A Big Win for the Industry!

FMCSA recently published a final rule regarding the annual Certificate of Violations process.

By Tim Smith

A big win!

The Certificate of Violations Rule Change

FMCSA recently published a final rule regarding the annual Certificate of Violations process, commonly referred to as the “Annual COV”.

This article will address how it affects you, the carrier.

The Final Rule, effective May 9, 2022, eliminates the requirement found in 49 CFR 391.27, “Each motor carrier shall, at least once every 12 months, require each driver it employs to prepare and furnish it with a list of all violations of motor vehicle traffic laws and ordinances (other than violations involving only parking) of which the driver has been convicted or on account of which he/she has forfeited bond or collateral during the preceding 12 months”.

What It Means To Carriers

For years, this requirement has been a labor-intensive process and cost for carriers. In many cases, this can easily consume three or more hours of labor between everyone involved.

Easy math reflects 3 hours per COV X $25 per hour. In a fleet of 300, this will reflect a costs savings of $22,500! (3 x 300 x $25 = $22,500).

Failing to capture the documents could have also led to penalties and fines from FMCSA if not presented as a part of the Driver Qualification file. Plaintiff’s attorneys have also used this process, or the lack of adherence to it, as a “bad fact” in arguments they make that may ultimately lead to nuclear verdicts. All these aspects have been eliminated with the release of this Final Rule.

This is a HUGE win for the industry and FMCSA should be commended for their actions in moving this to a Final Rule!

However, this doesn’t absolve the carrier from being aware of violations a driver receives. There is still a requirement, 391.25, which requires a carrier to obtain, review, and document the driving records from each state that a driver was licensed in, once every 12 months, and determine that the driver is still qualified to operate a CMV. The documentation process must include who reviewed the violation and when they reviewed it.

Many carriers partner with a third-party license monitoring service to automate this process. While this is generally considered the “best practice”, when processed correctly, it also meets the requirement of 391.25. This is specifically addressed by FMCSA in their “Interpretations, Part 391, Question 4”. You can find that specific information here.

It is important to note that there are still requirements to obtain and review driving records from drivers operating or licensed in Canada and Mexico. More information can be found here.

Note: This should not be considered a comprehensive review of the Final Rule but does give some of the immediately impactful highlights.

What Should You Do Now?

The steps are straight forward and clear cut.

  1. Confirm that your organization has the right processes in place and that they are being executed as expected. Don’t wait until you are notified of a pending audit or worse, a crash.
  2. Verify that a third-party monitoring service is in place, there are at least two different individuals that are being notified when an “alert” is raised, and at least monthly, leadership is reviewing the previous month’s alerts.
  3. Monthly, leadership should spot-audit the documentation process to ensure proper execution.
  4. Document this process and incorporate it into your “story” at your next renewal period.

Taking these steps will ensure compliance with FMCSA, demonstrate a “beyond compliance” approach which is attractive to insurers, and limit a plaintiff’s attorney’s ability to build a case against you that is rooted in monitoring your driver’s credentials or qualifications to operate a CMV.

Make every mile a safe mile, a productive mile, a Pivotal Mile!

Contact Tim:
Phone: (630) 310-6724
Email: tim@pivotalretention.com
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