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May 2011 mcsr.jjkeller.com CSA update: Agency removes ‘Alert’ from public view In this issue: CSA update: Agency removes ‘Alert’ from view . . . 1 ...
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CSA update: Agency removes ‘Alert’ from public view

In this issue: CSA update: Agency removes ‘Alert’ from view . . . 1 Major industry players oppose changes to hours of service . . . . . . . . . . . . . . . . . . . . 1 Public given extra time to review EOBR proposal . . . 2

Under the terms of a settlement agreement with three trucking associations, the Federal Motor Carrier Safety Administration (FMCSA) has changed the way its Compliance, Safety, Accountability (CSA) website displays information about motor carriers’ safety performance. The key changes are: • Replacing the orange word “ALERT” with an “alert” sign depicting an exclamation mark inside a yellow triangle; and

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• Revising the disclaimer language that appears in a “pop-up” notice on the site to make it clear that carriers on alert may still have a good safety rating. The CSA’s Safety Measurement System (SMS) website displays information to the public about motor carriers’ performance on five compliance categories known as the BASICs: unsafe driving, hours of service, driver fitness, drugs and alcohol, and vehicle maintenance (two other categories are hidden from public view).

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Researcher: FMCSA misused my work in HOS proposal . . . . . . . . . . 2 Where’s the ISS? . . . . . . . . . . . . . . 2 Did you get a CSA warning letter? . . . . . . . . . . . . . . . . . . . . . . . 3 Detention time getting renewed attention . . . . . . . . . . . . . . . . . . . . . 4 Enforcement crackdown sounds alarm on speeders . . . . . . . . . . . . . 4 Reps seek to stop HOS proposal . . 5 Top 25 OSHA violations in trucking and warehousing . . . . . . . 6 Carriers face major fines over safety violations . . . . . . . . . . . . . . . 8 Coach operator fined $55,000 . . . . 8 New standards needed for underride guards, IIHS says . . . . . 9 Changes considered for med examiner registry proposal . . . . . . 9 Significant resources needed to implement CSA . . . . . . . . . . . . . . 10 Texting ban now in effect for hazmat drivers . . . . . . . . . . . . . . . 11 FMCSA amends saddle-mount braking rules . . . . . . . . . . . . . . . . 11 PHMSA flexes its enforcement muscles . . . . . . . . . . . . . . . . . . . . . 12 New protections proposed for cargo tank drivers . . . . . . . . . . . . 12 Parking-space monitoring systems fail to perform . . . . . . . . 13 Agency strengthens consumer protections . . . . . . . . . . . . . . . . . . 15 State Highlights . . . . . . . . . . . . . . 15 Regulations Calendar . . . . . . . . . 16

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See CSA, p. 3

Major industry players oppose changes to hours of service

If a majority of the more than 23,000 comments submitted to the Federal Motor Carrier Safety Administration (FMCSA) concerning its hoursof-service rules can be summarized into three words, it would be a resounding “Leave them alone!” From drivers to enforcement officers and motor carrier executives, few involved in the trucking industry seem to welcome the idea of changes being

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made to the federal hours-ofservice rules for drivers of property-carrying vehicles. The FMCSA was accepting comments on its December 29, 2010, proposal until March 4, 2011, and numerous industry associations waited until the deadline to make their views known. The following is a sampling of those comments. “We believe the prudent course of action at this point See HOS, p. 5

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Public given extra six weeks to review EOBR proposal The Federal Motor Carrier Safety Administration (FMCSA) has extended the deadline for submitting comments on the agency’s proposed rule for electronic on-board recorders (EOBRs). The public now has until May 23, 2011, to provide feedback on the proposal. The original deadline was April 4,

2011. The Commercial Vehicle Safety Alliance and American Trucking Associations both requested the 45-day extension. The FMCSA issued its proposed EOBR rule on February 1, 2011 [see MCSR, 4/11, p.1]. If enacted, the rule would require almost all interstate commercial truck and bus companies to install EOBRs in

their vehicles. The proposal also covers the use and retention of supporting documents. Comments on the proposed rule can be submitted online at www.regulations.gov under Docket No. FMCSA-20100167, or by fax to (202) 4932251. The deadline extension was announced on March 10, 2011. ◆

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Researcher: FMCSA misused my work in HOS proposal Opponents of the Federal Motor Carrier Safety Administration’s (FMCSA’s) proposed hours-of-service rule have found new ammunition in the form of a British researcher who claims that the agency misapplied his research. Dr. Francesco Cappuccio, a researcher at Warwick Medical School in the United Kingdom, co-authored a 2007 study that the FMCSA used to support its December 29, 2010, proposal. Based on the study, the agency concluded that short projected increases in sleep could generate roughly $690 million in annual health benefits for commercial drivers. At the request of the American Trucking Associations (ATA), which is fighting the proposed rule, Dr. Cappuccio

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reviewed the FMCSA’s work and concluded that the agency misused his research to justify the proposal. “The current evidence . . . do[es] not support the conclusions of the FMCSA that a small increase in sleep duration of a few minutes following the HOS options proposed, particularly in the groups with baseline daily sleep [of more than six hours] per night, is likely to decrease the mortality risk of individuals or groups,” Dr. Cappuccio wrote. Further, Dr. Cappuccio states “there is no evidence to prove that, without additional measures, a simple reduction in work hours will result in increased sleep time.”

In its proposed rule, which is due to be finalized this summer, the FMCSA is seeking to cut driving time and increase rest time for drivers of property-carrying commercial motor vehicles. Cappuccio’s study was based on his review of 16 earlier studies on the effects of sleep duration on mortality. Cappuccio cautioned that those earlier studies do “not demonstrate or even imply a cause-effect relationship” and warned it was “premature to address specific policy changes on the basis of the published relationships between sleep time and mortality risk.” ◆

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Want more? Go online to review the full details, at mcsr.jjkeller.com.

