Hours of Service of Drivers; Supporting Documents

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 390 and 395

[Docket No. FHWA-98-3706]

RIN 2125-AD52

Hours of Service of Drivers; Supporting Documents

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA proposes to amend the hours-of-service (HOS)

recordkeeping requirements of its regulations. The Hazardous Materials

Transportation Authorization Act of 1994 mandated that amendments be

made to these regulations. The FHWA, with this NPRM, proposes a

supporting document auditing system that all motor carriers would use

to support the accuracy of the drivers' Records of Duty Status (RODS)

and Hours of Service (HOS). Additionally, this NPRM would specify that

failure to have such a system would require the motor carrier to

maintain various types of business documents and all drivers employed

by that motor carrier to collect and submit such documents in order to

support the accuracy of the drivers' RODS. The proposed auditing

systems and document retention proposal would enable the motor

carriers, Federal, State, and local enforcement officials to compare

business documents with drivers' records of duty status to monitor

drivers' compliance with the HOS and RODS requirements. This proposed

rule would require drivers and motor carriers to make use of documents

generated or received in the normal course of business to verify the

accuracy of a driver's record of duty status. The use of electronic

recordkeeping methods is proposed as a preferred alternative to paper

supporting document records.

DATES: Comments should be received by June 19, 1998.

ADDRESSES: Signed, written comments should refer to the docket number

appearing at the top of this document and must be submitted to the

Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,

Washington, DC 20590-0001. All comments received will be available for

examination at the above address between 10 a.m. and 5 p.m., e.t.,

Monday through Friday, except Federal holidays. Those desiring

notification of receipt of comments must include a self-addressed,

stamped envelope or postcard.

For Internet users, all comments received will be available for

examination at the universal resource locator--http://dms.dot.gov--24

hours each day, 365 days each year. Please follow the instructions on-

line for more information and help.

FOR FURTHER INFORMATION CONTACT: For information regarding program

issues: Mr. David Miller, Office of Motor Carrier Research and

Standards, (202) 366-4009, or for information regarding legal issues:

Mr. Joseph Solomey, Office of the Chief Counsel, (202) 366-0834,

Federal Highway Administration, Department of Transportation, 400

Seventh Street, SW., Washington, D.C. 20590.

SUPPLEMENTARY INFORMATION:

The Difference Between This RIN 2125-AD52 and RIN 2125-AD93

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. This NPRM is the first document

being published for RIN 2125-AD52. Use this RIN when cross referencing

this action with the Unified Agenda.

This document is not an NPRM for RIN 2125-AD93, Hours of Service of

Drivers. The FHWA published an ANPRM on November 5, 1996 for RIN 2125-

AD93 (61 FR 57251). The FHWA is analyzing the comments for RIN 2125-

AD93 and will publish an NPRM in the future based upon those comments

and the accompanying scientific data.

The FHWA will likely incorporate this NPRM, or any final rule

resulting from this NPRM, into the upcoming NPRM for RIN 2125-AD93.

Please limit your analysis, though, and any comments you may have, to

how this NPRM would affect the current 49 CFR part 395. Please do not

comment on how these changes might affect RIN 2125-AD93 and the ICC

Termination Act of 1995. You will be given an additional opportunity to

comment at the time the FHWA publishes the NPRM for RIN 2125-AD93.

Electronic Availability

An electronic copy of this document may be downloaded using a

computer, modem, and suitable communications software from the

Government Printing Office (GPO) electronic bulletin board service

(telephone: 202-512-1661). Internet users may reach the GPO's web page

at: http://www.access.gpo.gov/su__docs/aces/aaces002.html

[[Page 19458]]

Background of Daily Logs (RODS) and the Verification of RODS

The HOS rules were first issued in the late 1930's (Ex Parte No.

MC-2, 3 M.C.C. 665). Since that time, drivers have had the

responsibility to prepare a RODS. The original pocket rulebook from

1939 states that carriers and drivers would be liable for the accuracy

of entries made by drivers on the RODS. The Interstate Commerce

Commission explained the original purposes of the RODS as follows:

[to provide] a standardized type of record to be maintained of the

daily driving time and the weekly hours on duty which would be in

the possession of each driver and which would enable a highway

patrolman or other enforcement officer to determine immediately upon

the stopping of the vehicle whether the driver had been on duty or

was driving in violation of our regulations. * * * [and] to provide

a record from which our field representatives could readily

determine whether or not the carriers are complying with the

regulations. 24 M.C.C. 413

In order to determine whether carriers are complying with the HOS

regulations, the FHWA is authorized, by statute, to inspect and copy

any record, and to inspect any property, or equipment of a carrier,

lessor, association, or other person subject to the provisions of 49

U.S.C. 31502, as long as these actions were made in furtherance of an

investigation and regardless of whether or not the records were

required to be maintained by the FHWA regulations or orders. See 49

U.S.C. 501(b).

A third purpose of the RODS is that they enable motor carriers, at

the time of dispatch, to ensure their drivers have sufficient time to

safely complete trips within the HOS regulations. The FHWA believes

many motor carriers began to realize this purpose in the early years of

the regulation.

Over the last 60 years, many motor carriers have regularly audited

or inspected drivers' RODS for accuracy to ensure their drivers are

complying with the HOS regulations. This enables the motor carriers to

verify, through their own self-monitoring system, that drivers are

accurately reporting their HOS. It also allows drivers to calculate

their available hours prior to being dispatched. This provides the

motor carrier with a valuable management tool to efficiently dispatch

trips within the HOS limitations.

In general, motor carriers use many different types of business

records to document various business transactions: Accident and

incident reports are used, for instance, to support claims to insurers

and defend against lawsuits; bills of lading are written transportation

contracts between shippers and carriers that identify the freight, who

is to receive it, the place of delivery, and the terms of the

agreement; and border crossing reports are used to establish time and

mileage in a foreign country. Carrier pros (waybills) are descriptions

of the goods sent with a carrier freight shipment. Cash advance

receipts are used to document cash advances to drivers. Credit and

debit card receipts and statements are used to reconcile credit and

debit account balances. Customs declarations are used to document the

type and quantity of freight which crossed a border point. Delivery

receipts are used to document the act of transferring possession of a

shipment, usually between a carrier and a consignee, but also between a

consignor and a carrier, and one carrier to another carrier who

receives the freight. Dispatch and assignment records are used to

schedule and control pickup and delivery of freight, especially in the

scheduling and control of intercity traffic and intracity pickup and

delivery. Driver reports (facsimile or call-in logs) are used to track

a driver's progress. Expense vouchers are used to account for all

expenses. Freight bills are used to describe the freight, its weight,

amount of charges, taxes, and whether collect or prepaid charges. Fuel

billing statements are used to reconcile the quantity of fuel consumed

and the cost of the fuel for internal expense reports. Fuel receipts

are used in conjunction with fuel billing statements to reconcile the

quantity of fuel consumed and the cost of the fuel for internal expense

reports. Gate receipts are used to control access to terminals and to

determine when access and departure from the terminal were

accomplished. Global positioning and cellular systems provide two-way

communications technology between the driver and the carrier. The

global positioning systems also provide a means by which motor carrier

management may determine the CMVs operational efficiency. Such

operating parameters including engine speed, engine oil pressure, and

cargo space temperature may be provided by such systems. Data provided

by the global and cellular systems help management estimate a driver's

time of arrival at the next destination and the condition of the CMV

and its contents much faster than land-based, wire telephone

communications. Inspection reports are used to determine whether the

motor carrier needs to improve monitoring of its vehicles or drivers.

