Mileage tracking: Will your records stand up to an IRP audit?

What is used oil?

The EPA defines used oil as any petroleum-based or synthetic oil that has been used and is contaminated by physical or chemical impurities. Common sources of used oil in industrial operations include:

• Motor oil and lubricants from vehicle maintenance
• Hydraulic fluids used in heavy machinery
• Metalworking fluids and coolants
• Compressor oils used in air compression systems

According to EPA regulations (40 CFR Part 279), used oil is presumed to be managed under the less stringent used oil management standards unless it meets hazardous waste criteria.

Used oil becomes hazardous waste if:

• It is mixed with hazardous waste (e.g., solvents or heavy metals)
• It contains more than 1,000 parts per million (ppm) of total halogens, unless proven otherwise, or
• It is disposed of improperly, leading to environmental contamination.

If used oil is classified as hazardous waste, it must be managed in accordance with the applicable solid and hazardous waste requirements.

EPA requirements for used oil disposal

The EPA requirements for used oil consist of three different aspects, as outlined below.

1. Storage Requirements

Use leak-proof tanks and containers made of durable, non-earthen materials (e.g., steel, plastic, or concrete). Label all used oil containers with the words "Used Oil" to prevent misidentification. Prevent leaks and spills by using secondary containment systems and regularly inspecting tanks. Never mix used oil with hazardous waste unless authorized.

2. Transportation and Disposal

Used oil generators may transport up to 55 gallons of used oil to a registered collection center without an EPA ID number. If contracting a used oil transporter, ensure they have an EPA Identification Number.

Used oil must be:

• Recycled or re-refined into new oil.
• Burned for energy recovery in approved furnaces or boilers.
• Disposed of at an authorized hazardous waste facility if deemed hazardous.

3. Spill Prevention and Cleanup

Facilities storing large amounts of used oil must have a Spill Prevention, Control, and Countermeasure (SPCC) Plan. SPCC plans establish procedures, methods, and equipment requirements to prevent oil from reaching waterways, and to contain discharges of oil.

Any spills must be cleaned up immediately, and absorbent materials must be disposed of properly. Rags and shop towels contaminated with hazardous materials may be classified as hazardous waste.

OSHA regulations for handling used oil

While the EPA focuses on environmental compliance, OSHA (29 CFR Part 1910) regulates worker safety when handling used oil. Key OSHA requirements include:

1. Personal Protective Equipment (PPE)

Workers handling used oil must wear gloves and protective clothing to prevent skin exposure. Safety goggles or face shields are also important to avoid eye contact.

2. Hazard communication (HazCom) program

Employers must label all used oil containers with appropriate hazard information and train employees on safe handling procedures and emergency response.

3. Fire and Explosion Safety

Always store used oil away from ignition sources to prevent fire hazards. Ensure storage areas are ventilated to avoid vapor buildup.

State-Specific used oil disposal regulations

Many states have stricter used oil regulations than federal laws. For example:

• California classifies used oil as hazardous waste unless it meets specific recycling criteria.
• Texas requires additional storage permits for large generators.
• New York mandates annual reporting on used oil disposal activities.

To ensure compliance, check with your state’s environmental agency for state-specific used oil disposal rules and whether used oil is considered hazardous. Additional permits for transporting or processing used oil may be necessary.

Staying compliant with used oil disposal requirements

Ensuring compliance with EPA, OSHA, and state laws is essential for safety managers and shop supervisors handling used oil. By following proper storage, transportation, and disposal practices, businesses can reduce environmental risks, improve workplace safety, and avoid costly fines.

Key to remember: By staying informed and proactive, your facility can maintain safe, sustainable, and compliant used oil management practices.

Video supports investigative report

The 14-minute video, “No Detection: Explosion …,” follows a June 2023 investigation report. When the 56-page report came out, CSB Chairperson Steve Owens said, “Our investigation found that [the company] did not have an effective program in place to assess potential hazards in its propylene process and did not have a mechanical integrity program or written operating procedures.”

The incident was compounded by emergency planning failures, says CSB. Owens argued, “This tragic incident was made even worse due to the lack of emergency response training for employees at the facility.”

Deadly incident

CSB explains that a degraded and poorly crimped rubber welding hose disconnected from its fitting inside a coating booth. That prompted a release of propylene, a flammable vapor.

By the time workers arrived at the facility the early morning of January 24, 2020, an explosive concentration of propylene had formed inside the building. As workers entered and turned on the lights, the vapor ignited, triggering an explosion. It:

• Killed two workers,
• Injured two other workers,
• Fatally injured a nearby resident, and
• Damaged hundreds of structures.

The board’s investigation later found that the company had:

• Disconnected gas detectors from a computer control system. This meant the automatic gas detection shutoff system would not alert operators to a leak. It also would not start up exhaust fans or trigger two shutoff valves to stop the flow of propylene.
• Replaced a copper tubing connection with a rubber welding hose. Rubber hose is not recommended for propylene. Oils in the gas can cause a rubber hose to form cracks and lose pliability.

