September 28, 2015:  MCM Weekly Newsletter

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Sept 30         Driver of the Month Nominations due

Oct 14           Billings Chapter Safety Meeting
                      Location:  H.O.T. Express, 11:30 a.m. - 1:00 p.m.
                      Speaker:  Jeff Steeger
                      Topic:  Load Securement

Oct 15           Missoula Chapter Safety Meeting
                      12:00 p.m. - 1:00 p.m.
                      Location, Speaker & Topic TBA

Nov 16-20     SafetyFestMT:  Billings
                      Billings Hotel & Convention Center
                      1223 Mullowney Lane, Billings, MT
Triple Trailers Letter

If you are operating Triple Trailers in Montana you will soon receive a notice like this from MDT informing you of the law change. Instead of issuing permits they will remind their officers and MHP that conditions have change
September 24, 2015
Company Name
City, ST, Zip
Our records show that the following annual permits were issued to your company to pull a triple trailer combination on the interstate system in Montana. This is to inform that the 2015 Legislative Session increased the speed that you are able to operate from 55 mph to 65 mph or as posted. Please keep a copy of this letter with your permits for inspection. Thank you
Permits issued to (Company Name)
Dan Kiely
License and Permit Bureau Chief
Motor Carrier Services Division
Montana Department of Transportation
ATA Clarifies Timeline for Suspension of Hours of Service Restart Restrictions
As of Sept. 30, the end of the federal fiscal year, draws near, some anxiety has emerged in the trucking industry regarding the fate of the suspension of the 34 hour restart restrictions. As many are aware, Congress temporarily suspended the 34 hour restart restrictions late last year (2014) and ordered the Federal Motor Carrier Safety Administration to study whether or not requiring that a 34 hour restart include two consecutive off-duty periods of time between 1 a.m. and 5 a.m. and restricting its use to once every 7 days improves safety. Until this study is completed and has been transmitted to Congress, the restart restrictions cannot be reinstated by FMCSA.

In May 2015, FMCSA began collecting data on 232 drivers as part of the congressionally-required study. Data collection is expected to end later this month and the finalized report is not anticipated to be transmitted to Congress until late this year or early next. Not until FMCSA issues their report to Congress, can they reinstate and begin enforcing the aforementioned 34 hour restart restrictions once again. Even then, congressional action or study findings showing no improvement in safety may impede or further delay reinstatement. For more information, contact P. Sean Garney at  
CARB Issues Tighter Fuel Emission Rules
In line with a policy goal of California Gov. Jerry Brown (D) that calls for a greenhouse-gas-reduction target of 40% below 1990 levels by 2030, the California Air Resources Board announced Sept. 25 that it has opted to "readopt" a Low Carbon Fuel Standard (LCFS) that requires a 10% reduction in the "carbon intensity of transportation fuels" by 2020.

The board also said it has adopted
a regulation on Alternative Diesel Fuels (ADF).

This measure establishes a three-step process beginning in 2016 "to create a path to bring cleaner diesel substitutes into the market."

The regulation also establishes requirements and fuel specifications for biodiesel to ensure the emissions of nitrogen oxides (NOx) from biodiesel use will not increase and will be reduced over time. CARB noted that biodiesel and other ADFs can help producers achieve their target under the low-carbon fuel standards.

These actions follow an executive order issued by Gov. Brown in July that
directs state agencies to craft an "integrated action plan" by July 2016 that would set "clear targets to improve freight efficiency, transition to zero-emission technologies [for cars and trucks] and increase competitiveness of California's freight system."

The moves build on "years of successful implementation and will continue reducing carbon emissions from the transportation sector," said CARB Chair Mary D. Nichols. "Transportation is the largest source of greenhouse gases in the state," she noted. "This program is a key element of California's plans to enact Gov. Brown's
Executive Order mandating a 50% cut in petroleum use by 2030."

According to CARB, the LCFS ensures that transportation fuels used in California meet a baseline target for carbon intensity. That target is reduced each year. If a product is deemed above the annual carbon intensity target, the fuel incurs deficits.

If a product is below the target, the fuel generates credits that may be used later for compliance or sold to other producers who have deficits. The board said that, so far, fuel producers are "over-complying with the regulation."

California determines carbon intensity through a life-cycle analysis that measures the amount of carbon generated during the extraction, production, transportation and combustion of a fuel.

CARB noted that the decline in the LCFS carbon-intensity targets was "frozen due to a legal challenge." That was resolved by readopting the LCFS rule following public testimony delivered during a board meeting.

