Federal Motor Carrier Safety Administration Seeks Comments on Use of Electronic Documents and Signatures

Targeted News Service

Targeted News Service

WASHINGTON, April 28 -- The Federal Motor Carrier Safety Administration published the following proposed rule in the Federal Register:

Electronic Documents and Signatures

A Proposed Rule by the Federal Motor Carrier Safety Administration on 04/28/2014

Publication Date: Monday, April 28, 2014

Agencies: Department of Transportation

Federal Motor Carrier Safety Administration

Dates: You may submit comments on or before June 27, 2014. Comments received after this date will be considered to the extent practicable.

Comments Close: 06/27/2014

Entry Type: Proposed Rule

Action: Notice of proposed rulemaking (NPRM).

Document Citation: 79 FR 23306

Page: 23306 -23316 (11 pages)

CFR:

49 CFR 370

49 CFR 371

49 CFR 373

49 CFR 375

49 CFR 376

49 CFR 378

49 CFR 379

49 CFR 387

49 CFR 389

49 CFR 390

49 CFR 391

49 CFR 395

49 CFR 396

49 CFR 398

Agency/Docket Number: Docket No. FMCSA-2012-0376

RIN: 2126-AB47

Document Number: 2014-09376

Shorter URL: https://federalregister.gov/a/2014-09376

Action

Notice Of Proposed Rulemaking (Nprm).

Summary

FMCSA proposes amendments to its regulations to allow the use of electronic records and signatures to satisfy FMCSA's regulatory requirements. The amendments would permit the use of electronic methods to sign, certify, generate, exchange or maintain records so long as the documents accurately reflect the information in the record and can be used for their intended purpose. This proposed rule would apply only to those documents that FMCSA's regulations obligate entities or individuals to retain; it would not apply to forms or other documents that must be submitted directly to FMCSA. This proposed rule responds in part to the President's January 2011 Regulatory Review and Reform initiative and would implement the Government Paperwork Elimination Act (GPEA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN).

DATES:

You may submit comments on or before June 27, 2014. Comments received after this date will be considered to the extent practicable.

ADDRESSES:

You may submit comments identified by the docket number FMCSA-2012-0376 using any one of the following methods:

Federal eRulemaking Portal: www.regulations.gov.

Fax: 202-493-2251.

Mail: Docket Services (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the "Public Participation and Request for Comments" heading under the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, please call or email Genevieve Sapir, Office of Counsel, FMCSA, telephone: 202-366-7056; email: Genevieve.Sapir@dot.gov. If you have questions on viewing or submitting material to the docket, please call Barbara Hairston, Docket Services, telephone 202-366-3024.</p>

I. Executive Summary

A. Purpose and Summary of the Major Provisions

This proposed rule would establish parity between paper and electronic documents and signatures, and expand businesses' and individuals' ability to use electronic methods to comply with FMCSA's requirements. This rule would apply only to documents that FMCSA requires individuals or entities to retain. It would also update references to outdated recordkeeping and reporting methods throughout chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) to make them technologically neutral.

This proposed rulemaking would implement the Government Paperwork Elimination Act (GPEA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN).

B. Benefits and Costs

FMCSA expects this proposed rule to provide regulatory relief to the industry. Under this proposed rule, regulated entities would have the flexibility to conduct business using either electronic or traditional paper-based methods. The Agency also expects regulated entities to choose technologies that would maximize benefits in accordance with their individual needs and circumstances.

II. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (FMCSA-2012-0376), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material either online, by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comment online, go to www.regulations.gov, put the docket number, "FMCSA-2012-0376" in the "Keyword" box, and click "Search." When the new screen appears, click on the "Comment Now!" button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

B. Viewing Comments and Documents

To view comments and any document mentioned in this preamble, go to www.regulations.gov, insert the docket number, "FMCSA-2012-0376" in the "Keyword" box, and click "Search." Next, click "Open Docket Folder" button and choose the document listed to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Services in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

C. Privacy Act

All comments received will be posted without change to www.regulations.gov and will include any personal information you have provided. Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the DOT Privacy Act Statement for the Federal Docket Management System published in the Federal Register (FR) on December 29, 2010 (75 FR 82132), or you may visit http://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf.