OSHA citations before/after the incident

OSHA cited the company 12 years earlier for failing to inspect gas system equipment for signs of deterioration or leaks. The 2008 OSHA visit was prompted by another explosion of propylene gas.

Following the later 2020 incident, OSHA issued citations for failing to:

• Provide effective training on chemical hazards,
• Prevent explosive concentrations from accumulating,
• Ensure coating equipment was maintained gas-tight, and
• Ensure the manual shutoff valve at the propylene storage tank was closed at the end of each workday.

Safety issues found by CSB

CSB explains that the shop’s propylene amount was below the threshold for OSHA’s Process Safety Management (PSM) standard at 29 CFR 1910.119 or EPA’s Risk Management Plan (RMP) standard at 40 CFR 68. Still, the CSB investigation identified these safety issues:

• PSM — Had the company had an effective PSM program to identify and control hazards, it could have prevented the incident. Suggested PSM program elements included process safety information, process hazard analysis, management of change, mechanical integrity, and operating procedures.
• Emergency planning — The company’s emergency response plan did not address responding to a propylene gas leak. The company also failed to train its workers to recognize or respond to a propylene gas release. Hence, workers did not evacuate from the area after suspecting a propylene leak nor contact responders for help.

Owens concludes that the deadly incident could have been mitigated if the company had implemented an effective PSM system for the hazards of its coating operation. Even if a leak occurred, Owens believes an emergency response plan could have prevented the tragic loss of life.

OSHA chemical emergency preparedness may include an emergency action plan and/or an emergency response plan.

Lessons for industry

To prevent chemical incidents, CSB urges you to:

• Ensure the safety of workers who handle hazardous chemicals (and protect surrounding communities). This is regardless of whether or not the chemicals meet the threshold under PSM and RMP standards.
• Ensure gas detection, alarm, exhaust, and shutdown systems are adequately designed, maintained, inspected, and tested. The idea is to ensure reliability if your facility handles hazardous chemicals.
• Ensure a written emergency response plan is implemented. Also, ensure that it adequately addresses all actions to be taken in a release. Workers too need to be trained in the plan and participate in periodic drills.

CSB videos are recognized

The latest video comes after the board received a “Silver Play Button” award. The CSB’s video channel boasts 364K subscribers and nearly 100 safety videos. The channel has had over 65M combined views since 2007. What’s more, CSB claims that the chemical industry itself and engineering schools use the videos for chemical safety training.

Key to remember

A new CSB video covers the 2020 massive explosion at a Texas machine shop. The board urges you to implement PSM systems even if not required. CSB also presses you to ensure that workers are trained in emergency response plans.

Proposed legislation

Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.

Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.

This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.

Your restroom availability affects their health

Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.

The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.

Keys to remember

The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.

Case details

An investigation identified the facility’s clinker cooler and raw mill operations as primary sources of excess PM. Monitoring data revealed the facility consistently exceeded permitted emission limits, suggesting systemic deficiencies in pollution control systems. Further inspection pointed to potential inadequate maintenance and operation of existing baghouse filters, a critical technology for capturing airborne particles. The facility also appeared to struggle with fugitive dust emissions from material handling and storage areas, indicating a need for improved dust suppression measures.

Proactive management

The case clarifies the importance of rigorous, proactive environmental management within heavy industrial operations. To prevent similar violations, facilities should prioritize comprehensive monitoring and reporting. Continuous emission monitoring systems provide real-time data, enabling early detection of deviations from permitted limits. Regular inspections and preventative maintenance of pollution control equipment are essential. This includes ensuring baghouse filters operate within their design parameters and promptly replacing damaged or worn components.

Additionally, robust fugitive dust control plans are vital. They should address all potential sources of fugitive dust, encompassing material handling, storage, and transport. Implementing strategies such as water spraying, enclosure of conveyors, and optimized material stockpiling can significantly reduce emissions.

Beyond technology

Beyond technology, a strong environmental compliance culture is crucial. It involves employee training on environmental regulations, operational procedures, and the importance of adhering to pollution control measures. Regular audits and internal assessments can help identify potential weaknesses and ensure ongoing compliance.

Industrial facilities can minimize their environmental impact and avoid costly enforcement actions by focusing on:

• Proactive monitoring,
• Rigorous maintenance, and
• A strong compliance culture.

Choosing your base jurisdiction

When deciding where to base plate your apportioned vehicles, you may choose any jurisdiction that’s a member of IRP and where:

1. You have an established place of business,
2. The fleet you seek to register under IRP accrues distance, and
3. Records of the fleet are maintained or can be made available.

All three of those criteria must be met for a member jurisdiction to qualify as your base jurisdiction. A couple of important phrases are key to making your decision.

Member jurisdictions

Member jurisdictions under IRP include:

• All U.S. states (except Alaska and Hawaii) and the District of Columbia, and
• The Canadian provinces (except Yukon and Northwest Territory).

Established place of business

Determining what constitutes an "established place of business" is currently subjective and can vary from jurisdiction to jurisdiction. This has led to confusion, noncompliance findings, and disputes in some cases.

