“Whistleblower Protection”

Posted on April 28, 2012 by Administrator

TIP of the week: Use "Water Pump Pliers" to check for loose bolts during an inspection.

Driver’s “Whistleblower Protection” training has been required since 2004 for any new CDL driver in “interstate commerce” and every new “intrastate” CDL driver in the the following states: Colorado, Illinois, Oregon, Texas, Utah and Washington. This is in addition to passing the CDL skills test. Whistleblower Protection is the one area in the transportation industry that is not regulated by the U.S. DOT but instead by OSHA, and has a broad definition of who an employee is because it includes “independent contractors” as well as anyone directly affecting safety.

The statute provides two distinct circumstances with respect to an employee’s refusal to operate a commercial motor vehicle:

(1) a employee/driver who refuses to operate a vehicle when such operation is in violation of any regulation, standard or order of the United States related to commercial motor vehicle safety or health;

(2) an employee’s refusal is protected if the employee has a reasonable apprehension of serious injury to the employee or the public. In this second instance, the employee must also have sought from the employer and been unable to obtain correction of the
unsafe condition.

Whistleblower complaints must be filed within specified statutory time frames. This time frame generally begins when the “adverse action” takes place (a driver/employee is demoted, fired, etc.).

Under the STAA complaints cannot be considered after 180 days.

OSHA ordered one company to:

(1) reinstate the driver to his former job with all the pay, benefits and other rights he had before he was fired, pay over $38,000 in back pay plus interest, $20,000 for emotional distress, $40,000 in punitive damages and over $10,000 in attorney fees (more than $110,000 with interest)
(2) remove any adverse references from the driver’s personnel records relating to his firing and in any request for employment references
(3) not retaliate against the driver in any manner, and (4) post in its facility OSHA’s fact sheet on whistleblower protection for trucking employees.

Companies in violation have been assessed OSHA “punitive damages“ up to $200,000.

I’ve trained a number of drivers on Whistleblower Protection for their Part 380 (e) certificates. My advice to them was to always work hard on the small stuff before it turns into “big stuff” and results in a citation or violation.

The basic tool is the Driver’s Vehicle Inspection Report (DVIR). A properly filled out DVIR (this means making good use of the “Remarks” section, if necessary), covers the driver and puts the company on notice of any vehicle safety defects or issues.

To learn more about New CDL Driver’s Qualification Training, 49 CFR Part 380 (E) requirements please see http://www.part380.com/380pp.html

Learn how to fill out a DVIR; every trip should start with a good Pre-trip Inspection (PTI): http://www.part380.com/si393.html

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Keeping it simple

Posted on April 4, 2012 by Administrator

As matters grow increasingly complex in society, the government tries to respond with regulations. Those regulations, of course, add another layer of complications. And so the complexity of life snowballs. The same scenario is being played around the world.

Federal agencies in the United States now examine nearly all aspects of near all companies’ operations. The Occupational Safety and Health Administration patrols the factory floor (or most worksites). The Equal Employment Opportunity Commission oversees hiring and firing. The Environmental Protection Agency prevails over everything from construction materials to indoor atmosphere to sanitation systems to the use of natural resources. The IRS looms omnipotent. It’s getting more and more complex to start a business, grow a business, maintain a business, and even work for a business.

. . . By 2010 the cost of federal regulations was well over $10,000 per American household, estimates economists with the Rochester Institute of Technology in New York. Jeff Davidson, Simpler Living, page 8.

Our goal, in the face of growing regulatory complexity is to make DOT regulations as simple as possible for your organization. The year 2012 started off with the cell phone ban for all commercial motor vehicles drivers. New hours of service penalties have gone into effect with more changes planned in 2013. The third leg will be increased regulatory scrutiny of all commercial motor vehicle drivers under the DOT’s new CSA regulatory enforcement program.

To get a leg up on competition, stay safe as possible, save time and money, and keep compliant with DOT regulations, please visit http://www.part380.com/index.html

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The TOP 8 Reasons to Be DOT Compliant in 2012

Posted on November 29, 2011 by Administrator

(1) Some cities across the US get 100% of their revenue from ticketing Commercial Motor Vehicles (CMVs). From businesses and vehicles like yours. Example: $100 fine because a door sign said “Fire Extinguisher” not “Fire Extinguisher Inside.” $500 or more fine for idling over three minutes. Know your state and local laws.