III. Background

In recent years, FMCSA has received a number of requests from motor carriers and other interested parties asking permission to use electronic methods to comply with various Agency regulations that require motor carriers and individuals to generate, sign or store documents. Previously, FMCSA made determinations on a case-by-case basis as to whether certain categories of documents could be generated, signed or stored electronically. Modern technologies and evolving business practices, however, have rendered the distinction between paper and electronic documents and signatures obsolete in most cases. Recognizing that many businesses and individuals can achieve greater efficiencies using electronic methods but that others prefer paper-based recordkeeping, FMCSA decided to give regulated entities the flexibility to choose which methods to use.

As a result, on January 4, 2011, FMCSA issued regulatory guidance (76 FR 23338) on the use of electronic signatures and documents to satisfy FMCSA's regulatory requirements. That guidance provided that, for the purposes of complying with any provision in chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) that requires a document to be created, signed, certified or retained by any person or entity, that person or entity may, but is not required to, use electronic methods. The guidance further stated that in order for electronic methods to satisfy FMCSA's regulatory requirements, the documents or signatures had to accurately reflect the information in the record and remain accessible in a form that can be accurately viewed or reproduced according to Agency rules.

In addition, Presidential Executive Order (E.O.) 13563, "Improving Regulation and Regulatory Review" (issued January 18, 2011, and published January 21 at 76 FR 3821), prompted DOT to publish a notice in the Federal Register (76 FR 8940, February 16, 2011). This notice requested comments on a plan for reviewing existing rules, as well as identification of existing rules that DOT should review because they may be outmoded, ineffective, insufficient, or excessively burdensome. DOT placed all retrospective regulatory review comments, including a transcript of a March 14, 2011, public meeting, in docket DOT-OST-2011-0025. This proposed rule responds to a comment submitted to that docket.

This proposed rulemaking would codify FMCSA's guidance in newly proposed section 390.32 and eliminate references to outdated recordkeeping and reporting methods throughout the Agency's regulations. For further description of the proposed changes, please see the Section-by-Section Analysis in Part V of this preamble.

IV. Legal Basis for the Rulemaking

The Motor Carrier Safety Act of 1984 (98, Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to regulate drivers, motor carriers, and vehicle equipment. Section 211 of the 1984 Act grants the Secretary broad power, in carrying out motor carrier safety statutes and regulations, to "prescribe recordkeeping and reporting requirements" and to "perform other acts the Secretary considers appropriate" (49 U.S.C. 31133(a)(8) and (10)). The FMCSA Administrator has been delegated authority under 49 CFR 1.86(f) to carry out the functions vested in the Secretary of Transportation by 49 U.S.C. chapter 311, subchapters I and III, relating to commercial motor vehicle programs and safety regulation.

Two Federal statutes govern the Agency's implementation of electronic document and signature requirements. The GPEA (Title XVII (Sec. 1701-1710) of Public Law 105-277, 112 Stat. 2681-749, 44 U.S.C. 3504 note) was enacted on October 21, 1998, to improve customer service and governmental efficiency through the use of information technology. E-SIGN (Pub. L. 106-229, 114 Stat. 464, 15 U.S.C. 7001-7031) was signed into law on June 30, 2000. E-SIGN was designed to promote the use of electronic contract formation, signatures, and recordkeeping in private commerce by establishing legal equivalence between traditional paper-based methods and electronic methods.

