4/28/2016. DOT BASIC COMPLIANCE WORKSHOP May 17, 2016 Presented by: Don Jerrell PART 390: GENERAL APPLICABILITY. Drive change through education.

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1 DOT BASIC COMPLIANCE WORKSHOP May 17, 2016 Presented by: Don Jerrell Drive change through education. PART 390: GENERAL APPLICABILITY INTERSTATE APPLICABILITY OF PARTS 387, 390, 391, 392, 393, 395 & 396 (ALL THE REST OF THE FMCSR S) Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 10001# or more. (Non-CDL CMV) In plain words, the above sections apply to all CMV s. Drug and alcohol testing (and CDL) apply only to the previously described CMV s. The difference is seen when the weight is added, not just the GVWR. 1

2 INTERSTATE APPLICABILITY OF PARTS 387, 390, 391, 392, 393, 395 & 396 (2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or (3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation. INTERSTATE APPLICABILITY OF PARTS 387, 390, 391, 392, 393, 395 & 396 (4) Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C. PART 390 GENERAL (APPLICABILITY) Interstate: 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. 2

3 PART FILING OF MCS-150 UPDATE MCS-150 Website address Enter DOT # here Click on below link IMPORTANT!!! AS A CARRIER YOU MUST UPDATE YOUR MCS-150 DURING THE MONTH AND YEAR DESIGNATED OR YOUR US DOT# WILL BE DEACTIVATED. 3

4 PART 390 GENERAL PART VEHICLE MARKING The vehicle marking must show: The legal name or single trade name of the company operating the vehicle The motor carrier identification number, issued by the FMCSA preceded by the letters USDOT. Display on the POWER UNIT. Visible from 50 away. Interpretation Question 1: What markings must be displayed on a CMV when used by two or more motor carriers? Guidance: The markings of the motor carrier responsible for the operation of the CMV must be displayed at the time of transportation. If 2 or more names are on the vehicle, the name of the operating motor carrier must be preceded by the words "operated by." CDL REQUIREMENTS 4

5 WISCONSIN CDL REQUIREMENTS Class A: For operation of a commercial motor vehicle. Any combination of vehicles with a Gross Vehicle Weight Rating (GVWR), actual weight, or registered weight over 26,000 pounds provided the GVWR, actual weight, or registered weight of the towed vehicle(s) is more than 10,000 pounds. WISCONSIN CDL REQUIREMENTS Class B: For operation of a commercial motor vehicle. Any single vehicle with a GVWR, actual weight, or registered weight over 26,000 pounds, or such vehicle towing a vehicle with a GVWR, actual weight, or registered weight of 10,000 pounds or less. WISCONSIN CDL REQUIREMENTS Class C: For operation of a commercial motor vehicle. Any single vehicle with a GVWR, actual weight, or registered weight of 26,000 pounds or less, (or such vehicle towing a vehicle less than 10,000 pounds) designed to or actually carrying 16 or more persons including the driver. 5

6 WISCONSIN CDL REQUIREMENTS Class C: For operation of a commercial motor vehicle. Any single vehicle with a GVWR, actual weight, or registered weight of 26,000 pounds or less, (or such vehicle towing a vehicle less than 10,000 pounds) transporting hazardous materials requiring placarding. DRUG AND ALCOHOL TESTING WHO IS SUBJECT Part 382/40 Controlled Substances and Alcohol Use and Testing Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle Has a gross combination weight rating of 26,001 or more pounds including a towed unit with a gross vehicle weight rating of more than 10,000#. Class A combination CMV. Applies both inter and intrastate. 6

7 WHO IS SUBJECT Part 382/40 Controlled Substances and Alcohol Use and Testing Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle Has a gross vehicle weight rating of 26,001 or more pounds Class B straight truck by itself or with a trailer 10,000# or less. Applies both inter and intrastate. WHO IS SUBJECT Part 382/40 Controlled Substances and Alcohol Use and Testing Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle Is designed to transport 16 or more passengers, including the driver. WI statutes add actually carrying to the passenger endorsement section. WHO IS SUBJECT Part 382/40 Controlled Substances and Alcohol Use and Testing Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle Is of any size and is used in the transportation of hazardous materials REQUIRING PLACARDS. MOT s (discussed later) are NOT included. 7