(2) Legality is determined on a trip-by-trip. Yesterday you were fine. But today? Do you know?

(3) Both the state and federal DOT are not obligated to inform you of any of your responsibilities or obligations. Go figure.

(4) The DOT makes mistakes. Have you checked your DOT/CSA Safety profile?

(5) The DOT does not have to stand behind their own bad advice. Sure, it’s always free. It’s not always good. And if it’s bad advice resulting in a fine or failed audit, well, too bad.

(6) Crunch time. In the wrong place at the wrong time? Any of your DOT paperwork may be used in court. Showing compliance, however, may help, not hinder you.

(7) You have to be compliant anyway. Pay now or pay later. Delay is a decision – for the wrong way.

(8) The DOT’s new CSA enforcement program provides the DOT with a number of “interventions” to make you compliant.

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Are you caught in any of these Safety Management Traps?

Posted on July 8, 2011 by Administrator

 

safety roadblocks

1. How do you manage what you don’t know about?

Shouldn’t you first measure before you manage? What are your safety metrics? How are you held accountable for safety?

2. Do you focus on ‘models’ or ‘measurements?’
Are you a “measurer” (of key metrics) or a “modeler” (looking for an elusive example to follow)? Is it sometimes better to apply heuristics (rules of thumb) when solving problems? How do you decide to decide?

3. Are you too busy managing safety software to manage safety?
Are you spending most of your time entering data into spreadsheets or software apps? Or do you expand your knowledge through experiential activities, such as field visits to facilities, terminals and/or customers?

4. Is your safety “bolt-on” or “built-in?”
Are training programs or software purchased on an ad hoc basis or part of a master plan? Are problems solved by just buying another software application or are root causes looked for?

5. Are you subsituting knowledge for achievement?
Are you obtaining knowledge (evidenced by coursework and certifications) or developing your skills? Can one learn to ride a bike at a seminar? What do you actually DO?

Do. Or do not do. There is no try. Yoda

“Knowing is not enough. We must apply. Willing is not enough; we must do.”
Johann Wolfgang von Goethe

6. Have you subsituted experience for achievement?
Have you ‘earned’ your respect from your team or taken a short cut based on a title? Do you have a degree of confidence that may not be warrented? Do you have a grasp of the “hard,” technical skills, but lack the necessary “soft” interpersonal skills to become a great safety manager: credibility, leadership and communication skills?

7. Do you substitute the Holy Grail of technology/gadgets for real communication?
Do you manage your technology or does technology mange you? Do you communicate with others by one-on-one, face-to-face meetings, or electronically, or by group meetings – lacking emotion, expressions, focus and/or concentration?

8. Do you know how to get the ‘people skills’ you need to be successful?
In your previous safety roles, in what areas did you have the greatest impact? The least? Which of your skills contributed the most? What skills do you still need to work on?

9. Do you understand the difference between the “parallel authorities,” the Code of Federal Regulation (the CFRs that bubble forth from a multitude of federal agencies), and the United State Code (USC or the laws made by Congress); or Standards such as ISO, ANSI Z15.1, and/or company policy and how they interrelate? Do you need to know more about, for example, Risk Management (or  _____ [whatever - you fill in the blank])? Do you spend time in learning to understand things you don’t know  . . . not passing the buck to others? Do you have a strong enough understanding of the industry, so you are able to effectively challenge upper management?

Do you stand your ground when it is called for? Does the long term success of the company or organization matter to you at a deep, personal level?

What’s holding you back, keeping you from doing your job? What’s your take?

To learn more, please visit: http://www.part380.com/safetyleader.html

 

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Have some summer fun – but don’t lose your CDL

Posted on July 2, 2011 by Administrator

Commercial Driver Licenses (CDLs) are federal licenses subject to Title 49 of the Code of Federal Regulations (CFR),  including Part 391.15 – Disqualification of Drivers (while driving a Commercial Motor Vehicle or CMV) Part 383.51 – Driver Disqualification (extended to driving any non-CMV vehicle), and certain on-duty drug and alcohol prohibitions.

What does “any non-CMV vehicle” mean?

