Thorn Valley Safety

Do you know what will happen to local drivers using time clock vs paper logs when they mandate electronic log devices?

Under the proposed rule, it appears they can still claim the exemption. Here is an excerpt; VII. Proposed ELD Mandate Consistent with the requirements of MAP-21, 49 U.S.C. 31137, FMCSA proposes that interstate motor carriers install ELDs in all CMVs operated by drivers who are now required to prepare paper RODS, subject to a limited exception for drivers who are rarely required to keep RODS. If a driver is required to use an ELD, the motor carrier must not require or allow the driver to operate a CMV in interstate commerce without using the device. Drivers engaged in operations that do not require the preparation of RODS may use ELDs to document their compliance with the HOS rules, but are not required to do so. Furthermore, under today's proposal, drivers currently allowed to use timecards could continue to do so under the provisions of 49 CFR 395.1(e). Drivers who need to use RODS infrequently or intermittently would be allowed to continue using paper RODS, provided they are not required to use RODS more than 8 days in any 30-day period. This proposed provision would accommodate drivers working for motor carriers that keep timecards under 49 CFR 395.1(e)(1) and (2) and who may occasionally operate beyond the parameters of those provisions (for example, by operating outside the specified 100- or 150-air-mile radius). The new threshold of not more than 8 days in any 30-day period would replace the threshold of 2 days out of any 7-day period that was proposed in the February 2011 NPRM in order to provide additional flexibility for this population. The Agency seeks comment on the proposed 8 out of 30-day threshold, how it would impact various segments of the industry, the potential cost savings resulting from this limited exception, and whether a shorter or longer duration would result in a more appropriate balance between the needs of enforcement and carrier flexibility. An eight-day period is the time-frame for current hours-of-service record-keeping requirements. Currently drivers are required to keep the previous seven days' records and the present day's records. Using eight days as the threshold for RODS usage to switch into ELD use keeps this time-frame consistent.

How do I submit an RDR (Request for Data Review) for a roadside inspection which it is not my vehicle, nor my driver, but got assigned to my USDOT#? What documentation can I submit to serve as evidence that the data is in error?

The following suggestions come from TVS field personnel;

  • In the past, I have gotten a letter from the insurance (company) verifying that a vehicle/driver is not insured or registered for my company and forwarded (the letter) on to Data Q. I have had the roadside removed from the company profile.
  • I have had that happen a couple of times. All I did was submit the DATAQ stating this is not our DOT number nor is it our truck. The reporting officer may have written the DOT number down wrong. Take a picture of your trucks hoping they look alike and send that in so the reporting officer can review.
  • You can enter a Data-Q for "assigned to incorrect carrier". If known they require the DOT number of the carrier it should be assigned to. The easiest way to get this removed from the carrier's profile is a statement from the carrier or the driver that did the transportation and submit this as evidence (fax or scan). If correct carrier is not known then I would still enter the challenge. Enter all the information that you can. For example "This was a driver of ours but was terminated on x/x/xxx. Or - this was never one of our employees. Look for the plate on the vehicle to make sure it was not one of your vehicles. If so then you would have to explain that although the vehicle was registered to us it was being operated by co name and DOT #XXX. It may take some time but I have always been successful in getting them transferred to the correct company if it was true.
  • First of all they can use "DataQ" located on the company snapshot page at the top. I have talked to companies that have used it and successfully had a violation removed that did not belong to them or was not valid.
  • Secondly, there are steps to verify it is not their truck or driver. They can send a company driver list, a driver list from the agent, verification of DOT # for the company, verification of what states they may run in (in case a violation shows from a state the company does not go into). Show a list of VIN and plate numbers for the company, get a list from the insurance agent showing vehicle lists, and overall watch the site at least every 30 days to ensure a scenario does not happen such as someone using another company’ DOT #.
  • Lastly, contact the DOT for a copy of the report to help make sure you have what is needed to help verify the violation is not the companies.
  • Submit: (1) A picture of their truck with their DOT number displayed, (2) List of Drivers to show driver not theirs, (3) Document to show you do not own the truck in question, (4) Document to show you weren't even in the area/state at date/time of inspection

Off duty logs when the terminal box is checked on the log does the city and state still need to be written in remarks? We have different answers.

To answer, I’ll defer to the question, "when is the city/st required?" Ref FMCSR 395.8(h)(5) - (5) Location—remarks. "The name of the city, town, or village, with State abbreviation where each change of duty status occurs shall be recorded." Therefore, I am of the opinion that if there is no change of duty on a give day, there would be no requirement that the city/st be listed in the remarks section.

When DOT says 12 months for an annual Fed inspection should the carrier interpret 12 months as 365 days or would they have to the end of the inspection month... such as a July 15, 2014 inspection would actually expire next year on July 31st?

The answer to this question is found in Guidance question #2 under FMCSR 396.17

Question 2: May the due date for the next inspection satisfy the requirements for the inspection date on the sticker or decal?