Efforts are currently underway to clarify the meaning of “established place of business” in the Plan. Currently, that phrase means that you must:

• Own or lease a physical structure located in the base jurisdiction, and
• Specify that street address on your application for an IRP account.

The physical structure must be open for business and staffed during regular business hours. That staff must include one or more persons employed by your company on a permanent basis (i.e., not an independent contractor). This is where general management of your company business occurs.

Records concerning your IRP fleet must be maintained or made available at this physical structure in the event of an audit.

Each state or province may require proof to verify that you have an established place of business within its jurisdiction.

Multiple locations?

If more than one member jurisdiction could qualify as your base jurisdiction, you may choose which of them you will apply to for apportioned registration.

Accruing distance

The second item in the list of requirements — accrual by a fleet of distance in the base jurisdiction — applies only to your apportioned fleet as a whole. Each individual vehicle of your fleet does not need to enter the base jurisdiction during the year.

Key to remember: Proposed revisions to the IRP will clarify confusion around the meaning of “established place of business” for applicants choosing a base jurisdiction. Understanding and complying with the current terms can help you avoid headaches.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

• Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
• Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
• Include the starting and ending times for the day and the total hours on duty on the time record for the day.

The company must retain the time record and have it available for inspection for six months.

What if the driver goes too far or works too many hours?

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

• The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
• The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
• Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
• A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
• Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
• Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
• Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
• The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
• If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

Drug & alcohol restrictions

Sections 392.4 (drugs) and 392.5 (alcohol) apply to all commercial motor vehicles (CMVs), since they use the general definition of that term from in 390.5. This definition includes both non-CDL and CDL vehicle types.

Drugs. Section 392.4 states a CMV driver can’t be on duty and possess (unless manifested), be under the influence, or use a drug or substance unless the exception in 392.4(c) is met. The rule is very broad and restricts any drug, including an over-the-counter medication, that impacts driver safety.

The exception allows for a substance, providing:

• It is administered to a driver by or under the instructions of a licensed medical practitioner;
• The licensed medical practitioner told the driver it won’t affect the ability to safely operate the CMV; and
• The drug is not a Schedule I drug, a classification given by the Drug Enforcement Administration.

Marijuana is currently a Schedule I drug, so state laws legalizing marijuana and CBD products containing marijuana don’t change the federal requirement.

Alcohol. Section 392.5 restricts alcohol use or being under the influence of alcohol while on duty or within four hours of coming on duty or operating a CMV. The regulation takes it a step further by stating the driver can’t have any measured alcohol concentration or detected presence. Like drug restrictions, drivers can’t possess (even unopened) alcohol in the CMV, unless manifested or possessed by bus passengers.

Both rules place a burden on the motor carrier by stating they can’t “require or permit” the driver to violate these requirements

Non-CDL drivers handled differently than CDL

It’s easy when it’s a CDL CMV. The carrier’s DOT testing program under Part 382 overlaps and offers instructions.

It gets tricky when the event occurs while operating a non-CDL CMV. There is no testing mechanism under DOT authority.

For alcohol, the rules require the driver to be placed out of service for 24 hours.

It becomes a licensing issue if the drug or alcohol violation is learned through an enforcement stop. A traffic conviction for driving a CMV while under the influence will result in a loss of CMV driving privileges (391.15).

However, if the violation is learned of through the motor carrier, much is left to their discretion. Consider these possible options:

• If the driver is using a drug that impacts safety or has an alcohol problem, the employer can use 391.45(g) to send the driver for a new medical exam. Drug use and a current clinical diagnosis of alcoholism both prevent medical certification. It puts the decision in the hands of the medical examiner and not the employer.
• The employer can send the driver for a non-DOT drug and/or alcohol test. However, it’s important to note that any failed or refused tests hold no DOT consequences. Company policy dictates the next move (e.g., discipline, termination, treatment). A non-DOT program must follow state and federal employment laws, which may address the consequences of a positive test marijuana. Some states restrict testing for marijuana.

When can a driver return to work?

Motor carriers are told they can’t permit a driver to violate these requirements. It is up to the carrier to decide if the driver no longer poses a safety risk. Have they stopped using drugs or alcohol?

One option to address this is to have a second-chance policy, requiring anyone failing a non-DOT test to undergo treatment. This policy should be reviewed by the HR department.

Key to remember: When a non-CDL CMV driver uses drugs or alcohol, there are no instructions to the employer on how to respond to the violation. Motor carriers are faced with creating policies and procedures that are a blend of regulation and best practice — and should always reviewed by an HR expert.

What is 392.2C?

Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.

The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.

In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.

Who must pull into a weigh station?

The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.

If the sign reads:

• All vehicles over 16,000 pounds, the driver can safely bypass the scale if under the weight threshold.
• All commercial motor vehicles, the driver should pull in. It is far better to be waived or green lighted through than to be chased down.

Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.

What happens when a driver ignores signage?

If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.

Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.

Handling violations

CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.