Invoices are used to notify payees of the charges to be paid for

transportation services. Interchange reports are used to determine when

and where freight was transferred from one transportation carrier to

another carrier. International Registration Program (IRP) receipts are

used to determine the registration for the specified vehicles.

International Fuel Tax Agreement (IFTA) receipts are used to determine

the payment of fuel tax charges. Lessor settlement sheets are used to

determine the terms of a lease and when a lease has been settled.

Lodging receipts are used to determine driver expenses. Lumper receipts

are used to determine driver expenses for the temporary labor at a

consignor or consignee. On-board computer reports are used to determine

the proper operation of CMVs, including the efficiency of the engine,

transmission, and accessories hooked up to the computer. Over/short and

damage reports are used to make claims for cargo liability claims and

to account to shippers for the freight that has been damaged or freight

that was over counted or under counted. Overweight/oversize reports and

citations are used to determine driver expenses for State size and

weight violations. Port of entry receipts are used to determine when

freight was delivered to or received from a port of entry. Telephone

billing statements are used to determine driver expenses and to

reconcile driver and global positioning system reports. Toll receipts

are used to determine driver expenses. Traffic citations are used to

determine driver expenses for motor carriers that reimburse drivers for

such violations. Reports of CMVs with transponders participating in

automated toll or clearance programs are used to reconcile proper

payment and clearance. Trip permits are used to show that a CMV is

properly authorized by a jurisdiction to operate in that jurisdiction

under the conditions specified in the permit. Trip reports are used to

track driver and CMV actions and weight/scale tickets are used to

determine the net weight of shipments to accurately charge shippers for

transportation services.

These records, among others, are generated by motor carriers for

their own business purposes, or they are received from third parties,

such as consignors, consignees, and vendors for other motor carrier

purposes. Motor carriers have been using these records not only to

document various business transactions, but also to verify the accuracy

of their driver's RODS. Many motor carriers regularly maintain self-

monitoring records for their own internal management purposes. This

practice, over the years, has become a

[[Page 19459]]

standard motor carrier practice among well run, successful, and safe

motor carriers.

The FHWA has learned from safe motor carriers that in order for the

carriers to ensure that drivers are alert and not fatigued, motor

carriers must maintain self-monitoring systems comparing RODS to

supporting business documents. The FHWA decided to adopt this practice

of maintaining ``RODS supporting documents'' as a part of its

regulatory oversight to assist motor carriers in operating safely. The

FHWA published a final rule on November 26, 1982 (47 FR 53383) which,

in part, requires motor carriers operating in interstate commerce to

retain supporting documents, along with drivers' records of duty

status, for at least six months from the date of receipt (49 CFR

395.8(k)). The FHWA did not define the term ``supporting document'' in

that final rule.

The FHWA intended that the term ``supporting document'' refer to

those specific documents, and only those specific documents, that a

motor carrier used in its internally-developed system or program to

verify the accuracy of the driver's duty activities. It was not meant

to encompass all records, but only those that were, indeed, used by the

motor carrier, to verify the dates, times, and locations the driver

recorded. The FHWA received requests in the 1980's and early 1990's for

an interpretation of the term ``supporting document.''

The FHWA published regulatory guidance in the Federal Register on

November 17, 1993 (58 FR 60734, 60761), which provided examples of the

types of supporting documents that should be retained. The regulatory

guidance stated that supporting documents are the records of the motor

carrier maintained in the ordinary course of business that are used, or

could be used, by the motor carrier to verify the information recorded

on a driver's record of duty status. An extensive, but not a complete,

list of the various types of records considered to be examples of

supporting documents was provided in this guidance.

On August 26, 1994, the Hazardous Materials Transportation

Authorization Act of 1994, Pub. L. 103-311, 108 Stat. 1673 (August 26,

1994) (hereinafter the Act) was enacted. Under section 113 of the Act,

the Secretary of Transportation is required to prescribe regulations

amending 49 CFR Part 395 to improve both (A) compliance by commercial

motor vehicle (CMV) drivers and motor carriers with the HOS

requirements, and (B) the effectiveness and efficiency of Federal and

State enforcement officers reviewing such compliance.

The Act directed that the regulations include the following items:

(1) A description of identification items (which include either

driver name or vehicle number) that shall be part of a written or

electronic document to enable such written or electronic documents to

be used by a motor carrier or by an enforcement officer as a supporting

document to verify the accuracy of a driver's record of duty status;

(2) A provision specifying the number, type, and frequency of

supporting documents that must be retained by a motor carrier so as to

allow verification of the accuracy of the RODS at a reasonable cost, to

the driver and the motor carrier, of record acquisition and retention;

(3) A provision specifying the period during which supporting

documents shall be retained by the motor carrier. The period shall be

at least six months from the date of a document's receipt;

(4) A provision to authorize, on a case-by-case basis, motor

carrier self-compliance systems that ensure driver compliance with

hours of service requirements and allow Federal and State enforcement

officials the opportunity to conduct independent audits of such systems

to validate compliance with section 395.8(k) of title 49, Code of

Federal Regulations (or successor regulations thereto). Such

authorization may also be provided by the Secretary to a group of motor

carriers that meet specific conditions that may be established by

regulation by the Secretary and that are subject to audit by Federal

and State enforcement officials; and

(5) A provision to allow a waiver, on a case-by-case basis, of

certain requirements of section 395.8(k) of title 49, Code of Federal

Regulations (or successor regulations thereto), when sufficient

supporting documentation is provided directly and at a satisfactory

frequency to enforcement personnel by an intelligent vehicle-highway

system (now referred to as an ``Intelligent Transportation System''

(ITS)), as defined by section 6059 of the Intelligent Vehicle-Highway

Systems Act of 1991 (23 U.S.C. 307 note). Such waiver may also be

allowed for a group of motor carriers that meet specific conditions

that may be established by regulation.

For purposes of the Act, the term ``supporting document'' was

defined to mean ``any document that is generated or received by a motor

carrier or commercial motor vehicle driver in the normal course of

business that could be used, as produced or with additional identifying

information, to verify the accuracy of a driver's record of duty

status.''

Proposal

To satisfy the legislative mandate, the FHWA is proposing to amend

part 395 to include in Sec. 395.2 a definition for the term

``supporting document'' and to add a section entitled Sec. 395.10

Verification and Record Retention.

Definition of Supporting Documents

The FHWA is proposing to use the statutory definition of supporting

documents as provided by Congress in the Act, with the addition of

clarifying language and a list of examples. The proposed list is only a

sampling of the types of documents that the FHWA believes could support

the HOS and the accuracy of RODS. The FHWA is particularly interested

in receiving comments on this approach to implementation of the Act.

Motor Carrier Self-Compliance Systems

Under section 113 of the Act, the FHWA is required to authorize, on

a case-by-case basis, motor carrier self-compliance systems that ensure

driver compliance with FHWA HOS requirements and afford Federal and

State enforcement officers the opportunity to conduct independent

investigations of such systems to assess compliance with 49 CFR 395.3

and 395.8.

