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INSIGHTS: Compliance - Electronic Signature Rule is Final

Just a few weeks ago in early April 2018, we drafted and posted an article explaining the Federal Motor Carrier Safety Administration’s 7-year old guidance that specifically allowed motor carriers, drivers and others to use electronic signatures on a host of FMCSA-required compliance records. 

In fact, in that piece, we included the following sentences, “If you’ve searched for a section in the FMCSRs that specifically authorizes electronic signatures on employment applications, and all of the other required compliance documents, you probably came up empty.  If so, you didn’t miss it because there is no specific rule in the FMCSRs that authorizes electronic signatures.”   

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Just a few weeks later, on April 16, 2018, FMCSA formally amended its regulations to allow the use of electronic records and signatures to satisfy the Agency’s many regulatory requirements.   If we didn’t know better, it almost seems like our article and post triggered FMCSA to act. 😊 If only we had that kind of influence!

FMCSA’s April 16, 2018 rule, entitled “Electronic Documents and Signatures,” amended 15 different parts of the FMCSRs, and these amendments “permit the use of electronic methods to generate, certify, sign, maintain, or exchange records so long as the documents accurately reflect the required information and can be used for their intended purpose.” 

Examples of documents affected by FMCSA’s new rule include driver applications for employment, vehicle maintenance records, driver qualification files, bills of lading, and insurance records.  FMCSA’s intent in amending its rules is to establish “parity between paper and electronic documents and signatures,” and expand carriers’ and drivers’ ability to use electronic methods to comply.  More specifically, FMCSA explained that its new rule provides the industry with an electronic signature option for “all instances where regulations currently require the more traditional pen and ink signatures on documents to be created and maintained by third parties...

And, FMCSA purposely provided a performance standard in its new electronic signatures definition in Section 390.5, as opposed to defining a specific technology or approach to be used, in order to provide maximum flexibility.

Beyond adding new definitions of “Electronic signature,” and “Written or in writing,” in the General section of the FMCSRs (i.e., Part 390), the Agency also scrubbed many other Parts of its rules and either removed or modified outdated language that suggested the retention of paper, the use of paper-based processes, or the use of old-fashioned pen and ink signatures.  For example, in the insurance section of its rules (i.e., Part 387), FMCSA replaced the word “mailed” with the more technologically neutral term “transmitted,” and replaced “Proof of mailing” with “Proof of Transmission.”  

Other changes include removing the references to “hard copies” and “in a driver’s own handwriting” in Section 395.15 related to hours of service records; and removing a requirement in Section 398.3 that certain documents must be “photographically reproduced”.

The effective date of FMCSA’s new “Electronic Documents and Signatures” rule is listed as June 15, 2018.  However, in practical terms, these changes are already in effect since the vast majority of them are based on the Agency’s 2011 regulatory guidance, and the remainder are simple terminology changes intended to communicate its support for electronic signatures and recordkeeping.  

If you’d like to read the full April 16, 2018 rule, click on this link:  https://www.fmcsa.dot.gov/regulations/rulemaking/2018-07749


By Dave Osiecki, President of Scopelitis Transportation Consulting. If you still have questions, contact DriverReach’s regulatory expert, Dave Osiecki at dosiecki@scopelitisconsulting.com

 

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