The GPEA defines an electronic signature as a method of signing an electronic communication that: (a) Identifies and authenticates a particular person as the source of the electronic communication; and (b) indicates such person's approval of the information contained in the electronic communication (section 1710(1)). It also requires Federal agencies to provide individuals and entities the options of: (a) Submitting information or transacting with the agency electronically; and (b) using electronic records retention when practicable. The GPEA states that electronic records and their related electronic signatures shall not be denied legal effect, validity or enforceability merely because they are in electronic form. It also encourages agencies to use electronic signature alternatives (sections 1704, 1707).

For any transaction in or affecting interstate or foreign commerce, E-SIGN supersedes all pre-existing requirements that paper records be kept so long as: (a) Such records are generated in commercial, consumer, and business transactions between private parties; and (b) those parties consent to using electronic methods. Specifically, the statute establishes the legal equivalence for the following types of documents, whether in traditional paper or electronic form: (a) Contracts, (b) signatures, and (c) other legally-required documents (15 U.S.C. 7001(a)(1)).

In response to Presidential E.O. 13563, issued January 18, 2011, "Improving Regulation and Regulatory Review" (76 FR 3821, January 21, 2011), DOT published a request for comments in the Federal Register (76 FR 8940, February 16, 2011). It requested comments on a plan for reviewing existing rules, as well as identification of existing rules that DOT should review because they may be outmoded, ineffective, insufficient, or excessively burdensome. As a result of that notice and review, this amendment to regulations was placed on the list of opportunities to relieve the public burden.

V. Section-by-Section Analysis

A. Part 370

49 CFR 370.3

The Agency proposes non-substantive changes to this section to conform to the proposed definition of "written or in writing" at section 390.5, which would eliminate the distinction between paper and electronic methods of communication. Currently, section 370.3 distinguishes between "written" and "electronic" communications; however, under the proposed definition of "written or in writing," there is no such distinction. The proposed changes would incorporate both paper-based and electronic communications into the meaning of the terms "written or in writing." Thus, "written" documentation could mean written on paper or written electronically.

In today's commercial and legal environment, the term "written" no longer necessarily means "on paper." To the contrary, it can mean paper-based or electronic communications. Because "written or in writing" would mean either paper or electronic communications, FMCSA proposes to remove reference to electronic methods to eliminate redundancy and confusion. These changes would not mean, however, that parties are prohibited from using electronic methods. All parties would remain free to conduct their business using either paper or electronic means of documentation and communication.

49 CFR 370.5

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 370.5.

49 CFR 370.9

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 370.9.

B. Part 371

49 CFR 371.109

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 371.109.

49 CFR 371.111

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 371.111.

C. Part 373

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 373.103. In addition, FMCSA proposes to remove references to "original" documents to reflect the practical reality that there is no real distinction between originals and copies of electronic documents. Moreover, these changes conform to the proposed changes at section 390.31 which permit parties to maintain accurate copies in lieu of originals. FMCSA has determined that in today's commercial and legal environment, it does not need access to these original documents in order to discharge its regulatory responsibilities as long as the parties maintain accurate copies that otherwise meet the Agency's requirements.

D. Part 375

49 CFR 375.209

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation in section 375.209.

49 CFR 375.213

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation in section 375.213.

49 CFR 375.505

The proposed changes to section 375.505 would make clear that when a household goods motor carrier transports a shipment on a collection-delivery basis, notification of the charges can be made using the following methods of communication: fax, email, overnight courier, and certified mail, or return receipt requested.

E. Part 376

49 CFR 376.11

Currently, section 376.11(b)(1) includes outdated language specifying that receipts for leased equipment may be transmitted by mail, telegraph, or similar means of communication. FMCSA proposes to amend this section by removing all reference to the method of transmitting receipts, thereby leaving the parties the freedom to choose their own medium of communication.

In paragraph (d)(1), FMCSA proposes to eliminate reference to "papers," replacing the term with the word "documents." This change recognizes that the records this section requires motor carriers to maintain may be generated or maintained using traditional paper or electronic methods and eliminates any suggestion that the documentation must be in paper form.