Where’s the ISS? Changes resulting from the federal Compliance, Safety, Accountability (CSA) enforcement program have left many motor carriers wondering

where the Inspection Selection System (ISS) went. Law enforcement officers use the ISS to help decide whether to inspect commer-

cial vehicles, and motor carriers review their ISS “score” to tell if their vehicles are being targeted for inspection. See ISS, p. 3

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ISS, from p. 2 ISS scores were recently removed from view while the Federal Motor Carrier Safety Administration (FMCSA) revised the algorithm used to generate ISS scores. Today, ISS scores are once again available for view on the FMCSA’s “Portal” website. While ISS scores were previously based on out-of-service violations, the new ISS relies on data from the CSA system, including carriers’ scores on the Behavior Analysis and Safety Improvement Categories (BASICs). The ISS score is a number (0-100) that gets translated into a recommendation of: • Pass for scores of 0-49; • Optional for scores of 50-74; • Inspect for scores of 75-100. Carriers with an ISS score of 50-100 will undergo more roadside inspections than carriers at the “Pass” level. Carriers that are on “alert” in one or more BASICs (i.e., those with a CSA score above the interven-

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CSA, from p. 1

tion threshold) will likely be classified under “Inspect.” The “Inspect” recommendation is also assigned to carriers that have had no or few roadside inspections in the past two years, because the FMCSA wants to obtain more roadside

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inspection data on those carriers. The FMCSA Portal is available online at https://portal.fmcsa.dot.gov. Carriers will need a Portal account to log in and see their ISS scores. ◆

Did you get a CSA warning letter? The Federal Motor Carrier Safety Administration (FMCSA) has begun sending warning letters to motor carriers who have been placed on “Alert” in the Compliance, Safety, Accountability (CSA) scoring system. In an effort to educate carriers about these warning letters and how carriers should respond, the FMCSA has issued the guidance excerpted below.

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Carriers with a poor score in a given BASIC are put on “alert” for that category and may be subject to enforcement actions. The National Association of Small Trucking Companies, the Expedite Alliance of North America, and the Air & Expedited Motor Carriers Association filed suit in late 2010 challenging the CSA program. The FMCSA’s agreement to make changes to the CSA site puts an end to the litigation.

What is it?

A warning letter is correspondence sent by the FMCSA to a motor carrier’s place of business. It identifies the compliance category or categories (the “BASICs”) on which the carrier has been assigned an “alert,” indicating that the carrier’s safety performance is worse than a majority of its peers based on the past 24 months of roadside inspection and crash data.

“Through this settlement agreement, we addressed the concerns raised by petitioners without compromising the

The SMS website: http://ai.fmcsa.dot.gov/SMS CSA program and its safety benefits,” said FMCSA Administrator Anne S. Ferro. The new disclaimer on the CSA site says the new “alert” symbol “indicates that FMCSA may prioritize a motor carrier © J. J. KELLER & ASSOCIATES, INC. ®

See Letter, p. 14

for further monitoring [and] is not intended to imply any federal safety rating of the carrier.” The notice goes on to say that “readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system.” The SMS is used to analyze all safety-based violations from roadside inspections and crashes to measure a commercial motor carrier’s on-road safety performance. ◆

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Detention time getting renewed attention Detention time — the sometimes long periods of time drivers of commercial motor vehicles have to spend waiting at shipping and receiving facilities — is getting renewed government attention that could lead to beneficial changes. The U.S. Government Accountability Office (GAO), which is the investigative arm of Congress, recently completed an investigation of detention time and concluded that the Federal Motor Carrier Safety Administration (FMCSA) should examine how detention time contributes to hours-of-service violations. The GAO study found that “detention time occurs with some regularity and for a vari-

ety of reasons,” and a thorough examination of detention time could help the FMCSA figure out how detention time contributes to hoursof-service violations and “whether additional federal action might be warranted,” the GAO says. That federal action may come from Congress, which is considering whether to require shippers and receivers to pay detained drivers after a certain number of hours. A bill introduced by Rep. Peter DeFazio (D-OR) would require the FMCSA to study detention time and then set the maximum number of detention hours that would be allowed

before a driver would have to be released or paid. Even without the legislation, the FMCSA says it plans to conduct a study next year to better understand the extent to which detention time occurs. Detention time counts against drivers’ 14-hour daily “window” of time during which all driving has to be completed, meaning detained drivers may be unable to complete their trips without violating the rules. The GAO says there are no industry-wide data on the occurrence of detention time,

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See Detention, p. 13

Enforcement crackdown sounds alarm on speeders A week-long roadside belt, and failure to obey traffic enforcement campaign targetcontrol devices. ing both commercial motor “CVSA’s Operation Safe vehicles and passenger vehiDriver is targeting each and cles found that passenger car every driver, whether they drivers are “speeding drive a passenger car or a at alarming rates” CMV, and alerting offendaround commercial ers that their poor driving vehicles. behaviors result in lives Recently released lost,” said Stephen A. KepThis Month figures from the Compler, CVSA’s executive mercial Vehicle Safety director. “We will conAlliance (CVSA) show that law tinue to emphasize this point, enforcement officers pulled through both education and over nearly 53,000 commercial enforcement tactics, until we and passenger vehicle drivers eliminate those driver behavduring the Operation Safe iors that are specifically linked Driver campaign. The top to causing crashes.” three reasons warnings and Of the warnings issued to citations were issued to both CMV drivers: commercial and non-commer• 20.3% were for speeding cial vehicle drivers include (versus 61.2% for passenger speeding, failing to use a seat car drivers);

