June 4 was 30 days from July 4, Independence Day, but to this administration it is just another day to announce another notice, guidance, policy change, rule or just about anything they want to call something that puts an additional burden on trucking. America became an independent nation because the people revolted from excess taxes and regulatory burdens forced on them by the King of England.
This new Policy on Retention of Supporting Documents and the Use of Electronic Mobile Communications’ Tracking Technology in Assessing Motor Carriers’ and commercial Motor Vehicle Drivers’ Compliance with the Hours of Service regulations printed on June 4 is just the latest example of the vise tightening on carriers and drivers. This new policy is intended to be used by enforcement personnel as guidance in making enforcement decisions. Additionally it says the policy is not intended to alter a carrier’s duty to comply with all applicable regulations and that the carrier is responsible for the acts and omissions of its employees.
The new policy states any method the carrier uses that allows the carrier to identify the location or vehicle or driver, send or receive messages from its drivers to be considered “electronic communication/tracking records.” Supporting documents have been changed from the old §395.8(k)(1) Guidance Question 10 of April 4, 1997, to a new updated list. The new list is: bills of lading; carrier pros; freight bills; dispatch records; electronic mobile communication/tracking records; gate record receipts; weigh/scale tickets; fuel receipts; fuel billing statements; toll receipts; toll billing statements; port-of-entry receipts; delivery receipts; lumper receipts; interchange and inspection reports; lessor settlement sheets; over/short and damage reports; agricultural inspection reports; driver and vehicle examination reports; crash reports; telephone billing statements; credit card receipts; border crossing reports; customs declarations; traffic citations; and overweight/oversize permits and traffic citations.
Carriers without qualifying electronic communication/tracking technology are required to continue to retain other supporting documents used for verifying information on the driver’s HOS at their principal place of business. Electronic mobile communication/tracking records may be used by the agency as evidence in any enforcement proceeding using FMCSA statutes and regulations.
For each vehicle a motor carrier uses for which the motor carrier can produce electronic mobile communication/tracking records acceptable under this policy, the motor carrier is no longer required to maintain or produce the following supporting documents pursuant to 49 CFR § 395.8(k)(1) for the driver of that vehicle:
• Gate record receipts; weigh/scale tickets; port-of-entry receipts; delivery receipts; toll receipts; agricultural inspection reports
• Over/short and damage reports; driver and vehicle examination reports; traffic citations; Overweight/oversize reports and citations; carrier pros; credit card receipts; border crossing reports; customs declarations; and telephone billing statements.
Motor carriers that seek to take advantage of the less burdensome supporting documents retention requirements available under this policy are precluded in HOS enforcement proceedings from challenging the accuracy of their own electronic mobile communication/tracking records.
However, for each vehicle for which a motor carrier seeks to take advantage of the less burdensome supporting documents retention requirements available under the policy, the motor carrier must show that the electronic mobile communication/tracking records have the characteristics below:
• Positioning frequency: the system must be set up to communicate position location at a rate of at least one time per hour, per vehicle, while the vehicle is in motion
• Vehicle integration: the system must be integrally synchronized with the vehicle
• Report Functionality: the system must be capable of generating upon demand a document/record, either printed (paper) or electronically rendered (spreadsheet, portable document format, tagged image file format or other commonly available software format), showing the required “report content”
• Report content: The position history report must include, at a minimum, vehicle identification information, date, time, proximity location (reference points), and latitude and longitude for each position communication, and
• Retention: motor carriers must maintain position history reports for a period of six months in accordance with 49 CFR § 395.8(k)(1).
If the motor carrier’s electronic mobile communication/tracking records for a particular vehicle do not qualify under this policy, the motor carrier must maintain all supporting documents that may be used to assess motor carrier and commercial motor vehicle driver compliance with the HOS regulations, pursuant to 49 CFR § 395.8(k)(1). A motor carrier that uses electronic mobile communication/tracking technology in the 10 ordinary course of business for any purpose is expected to include the use of records and information generated by that technology in its HOS oversight activities.
The government continues to tighten the vise on carriers and drivers. The ultimate goal is fewer crashes and lives saved: a good goal. Electronic onboard recorders (EOBRs) and communication/tracking devices are getting faster and smarter. They can collect just about any information you want to collect, and the government will use them that way.
So what is a carrier or driver to do to protect themselves? They must learn the rules and regulations that govern trucking and follow those rules and regulations like their lives depend on it, because it really does. Drivers with good clean CDLs and carriers with good safety numbers will rule transportation in the next year or two. CSA 2010 will remove the bad drivers and carriers, allowing the good drivers and carriers to make more money per load. I predict in the next two years you will see truck driving become one of the better paying jobs around and I will speculate that $100,000-a-year trucking jobs will be just about everywhere for good clean drivers. My advice to every driver and every carrier is to learn all you can about the new rules and regulations, how they apply to you and how you can use them to make yourself a better driver or carrier.
Jim C. Klepper is president of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. He is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. A former prosecutor, he has considerable experience in alcohol and drug related cases. He is a lawyer who has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.