A violation of 392.2C may have one of several root causes, such as:

• Confusion over applicability
• Inattentiveness (missing the sign)
• Running late
• Risky behavior (taking the chance that no one will pursue)
• Concern over other violations discovered once stopped

Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.

Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.

‘State and local laws’

A violation of 392.2 is a violation of a local or state law, regulation, or ordinance. These must be obeyed due to 392.2, which reads, “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”

The confusion is that there are no paragraphs in 392.2, so there technically should be no letters following that section. However, to inform the driver, carrier, and the Federal Motor Carrier Safety Administration (FMCSA) what particular state or local law or regulation was involved, FMCSA has developed a system of suffix codes. The letters following “392.2” – the “suffix” — show which state or local law or regulation was involved.

When one of these codes is used, the officer should include a description of the specific violation in the “violation details” area on the actual inspection report. FYI: Summary roadside inspection reports (such as the ones visible in CSA’s SMS) do not show these details.

Not all 392.2 violations are used in CSA

Not all of these state and local law or regulation violations are used by the FMCSA for scoring purposes. The Compliance, Safety, Accountability (CSA) Safety Measurement System (SMS) does not use the 392.2 violations that cannot be tied to crash causation. Here are a couple of examples: 392.2UCR Failure to pay UCR fee and 392.2W Size and weight are not used.

Most common 392.2 violations

Below are the top 10392.2violations written during 2021. All of these violations are safety-related, and therefore used in the CSA SMS for scoring. The BASIC within the SMS the violation is scored in is shown following the violation description.

1. 392.2SLLS2 Speeding 6-10 miles per hour over the speed limit (Unsafe Driving)
2. 392.2C Failure to obey traffic control device (Unsafe Driving)
3. 392.2LV Lane Restriction violation (Unsafe Driving)
4. 392.2SLLS3 Speeding 11-14 miles per hour over the speed limit (Unsafe Driving)
5. 392.2WC Wheel (Mud) flaps missing or defective (Vehicle Maintenance)
6. 392.2SLLS4 Speeding 15 or more miles per hour over the speed limit (Unsafe Driving)
7. 392.2ML Failure to maintain lane (Unsafe Driving)
8. 392.2SLLSWZ Speeding work/construction zone (Unsafe Driving)
9. 392.2PK Unlawfully parking and/or leaving vehicle in the roadway (Unsafe Driving)
10. 392.2FC Following too close (Unsafe Driving)

Key to remember

In general, FMCSA does not write traffic codes. They rely on local and state agencies to do that. When state or local traffic codes are violated, it appears on a roadside inspection report as a violation of 392.2, with a suffix indicating which traffic code was involved.

DOGE and OMB review

Once the regulations have been identified, the White House Office of Management and Budget (OMB) and the Department of Government Efficiency (DOGE) will work with agency leaders to:

• Create a plan for rescinding or modifying the regulations, and
• Begin winding down their enforcement.

Executive order 14219, titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” was issued February 19, 2025.

The order exempts regulations related to the military, national security, foreign affairs, immigration, and the federal workforce.

It also directs agencies to consult with DOGE and OMB on any potential new regulations to ensure they comply with all of President Trump’s executive orders to date, including orders to:

• Remove 10 new regulations for every new one issued, and
• Freeze any pending regulations until the new administration has had a chance to review them.

The OMB is expected to issue guidance to help agencies determine how best to implement the executive orders.

Help your employees understand and appreciate their health plan

The survey results provide a national overview of what people know and don’t know about health benefits. To help your employees understand their health plans better, you should:

1. Have a plan. Get into a regular routine of communicating about benefits throughout the year.
2. Listen. While the CEHCS information is a good start, finding out what your employees know about their health benefits would be even more helpful. This can be a simple email, a formal survey, chitchat around the workplace, or a quick virtual call to a sampling of employees.
3. Teach. Tell your employees (without using jargon) about what is included in their health plan, how they can access their benefits, and who they can reach out to with questions.
4. Be transparent. Those surveyed who were unhappy with their health plan often mentioned cost. Be open with employees about what their health plan costs and why.
5. Confirm comprehension. After delivering information about your company health plan, ask employees for feedback and confirm they understand the information shared. Sometimes employees might be reluctant to ask for clarification. Let them know who to contact with any follow-up questions.
6. Conduct supervisor training. Supervisors are often on the front line with employee benefit questions. Make sure supervisors have a solid grasp on your company health plan so they can answer basic questions. And let them know who to contact when questions are more complicated.

Key to remember: For employees to get the most from their health plan, they must understand the terminology. Likewise, employers need to know where there are gaps in employees’ understanding and satisfaction.

A resource for veterans

Veteran benefits posters provide valuable information about employment assistance, educational resources, disability compensation, and other services available to veterans. They often include QR codes with links to websites offering more information.

These posters are typically developed after a state passes a law requiring a state to create a poster listing benefits and services available to veterans. The poster is usually designed by a state’s veterans services department or department of labor.

