
[Federal Register: June 10, 2010 (Volume 75, Number 111)]
[Notices]               
[Page 32984-32987]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn10-86]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2010-0168]

 
Policy on the Retention of Supporting Documents and the Use of 
Electronic Mobile Communication/Tracking Technology in Assessing Motor 
Carriers' and Commercial Motor Vehicle Drivers' Compliance With the 
Hours of Service Regulations

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

ACTION: Notice of Regulatory Guidance and Policy Change.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
provides notice to the motor carrier industry and the public of 
regulatory guidance and policy changes regarding the retention of 
supporting documents and the use of electronic mobile communication/
tracking technology in assessing motor carriers' and commercial motor 
vehicle drivers' compliance with the hours of service regulations.

DATES: Effective Date: This change in policy is effective July 12, 
2010. Comments should be submitted on or before July 9, 2010. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments (identified by Docket Number FMCSA-
2010-0168) using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316), or 
you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: Mr. David Mancl, Team Leader, 
Enforcement and Compliance Division, MC-ECE, Federal Motor Carrier 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Telephone: 202-493-0442. Web site address: http://
www.fmcsa.dot.gov.

SUPPLEMENTARY INFORMATION: 

Background

    In 1997, the Federal Highway Administration (FHWA), FMCSA's 
predecessor agency, issued a policy memorandum recognizing that 
advanced technologies, which were

[[Page 32985]]

emerging and being implemented within the industry, offered an 
opportunity to improve operational and safety performance. To promote 
and encourage the use of these new technologies in the industry's 
operations and overall safety management, the Agency limited the use of 
the data and records generated by advanced technologies for checking 
hours of service compliance during reviews and regulatory enforcement 
actions.
    After more than a decade, the Agency's policy achieved its purpose; 
the once emerging technologies are today a widely accepted and 
essential component of the industry's logistics, operations and safety 
management systems. FMCSA therefore rescinded the 1997 policy on 
November 19, 2008, effective December 19, 2008. (73 FR 69717)
    On December 24, 2008, the Associate Administrator for Enforcement 
and Program Delivery issued an internal Agency policy memorandum 
titled: ``Use of Advanced Information Technology Policy.'' This 
memorandum informed FMCSA and State enforcement personnel that FMCSA 
would exercise its full statutory authority under 49 U.S.C. 504(c) to 
inspect and copy records of a motor carrier. If a motor carrier uses 
Global Positioning Systems (GPS) or other electronic mobile 
communication/tracking technology during the ordinary course of its 
business, FMCSA has the authority to request these records and use them 
during the course of an investigation. FMCSA considers electronic 
mobile communication/tracking records to be supporting documents, as 
they record the time, date, and/or location of motor vehicles and/or 
drivers.
    Since December 2008, there has been some confusion concerning 
FMCSA's use of these technologies for enforcement purposes and the 
requirements for motor carriers to retain and produce related records 
upon demand. The Agency has identified the need for further guidance 
regarding the use of electronic mobile communication/tracking records 
to verify compliance with 49 CFR Part 395, Hours of Service Drivers. 
Today's Policy, therefore, supersedes the December 2008 Policy.
    Following up its commitment as stated in the April 2010 final rule, 
Electronic On-Board Recorders (EOBRs) for Hours-of-Service (HOS) 
Compliance, 75 FR 17208, FMCSA is drafting a notice of proposed 
rulemaking (NPRM) to further advance motor carrier safety through 
improved HOS compliance. This NPRM will have three components: (1) 
Proposing that EOBRs be required for considerably more motor carriers 
and drivers, (2) proposing that motor carriers be required to develop 
and maintain systematic and effective HOS oversight for their drivers, 
and (3) proposing, pursuant to Sec. 113 of the Hazardous Materials 
Transportation Authorization Act of 1994, title I of Public Law 103-
311, 108 Stat. 1673 (Aug. 26, 1994) (HMTAA), requirements for motor 
carriers to retain HOS supporting documents. The Agency anticipates 
publishing the NPRM by the end of 2010 and publishing a final rule 
within 24 months. In clarifying current enforcement practices, today's 
guidance moves toward the anticipated NPRM.