Guidance : No. The rule requires that the date of the inspection be included on the report and sticker or decal. This date may consist of a month and a year. Therefore, the expiration date of the annual FHWA vehicle inspection would be the last day of the month in which the last FHWA inspection was done 12 months prior.

What is currently the most common roadside driver violation? (Compliments of JJ Keller)

(While frequency may vary) According to data provided by the Federal Motor Carrier Safety Administration’s Analysis Online website, a new player is skyrocketing to the top of the list of roadside inspection driver violations. In the past, four or more of the top ten driver violations have been related to improper log violations. As of 4/25/14, the number one violation that drivers are cited for is still "Log Violation (General/Form and Manner) §395.8." What may be surprising to some is that now in second place is "Driving beyond 8-hour limit since the end of last off duty or sleeper period of at least 30 minutes §395.3(a)(3)(ii)." Others may not be as startled by this data, since the "30-minute break" rule only became effective July 1, 2013. But what this data is showing us is that the driver, the company, or both, either fail to have a clear understanding of this new requirement or they are pushing their luck until they are formally charged with this violation. The new requirement states that driving is not permitted if more than 8 hours have passed since the end of the driver’s last off-duty or sleeper-berth period of at least 30 minutes. To summarize the regulation: The 8-hour clock begins when the driver goes onduty. It measures all elapsed time since coming on duty, but only affects the ability to drive after the eighth hour. The clock resets with each off-duty period of 30 minutes or more.

Although the recommendations contained herein are designed to improve your safety and/or compliance programs, we make no warranties that their implementation will reduce collisions or protect you from fines or penalties that may result from noncompliance with state, federal or local statutes. This Loss Control Survey is not designed to replace, substitute or supplement your obligations or responsibilities to ensure compliance with any local, state or Federal statutes, rules or regulations. It also is not intended to replace or reduce your responsibility to develop and maintain safety procedures promoting safe premises and operations. Page 4 Another possible reason for confusion on this requirement is that shortly after the rest break rule’s compliance date of July 1, 2013, the court struck down the provision for "short-haul" drivers but did not define a "short-haul" driver. The FMCSA responded with an "Enforcement Policy" indicating that a "short-haul" driver was a driver that qualified for the short-haul exemptions of §395.1(e). In a final rule in October of 2013, the FMCSA made it official by rewriting §395.3(a)(3)(ii) to say: Except for drivers who qualify for either of the short-haul exceptions in §395.1(e)(1) or (2), driving is not permitted if more than 8 hours have passed since the end of the driver’s last off-duty or sleeper-berth period of at least 30 minutes. Not every motor carrier or driver has problems with the 30-minute break requirement. Yet, more violations than many expected are being documented after almost a full year has passed since the compliance date of the new rule. In addition, the costs associated with this lack of understanding and compliance have the potential to skyrocket.

According to the below (email from client), can you please confirm that a CDL is not required

I spoke with our Regulatory Compliance VP this morning about the combined registered weight of a vehicle affecting CDL requirements. He believes, as do I that there is confusion with regard to "registered" combination weight and "actual" combined vehicle weight rating. He supplied a portion of a J. J. Keller FMCR manual that supplies guidance and clarification to all portions of the regulations. With regard to 383.5 this particular question and guidance reads: "A driver operates a tractor of exactly 26,000 pounds GVWR, towing a trailer of exactly 10,000 pounds GVWR for a combined GCWR of 36,000 pounds. HM and passengers are not involved. Is it a CMV and does the driver need a CDL?" The guidance reads: "No to both questions. Although the vehicle has a GCWR of 36,000 pounds, it is not a CMV under any part of the definition of that term in 383.5 and a CDL is not federally required.

Although changes in the Definitions sections of 383.5 (CDL) and 390.5 (Safety Regulations) are to be effective 4/18/2014, these apply to the definition of GCWR. The definition of Commercial Motor Vehicle remains the same in each section. Here is a recent notice from JJ Keller on this subject; New Definition to clarify applicability to safety regulations.

  • Although this change will remove Guidance Questions #3 & #4 in both 383.5 and 390.5 as per the Federal Register, the Regs are silent in regards to any changges to 383.5 Guidance Question #6.
  • Therefore, in answer to the original question, the CDL is not required for the equipment combination as described in 383.5, Guidance Question #6 , and your client is correct. This was verified with the Indiana State Police Motor Carrier Enforcement Division. The reason that the CDL is not required is because neither vehicle requires a CDL, neither is 26,001 lbs. GVW or greater, and the trailer must be 10,001 lbs. GVW in order to meet the definition of CMV under 383.5 and 390.5.
  • Since the power unit as described (26,000 lbs. GVW) is at least 10,001 lbs. GVW, it does meet the definitions of a CMV under FMCSR 390.5; therefore the driver and company must meet all safety requlations (with exception of 382/383) including vehicle inspection, repair and maintenance, driver qualification, hours of service and driving of commercial motor vehicle requirements.