The law may include a posting requirement stating that employers of a certain size must display the poster. The poster is typically made available for download on a state’s veteran services or labor department website.

Who needs to display a veteran benefits poster?

Illinois: Posting the Veterans Benefits and Services notice is optional.

Indiana: The Veteran Benefits and Services poster must be displayed by employers with more than 50 employees.

Louisiana: The Veterans Benefits poster must be displayed by employers with more than 50 employees.

Maine: The Veterans’ Benefits and Services poster must be displayed by employers with more than 50 employees.

Massachusetts: The Veteran Services posting must be displayed by employers with more than 50 full-time employees.

Michigan: As of April 2, 2025, all employers will be required to display a Veterans’ Benefits and Services poster.

Minnesota: The Veterans Benefits and Services poster must be displayed by employers with more than 50 full-time employees.

New Hampshire: The Notice of Veterans’ Benefits and Services must be displayed by all employers.

New York: The Veteran Benefits and Services poster must be displayed by employers with more than 50 full-time employees.

Rhode Island: The Veterans’ Benefits and Services poster must be displayed by employers with 50 or more employees.

Virginia: The Resources for Virginia Veterans poster is optional.

Key to remember: A state may offer a veteran benefits poster. The requirement to display it will depend on state law.

Retaining the Form I-9

The Form I-9 is used verify an employee’s identity and eligibility to work in the United States. It is completed when an employee is hired, and employers must have a Form I-9 on file for all employees.

In addition, after an employee leaves the company, employers must keep the form for three years after the date of hire, or one year after the date employment ends, whichever is later.

An employer receiving a Notice of Inspection from ICE has at least three business days to produce the requested forms.

Preparing for an internal audit

Ensuring that things are in order can help a company be prepared for a Form I-9 inspection. To make an internal audit more productive, make sure:

• A Form I-9 is on file for all current employees.
• The form is properly retained for former employees.
• The forms are stored securely.
• The forms are stored in a way that makes it easy to retrieve them within three days.
• The forms are kept separate from employees’ personnel files.

Errors to watch for on the Form I-9

Section 1 of the Form I-9 is completed by the employee and Section 2 is completed by the employer. Both sections are on a single page, but it’s easy for errors to crop up.

When looking over Section 1, make sure that:

• The employee has entered their name, address, and date of birth.
• Any previous names (including a maiden name) are listed in the Other Last Names Used box.
• A taxpayer identification number has not been entered as a Social Security number.
• The employee has checked one box to attest to citizenship or immigration status.
• The employee has signed and dated the form.

When reviewing section 2, make sure that:

• List A documentation or List B and C documentation has been entered.
• The document title, issuing authority, number, or expiration date for documentation presented have been entered.
• The date of the employee’s first date of employment for wages has been entered in mm/dd/yyyy format. It should match the date in the payroll records.
• The person who examined the employee’s documents has entered their name and title and has signed and dated the form.
• The business’s name and address have been filled in.

If you find an error

An employer should not try to hide an error by trying to black out the incorrect information or cover it with correction fluid. Instead, the ICE advises employers to: • Draw a line through the incorrect information.

• Enter the correct information.
• Initial and date the correction.

Errors that have been made in Section 1 should be corrected by the employee. The employer can correct errors found in Section 2.

If there are multiple errors on the form, the section may be redone on a new Form I-9. The new form is attached to the old one. A note explaining the reason for the changes should be included in the file with the form I-9.

Key to remember: Employers need to be diligent about completing and maintaining the Form I-9, as well as ensuring they are only hiring individuals eligible to work in the United States, as fines for noncompliance have increased.

The story

A remote employee, Tara, was free to design her schedule. The employer designated Tara’s position as salaried — though not necessarily exempt. Tara said the company wouldn’t allow her to log any hours worked outside of 8:00 a.m. to 5:00 p.m. into the company’s timekeeping system. As a result, those records were inaccurate, given Tara’s flexible schedule.

Tara’s supervisors became increasingly dissatisfied with her job performance. According to one supervisor, Tara couldn’t explain what she worked on throughout the day, yet she complained about having too much to do. The company fired Tara on August 2, 2021, and she sued, claiming that the company didn’t pay her for overtime.

The case

In court, Tara admitted that she didn’t keep track of any time she worked over 40 hours per week, but claimed she worked an average of 10 hours per day and 15 hours of overtime per workweek.

Because Tara didn’t keep good records of the hours she spent working, the court ruled in favor of the employer. The burden of proving liability remains with the employee. Had Tara kept good records, the case would likely have had a different and more costly conclusion for the employer.

In cases like Tara’s where an employee has established an FLSA violation but can’t point to the employer’s records to prove violations that warrant damages to be paid out, a relaxed burden of proof applies. Employees can prove damages by relying on their recollection and documentation. They can approximate the extent of overtime from the particulars of the jobs they did. They can rely on reasonable estimations and inferences to prove the amount of overtime worked.

If that were the case, the employer would have a tough time refuting Tara’s argument, as its records were inaccurate.