The FHWA has considered this requirement and believes that most

motor carriers and drivers are meeting their responsibility to conduct

safe operations by complying with the HOS regulations. The FHWA further

believes that responsible motor carriers have already developed self-

compliance or self-monitoring systems and have these systems in place.

The FHWA does not believe it should impose additional stringent record-

collection and maintenance requirements on motor carriers and drivers,

when most motor carriers already have such systems and are successfully

monitoring and enforcing the regulations.

The FHWA believes it should continue to allow each motor carrier to

maintain such a system. The FHWA, though, believes each carrier should

presently be able to describe and validate to the FHWA that they have

an effective system in place using supporting documents to audit their

drivers' HOS and RODS in an accurate and timely fashion.

In addition, the FHWA seeks comments on these additional issues:

Question (1) What types of self-monitoring systems should be

[[Page 19460]]

considered in addition to the type proposed in this document?

Question (2) Whether and what conditions should be imposed upon

motor carriers (such as accident or out of service prevention

performance history) before the FHWA would authorize a different self-

monitoring system as an alternative to compliance with this proposed

rule?

Question (3) Whether motor carriers seeking additional

authorization should have some established safety record with the FHWA

or other State or local enforcement agencies?

Question (4) What must happen before the FHWA should disallow the

use of a self-monitoring system or an alternative system?

Ability to Transfer Paper Supporting Documents That Contain A Signature

to Automated, Electronic, or Laser Technology Formats

The FHWA believes that an alternative self-monitoring system would

have to provide the same capacity for verification that would be

produced by the collection and retention of all supporting documents in

their original form. The FHWA proposes to allow motor carriers to

transfer supporting documents to electronic or laser technology

systems. Section 390.31(d), 49 CFR, now allows all records to be

maintained in computer technology format, except those documents

containing signatures.

Under this proposal, all supporting documents, including those

requiring a signature, would be eligible for retention in electronic,

laser or other automated format, if the motor carrier can produce and

verify, upon demand, hard copies of the required data. The FHWA is

proposing a conforming amendment to Sec. 390.31(d). Automated,

electronic, or laser technology systems that report directly to the

driver or the motor carrier would also be acceptable. However, the FHWA

is also proposing a requirement that automatic, electronic, or laser

technology systems must be capable of reproducing the information

stored in such systems for inspection at the motor carrier's place of

business within 48 hours of a demand.

Motor Carrier's Discretion To Use Technology in Lieu of Paper

Supporting Documents

The FHWA is also proposing to allow motor carriers to use

electronic, laser or automated technology, (e.g., global positioning

systems (GPS), automatic vehicle identifier (AVI) transponders,

electronic bills of lading used by customs officials in the U.S. and

other countries, and State driver-vehicle inspection reports prepared

by using pen-based computer systems) in lieu of paper supporting

documents.

Other similar technologies that may now be available or developed

in the future could also be acceptable in lieu of paper supporting

documents.

Question (5) Are there any other advanced technology systems

currently in use or under development that the motor carrier industry

may use to validate HOS or support the RODS?

The FHWA would accept the data supplied by these technologies as

alternatives to supporting documents, if the motor carrier can produce

a printed copy of the required information at its principal place of

business or other location within 48 hours after a request has been

made. The FHWA would allow motor carriers to use any intelligent

transportation system developed now or in the future in the manner and

to the extent it is effective for HOS and RODS verification if that

system complies with these general requirements.

Question (6) Should waivers be considered on a case-by-case basis

for other systems that do not quite meet these requirements, but may

have other compensating features that produce equivalent safety

results?

Question (7) Under what circumstances should the use of such

alternatives systems also operate as a substitute for the requirement

to prepare and maintain RODS? Demonstration of the effective use of a

system in whole or in part, for verification should obviate any

necessity to further examine the information produced by the system by

enforcement personnel.

Verification of Records of Duty Status Using A Self-Monitoring System

As a result of this rulemaking, motor carriers would be required to

maintain a self-monitoring system capable of verifying drivers' HOS and

the accuracy of the duty report categories (on duty, driving, sleeper

berth, off duty, time reporting for duty each day, time released from

duty each day, and the total number of hours on duty each day) recorded

by drivers on their RODS for each trip. The FHWA believes that most

trips produce, or could with relative ease produce, a document to

verify the time and place of the driver and mileage of the vehicle at

the beginning and completion of each work day. Various other supporting

documents may be obtained during the trip. This rule would require the

motor carrier to have a self-monitoring system to verify the accuracy

of the beginning, intermediate, and ending times of each working day on

each trip, as well as beginning, ending and intermediate mileage for

each trip. Absent such a system, which must be in verifiable,

demonstrable form and used by the motor carrier, possession and

retention of all supporting documents that could have been obtained on

any given trip would be presumed and required.

Nothing in this proposal would have any effect on current

exceptions for automatic on-board recording devices in accordance with

Sec. 395.15.

Section 395.10 would be added to require motor carriers to have a

system in place that enables the motor carrier to effectively audit its

RODS with documents that the motor carrier chooses. The FHWA believes a

motor carrier could fully comply with this requirement using documents

generated wholly within the motor carrier's operation, such as accurate

dispatch records, bills of lading, daily call-in records, and a variety

of receipts.

The motor carrier's auditing system must have a reviewable written

procedure that explains in sufficient detail what documents are used by

the motor carrier's clerks and management and how they serve to verify

the accuracy of driver's RODS. The procedure would further be required

to explain access to each type of record used and where maintained, how

drivers are notified of violations found by the motor carrier, and what

corrective action the motor carrier takes for violations found by the

employer during its audit.

The motor carrier has the discretion to develop and use whatever

system it believes would effectively enable it to ensure that all

drivers accurately record their HOS on the RODS. The system must, at a

minimum, verify the driver's beginning and ending times, as well as

such intermediate times, as would effectively detect HOS violations and

preclude opportunities for false or inaccurate reporting. It must also

include a system to cross-check mileage and locations. The FHWA

believes that most motor carriers already have such a system and others

should be able to establish their self-monitoring system by describing

it in a manual or handbook. The FHWA believes the proposed manual may

be written on one page or less in length.

Paragraph (b) of this proposed rule would specify that the manual

be provided to personnel responsible for verification of HOS and RODS.

The manual would also be required to be made available to the FHWA and

other appropriate enforcement agencies upon a request. Accessibility to

the written system description (manual or handbook) by FHWA and other

appropriate enforcement agencies

[[Page 19461]]

would normally be required during compliance reviews at the motor

carrier's terminals or principal places of business where records

required by part 395 are maintained. The FHWA does not intend that

enforcement officers conducting roadside inspections would have access

to such a manual or handbook. These officers would continue to have

full access to RODS and all supporting documents on the vehicle or in a

driver's possession at the time of inspection.

The FHWA would allow motor carriers to specify in their system the

supporting documents, including automated, electronic, or laser

systems, that would provide the best opportunities to verify the

accuracy of the records of duty status. If the motor carrier chooses to

require its drivers, including leased owner-operators and contractors,

to submit toll, bridge, and fuel receipts as a part of its system,

those drivers must do so.

