[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Proposed Rules]
[Pages 19457-19467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10252]


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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