USE OF ELECTRONIC SIGNATURES IN THE MOTOR CARRIER INDUSTRY BACKGROUND • The use of electronic signatures in industries regulated by Executive agencie by evd10098


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									                USE OF ELECTRONIC SIGNATURES IN THE
                      MOTOR CARRIER INDUSTRY


    •   The use of electronic signatures in industries regulated by Executive agencies is
        supported by public laws enacted by Congress and by guidance from the Office of
        Management and Budget (OMB). In 1998, Congress passed the “Government
        Paperwork Elimination Act” (GPEA). GPEA was one of the first federal laws to
        broadly address the use of electronic records and signatures by federal
        government agencies. The Act required federal agencies, by October 21, 2003, “to
        allow individuals or entities that deal with the agencies the option to submit
        information or transact with the agency electronically, when practicable, and to
        maintain records electronically when practicable.”

    •   Subsequently, another law was passed in 2000 – the “Electronic Signatures in
        Global and National Commerce Act,” commonly referred to as the “E-SIGN
        Act.” This was the first federal statute to provide legal equivalence between
        electronic signatures and records and their paper-based counterparts in
        commercial transactions. With respect to both laws, the OMB in 20001 published
        two guidance documents to assist Executive agencies with implementing the two

    •   Eight years have lapsed since these laws were enacted and, from a regulatory
        compliance standpoint, FMCSA has not addressed the issue of e-signatures in a
        comprehensive manner. Rather, the agency has taken a piecemeal approach
        toward this issue.

    •   Currently, a vendor must submit an application to FMCSA for an ‘exemption’
        from the agency’s regulations to allow for an electronic signature (such as one
        entered on an electronic “signature pad”) to be the functional equivalent of a
        handwritten signature of a driver. If granted, the exemption applies to all motor
        carriers using the vendor’s e-signature product.

    •   Subsequently, through ad hoc regulatory guidance, the agency has authorized the
        use of e-signatures for only two of its required reports: 1) Driver Vehicle
        Inspection Reports and 2) Electronic Registration for Cargo Tank Facilities.

 OMB Procedures and Guidance on Implementing the Government Paperwork Elimination Act, Jacob J.
Lew, Director, April 25, 2000; OMB Guidance on Implementing the Electronic Signatures in Global and
National Commerce Act, Jacob J. Lew, Director, September 25, 2000.

  •   The current means for conducting driver-related transactions (using original signatures)
      raises motor carriers’ operational costs and impedes: productivity; competitiveness;
      efficient record retention capabilities; the ability to embrace new technologies; and, driver
      recruiting abilities. Motor carriers would like to use technology to capture driver signatures
      for the purpose of meeting the requirements of relevant FMCSRs.

  •   Lack of comprehensive regulatory guidance on this issue hinders motor carriers’
      ability to efficiently and effectively deal with third party contractors. (e.g., USIS -
      DAC). For example, USIS does not accept electronic signatures for on-line drug
      and alcohol reports. The company has cited 49 CFR 40.25 as its reason for doing
      so. Therefore, motor carriers must send (“via fax, email or letter”) to USIS an
      individually signed release from drivers for every past driving job that the driver
      lists for the past three years. A transaction such as this one, using original
      signatures, is burdensome on the industry, slows operational processes and serves
      little practical purpose.


 Request for Regulatory Guidance

  •   Earlier this year, ATA wrote to FMCSA seeking interpretation and guidance of the use of
      electronic signatures for employment applications (49 CFR 391.21). Specifically, the
      letter asked whether an electronic signature that is captured using a “signature pad” would
      meet the requirements of the above-referenced regulation.

  •   ATA believes that permitting drivers to complete an online employment application would
      better serve the industry by eliminating a redundant step in the application process and
      allowing for initial screening of drivers. FMCSA has not yet responded.

 Response to Federal Register Notices

  •   ATA submitted comments on December 19, 2007 to FMCSA recommending that the
      agency grant a vendor’s application for an exemption from the regulations to allow users of
      their technology to sign their record of duty status with an electronic signature. ATA took
      this opportunity to support the vendor’s application and to request that FMCSA extend its
      scope beyond the application to issue regulatory guidance and/or expedited rulemaking on
      the use of electronic signatures under many other relevant FMCSRs.

  •   Through a January 25, 2008 letter to FMCSA, ATA supported a request by Country
      Mountain Express Co. (CME) for an exemption from the FMCSRs to allow for a driver to
      use an electronic signature on an employment application. In the letter, ATA noted that
      CME’s request was the third time, in less than a month, that a vendor or other company had

            asked the agency to allow for the use of electronic signatures. ATA also reiterated to
            FMCSA, the importance of addressing the electronic signature issue comprehensively and


   •     ATA has recommended that FMCSA address this issue in a comprehensive manner to keep
         pace with the expanding, new technologies being introduced into the marketplace. At a
         minimum, ATA has requested that the Agency authorize the use of electronic signatures for
         purposes of capturing a signature for the following documents, either through regulatory
         guidance or through expedited rulemaking:

       1.     Employment Application (40 CFR 391.21)
       2. Investigations and Inquiries (40 CFR 40.25)
       3. Drug and Alcohol – Receipt of Training Certificate (40 CFR 382.601(d) )
       4. Drug & Alcohol – Chain of Custody (40 CFR 40.45)
       5. Record of Violations (40 CFR 391.27)
       6. Driver Logbooks (40 CFR 395.8(7) )
       7. Roadside Inspection Forms (40 CFR 396.9(d)(3)(i) )
       8. Leasing Forms (40 CFR 376.12(5)(1) )


The trucking industry respects FMCSA’s need to weigh the relative costs, risks and
benefits with the level of sensitivity of an electronic transaction, but ATA believes that
allowing e-signatures for the above-referenced documents involves only a low-risk
process needing minimal consideration by the agency. ATA has recommended:

   •        regulatory guidance on these documents, if feasible or,
   •        expedited rulemaking that would comprehensively address the electronic
            signature issue as it relates to relevant FMCSRs.


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