In This Issue:
Do the DOT Regulations Apply to My Vehicle?
With winter weather and increased road hazards upon us, as well as state and local law enforcement agencies, including the Department of Transportation (DOT), looking to generate revenue through a variety of commercial motor vehicle (“CMV”) violations, motor carriers and companies which operate their own vehicles in commerce should know whether your vehicle is subject to DOT regulation? For instance, do DOT regs apply to a cargo van? A horse trailer? An airport shuttle? If you wake up at 2:00 a.m. in a cold sweat seeking answers to these nagging questions, read on.
Section 390.3 of the DOT regulations "are applicable to all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce." Part 383, provides the following additional detail: "Commercial Driver's License Standards; Requirements and Penalties, are applicable to every person who operates a commercial motor vehicle, as defined in §383.5 of this subchapter, in interstate or intrastate commerce and to all employers of such persons."
Fair enough. If you cross state lines in a CMV with property or passengers, you are subject to DOT regulations. But how are you to know what constitutes a CMV? Fear not! The DOT loves to define terms and this instance is no exception. A good rule of thumb is that a CMV is any vehicle over 10,001 pounds, but §383.5 defines a CMV more specifically as follows:
A commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle:
- Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater
- Is designed or used to transport more than eight passengers (including the driver) for compensation
- Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation
- Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.
Conversely, vehicles which meet the following criteria are specifically exempt:
- School bus operations
- Fire, rescue and ambulance services
- Airport shuttles
- The occasional transportation of personal property by individuals not for compensation nor in the furtherance of a commercial enterprise
- The operation of commercial motor vehicles designed or used to transport between nine and 15 passengers (including the driver), not for direct compensation, such as airport shuttles, provided the vehicle does not otherwise meet the definition of a commercial motor vehicle
- The operation of commercial motor vehicles designed or used to transport between nine and 15 passengers (including the driver) for direct compensation, such as limousine and cab services, provided the vehicle is not being operated beyond a 75 air-mile radius (86.3 statute miles) from the driver's normal work-reporting location, and provided the vehicle does not otherwise meet the definition of a commercial motor vehicle
Therefore, the primary factor in determining whether a vehicle is a CMV and subject to DOT regulations is the vehicle’s gross weight, but a number of factors may also be relevant.
Contact for more information: Stephen A. Oakley
How Long Does the DOT Require Records Be Kept?
As the years role by and the boxes of records pile up, you may wonder just exactly how long the Department of Transportation (DOT) requires you to keep company records. Do you have to keep them forever? Just seven years like tax returns? Or can you have a beer and a late night shredding party moments after learning of a roll-over accident?
With the exclusion of the last choice, the DOT’s answer is that it depends. It depends primarily on what type of document it is. Below is a list of the various record retention periods for different types of documents.
- Drive Vehicle Inspection Reports. Under Section 396.9, if the DOT performs a Driver Vehicle Inspection Report, that report must be maintained by the carrier for 12 months from the date of inspection. This includes reports prepared at a roadside inspection or a weigh station, performed by either a DOT inspector or state trooper.
- Inspection, Repair and Maintenance Records. Under Section 396.3, if the vehicle (which includes trailers) is in the control of a company for 30 days or more (which may exclude certain owner operators), the company must retain those records for a minimum of 18 months after the vehicle has left the control of the company. Under this rule, even if the tractor or trailer was sold by company A to company B, company A must keep the inspection, maintenance and repair records for 18 months after the sale.
- Driver Maintenance and Performance Reports. Under Section 396.11, every driver must prepare a written report regarding the condition of a variety of maintenance and performance aspects of the vehicle after every day of driving. This means that, in addition to log books, the driver must indicate whether various systems and components, such as brakes, horn, etc., are functioning normally or require inspection or repair. These types of daily maintenance and performance reports must be maintained by the company for a period of three months from the date the report was prepared.
- Annual Equipment Inspection Records. Under Section 396.17 and 396.21, every motor vehicle must go through a full inspection at least once every 12 months and a record of the inspection be kept for at least 14 months.
- All Other Records. Appendix A to Part 379 provides for a complex series of retention periods for more than 50 different categories of documents. The longest retention period is three years beyond the expiration or cancellation of the license or agreement and three years beyond the disposition of the equipment.
If maintaining records for different periods of time is problematic, keeping records for a minimum of three years beyond the expiration or cancellation of the license or agreement, and three years beyond the disposition of the equipment, is generally a safe rule of thumb since this is the longest record retention requirement by the DOT. However, to ensure that documents are not destroyed prior to the mandatory record retention period, consulting with an attorney is essential before destroying any sensitive documents. The company may request a ruling from the Secretary of the DOT regarding the required retention of any document. After the required retention periods, the records may be destroyed at the discretion of each company’s management.
Contact for more information: Stephen A. Oakley
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. |