The readopted version of the LCFS includes modifications CARB said were developed with stakeholder input, including:
  • Incorporating additional cost containment in response to stakeholder concerns about possible price spikes by including a mechanism to cap LCFS credit prices
  • Streamlining the application process for alternative fuel producers seeking a carbon intensity score
  • Improving the process for earning LCFS credits by charging electric vehicles
As for the ADF regulation, Rajkovacz said that has been "in the works for quite some time as regulators singularly focus on carbon neutral solutions to fossil fuel usage.
Sleep Apnea in Truckers Continues to Confuse
I've known people, including truckers, who were diagnosed with sleep apnea and reported feeling an amazing, life-changing difference after they started using a C-PAP machine at night.

That wasn't the case for, an owner-operator in Fargo, ND. He finds the mask on his AutoPAP maching "highly uncomfortable" and says he doesn't feel any different.

The story says local truckers have been far more likely to be sent for sleep testing following last year's implementation of the National Medical Examiner Registry.

A North Dakota Motor Carriers representative said he believes many of these doctors are recommending the expensive sleep tests (which are not always covered by insurance) based solely on the driver's neck size.

"A number of factors increase the likelihood of someone having sleep apnea," not just neck size, Arik Spencer, executive vice president of the association, was quoted as saying in the article. "Unfortunately, I think a lot of clinics are using the training to try to generate additional profit."

A large neck size and body mass index do make one more likely to have sleep apnea, but they should not be the only criteria. Rather, they should be an indication for doctors to delve a little deeper to see if patients should be sent for a sleep study.

At the moment, however, there's no federal law or regulation stating that.

About sleep apnea

In obstructive sleep apnea, the most common type, the sleeping patient's tongue falls back against his or her soft palate, and the soft palate and uvula fall back against the back of the throat, effectively closing the airway. When the sleeper expands the chest to inhale, no air enters the lungs.

People with untreated sleep apnea stop breathing repeatedly during their sleep, sometimes hundreds of times during the night and often for a minute or longer. In most cases the sleeper is unaware of these breath stoppages because they don't trigger a full awakening. But they do keep you from getting the restful sleep you need.

National Heart, Lung and Blood Institute (part of the government's National Institute of Health) says doctors diagnosing sleep apnea "will ask you questions about how you sleep and how you function during the day."

For instance, a common sign of sleep apnea is fighting sleepiness during the day, at work, or while driving. You may find yourself rapidly falling asleep during the quiet moments of the day when you're not active.

"Your doctor also will want to know how loudly and often you snore or make gasping or choking sounds during sleep. Often you're not aware of such symptoms and must ask a family member or bed partner to report them.

"Your doctor will check your mouth, nose, and throat for extra or large tissues...

Adults who have sleep apnea may have an enlarged uvula (U-vu-luh) or soft palate.

The uvula is the tissue that hangs from the middle of the back of your mouth. The soft palate is the roof of your mouth in the back of your throat."

Others signs and symptoms of sleep apnea include:
  • Morning headaches
  • Memory or learning problems and not being able to concentrate
  • Feeling irritable, depressed, or having mood swings or personality changes
  • Waking up frequently to urinate
  • Dry mouth or sore throat when you wake up
Confusion over rules and guidelines

In 2000, and again in 2008 and 2012, the medical review board (MRB) and medical expert panel made recommendations to the Federal Motor Carrier Safety Administration (FMCSA) concerning screening, diagnosis, treatment, and monitoring of commercial drivers for obstructive sleep apnea (OSA). These guidelines have been inconsistently applied across the industry by and among companies, owner-operators, drivers, and DOT medical examiners-resulting in uncertainty, confusion, and the perception of unfairness. - See more at:

In 2000, 2008 and 2012, the Medical Review Board made recommendations to the
FMCSA about screening, diagnosis, treatment and monitoring for commercial drivers with obstructive sleep apnea.

In 2013,
in response to industry concerns about the confusion over sleep apnea diagnosis and commercial driver medical certification, a law was passed requiring the FMCSA to follow a formal rulemaking process allowing industry comment, rather than allowing guidance to become a "de facto" regulation. (FMCSA said it would propose such a rule, but there's no sign of it yet.)
Some training facilities were skirting the law by telling examiners to test for sleep apnea.

But all that didn't solve the problem. Last fall, due to trucking industry complaints,
two U.S. representatives stated in a letter to the FMCSA that some training facilities were skirting the law by telling examiners to test for sleep apnea.

Earlier this year, FMCSA
issued a bulletin on sleep apnea to medical examiners and training organizations. The stated purpose is to "remind healthcare professionals on

FMCSA's National Registry of Certified Medical Examiners of the current physical qulaifications stanard and advisory criteria concerning the respiratory system, specifically how the requirements apply to drivers that may have obstructive sleep apnea."