8 PART 382/40 TYPES OF CONTROLLED SUBSTANCE TESTS *Effective 1/1/16 the FMCSA has reduced the random drug testing rate to 25% PART 382/40 TYPES OF CONTROLLED SUBSTANCE TESTS DRUG AND ALCOHOL POLICY a) General requirements. Each employer shall provide educational materials that explain the requirements of this part and the employer's policies and procedures with respect to meeting these requirements. 1) The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle. 2) Each employer shall provide written notice to representatives of employee organizations of the availability of this information. 8

9 DRUG AND ALCOHOL POLICY b) Required content. The materials to be made available to drivers shall include detailed discussion of at least the following: 1) The identity of the person designated by the employer to answer driver questions about the materials; 2) The categories of drivers who are subject to the provisions of this part; 3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with this part; 4) Specific information concerning driver conduct that is prohibited by this part; 5) The circumstances under which a driver will be tested for alcohol and/or controlled substances under this part, including post-accident testing under (d); 6) The procedures that will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions required by (d); DRUG AND ALCOHOL POLICY 7) The requirement that a driver submit to alcohol and controlled substances tests administered in accordance with this part; 8) An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences; 9) The consequences for drivers found to have violated subpart B of this part, including the requirement that the driver be removed immediately from safety-sensitive functions, and the procedures under part 40, subpart O, of this title; 10) The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04; 11) Information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life; signs and symptoms of an alcohol or a controlled substances problem (the driver's or a co-worker's); and available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to any employee assistance program and/or referral to management. DRUG AND ALCOHOL POLICY c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer's authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority. d) Certificate of receipt. Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in this section. Each employer shall maintain the original of the signed certificate and may provide a copy of the certificate to the driver. 9

10 PART DRUG AND ALCOHOL Reasonable Suspicion Training : Training for supervisors. Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. Recurrent training for supervisory personnel is not required. PART 391: DRIVER QUALIFICATIONS PART 391 QUALIFICATIONS FOR DRIVERS AND LONG COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS Interstate: : Applicable Intrastate: : Applicable - same as Interstate except: 1. Only for vehicles with a gross vehicle weight rating or gross combination weight rating of 26,000lbs or more versus 10,001lbs or more for interstate. 2. Passenger capacity must be greater than No need to be at least 21 years of age (18 is OK) 4. Can operate with insulin dependent diabetes as long as you meet the State of Wisconsin waiver requirements. 5. Can operate with vision issues as long as you meet the State of Wisconsin waiver requirements. 6. Failure to register as an interstate driver with an out of state inspection will result in a CR. 7. Applying for permits for out of state may trigger an automatic change to interstate resulting in a early entrant review 10

11 PART 391 QUALIFICATIONS FOR DRIVERS AND LONG COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS WHAT GOES IN A DQ FILE? Driver s application Pre-employment questionnaire (if not included in the application) DO NOT FORGET TO CONDUCT THE PE INQUIRIES AND FULLY DOCUMENT THE RESULTS! Failure = BIG fines as the FMCSA will hold you accountable if a DQ driver is used. The initial MVR Certificate of road test (not required if the driver had to take a road test to obtain their CDL.) BUT don t forget your non-cdl drivers! The MVR used for the annual review Certificate of violations Annual review If you have a driver with a medical exemption, then the skill performance evaluation certificate or the medical exemption document should be included Medical card FEDERAL MEDICAL CERTIFICATE AND YOUR COMMERCIAL DRIVER LICENSE (CDL) WHAT YOU NEED TO KNOW TIERS of Operation Tier 1 - You drive interstate (you or your cargo crosses state lines) and you need a Fed Med card to drive a commercial vehicle. Tier 2 - You drive interstate (you or your cargo crosses state lines) and you do not need a Fed Med card to drive a commercial vehicle because of one of the rare exemptions (farmers in straight trucks, bee keepers etc.) Tier 3 - You drive intrastate (you or your cargo does not cross state lines) and you need a Fed Med card to drive a commercial vehicle. (CDL obtained after 7/1996) Tier 4 - You drive intrastate (you or your cargo does not cross state lines) and you do not need a Fed Med card to drive a commercial vehicle because you are grandfathered. (CDL obtained prior to 7/1996 and never lost it) FEDERAL MEDICAL CERTIFICATE AND YOUR COMMERCIAL DRIVER LICENSE (CDL) WHAT YOU NEED TO KNOW 11