During a compliance review of the HOS requirements at the motor

carrier's place of business, the FHWA or authorized State inspectors

would be empowered to inspect the motor carrier's self-monitoring

system's manual or handbook to determine its compliance with this rule,

how the motor carrier is complying with its self-enforcing record-of-

duty-status system, how audit-responsible personnel obtain, audit, and

store inspected supporting documents, how many violations the motor

carrier has found on its own, and corrective actions the carrier has

taken with its drivers to improve their compliance with the HOS

requirements. The reviewer may inspect other motor carrier records not

identified in the motor carrier's system, to determine whether the

system is effectively verifying the accuracy of the RODS. If the

reviewer discovers that the supporting documents identified by the

motor carrier's system are not effective for verifying the accuracy of

the RODS, the reviewer would have several options ranging from

recommending the motor carrier revise its system to better verify the

RODS accuracy to taking some enforcement action based upon evidence of

noncompliance or deception. Subsequent investigations would determine

whether the revised system is effective, again using other records not

necessarily identified in the system. If continued problems or a

pattern of HOS violations, falsification, or inaccurate RODS is

discovered, the FHWA reserves the right to inspect and copy any other

records not identified in the motor carrier's system to gauge the

ineffectiveness of the system.

If the reviewer determines that the motor carrier's system is

deficient (as opposed to non-existent or unenforced) because HOS or

RODS violations are going undetected or uncorrected, the carrier will

be put on notice of those deficiencies and directed to collect and

maintain specific supporting documents necessary to prevent violations.

A motor carrier would not be cited for failing to maintain specific

types or numbers of supporting documents on the first review of the

system. Failure to maintain the documents after the first review as

directed (or as agreed) will be the basis for future enforcement

action. In addition, penalties may be imposed for violations of Part

395 discovered during the compliance review.

This rule would allow the motor carrier to specify the type and

number of supporting documents used in its system. If the motor

carrier's self-monitoring system is effective at controlling drivers

HOS and accuracy of RODS, the motor carrier would not be required to

maintain other documents that could be used to support the record of

duty status, but which the motor carrier does not use in its system.

For example, a motor carrier's self-monitoring system specifies

five types of documents (i.e., bills of lading, delivery receipts, toll

receipts, carrier pros, cellular telephone statements) which are used

effectively by the motor carrier's auditing clerks to verify the

accuracy of the drivers HOS and RODS. If the motor carrier also used

satellite technology to track CMVs, but did not use the system to

verify the drivers' HOS and RODS, the reviewer would not necessarily

require or expect that motor carrier to maintain any such electronic

records for the time periods specified in the rule. Conversely, if the

motor carrier used advanced technology systems to verify HOS and RODS,

the motor carrier would not be required to maintain the more

conventional supporting documents. After encountering a system which is

effective on its face, enforcement personnel need not demand access to

additional records that the motor carrier is not using in the system.

Requirements for Motor Carriers Who Fail To Have a Self-Monitoring

System

If it is determined that a motor carrier does not have a self-

monitoring system to verify the accuracy of the drivers' RODS, the FHWA

would presume that the motor carrier collects and retains all

supporting documents coming into its possession directly or through its

drivers or agents for all trips. The FHWA would demand access to

supporting documents for the beginning of a trip (or when the driver

picks up passengers or property), and for the end of the trip (or the

delivery of the same passengers or property). The FHWA would also

demand access to all receipts, bills, and other documents supporting

the times and locations of intermediate operations that the motor

carrier knew or should have known had come into its actual or

constructive possession during regulated transportation.

A motor carrier who fails to have a self-monitoring system must

require the drivers to examine all documents they receive during the

normal course of their duties, including, but not limited to, documents

regarding the operation of CMVs for motor carriers. The drivers would

have to ensure that the documents include the necessary items required

by Sec. 395.10(g). The motor carrier and drivers would both be liable

for violations of this requirement. The motor carrier may also require,

if it chooses, that its drivers forward all supporting documents they

receive during their trips as allowed under Sec. 395.10(d).

In Sec. 395.10(f), motor carriers that do not have a self-

monitoring system must require drivers to retain all supporting

documents for the same time periods as they retain records of duty

status. Records of duty status may be forwarded to the regular

employing motor carrier immediately after the record of duty status is

completed, or may be retained by the driver for up to 13 days after

completion. Section 395.10(f) would require a driver to forward all

supporting documents to the motor carrier at the same time the driver

forwards the records of duty status. This requirement would ensure that

drivers who work for motor carriers that do not have auditing systems

would have all of the documents that support their records of duty

status and would be able to make these documents available for

inspection by Federal, State, or local enforcement officials on the

highway. As a result, drivers would be better motivated toward HOS

compliance and ensuring the accuracy of their records of duty status.

This would in turn tend to improve the safety of both the driver's

performance and the motor carrier's CMV operation. Therefore, this

proposal, in the absence of a supporting document auditing system,

should help to achieve the goal of improving the safety of CMV

operations and the enforcement of the HOS regulations.

The FHWA currently does not directly require drivers, including

those used for single trips or drivers used on an intermittent, casual,

or occasional basis, to provide motor carriers with

[[Page 19462]]

supporting documents. The FHWA believes, however, that drivers have an

obligation not only to comply with the HOS and RODS requirements, but

also to cooperate with their motor carrier employers by collecting and

submitting the supporting documents needed to verify compliance with

the rules. Therefore, the FHWA is proposing to require drivers to

submit supporting documents to the motor carrier at the time the

corresponding record of duty status is submitted for those motor

carriers that choose not to maintain a written, verifiable HOS auditing

system.

With this rulemaking, the FHWA would also require motor carriers

who fail to have a self-monitoring system to retain all ``supporting

documents'' that all drivers, including owner-operators and independent

contract drivers, receive during a trip, no matter how the carrier pays

drivers for these trips. This requirement would be imposed on the motor

carrier under whose authority the driver is performing transportation

services. Documents passing through the hands of leased drivers would

be, in effect, passing through the hands of the motor carrier because

drivers are, in fact, the representatives of the motor carrier during

the course of the transportation service provided. Thus, the FHWA does

not believe that holding the motor carrier responsible for maintaining

those documents would be an undue burden if the motor carrier does not

otherwise provide a verification system demonstrating its safety

management control.

The Senate report accompanying the Act discussed those situations

where a motor carrier leases the service of drivers, such as

independent contractors, owner-operators, and fleet-broker drivers

employed by other motor carriers. S. Rep. No. 217, 103d Cong., 1st

Sess. 1640 (1994). The report noted that documentation of a leased

driver's duty status was frequently not obtained and retained by the

motor carrier using the driver. This report also stated that it was the

intent of the Act to ensure that supporting documents, generated by

such business arrangements, be retained by the motor carriers that

perform the transportation service. Additionally, it is clear that it

was Congress' intent to facilitate Federal and State enforcement

efforts to document violations of the HOS regulations.

The FHWA's motor carrier safety enforcement personnel have

experienced difficulties in obtaining supporting documents for trip

lease arrangements between motor carriers and owner-operators. Senator

Exon, the legislation's sponsor, discussed the need for this provision

during the floor debate preceding final passage of the Act. He

explained that ``reports that auditors have been forced to retrieve

documents from garbage dumpsters or play hide-and-seek with firms that

have a history of habitual HOS violation give rise to the need for this

provision.'' Further, Senator Exon stated that ``the object of this

provision is to help make the roads safer by giving enforcement

personnel the ability to catch flagrant abusers. It is not designed to

create a trap for drivers who receive, for example, a pre-stamped toll

receipt or to unfairly punish drivers for a de minimis deviation from

the current rules.'' 140 Cong. Rec. S11323 (daily ed. August 11, 1994).