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Poster Topic

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• 4.2% were for failure to obey traffic control devices (compared to 5.8% for passenger car drivers); and • 2.6% were issued for failing to use a seat belt while operating their vehicle (compared to 2.8% for passenger car counterparts). Of the citations issued to CMV drivers: • 13.7% were for speeding (versus 51.6% for passenger car drivers); • 4.6% were for failure to obey traffic control devices (compared to 1.5% for passenger car drivers); and • 10% were issued for failing to use a seat belt while operating their vehicle (compared to 8.0% for passenger car counterparts). ◆

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HOS, from p. 1 would be to retain the current rules,” wrote Commercial Vehicle Safety Alliance (CVSA) Executive Director Stephen Keppler, arguing that the proposal would make it more difficult for officers to verify compliance with the rules. Keppler asked the FMCSA to first mandate electronic on-board recorders (EOBRs) — to get increased compliance with existing rules — and then consider other rule changes in the future. Donald Osterberg, the senior V.P. of safety and security for Schneider National, agreed that mandatory EOBRs should be the first step. “We need to sequentially implement EOBRs, measure the effectiveness when drivers are compliant with the current HOS rules, and then make whatever changes are necessary, based upon better, more accurate data/analysis,” Osterberg wrote. “The HOS proposal is prohibitively complex causing difficulties for both carriers and law enforcement.” The National Private Truck Council (NPTC), a national trade association representing the interests of the private truck industry, agreed that the existing rules are doing their job and do not need to be changed. “FMCSA has assumed that the proposed changes will improve motor carrier safety despite contrary evidence, the existing safety record and the agency’s prior policy statements,” NPTC said. “The current hours of service

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regulations have not harmed motor carrier safety as many opponents predicted. In fact, these regulations have contributed to a remarkable and unprecedented improvement in crash and fatality rates.” The group says the FMCSA should allow the Compliance, Safety, Accountability (CSA) program to go into full effect before implementing “another wholesale and unproven revision” to the HOS rules. In its proposed rule, the FMCSA is considering numerous significant changes, including a possible reduction in driving time, restrictions on the 34-hour restart, and mandatory breaks for drivers.

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annual cost and provide no health benefits for drivers. “That result is simply unacceptable for truck drivers, trucking companies, shippers, and ultimately the public in general,” the ATA wrote. “Under these circumstances, FMCSA has no rational justification for anything other than retaining the current HOS regulations.” The cost of the proposal is also a concern for James Johnston, president of the OwnerOperator Independent Drivers Association (OIOIDA), who says the proposal — when combined with other recently completed or proposed rules — “could well place insurmountable regulatory challenges on small business trucking.” “FMCSA need not reinvent the wheel by imposing newly fashioned limitations unrelated to safety,” Johnston wrote. “The changes being proposed are … unnecessary in an HOS system that appears to be working well.” A final version of the proposed rule is due to be published in late July. ◆

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Calling the proposed changes “a significant step backward for trucking industry, safety and productivity,” the American Trucking Associations (ATA) also argued in favor of the current rules. According to the trade association, the proposed changes will come at a $340 million

Reps seek to stop HOS proposal

Nearly 150 members of Congress have asked the Department of Transportation (DOT) to keep the current federal hours-of-service rules in place rather than amending them. The representatives, including 122 members of the House and 23 members of the Senate, signed onto two letters sent to the DOT in late February. “The rules currently in place are working well and do not need to be changed,” reads the House version. The letters argue that now is not the time be adopting new regulations that could harm a fragile economic recovery. The House members also charge the FMCSA with manipulating its cost-benefit analysis to make the proposal look better than it is. ◆

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Top 25 OSHA violations in trucking and warehousing Violations of the hazard communication standard top the list of reasons trucking companies were fined by the Occupational Safety and Health Administration (OSHA) in 2010, according to recent government data. The tables below list the top most-cited OSHA standards in 2010 for trucking and warehousing/storage companies, along with average adjusted penalties levied for those violations. In all, 1,543 OSHA violations were recorded in 2010 among trucking companies, totaling

more than $1.2 million in initial penalties and $390,000 in final adjusted penalties. The average initial penalty per violation was $791, while the average adjusted penalty per violation was $253. In warehousing and storage, 1,627 OSHA violations were recorded in 2010, totaling about $2.7 million in initial penalties and $500,000 in final adjusted penalties. The average initial penalty was $1,639 per violation and the average adjusted penalty was $307 per violation.

The data for trucking includes local and long-distance general, household goods, and specialized freight trucking, classified under North American Industry Classification System (NAICS) codes 484000 through 484999. The data for warehousing and storage companies includes general, refrigerated, farm product, and “other” warehousing and storage, as classified under NAICS codes 493000 through 493999. These are statistics for violations of federal OSHA standards.

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Standard violated

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Topic

1910.1200(e)(1)

Written hazard communication program

1910.1200(h)(1)

Hazard communication: Employee information and training

Average Total adjusted violations penalty 76

$131

39

$29

1910.178(l)(4)(iii) Powered industrial trucks: 3-year performance evaluation

39

$104

1910.215(b)(9)

Abrasive wheel machinery: Guarding

33

$98

1904.29(b)(1)

Log and summary of occupational injuries and illnesses: OSHA 300 log

29

$257

1910.305(g)(2)(iii) Wiring methods, components, and equipment for general use — Flexible cords and cables: Strain relief

30

$191

1910.132(d)(2)

Personal protective equipment — Hazard assessment and equipment selection: Written certification

29

$40

Walking-working surfaces: Floor loading protection

27

$147

1910.22(d)(1)

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1910.215(a)(4)

Abrasive wheel machinery: Work rests

27

$154

1910.1200(g)(1)

Hazard communication: Material safety data sheets

26

$51

1910.178(l)(1)(i)