Am I correct to go by conviction date on the Certificate of Convictions?

An account I saw today (450 tractors) was going by offense date (as opposed to conviction date) on the COV's. I told them I thought they were supposed to be using conviction date, we referenced FMCSR (and guidance), and 391.27 pretty clearly states "of which the driver has been convicted of".

You are correct. Everything is based on conviction not violation date. Part 391 (10,001+ GVWR) and part 383 (26,001+ GVWR) speak only to convictions. The presumption of innocent until proven guilty applies here. Until the driver pleads guilty or is found guilty by the court, those parts do not apply.

Do I have to have a copy of their entry level drivers training in their D/Q file from a pervious employer back in 2005 or does this section only apply when I hire someone with less than 1 year experience?

Federal Interpretation: As the hiring carrier, you must have documentation of the driver's successful completion of entry-level driver training. If the driver or his previous motor carrier cannot provide documentation of this training, you will have to provide this training to the driver and document per the regulations.

If hiring a driver who had a failed drug test 8/17/11, completed his SAP program and aftercare. I have the two letters from the SAP confirming. Other than the release for prior testing history need I obtain anything else?

This is more than just a matter of DOT Compliance. As you’ve stated the facts, under FMCSR 40 and FMCSR 382, it appears as if you would technically be compliant in hiring this driver. However, this is a business decision that should not be made without seeking the advice of legal counsel and your company’s Human Resources Department. We have solicited the opinion of several knowledgeable safety professionals and came up with a lot of good feedback. Again, these opinions do not necessarily reflect that of Thorn Valley’s. However, the poll and the subsequent comment offer interesting responses to the question, and should provide for good talking points when presenting this case to your company’s legal and HR team.

Yes Condition of employment subject to increased randoms beyond the SAP 4 No Too much liability, don’t want to set a precedent NO 4 No Done it before, wound up testing positive again 3 Yes Technically OK 2 Yes Wait 10 years 1 Yes Might consider if it was marijuana but not hard drugs 1 Yes Only did it once in 25 years with the insurance company’s ok 1 Yes Conduct the pre-hire drug screen and audit the SAP letter with a phone call 1 Yes Zero tolerance policies are questionable 1 Yes "One time" forgiveness policy 1

Here are some of the responses "Technically, that's all you need; however, my experience with the couple I tried over the yrs didn't turn out very well (tested positive again!) so I gave it up. If extra testing was considered, I think I would check with my MRO to get a recommendation on testing outside of the regular random testing procedures." "I never would hire someone who has had drug/alcohol trouble. If I did the driver had to be clean for 10 yrs. Once on the path, chances are they will fall again. Are you willing to take the liabilty for this driver? Next what will an opposing attorney do with a company/driver with that kind of background if there was a shock loss or any other loss?" "In light of the societal shift in opinion on marijuana use I would likely consider that type of user over anyone who was using harder drugs, such as heroin. To me such uses shows more than just use but the individual’s character. Companies have such a hard line, zero tolerance, for everything for fear of liability down the road. If 2011 isn’t long enough, then how long would? It’s a difficult decision. " "We almost did this and after huge debates (Risk, Operations, HR, Legal) decided it would not only set precedence with the unions but would also open up a Pandora's box." "No, I don't, with that said, i'd make sure he is randomly tested monthly , unannounced and like on a Monday before dispatched . I've had the same scenario and he made a great driver and be sure (everything is in writing and) documented. I'll clear that, in conjunction with the SAP folks, they administered the drug testing, not in the random pool. In 25 years as Safety Director, I only did it once, with the blessing of our insurance carrier." "Recommend: (1.) Pre-hire drug screen; (2.) Audit the SAP letter with a phone call."