The legislation sets a record retention period of at least six

months. The FHWA believes that this requirement was based upon

Congress' intent to have supporting documents maintained for an

identical period as the time required for duty status record retention,

which is six months. The FHWA is considering reducing the record of

duty status retention period to four months, as the FHWA believes it is

better able to investigate and sufficiently document a current pattern

of HOS violations with records of more recent vintage. If the FHWA

reduces the retention period for RODS to four months, the FHWA believes

it would be unnecessary to require motor carriers to keep the documents

that support the RODS for an additional two months. The FHWA believes

that keeping a supporting record for two months beyond that which is

needed by the FHWA would be contrary to the intent of the Paperwork

Reduction Act of 1995. The FHWA is proposing a six-month retention

period for supporting documents in this NPRM, but the FHWA would like

comments on whether the FHWA should reduce the period for retaining

RODS to four months. The FHWA would also like comments whether it

should seek legislative authority to (1) reduce the supporting document

retention period to four months or (2) eliminate the supporting

document retention period mandate and allow the FHWA to set the

supporting document retention period to any future RODS retention

period.

The FHWA has identified a retention period for ``Supporting Data

for Reports and Statistics; Supporting data for periodical reports of *

* * hours of service, * * *, etc.'' See 49 CFR 379, Appendix A, Item

K.2. The FHWA has received a few telephone inquiries regarding this

retention period. This retention period relates to an old FHWA monthly

report acquired from the Interstate Commerce Commission (ICC) in 1966.

The FHWA required the report until December 15, 1967. The FHWA had

required every motor carrier, other than a private carrier of property,

to report on a Form BMC 60:

every instance during the calendar month covered thereby in which a

driver employed or used by it has been required or permitted to be

on duty, or to drive or operate a motor vehicle in excess of the

hours * * *

Class I motor carriers of passengers and Classes I and II motor

carriers of property also had to file the same Form BMC 60 report--

for every calendar month in which no driver employed or used by it

has been required or permitted to be on duty, or to drive or operate

a motor vehicle in excess of the hours * * * See 32 FR 7128, May 11,

1967.

The FHWA had a retention period of three years. The FHWA removed the

reporting requirement on December 15, 1967 (32 FR 17941). The ICC and

the Surface Transportation Board never removed the retention period

from its preservation of records list. Based upon the savings clause in

the ICC Termination Act of 1995, the FHWA transferred the former ICC's

preservation of records lists to the FHWA regulations on June 21, 1997

(62 FR 32040). This action provided the initial appearance of a

conflict between parts 379 and 395 with respect to HOS supporting data

and HOS supporting documents.

The proposal in this document in no way involves ``reporting'' data

similar to the former report Form BMC-60. This proposal only relates to

motor carrier recordkeeping requirements and a motor carrier's

comparison of its own records to the driver's records of duty status.

The OMB's regulations in 5 CFR 1320.3(m) identifying the definitions of

a ``recordkeeping requirement'' explain a report is different than the

retention of a record, notification of the existence of records, and

disclosure of records. The FHWA believes a report is a document

submitted to the FHWA, as was Form BMC 60 up until December 15, 1967.

Item K.2.'s reference to hours of service data, therefore, does not

have any actual effect upon this proposal.

The FHWA believes it should cite RODS violations primarily when an

investigator finds drivers or carriers are concealing excess hours. The

FHWA does not wish to expend scarce enforcement resources on mere

recordkeeping violations that may result from sloppy bookkeeping. The

FHWA believes motor carriers should provide drivers adequate

opportunities for sleep, personal hygiene, and family matters, and

limit the driver's hours on duty to prevent CMV crashes caused by loss

of alertness from working too long or not

[[Page 19463]]

getting enough rest. Accurate recording of hours driven, on duty, and

off duty, of course, is intended to assure that drivers are afforded

the rest periods they need and plays an important role in monitoring

and enforcing compliance with the driving limitations.

Question (8) What impact would a six-month or longer record

retention requirement have on the Federal government, State

governments, and motor carriers?

Question (9) Would we enhance enforcement and prosecution efforts

with the longer retention requirement (e.g., the ability to adequately

enforce the rules, collect evidence for a criminal case, prepare the

case, and successfully prosecute drivers or motor carriers for

deliberately or recklessly violating HOS restrictions)?

Under this proposal, motor carriers could retain their time

records, RODS and supporting documents at a location of their choice.

However, the location would have to be suitable for preserving the

records so that they would not be damaged or lost. In addition, a motor

carrier must be able to produce such records at its principal place of

business within 48 hours of a request by an authorized enforcement

official. This request for documents could be made by telephone, fax,

mail, or by other means. Saturdays, Sundays and holidays would be

excluded from the computation of the 48-hour period of time. This 48-

hour period would provide a reasonable amount of time for documents to

be sent via overnight mail. Furthermore, most business operations with

electronic transfer capabilities could probably produce information in

a shorter period.

The FHWA is proposing that, in the absence of a written and

operational verification system, ALL supporting documents be retained

for the entire retention period. In this proposal, the term ``all

supporting documents'' means all documents that are used to support the

driver's RODS and time record entries for any particular trip. These

documents must be connected to the driver or the vehicle used on the

trip. A variety of documents may be obtained by a driver, or provided

directly to a motor carrier, which could meet the requirements of this

proposed rule. Some trips may result in only two or three supporting

documents while others may result in many more documents. In addition,

supporting documents may be required to be kept for longer periods

based upon other Federal, State, or local laws, rules, or orders (e.g.,

Internal Revenue Service rules). The FHWA is proposing that the

supporting documents must be kept for six months after receipt by the

motor carrier, unless a longer period of time is required by another

authority.

The FHWA believes that all motor carriers obtain many records and

documents in the normal course of business that link the records or

documents to the driver or vehicle and that motor carriers have not

always considered these other records or documents when asked to

produce supporting documents in past compliance reviews. A motor

carrier, however, would now have the duty to ensure that it has an

independent means of verifying the driver's HOS and the accuracy of the

driver's RODS for trips made on behalf of the motor carrier, including

those trips made using leased drivers and/or vehicles.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date shown above will be considered and will be available for

examination in the FHWA Docket at the above address. Comments received

after the comment closing date will be filed in the FHWA Docket

identified above and will be considered to the extent practicable, but

the FHWA may issue a final rule anytime after the close of the comment

period. In addition to late comments, the FHWA will also continue to

file in the docket relevant information that becomes available after

the comment closing date, and interested persons should continue to

examine the docket for new material.

For Internet users, all comments received will be available for

examination at the universal resource locator--http:\\dms.dot.gov--24

hours each day, 365 days each year.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this document does not contain a

significant regulatory action under Executive Order 12866. The FHWA has

estimated that this rulemaking will have an annual economic impact on

the motor carrier industry of less than $100 million. It is a

significant regulation under the Department of Transportation's

regulatory policies and procedures, because this regulation has

substantial public interest. As discussed below, current FHWA

regulations have required the retention of supporting documents since

1982, and responsible motor carriers have collected and retained such

documents both in the ordinary course of business and for purposes of

regulatory compliance. This rule would require motor carriers to

establish systems to verify drivers' RODS or, alternatively, to

describe HOS supporting documents in terms of their effectiveness to

verify drivers' HOS. In addition, this rule explains how supporting

documents are to be collected, where they must be kept, and for how

long. This rulemaking action would not create a serious inconsistency

with any other agency's action or materially alter the budgetary impact

of any entitlements, grants, user fees, or loan programs. Evaluation of

the costs of this proposed rule is fully described below in the

Paperwork Reduction Act section.