12 FED MED CARDS ADDITIONAL INFORMATION Recent additions: For each medical card issued after May 21, 2014, you are required to verify that the medical examiner is listed on the National Registry of Certified Medical Examiners and add a note to the file. For every medical card issued after January 30, 2015, you need to have an MVR on file for that driver. Make sure the MVR (referred to as the CDLIS motor vehicle record in the regulations) includes the tier the driver is self-certifying for along with the examining physician s information (including name and medical certification number). If you are TIER 1 keep up. Don t assume that by driving intra all will be fine. Give DMV time to process your new card and check to see it happened. Don t ASSume! Carry it. FMCSR s might say you don t have to, but do so. If intra TIER 3 YOU MUST CARRY IT!! LACK OF STANDARD DATA FMCSA to require new exam form (MER) and card (MEC) as of 4/20/16 o Old forms and cards can be used until that date o New form uses standard layout (forms can no longer be substantially like example in the regulations) 12

13 NEW STATUS: PENDING Follow up exams being done away with Results of exam are (as of April 20, 2016): o Pass Certified for 3, 6, 12, or 24 months Must retake entire physical before previous expires o Fail Examiner is to explain to the driver why he/she failed Driver is considered medically unqualified and must cease operating CMVs until medical issue resolved o Pending CELL PHONES No driver shall use a hand-held mobile telephone while driving a CMV. No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV. Definitions. For the purpose of this section only, driving means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary. Emergency exception. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services. Keys to use? HANDS FREE/ONE BUTTON/WITHIN REACH! PART 396 INSPECTION, REPAIR AND MAINTENANCE 13

14 PART 396 INSPECTION, REPAIR AND MAINTENANCE Do your mechanics know what Appendix G is and where it can be found? HOURS OF SERVICE 14

15 PART 395 INTERSTATE HOURS OF SERVICE APPLICABILITY Interstate commerce utilizing CDL required CMV s as well as non-cdl CMV s 10,001# or more (weight or GVWR). PART 395 HOURS OF SERVICE Interstate Hours of Service (HOS) 11 & 14 Hour Rule 395.3(a) No motor carrier shall permit or require any driver used by it to drive nor shall any driver drive: o More than 11 cumulative hours following 10 consecutive hours off duty. o For any period after the end of the 14 th hour after coming on duty following 10 consecutive hours off duty o 34 hour restart (once again applies pending study ) o No current 1A to 5A requirement (Rescinded 12/15/14 waiting restart study) o 30 minute break must be documented after 8 on duty and/or driving PART 395 HOURS OF SERVICE Interstate Hours of Service (HOS) 60 & 70 Hour Rule 395.3(b) No motor carrier shall permit or require any driver used by it to drive nor shall any driver drive: o After having been on duty for 60 hours in any 7 consecutive days, if the motor carrier does not operate every day of the week. o After having been on duty for 70 hours in any 8 consecutive days, if the motor carrier operates every day of the week. 15

16 TRANS 327 HOURS OF SERVICE (WISCONSIN) *APPLIES ONLY TO CDL VEHICLES WI Intrastate Hours of Service (HOS) 12 & 16 Hour Rule / No motor carrier shall permit or require any driver used by it to drive nor shall any driver drive: o More than 12 cumulative hours (not consecutive) following 10 consecutive hours off duty. o For any period after the end of the 16 th hour after coming on duty following 10 consecutive hours off duty TRANS 327 HOURS OF SERVICE (WISCONSIN) Intrastate Hours of Service (HOS) 70 & 80 Hour Rule Trans No motor carrier shall permit or require any driver used by it to drive nor shall any driver drive: o After having been on duty for 70 hours in any 7 consecutive days o After having been on duty for 80 hours in any 8 consecutive days o No graph grid requirement o No 34 reset or 30 minute break o 150 mile log book exemption PART 395 HOURS OF SERVICE Interstate & Intrastate Hours of Service (HOS) If a driver goes interstate he is subject to interstate laws for the preceding 7 days and the 7 days that follow the interstate trip. o Note: The driver may abide by intrastate hours of service in the preceding days to the interstate trip but all the hours will still count against the interstate 60/70 hour rules. 16