"One can do a set pattern (monthly) drug testing schedule. This would not be a random. I would set this up as a condition of employment, or re-employment. Sort of a "Hey, if you want the job, you will have to sign this document agreeing to a semi-random, periodic drug testing program. I've personally done this, and in a teamster - union environment. " "Unfortunately when a driver decides to take a position and operate a commercial vehicle ....he or she is now regulated and drug use is "Not Allowed". With that said....a decision should have already been made by the driver.....that "I can no longer smoke Marijuana if I choose to be a professional commercial driver. Apparently this driver made bad decisions! I personally believe people are creatures of habit...and the opportunity for the driver to fall back into the same old routine exists and we now would have a hired who has had a previous drug problem. I wouldn't want the liability of them driving my truck regardless of DOT regulations and/or SAP programs. In my eyes..... a fuse on a time bomb.... waiting to be lit!!" "Well by the letter of the law (regulations) that person has requalified in the eyes of the FMCSR's and can be put in a safety sensitive position again. I have clients who have drivers that have tested positive in the past and they do just fine. Can they relapse-sure. In the era of driver shortages- I am writing more and more "one time" forgiveness D/A policies. "Zero" tolerance policies can come back to bite you in the ass. Whatever you do - do and treat all drivers the same." "You can not randomly test a driver just to satisfy your curiosity to see if they are using again. A random selection has to scientific and RANDOM. Drivers in random testing pools might be selected back to back or might go months or a year without being selected." "I myself think this is a good solution as long as it is in the company policy. It could say something like this: If company Xxx Inc. has knowledge that a driver has had a positive or refusal to any drug or alcohol test or any violation of 49 CFR Part 40 or Part 382 then Xxx Inc., as a condition of employment, may require the driver to submit to three unannounced drug and/or alcohol tests per year for the next (36 - 60) months after the driver is released from a SAP program. The cost of these unannounced tests will be the responsibility of the driver and the company has the right to deduct these costs from the driver's compensation at a rate of $50 per test for controlled substances and $35 per test for alcohol. If any of these tests conducted result in a positive or result in a refusal to be tested the driver will be terminated. Let it be known that I am not an attorney and I am not sure this is legal but it could be a possible solution." "(the previous suggestion) … Sounds like a good solution but here is the problem as I see it. Since part 40 and part 382 spell out the requirements for conducting a random, follow-up, return to duty, etc. tests of an individual, then these extra tests that you are proposing would have to be non-DOT tests. You could not use a Federal CCF form or DOT Alcohol Test form for the tests. Second, what if that person tests positive? Because it was a non-DOT test, you can't report him/her to the state DMV as a positive test. You now have a driver with a positive test and the only recourse you have is to terminate them. This driver then goes down the road and gets another driving job. You get a previous employment drug/alcohol inquiry on this driver-by law you can not divulge that he/she tested positive because it asks if he/she ever violated a DOT drug/alcohol test. "

“Do I have to furnish my drivers with an updated copy of the FMCSR “green book” regulations every year?”

In my experience, the following regulation is most likely the source of this question. Here is what is required under the Federal Safety Regulations; FMCSR 390.3 – General Applicability (e) Knowledge of and compliance with the regulations. (1) Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter which are applicable to that motor carrier's operations. (2) Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations contained in this subchapter. (3) All motor vehicle equipment and accessories required by this subchapter shall be maintained in compliance with all applicable performance and design criteria set forth in this subchapter. Although not required under the FMCSR, many fleet managers satisfy the above requirement by; 1) Purchasing green pocket guides for their drivers every year (from JJ Keller, Labelmaster or some other source), 2) Holding an annual safety meeting, passing out the new handbooks and having the drivers sign for them. Your responsibility under the FMCSR is to make sure your employees/drivers understand their obligations under the safety regulations. However you choose to inform, educate and update your drivers is up to you as the fleet manager. Just be sure you include regulatory updates (e.g. Hours of Service, in particular the 30 minute break, etc.) when you do. The average fleet safety manager simply purchases the books and uses signed reciept as proof that he’s "trained them." The excellent fleet safety manager uses multiple training methods (visual, audio, written and spoken communitations) and assures clear understanding with a brief review quiz and follow-up questions. On a related note, although there is no regulation stating that the driver has to have a little green book with him, there is a regulation that says they must have Emergency Respone procedures for any Hazardous Materials they may be transporting. Most hazmat carriers satisfy this requirement by supplying their drivers with a current edition of the Emergency Response Guide (ERG) handbook which is updated every four years, the current edition being 2012 and due to be updated again in 2016.

Is there a “no gun” policy under the Federal Motor Carrier Safety Regulations?

Despite popular belief, the Federal Motor Carrier Safety Regulations do not address whether a driver is allowed to carry a firearm or other weapon in a commercial motor vehicle. But that doesn’t mean the practice isn’t highly regulated at the federal, state, local, and company level. Federal rules

Federal agencies do not issue licenses or permits to carry concealed weapons. Such permits must be obtained from state or local governments.

The commerce of firearms is regulated at the federal level by the Bureau of Alcohol, Tobacco, and Firearms (ATF; Under federal laws and ATF regulations (18 U.S.C. §926A; 27 CFR §478.38), you generally are allowed to transport a firearm from one place in the country to another if:

  • You are not prohibited from owning a firearm in either place (for example, convicts may not carry firearms);
  • You comply with the firearms laws in the starting and ending states (for example, you may need a permit from each of the two states);
  • You are transporting the firearm for a lawful purpose;
  • The firearm is unloaded; and
  • The firearm and ammunition are not readily accessible from the passenger compartment. If the vehicle does not have a compartment separate from the driver's compartment (such as a sleeper berth), the firearm or ammunition must be contained in a locked container other than the glove compartment or console.

