ATA finds supporting docs guidance unacceptable, asks court to resume challenge

ARLINGTON, Va. — The American Trucking Associations, unhappy with guidance for supporting documents for Hours of Service rather than a rulemaking, filed a motion July 22 to reset the briefing schedule with the United States Court of Appeals for the District of Columbia.

Earlier this year, on May 27, the court issued an order holding the proceedings in abeyance and directing the parties to file status reports at 30-day intervals.

“The settlement negotiations have been unsuccessful,” ATA stated in the court document and asked that the matter be further moved along.

 “We are disappointed because the guidance — for the first time — attempts to create an obligation for carriers to use certain types of supporting documents (electronic tracking/communication data) in HOS monitoring activities, rather than simply having to retain them,” ATA stated in response to questions from The Trucker. “This new obligation cannot be created via a guidance and, if at all, only through a proper rulemaking process. Accordingly, we have called upon the agency to immediately stay the guidance and subsequently asked the court to reinstate our legal challenge.”

In 1994, the Department of Transportation was mandated by Congress to issue a rulemaking on supporting documents for Hours of Service that must be retained by motor carriers at a “reasonable cost.”

However, the DOT’s Federal Motor Carrier Safety Administration has issued two notices of proposed rulemaking, one in 1998 and the other in 2004, which never made it to the final rule stage.

Then in April of this year, the FMCSA issued a final rule that mandated electronic on-board recorders for the worst HOS offenders. In addition there were some incentives in the rule that were there to help some carriers voluntarily adopt EOBRs for HOS. One such incentive was that carriers would no longer be required to retain supporting documents to verify “driving time,” but no specific list of these documents or a definition of what constitutes the documents was provided, according to ATA.

Then on June 7, there was a revised guidance issued by FMCSA on supporting documents. In this guidance, which is not the same as a rulemaking, several items from the list of documents that must be retained were removed including: driver call-in records, IRP receipts, IFTA receipts, trip permits, cash advance receipts, and driver fax reports.

Rules before the guidance was issued said that motor carriers could use a variety of ways to verify HOS. But the guidance states that carriers now have to do HOS verification a certain way.

The regulatory guidance issued June 10 became effective July 12, just three days after the close of the comment period specified in the Federal Register notice. On July 12 in an updated status report, FMCSA “trumped the regulatory guidance and stated that they plan to issue a Notice of Proposed Rulemaking in December” that will further address supporting documents,” according to the ATA court filing.

ATA stated it does not know whether FMCSA “intended the regulatory guidance to be a solution — interim or otherwise — to their clear violation of the Hazardous Materials Transportation Act Section 113 and the harms to motor carriers and drivers created by the violation.

“What is clear is that the regulatory guidance fails to remedy the violation of the secretary’s statutory duty,” ATA continued. “The regulatory guidance not only fails to remedy respondents’ ongoing violation of their statutory duty but it actually exacerbates the uncertainties that carriers and drivers face in the absence of supporting documents regulations. The regulatory guidance appears to be framed to require, for the first time, the use, rather than the mere retention, of specific kinds of data for monitoring HOS compliance.”

The problem is that carriers may have a good system in place and now they have been dictated to change that to something that might not work as well. Additionally, according to the motion filed with the court on July 22, the guidance is unclear, it’s vague. ATA wants a rulemaking consistent with the mandate from 1994 by Congress. ATA wants clarity and they want the guidance immediately vacated and instead the association said FMCSA should issue a rulemaking.

A request for comment with FMCSA was denied because they don't discuss current litigation, according to a spokesperson.

Barb Kampbell of The Trucker staff can be reached for comment at barbkampbell@thetrucker.com.

Find more news and analysis from The Trucker, and share your thoughts, on Facebook.