Policy

    This Policy is intended to be used by enforcement personnel as 
guidance in making enforcement decisions. Nothing in this Policy is 
intended to alter a motor carrier's duty to ensure that its employees 
and agents are complying with all applicable regulations. A motor 
carrier is responsible for the acts and omissions of its employees and 
agents with respect to regulatory compliance.
    Previous policy statements have used the terms ``GPS'' and 
``Advanced Information Technology'' to describe electronic mobile 
communication/tracking technology. FMCSA recognizes that these terms 
are no longer adequate to describe electronic mobile communication/
tracking technology. Such technologies can no longer be considered 
``advanced'' as they are now widely accepted and used in the industry. 
Likewise, electronic mobile communication/tracking systems may rely on 
technology other than GPS to determine the time, date, and/or location 
of motor vehicles and/or drivers. For ease of discussion in this 
Policy, the use of the phrases ``electronic mobile communication/
tracking technology,'' ``electronic mobile communication/tracking 
systems,'' and ``electronic mobile communication/tracking records'' 
shall be deemed to include those technologies and records that allow a 
motor carrier to identify the location of a motor vehicle or driver, or 
that allow a motor carrier to send or receive messages to or from its 
drivers. The application of this Policy to a technology or record does 
not depend on the method of communication or the technology used to 
obtain the time and/or position location information.

Supporting Documents Requirements for Motor Carriers Without Qualifying 
Electronic Mobile Communication/Tracking Technology

    Supporting documents are motor carriers' records that are 
maintained in the ordinary course of business and may be used by the 
motor carrier to verify information recorded on the driver's RODS. On 
April 4, 1997, as part of a set of guidance and policy statements, 
FHWA, FMCSA's predecessor agency, published a list of more than thirty 
examples of supporting documents that motor carriers needed to retain 
pursuant to 49 CFR 395.8(k)(1) (62 FR 16370, 16425) (Guidance Question 
10). Based on its enforcement experience since 1997, FMCSA recognizes 
that certain documents in that list are not regularly used by 
enforcement staff to verify the accuracy of records of duty status 
(RODS) and that requiring motor carriers to retain these documents is 
no longer necessary. FMCSA will therefore no longer consider the 
following to be ``supporting documents'' and will not require motor 
carriers to maintain and produce such documents pursuant to 49 CFR 
395.8(k)(1):
     Driver call-in records;
     International registration plan receipts;
     International fuel tax agreement receipts;
     Trip permits;
     Cash advance receipts; and
     Driver fax reports (cover sheets).
    The Agency rescinds the list of examples of supporting documents in 
the April 4, 1997, Guidance Question 10 and provides the following 
updated, shorter list: Bills of lading, carrier pros, freight bills, 
dispatch records, electronic mobile communication/tracking records (as 
explained below), gate record receipts, weigh/scale tickets, fuel 
receipts, fuel billing statements, toll receipts, toll billing 
statements, port of entry receipts, delivery receipts, lumper receipts, 
interchange and inspection reports, lessor settlement sheets, over/
short and damage reports, agricultural inspection reports, driver and 
vehicle examination reports, crash reports, telephone billing 
statements, credit card receipts, border crossing reports, customs 
declarations, traffic citations and overweight/oversize permits and 
traffic citations.
    Motor carriers without qualifying electronic mobile communication/
tracking technology must continue to retain other supporting documents 
that may be used to verify information on the driver's RODS. If the 
motor carrier has multiple offices or terminals and these records are 
maintained at motor

[[Page 32986]]

carrier locations other than the motor carrier's principal place of 
business, see Regulatory Guidance on the Definition of ``Principal 
Place of Business,'' July 29, 2009 (74 FR 37653), they must be 
forwarded to the principal place of business, or other location 
specified, upon a request by an authorized FMCSA representative or 
State official in accordance with 49 CFR 390.29.

Supporting Documents Requirements for Motor Carriers That Use 
Qualifying Electronic Mobile Communication/Tracking Technology

    If a motor carrier uses a paper RODS system and also uses 
electronic mobile communication/tracking technology on specific 
vehicles and can produce electronic mobile communication/tracking 
records acceptable to the Agency under this Policy, FMCSA will permit 
the motor carrier to maintain and submit fewer paper supporting 
documents.
    Whether the electronic mobile communication/tracking records are 
acceptable to the Agency under this Policy or not, the investigator has 
the authority to demand those records, and he or she may accept them in 
either printed or electronic form from the motor carrier. These records 
will be used to assess motor carrier and commercial motor vehicle 
driver compliance with the HOS regulations and for other evaluations 
into the safety performance or regulatory compliance of the motor 
carrier. Electronic mobile communication/tracking records may also be 
used by the Agency as evidence in any proceeding to enforce Federal 
motor carrier statutes and regulations.
    For each vehicle a motor carrier uses for which the motor carrier 
can produce electronic mobile communication/tracking records acceptable 
under this Policy, the motor carrier is no longer required to maintain 
or produce the following supporting documents pursuant to 49 CFR 
395.8(k)(1) for the driver of that vehicle:
     Gate record receipts;
     Weigh/scale tickets;
     Port of entry receipts;
     Delivery receipts;
     Toll receipts;
     Agricultural inspection reports;
     Over/short and damage reports;
     Driver and vehicle examination reports; \1\
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    \1\ This notice does not affect motor carriers' duty to maintain 
driver and vehicle examination reports in accordance with the 
retention requirements of 49 CFR part 396. See 49 CFR 396.11(c)(2) 
and 396.9(d)(3)(ii).
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     Traffic citations;
     Overweight/oversize reports and citations;
     Carrier pros;
     Credit card receipts;
     Border Crossing Reports;
     Customs declarations; and
     Telephone billing statements.
    Motor carriers that seek to take advantage of the less burdensome 
supporting documents retention requirements available under this Policy 
are precluded in HOS enforcement proceedings from challenging the 
accuracy of their own electronic mobile communication/tracking records.

