Certified Medical Exams Required May 21, 2014

Effective May 21, 2014, all interstate CMV drivers will be required to have their medical examinations performed by a Certified Medical Examiner listed on the Federal Motor Carrier Safety Administration’s National Registry of Certified Medical Examiners.  If you’re an interstate CMV driver, you already need a valid medical certificate signed by a medical examiner.  The only change is that after May 21, 2014, you’ll need to go to a certified medical examiner for your medical certificate.  If you’ve already had an exam and have a current certificate that certificate will be valid until its regular expiration date.  

You can find more information in the Fact Sheet for Drivers located at: http://nrcme.fmcsa.dot.gov/documents/FactSheetCMVDrivers.pdf

New Hours-of-Service Regulations Effective Today, July 1, 2013

Legal Alert: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced that new federal regulations designed to reduce truck driver fatigue took full effect today, July 1, 2013. Trucking companies were provided 18 months to adopt the new hours-of-service rules for truck drivers. First announced in December 2011 by FMCSA, the rules limit the average work week for truck drivers to 70 hours to ensure that all truck operators have adequate rest. Only the most extreme schedules will be impacted, and more than 85% of the truck driving workforce will see no changes.

FMCSA’s new hours-of-service final rule:
1) Limits the maximum average work week for truck drivers to 70 hours, a decrease from the current maximum of 82 hours;
2) Allows truck drivers who reach the maximum 70 hours of driving within a week to resume if they rest for 34 consecutive hours,
including at least two nights when their body clock demands sleep the most – from 1-5 a.m.; and
3) Requires truck drivers to take a 30-minute break during the first eight hours of a shift.

The final rule retains the current 11-hour daily driving limit and 14-hour work day. Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies and passenger carriers that allow drivers to exceed driving limits by more than three hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

Further information, including “Hours of Service Logbook Examples,” is available on FMCSA’s web site at http://www.fmcsa.dot.gov/HOS.

For additional information on legal issues in the Trucking Industry,
please contact TAMMY MEADE ENSSLIN at 859-368-8747.

Office of Drug and Alcohol Policy and Compliance Issues Notice Regarding Marijuana Use

Today, Jim Swart, the Director of the Office of Drug and Alcohol Policy and Compliance Office of the Department of Transportation issued a “Compliance Notice” relating to the recent initiative passed by some states to permit the use of marijuana for “recreational purposes.”  The notice was issued due to recent inquiries to the DOT about whether these state initiatives will have an impact upon the DOT’s longstanding regulation about the use of marijuana by safety‐sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others.

The Notice states:

“We [DOT] want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.  Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used ‘recreational marijuana’ when states have passed ‘recreational marijuana’ initiatives.  We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use ‘medical marijuana’ when states have passed ‘medical marijuana’ initiatives.  It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act.  It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

 

Alcohol Testing for Drivers of Commercial Vehicles

English: Homestead Air Reserve Base: Trucks be...

I am frequently asked who must comply with the Federal Motor Carrier Safety Administration’s rules regarding testing for alcohol use.  Generally, the rules apply to safety-sensitive employees, who operate commercial motor vehicles requiring a CDL.

Examples of drivers and employers that are subject to these rules are (the following does not represent a complete listing):

  • Anyone who owns or leases commercial motor vehicles
  • Anyone who assigns drivers to operate commercial motor vehicles
  • Federal, State, and local governments
  • For-Hire Motor Carriers
  • Private Motor Carriers
  • Civic Organizations (Disabled Veteran Transport, Boy/Girl Scouts, etc.)
  • Churches

As it relates to alcohol use, clients often ask what amount of alcohol use is permissible under the rules.  Since alcohol is a legal substance, the rules define specific prohibited alcohol-related conduct.  Specifically, performance of safety-sensitive functions is prohibited:

  • While using alcohol;
  • While having a breath alcohol concentration of 0.04 percent or greater as indicated by an alcohol breath test; and
  • Within four hours after using alcohol.

