White House reviewing supporting documents rule

The Department of Transportation has completed work on a final rule concerning supporting documents requirements for driver logs, and has sent the draft to the White House Office of Management and Budget for review. OMB review is the final stage of the rulemaking process before the final rule is published in the Federal Register and becomes a regulation.

Supporting documents are those items that the Federal Motor Carrier Safety Administration expects to see in inspections and compliance reviews to help verify the accuracy of driver records of duty status. The Federal Highway Administration’s Office of Motor Carriers – FMCSA’s predecessor – originally proposed new regulations governing supporting documents in April 1998, but progress stalled, in part because of the debate over new hours-of-service regulations. FMCSA issued a revised proposal in November 2004. The rulemaking already is more than 10 years beyond its original statutory deadline of Feb. 26, 1996.

Although the federal safety regulations already require supporting documents, carriers have on numerous occasions challenged FMCSA in agency proceedings and in court for its interpretation of those rules. So one of the principal purposes of the new regulations would be to clarify what supporting documents motor carriers must retain and to reaffirm that motor carriers must use supporting documents to verify drivers’ logs.

FMCSA proposes to require that any written or electronic trip document include at least the driver’s name or the vehicle number so that the document can be tied to a particular driver. The proposal adopts a regulatory definition of a supporting document to mean “any document that is generated or received by a motor carrier or commercial motor vehicle driver in the normal course of business that could be used, as produced or with additional identifying information, to verify the accuracy of a driver’s record of duty status.” FMCSA provided a long list of examples such as global positioning system reports and numerous other types of electronic data.

Both the trucking industry and its critics have problems with the proposal. In comments to FMCSA, the American Trucking Associations contended that the November 2004 supplemental notice of proposed rulemaking “is neither a minor modification of an existing regulation nor a reasonable extension of the 1998 rulemaking on this same subject, but rather a major and expansive proposed rule.” ATA argued, among other things, that the proposed rule:

  • Conflicts with the requirements of the Hazardous Materials Transportation Authorization Act of 1994;
  • Falls short of the requirements of the Regulatory Flexibility Act and
    Paperwork Reduction Act;
  • Lacks information needed for regulatory analysis and cost evaluation by OMB; and
  • Significantly expands recordkeeping responsibilities for motor carriers.
  • Public Citizen, which has led the charge to tighten a number of motor carrier safety rules, objected that the proposed supporting documents rules fall short of the goals set out by statute and that “there are many serious flaws in the agency’s proposal, which would cripple its oversight and complicate, rather than simplify, FMCSA’s compliance program.” Public Citizen argued in its comments that the proposed rule:

  • Neither clarifies the definition of supporting documents nor provides guidance about which supporting documents are superior or preferable to others;
  • Allows electronic supporting documents but fails to offer any criteria to ensure uniformity among the data;
  • Should extend the retention minimum to at least one year to give FMCSA time to follow up on complaints and compliance reviews; and
  • Fails to provide design criteria for the mandatory self-monitoring systems for handling supporting documents and verifying driver logs.
  • For more information, visit http://dms.dot.gov/search and search Docket No. 3706.