49 CFR 376.12

In paragraph (f) of section 376.12, FMCSA proposes to eliminate references to "paperwork," replacing the term with the word "documentation," for the same reasons explained in the discussion of section 376.11(d)(1), above.

In paragraph (g), FMCSA proposes to eliminate outdated references to computer generated documents to eliminate the distinction between electronic and manually generated documents. In today's business and legal environment, there is no need to afford special treatment to computer generated documentation; eliminating this special treatment establishes technological neutrality in this section. These changes would not mean, however, that parties are prohibited from using computers to generate the documents required in this section. To the contrary, all parties would remain free to conduct their business using the technology they choose, as long as it otherwise meets the Agency's requirements.

In paragraph (l), FMCSA proposes to eliminate references to originals and copies of documents for the same reasons explained in the discussion of section 373.103, above.

F. Part 378

49 CFR 378.3

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of communication in section 378.3.

49 CFR 378.4

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 378.4.

49 CFR 378.5

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of communication in section 378.5.

49 CFR 378.6

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation in section 378.6.

49 CFR 378.7

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 378.7.

49 CFR 378.8

For the same reasons explained in the discussion of section 370.3, FMCSA proposes to remove references to electronic methods of documentation and communication in section 378.8.

G. Part 379

49 CFR 379.5

Section 379.5 requires motor carriers to protect records required under FMCSA's regulations from damage or loss. The current language in paragraph (a) is outdated in that it refers to physical damage that generally applies only to paper records. FMCSA proposes to update this paragraph by changing it to require motor carriers to protect records against destruction, deterioration, and data corruption. This change reflects the importance of maintaining the integrity of records regardless of the method used to maintain them.

49 CFR 379.7

Section 379.7 currently contains outdated record preservation language that does not take into account the use of computers and modern technology. FMCSA proposes to replace this language with new language that permits companies to preserve records using any technology that accurately reflects all of the information in the record and remains accessible for later use in accordance with the Agency's record keeping requirements. These proposed changes conform to the requirements for electronic methods proposed in new section 390.32.

49 CFR part 379 Appendix A

FMCSA proposes to eliminate references to "papers" in Appendix A, replacing the term with the word "documents" for the same reasons explained in the discussion of section 376.11(d)(1), above.

H. Part 387

49 CFR 387.7

Paragraph (b)(1) of section 387.7 requires insurers and motor carriers to give 35 days' notice prior to cancelling the financial responsibility policies required in section 387.9. Currently, this section establishes mail as the only method of communicating cancellations. FMCSA proposes to amend this section by replacing the word "mailed" with the more technologically neutral term "transmitted," and "Proof of mailing" with "Proof of transmittal" thus establishing parity between mailing and other methods of transmission as proof of cancellation.

49 CFR 387.31

FMCSA proposes to amend section 387.31(b)(1) by replacing the term "mailed" with "transmitted," and "Proof of mailing" with "Proof of transmittal"for the reasons explained in the discussion of section 387.7, above.

I. Part 389

49 CFR 389.19

Currently, section 389.19 requires members of the public who submit a petition for an extention of time within which to submit comments to a rulemaking to do so in duplicate. This language is outdated because members of the public have the option of submitting electronic or paper petitions and there is no need to submit multiple electronic copies. In addition, FMCSA no longer requires multiple paper copies to process these requests. As a result, FMCSA proposes to eliminate the requirement that these petitions be filed in duplicate.

49 CFR 389.21

Currently, section 389.21 requires members of the public who wish to comment on a rulemaking to submit five copies of those comments. For the reasons explained in the discussion of section 389.19, above, FMCSA proposes to eliminate the requirement that multiple copies be filed.

49 CFR 389.31

Currently, section 389.31(b)(1) requires members of the public to submit petitions for rulemaking in duplicate. For the reasons explained in the discussion of section 389.19, above, FMCSA proposes to eliminate the requirement that multiple copies be filed.