17 PART 395 HOURS OF SERVICE 16 HOUR EXEMPTION A property-carrying driver can extend to a 16 hour on duty period if: The driver has returned to the driver's normal work reporting location and the carrier released the driver from duty at that location for the previous five duty tours the driver has worked The driver has returned to the normal work reporting location and the carrier releases the driver from duty within 16 hours after coming on duty following 10 consecutive hours off duty The driver has not taken this exemption within the previous 6 consecutive days, except when the driver has begun a new 7- or 8- consecutive day period with the beginning of any off-duty period of 34 or more consecutive hours as allowed by 395.3(c) (34 reset) PART 395 HOURS OF SERVICE 100/150 Air Mile Radius Driver 395.1(e 395.1(e) A driver is not required to create a standard log if the following criteria are met: 100 air miles from work reporting location (150 for non-cdl drivers) The driver leaves and returns to original work reporting location in 12 hours. 10 consecutive hours off duty separating each 12 hours on duty does not exceed 11 hours maximum driving time following 10 consecutive hours off duty The motor carrier maintains time records for 6 months showing: o The time the driver reports for duty each day o The time the driver is released from duty each day o Total number of hours on duty each day, and o Total time on duty for the preceding 7 days for drivers used for the first time or intermittently. A 100 air mile radius driver is not exempt from the 11, 14, and 60 hour/7 day or 70-hour/8 day limit. 100 air miles are equivalent to statute miles. 150 = ELECTRONIC LOGGING DEVICES 17

18 ELD FINAL RULE Preview published 12/10/15 Actual Final Rule published 12/16/15 What s covered o ELD use o ELD technical standards o ELD certification o Harassment protections o Supporting documents ELD USE WHO Requires all drivers that are required to complete logs to begin using ELDs two years after final rule published (12/18/2017) or current AOBRDs users 12/16/2019 CMV drivers involved in interstate commerce and subject to logging requirements in Part 395 WI does adopt the rule by inference in TRANS 327 but TRANS 327 is being re-written and a decision to exclude or include ELD s will be made prior to December of 2017 for intrastate CDL drivers Does not prohibit others not required to use ELD s from using ELD s ELD EXCEPTIONS The following drivers are not required to use ELD s: Drivers who use paper logs no more than 8 days during any 30-day period. Drive-away-tow-away drivers (transporting an empty vehicle for sale, lease, or repair). Drivers of vehicles manufactured before model year (1999 VIN) 18

19 NOT EXCEPTED Small fleets Existing vehicles (does not only apply to new vehicles going forward ) Small CMV vehicles (non-cdl vehicles) Passenger carriers Leased or rented vehicles Lease or temp drivers Non-trucking motor carrier entities OLD VERSUS NEW DEVICE STANDARDS AOBRD can be installed until 12/18/17 and used until December of Only ELDs can be installed after 12/18/17 An AOBRD installed before the ELD compliance date is considered grandfathered. Drivers and carriers may continue to use an AOBRD instead of an ELD for a period of four years from the publication of the final rule. Note that an AOBRD that has been updated and meets the standards for an ELD, including certification registration on FMCSA s website, is not considered a grandfathered AOBRD. It is considered an ELD. LIST OF CERTIFIED DEVICES As of 12/18/17 all devices installed must be on FMCSA s registered ELDs list. Available 2/16/16 on the FMCSA site: Vendors must self-certify and provide materials to FMCSA If a complaint is filed about a device, FMCSA will address it with vendor before removing vendor from list 19