The transportation of certain types of weapons (machine guns, short-barreled shotguns, shortbarreled rifles, etc.) is more highly regulated. Also, rules exist for the delivery of firearms by a motor carrier as part of a shipment. Refer to ATF regulations in 27 CFR Part 478 for details. Finally, note that a driver who applies for a hazardous materials endorsement or other credential may be rejected if he/she was convicted of unlawful possession, use, sale, manufacture, purchase, distribution, receipt, transfer, shipping, transporting, delivery, import, export of, or dealing in a firearm or other weapon.

State and local rules

States severely restrict and often prohibit the carrying of firearms in any type of vehicle, and the penalties for violating those rules can be harsh, including jail time. States also regulate the carrying of weapons, whether concealed or not, but often differ on how they define what a weapon is. Depending on the state, a "weapon" may include mace, metal knuckles, blackjacks, hand chains, pocket knives, billy clubs, writing pen knives, leaded canes, or almost any other type of dangerous or deadly weapon. State and local governments also may have their own concealed-weapons laws, and a carry permit issued by one government authority may not be good under the jurisdiction of another. So even if you have a permit to carry a weapon in one state, you could be severely punished if you carry that weapon across state lines. Given the sensitivity of the subject and the countless number of weapons laws that exist, drivers and/or employers should check on the laws in each and every state through which they will be transporting a weapon. One place to start is the State Patrol in each state.

Company rules

Aside from what is legal, drivers need to be aware of what their companies allow. Some companies have adopted policies prohibiting the carrying of firearms or other weapons of any kind.

Does the 2nd offense for cell phone usage or texting requiring a 60 day disqualification under 391.15 of the FMCSR's only apply to drivers that hold a commercial drivers license or to all drivers?

There are 2 definitions of a commercial motor vehicle-a vehicle over 10,000 pounds GVWR and another over 26,000 GVWR. Those over 26,000 pounds GVWR require a class A or B driver’s license under part 383 of the FMCSR's. As you can see below, part 395.15 applies to all drivers who operate a CMV over 10,000 pounds gross vehicle weight rating (GVWR). Therefore you can be disqualified even though you do not have a commercial driver’s license. (Refer to following guidance as provided by FMCSA)

Question 4: What are the differences between the disqualification provisions listed in §383.51 and 383.5 and those listed in §391.15? Guidance: Part 383 disqualifications are applicable generally to drivers who drive CMVs above 26,000 pounds GVWR, regardless of where the CMV is driven in the U.S. Part 391 disqualifications are applicable generally to drivers who drive CMVs above 10,000 pounds GVWR, only when the vehicle is used in interstate commerce in a State, including the District of Columbia.

Q: An O/O purchased a used truck in the California, gets hooked up with a trucking company (100% O/O) in the Midwest and agrees to drive up to do all the paperwork and get started, although there has been no lease agreement executed yet.

Unfortunately, along the way in New Mexico, he gets written up for a logbook violation. The vehicle is operating on a Temporary license plate, is not marked as he has no authority, but the driver indicates that he is on his way up to the Midwest to start work for a company up there. The NM DOT looks up that company’s USDOT number and pins the violation on them, even though technically he has not signed on with anyone yet. The midwestern trucking company is challenging this through data Q and the request has not been ruled on yet."

A: While awaiting a ruling, here is what some TVS experts have to say;

TVS Response #1: Did he have a trailer? If not, I would call this personal conveyance. He is driving a commerical vehicle, so should have had a log book, medical examiner's certificate and CDL, but with no operating authority, no USDOT number, no trailer, no dispatch, he should have said no more than personal conveyance. Also should have shown his bill of sale. If a state base plate and only bobtailing, we are back to personal conveyance.

** TVS Response #2**: My assumption is that if he was traveling to sign on, although he may have had his own trailer, he was most likely bob tailing. However, the presence of a trailer does not affect the applicable regulations. The entire crux of this issue is that the driver was traveling to his employer's place of business in a commercial motor vehicle. Under the regs, he is required to log the trip and, as you say, have his CDL and physical card. The question of "under dispatch" is addressed in the DOT interpretations which state that a driver who is using his own truck to go home when not under a load may log that period as "off duty" and the truck is his personal conveyance. However, when leaving home to travel to the terminal, it is a commercial motor vehicle and he is considered under dispatch and must log. In this case, the driver was directed (read dispatched) to bring his truck to the office and sign on. Technically, this placed him under dispatch and under the authority of that company, even though he did not have their signs and plates. However, the officer that gave him the ticket, while technically correct was taking advantage of his authority to make life tough for everyone concerned

TVS Response #3: Interesting topic. From an ex-commercial officer view this is how the conversation (probably) went; * > Officer: Do you have a DOT number or authority to operate? * > Driver: No I just got the truck but am going up to sign on with ABC company. * > Officer: OK here is what I am going to do. I will give you a break on your DOT authority and only write you for the log book (and sent the DOT violation to the new company). * > Driver: Great! (not knowing what it will do to ABC company)

TVS Response #4: Pretty typical scenario for O/O leasing to company in a distant city. Driver should have had logbook, though.