Powered industrial trucks: Operator training

25

$273

1910.305(b)(2)(i)

Wiring methods, components, and equipment for general use: Covers and canopies

24

$82

1910.157(c)(1)

Portable fire extinguishers: Provision, accessibility

23

$95

1910.157(e)(2)

Portable fire extinguishers: Monthly visual inspection

23

$24

1910.178(p)(1)

Powered industrial trucks: Removal from service

23

$970

1910.23(c)(1)

Walking-working surfaces: Protection of open-sided floors, platforms, and runways

22

$449

1910.157(g)(2)

Portable fire extinguishers: Initial and annual training

22

$117

1910.253(b)(4)(iii) Oxygen-fuel gas welding and cutting — Oxygen storage: Separation from fuel-gas cylinders/combustibles

19

$450

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Truck Transportation Standard violated

Average Total adjusted violations penalty

Topic

1910.305(b)(1)(ii) Wiring methods, components, and equipment for general use: Conductors entering boxes, cabinets, or fittings

19

$262

1910.303(b)(2)

17

$294

1910.303(g)(1)(ii) Electric systems — 600 volts or less: Working space conditions

17

$133

1910.304(g)(5)

Electrical systems: Grounding path

17

$239

1910.157(e)(3)

Portable fire extinguishers: Annual maintenance check

16

$65

1910.212(a)(1)

Machine guarding: Provision of guarding methods

15

$263

15

$543

Design safety standards for electric systems: Adherence to instructions for use and installation

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1910.305(g)(1)(iv) Wiring methods, components, and equipment for general use — Flexible cords and cables: Fixed wiring required

Warehousing and Storage Standard violated

Topic

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1910.1200(e)(1)

Written hazard communication program

1910.178(l)(6)

Powered industrial trucks — Operator training: Certification

1910.178(l)(4)(iii) Powered industrial trucks: 3-year performance evaluation

Average Total adjusted violations penalty 39

$271

34

$89

32

$66

1904.29(b)(1)

Log and summary of occupational injuries and illnesses: OSHA 300 log

32

$122

1910.23(c)(1)

Guarding floor and wall openings and holes: Protection of open-sided floors, platforms, and runways

31

$744

1910.151(c)

Medical services and first aid: Eyewash/shower stations

31

$619

1910.1200(h)(1)

Hazard communication: Employee information and training

27

$148

1910.176(b)

Handling materials: Secure storage

25

$644

1910.132(d)(1)

Personal protective equipment: Hazard assessment and equipment selection

24

$643

1910.178(l)(1)(i)

Powered industrial trucks: Operator training

24

$594

1910.157(c)(1)

Portable fire extinguishers: Provision, accessibility

22

$120

1910.37(a)(3)

Exit routes: Routing/obstruction of exit routes

21

$412

1910.212(a)(1)

Machine guarding: Provision of guarding methods

19

$849

1910.178(p)(1)

Powered industrial trucks: Removal from service

18

$524

1904.29(a)

Log and summary of occupational injuries and illnesses

18

$289

OSH Act 5(a)(1)

General Duty Clause

17

$771

1910.303(b)(2)

Design safety standards for electric systems: Adherence to instructions for use and installation

16

$257

1910.132(d)(2)

Personal protective equipment — Hazard assessment and equipment selection: Written certification

15

$125

1910.178(q)(1)

Powered industrial trucks: Maintenance

15

$429

1910.303(g)(2)(i)

Electric systems — 600 volts or less: Guarding of live parts

15

$523

1910.305(b)(1)(ii) Wiring methods, components, and equipment for general use: Conductors entering boxes, cabinets, or fittings

15

$213

1910.157(e)(2)

Portable fire extinguishers: Monthly visual inspection

14

$110

1910.178(q)(7)

Powered industrial trucks: Daily inspection

14

$614

1910.304(g)(5)

Electrical systems: Grounding path

13

$234

1910.1200(g)(1)

Hazard communication: Material safety data sheets

13

$75

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Carriers face major fines over safety violations The U.S. Occupational Safety and Health Administration (OSHA) has recently levied significant fines on several motor carriers for failing to comply with OSHA safety standards. The violations include a failure to provide fall protection, inadequate training of forklift drivers, and violation of whistleblower protection standards.

$111,000 In the most costly case for an individual company, a Memphis-based motor carrier that provides vehicle repossession services was ordered to reinstate a driver and pay him more than $111,000 in back wages and damages for violating the whistleblower rules. The company fired the driver after he repeatedly complained to a supervisor about mechanical problems with a truck. “Employees have the legal right to report unsafe driving situations, not only for their own safety, but also to protect the public from unsafe trucks on the roads,” said Cindy Coe, OSHA’s regional administrator in Atlanta. “OSHA will not allow trucking companies to retaliate against drivers who are exercising their rights.”

$76,000

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$115,900 A Wisconsin milk processing facility and eight milk haulers face a combined penalty of $115,900 for failing to provide adequate fall protection for drivers delivering milk, and for several forklift violations. The citations stem from an investigation into the death of a driver who fell more than 10 feet from a delivery truck at the milk processor’s intake facility in Blair, WI. The facility operator had installed adequate fall protection at its 12 other intake facilities, OSHA says, but not at the facility in Blair. The company is facing fines of $72,500. The milk hauler involved in the incident allegedly failed to provide proper fall protection for workers washing out milk trailers. The proposed penalty for the motor carrier is $14,000, in addition to targeted follow-up inspections. Seven other milk haulers that deliver to the Blair facility each were issued a $4,200 fine. ◆

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In another case, an Elizabeth, NJ-based freight carrier faces a total of $76,000 in fines for 17 violations after an employee sustained a foot injury while operating a forklift at one of the company’s freight terminals. An OSHA inspection found several 8

instances where forklifts were operated incorrectly, resulting in collisions and an injury. Employees were not wearing seatbelts and did not receive required refresher training. “Employers and workers must understand that lack of operator training and improper operation of forklifts can have severe and lasting consequence s for workers,” said Patrick Griffin, OSHA’s area director for Rhode Island. The inspection also found that: • Defective forklifts were not removed from service; • No assessment had been made to determine the personal protective equipment needed for forklift operators who changed liquefied petroleum gas tanks; and • There was inadequate and incomplete recording of onthe-job injuries and illnesses.

