[Federal Register Volume 72, Number 206 (Thursday, October 25, 2007)]
[Proposed Rules]
[Pages 60614-60616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20980]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 379, 381, 385, 390, and 395

[Docket No. FMCSA-1998-3706]
RIN 2126-AA76


Hours of Service of Drivers; Supporting Documents SNPRM; 
Withdrawal

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

ACTION: Supplemental notice of proposed rulemaking (SNPRM); withdrawal.

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SUMMARY: FMCSA withdraws its November 3, 2004, SNPRM that proposed 
requirements for the collection and use of documents to verify the 
accuracy of driver records of duty status. The FMCSA intends to publish 
a new notice of proposed rulemaking (NPRM) at a later date.

DATES: The SNPRM published on November 3, 2004 (69 FR 63997), is 
withdrawn as of October 25, 2007.

[[Page 60615]]


FOR FURTHER INFORMATION CONTACT: David Mancl, Team Leader, Office of 
Enforcement and Compliance, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, 
Telephone: (202) 493-0442. Office hours are from 7:45 a.m. to 4:15 
p.m., E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

    The FMCSA regulates the number of hours that a driver of a 
commercial motor vehicle may drive and be on duty, the minimum length 
of rest periods between tours of duty, and weekly limits. Drivers must 
keep a log, called the ``record of duty status'' (RODS), that indicates 
their status (driving, on duty, not driving, off duty, or in a sleeper 
berth) for every day. These RODS are submitted to the motor carrier, 
which must retain them for six months.
    On November 28, 1982 (47 FR 53383), the Federal Highway 
Administration (FHWA) (predecessor to FMCSA) promulgated a final rule 
that required a motor carrier to verify the accuracy of the hours of 
service (HOS) RODS of each driver and to ensure that drivers record 
their duty status in a specified format. The rule is codified in Sec.  
395.8 of Title 49 of the Code of Federal Regulations. Congress directed 
FHWA to revise the rule to improve both driver and carrier compliance 
and the effectiveness and efficiency of HOS enforcement, at a cost 
reasonable to the motor carrier industry (section 113(a) of the 
Hazardous Materials Transportation Authorization Act of 1994 (HMTAA) 
Public Law 103-311, August 26, 1994, 108 Stat. 1673 at 1676). Section 
113(b) directs the Agency to specify the number, type, and frequency of 
``supporting documents'', that is documents used to verify the accuracy 
of driver RODS, that must be maintained as well as the identification 
items that must be a part of the documents.
    In response to section 113(a), FHWA published an NPRM on supporting 
documents in 1998 (63 FR 19457, April 20, 1998). The FMCSA included 
further proposals on supporting documents in its proposed rule on hours 
of service in 2000 (65 FR 25540, May 2, 2000). On November 3, 2004, 
FMCSA published an SNPRM proposing language to clarify the duties of 
motor carriers and drivers with respect to supporting documents, and 
requesting further comments on the issue (69 FR 63997).
    The SNPRM addressed self-monitoring systems, RODS, supporting 
documents for use in monitoring and enforcing the HOS, and definitions 
for ``supporting documents'' and ``employee.'' The FMCSA proposed 
requiring a motor carrier to maintain HOS supporting documents in a way 
that let the carrier or a Federal or State investigator readily connect 
the supporting documents to the RODS that they support. The FMCSA 
expected the proposed language would clarify a motor carrier's duties 
under current regulations and increase motor carrier compliance with 
this requirement. A carrier's ``self-monitoring system'' would be the 
primary method a motor carrier would use to ensure drivers' compliance 
with the HOS regulations. The SNPRM listed documents that could serve 
as supporting documents.

Discussion of Comments

    The FMCSA received 197 comments in response to the SNPRM. Comments 
were received from for-hire and private motor carriers, trade 
associations, a State enforcement agency, safety advocacy groups, an 
insurance group, a driving school, wireless equipment businesses, and 
individuals. Commenters expressed concerns about varying aspects of the 
proposed rule. The following is a summary of the main comments.

Documentation

    Some commenters seemed to have misconstrued the list of supporting 
documents examples, and they were concerned about the number and 
quality of supporting documents proposed in the SNPRM. Some commenters 
believed FMCSA expected motor carriers to have access to or generate 
all or most of the documents listed. They also stated that many of the 
examples on the list did not provide data that could be used to verify 
RODS. Some commenters noted that short-haul operators did not have 
access to or generate many of the documents listed in the SNPRM. 
Several commenters noted that small motor carriers could have been at a 
disadvantage during an audit because they do not maintain a large 
number of documents with which to reconcile RODS. One association 
stated that the proposed rule violated drivers' privacy rights. Other 
commenters were concerned that failure to maintain all documents that 
supported drivers' RODS would constitute a violation of the proposed 
rule.