Related FMCSR Interpretations §395.13 Drivers declared out of service Question 2: May a driver operating a Commercial Motor Vehicle (CMV) under a lease arrangement with a motor carrier, after being placed out of service for an hours of service violation, cancel the lease and continue to operate the vehicle as a private personal conveyance? Guidance: No. Cancellation of a lease does not relieve the driver of the responsibility of complying with the out of service order which prohibits the driver from operating a Commercial Motor Vehicle CMV

§395.2 Definitions Question 1: A company told all of its drivers that it would no longer pay for driving from the last stop to home and that this time should not be shown on the time cards. Is it a violation of the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a Commercial Motor Vehicle (CMV) from the last stop to home and not show that time on the time cards? Guidance: The Federal Motor Carrier Safety Regulations (FMCSRs) do not address questions of pay. All the time spent operating a Commercial Motor Vehicle (CMV) for, or at the direction of, a motor carrier must be recorded as driving time. Question 26: If a driver is permitted to use a Commercial Motor Vehicle (CMV) for personal reasons, how must the driving time be recorded? Guidance: When a driver is relieved from work and all responsibility for performing work, time spent traveling from a driver’s home to his/her terminal (normal work reporting location), or from a driver’s terminal to his/her home, may be considered off-duty time. Similarly, time spent traveling short distances from a driver’s en route lodgings (such as en route terminals or motels) to restaurants in the vicinity of such lodgings may be considered off-duty time. The type of conveyance used from the terminal to the driver’s home, from the driver’s home to the terminal, or to restaurants in the vicinity of en route lodgings would not alter the situation unless the vehicle is laden. A driver may not operate a laden CMV as a personal conveyance. The driver who uses a motor carrier’s Commercial Motor Vehicle (CMV) for transportation home, and is subsequently called by the employing carrier and is then dispatched from home, would be on-duty from the time the driver leaves home. A driver placed out of service for exceeding the requirements of the hours of service regulations may not drive a Commercial Motor Vehicle (CMV) to any location to obtain rest.

Are Truckers “Losing a Day” Under the 34-Hour Restart Revision?

An account claims that they now "lose a day" under the July 1st, 2013 34-hour restart provision if they get home early on a Thursday. From our standpoint, we say "That’s good news!" Hopefully this meant they operated safely, efficiently and profitably so we feel they should take that extra day off anyway – they deserve it! The "168 hour rule" (7 days x 24 hrs) simply means s the 34-hour restart cannot occur a day sooner than the previous week. e.g. The driver who normally comes in on Friday and goes off-duty for 34 hours, cannot start his 34 hours off duty period next Thursday because it’s not been 168 hours since the start of the previous 34-hour period. Under further investigation it’s worse than that actually if they tries to "fix it" with the 70-hour rule. They not only "lost" a day – they’d lose two (2) and here is why. If they left the previous Sunday (typically 5 am, but for purposes of this example, we’ll just say they started at 12:01 am) and they get back a day early on Thursday, they’ve been out for five (5) days so their maximium on-duty time (14 hrs/day) is 70. Since they are not over the weekly HOS limit, they don’t need the restart - it is is optional. Unfortunately, if they decide to go back to the 70-hour rule and leave on Sunday again, now they will be "losing two days". Although they freed up 14 hrs x 3 days = 42 hours from their previous 70 hrs/7 days, if they start out on Sunday with 28 hours already accumulated they’ll max out at 70 and will have to shut down on Wednesday this week. I guess the good news at that point is they can now at least use the 34 hour restart and start driving again - on Thursday. But now they will not be able to employ another 34-hour restart until the following Wednesday. So yes, I certainly understand why some feel that they "lose" a day under the latest revision to the 34-hour rule. However, the primary reason it was revised this time was because under the initial version of the 34-hour restart provision, drivers could actually accumulate more than 70 hours in a week. That certainly was not FMCSA’s intent with the initial 34-hour provision. Maybe in all actuality, we are not losing a day but simply "giving back" a day gained under the original 34-hour restart.

Do you have any transportation industry data of miles driver per truck for 2010 vs. 2011? For example, did the miles driven per truck in 2011 increase over 2010 from 110,000 miles to 135,000?

ATA offers Freight Forecasting materials in the $299 range. Here is a link if you’d like to check that out > Here are some interesting Facts and Figures published by USDOT. Unfortunately the most current heavy truck mileage data they have is from 2002 > gures/index.htm From our standpoint at TVS, although we may not have data to back this up, most of our field staff feels that a 25,000 mile/yr increase (22.7%) is probably a stretch. The tonnage index was only up 6.0% year-over-year (November 2011) so a 3-fold jump in mileage seems pretty unlikely. From a safety standpoint, if this were a single driver operation, it would take 270 days at 500 miles/day to hit 135,000 miles. Factoring in the required 34- hour restart and you have them driving almost 100% of their available hours. A team operation can likely generate this kind of mileage, but that changes the dynamics.