Don’t just think cars. A bicycle, for example, is a non-motorized vehicle.  Any means of “conveyance” could and should be considered a “non-CDL vehicle” (i.e., all-terrain-vehicles or ATVs, personal-water-craft or PWCs to boats, snowmobiles or any personal “vehicle.”)

Why is this important to a CDL holder?

Thousands of CDLs are “lost” or suspended each year under these rules. Know the rules to protect your CDL.

What are the “rules?”

Part 383.51 (b) breaks down offenses into two categories: major - in which a driver must be disqualified for one year (up to three years or even a lifetime ban); and serious - in which several offenses over time may result in loss of the CDL.

What are the major offenses?

- Being under the influence of alcohol as prescribed by state law, or refusing to undergo testing,

- Being under the influence of a controlled substance

- Leaving the scene of an accident involving a commercial motor vehicle

- Using the vehicle to commit a felony

- Using the vehicle to commit a felony a felony involving manufacturing, distributing, or dispensing a drug (a lifetime CDL ban for a single conviction.)

If operating a CMV (this could be a non-CDL vehicle like a work truck):

• Having an alcohol concentration is 0.04% or more.

• Driving with a revoked, suspended, or canceled CDL, or after being disqualified.

• Causing a fatality through the negligent operation of a CMV.

If the offense was committed while transporting hazardous materials, the disqualification period is 3 years. The disqualification period for the second conviction is life.

A contractor (who might carry a tube of caulk) or a landscaper (with a small amount of fuel), should never drive even a work truck if their license was suspended, or a CDL-type vehicle without proper CDL endorsements. Two strikes and you are out — for life.

What are the serious offences?

Disqualification periods have also been established for SERIOUS traffic violations, again, committed in any type of vehicle. A serious traffic violation is defined in §383.5 and includes:

1. Excessive speeding, which is 15 MPH or more above the posted speed limit;

2. Reckless driving;

3. Improper or erratic lane changes;

4. A traffic violation arising inconnection with a fatal traffic accident;

5. Driving a CMV without having obtained a CDL;

6. Driving a CMV without having a CDL in the driver’s possession; and

7. Driving a CMV without the proper class of CDL and/or endorsement.

What are the “serious” disqualifications under §383.51 c?

• Two serious traffic violations within 3 years disqualifies the driver for 60 days.

• Three serious traffic violations within 3years disqualifies the driver for120 days

Special Considerations

In operating any type of off-road vehicle or watercraft, the presumption by law enforcement is that the operator knows the rules and the law.

If renting an ATV, snowmobile, boat or PWC, ask for any operator’s tips, safety information or local restrictions, especially local speed limits.

Never drink, use drugs or break the rules operating any “vehicle” or watercraft on-road or “off-road.”

Boating / Watercraft

Know the “no-wake” rules.

Boats or watercraft leave a wake behind them in the form of a wave.  This wake can result in shoreline damage in the form of erosion, or a safety threat in the form of a rogue wave to fellow boaters getting on/off their boats.  Injuries such as broken or crushed legs can result if the boat suddenly rocks as boaters board or disembark.

Circle Markers

No wake-zones may be indicated by a “circle marker” to show a controlled area such as no wake, idle speed, speed limit or some other zone. These zones may extend for some distance and the markers may not always be maintained.

“Slow no-wake violation” is one of the most frequently cited violation, and PWCs are the watercraft most cited. Speed may be checked by radar.

The “no-wake” speed is like an “idle speed”- the slowest speed one can travel and still maintain steering control.

Know your “open water” speed limits as well. These, too, are sometimes checked by speed radar.

If alcohol will be consumed, have a designated operator or simply stay off of the water or behind the controls of any vehicle on-road or off road.

Boating/Watercraft Infractions which could impact your CDL:

• Operating while intoxicated

• Refuse preliminary breath test

• Speed too fast

• Reckless driving

• Careless operation

Many of these rules apply to any and all vehicles – both on-road and off road, but have extra-special significance for all CDL drivers.
Summary

Many rules govern the CDL. CDL holders need to know and apply both the on-road and, now, the off-road rules as well. Have lots of fun, but don’t lose your commercial driving privileges or means to earn a living in the process.