This employer won, but…

While this employer won in court, it was only because the employee failed to keep good records of her schedule. Had Tara kept better records of her work hours, the employer might have lost.

Employers that don’t keep good records create a higher risk of losing their argument and potentially facing costly damages.

Key to remember: Employers must keep track of hours worked for all nonexempt employees, even if they designate them as salaried.

Inpatient care explained

Inpatient care is an overnight stay in a health care facility. If the employee or family member had an overnight stay, it’s an FMLA serious health condition regardless of how many days of work the employee missed.

If the employee or family member did not have an overnight stay, employers move on to the continuing treatment part of the definition.

Continuing treatment defined

A serious health condition involving continuing treatment includes the following:

• A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves:
  • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
  • Treatment at least once, resulting in a regimen of continuing treatment.
• Any period of incapacity due to pregnancy or for prenatal care.
• Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time. These may cause episodic rather than continuing periods of incapacity.
• A period of incapacity for a permanent or long-term condition in which treatment may not be effective.
• Any period of absence to receive multiple treatments (i.e., chemotherapy, radiation, physical therapy, dialysis), for restorative surgery, or for a condition that would likely result in a period of incapacity of more than three consecutive, full, calendar days if treatment isn’t received.

Not all parts of the definition above will apply to a particular situation. The only part of the continuing treatment segment that involves three days, for example, falls under the first bullet. For all the other parts, any period of incapacity would be FMLA leave. An employee doesn’t need to miss three days of work.

Focus on incapacity not absence when applying FMLA leave

The period of more than three days applies to how long the individual is incapacitated, not how many days of work the employee missed. If, for example, an employee who normally works Monday through Friday suffers a serious health condition on Friday evening and is incapacitated until Wednesday, the period of incapacity is more than three days. The employee missed only two days of work, but those two days would be FMLA leave.

Failure to designate an absence as FMLA leave when it is called for risks a claim that the employer interfered with the employee’s FMLA rights.

Key to remember: Employees don’t have to miss three days of work to trigger an employer’s FMLA obligations.

Delete incidents

If the status of a case changes or the employer learns the incident wasn’t work-related, OSHA explained that employers may “draw a line through the original entry or, if you wish, delete or white-out the original entry.” Employers using electronic records can delete entries that were erroneously added to the 300 Log.

Classifying incidents

Employers classify recordable incidents by the most serious outcome, which in descending order are death, days away, restriction/transfer, and other recordable. The packet explains that employers must “choose only one of these categories.” If the outcome changes, employers must revise the 300 Log.

For example, an injured worker might initially need days of restriction, but later requires surgery and incurs days away. If that happens, the employer would list day counts in both the “days away” and the “restriction/transfer” columns but would reclassify the incident as a days away case.

Employers can stop counting after 180 days, which can be a total from both columns. The instructions explain, “You may stop counting days of restricted work activity or days away from work once the total of either or the combination of both reaches 180 days.” For example, if an employee had 100 days away and 80 days of restriction, the employer can stop counting even if the employee has not yet returned to full duty.

Classifying conditions

Employers must also classify recordable incidents as either injuries or illnesses. Generally, an injury results from a single event (like a cut, fracture, bruise, or burn). In contrast, an illness develops over time, even just a few hours (such as carpel tunnel syndrome, heat stress, or frostbite).

The instructions further explain, “Sprain and strain injuries to muscles, joints, and connective tissues are classified as injuries when they result from a slip, trip, fall or other similar accidents.” Conversely, a strain that develops over time would be an illness. The instructions provide extensive examples of illnesses for each category such as poisoning or “all other illnesses.”

Counting employees and work hours

When preparing the 300A Annual Summary, employers must list the average annual number of employees and the total hours worked by all employees. This information helps determine incident rates. For related information, see our article When determining injury rates, beware of partial years.

Although OSHA provides a calculation to determine average annual employment, that formula is intended for workforces that fluctuate. Employers don’t need to perform the calculation if employee counts remain fairly consistent. The instructions explain:

If you pay about the same number of employees every pay period throughout the year (e.g., about 100), then you can use that number as your annual average employment. If the number of employees fluctuates from pay period to pay period (e.g., your business is seasonal or your establishment grew or shrunk during the year), then you should use the formula below to calculate employment average.

For hours worked, employers must include hours from temps or other contract workers if the employer provided day-to-day supervision (since the employer was responsible for recording injuries to those workers). However, do not count vacation, sick leave, holidays, or other non-work time even if employees were paid for it. Finally, if some employees are not paid by the hour (by the mile, commission, salary, etc.) the employer may estimate the hours worked.

Key to remember: OSHA provides many instructions on how to complete the 300 Log in a PDF packet of the forms, including information that does not appear in the regulations.

1. Develop, implement, and enforce an energy control program

A well-documented energy control program is the foundation of lockout/tagout safety. Construction companies should create clear policies and procedures for controlling hazardous energy and ensure strict enforcement. VisitJ. J. Keller Safety Management Suite to access over 125 safety policies pre-written templates, including Lockout/Tagout and Hazardous Energy Control.