Regulatory Flexibility Act

To meet the requirements of the Regulatory Flexibility Act (5

U.S.C. 601-612), the FHWA has evaluated the effects of this rule on

small entities and has determined that this regulatory action would not

have a significant economic impact on a substantial number of small

entities.

The FHWA estimates there are about 422,000 motor carriers subject

to this rule, 90 percent of which are small entities. For the purposes

of this evaluation, the FHWA considered motor carriers with ten or

fewer drivers to qualify as small entities.

Small entities, as well as large entities, have been prosecuted for

making, or allowing drivers to make, false entries upon RODS since the

late 1930's. Since 1982, small entities have been required to maintain

supporting documents along with their drivers' RODS. As a good business

practice, small entities are believed to be reviewing, inspecting, or

auditing their drivers' RODS and comparing them with the motor

carrier's supporting documents to determine the accuracy of the RODS.

This rule would convert a previously established motor carrier business

practice into an explicit requirement. Small entities would be required

to document the system they have been using to verify the drivers RODS

are accurate. It is believed that most small entities have not

documented the system they are using to verify their drivers' RODS.

This rule would require these systems to be reduced to writing.

After a small entity has documented its self-monitoring system in

writing, the FHWA would not require the entity to retain subsequently

generated or received documents which were not called for by that

entity's self-monitoring system. This would relieve small entities from

a potentially large burden of record collection. Many noncompliant

small entities may perceive an increased burden; however, the FHWA

believes that this increased

[[Page 19464]]

burden will actually result from the entities finally having to comply

with the preexisting supporting document requirement the cost of which

these entities have been avoiding by not complying with the rule until

now.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed by the principles and criteria

contained in Executive Order 12612, and it has been determined that

this proposal does not have sufficient federalism implications to

warrant the preparation of a federalism assessment.

The amendments proposed in this document would not preempt any

State law or regulation. These changes, if adopted, would not limit the

policy making discretion of the States. The only additional cost or

burden potentially imposed on the States because of this action would

be the requirement that the States incorporate these proposed changes

into their safety regulations as a condition of the receipt of Federal

grants for safety enforcement. This requirement would not infringe upon

the State's ability to discharge traditional State governmental

functions because interstate commerce, which is the subject of these

regulations, has traditionally been governed in the first instance by

Federal laws. In addition, the FHWA would not require as a condition of

the Motor Carrier Safety Assistance Program (MCSAP) that the States

adopt this proposal for intrastate safety regulations, but would expect

phased in voluntary compatibility.

Public Law 104-4 (Unfunded Mandates Reform Act of 1995)

This action has also been analyzed by the principles and criteria

contained in Public Law 104-4, and it has been determined that this

proposal does not have an unfunded mandate within the meaning of the

Unfunded Mandates Reform Act.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This proposal contains new collection of information requirements

for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-

3520. The new information collection requirements in this proposal are

mandated by section 113 of the Hazardous Materials Transportation

Authorization Act of 1994 (Pub. L. 103-311, 108 Stat. 1676). This

section requires that each written or electronic document that is used

as a supporting document have a description of identification items to

include either the driver's name or vehicle number. This would require

motor carriers to ensure that the driver's name or vehicle number is on

each document used to verify time records. The statute also requires

the supporting document must be kept for at least six months. The FHWA,

since 1982, has required that all supporting documents must be

collected and kept for six months. This collection of documents and

retention period is not a new paperwork burden. This collection of

documents and retention period has been calculated into past paperwork

burden approvals of the Office of Management and Budget (OMB).

New Information Collection Proposal

Collection of Information: Driver's Records of Duty Status.

Under the new OMB regulations found at 5 CFR 1320 and entitled

Controlling Paperwork Burdens on the Public (1995), the FHWA is

required to estimate the burden its regulations impose to generate,

maintain, retain, disclose, or provide information to or for the FHWA

including (i) reviewing instructions; (ii) developing, acquiring,

installing, and utilizing technology and systems for the purpose of

collecting, validating, and verifying information; (iii) developing,

acquiring, installing, and utilizing technology and systems for the

purpose of processing and maintaining information; (iv) developing,

acquiring, installing, and utilizing technology and systems for the

purpose of disclosing and providing information; (v) adjusting the

existing ways to comply with any previously applicable instructions and

requirements; (vi) training personnel to be able to respond to a

collection of information; (vii) searching data sources; (viii)

completing and reviewing the collection of information; and (ix)

transmitting, or otherwise disclosing the information.

This proposed rule would add additional requirements to the OMB-

approved budget for 2125-0016. Each motor carrier would be required to

develop and implement an effective self-monitoring system that audits

supporting documents and compares the supporting documents to RODS.

Motor carriers failing to develop and implement an effective self-

monitoring system would be presumed to be taking the necessary actions

to obtain and retain every supporting document that the carriers or

their drivers generate or receive in the normal course of business that

would accurately support the beginning, intermediate, and ending times

of each driver's daily trips in interstate commerce.

If the carrier fails to have a self-monitoring system, the carriers

would also have to ensure that each document has the driver's name or

vehicle number on it. In addition, the motor carrier would have to

ensure that reasonably reliable references to date, time, and location

on the documents corroborate the date, times, and locations on the

driver's record of duty status.

In the statute, as stated above, the term ``supporting document''

was defined to mean ``any document that is generated or received by a

motor carrier or commercial motor vehicle driver in the normal course

of business that could be used, as produced or with additional

identifying information, to verify the accuracy of a driver's record of

duty status.'' The FHWA believes that every document that is generated

and received by a motor carrier or commercial motor vehicle driver in

the normal course of business is used or retained by the motor carrier

for usual and customary purposes and should not be considered to be a

burden for purposes of 5 CFR 1320.3(b).

The FHWA's Motor Carrier Management Information System (MCMIS)

indicated that in October 1997 there were about 2,216,000 drivers and

422,000 motor carriers operating in interstate commerce. Of the 2.216

million drivers, the FHWA estimates 20 percent (443,200 drivers)

operate within 241 air-kilometer (100 air-mile) radius from their

normal work reporting location, five percent (110,800) operate for

motor carriers who equip CMVs with automatic on-board recording

devices, and the remaining 75 percent use the paper log book system.

In the March 11, 1998 Federal Register (63 FR 11948), the FHWA

opened a docket and requested comments regarding the current collection

of information requirements without respect to this proposal. This

proposal would add collection of information requirements to the March

11 estimate.

The FHWA estimates the public recordkeeping burden for this

proposed collection of information to be 949,500 burden hours for the

first year of implementation and 17,737 for the second and subsequent

years. This would result from the necessary system changes the

regulations would require a

[[Page 19465]]

motor carrier to do with respect to the following six things:

(1) A motor carrier must determine the types of supporting

documents providing the most effective means to compare drivers RODS to

supporting documents.