49 CFR 389.35

Currently section 389.35 requires members of the public to submit five copies of a petition for reconsideration. For the reasons explained in the discussion of section 389.19, above, FMCSA proposes to eliminate the requirement that multiple copies be filed.

J. Part 390

49 CFR 390.5

FMCSA proposes to add a definition of "written or in writing" to section 390.5. The new definition would be technologically neutral and would include anything typed, handwritten, or printed on a tangible medium, such as paper, as well as anything typed or generated electronically, as long as it otherwise meets the new standards proposed in section 390.32. This definition would establish technological neutrality through the Federal Motor Carrier Safety Regulations (FMCSRs) and eliminate any distinction between paper and electronic documentation as being "written or in writing."

49 CFR 390.7

FMCSA proposes to remove the outdated explanation of the term "writing" from the rules of construction in section 390.7(b)(2). As explained above, FMCSA proposes to include a new definition of "written or in writing" in section 390.5.

49 CFR 390.31

Revised section 390.31 would permit persons or entities subject to document retention requirements to keep copies in lieu of originals. This change would remove reference to microfilm as the only acceptable method for storing such copies. It would also remove the prohibition on using computer technology to maintain documents with signatures. This change would provide the flexibility to choose the type of recordkeeping and storage that best suits a person's or entity's capacities and business needs. To comply with the requirements of this section, copies must be legible; anyone entitled to inspect them must be able to view and read the content required to be in the record. The requirement that the Agency be able to inspect records applies regardless of whether the copy is in paper or electronic form.

49 CFR 390.32

New section 390.32 would permit any person or entity to use electronic methods to comply with any provision in chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) that requires a document to be signed, certified, generated, maintained or exchanged. It would apply to all forms of written documentation, including forms, records, notations and other documents. This would establish parity between paper and electronic documents and signatures, greatly expanding interested parties' ability to use electronic methods to comply with FMCSA's requirements.

Paragraph (a) would specify that the rule would apply only to documents that FMCSA requires entities or individuals to retain, regardless of whether the Agency subsequently requires them to be produced or displayed at the request of an FMCSA official or other parties entitled to access. It would not apply to documents that individuals or entities are required to file directly with the Agency. For more information about electronic filing methods for documents filed directly with FMCSA, interested parties can consult specific program information on FMCSA's Web site (www.fmcsa.dot.gov).

Paragraph (b) would permit, but not require, anyone to satisfy FMCSA requirements by using electronic methods to generate, maintain or exchange documents. The substance of the document would otherwise have to comply with applicable Federal laws and Agency rules.

Paragraph (c) would permit, but not require, anyone required to sign or certify a document to do so using electronic signatures. The rule would define an electronic signature as a method of signing an electronic communication that: (1) Identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person's approval of the information contained in the electronic communication. The rule would specify that a person may use any available technology so long as the signature otherwise complies with FMCSA's requirements.

Paragraph (d) would establish the minimum requirements for electronic documents and signatures. Any electronic document or signature would be considered the legal equivalent of a paper document or signature if it is the functional equivalent with respect to integrity, accuracy and accessibility. In other words, the electronic documents or signatures would have to be legible as well as accurately and reliably reflect the information in the record. They would have to remain accessible in a form that could be accurately viewed or reproduced according to Agency rules.

Electronic documents would not be considered the legal equivalent of traditional paper documents if they are not capable of being retained and accurately reproduced for reference by any individual or entity entitled to access by law, for the period of time required by the Agency's recordkeeping requirements. For example, if Agency rules require that a document be produced upon demand, the individual or entity must be able to provide the Agency with an accurate copy of the electronic record upon demand. Similarly, if Agency rules require that a document be produced to the Agency within 48 hours, the individual or entity would have to provide the Agency with an accurate copy of the electronic record within 48 hours. The person inspecting the document must be able to view and read the content of that electronic record. As with any documents, paper or electronic, documents that are not legible--for any reason--do not satisfy the Agency's requirements.