Coach operator fined $55,000

A Houston-based motorcoach company has been issued a $55,000 fine for operating buses that are not accessible to passengers with disabilities. The company was found to be in violation of passenger carrier accessibility requirements under the Americans with Disabilities Act (ADA), which are enforced by the Federal Motor Carrier Safety Administration (FMCSA). In addition to paying the fine, the bus company is required to upgrade its fleet to meet ADA requirements by July 1, 2011, or have its operating authority revoked. ◆

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New standards needed for underride guards, IIHS says Recent crash tests conducted by an auto insurance research organization show that underride guards on tractor-trailers can fail in relatively low-speed crashes, with deadly consequences. Now the Insurance Institute for Highway Safety (IIHS) is petitioning the federal government to require stronger underride guards that will remain in place during a crash, and to mandate guards for more large trucks and trailers. According to the IIHS, rear guards are supposed to reduce underride deaths and injuries when a passenger vehicle crashes into the back of a tractor-trailer. Without an effective guard, death or serious injury can result if the trailer body crushes the passenger vehicle’s occupant compartment. “Cars’ front-end structures are designed to manage a tremendous amount of crash energy in a way that minimizes injuries for their occupants,” says Adrian Lund, IIHS president. “Hitting the back of a large truck is a game changer. You might be riding in a vehicle that earns top

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marks in frontal crash tests, but if the truck’s underride guard fails — or isn’t there at all — your chances of walking away from even a relatively low-speed crash aren’t good.”

Crash tests The IIHS recently conducted crash tests involving a 2010 passenger car crashing into the rear of three parked trailers. All three trailers had underride guards that complied with U.S. standards.

trailer or the car’s hood after it tore free and pushed into the occupant compartment. The weakest guard tested involved a trailer whose underride guard bent forward, sheared its attachment bolts, and broke after the car hit it in the center rear at 35 mph. In contrast, the best performing trailer successfully prevented underride of the car’s passenger compartment in a center-rear test at 35 mph, and was viewed as a survivable crash. The IIHS also ran offset crash tests and found that guards are only truly effective when hit straight-on. The IIHS has petitioned the National Highway Traffic Safety Administration (NHTSA) to adopt more stringent manufacturing standards for underride guards. “Under current certification standards, the trailer, underride guard, bolts, and welding don’t have to be tested as a whole system,” Lund says. “That’s a big part of the problem. ... At the least, all rear guards should be as strong as the best one we tested.” ◆

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P M A “Damage to the cars in some of these tests was so devastating that it’s hard to watch the footage without wincing,” Lund said. “If these had been real-world crashes there would be no survivors.” Decapitation is a serious threat in underrides, the IIHS says. In three of the crash tests, the heads of the dummies in the car made contact with either the intruding

Changes considered for med examiner registry proposal For years, the Federal Motor Carrier Safety Administration (FMCSA) has been working on a new rule that will require medical examiners to be certified by the agency and listed on a registry of approved examiners, known as the National Registry of Certified

Medical Examiners. If the rule is finalized, drivers will be allowed to use a medical examiner only if that examiner is listed in the Registry.

The FMCSA issued a proposed rule in December 2008, but is now seeking input on whether to amend that proposal to add a new recordkeeping requirement. See Registry, p. 10

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Significant resources needed to implement CSA The Federal Motor Carrier Safety Administration (FMCSA) will need “significantly more resources” to fully implement its Compliance, Safety, Accountability (CSA) enforcement program, a Congressional study has found. The Government Accountability Office (GAO) says the agency has so far used a small number of existing staff, combined with outside contractors, to implement the program. However, the FMCSA is now requesting $78 million and 98 new full-time positions in addition to its existing field staff for fiscal year 2012 to fully implement CSA. The CSA program was launched in December 2010. It involves a new safety measurement system that prioritizes motor carriers for enforcement based on their safety performance, using data taken from roadside inspections, accidents, and investigations. Congress asked the GAO to monitor the CSA program’s roll-out and review the FMCSA’s ability to meet its goals for the CSA program while staying within budget. Until this year, the FMCSA was able to develop the pro-

gram using its existing budget, including: • $2.3 million in fiscal year (FY) 2007; • $6.6 million in FY2008;

• $11.8 million in FY2009; • $9.5 million in FY2010; and • $14.3 million (requested) for FY2011. The $78 million requested for FY2012 marks a substantial increase in funding for the program. The FMCSA has used the equivalent of only about five

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Registry, from p. 9

the carrier is in compliance with the rules relating to the Registry. Because this potential change in the proposed rule would add a new paperwork requirement for the almost 1.2 million affected motor carriers, the FMCSA is required to seek the public’s input before making the change.

