representations of the current 
OMB-approved forms, we believe that

[[Page 16218]]

this change is not subject to notice and comment. It is a ministerial 
action that removes confusion from the regulations. As such, notice and 
comment are unnecessary.
49 CFR 387.31
    As proposed, FMCSA amends Sec.  387.31(b)(1) by replacing the term 
``mailed'' with ``transmitted,'' and ``Proof of mailing'' with ``Proof 
of transmission'' for the reasons explained in the discussion of Sec.  
387.7, above.
49 CFR 387.39
    FMCSA amends Sec.  387.39 by removing the outdated 2003 
illustrations I and II. These illustrations represent FMCSA's Forms 
MCS-90B and MCS-82B. FMCSA will update the forms for the same reasons 
explained in the discussion of Sec. Sec.  387.7 and 387.15, above. 
FMCSA also adds a reference to the section that the public may access 
the current OMB-approved versions of Forms MCS-90B and MCS-82B at 
FMCSA's website https://www.fmcsa.dot.gov/mission/forms. This change is 
in addition to what was proposed in the NPRM. Because the illustrations 
were not representations of the current OMB-approved forms, we believe 
that this change is not subject to notice and comment. It is a 
ministerial action that removes confusion from the regulations. As 
such, notice and comment are unnecessary.

J. Part 390

49 CFR 390.5 and 390.5T
    FMCSA moves the definition for ``electronic signature'' from 
proposed Sec.  390.32(c)(2) to Sec. Sec.  390.5 and 390.5T, and adds a 
Sec.  390.5T cross reference for the term to Sec.  390.32(c)(1). As 
discussed in the response to comments about electronic signatures 
earlier in this preamble, an electronic signature continues to mean 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.
    Based on a few commenters' confusion with the definition, FMCSA 
adds a clarifying phrase that the definition is in accordance with the 
Government Paperwork Elimination Act (Pub. L. 105-277, Title XVII, 
Secs. 1701-1710, 112 Stat. 2681-749, 44 U.S.C. 3504 note). This will 
ensure that regulated entities know FMCSA is using GPEA's performance 
standard for allowing use of electronic signatures. This change also is 
made to the currently suspended Sec.  390.5, to ensure that when FMCSA 
rescinds the suspension, the changes made by this final rule will 
remain intact.
    As proposed, FMCSA introduces the definition of ``written or in 
writing'' in Sec. Sec.  390.5 and 390.5T. The new definition is 
technologically neutral and includes anything typed, handwritten, or 
printed on a tangible medium, such as paper, as well as anything typed 
or generated electronically, as long as it otherwise meets the new 
standards in Sec.  390.32. This definition establishes technological 
neutrality throughout the FMCSRs and eliminates any distinction between 
paper and electronic documentation as being ``written or in writing.''
49 CFR 390.7
    As proposed in the NPRM, FMCSA removes the outdated explanation of 
the term ``writing'' from the rules of construction in Sec.  
390.7(b)(2). As explained above, FMCSA has implemented a new definition 
of ``written or in writing'' in Sec. Sec.  390.5 and 390.5T.
49 CFR 390.31
    Revised Sec.  390.31 permits persons or entities subject to 
document retention requirements to keep copies in lieu of originals. As 
proposed in the NPRM, FMCSA removes the reference to microfilm as the 
only acceptable method for storing such copies. It also removes the 
prohibition on using computer technology to maintain documents with 
signatures. This change provides the flexibility to choose the type of 
recordkeeping and storage that best suits an entity's capacities and 
business needs. To comply with the requirements of this section, copies 
must be legible; anyone entitled to inspect them must be able to view 
and read the content required to be in the record. The requirement that 
the Agency be able to inspect records applies regardless of whether the 
copy is in paper or electronic form.
49 CFR 390.32
    As proposed in the NPRM, new Sec.  390.32 permits any person or 
entity to use electronic methods to comply 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 signed, certified, 
generated, maintained, or exchanged. It applies to all forms of written 
documentation, including forms, records, notations, and other 
documents. This rule establishes parity between paper and electronic 
documents and signatures, greatly expanding interested parties' ability 
to use electronic methods to comply with FMCSA's requirements.
    Paragraph (a) specifies that the rule applies only to documents 
that FMCSA requires entities or individuals to retain, 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. It does not apply to documents that individuals or entities 
are required to file directly with the Agency. For more information 
about electronic filing methods for documents filed directly with 
FMCSA, interested parties can consult specific program information on 
FMCSA's website (www.fmcsa.dot.gov).
    Paragraph (b) permits, but does not require, any entity to satisfy 
FMCSA requirements by using electronic methods to generate, maintain, 
or exchange documents. The substance of the document would otherwise 
have to comply with applicable Federal laws and Agency rules.
    Paragraph (c) permits, but does not require, any entity required to 
sign or certify a document to do so using electronic signatures. The 
rule specifies that a person may use any available technology so long 
as the signature otherwise complies with FMCSA's requirements. In 
response to comments, this paragraph has been further revised to 
include that any electronically signed documents must incorporate or 
otherwise include evidence that both parties have consented to the use 
of electronic signatures, as required by the E-SIGN Act (15 U.S.C. 
7001(c)).
    Paragraph (d) establishes the minimum requirements for electronic 
documents and signatures. Any electronic document or signature would be 
considered the legal equivalent of a paper document or signature if it 
is the functional equivalent with respect to integrity, accuracy, and 
accessibility. In other words, the electronic documents or signatures 
need to accurately and reliably reflect the information in the record. 
They must remain accessible in a form that could be accurately viewed 
or reproduced according to Agency rules.
    Electronic documents are not to be considered the legal equivalent 
of traditional paper documents if they are not capable of being 
retained and accurately reproduced for reference by any entity entitled 
to access by law, for the period of time required by the Agency's 
recordkeeping requirements. For example, if Agency rules require that a 
document be produced upon demand, such as a record of duty status 
requested by an enforcement officer, the entity must be able to provide 
the