If the VMT data is not updated and is 2009 or older, what impact will this have when the snapshot is posted in the beginning of February?

This is actually one of four questions answered in a recent communication from the FMCSA CSA Team. SMS uses VMT data if it has been provided within the last 24 months and references one of the two previous years. So, the January 2012 snapshot (released in early February 2012), will only include data provided within the last 24 months and that has a VMT year of 2010 or later. Here are the other three questions ......

What will be affected? This could potentially impact a motor carrier’s Unsafe Driving and Crash Indicator BASICs results – both which use VMT data in their calculations. How will motors carrier be affected? Motor carriers that currently receive a VMT-based adjustment due to high truck utilization (i.e. more VMT per PU than the average) will cease receiving that adjustment if they do not update their MCS-150 form to reflect more recent data (i.e. VMT year of 2010 or 2011). If they update the information during the month of January will the change be reflected in the January snapshot that is posted in early February? Motor carriers must update their VMT information in the first few weeks of January to avoid this potentially detrimental effect on their Unsafe Drive and Crash Indicator BASIC percentiles

Here is a response TVE received in regards to recommendations we had made to them following the account survey:

"I received your letter today but I am unsure what I could change in the Safety Management side of this recommendation. I have written policies in place, fines and training, and a step-by-step process for enforcing any violations. We do our own DOT and spot checks on our drivers and fine them on just those inspections as well as what they might encounter on the road. We also have a reward system in place for good inspections. We monitor our SAFESTAT score monthly and adjust our training to what we deem as a critical need of enforcement. Can you please clarify what I could do differently in that department and on your recommendation 11-01?" This is a good question, particularly valid for managers who may not be having success in lowering their fleet BASIC score(s). Here is a suggested Action Plan to effectively manage this situation (keeping in mind that high BASIC scores are indicators of organizational behavior, so the ultimate goal is behavior modification);

  1. Communicate your concern to Management, Operations/Dispatch and Drivers regarding unacceptably high DOT Key Performance Indicators (KPI). Do this in terms of ramifications (delays, fines, insurance rates, lost business, equipment failure, crashes, etc).
  2. Set realistic goals for OOS rates and BASIC scores, put them in writing and have Management, Operations/Dispatch and Drivers sign off and agree to; (example) "Our goal is to reduce Driver OOS to 5% and Fatigue BASIC to 55% by July 1st, 2012."
  3. Create an incentive system to encourage everyone to strive and achieve the goal(s); this can be in the form of peer recognition, reward or monetary bonus. Recognition should have both group (team) and individual (employee) components.
  4. Establish clear disciplinary measure and remedial actions including re-training of violators and elimination from award/bonus eligibility
  5. Provide monthly updates and KPI progress reports to Management, Operations/Dispatch and Drivers. Thoroughly evaluate every violation and determine the root cause of the problem; establish immediate preventability measures; (Examples) (1) HOS violation due to dispatch overworking the driver; penalty system implemented for knowingly dispatching driver in excess of available hours. (2) New driver log violation (never completed initial orientation/log training); re-vamped driver selection, hiring and orientation process
  6. As progress is made towards goal achievement(s), encourage drivers to ask for inspections to further enhance OOS Rate(s) and BASIC score(s).

IMPORTANT * The reward and disciplinary system(s) must be uniformly administered and provide sufficient incentive to elicit desired behavior modification. If the company has rewards and disciplinary systems already in place, yet the OOS rate(s) or BASIC score(s) is not showing any improvement, then either the company goals and expectations are unreasonable, are not clearly communicated or being misunderstood - or the reward/disciplinary system(s) is insufficient to elicit employee behavior modification. In this case, the entire process must be reviewed and modified until desired results are achieved. Suggestion: Review Safer and SMS for other fleets in your area. Identify those that are generating results near to the goals you have established for your company. Ask their fleet safety manager(s) for ideas on rewards, incentives, disciplinary, tracking, evaluating and reporting methods they might share with you.

We are reviewing an account and DOT shows a "Satisfactory" rating but high SMS - how can that be?

This scenario is not uncommon, and a primary reason why FMCSA implemented CSA in 2010. The reason there appears to be little or no correlation between the Safety Rating and the high BASIC scores is because they are determined under entirely different rating methodologies, let alone covering separate and distinct time frames. In this example, the trucking company's Satisfactory safety rating is based upon a compliance review that occurred over three years ago. On the other hand, CSA is contemporaneous, reflecting most recent 24 month roadside data (60 months for accident factor). Note that the driver database (DSMS) goes back an additional twelve months covering previous 36-months.