(2) A motor carrier must prepare a written document, in either an

electronic or paper format, definitively specifying the auditing

system's capabilities.

(3) The written document must identify the supporting documents, by

common name, the motor carrier uses to verify the accuracy of the

driver's hours of service or record of duty status.

(4) The written document must describe how the system is used.

(5) The written document must describe the procedure to be used to

promptly notify a driver who has recorded information inaccurately on a

record of duty status which is required by Sec. 395.8.

(6) The written document must describe the corrective action the

motor carrier would take to improve the driver's compliance with

providing accurate information.

The FHWA assumes most motor carriers, especially the 90 percent of

motor carriers who are small entities, would not incur any reproduction

costs or distribution costs under this proposed rule. Most motor

carriers would have one manual with system description for office use

and would not need to reproduce the document. Motor carriers with ten

or fewer drivers generally do not have multiple terminals and the FHWA

would presume the carrier have only one or two people involved in the

verification of RODS at their principal place of business. For the ten

percent of motor carriers that are large entities, the FHWA estimates

they would make an average of ten copies and distribute them

accordingly.

The FHWA intends that this document would be a working document and

would not be archived. It would be used by personnel on a daily basis

as an important reference and management tool for the self-monitoring

auditing procedure as many responsible motor carriers do now. The FHWA

would also expect motor carriers to review and revise the system on a

periodic, but infrequent, basis as the need arises. The FHWA has

computed the paperwork burden based upon an annual review and revision

schedule.

Since the FHWA has required motor carriers ensure the accuracy of

the RODS and the regulations provide that they are liable to

prosecution for the making of false reports in connection with such

duty activities, the FHWA believes most motor carriers choose to

fulfill their responsibilities for highway safety by auditing and

comparing their RODS and supporting documents to determine whether

drivers have made false reports of their duty activities. Thus, the

FHWA believes the time necessary to audit and compare RODS and

supporting documents does not need to be included in the burden

estimate. The FHWA's time estimate for identifying supporting documents

and preparing a written system description would be 3 additional hours

per carrier per year.

The FHWA calculates motor carriers must develop a policy in the

first year this proposed rule would be final. The FHWA calculates motor

carriers would spend an average of 3 hours developing and writing out

the policy. The FHWA calculates motor carriers would consume an

estimated 949,500 burden hours developing its policies.

The FHWA calculates an estimated 17,737 burden hours for the second

and third years. The FHWA estimates there are new carriers equaling one

percent of the total number of motor carriers beginning business each

year who must develop a policy and the other motor carriers must review

their policies. The FHWA estimates 50 percent of the reviewed policies

would have to be amended.

Organizations and individuals desiring to submit comments only on

the information collection requirements must direct them to the Office

of Information and Regulatory Affairs, OMB, Room 10235, New Executive

Office Building, Washington, D.C. 20503; Attention: Desk Officer for

Federal Highway Administration.

Please send a copy of any comments you send to the OMB to the FHWA,

too.

The FHWA considers comments by the public on this proposed

collection of information in the following four ways:

(1) Evaluating whether the proposed collection of information is

necessary for the proper performance of the functions of the FHWA,

including whether the information will have a practical use.

(2) Evaluating the accuracy of the FHWA's estimate of the burden of

the proposed collection of information, including the validity of the

methodology and assumptions used.

(3) Enhancing the quality, usefulness, and clarity of the

information to be collected.

(4) Minimizing the burden of collection of information on those who

are to respond, including through the use of appropriate automated

electronic, mechanical, or other technological collection techniques or

other forms of information technology; e.g., permitting electronic

submission of responses.

OMB must make a decision concerning the collection of information

contained in these proposed regulations between 30 and 60 days after

publication of this document in the Federal Register. Therefore, a

comment made directly to OMB will have its full effect of OMB receives

it within 30 days of publication. This does not affect the deadline for

the public to comment to the FHWA on the proposed regulations.

Invitation to Comment

Interested persons are invited to submit comments and

recommendations regarding these proposed regulations to the FHWA docket

found at the top of this document.

What If the FHWA Had Implemented the Statute As Written

The FHWA has calculated the burden hours for the statute. The FHWA

has named 45 possible documents as examples in the definition of

``supporting documents'' proposed in this NPRM. The FHWA estimated one

half of these 45 would generally be available each trip for most runs.

Using 23 of the 45 documents and based upon the statute, the motor

carrier would have had to audit each one as the carrier obtained or

received the document for the following five minimum items.

1. Date.

2. Time.

3. Location.

4. Driver's name.

5. Vehicle's number.

The time to compare the documents to the RODS, filing, and storing

the 23 records would be more than is currently expected and more than

is proposed in this NPRM. The FHWA believes the increased burdens would

be unusual and uncustomary and thus believe a burden would be imposed

by the statute. Calculating these costs into the estimate, the FHWA

believes the burden imposed by the statute would be at least

219,095,423 hours.

The FHWA has calculated the second year total operating and

maintenance financial burden for maintaining the records for the

current six-month retention period and also for a four-month and one-

year retention period. The FHWA's estimate of the total costs before

subtracting the costs of the wages paid to recordkeepers would be as

follows for RODS and supporting documents.

[[Page 19466]]

Second Year Total Operating and Maintenance Costs

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

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

One year retention period............................. 1,122,611,000

National Environmental Policy Act

The agency has analyzed this action for the purposes of the

National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has

determined that this action will not affect the quality of the

environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 390

Highway safety, Highways and roads, Motor carriers, Motor vehicle

identification and marking, Reporting and recordkeeping requirements.

49 CFR Part 395

Global positioning systems, Highway safety, Highways and roads,

Intelligent Transportation Systems, Motor carriers, Motor vehicle

safety, Reporting and recordkeeping requirements.

Issued: April 10, 1998.

Gloria J. Jeff,

Deputy Administrator, Federal Highway Administration.

In consideration of the foregoing, the FHWA is proposing to amend

Title 49, CFR, chapter III, parts 390 and 395 as set forth below:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

1. The authority citation for part 390 is revised to read as

follows:

Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and

31504; and 49 CFR 1.48.

Sec. 390.31 [Amended]

2. Section 390.31(d) is revised to read as follows:

Sec. 390.31 Copies of records or documents.

* * * * *

(d) Exception. All records may be maintained through the use of

automated, electronic, or laser technology systems provided the motor

carrier can produce, within 48 hours of a demand, a printed copy of the

required data; provided that alternate means for signature verification

are available.

PART 395--HOURS OF SERVICE OF DRIVERS

3. The authority citation for part 395 is revised to read as

follows:

Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec.

113, Pub. L. 103-311, 108 Stat. 1676; and 49 CFR 1.48.

4. Section 395.2 is amended by adding the following definition,

alphabetically, to read as follows:

Sec. 395.2 Definitions.