This New Entrant CDL driver training (Part 380 (e))  is found here: http://www.part380.com/380pp.html

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DOT’s Farm Rules

Posted on June 25, 2011 by Administrator

The Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 350-399) include several exceptions for agricultural operations. Specifically, 49 CFR Part 390.5 Definitions – explains what a ”farmer” and ”farm vehicle driver” are:

Farmer means any person who operates a farm or is directly involved in the cultivation of land, crops, or livestock which—

(a) Are owned by that person; or

(b) Are under the direct control of that person.

The term “farmer” includes any businesses which operate farms and their employees. But “custom harvesters” (see 391.2) and farmers who contract with other farmers to transport product are not employees of the farmer (and must have full CDLs and comply with drug and alcohol testing). “Farm-related service industries” are not “farmers.” All Federal Motor Carrier Safety Regulations (FMCSR’s) apply to Custom Harvest operations. A farmer who contracts to transport freight is “hauling for hire” and would be subject to all of the commercial trucking regulations. Agribusiness operations, for example, co-ops or farm dealers do not meet the farmer exemption for CDLs.

Farm vehicle driver – means a person who drives only a commercial motor vehicle that is—

(a) Controlled and operated by a farmer (see above) as a private motor carrier of property;

(b) Being used to transport either—

(1) Agricultural products, or

(2) Farm machinery, farm supplies, or both, to or from a farm;

(c) Not being used in the operation of a for-hire motor carrier;

(d) Not carrying hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with §177.823 of this subtitle; and

(e) Being used within 150 air-miles of the farmer’s farm.

In this context, “farm driver” usually provides relief from compliance with the regulations, but to use that exception from the regulations, you must comply with ALL of the above components (a through e) of the definition.

Some common “Bear Traps” for Farmers

Some farm tractors pulling equipment have received tickets for:

- exceeding the 25 MPH speed limit of the implement’s tires;

- exceeding the rated tire weight rating;

- tracking dirt on the road

Illinois Farmers

It is my opinion that more Illinois farmers are registering for “interstate” DOT numbers, than required by law. This advice is based on the “precautionary principle” and may not always be sound. Your comments on this matter (interstate versus intrastate) are being solicited (see link below).

Special Ag Related Rules

It is illegal to operate a motor vehicle on a public roadway with off-road or non-taxed, “dyed” diesel fuel (unless in rare time of a “fuel emergency”- see your state’s or the IRS website for fuel emergency information).

Unified Carrier Registration (UCR) – is a required registration (and annual fee based on number of power units used in interstate commerce).

If hauling Hazardous Materials in amounts requiring placarding, then the driver must always be at least 21 years of age – farmer or not.

Anyone “hauling for hire” or anyone transporting any amount of hazardous materials needs to have an MCS-90 Form – on file at the company’s place of business.

For pulling trailers in intrastate transportation, non-regulated, non-commercial vehicles (which do not meet the definition of a commercial motor vehicle, i.e., under 10,000 lbs. combination gross weight), are generally required to have safety chains (one on each side – or for an implement of husbandry – a single bridle chain). This applies to trucks or farm tractors and is a good, best safety practice. Know your state laws in addition to the federal rules.

Drivers transporting livestock or slaughtered animals, or the grain, corn, hay, etc., used to feed animals, may not use the “agricultural operations” exception to Hours of Service. (395 1.(k))

Farm tractors towing implements of husbandry and self-propelled implements of husbandry are now exempt from all of the Federal Motor Carrier Safety Regulations, intrastate and interstate, including brakes, but each state can make its own rules.  (This could change under new proposed DOT rules: http://www.gpo.gov/fdsys/pkg/FR-2011-05-31/html/2011-13035.htm )

In Summary

Farms and farm drivers are given specific exceptions for agricultural operations. Farmers, however, are never exempt from any of the “safety” rules and regulations (Parts 392 Driving, 393 Parts and Accessories, 396 Inspections, 397 Safety, 398 Transportation of migrant workers, 399 Employee safety and health), nor their state’s special rules.  Many states publish a Farmer’s Guide about specific farm rules, or see the Manager’s Guide to Safe Trucking here: http://www.truckline.com/Federation/Conferences/AFTC/Documents/Safe%20Trucking%20Guide.pdf

Go back http://www.taratuta.com/ or to learn more: http://www.part380.com/

 

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DOT Warning Letters (WL)

Posted on June 17, 2011 by Administrator

Errant Texas motor carriers got their DOT warning letters in March 2011.