The document emphasizes that "it is clear that FMCSA has considered OSA a respiratory dysfunction that interferes with oxygen exchange. And the agency recommends that, if a medical examiner believes the driver's respiratory condition is in any way likely to interfere with the driver's ability to safely control and drive a commercial motor vehicle, the driver should be referred to a specialist for further evaluation and therapy."

The bulletin says, "Medical examiners may exercise their medical judgment and expertise in determining whether a driver exhibits risk factors for having OSA and in determining whether additional information is needed before making a decision whether to issue the driver a medical certificate and the duration of that medical certification."

It specifically says its "advisory criteria do not include screening guidelines," but it "encourages medical examiners to consider ... common OSA symptoms such as loud snoring, witnessed apneas, or sleepiness during the major wake periods, as well as risk factors and condisder multiple risk factors such as body mass index (BMI), neck size, involvement in a single-vehicle crash, etc."

So while the FMCSA "encourages" doctors to consider these things, ultimately it's totally up to the examiner's discretion. From my reading of the bulletin, apparently if he or she believes the best practice is to automatically send drivers with a certain BMI or neck size to get a sleep test, that's perfectly legitimate.

Yes, sleep apnea is a serious condition. Daytime sleepiness obviously is a danger for drivers behind the wheel. And from a personal standpoint, sleep apnea puts you at higher risk for heart problems, high blood pressure and stroke, and the lack of oxygen can cause cognitive problems. If you have these symptoms and your doctor hasn't talked to you about sleep apnea, bring it up at your next exam. The National Heart, Lung, and Blood Institute suggests keeping a sleep diary for a couple of weeks beforehand and bringing it to your appointment.

But if your doctor is sending drivers for expensive sleep testing based solely on neck size or BMI - especially if that practice has any ownership in a sleep-testing clinic - I would look for a different physician.
Hours of Service Drivers: Application for Exemption; American Trucking Associations, Inc.
As a service to MCM members, I answer questions from Association members regarding the Federal Motor Carrier Safety and Hazardous Material regulations and respond via telephone and/or e-mail.

Recently I received a question from a member regarding the notice, published in the Federal Register on August 21, 2015 by the FMCSA, regarding the hours of service and an application for an exemption from the required 30 minute rest break during the driver's work day.

The FMCSA granted an exemption from the requirement for a driver to take a 30 minute rest break during his work day for persons who transport hazardous materials that require a Security Plan, which also includes a provision for remaining in attendance of a vehicle that is used to transport hazardous materials. This exemption allows a driver to remain in an
on duty, not driving status while meeting the rest break requirement. However there are some stipulations that have to be met before a Company can utilize the exemption.
The stipulations include, the Motor Carrier must have a satisfactory safety rating or be unrated, drivers must have a copy of the exemption document in their possession while operating under the exemption and the Motor Carrier must notify FMCSA, within 5 days, of any accident that occurs while the driver is operating under the exemption.
Once a Motor Carrier and its driver meet all of the stipulations for the exemption, they may utilize a period of 30 minutes of on duty time when they are in attendance of their motor vehicle and cargo in lieu of taking 30 minutes off duty to meet the requirements of the hours of service regulations. However, the driver may not perform any other function other than being in attendance of the vehicle and cargo during the time used for the rest break and the driver must note in the remarks section of the record of duty status that the driver is using the exemption to comply with the requirements of the hours of service regulations.
Unless the Motor Carrier feels a need to require drivers remain in attendance of the vehicle and cargo during the rest break or the regulations require the driver remain in attendance at all times for a specific cargo, there is little or no advantage for the driver or motor carrier in using this exemption. The regulations for development of a Security Plan, unless there are additional requirements elsewhere in the regulations, do not require the Security Plan to include mandatory attendance at all times. Additionally, the hours of service regulations, allow, in the definition of on duty time, for "resting in a parked vehicle" as off duty time, as long as the driver is not performing any other function for the motor carrier. This allows the driver to remain with the vehicle during the required 30 minute rest break and still record the time in the record of duty status as off duty.
If you have questions concerning this or any other part the FMCSR, please contact the Motor Carriers of Montana at (406) 442-6600 or Albert Calkin, Transportation Safety Consultant at (406) 227-0745.
September Driver of the Month Nominations
We are still accepting driver of the month applications for September 2015. You may download an application from our webpage at on our Home Page under the Driver of the Month tab.
All applications must be in by Wednesday, September 30 at 8:00 a.m.