Comments identifying docket number FMCSA-20080363 must be submitted by May 16, 2011, and can be submitted online at www.regulations.gov or by fax to (202) 493-2251. Comments on the overall Registry proposal from December 2008 are no longer being accepted. ◆

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According to the GAO, the FMCSA is seeking to gain new authority from Congress to regulate commercial motor vehicle drivers. The agency wants Congress to put such authority in the next surface transportation reauthorization bill, which is used to set the FMCSA’s budget and priorities for a six-year period. If the agency gets that authority, the FMCSA says it plans to make driver safety data public, the same as it has for motor carrier data. ◆

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Specifically, the agency is considering whether motor carriers should have to verify the National Registry Number of the examiners its drivers use, and then place a note about that verification in the drivers’ qualification files. The note would serve as proof that 10

Will drivers’ CSA scores be made public?

full-time employees to develop and implement CSA since 2005, with up to 40 of its staff used on a limited basis, although much of CSA’s development has been performed by contractors, the GAO says. The agency says it needs 98 new full-time employees for CSA implementation in FY2012, at a cost of $4.7 million. These new employees are needed to handle the CSA intervention and enforcement workload in the field, the agency says. If that need is not met, there will be less enforcement, the FMCSA says. According to FMCSA officials, once nationwide training of investigators and inspectors has been accomplished this summer, the agency will roll out its full range of interventions nationwide. Then, in 2012, the agency hopes to finalize a rule that will allow it to use the CSA scoring system to determine whether carriers are fit and safe to operate. ◆

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Texting ban now in effect for hazmat drivers A ban on texting is now in effect for drivers operating commercial motor vehicles (CMVs) containing a placardable quantity of hazardous materials or select agents or toxins. The new rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA) is part of a larger effort by the U.S. Department of Transportation to end the practice of distracted driving among all drivers. The Federal Motor Carrier Safety Administration (FMCSA) adopted a texting ban last year for CMV drivers operating in interstate commerce, but that ban does not extend to intrastate haulers of hazardous materials like the PHMSA rule does. The PHMSA ban applies to drivers of vehicles containing: • A quantity of hazardous materials requiring placarding under 49 CFR Part 172; or

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• Any quantity of a select agent or toxin listed in the Department of Health and Human Services “Select Agents and Toxins” regulations. The ban, which took effect on March 30, 2011, amends 49 CFR 177.804 to say that motor carriers and drivers cannot “engage in, allow, or require texting while driving” in accordance with 49 CFR 392.80 of the Federal Motor Carrier Safety Regulations. “Texting” means manually entering alphanumeric text into, or reading text from, an electronic device. It includes, but is not limited to, short message service (SMS), e-mailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or entry, for present or future communication.

Texting does NOT include: • Reading, selecting, or entering a phone or extension number, or voicemail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a phone call; • Inputting, selecting, or reading information on a GPS or navigation system; or • Using a device capable of performing multiple functions (e.g., fleet management systems, dispatching devices, smart phones, citizen band radios, music players, etc.) for a purpose that is not otherwise prohibited. “Driving” includes being temporarily stationary because of traffic, a traffic control device, or other momentary delays (see §392.80). The new rule appeared in the Federal Register on February 28, 2011, and is available at www.jjkeller.com/thm. ◆

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FMCSA amends saddle-mount braking rules The Federal Motor Carrier Safety Administration (FMCSA) is proposing to eliminate the need for operational brakes on the last saddlemounted truck or tractor in a triple saddle-mount combination, except when a full mount is present. Currently, federal safety regulations require operational brakes on any wheel of a saddle-mounted vehicle that is in contact with the roadway.

The proposal comes in response to a petition from the Automobile Carriers Conference (ACC) of the American Trucking Associations. The group contends that the current braking rules degrade the braking performance of these combinations because the lightly loaded axle of the last (fourth) vehicle tends to lock up under heavy braking, potentially increasing the stopping distance.

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49 CFR 393.52(d) currently requires triple saddle-mounts to be able to stop within 40 feet or less from a speed of 20 mph. Vehicles tested by the ACC complied with that standard, but the group found that at 40 and 55 mph, stopping distance was reduced when the rearmost axle brakes were disabled. “These test results demonstrate that triple saddle-mount See Brakes, p. 13 11

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PHMSA flexes its enforcement muscles The Pipeline and Hazardous Materials Safety Administration (PHMSA) is implementing new enforcement authority granted to it by Congress in 2005. Under new rules the agency published on March 2, 2011, PHMSA now has procedures in place to: • Open packages to identify undeclared or non-compliant shipments, when the person in possession of the package refuses a request to open it;

• Temporarily detain and inspect potentially non-compliant packages; and • Issue emergency orders — such as recalls and out-ofservice orders — to address unsafe conditions or practices posing an imminent hazard. Despite this new authority to disrupt hazardous materials shipments, the agency says it has no plans to change its inspection practices and the rule “is not likely to result in additional packages being opened.”

Rather, PHMSA says the new rule allows it “to respond immediately and effectively to conditions or practices that pose serious threats to life, property, or the environment” when hazardous materials are shipped in a non-compliant manner. The new authority was granted under the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005. The rule takes effect on May 2, 2011. ◆

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New protections proposed for cargo tank drivers The Pipeline and Hazardous Materials Safety Administration (PHMSA) has proposed a new rule designed to protect cargo tank drivers and the public during the loading and unloading of hazardous materials. The proposal would require additional training for employees and new safety requirements for motor carriers and facilities that transfer hazardous materials to and from cargo tank motor vehicles. According to PHMSA, the most dangerous part of transporting hazardous materials by cargo tank motor vehicles occurs when the materials are being transferred by hose or pipe between the holding facility and the truck transporting it. Data show that human error and equipment failure cause the greatest number of incidents during loading and unloading operations,

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sometimes with tragic consequences.

If finalized, the proposed rule would require: • Practice drills and classroom training of truck drivers and other workers who load or unload hazardous materials; • Training on automatic valve shutdown to ensure the shutdown systems are in place and that employees know how to use them; and • Development of inspection and maintenance programs to ensure the safety of hoses, valves, and other equipment used in loading and unloading.