2. Use lockout devices for equipment that can be locked out

When machinery can be locked out, a physical lockout device must be used to prevent accidental activation. If the equipment cannot be locked out, additional safety measures must be in place to ensure worker protection.

3. Establish a tagout program for equipment that cannot be locked out

If machinery lacks a lockout option, an effective tagout system should be implemented. Tagout devices must provide the same level of safety as lockout devices, warning employees not to operate the equipment.

4. Document and enforce energy control procedures

Energy control procedures should be written, detailed, and regularly reviewed to ensure they remain effective. These procedures must outline the steps required for shutting down, isolating, and securing hazardous energy sources.

5. Use standardized and durable lockout/tagout devices

All lockout/tagout devices must be standardized in appearance, durable, and substantial enough to prevent accidental removal. Only authorized devices should be used to ensure consistency and reliability.

6. Clearly identify lockout/tagout devices by individual users

Each lockout/tagout device must be labeled to identify the employee who applied it. This helps prevent accidental removal and ensures accountability in the lockout/tagout process.

7. Restrict lock removal to the employee who applied it

To maintain safety, only the individual who applied a lockout/tagout device should remove it. If removal by another person is necessary, strict procedures should be followed to ensure the safety of all employees. See our FAQ for more information: Can a lock be cut off if the person who applied it isn’t there to remove it?

8. Conduct annual inspections of energy control procedures

Regular inspections of lockout/tagout practices help identify potential issues and ensure compliance with OSHA standards. Annual audits should confirm that all energy control procedures are followed correctly.

9. Provide mandatory training for all employees

Proper training is crucial for effective lockout/tagout implementation. Employers must ensure that all workers understand their roles, responsibilities, and the risks associated with hazardous energy. Retraining should occur periodically, when new procedures are developed and whenever new hazards arise.

10. Comply with OSHA standards for special situations

Additional lockout/tagout provisions apply in specific scenarios, such as:

• Testing or repositioning machines
• Working with outside contractors
• Group lockout situations
• Shift changes or personnel transitions
• Ensuring compliance with OSHA standards in these situations is essential for maintaining worker safety.

Key to remember: By following these 10 steps, you can create a safer work environment and maintain compliance with OSHA regulations.

Background

In 1996, OSHA issued a final rule — Safety Standards for Scaffolds Used in the Construction Industry. It revised Subpart L of 29 CFR 1926.

Fast forward to December 6, 2013, OSHA sent an LOI to an engineer. Subsequently, OSHA posted it on the agency’s website. The letter focused on questions about how the weight of a scaffold is considered when determining whether the 4-to-1 factor is met under 1926.451(a)(1).

Then, in 2020, after the original letter “raised some confusion in the scaffold industry,” OSHA entered revisions to the 2013 letter posted online.

What prompted the court case?

The court opinion explains that the plaintiff claimed:

• It contracted a construction company for a project.
• The contractor and the plaintiff had a dispute over the design of a scaffold for the project.
• The contractor turned to the revised LOI and felt that the plaintiff’s design was not really required by the regulations.
• The dispute prompted engineering costs and project delays for the plaintiff.

Subsequently, the plaintiff sued OSHA in 2024. The case hinged on whether OSHA violated the Administrative Procedures Act (APA) by issuing the 2020 LOI revisions without notice and comment. The plaintiff also asked the court to find the letter to be arbitrary and capricious (another violation of the APA).

What did the judge say?

The APA requires notice and comment for rulemakings. However, the judge wrote that, per 5 U.S.C. 553, these procedures don’t apply “to interpretative rules” in this case. The judge then referred to another court decision that explained that having no notice and comment makes issuing interpretive rules fast and easy. The tradeoff is that interpretive rules cannot be treated as laws or hold such weight. In fact, the judge calls the revised letter “informational.” In other words, LOIs are not requirements and cannot make employers do something, said the judge.

The opinion went on to project that even if the interpretation shifted from the 2013 to 2020 letters, the plaintiff did not show that OSHA changed its enforcement in any regard or that employers were likely to have changed their compliance approach in response to the revised letter. Plus, the plaintiff could have responded to the contractor dispute in ways other than those involving costs and project delays, contended the judge.

Finally, with regard to the claim of an arbitrary and capricious interpretation, the judge explains that while final rules are “reviewable,” LOIs are not.

OSHA’s website provides context

Today, OSHA’s Standard Interpretations webpage provides a notice: “OSHA requirements are set by statute, standards, and regulations. [OSHA] interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Each letter constitutes OSHA's interpretation of the requirements discussed. Note that [OSHA] enforcement guidance may be affected by changes to OSHA rules. Also, from time to time [the agency updates its] guidance in response to new information.”

Interestingly, that wording has changed over time. Back when the revised letter was issued in 2020, the webpage’s notice read: “Standard Interpretations are letters or memos written in response to public inquiries or field office inquiries regarding how some aspect of or terminology in an OSHA standard or regulation is to be interpreted and enforced by the Agency. These letters provide guidance to clarify the application of an established OSHA standard, policy, or procedure, but they may not, in themselves, establish or revise OSHA policy or procedure or interpret the OSH Act. They must specifically cite the source policy or procedure document they interpret.”

