In early 2010 the ATA filed a petition in the U.S. Court of Appeals aimed at directing the Federal Motor Carrier Safety Administration (FMCSA) to issue a rule on documents supporting driver hours of service records. Recently, a Notice of Proposed Rulemaking (NPRM) was published that deals with this issue. Although it's unusual for the industry to ask for a new regulation, ATA's petition was based on the fact that current regulations are vague on the matter. Although required, there is no definition of what constitutes a supporting document. Another question is raised by the use of an Electronic On Board Recorder. Does that electronic record constitute a supporting document?
Supporting documents were required in 1983 but the regulation did not contain a definition. In the years since, FMCSA has issued regulatory guidance that defined them as: "Any document generated or received by a motor carrier in the normal course of business that could be used...to verify the accuracy of a driver's record of duty status." Court cases have affirmed the need to have a system in place that allows a carrier to effectively monitor compliance with the hours of service. FMCSA has considered a program effective if an audit reveals a false log rate of less than 10%.
In the 1980's satellite communication technology came of age and many carriers began using it. Although the intent was to provide vastly improved communication and load tracking, this technology generated location information that was date and time stamped. Did this constitute a supporting document? In 1997 FMCSA announced a policy to limit the use of satellite tracking data in an audit to encourage motor carriers to adopt this new technology. In 2008 FMCSA stated that this policy had achieved its purpose, the trucking industry was making widespread use of satellite technology. Their previous policy was reversed and the tracking data would now be used in an audit.
In contrast to the broad range of documents used as examples of supporting documents in current guidance, this NPRM requires motor carriers to retain sufficient supporting documents for six months from the following four categories:
- Trip-related Expense Records and Receipts
- FMS Communication Logs (Fleet Management System – includes satellite communication as well as other in-truck communication tools)
- A Bill of Lading or Equivalent Document
The supporting documents retained in these four categories might be individual records within a supporting document that covers multiple activities of individual drivers (such as dispatch records organized according to individual driver assignments) or specific types of activities of multiple drivers (such as pickup and delivery records for drivers assigned to one shipper's account) to reflect the beginning and end of each on-duty, non-driving period. Supporting documents must contain:
- Personal Identification (name, number or tractor number) that can be Linked to a Specific Driver
- Date and Time
If a motor carrier does not receive these documents, then the motor carrier must certify that it does not or did not receive them. If a motor carrier is found to have falsely certified to not having supporting documents, it would be subject to a civil penalty for falsification.
With that defined, how are these records used? Every motor carrier must establish, use, and maintain an hours of service management system capable of preventing and detecting violations by each of its drivers. The management system must include, at a minimum, the use of documents, records, and information generated or received by the motor carrier in the normal course of business.
This NPRM also mandates the use of electronic on board recorders. Since the recorders must be tamper proof, can those records be used to satisfy the supporting document requirement? Yes, but only to substantiate driving time. Other documents must be retained to verify On Duty time. Time spent in the sleeper or off duty satisfying a 10 hour break does not need supporting documents.
There are two exceptions to the EOBR requirement:
- Drivers who Operate within a 100 Air Mile Radius
- Non-CDL Drivers who Operate within a 150 Mile Radius
There may be times when either of these drivers runs over the mileage limit, or over the hours permitted by the exception. As long as this doesn't occur more than twice in a 7 day period, they are not required to use EOBRs.
FMCSA considers the mandated use of EOBRs to be cost-effective because they believe it will reduce fatigue related crashes. This is much the same logic and financial computations used in the recent Hours of Service NPRM. It is expected that a Final Rule will be published in early 2012 and mandatory compliance will be three years after that date (sometime in 2015). Carriers may choose to voluntarily utilize EOBRs prior to this and FMCSA will:
- Allow partial relief from supporting documents - the carrier will not be required to maintain documents relating to Driving time, only On Duty time.
In an HOS compliance review, only random log audit results will be used to assign a carrier safety fitness rating. However, focused log audit results may still be the basis for a civil penalty.