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“Between October and December 2010, five of the six incidents involving death or major injury were related to the loading and unloading of hazardous materials,” said PHMSA Administrator Cynthia Quarterman. “We believe these proposed changes will increase safety and ultimately reduce the likelihood of catastrophic hazardous material incidents during loading and unloading.” The proposal comes partly in response to recommendations from the National Transportation Safety Board and Chemical Safety Board, stemming from several fatal and/or serious accidents over the past 10 years. The proposal appeared in the Federal Register on March 11, 2011, and is available online at www.jjkeller.com/ thm. The public is invited to submit comments until May 10, 2011. ◆

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Parking-space monitoring systems fail to perform The lack of parking spaces for commercial motor vehicles is a constant struggle for many drivers, and it’s a problem that can lead to drive fatigue and violations of the hours-of-service rules. That’s why the Federal Motor Carrier Safety Administration (FMCSA) has been looking for a technological fix to the parking problem by trying to find a system that can help drivers find open parking spaces. Over the past few years, the agency has tested two systems designed to monitor and report the availability of public park-

ing spaces to drivers on the road, and the results are in. Unfortunately, neither system is accurate enough to be put into widespread use, the FMCSA says. One test involved an off-theshelf, video-based monitoring system at the Charlton Westbound Service Center, a public truck parking area on the Massachusetts Turnpike. Test results indicate that while the system was able to detect the presence of vehicles accurately during daylight hours, it failed to accurately detect vehicle length and had trouble detecting vehicles at night.

The other test involved a system that relies on magnetometry, which detects the presence of a truck by a disturbance in the earth’s magnetic field. This test was done at a private truck stop on U.S. 1 in Wrentham, MA, and at a public rest stop on I-95 in Mansfield, MA. The system undercounted vehicles and failed to classify commercial vehicles accurately, the FMCSA says. The agency indicated that it would conduct additional field tests in the future using other technologies. ◆

Brakes, from p. 11

for operational brakes on the last saddle-mounted truck in a triple saddlemount combination; and • Amend §393.71(c)(4) to require that a double or triple saddle-mount with any vehicle full-mounted on it have effective brakes acting on any wheels that are in contact with the roadway.

ACC claims that its members transport more than 96 percent of all trucks moved by the saddle-mount method. The proposal appeared in the Federal Register on February 22, 2011. Comments that were submitted in response to the rule can be viewed online at www.regulations.gov under docket number FMCSA-20100271. ◆

time impacts their ability to meet hours-of-service limits. • About 65 percent reported lost revenue as a result of detention time. • About 43 percent identified limitations in facilities, such as the lack of sufficient loading and unloading equipment or staff, as a cause of detention time. • About 39 percent cited the product not being ready for shipment.

• Other factors include poor service provided by facility staff, facility scheduling practices that may encourage drivers to line up hours before the facility opens, and factors not under the control of the facility, such as drivers filing paperwork incorrectly. The GAO says federal action to address detention time would require “careful consideration” to prevent any unintended consequences. ◆

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driveaway combinations … perform better when there are no brakes on the rearmost towed unit,” the FMCSA concluded. Based on the test results, the FMCSA is proposing two changes as requested by ACC: • Amend §393.71(a)(3) to eliminate the requirement

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Detention, from p. 4

but GAO interviews with over 300 truck drivers found that: • About 59 percent reported having detention time in the past two weeks, and over two-thirds had detention time within the last month. • For those drivers that reported previously experiencing detention time, about 80 percent said detention

© J. J. KELLER & ASSOCIATES, INC. ®

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Letter, from p. 3 The letter outlines possible consequences of continued safety problems and provides instructions for accessing motor carrier safety data in the Safety Measurement System (SMS).

How do I respond? Motor carriers that receive warning letters should review their safety data in order to develop strategies that will make their operations compliant with safety regulations. Continued poor performance may lead to more intensive interventions. Motor carriers are not required to send a written response to the FMCSA when they receive a warning letter.

Check your data

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What are percentiles? The SMS assigns a ranking or percentile that allows the safety performance of a motor carrier to be compared with that of its peers — motor carriers with similar operations and number of safety events. The percentile is computed on a scale from 1 to 100. A lower percentile means better compliance with safety regulations than a higher percentile. For example, if a carrier has a BASIC in the 10th percentile, it means that only 10 percent of similarly sized and inspected carriers demonstrated better compliance in that BASIC. If a carrier does not have a percentile, it generally means the carrier has not had enough inspections to allow for an analysis of its records. If a carrier’s percentile crosses above a certain threshold, then an “intervention” is likely. Interventions are enforcement actions taken by the FMCSA, and include warning letters, increased inspections, audits, and other actions. Current intervention thresholds are as follows: • For the unsafe driving, fatigued driving, and crash indicator BASICs: 65% for general carriers, 60% for hazmat carriers, and 50% for passenger carriers.

• For the driver fitness, drugs/alcohol, vehicle maintenance, and cargo-related BASICs: 80% for general, 75% for hazmat, and 65% for passenger.

How are alerts assigned? A motor carrier can receive an alert in a BASIC in one of two ways: • Poor on-road performance over the past 24 months; or • A serious violation cited during an investigation within the past 12 months.

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Take action!

Motor carriers that do not improve, may be subject to more intensive interventions, such as full or focused compliance reviews or onsite or offsite investigations. Don’t wait, improve safety now! • Conduct detailed data analysis. Download violation data into a spreadsheet for further analysis. Sort the data by driver, date, location of inspection, vehicle, vehicle type, and violation. Analyze the data for any trends to determine the root cause(s) of any safety problem(s) and review the data with your management team. • Address safety issues. Develop and execute strategies to improve compliance with safety regulations and prevent more intensive interventions. • Review SMS data monthly to monitor progress. CSA scoring information can be viewed online at http://ai.fmcsa.dot.gov/sms. ◆

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Motor carriers can log in to the SMS at http://ai.fmcsa.dot.gov/sms with their U.S. DOT number and PIN to access safety data. Access is also available through the FMCSA Portal at https://portal.fmcsa.dot.gov. • Log in to review data. Log in to the SMS to examine data, focusing attention first on the BASICs that are over or near the intervention threshold (see below). • Ensure data accuracy. Ensure that data listed is accurate and belongs to the appropriate U.S. DOT number. If you believe data is incorrect, submit a request for data review through the DataQs system. • Examine violation types. Examine the summary of

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violations received and determine which violations occur most frequently, especially those with the highest severity weights.