* * * * *

Supporting document means any document that is generated or

received by a motor carrier or commercial motor vehicle driver in the

normal course of business that could be used, as produced or with

additional identifying information, to verify the accuracy of a

driver's record of duty status. For the purposes of this definition,

any document means any record or document, either written or

electronic, that is available individually or in combination with other

records or documents, to verify the accuracy of a driver's record of

duty status because of its potential to provide a reasonably accurate

reference to dates, times and locations. Examples of supporting

documents are: Accident/incident reports, bills of lading, border

crossing reports, carrier pros (waybills), cash advance receipts,

credit card receipts and statements, customs declarations, delivery

receipts, dispatch/assignment records, driver reports (facsimile or

call-in logs), expense vouchers, freight bills, fuel billing

statements, fuel receipts, gate receipts, global positioning reports,

inspection reports, invoices, interchange reports, International

Registration Program receipts, International Fuel Tax Agreement

receipts, lessor settlement sheets, lodging receipts, lumper receipts,

on-board computer reports, over/short and damage reports, overweight/

oversize reports and citations, port of entry receipts, telephone

billing statements, toll receipts, traffic citations, transponder

reports, trip permits, trip reports, waybills, and weight/scale

tickets.

* * * * *

5. Section 395.8 is amended by revising paragraph (k) to read as

follows:

Sec. 395.8 Driver's record of duty status.

* * * * *

(k) Retention of driver's record of duty status. (1) Driver's

records of duty status for each calendar month may be retained at the

driver's home terminal or other regular reporting location until the

20th day of the succeeding calendar month. Such records shall then be

forwarded to the carrier's principal place of business, or such

alternate location as the motor carrier designates for record retention

purposes, where they shall be retained with all supporting documents

for six months from the original date of receipt. Within 48 hours

(Saturdays, Sundays and official holidays excluded) after a Federal,

State, or local enforcement official has made an authorized request

(for inspection and verification of the hours-of-service requirements

and the accuracy of the driver's records of duty status), a motor

carrier shall make available all records of duty status and supporting

documents at the motor carrier's principal place of business.

(2) The driver shall retain a copy of each record of duty status

for the previous 7 consecutive days that shall be in his or her

possession and available for inspection while on duty.

6. Section 395.10 is added to read as follows:

Sec. 395.10 Verification and record retention.

(a) Every motor carrier must have a self-monitoring auditing

system, adequately described in writing, that can be used effectively

to verify the driver's hours of service and the accuracy of the

information contained on the driver's record of duty status. The

auditing system must be capable of reproduction and an explanation of

the system must be available in written form for inspection by

authorized Federal, State or local enforcement personnel. The

explanation of the system must include:

(1) Identification of the supporting documents, by common name, the

motor carrier uses to verify the accuracy of the driver's hours of

service or record of duty status;

(2) A description of how the system is used; and

(3) The procedure used to promptly notify a driver who has recorded

information inaccurately on a record of duty status which is required

by Sec. 395.8 of this part; and

(4) The corrective action the motor carrier takes or has taken to

improve the driver's compliance with providing accurate information.

[[Page 19467]]

(b)(1) The supporting document auditing system's procedural manual

must be available to all motor carrier personnel with responsibility to

control or audit compliance with this part and must be made available

to the FHWA and other appropriate enforcement agencies for inspection

upon authorized request or demand. The FHWA and other appropriate

enforcement agencies will only request inspection of the written

manuals at motor carriers' principal places of business or other

terminal locations where records required by this part are maintained.

The manual is not required to be produced at roadside driver-vehicle

inspection locations.

(2) If the audit system can be demonstrated to be effective to

verify the actual hours of service performed and the accuracy of the

driver's record of duty status, the motor carrier is not required to

maintain any additional supporting documents, and, in the absence of

reasonably reliable information supported by documentary evidence to

contradict the system found to be effective, no demand will be made for

additional supporting documents the motor carrier may maintain for

other purposes.

(c)(1) Each motor carrier who fails to have a supporting document

auditing system in accordance with paragraphs (a) and (b) of this

section or fails to provide the FHWA or other enforcement officers with

a written explanation of the supporting document auditing system

(manual), will be responsible for requiring every driver to obtain all

supporting documents from the beginning of every trip to the end of

every trip, including intermediate points during the trip. All

supporting documents must be made available for inspection at the motor

carrier's location and the FHWA or other enforcement officers will use

a reasonably sufficient number, in the appropriate enforcement agency's

discretion, to verify the accuracy of records of duty status.

(2) Failure by a motor carrier to have either a supporting document

auditing system, required by paragraphs (a) and (b) of this section,

or, in the absence of the system, to require the driver to obtain and

forward to the motor carrier every supporting document that is provided

to the driver during a trip, as required by this section, may result in

monetary penalties or a compliance order for failure to comply with the

supporting document auditing system requirement. A failure by the motor

carrier to adequately control the drivers' falsification of their

records of duty status may also result in a compliance order. Failure

to comply with such order may subject a motor carrier to civil or

criminal penalties under 49 U.S.C. 521.

(d) In the absence of a verifiable and effective record of duty

status auditing system, every motor carrier must require every driver

who is required to prepare records of duty status to retain and every

driver must retain all supporting documents containing reasonably

reliable references to date, time, or location, which may come into the

possession of the driver in the ordinary course of the driving

operation. The driver must provide the supporting documents and the

records of duty status:

(1) To any duly authorized enforcement official of Federal, State

or local government upon request or demand; and

(2) To the motor carrier at the time the corresponding record of

duty status is required to be submitted.

(e) The driver must identify the supporting document required under

paragraph (d) of this section by adding his or her name, and the time,

date, location and vehicle number, if those items do not already appear

on the document. The driver's signature certifies that all entries

required by this section made by the driver are true and correct.

(f) The driver must retain a copy of each supporting document with

the record of duty status to which it relates for the previous seven

consecutive days in his or her possession and available for inspection

while on duty. Exception. The requirements of this paragraph do not

apply if the driver has submitted the original record of duty status

with the supporting documents annexed to the motor carrier following

Sec. 395.8(k)(1) of this part.

(g) The motor carrier must identify each supporting document

received from the driver under paragraph (d) of this section, or from

any other source including self-generated documents, by noting on the

document the following information, if the information does not already

appear on the document:

(1) The time, date or location of the event that produced the

document;

(2) The driver's name; and

(3) The vehicle number (i.e., truck, tractor, or coach).

(h) Retention of supporting documents. Supporting documents for

each calendar month may be retained at the driver's home terminal or

other regular work reporting location until the 20th day of the

succeeding calendar month. Such documents must then be forwarded to the

carrier's principal place of business, or any location the motor

carrier chooses, where they must be retained with all records of duty

status for six months from the original date of receipt. Within 48

hours (Saturdays, Sundays and official holidays excluded) after a

Federal, State, or local enforcement official has made a valid request

or demand (for inspection and verification of the hours of service

requirements and the accuracy of the driver's records of duty status),

a motor carrier must make available all records of duty status, time

records in cases of 100-air mile radius exception, and supporting

documents at the motor carrier's principal place of business.

(i) The FHWA may use any evidence whether or not in the motor

carrier's possession, to determine compliance with hours of service

requirements and verify the accuracy of the drivers records of duty

status and the motor carrier's supporting document auditing system. If

the FHWA discovers that the motor carrier's system is ineffective,

misrepresented, or abused, the FHWA may require the motor carrier to

modify its system or may require the motor carrier to collect and

maintain all supporting documents as required by paragraphs (d) through

(h) of this section. Civil or criminal penalties may also apply if the

motor carrier or driver are determined to have misrepresented or abused

the system.

[Approved by the Office of Management and Budget under control

number __________]

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

BILLING CODE 4910-22-P