In addition, refusing to submit to an alcohol test or using alcohol within eight hours after an accident or until tested (for drivers required to be tested) are prohibited.

Employers and Drivers are required to perform the following alcohol tests:

  • Post-accident – conducted after accidents on drivers whose performance could have contributed to the accident (as determined by a citation for a moving traffic violation) and for all fatal accidents even if the driver is not cited for a moving traffic violation.
  • Reasonable suspicion – conducted when a trained supervisor or company official observes behavior or appearance that is characteristic of alcohol misuse.
  • Random – conducted on a random unannounced basis just before, during, or just after performance of safety-sensitive functions.
  • Return-to-duty and follow-up – conducted when an individual who has violated the prohibited alcohol conduct standards returns to performing safety-sensitive duties. Follow-up tests are unannounced. At least 6 tests must be conducted in the first 12 months after a driver returns to duty. Follow-up testing may be extended for up to 60 months following return to duty.

For more information on laws affecting the Trucking Industry,

please contact Tammy Meade Ensslin at:  859-963-9049

Who Needs a CDL?

What is the Commercial Driver’s License Law?   Federal standards for testing and licensing heavy truck and  bus operators are law in Kentucky.  These minimum standards will guarantee the fitness of commercial motor vehicle  operators by requiring demonstrated ability to drive heavy vehicles before a  license is issued.

The Commercial Driver License (CDL),  has replaced what was previously known as a chauffeur license for many Kentucky drivers. The CDL laws and standards  cover drivers in all 50 states, the District of Columbia,  Mexico and Canada. Motor Carriers will be held  responsible if their drivers operate a commercial motor vehicle without a valid  CDL.

Who Needs a License? Class A CDL - For any combination of vehicles  with a gross vehicle weight rating (GVWR) of 26,001 pounds or more, provided  the GVWR of the vehicle(s) being towed is more than 10,000 pounds.

Class B  CDL   1) Any  straight truck with two or more axles and a GVWR of 26,001 pounds or more;   2) Any  vehicle with two or more axles and a GVWR of 26,001 pounds or more, pulling a  vehicle with a GVWR of 10,000  pounds or less.   3) A single vehicle designed to transport 16 or more passengers  (including the driver) if the GVWR is 26,001 pounds or more.

Class C CDL   1) Any  vehicle with a GVWR of less than 26,001 pounds transporting hazardous materials  for which placarding is required.   2) A single vehicle designed to transport 16 or more passengers  (including the driver) if the   GVWR is  less than 26,001 pounds.

How to apply   To make application for a CDL, you must provide a valid D.O.T. medical  certificate and complete an application at your local Circuit Court Clerk’s  office. All applicants will be required to successfully pass a knowledge test  either in written or oral form, and a vision test. A CDL instruction permit will then be issued that is valid for six (6) months. You may schedule a road  skills test with Kentucky State Police 10 days after the permit has been issued.  A permit may only be renewed once in the two (2) year period. If you do not  successfully pass the road skills test by the expiration of your CDL instruction permit renewal, you will need to reapply. All fees and written  tests will be required prior to a new permit being issued.

For additional information on legal issues in the Trucking Industry, please contact TAMMY MEADE ENSSLIN at 859-963-9049.

DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Who Must Comply With the New Cell Phone Ban for Operators of Commercial Motor Vehicles?

Legal Alert:  I am still receiving a significant amount of inquiries from trucking clients asking for clarification on the new cell phone ban for operators of commercial motor vehicles (“CMV’s).  This update should provide some clarification on who must comply with the rule.

The ban does not apply to all vehicles regardless of size.  Vehicles must meet the definition of “CMV” set out below.  Therefore, it applies to both CDL and non-CDL drivers if they are operating a “CMV” as defined below.

The regulation applies to operators of CMV’s in interstate commerce as defined in the FMCSA regulations.  For example, if you have a CDL, you are not obligated to comply with the regulation unless you are operating a “CMV” as defined.

