Waynes World - August 2005

REDUCING DRIVER TURNOVER, ATTEMPTING TO
DEFINE THE TERM “DRIVER”, AND...

HERE COME THE REVISED DISQUALIFICATION RULES
By Wayne Schooling

Q: What is the latest information on the new disqualification rules for drivers?

A: As September 30, 2005 creeps up, one should begin to prepare your drivers and/or yourself for the new disqualification rules because that day marks the date when the states are required to finally implement the revised Commercial Driver’s License (CDL) Disqualification Rules that were issued back in 2002. Once fully in place, the rules will require the states to disqualify drivers for offenses committed in any type of vehicle, including personal cars and pickups. In some cases, drivers could lose their CDL's forever. As the states begin to put these rules into place, now is the time to make sure your drivers are aware of the types of convictions that could result in a loss of their commercial vehicle driving privileges.

MAJOR OFFENSES. The following major offenses – in any type of vehicle – could result in the disqualification of your CDL for one year after one conviction or up to life after two convictions: being under the influence of alcohol or drugs; refusing an alcohol test; leaving the scene of an accident; or using a vehicle to commit a felony. Other major offenses include driving a commercial motor vehicle (CMV) with an invalid license and/or causing a fatality through the negligent operation of a CMV.

SERIOUS TRAFFIC VIOLATIONS. Being convicted of two or more of these serious traffic violations in any type of vehicle within a three year period could result in CDL disqualification for 60-120 days if the state revokes, cancels, or suspends your driving privileges because you were: speeding by 15 mph or more; driving recklessly; making improper or erratic lane changes; following too closely; or violating a traffic control law in connection with a fatal accident. Other serious traffic violations include driving a CMV without a CDL license or without having the proper endorsements. As under the “old” rules, CMV drivers can also be disqualified for violating out-of-service orders and/or committing railroad-highway grade crossing violations.

While drivers may have had luck in the past at getting convictions removed from their driving records, their luck may soon run out. Under the new rules, states will be prohibited from masking, deferring judgments, or allowing a driver to enter a diversion program that would prevent a conviction from appearing on the driver’s record, no matter which state the offense occurred in. The revised rules, primarily found in 49 CFR 383.51, were issued on 7/31/02 and took effect on 9/30/02. The states were given three (3) years – until September 30, 2005 – to implement the changes. Be sure to check with your state to determine when the rules were or will be implemented. Note: the disqualification rules in 391.15, applicable to all commercial drivers (not limited to those who hold a CDL), were not changed.

Q: We have a yard that we share with several other companies. This yard has a main drive that is open to the public. Does our yard hostler, who never leaves our portion of the yard, need a CDL? Does he need to be in the drug testing pool?

A: This is a common question – who really is a driver? For example, is a mechanic, yard jockey or dispatcher who occasionally operates a commercial motor vehicle subject to the Federal Motor Carrier Safety Regulations (FMCSRs)? It is important to remember that the Federal Motor Carrier Safety Administration (FMCSA) defines any person who operates a commercial motor vehicle (CMV) as a driver. It does not distinguish between a person who operates a CMV intermittently and one whose primary job is driving. A driver by any other name is still a driver, under the FMCSRs.

If someone operates a CMV as defined in 390.5 on a public highway in interstate commerce, he or she is subject to Parts 390 through 396. Also, if someone operates a CMV as defined by 382.107 and 383.5 on a public highway in any kind of commerce, he or she needs to hold a CDL with the proper endorsements and be placed in the carrier’s DOT drug and alcohol testing program.

What if the employee never leaves the property? A public highway can surprisingly include private property. A motor carrier will need to look at its operation to see if its parking lot or yard meets the requirements. Based on my understanding of the rules, a mechanic, yard hostler, dispatcher, or supervisor who just moves a CMV out of a garage to a parking space could possibly be subject to the FMCSRs. I suggest that you look up all of these rules that I mentioned yourself and read them completely.

If after reading this article you have discovered that you have more drivers than you thought, it is important to start the paperwork on these drivers as soon as possible. Although you are still in violation for not having completed the paperwork earlier, you are demonstrating to the FMSCA your “good faith” effort in going forward.

A: Driver turnover has risen dramatically over the past year and according to the latest information, turnover for the last quarter of 2004 was 121% for large truckload carriers and 85% for smaller carriers. The problem remains the same: motor carriers who use independent contractors simply cannot offer any benefits to their drivers because of IRS regulations. Independent contractors have only one solution – they should ask their carrier to have NTA bring the benefits they want and need, in their own name, into the company. If you have a motor carrier that cares enough to bring in benefits, why would you leave? For more information, call NTA toll free at (800) 805-0040 or (562) 279-0557 or visit www.ntassoc.com. Until next month, “Drive Safe – Drive Smart!”