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Regulatory Guidance Concerning Electronic Signatures and Documents

American Government Special Collections Reference Desk

American Government Trucking Topics:  Federal Motor Carrier Safety Administration

Regulatory Guidance Concerning Electronic Signatures and Documents

Anne S. Ferro
January 4, 2011

[Federal Register: January 4, 2011 (Volume 76, Number 2)]
[Notices]               
[Page 411-414]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja11-109]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

 
Regulatory Guidance Concerning Electronic Signatures and 
Documents

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

ACTION: Notice of regulatory guidance.

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SUMMARY: FMCSA issues regulatory guidance concerning the use of 
electronic signatures and documents to comply with FMCSA regulations. 
This guidance provides the motor carrier industry, Federal, State, and 
local motor carrier enforcement officials, and other interested parties 
with uniform information regarding FMCSA's acceptance of electronic 
signature on documents required by the Federal Motor Carrier Safety 
Regulations. All prior Agency interpretations and regulatory guidance, 
including memoranda and letters, may no longer be relied upon to the 
extent they are inconsistent with this guidance.

DATES: Effective Date: This regulatory guidance is effective January 4, 
2011.

FOR FURTHER INFORMATION CONTACT: Genevieve D. Sapir, Office of the 
Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New 
Jersey Ave., SE., Washington, DC 20590-0001, (202) 366-7056; e-mail: 
Genevieve.Sapir@dot.gov.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to the 
Secretary of Transportation to regulate certain commercial drivers, 
motor carriers, and vehicle equipment. Section 211 of the 1984 Act also 
grants the Secretary broad power to ``prescribe recordkeeping and 
reporting requirements'' and to ``perform other acts the Secretary 
considers appropriate'' in carrying out motor carrier safety statutes 
and regulations (49 U.S.C. 31133(a)(8) and (10)). The Administrator of 
FMCSA has been delegated authority under 49 CFR 1.73(g) to carry out 
the functions vested in the Secretary by 49 U.S.C. chapter 311, 
subchapters I and III, relating to

[[Page 412]]

commercial motor vehicle programs and safety regulation.
    Two Federal statutes govern the Agency's implementation of 
electronic document and signature requirements. The Government 
Paperwork Elimination Act (GPEA) (Title XVII (Sec. 1701-1710) of Public 
Law 105-277, 112 Stat. 2681-749, 44 U.S.C. 3504 note) was signed into 
law on October 21, 1998, to improve customer service and governmental 
efficiency through the use of information technology. The Electronic 
Signatures in Global and National Commerce Act (E[dash]SIGN) (Pub. L. 
106-229, 114 Stat. 464, 15 U.S.C. 7001-7031) was signed into law on 
June 30, 2000. E[dash]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 or 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[dash]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)).

Purpose and Effect of This Guidance

    FMCSA received a number of requests from motor carriers and other 
interested parties asking permission to use electronic signatures in 
lieu of handwritten signatures on paper. This document provides 
regulatory guidance concerning the use of electronic signatures and 
documents to comply with FMCSA regulations. All prior Agency 
interpretations and regulatory guidance, as well as memoranda and 
letters, may no longer be relied upon as authoritative to the extent 
they are inconsistent with this guidance.
    For 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. Any electronic document or 
signature is considered the legal equivalent of a paper document or 
signature if it is the functional equivalent with respect to integrity, 
accuracy and accessibility. The substance of the document must 
otherwise comply with applicable Federal laws and Agency rules.
    Anyone may use electronic methods so long as the electronic 
documents or signatures accurately reflect the information in the 
record and remain accessible in a form that can be accurately viewed 
and/or reproduced according to Agency rules. Electronic documents will 
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 an entity is required to produce documents on demand, those 
documents may be stored electronically, so long as that entity can 
produce them in accordance with the Agency's substantive requirements 
(e.g., immediately and without risk of losing or altering data).
    Today's guidance establishes parity between paper and electronic 
records and signatures, greatly expanding interested parties' ability 
to use electronic methods. FMCSA previously interpreted 49 CFR 390.31 
to permit the electronic storage of records so long as they could be 
produced within two working days of a request (62 FR 16370). FMCSA 
rescinds that interpretation and motor carriers should no longer rely 
on that guidance. As stated above, all records, whether electronic or 
paper, must be produced within the time frame established by Agency 
regulations. This means that if Agency rules require that a document be 
produced to the Agency within 48 hours, you must be able to provide the 
Agency with an accurate copy of your electronic record within 48 hours. 
Similarly, if Agency rules require that a document be produced upon 
demand, you must be able to provide the Agency with an accurate copy of 
your electronic record upon demand.
    This guidance applies to documents required by FMCSA regulations to 
be generated and maintained or exchanged by private parties, 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. This guidance does not apply to documents that individuals 
or entities are required to file directly with the Agency. The Agency, 
however, has already established electronic filing methods for certain 
documents. Interested parties can find out about available filing 
methods by consulting specific program information on FMCSA's Web site 
(http://www.fmcsa.dot.gov).