The ban also applies to any driver who operates a vehicle transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73 regardless of whether it is interstate commerce of local travel inside a particular state.  Therefore, if you are not hauling hazardous materials, requiring placarding, or other select agents or toxins, then it only applies if you are operating a “CMV” in interstate commerce.  Accordingly, smaller companies, who do not fall within the exception above and only operate within a state, are not obligated to comply with the regulation at this time unless it has been adopted by your particular state.

Trucking companies should be aware that under the regulation, the federal government is forcing the states to adopt similar, if not identical rules, by threatening to withhold highway monies.  States are being given 3 years to adopt such rules.  And, it is unknown how each state will define “CMV” for purposes of the state regulations.  Therefore, even if you are only operating a “CMV” inside a particular state, you should check your individual state law to see if a similar ban has been adopted.

There is also an exception to the ban for those who are employed by federal, state, or local governments (49 U.S.C. 31132(2)).  Therefore, it does not apply to those entities since federal law exempts governmental entities and their employees from regulations promulgated by the FMCSA.

A “commercial motor vehicle” is defined in the regulations as:

A motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

(a) Has a gross combination weight rating of 11,794 kilograms or more (26,001 pounds or more) inclusive of a towed unit(s) with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or

(b) Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 pounds or more); or

(c) Is designed to transport more than 16 or more passengers, including the driver; or

(d) Is of any size and is used in the transportation of hazardous materials as defined.

For additional information on legal issues in the Trucking Industry,

please contact TAMMY MEADE ENSSLIN at 859-963-9049.

 DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.

CDL Holders: New Safety Regulation Requires Valid DOT Medical Card to Be on File

Legal Alert:  Effective today, January 30, 3012, Federal Motor Carrier’s Safety Regulation 49 CFR 383.71 requires all CDL holders/applicants to have a valid DOT medical card on file with the Division of Driver Licensing in order to obtain/retain a valid CDL license/permit.  A legible copy of the front and back of the medical card must be provided.

For Kentucky CDL holders, if you want more information, please go to: http://transportation.ky.gov/driver-licensing/pages/applying-for-a-CDL.aspx

Processing will take 7-14 days so plan ahead.

For additional information on legal issues in the Trucking Industry,

please contact TAMMY MEADE ENSSLIN at 859-963-9049.

 DISCLAIMER

These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.

 

 

 

 

 

 

 

New Hours of Service Rules Finalized by the FMCSA

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) recently announced its new rule that revises the hours-of-service (HOS) requirements for commercial truck drivers.  The final rule for “Hours of Service of Drivers” (HOS) was published on December 27, 2011 and takes effect on February 27, 2012.  Please note that the compliance date for certain provisions is July 1, 2013.

The new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver’s work week to 70 hours.  In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.

The final rule retains the current 11-hour daily driving limit.  However, FMCSA is continuing to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.

The rule requires truck drivers who maximize their weekly work hours to take at least two nights’ rest when their 24-hour body clock demands sleep the most-from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The rule allows drivers to use the restart provision only once during a seven-day period.

The new rule also defines what is determined to be an “egregious” hours of service violation.  Egregious violations result when driving (or allowing to drive) 3 or more hours beyond the driving-time limit of 11 hours.  Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could face the maximum penalties for each offense which is a fine of up to $11,000 per offense and the drivers themselves could face civil penalties of up to $2,750 for each offense.

If you would like additional information, the rule is currently available on FMCSA’s website at:  www.fmcsa.dot.gov/HOSFinalRule

The table below summarizes the differences between the current HOS rule and the new HOS final rule:

PROVISION CURRENT RULE FINAL RULE – COMPLIANCE DATE JULY 1, 2013
Limitations on minimum “34-hour restarts” None (1) Must include two periods between 1 a.m.- 5 a.m. home terminal time.
(2) May only be used once per week.
Rest breaks None except as limited by other rule provisions May drive only if 8 hours or less have passed since end of driver’s last off-duty period of at least 30 minutes. [HM 397.5 mandatory "in attendance" time may be included in break if no other duties performed]
PROVISION CURRENT RULE FINAL RULE – COMPLIANCE DATE FEBRUARY 27, 2012
On-duty time Includes any time in CMV except sleeper-berth. Does not include any time resting in a parked CMV (also applies to passenger-carrying drivers). In a moving property-carrying CMV, does not include up to 2 hours in passenger seat immediately before or after 8 consecutive hours in sleeper-berth.
Penalties “Egregious” hours of service violations not specifically defined. Driving (or allowing a driver to drive) 3 or more hours beyond the driving-time limit may be considered an egregious violation and subject to the maximum civil penalties. Also applies to passenger-carrying drivers.
Oilfield exemption “Waiting time” for certain drivers at oilfields (which is off-duty but does extend 14-hour duty period) must be recorded and available to FMCSA, but no method or details are specified for the record keeping. “Waiting time” for certain drivers at oilfields must be shown on logbook or electronic equivalent as off duty and identified by annotations in “remarks” or a separate line added to “grid.”

For additional information on legal issues in the Trucking Industry,

please contact TAMMY MEADE ENSSLIN at 859-963-9049.

 DISCLAIMER

  These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.

Law Passed Banning Hand Held Cell Phone Use for Commercial Truckers Nationwide

Just recently, a final ruling was made by the Federal Motor Carrier Safety Administration (FMCSA) regarding cell phone use by commercial truckers.  Those who operate commercial trucks and buses will no longer be permitted to use any hand-held cell phones while navigating their vehicles on the nation’s roadways.  While there has been much debate over this issue in the past months, the final ruling has been issued by the FMCSA.

The new law will take effect January 3, 2012, one month after the official statement and paperwork was passed by the FMCSA. No driver will be allowed to hold a cell phone in their hand while driving with the other, and, if they break the rule, they can face disciplinary actions. Offenses will count as traffic violations and several accrued infractions can lead to a commercial driving license being revoked.

Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses.  States will suspend a driver’s commercial driver’s license after two or more serious traffic violations.  Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000.  This ban follows the September 2010 ban regarding texting while operating a commercial truck or bus.

With a firm rule now on the books holding employers accountable for their drivers’ actions, it will likely be easier for parties injured in a distracted-driver accident to attach negligence liability to any company that does not implement a documentable compliance program for its drivers.  Therefore, trucking companies should take immediate action, with revisions to training programs and policies, to heighten awareness of the new law.

Here are some suggestions to avoid violation of the new law and to mitigate potential claims:

  • Invest in hands-free devices for your truck drivers or require drivers to purchase hands-free devices for their mobile phones;
  • Update your employee handbook and safety policies to prohibit truck drivers from using hand-held cell phones while operating  commercial vehicles and make a written recommendation that truck drivers pull over to make telephone calls; and
  • Offer training on the new law and changes to company policies and require truck drivers to sign acknowledgments regarding the training and changes to the policies.

For additional information on legal issues in the Trucking Industry, please contact TAMMY MEADE ENSSLIN at 859-963-9049.

DISCLAIMER:  These materials have been prepared by Tammy Meade Ensslin for informational purposes only.  Information contained herein is not intended, and should not be considered, legal advice.  You should not act upon this information without seeking professional advice from a lawyer licensed in your own state or country.  Legal advice would require consideration by our lawyers of the particular facts of your case in the context of a lawyer-client relationship.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  A lawyer-client relationship cannot be created until we consider potential conflicts of interest and agree to that relationship in writing.  While our firm welcomes the receipt of e-mail, please note that the act of sending an e-mail to any lawyer at our firm does not constitute a lawyer-client relationship and you are not entitled to have us treat the information contained in an e-mail as confidential if no attorney-client relationship exists between us at the time that we receive the e-mail.  The materials presented herein may not reflect the most current legal developments and these materials may be changed, improved, or updated without notice.  We are not responsible for any errors or omissions in the content contained herein or for damages arising from the use of the information herein.

Kentucky Law requires the following disclaimer:  THIS IS AN ADVERTISEMENT.

Kentucky Law does not certify legal specialties.