Now any carrier, nationwide, with an “unacceptable level of safety performance” or showing a “lack of compliance” (expect those already deemed by the DOT to be “high risk carriers”), might be given a DOT Warning Letter.

“Take This Warning Letter Seriously”

The WL tells of the consequences of non-compliance:
- civil penalties
- suspension/ revocation of vehicle registration, and, if applicable,
- suspension/ revocation of operating authority (which may result in vehicle impoundment)
- open disclosure of the carrier’s performance record to the public

The WL is sent when one or more of the CSA enforcement program BASIC thresholds have been exceeded. The WL says:

- your organization is on the FMCSA’s radar
- improvement of safety performance is paramount
- continued poor performance will result in a possible investigation

Here’s the DOT’s “bear-trap:” due to the regulations, a “safety rating” can only be issued to a carrier following a Compliance Review (CR), also known as a  “DOT audit;” which is defined as “onsite investigation of a carrier.” But to get a “satisfactory rating” all areas need to be reviewed.

Focused CRs are mini-audits focused on one or two BASICs requiring an investigation – and can be considered for three (3) BASICs (requiring investigation). But a focused review cannot result in a “satisfactory rating.” Do you see the investigatory “trap,” a kind of “Catch 22?”

The WL is considered a STRONG WARNING by the DOT and should be considered as such.

What to Do If A Warning Letter was Issued?

First of all, don’t panic. Find out the facts.

Analyze your CSA BASIC scores. Only half of organizations or carriers, from pilot study statistics, bother to do this.

Keep top management informed. Decisions will need to be made; safety performance needs to stay on top of the agenda.

Safety Performance needs to be balanced with Performance.

Risk needs to be managed with Risk Management.

One tool we have developed specifically for the new CSA challenge, to give your organization a framework to stay “in balance” and a jump-start on safety performance is the Safety Leader’s Handbook.  To learn more, please visit: http://www.part380.com/safetyleader.html

 

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392.9 Inspection of cargo and cargo securement devices

Posted on June 11, 2011 by Administrator

Part 392.9 – Inspection of cargo and cargo securement devices – applies to all Commercial Motor Vehicles (CMVs) and the drivers of those vehicles. Note: anyone who drives a DOT regulated vehicle is covered by these rules not just CDL or Commercial Driver License holders.

392.9 (a) – is the general provision that states the driver must ensure “cargo is properly distributed and adequately secured . . .” The term “cargo” means anything that is being hauled including the cargo securement devices (e.g., chains, straps), dunnage (e.g., timbers, or planks), chocks or cradles (to secure items which roll) or any tools or small items placed on an unenclosed (flatbed) truck or any larger items placed inside an enclosed box truck or trailer. Yes – cargo inside a box truck, van body or enclosed trailer needs to be properly blocked, braced and secured.

Many states have a “tailgate rule” for bulk items like sand or gravel – stating nothing can extend or be higher than 6 inches below the top board or blow out of the truck. A tarpaulin or tarp may be required over the load so that nothing blows out.

What about bungee cords (rubber straps)?

Bungee cords are generally used to secure a tarpaulin. Bungee cords, however, have no “load rating” and should not be used to secure tools such as a ladder or gas cans. Read the warning labels on the bungee cord: safety goggles or glasses are required because the bungee cord can take out an eye if it fails while being fastened.

Additional warnings:

The rules in 49 CFR Parts 392 and 393 are the starting point and cannot cover every loading situation.

Heavy items should be on the bottom and lighter items on top. Be aware of the load’s “center of gravity.”

Know how to inspect cargo securement devices as chains and straps for damage and any out-of-service conditions.

Wheeled vehicles, piping, rolls – anything that can roll – needs to have a chock, wedge or cradle as specified by the regulations or best load securement practices.

Straps will stretch. Additional securement is normally required to stabilize the load

The more pieces stacked together or the higher the load, the more likely it will shift – no matter how many straps and chains are used.  Use dunnage and/or stakes as required.

Anti-skid pads or mats will increase the coefficient of friction.