Regulatory Guidance

Part 390--Federal Motor Carrier Safety Regulations; General

Sections Interpreted: Section 390.31, Copies of records or documents

    Rescind existing Questions 1 and 2 (62 FR 16370), retain existing 
Questions 3 and 4 (http://www.fmcsa.dot.gov/rules-regulations/
administration/fmcsr/fmcsrruletext.aspx?reg=390.31&guidance=Y), and add 
new Questions 1 and 2 and 5 through 13 as follows:
    Question 1: May motor carriers use electronic methods to store 
records or documents to satisfy a document retention requirement in 
Chapter III of Subtitle B of Title 49, Code of Federal Regulations (49 
CFR parts 300-399)?
    Guidance: Yes. Anyone may, but is not required to, use electronic 
methods to create and store records or documents to satisfy document 
retention requirements in Chapter III of Subtitle B of Title 49, Code 
of Federal Regulations (49 parts CFR 300-399). This guidance applies 
only to documents required to be generated and maintained or exchanged 
by private parties, regardless of whether FMCSA subsequently requires 
them to be produced or displayed to FMCSA staff or other parties 
entitled to access. This guidance does not apply to documents filed 
directly with FMCSA. The Agency, however, has already established 
electronic filing methods for certain documents. Interested parties can 
find out about available filing methods by consulting specific program 
information on FMCSA's Web site (http://www.fmcsa.dot.gov).
    Question 2: How much time does a motor carrier have to produce 
records if the motor carrier maintains all records in an electronic 
format?

[[Page 413]]