Currently, the safety fitness rating of a motor carrier is determined based on the results of a very labor intensive compliance review conducted at the carrier´s place of business FMCSR 385 (Safety fitness procedcures). Aside from roadside inspections and new audits, the compliance review is the Agency´s primary intervention. Under CSA, FMCSA has begun to implement a broader array of progressive interventions, some of which allow FMCSA to make contact with more carriers.** Through this rulemaking FMCSA would establish safety fitness determinations based on safety data from crashes, inspections, and violation history rather than just the standard compliance review.** This will enable the Agency to assess the safety performance of a greater segment of the motor carrier industry with the goal of further reducing large truck and bus crashes and fatalities. FMCSR 385 is currently being revised with Publication Date scheduled for April 2, 2012 with End of Comment Period scheduled for June 4, 2012. Nonetheless, at present FMCSA is bound by their own regulation and are currently stuck with two (2) measurement systems ("Safersys" and "SMS"). Most brokers, shippers, insurers and the general public still use the Safety Fitness Rating as a guide so it is important to consider both databases when analyzing trucking company safety records.

How do I determine if a company is doing better/worse in CSA?

The simplest wat to determine trending of a company's CSA scores is to depress the "History" button directly beneath the Crash Indicator BASIC on the company's SMS home page. This will provide an overview of the company's month-by-month BASIC scores for the previous six months. A more detailed complete measurement can be obtained by depressing the "View Complete Measurement Profile" button on the SMS home page. This profile shows month-by-month quantify of out-of-service violations in each BASIC over a twenty-four month period. In either profile view, scores remaining consistently near or at threashold levels or scores trending upwards or remaining flat month after month indicate lack of management controls necessary to drive continuous improvement within the operation. Read "What can a motor carrier do to improve?"

Can under-reporting the fleet count affect the company’s CSA score?

The short asnwer to this question is "Yes". More specifically it will not help the CSA score and in fact is detrimental to the Unsafe Driving and the Crash Factor BASIC categories. Also, even though a carrier may submit an MCS-150 form to update their fleet count, this will not automatically correct PU to that number in SMS. The PU number is actually an average of the carrier's current number of PUs, plus (ii) the number of PUs the carrier had 6 months ago, plus (iii) the number of PUs the carrier had 18 months ago divided by 3. Therefore, the smaller the fleet overall, the more detrimental under-reporting of PU becomes. Industry best practice is to re-file an updated MCS150 whenever the fleet count increases to prevent inflated BASIC scores in Unsafe Driving and Crash Factor.

How can we help our customers improve driver safety and reduce losses? I have an account that needs to reduce small PD losses and the deductible is not an option.

This is a pretty broad question but if you're looking for solutions from a CSA persepctive, an excellent resource is available from the SMS Information Center offering fourteen (14) different crash types and corresponding Crash BASIC Countermeaures. This document should at minmum be downloaded and adopted as an official company crash countermeasure document and used for determining preventability and driver trainng. A suggested used of the document would be to review one (1) crash type each month (for a 14-month driver safety training program) and review with all drivers and operations personnel. Maintain a signed acknowledgement sheet for company safety training records.

Is it o.k. to drive a CMV that's been placed out of service before the repairs are made?

The short answer to this question is "No". Operating an OOS truck places both the driver and the motor carrier in jeapordy. FMCSA currently identifies 16 regulations that are essential elements of basic safety management controls necessary to operate in interstate commerce and makes a carrier's failure to comply with any one of the 16 regulations an automatic failure of the (new entrant) safety audit. Additionally, if certain violations are discovered during a roadside inspection, the new entrant now will be subject to expedited actions to correct these deficiencies.

Here’s a link to the regulation forbidding operation of Out-of-Service equipment > 396.9; Inspection of motor vehicles and intermodal equipment in operation. Further, a driver who understands the implications of CSA and the ramifications in regards to their individual DSMS record would refuse to operate OOS equipment because doing so puts them in jeopardy of receiving a 396.9(c)(2) violation which carries the maximum SMS severity level of ten (10) points. Refer to page A-24 of SMS Methodology. See SMS Info Center "What can a motor carrier do to improve in the Vehicle Maintenance BASIC?" (Questioni 41)

How do I update my "VMT"?

VMT stands for "Vehicle Miles Travelled" and is obtained by DOT from the information you provided on the last MCS-150 form you sent them. Although the MCS-150 is only required to be updated every 24 months, you can update it as often as you'd like. In fact it is best practice to update your MCS-150 anytime there is a change in your fleet status (address, cargo, area of operations, unit or driver count, annual mileage, etc.) See SMS Info Center "What can a motor carrier do to improve?" (Question 35, paragraph 3)

How long are DOT Medicals good for?

A DOT physical exam is valid for up to 24 months. The medical examiner may also issue a medical examiner's certificate for less than 24 months when it is desirable to monitor a condition, such as high blood pressure. Industry best practice is to send the driver to a company designated medical clinic to perform the test. See SMS Ino Center "How can a carrier improve in the Driver Fitness BASIC?" (Question 39)