Self-Monitoring System

    Commenters were concerned about the lack of specificity in defining 
the concept of a ``self-monitoring system.'' Some commenters suggested 
that the use of statistically valid methods of sampling RODS and their 
supporting documents should indicate an adequate system. Some 
commenters objected to the use of a 10-percent failure rate in 
assessing a self-monitoring system because there was no rationale for 
that percentage.

Burden

    Many commenters contended that the requirement to verify, inspect, 
and maintain all records generated by a driver was unrealistic and 
burdensome, particularly for small motor carriers. Some commenters 
stated that FMCSA's assertion that the proposed rule imposed minimal 
burdens on compliant motor carriers was incorrect and vastly 
underestimated the actual paperwork burden. Commenters believed the 
proposed rule was vague and would require them to retain records they 
did not keep and to devote inordinate amounts of staff time to linking 
supporting documents to RODS. Drivers, particularly owner-operators 
operating under leases, complained that they would have to make copies 
of documents that they need for other purposes so that they could 
submit the documents to a motor carrier. Motor carriers would also have 
had to retain multiple copies of some documents because they are needed 
for other purposes. Some commenters stated that if the records were 
retained electronically, a requirement to link electronic records to a 
driver's RODS would entail considerable reprogramming of existing 
systems. Some commenters indicated that the proposed rule would 
unfairly burden smaller motor carriers who did not need an electronic 
tracking system. Cost estimates submitted by a few commenters far 
exceeded those presented by FMCSA.

Other Issues

    Some commenters recommended the use of electronic on-board 
recorders (EOBRs) in place of supporting documents. Other commenters 
objected to the use of EOBRs. A substantial number of commenters 
objected to the definition of supporting documents as being too broad. 
Some commenters were concerned that FMCSA would require both paper and 
electronic records. A number of commenters stated the proposed rule did 
not meet the statutory criteria for supporting documents as defined in 
the HMTAA.
    Other commenters were concerned that applications for exemptions 
would overwhelm FMCSA resources. Some commenters were worried that the 
exemptions would be routinely granted, thereby undermining the 
usefulness of

[[Page 60616]]

the rule. Commenters raised issues related to the application of the 
rule and its enforcement; they questioned whether it was fair to cite a 
motor carrier for a driver's RODS violations when the carrier had 
identified and disciplined the driver for those violations. A number of 
commenters raised concerns about copies of records and documents, 
location of records, and the retention period, reflecting confusion and 
uncertainty about the proposed document collection and retention 
requirements. Commenters also made suggestions about the definitions of 
``employee'' and ``falsification.''

FMCSA Decision

    The FMCSA has decided to withdraw this rulemaking action. There are 
issues with the Paperwork Reduction Action of 1995 (PRA) (44 U.S.C. 
3501-3520) analysis supporting this action. In response to comments 
that the Agency's estimated information collection burden associated 
with the proposed rule significantly underestimated the actual burden 
the industry would confront, FMCSA reevaluated its analysis of the rule 
as required by the PRA. The Agency discovered that the PRA analysis 
proposed for this rule did not account for the supporting document 
collection and retention burdens associated with the existing driver 
RODS information collection requirements. This oversight initially 
occurred in the 1998 NPRM when the Agency relied upon the burden 
assessment conducted for the 1982 Drivers Log Rule, which captured the 
paperwork burden for maintaining driver logs but did not capture the 
burden of collecting and maintaining supporting documents. Accordingly, 
the Agency withdraws this rulemaking action in order to conduct a 
comprehensive analysis of the information collection burden associated 
with the existing supporting documents requirements of the Federal 
Motor Carrier Safety Regulations.
    After the paperwork analysis that accurately identifies the 
information collection burden associated with the existing supporting 
documents requirements is complete, the Agency intends to initiate a 
new rulemaking action to comply with the requirements of Section 113 of 
the HMTAA. This will ensure that the new rulemaking proposal is based 
on an accurate and comprehensive understanding of the existing 
information collection inventory for supporting documents. It will 
further allow the opportunity for notice and comment on the rulemaking 
proposal without confusion associated with previous stages of this 
rulemaking action.

    Issued on: October 18, 2007.
John H. Hill,
Administrator.
 [FR Doc. E7-20980 Filed 10-24-07; 8:45 am]
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