This proposed rule would not apply to other agencies' rules, even if FMCSA requires compliance with those rules. For example, some of FMCSA's regulations cross-reference other agencies' rules, such as those related to drug and alcohol testing (49 CFR part 40) and hazardous materials (49 CFR parts 105-109). This proposed rule would not apply to those requirements. In addition, if a motor carrier is operating in a foreign country, it must follow the rules that apply in that country.

K. Part 391

Currently, 49 CFR 391.55 requires each motor carrier to maintain a "photographic" copy of a Longer Combination Vehicle driver-instructor's commercial driver's license. But current technology for reproducing documents is not limited to photographic methods; other methods for capturing digital images also exist. As a result, FMCSA proposes to remove the word "photographic" to make this section technologically neutral. Motor carriers would still be required to maintain a copy of the Longer Combination Vehicle driver-instructor's commercial driver's license, but they would be free to choose the method of making that copy.

L. Part 395

49 CFR 395.8

Currently, section 395.8(f)(2) requires that records of duty status (RODS) be made in the driver's own handwriting. Recognizing that many drivers and motor carriers prefer to use electronic RODS, including electronic signatures, FMCSA proposes to remove the requirement that RODS be in the driver's own handwriting. But drivers would still be required to make their own entries; and those entries would have to be legible, regardless of the medium used to record them. This change would permit drivers to choose whether to use electronic or handwritten entries and signatures. For example, a driver could make RODS entries in his or her own handwriting with a handwritten signature; electronically with an electronic signature; or typed and printed with a handwritten signature.

Currently, paragraph (i) requires drivers to submit or mail their RODS to employers within 13 days. Recognizing that many drivers and motor carriers prefer to use electronic or other methods to submit RODS, FMCSA proposes to remove the reference to mail. Drivers would still be required to submit RODS to employers within 13 days, however, they would be free to choose the method of submission as long as the documents submitted otherwise meet FMCSA's requirements.

49 CFR 395.15

Currently, section 395.15 (b)(2) permits use of automatic on-board recording devices (AOBRDs) in conjunction with handwritten or printed RODS. Recognizing that many drivers and motor carriers prefer to use electronic means of recording duty status, FMCSA proposes to remove reference to handwritten or printed RODS. The proposed changes would permit drivers and motor carriers to use RODS maintained in other media in conjunction with AOBRDs as long as they otherwise meet FMCSA's requirements.

Currently, paragraph (b)(4) requires a driver to have the previous 7 consecutive days of RODS available for inspection and specifies that those RODS can be from an AOBRD, handwritten records, computer generated records, or any combination thereof. FMCSA proposes to make this section technologically neutral by removing reference to handwritten and computer generated records. Drivers would still be permitted to use handwritten or computer generated records, but they would be free to choose any medium for maintaining these records that otherwise meets FMCSA's requirements.

Currently, paragraph (b)(5) references "hard copies" of the RODS documents described in paragraph (b)(4). FMCSA proposes to remove reference to "hard copies" for the same reasons explained in the discussion of paragraph (b)(4), above.

In paragraph (e), FMCSA proposes to remove the requirement that RODS be made in a driver's own handwriting for the reasons explained in the discussion of section 395.8(f)(2), above.

In paragraph (f), FMCSA proposes to remove the requirement that RODS be made in a driver's own handwriting for the reasons explained in the discussion of section 395.8(f)(2), above.

In paragraph (h), FMCSA proposes to remove the requirement that RODS be submitted to employers via mail for the same reasons explained in the discussion of section 395.8(i), above.

In the introduction to paragraph (i), FMCSA proposes to remove reference to handwritten RODS for the reasons explained in the discussion of section 395.8(f)(2), above. In paragraphs (i)(4) and (7), FMCSA proposes to remove outdated language applicable to AOBRDs installed before October 31, 1988. FMCSA does not believe that AOBRDs installed before this date are still in use. As such, this language is no longer necessary.