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© J. J. KELLER & ASSOCIATES, INC. ®

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Agency strengthens consumer protections The Federal Motor Carrier Safety Administration (FMCSA) has new rules to protect consumers who use household goods brokers to move their property across state lines.

Starting January 1, 2012, such brokers will have to hold increased insurance coverage and provide a variety of information to consumers before contracting a move, including their USDOT number, estimates of moving charges and

brokerage fees, an FMCSA educational pamphlet, and a statement indicating the broker is not a motor carrier. For more details, visit www.protectyourmove.gov. ◆

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State Highlights ALABAMA Metal coil proposal The Alabama Department of Public Safety (DPS) has issued a proposal that would increase the number of training and certification options available for haulers of metal coils. Alabama law requires training and certification of commercial motor vehicle operators who transport metal coils on any highway, road, or interstate inside Alabama when the load has an origination or destination in Alabama. Currently, this training is provided via a single source. The proposal would add two options for training and certification. The first option would allow Alabama to recognize and accept as certification an endorsement on a driver’s state commercial driver’s license that specifically notes authorization to haul metal coils in the licensing state. Currently, New York is the only state that requires and issues a metal coil endorsement for drivers who haul this type of cargo.

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The second proposed option would allow a motor carrier to provide the training and issue certification if documentation regarding the carrier’s training is submitted to the DPS. The carrier would then receive access to a website that would allow the issuance of training certificates.

Nebraska has adopted Parts 382, 385, 386, 387, 390-393, and 395-398 of the Federal Motor Carrier Safety Regulations (FMCSRs) as they existed on January 1, 2011. The adoption was effective February 22, 2011.

In 2008, PUCO applied the state’s motor carrier safety rules to private CMVs with a gross vehicle weight (GVW) of 10,001 pounds or more that transport property or passengers on a not-for-hire basis within Ohio. The Commission later delayed active enforcement of the rules until 2012 while it conducted an outreach program to educate affected carriers. “Based on feedback from interested parties, the Commission finds it prudent to rescind the rules while changes to the rules are considered,” PUCO stated. “As a result, roadside educational stops for these affected carriers will no longer take place.”

OHIO

SOUTH DAKOTA

Rule rescission

FMCSR adoption

The Public Utilities Commission of Ohio (PUCO) has rescinded a controversial rule that required intrastate private commercial motor vehicles (CMVs) weighing less than 26,001 pounds to comply with Ohio’s motor carrier safety rules.

South Dakota has adopted Parts 387 and 390-397 of the Federal Motor Carrier Safety Regulations (FMCSRs), as amended through January 1, 2011. This adoption is effective July 1, 2011. ◆

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FMCSR adoption

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Regulations Calendar 6/7/2011 Roadcheck

The following are upcoming rulemaking actions and significant, pending compliance deadlines related to motor carrier safety. The entries are arranged in date order.

The Commercial Vehicle Safety Alliance has set June 79, 2011, as the dates for its next Roadcheck inspection event.

4/27/2011 Wetlines Proposal

7/26/2011 Final HOS Rule

Carriers now have until April 27, 2011, to submit comments on a proposal to require the purging of flammable liquids from wetlines on cargo tank motor vehicles that are not equipped with damage protection. See MCSR, 4/11, p.13.

5/23/2011 EOBR Proposal

July 26, 2011, is the courtimposed deadline for the FMCSA to issue the final version of its proposed hours-ofservice rules. See related article, p.1.

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Under new rules issued July 27, 2009, three-axle tractors with a GVWR of 59,600 pounds or less must meet reduced stopping-distance requirements by August 1, 2011.

9/11/2011 Brake Safety Week

Roadside inspections across North America will emphasize

11/25/2011 Entry-Level Training

A new rule requiring behind-the-wheel and classroom training for drivers who must hold a commercial driver’s license is expected in late November 2011.

EDITOR: Daren B. Hansen EDITORIAL DIRECTOR: Webb A. Shaw CONTRIBUTING EDITORS: Kathy L. Close, Jill M. Schultz

ISSN 1092-3101

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12/9/2011 NRCME

A new rule establishing a National Registry of Certified Medical Examiners has been delayed until at least December 2011. ◆

All rights reserved. Neither the Newsletter nor any part thereof may be reproduced in any manner without the written permission of the publisher. Due to the constantly changing nature of government regulations, it is impossible to guarantee the absolute accuracy of the material contained herein. The Publisher and Editors, therefore, cannot assume any responsibility for omissions, errors, misprinting, or ambiguity contained within this publication and shall not be held liable in any degree for any loss or injury caused by such omission, error, misprinting or ambiguity in this publication. This publication is designed to provide reasonably accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the Publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.

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A new Federal Drug Testing Custody and Control Form must be used for all mandatory drug tests beginning October 1, 2011 (see MCSR, 11/10, p.7).

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10/1/2011 Drug Testing Form

P M A 8/1/2011 Brake Standards

Comments on the newly proposed changes to the federal rules for electronic on-board recorders (EOBRs) are now due by May 23, 2011. The proposal would require EOBRs for about 500,000 interstate motor carriers. See related article, p. 2.

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brake condition during this year’s Brake Safety Week, to be held September 11-17, 2011.

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