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[Federal Register: October 25, 2007 (Volume 72, Number 206)]
[Proposed Rules]
[Page 60614-60616]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25oc07-31] =========================================================
----------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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withdrawn as of October 25, 2007.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] BILLING CODE 4910-EX-P
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