M. Part 396

49 CFR 396.11

FMCSA proposes to remove all uses of the word "original" in this section for the reasons explained in the discussion of section 373.103, above.

49 CFR 396.12

FMCSA proposes to remove the word "original" in this section for the reasons explained in the discussion of section 373.103, above.

N. Part 398

FMCSA proposes to remove the requirement in 49 CFR 398.3 that certain documents must be "photographically reproduced" for the same reasons explained in the discussion of section 391.55, above.

VI. Rulemaking Analysis

E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563)

FMCSA has determined that this action is not a "significant regulatory action" under E.O. 12866 as supplemented by E.O. 13563 (76 FR 3821, January 18, 2011), or within the meaning of the DOT regulatory policies and procedures (44 FR 1103, February 26, 1979). The Agency believes that this proposed rule would not impose new costs on the industry since carriers are allowed to choose to continue to handle documents as they had before. The proposed rule would not impose new requirements on the industry; it would simply codify existing regulatory guidance and remove outdated and obsolete references in the regulatory text. The benefits of the rule would stem from savings in paper and printing expense and other efficiency gains. Examples of documents affected by this rule are vehicle maintenance records, driver qualification files, and business records. There is no way to estimate how many carriers would change their practices given the options, or how many documents would be affected. Neither the benefits nor the costs of this rule can be reliably estimated. The Agency does not believe that the economic costs of the rule, if any, would exceed the $100 million threshold for economic significance. It is clear, however, that this proposed rule would be expected to provide considerable flexibility and relief to the industry.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term "small entities" comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with a population of less than 50,000.

Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the proposed rule is not expected to have a significant economic impact on a substantial number of small entities. Consequently, I certify the proposed action would not have a significant economic impact on a substantial number of small entities. FMCSA invites comment from members of the public who believe there will be a significant impact either on small businesses or on governmental jurisdictions with a population of less than 50,000.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Genevieve Sapir, listed in the FOR FURTHER INFORMATION CONTACT section of this proposed rule.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $151.0 million (which is the 2012 value of $100 million in 1995 dollars after adjusting for inflation) or more in any 1 year. As far as determined, this proposed rule would not result in any such expenditure.

National Environmental Policy Act and Clean Air Act

FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined under its environmental procedures Order 5610.1, published February 24, 2004 (69 FR 9680), that this proposed action does not have any effect on the quality of the environment. Therefore, this NPRM is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1, paragraphs 6(q) and (y). A Categorical Exclusion determination is available for inspection or copying in the regulations.gov Web site listed under ADDRESSES.

In addition to the NEPA requirements, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.) also requires FMCSA to analyze the potential impact of its actions on air quality and to ensure that FMCSA actions conform to State and local air quality implementation plans. No additional contributions to air emissions are expected from this proposed rule, and FMCSA expects the rule to not be subject to the Environmental Protection Agency's General Conformity Rule (40 CFR parts 51 and 93).

FMCSA seeks comment on these determinations.

E.O. 12898 (Environmental Justice)

FMCSA evaluated the environmental effects of this proposed rule in accordance with E.O. 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were "disproportionate" and "high and adverse impact" on minority or low-income populations. None of the alternatives analyzed in the Agency's environmental assessment, discussed under National Environmental Policy Act, would result in high and adverse environmental impacts.

Paperwork Reduction Act

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The rulemaking would likely provide a reduction in information collections. However,the Agency is unable to calculate those reductions because there is no way to estimate how many carriers would change their practices given the option and how many documents that would affect. The Agency requests comments on this issue.