[[Page 16219]]

Agency with an accurate copy of the electronic record upon demand. 
Similarly, if Agency rules require that a document be produced to the 
Agency within 48 hours, such as a motor carrier with multiple offices, 
the entity would have to provide the Agency with an accurate copy of 
the electronic record within 48 hours. The person inspecting the 
document must be able to view and read the content of that electronic 
record. As with any documents, paper or electronic, documents that are 
not legible--for any reason--do not satisfy the Agency's requirements.
    This rule does not apply to other agencies' rules, even if FMCSA 
requires compliance with those rules. For example, some of FMCSA's 
regulations cross-reference other agencies' rules, such as those 
related to drug and alcohol testing (49 CFR part 40) and hazardous 
materials (49 CFR parts 105-199). In addition, if a motor carrier is 
operating in a foreign country, it must follow any rules that apply in 
that country.

K. Part 391

    Former 49 CFR 391.55 required each motor carrier to maintain a 
``photographic'' copy of a Longer Combination Vehicle driver-
instructor's commercial driver's license. But current technology for 
reproducing documents is not limited to photographic methods; other 
methods for capturing digital images also exist. Accordingly, as 
proposed in the NPRM, FMCSA removes the word ``photographic'' to make 
this section technologically neutral. Motor carriers are still required 
to maintain a copy of the Longer Combination Vehicle driver-
instructor's commercial driver's license, but they are free to choose 
the method of making that copy.

L. Part 395

49 CFR 395.8
    Former Sec.  395.8(f)(2) required that RODS be made in the driver's 
own handwriting. Recognizing that many drivers and motor carriers 
prefer to use electronic RODS, including electronic signatures, FMCSA 
proposed removal of the requirement that RODS be in the driver's own 
handwriting and adopts the rule as proposed. But drivers are still 
required to make their own entries; and those entries are required to 
be legible, regardless of the medium used to record them. This change 
permits drivers to choose whether to use electronic or handwritten 
entries and signatures. For example, a driver could make RODS entries 
in his or her own handwriting with a handwritten signature; 
electronically with an electronic signature; or typed and then 
subscribed with a handwritten signature, depending on the method used 
to record RODS.
49 CFR 395.15
    Formerly Sec.  395.15 (b)(2) permitted use of automatic on-board 
recording devices (AOBRDs) in conjunction with handwritten or printed 
RODS. Recognizing that many drivers and motor carriers prefer to use 
electronic means of recording duty status, FMCSA removes reference to 
handwritten or printed RODS, as proposed in the NPRM. The changes 
permit drivers and motor carriers to use RODS maintained in other media 
in conjunction with AOBRDs, as long as they otherwise meet FMCSA's 
requirements.
    Former paragraph (b)(4) required a driver to have the previous 7 
consecutive days of RODS available for inspection and specified that 
those RODS can be from an AOBRD, handwritten records, computer 
generated records, or any combination thereof. As proposed in the NPRM, 
FMCSA makes this section technologically neutral by removing reference 
to handwritten and computer generated records. Drivers are still 
permitted to use handwritten or computer generated records, but they 
are free to choose any medium for maintaining these records that 
otherwise meets FMCSA's requirements.
    As previously drafted, paragraph (b)(5) referenced ``hard copies'' 
of the RODS documents described in paragraph (b)(4). As proposed, FMCSA 
removes reference to ``hard copies'' for the same reasons explained in 
the discussion of paragraph (b)(4) above.
    In paragraph (e), FMCSA removes, as proposed, the requirement that 
RODS be made in a driver's own handwriting for the reasons explained in 
the discussion of Sec.  395.8(f)(2), above.
    In paragraph (f), FMCSA removes, as proposed, the requirement that 
RODS be made in a driver's own handwriting for the reasons explained in 
the discussion of Sec.  395.8(f)(2), above.
    In paragraph (h), FMCSA removes, as proposed, the option that RODS 
may be submitted to employers via mail for the same reasons explained 
in the discussion of Sec.  387.7, above.
    In the introduction to paragraph (i), FMCSA removes, as proposed, 
reference to handwritten RODS for the reasons explained in the 
discussion of Sec.  395.8(f)(2), above. In paragraphs (i)(4) and (7), 
FMCSA removes, as proposed, outdated language applicable to AOBRDs 
installed before October 31, 1988. FMCSA does not believe that AOBRDs 
installed before this date are still in use. As such, this language is 
no longer necessary.

M. Part 398

    As proposed in the NPRM and for the same reasons explained in the 
discussion of Sec.  391.55 above, FMCSA removes the requirement in 49 
CFR 398.3 that certain documents must be ``photographically 
reproduced.''

X. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the 
United States (and, in some cases, United States territories). Motor 
carriers and drivers are subject to the laws and regulations of the 
countries that they operate in, unless an international agreement 
states otherwise. Drivers and carriers should be aware of the 
regulatory differences amongst nations.

XI. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving 
Regulation and Regulatory Review), and DOT Regulatory Policies and 
Procedures

    FMCSA determined that this final rule is not a significant 
regulatory action under section 3(