Last March, I reported on a court “faceoff” between ATA and FMCSA. The court finally ruled on this precedent-setting case, which centered around a controversy over supporting documents needed to detect out-of-service violations. In its ruling, the court largely favored FMCSA's need to scrutinize time and date-stamped documents.
ATA was defending a trucking company whose safety rating had been downgraded for failing to preserve toll tickets in a way that would enable FMCSA field agents to cross-match them against driver logbooks (RODS).
The owner was cited for “…failing to properly maintain supporting documents for the RODS.” Specifically, the investigators noted that, although [the company] “receives [an] envelope containing each driver's expenses (toll receipts, fuel receipts, CAT scale receipts),” it separates out the toll receipts and files them “all together” with those of the other drivers. The result, the investigators said, is that the “carrier is not able to cross reference toll receipts back to the driver's RODS.”
The fleet challenged the agency decision on three main points:
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The agency's interpretation of the supporting-documents term “could be used” vs. “actually used” was a change in the original intent of the regulation.
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The agency's interpretation of the supporting documents term “shall maintain” was a change in the original intent of the rule.
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The agency did not provide fair notice that the fleet's safety rating was in jeopardy for not maintaining driver toll receipts in an identifiable manner.
First and foremost, the court ruled that FMCSA was consistent in defining toll receipts as “supporting documents,” since they “could be used to verify log accuracy.” The fleet claimed it wasn't responsible for indexing the receipts since it did not use them in log matching.
The agency argued and the court agreed that allowing carriers to selectively exclude time/date-stamped documents, such as toll receipts, for log matching by simply not using them would render hours-of-service enforcement efforts useless. The court noted that HOS enforcement was the original intent of the supporting documents requirement.
Second, the court ruled that FMCSA was consistent in its requirement that carriers maintain supporting documents in usable condition. The trucking company argued that it had fulfilled the “maintain” requirement simply by keeping them in a box will all other toll receipts. The agency contended that such an approach rendered them unusable for hours-of-service enforcement, and thus violated the original intent of the regulations.
The court correctly observed that toll receipts were indexed when they were given to the company in driver-specific trip envelopes, making them relatively easy to use for verifying log accuracy. The court said that the supporting document requirement barred any de-indexing practice.
Third, the court noted that the owner had been duly informed of the consequences of this de-indexing practice. It seems the operation had been subjected to on-site compliance reviews on three previous occasions. During each review, the firm was cited for log falsification and failure to maintain an adequate system for identifying hours-of-service violations. The firm was specifically warned to cease its toll-receipt filing practice.
This case demonstrates the contentious nature of the supporting-documents issue. It sets a precedent by prohibiting a fleet from de-indexing and thus using receipts selectively to verify driver logs.
It's important to note that the wording of the original FMSCA rule on supporting documents was vague. In fact, the agency published a NPRM in 1998 that would have clarified the process. They recommended that carriers establish and seek approval for their own supporting-document system.
Unfortunately, the NPRM was incorporated into the bigger hours-of-service makeover, which we all know has been stalled. As a result, we still don't have a clear and definitive rule for managing hours-of-service supporting documents.
Jim York is the manager of Zurich North America's Risk Engineering Team, based in Schaumburg, IL.