E.O. 12630 (Taking of Private Property)

This rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

E.O. 12988 (Civil Justice Reform)

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. E.O. 13045 (Protection of Children)

E.O. 13045, "Protection of Children from Environmental Health Risks and Safety Risks" (April 23, 1997, 62 FR 19885), requires that agencies issuing economically significant rules, which also concern an environmental health or safety risk that an Agency has reason to believe may disproportionately affect children, must include an evaluation of the environmental health and safety effects of the regulation on children. Section 5 of E.O. 13045 directs an Agency to submit for a covered regulatory action an evaluation of its environmental health or safety effects on children. The FMCSA has determined that this rule is not a covered regulatory action as defined under E.O. 13045. This determination is based on the fact that this proposal would not constitute an environmental health risk or safety risk that would disproportionately affect children.

E.O. 13132 (Federalism)

A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on States or localities. FMCSA has analyzed this rule under that Order and has determined that it does not have implications for federalism.

E.O. 12372 (Intergovernmental Review)

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

E.O. 13175 (Consultation and Coordination With Indian Tribal Governments)

FMCSA analyzed this rulemaking in accordance with the principles and criteria in E.O. 13175, Consultation and Coordination With Indian Tribal Governments. This rulemaking is required by law and does not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on tribal governments. Thus, the funding and consultation requirements of E.O. 13175 do not apply and no tribal summary impact statement is required.

E.O. 13211 (Energy Supply, Distribution, or Use)

The FMCSA has analyzed this rule under E.O. 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use." This proposed rule is not a significant energy action within the meaning of section 4(b) of the E.O. This proposed rule is a procedural action, is not economically significant, and does not have a significant adverse effect on the supply, distribution, or use of energy.

Privacy Impact Assessment

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment of a regulation that will affect the privacy of individuals. This proposed rule would not require the collection of any personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. FMCSA has determined this proposed rule would not result in a new or revised Privacy Act System of Records for FMCSA.

E-Government Act of 2002

The E-Government Act of 2002, Public Law 107-347, section 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. As a result, FMCSA has not conducted a privacy impact assessment. National Technology Transfer and Advancement Act (Technical Standards)

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

List of Subjects

49 CFR Part 370

Freight forwarders

Investigations

Motor carriers

49 CFR Part 371

Brokers

Motor carriers

Reporting and recordkeeping requirements

49 CFR Part 373

Buses

Freight

Freight forwarders

Motor carriers

Moving of household goods

49 CFR Part 375

Advertising

Consumer protection

Freight

Highways and roads

Insurance

Motor carriers

Moving of household goods

Reporting and recordkeeping requirements

49 CFR Part 376

Motor carriers

Reporting and recordkeeping requirements

49 CFR Part 378

Freight forwarders

Investigations

Motor carriers

Moving of household goods

49 CFR Part 379

Freight forwarders

Maritime carriers

Motor carriers

Moving of household goods

Reporting and recordkeeping requirements

49 CFR Part 387

Buses

Freight

Freight forwarders

Hazardous materials transportation

Highway safety

Insurance

Intergovernmental relations

Motor carriers

Motor vehicle safety

Moving of household goods

Penalties

Reporting and recordkeeping requirements

Surety bonds

49 CFR Part 389

Administrative practice and procedure

Highway safety

Motor carriers

Motor vehicle safety

49 CFR Part 390

Highway safety

Intermodal transportation

Motor carriers

Motor vehicle safety

Reporting and recordkeeping requirements

49 CFR Part 391

Alcohol abuse

Drug abuse

Drug testing

Highway safety

Motor carriers

Reporting and recordkeeping requirements

Safety

Transportation

49 CFR Part 395

Highway safety

Motor carriers

Reporting and recordkeeping requirements

49 CFR Part 396

Highway safety

Motor carriers

Motor vehicle safety

Reporting and recordkeeping requirements

49 CFR Part 398

Highway safety

Migrant labor

Motor carriers

Motor vehicle safety

Reporting and recordkeeping requirements

[*Federal RegisterVJ 2014-04-28]

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