Tension is never “equal” when chains or straps go over the top; the side with the binder or ratchet is tighter – so use edge protectors as needed; and if possible, choose a short-link chain over a long-link chain.

The loading/unloading area is always a high danger zone.  Act accordingly. A driver needs to be visible at all times to the loader/unloader: stay out from under any cargo being loaded or unloaded, stay out-of/off-of any trailers being loaded or unloaded.

Common citations:

- Lost or shifted cargo

- No load securement

- Loose securement devices

- Spare tire without a securement chain

- Broken securement devices or anchor points

Insurance generally does not cover improperly secured loads and cargo loss can result in criminal charges to the driver.

Learn the proper way, the right way to secure your load. Then do it the correct way – the right way every time.

Go back to http://taratuta.com/ or ahead to http://www.part380.com/si393.html

 

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Local Police can sometimes enforce FMCSRs; but should they?

Posted on June 7, 2011 by Administrator

Yesterday, the Arkansas City Traveler reported on a request from the Arkansas City Police Chief to enforce the Federal Motor Carrier Safety Regulations (FMCSRs).

“A lot of drugs are transported by commercial trucks,” he said. “Right now, getting in the back of that truck, we can’t do it without that kind of authority or training.”

What kind of authority and training is he referring to? Not only the Federal Motor Carrier Safety Regulations (FMCSR), Title 49, of the Code of Federal Regulations, but the Hazardous Materials Regulations and the North American Standard Out-of-Service Criteria.

Firstly, police are authorized to stop any vehicle – provided they have proper grounds for a stop. The only exception might be in the State of Indiana where in a recent 3-2 decision, Justice Steven David, writing for the court said, if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry. If police can invade a man’s castle for “any reason or no reason at all,” then what’s to stop them from searching his chariot?

Secondly, most commercial motor vehicle (CMV) violations are misdemeanors. This means every driver needs to ensure all parts and accessories meet the minimum standards as specified in 49 CFR Part 393, Parts and accessories necessary for safe operation.

§ 393.1 Scope of the rules in this part says:
“(b)(1) Every motor carrier and its employees must be knowledgeable of and comply with the requirements and specifications of this part.”

While Commercial Driver License (CDL) holders have to pass a rigorous Pre-Trip Inspection part of the CDL Test, many CMV drivers without a CDL may not have had any inspection training as it is not a licensing requirement.

Being knowledgeable and complying with the requirements and specifications of Part 393 means obtaining a level of knowledge well beyond the CDL test – which, for example, does not cover in depth 393.71, Coupling devices and towing methods, nor Parts 393.100 – 393.136, Protection against shifting and falling cargo.

Even something as simple as dust or dirt on a reflector can be ticketed, and result in an Out-of-service (OOS) violation – until the condition is corrected.

Thirdly, some cities across the U.S. get 100% of their revenue from ticketing Commercial Motor Vehicles (CMVs). Michigan, perhaps in the interest of fairness, passed a law that limits revenue from CMVs to half of a municipal budget.

Better driver training or . . . better police training? Isn’t prevention better than a “cure,” not to mention safer?

Go back to http://taratuta.com/ or ahead to http://www.part380.com/si393.html

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What all do we need to have for the safety audit?

Posted on June 6, 2011 by Administrator

The scope (or application) of the Federal Motor Carrier Regulations (FMCSRs) 49 CFR Parts 300-399 is found at the beginning of each “part.” If these chapters were written as a book, however, Chapter One would logically be in the beginning (or Part 300).

The “beginning,” however, is found at 49 CFR Part 390.

Ҥ 390.1Purpose.
This part establishes general applicability, definitions, general requirements and information as they pertain to persons subject to this chapter.”

Some sections over the years are “redacted” or made obsolete or simply retired so the order may not be sequential.

Secondly, most States have incorporated into their State code some or all of the FMCSRs (49 CFR Parts 300-399) into State law (South Carolina requires compliance by October 1, 2011 and Ohio by January 1, 2012 for all sized vehicles – but tickets may be issued anytime in Ohio for safety violations).

This means for most Commercial Motor Vehicles, the FMCSRs apply and are in effect – some “Parts,” requiring documentation of compliance from day one of operations.

Go back to http://taratuta.com/ or see the Safety Audit Guide management program at http://www.part380.com/

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