    Guidance: A motor carrier must produce records within the time 
frame FMCSA's regulations require, regardless of whether the motor 
carrier maintains its records in an electronic or paper format. For 
example, if Agency rules require that a document be produced upon 
demand, you must be able to provide the Agency with an accurate copy of 
your electronic record upon demand. Similarly, if you are a motor 
carrier with multiple offices and are allowed 48 hours to produce a 
document in accordance with 49 CFR 390.29, you must be able to provide 
the Agency with an accurate copy of your electronic record within 48 
hours.
    Question 3: Using record scanning technology, these requirements 
can be fulfilled. Is my understanding of Sec.  390.31(c) correct that 
once qualifying documents have been suitably scanned, original paper 
documents may be destroyed?
    Guidance: Yes, scanned records, which include a verifiable 
signature, would fulfill the requirements of Sec.  390.31 and the 
original paper documents may be destroyed as stated in Sec.  390.31(c).
    Question 4: If my understanding of Sec.  390.31 and its associated 
interpretations is correct, will this negate the necessity to maintain 
the original road test document as required by Sec.  391.31(g)(1)?
    Guidance: Yes, as long as the road test document has been properly 
scanned.
    Question 5: What is an electronic signature?
    Guidance: An electronic signature is 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. An electronic signature may be made using 
any available technology that otherwise satisfies FMCSA's requirements.
    Question 6: What is an electronic ``captured image'' signature and 
does it qualify as an electronic signature?
    Guidance: An electronic ``captured image'' signature is a scripted 
name or legal mark that, while conventionally created on paper, may 
also be created using electronic devices. For example, many 
supermarkets and package delivery services use electronic captured 
image technology when they permit customers to sign their names in 
script using a stylus on an electronic pad. This qualifies as an 
electronic signature, so long as the signature and its related document 
are electronically bound and can be reproduced together.
    Question 7: May anyone use electronic signatures to satisfy a 
requirement in Chapter III of Subtitle B of Title 49, Code of Federal 
Regulations (49 CFR parts 300-399) that a party sign or certify a 
document?
    Guidance: Yes. Anyone may, but is not required to, use electronic 
signatures to satisfy the requirements of Chapter III of Subtitle B of 
Title 49, Code of Federal Regulations (49 CFR parts 300-399) that he or 
she sign or certify a document. This guidance applies only to documents 
requiring signatures that are generated and maintained or exchanged by 
private parties, regardless of whether the Agency subsequently requires 
them to be produced or displayed to FMCSA staff or other parties 
entitled to access. This guidance does not apply to documents filed 
directly with the Agency. The Agency, however, has already established 
electronic filing methods for certain documents. Interested parties can 
find out about available filing methods by consulting specific program 
information on FMCSA's Web site (http://www.fmcsa.dot.gov).
    Question 8: Are motor carriers and other interested parties 
required to use electronic methods?
    Guidance: No. Interested entities may choose whether or not to use 
electronic methods or traditional paper methods. Where there are two 
parties to a transaction, both parties must agree to conduct business 
using electronic methods.
    Question 9: Will a document generated using any available 
electronic method satisfy the requirements of Chapter III of Subtitle B 
of Title 49, Code of Federal Regulations?
    Guidance: No. An electronic document must fulfill the same function 
as a paper document. Documents generated using electronic methods may 
be used only if they accurately reflect the information in the record 
and remain accessible in a form that can be accurately reproduced for 
later reference. Documents generated using electronic methods will 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 party entitled to access.
    For example, if FMCSA rules require that a document be produced 
upon demand, you must be able to provide the Agency with an accurate 
copy of your electronic record upon demand. Similarly, if you are a 
motor carrier with multiple offices and are allowed 48 hours to produce 
a document in accordance with 49 CFR 390.29, you must be able to 
provide the Agency with an accurate copy of your electronic record 
within 48 hours. It would not be sufficient to display the information 
on your computer terminal in your place of business. You must produce a 
copy that the Agency can refer to at a later date. Similarly, it would 
not be sufficient to provide a document with incomplete information or 
without a signature (whether electronic or handwritten), if required. 
Your electronic storage system must be capable of transferring a 
complete, accurate copy of the document to the Agency. Unless the agent 
requesting the information specifies otherwise, you should be prepared 
to produce paper copies of the electronically-stored records or 
documents within the applicable time frame. This means that if you are 
required to produce documents on demand, those documents may be stored 
electronically, so long as you can produce them in accordance with the 
Agency's substantive requirements (e.g., immediately and without risk 
of losing or altering data). For an electronic document to be the legal 
equivalent of a paper document, it must be the functional equivalent 
with respect to integrity, accuracy and accessibility.
    Question 10: If FMCSA or another agency entitled to access 
documents requests that I produce a copy of a document or signature, 
may I produce an electronic copy?
    Guidance: Yes, however, you must be able to reproduce or transmit 
the document so the Agency can refer to it at a later date. The 
acceptable method of transmission may vary, depending on compatibility 
with the information systems and how the Agency or other entity 
entitled to access plans to use the document. Under some circumstances, 
electronic transfer may be acceptable. In other cases, you may be 
required to print paper copies of the electronically-stored records or 
documents. You should be prepared to produce paper copies within the 
time frame specified in the applicable regulations, unless the 
particular investigator specifically advises you that he or she is 
capable of accepting electronically transferred copies.
    Question 11: May I use electronic methods to generate, sign, 
maintain and/or exchange any record the FMCSA regulations require 
without requesting an exemption or obtaining prior permission?
    Guidance: You may use electronic methods to generate, sign, 
maintain and/or exchange any document that is generated and maintained 
or exchanged by private parties, regardless of whether FMCSA 
subsequently requires them to

[[Page 414]]

be produced or displayed to Agency staff or other parties entitled to 
access. You do not need to request an exemption or obtain prior 
permission so long as the electronic record meets all of the 
regulation's substantive requirements and remains accessible in a form 
that can be accurately reproduced for later reference. (This does not 
apply to documents filed directly with the Agency. See Question No. 6.) 
Examples of documents generated, maintained or exchanged by private 
parties include, but are not limited to: Employment applications, 
driver histories and other qualification records, leases formed under 
49 CFR part 376, driver-vehicle inspection reports, and records of duty 
status. These are only examples of documents about which FMCSA received 
specific questions and is not an exhaustive list of the types of 
documents that can be generated, signed, maintained or exchanged 
electronically.
    Question 12: May I convert a paper document to an electronic 
document by typing the substantive information on the paper document 
into an electronic format such as a database?
    Guidance: By typing the substantive information from a paper 
document into an electronic format such as a database, you are creating 
a new electronic record, not creating an electronic copy of the 
original. While you may generate and maintain such documents for your 
own use, they do not take the place of the original documents. To 
preserve an accurate copy of the original paper document, you must use 
scanning or other ``image capture'' technology. See Questions 3 and 4 
for additional guidance.
    Question 13: Is an electronic signature valid if a person only has 
access to an excerpt or summary at the time he or she signs a document?
    Guidance: No. If you only provide an excerpt or summary at the time 
someone signs a document you may not subsequently attach his or her 
electronic signature to the complete document.

    Issued on: December 29, 2010.
Anne S. Ferro,
Administratior.
[FR Doc. 2010-33238 Filed 1-3-11; 8:45 am]
BILLING CODE 4910-EX-P

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