Waynes World - September 2005

NEW VIOLATION PROCEDURES, RAILROAD
CROSSING SAFETY EDUCATION, AND...

LOGGING TIME FOR A DRUG
TEST OR PHYSICAL
By Wayne Schooling

A: Companies finding themselves in the unfortunate situation of having to deal with the Federal Motor Carrier Safety Administration’s (FMCSA) violation proceedings should be aware that the agency’s procedures have changed. The FMCSA has revised its “Rules of Practice for Motor Carrier, Broker, Freight Forwarder, and Hazardous Materials Proceedings” in 49 CFR Part 386. The rules govern the procedures used to determine if a person or company has violated the Federal Motor Carrier Safety Regulations or Hazardous Materials Regulations and, if so, to issue an appropriate order to compel the company to comply and/or assess a civil penalty.

According to the FMCSA, the recent changes are designed to increase the efficiency of the procedures, enhance due process and awareness of the public and regulated community, and accommodate recent program changes. The rules apply to all motor carriers, other business entities, and individuals involved in motor carrier safety and hazardous materials administrative actions and proceedings with FMCSA. The rule was published May 18, 2005 and takes effect on November 14, 2005.

A: This question comes up often because drivers are unaware of how to record their required physical examinations and drug or alcohol tests on their records of duty status (daily log). Fortunately, the new FMCSA’s regulations and interpretation now make it clear how this time is to be recorded. The FMCSA has issued new guidance on how to record a physical exam on a daily log. Here are the two possibilities:

1) The driver schedules and attends the physical examination at a time of his or her own choosing. In this case, the time should be recorded as “off duty”. The travel time to and from the exam can also be recorded as “off duty” as long as the driver is operating a non-commercial vehicle or the driver is authorized to operate a commercial motor vehicle in an off-duty status.

2) The motor carrier directs the driver to attend at a specific time. Under this scenario, the time must be recorded as “on duty not driving” because the driver is not free to pursue an activity of his/her own choosing. Travel time in a non-commercial vehicle must be recorded as “on duty not driving” up to the point at which the driver is relieved of all duty and responsibility after the exam. If a commercial motor vehicle is used for driving to the exam, the travel time must be recorded as “driving time”.

On drug and alcohol testing, the FMCSA regulations specify how to record the time spent reporting for these required tests. In short, it must be recorded as “on duty” time. The definition of “on duty” in 49 CFR 395.2 says that on duty time includes: “All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident, or follow up testing required by Part 382 of this subchapter when directed by a motor carrier.”

If a non-commercial vehicle is used to drive to and from the test, that driving time must be recorded as “on duty not driving” until the driver is relieved of all duty and responsibility after the test. If a commercial motor vehicle is used for driving to the test, it must be recorded as “driving time”.

Q: How can I educate our drivers on the subject of safety at railroad crossings?

A: The Federal Railroad Administration (FRA) has recently announced that a $1 million safety grant will be used in part for public education and outreach programs to reduce fatalities resulting from highway-rail grade crossing collisions. The grant will fund various activities of Operation Lifesaver, a non-profit organization that provides educational and awareness programs to inform motorists about how to safely approach highway-rail grade crossings, and to prevent individuals from trespassing on railroad property. Specifically, the funds will be used for programs in more than 40 states, providing training for nearly 5,000 volunteer presenters, and an expansion of Operation Lifesaver’s ongoing national public service announcement campaign. Railroad crossing collisions, pedestrian accidents and railroad trespassing together account for 96% of all rail-related deaths, according to the FRA.

HOURS OF SERVICE: September 30, 2005 is the deadline for the FMCSA to develop new rules governing drivers’ hours of service. A federal court threw out the existing rules in July 2004, but Congress stepped in to give the agency one year to write new rules. Get ready, they are coming!

CDL DISQUALIFICATION: As mentioned last month, all states must implement the federal CDL disqualification rules in 40 CFR 383.51 by September 30, 2005 or risk losing federal funds. The rules were published on July 21, 2002 but states were not required to enforce them for three years.

SCHOOL BUS SKILLS: New applicants for a school bus endorsement on a commercial driver’s license must pass a driving skills test under 49 CFR 383.123. States are allowed to waive the requirement until September 30, 2005 if the applicant is currently licensed and has a passenger endorsement, has experience operating a school bus, and has an overall clean driving record.

~ If you have a question for me to address, please send it to Wayne Schooling at NTA, 2533 N. Carson Street, Suite 346, Carson City, NV 89706-0147 or e-mail to wayne@ntassoc.com or call (562) 279-0557 or (800) 805-0040. Until next month, “Drive Safe - Drive Smart!”