20 DRIVER COERCION DEFINED Coercion occurs when a motor carrier, shipper, receiver, or transportation intermediary threatens to withhold work from, take employment action against, or punish a driver for refusing to operate in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and the Federal Motor Carrier Commercial Regulations (FMCCRs). Coercion may be found to have taken place even if a violation has not occurred. An common example of coercion is when a motor carrier terminates a driver for refusing to accept a load that would require the driver to violate the hours of service requirements. ELEMENTS OF COERCION The following must have occurred in order for coercion to have existed: A motor carrier, shipper, receiver, or transportation intermediary must request a driver to perform a task that would result in the driver violating certain provisions of the FMCSRs, HMRs, or the FMCCRs The driver must inform the motor carrier, shipper, receiver, or transportation intermediary of the violation that would occur if the task is performed, such as driving over the hours of service limits or creating unsafe driving conditions The motor carrier shipper, receiver, or transportation intermediary must make a threat or take action against the driver s employment or work opportunities to get the driver to take the load despite the regulatory violation that would occur 20

21 FILING A COMPLAINT The Coercion Rule takes effect on January 29, 2016, at that time the FMCSA will start accepting coercion complaints from drivers. Coercion complaints must be filed within 90 days of the alleged coercion action. When filing complaints, drivers should include as much supporting information as possible, such as: Text messages or exchanges between parties showing coercion attempts as well as driver responses. Names of anyone who may witnessed the coercion attempt. To file a complaint with FMCSA drivers may contact the Division Office located in the state where the complainant is employed or the National Consumer Complaint Database. EXAMPLES OF COERCION Firing or laying off a driver that has voiced an objection to violating the FMCSR s Decreasing dispatch opportunities, reducing pay, or reducing hours Reassigning the driver in such a manner as to impact promotion prospects or income potential Withholding pay and or benefits Reassignment to less favorable shifts or routes; (moving the driver to the bottom of the dispatch list after rejecting dispatch (if the driver would not have otherwise moved to the bottom had the load been accepted) Reporting negative information in an employment history or threatening to make a negative report about the driver COERCION VS. PROGRESSIVE DISCIPLINE Key factors... Was there a violation of the FMCSR s present that the carrier was informed about at the time of the issue? In other words if the driver cannot provide evidence that the carrier knowingly was forcing him or her to violate, no issue, no case. When headed down the discipline road you must document everything to protect yourself from false claims. (Most driver complaints I fielded prior to this new regulation stemmed from terminated drivers and HOS allegations.) 63 21

22 REMEMBER Coercion CAN take place even if the violation never occurred!!! This means the driver can refuse to go along with the coercion and still have a case and file a complaint. In theory, the lawful driver will refuse to violate, make the objection and file the complaint using his/her perceived penalty or threat as evidence of coercion. s, texts, recordings and driver/witness statements will be used to support driver claims. Violations are most commonly HOS issues but do not neglect equipment and fatigued or ill driver problems as well as drug/alcohol issues, CDL issues etc. THINGS TO REMEMBER Once a driver has objected: If the objection is such that transportation of the load would be a clear violation of regulations, the driver should not be allowed to transport a load. If the objection is such that dispatch cannot determine whether or not a violation would clearly result, the driver should be instructed that if he or she believes a violation would result, then the load should not be transported. If the objection is such that the driver could clearly initiate the move without a violation, then, if driver is subject to forced dispatch considerations, the driver can be dispatched. But, clear instructions should be given that in no event should the driver violate the regulations even if it means a missed appointment. REALITY FROM AN ENFORCEMENT PERSPECTIVE AND OPINION This rule is largely a feel good measure in an attempt to address the past problems of uninvestigated driver complaints. (Complaints were common each time I staffed the MCEIS line) Cases will be difficult to prove since this is a civil proceeding where documents speak, not witnesses. Good carriers will probably worry the most and need to guard against the disgruntled driver who was terminated for just cause. Bad carriers won t care and neither will those drivers. Proving a case will require solid documentation and self incrimination by carriers or evidence of same if the carrier doesn t admit to the coercion. The largest liability will be exposed in crashes and the most aggressive enforcement will take place in the aftermath of those crashes. As Aaron says R E L A X and document, don t violate or cause drivers to do the same! 66 22

23 FMCSA PORTAL ACCESS Website address Add User ID & Password here & click Login QUESTIONS? 68 23