Qualifying Electronic Mobile Communication/Tracking Technology

    For each vehicle for which a motor carrier seeks to take advantage 
of the less burdensome supporting documents retention requirements 
available under this Policy, the motor carrier must show that the 
electronic mobile communication/tracking records have the 
characteristics below:
    Positioning Frequency: The system must be set up to communicate 
position location at a rate of at least one time per hour, per vehicle, 
while the vehicle is in motion.
    Vehicle Integration: The system must be integrally synchronized 
with the vehicle.
    Report Functionality: The system must be capable of generating upon 
demand a document/record, either printed (paper) or electronically 
rendered (spreadsheet, portable document format, tagged image file 
format or other commonly available software format), showing the 
required Report Content.
    Report Content: The position history report must include, at a 
minimum, vehicle identification information, date, time, proximity 
location (reference points), and latitude and longitude for each 
position communication.
    Retention: Motor carriers must maintain position history reports 
for a period of six months in accordance with 49 CFR 395.8(k)(1).
    If the motor carrier's electronic mobile communication/tracking 
records for a particular vehicle do not qualify under this Policy, the 
motor carrier must maintain all supporting documents that may be used 
to assess motor carrier and commercial motor vehicle driver compliance 
with the HOS regulations, pursuant to 49 CFR 395.8(k)(1). A motor 
carrier that uses electronic mobile communication/tracking technology 
in the ordinary course of business for any purpose is expected to 
include the use of records and information generated by that technology 
in its HOS oversight activities.

Related Information

    A motor carrier's responsibility to ensure the accuracy of its 
drivers' RODS is not limited by the list of examples of supporting 
documents in this Policy. A motor carrier is liable for false RODS 
submitted by its drivers and other HOS violations if the motor carrier 
had or should have had the means by which to detect the violations, 
regardless of whether the means to detect the violations is included in 
the list of examples of supporting documents.
    All motor carriers that use electronic mobile communications/
tracking technology, whether or not such technology is qualifying 
technology under this Policy, must continue to retain data generated by 
that system in the ordinary course of business. The motor carrier is 
not required, for purposes of responding to investigations by FMCSA or 
State enforcement personnel, to convert the data from the format in 
which it is ordinarily retained. However, if the motor carrier receives 
in the ordinary course of business electronic or printed reports or 
other communications in which the data is converted to a more readable 
or usable format, the motor carrier must retain such reports or 
communications and provide them to investigators upon demand.
    If a motor carrier denies the Agency access to its supporting 
documents, including, without limitation, electronic mobile 
communication/tracking records, the motor carrier's action shall be 
considered a denial of access under 49 U.S.C. 521(b)(2)(E). As with all 
supporting documents, a failure to maintain electronic mobile 
communication/tracking records may be cited under 49 CFR 395.8(k)(1).
    FMCSA recognizes that motor carriers may use electronic mobile 
communication/tracking technologies for applications other than 
recording the time, date and/or location of a motor vehicle and/or 
driver. An electronic record of vehicle performance trends and events 
such as speeding or hard-braking, or vehicle performance measures such 
as fuel consumption (MPG) or engine speed (RPM), which may be captured 
through on-board sensors and transmitted via electronic mobile 
communication/tracking technology, is not required to be maintained as 
a supporting document under 49 CFR Part 395. However, if a triggering 
event or performance measure creates a record of the time, date, and/or 
location of a motor vehicle and/or driver, then the time, date and/or 
location of that event or measure must be retained.

[[Page 32987]]

    Other statutes and/or regulations may require the retention of 
certain listed documents. This Policy does not affect a motor carrier's 
responsibility to comply with these other statutes and/or regulations.
    This Policy is not intended to address motor carriers that use 
EOBRs under the terms of a remedial directive and EOBRs or Automatic 
On-Board Recording Devices (AOBRDs) under the terms of a settlement 
agreement. Carriers subject to a remedial directive or settlement 
agreement must comply with the terms of that directive or agreement, 
including requirements to retain particular documents.

    Issued on: June 4, 2010.
William A. Quade,
Associate Administrator for Enforcement and Program Delivery.
[FR Doc. 2010-13901 Filed 6-9-10; 8:45 am]
BILLING CODE 4910-EX-P