While both the old and new wording are similar, the new wording makes clear that LOIs do not set employer obligations. Rather, only the statute, standards, and regulations set requirements.

Key to remember

A court sided with OSHA over whether a revised LOI violated the APA. An opinion confirms that the OSHA interpretive letter is not a rulemaking, so it did not violate APA requirements.

What are the statistics?

Bureau of Labor Statistics (BLS) data show that in 2023, transportation incidents accounted for 36.8 percent (1,942) of all work fatalities. That’s more than one third! Industries with the highest number of transportation-related deaths include:

• Transportation and warehousing;
• Construction;
• Agriculture, forestry, fishing, and hunting; and
• Administrative and support and waste management and remediation services.

Not all transportation incidents result in a fatality. The BLS also tells us that, from 2021 to 2022, 113,750 of the estimated 2.8M injuries with days away from work were caused by transportation incidents. Over 41 percent (46,830) of those involved employees that worked in transportation and materials moving jobs. This was followed by services occupations with over 22 percent (25,170).

Data from the Network of Employers for Traffic Safety (NETS) reveal that on-the-job highway crashes cost employers an estimated $26K per crash. They also amount to over $78K per injury!

What do the regulations say?

There’s no OSHA regulation on company vehicle safety. Yet, the agency recommends that you have an effective workplace driver safety program in place if you provide company vehicles. The aim is to help reduce the risk of vehicle accidents. Ultimately, such a program can:

• Save lives and reduce injuries,
• Protect people and property, and
• Reduce liability risks.

Rev up your safety and training program

Wondering where to start? A 10-step program, Guidelines for Employers to Reduce Motor Vehicle Crashes, offers you some guidance. It was developed by NETS, OSHA, and the National Highway Traffic Safety Administration (NHTSA). These best practices can help you create a robust company vehicle safety program. In this way you can promote safety and reduce the likelihood of accidents. Program steps include:

1. Have senior management lead, support, and enforce the program, but ensure your employees have opportunities for involvement. Employee participation is essential to your program’s success.
2. Set clearly defined policies and procedures. These should go over seat belt use and use of cellphones, reporting collisions and moving violations, restricting alcohol and drug use, driver eligibility requirements, vehicle selection standards, vehicle inspections, vehicle preventive maintenance programs, collision investigations, disciplinary action, incentive programs, employee performance reviews, and training program participation.
3. Have drivers sign an agreement that they are aware of, understand, and will follow the vehicle safety policies and procedures.
4. Periodically review each driver’s motor vehicle record. Also, set eligibility requirements for drivers.
5. Establish a process to report and investigate all crashes, regardless of the severity. Drivers should be instructed on what to do in case of a collision.
6. Set procedures for vehicle selection, maintenance, and inspection. Drivers should know how to report driving issues.
7. Address violations of your vehicle safety program through a disciplinary action system. You should retain the right to remove an employee’s driving privileges for certain program violations.
8. Reward employees who consistently drive safely or otherwise contribute to the success of the vehicle safety program.
9. Provide ongoing driver safety training. This should cover your company’s policies and procedures as well as other topics. Topics might include distracted, defensive, and fatigued driving; weather-related safety; heat and cold stress; and communication procedures or expectations, particularly for lone drivers.
10. Ensure vehicles and drivers comply with all applicable highway safety laws and regulations.

Key to remember: Transportation incidents are the leading cause of work fatalities. OSHA suggests that you have an effective workplace driver safety program in place if you provide company vehicles.

Investigation results

OSHA's investigation revealed that critical safety procedures were not followed for machine safety. The company was cited for one willful violation for not de-energizing a machine and two serious violations for allowing employees to bypass safety doors and failing to conduct annual inspections on energy control procedures. These violations have resulted in $193,585 in proposed penalties. Unfortunately, this isn't the first time the company has faced safety issues; there have been previous fatalities and a history of violations since 2016.

So, what can an employer do to ensure this does not happen to them? OSHA provides two comprehensive standards related to machine safety that employers need to establish in their safety programs. The first is machine guarding, found at 1910 Subpart O - Machinery and Machine Guarding. The second is 1910.147, The Control of Hazardous Energy (Lockout/Tagout).

Importance of machine guarding

The machine guarding standard requires that machines be equipped with guards to protect operators and other employees from hazards such as point of operation, ingoing nip points, rotating parts, and flying debris. These guards must be securely attached to the machine and designed to prevent any part of an employee's body from entering the danger zone during operation.

OSHA doesn't specifically require machine guarding training, but it does expect employers to make sure their workers are protected from machine hazards. This means employers need to train their employees on how to recognize these hazards and use machine guards correctly. As a best practice, training should occur prior to working on the equipment, and whenever changes in the equipment or processes occur that impact the guarding.

Importance of controlling potentially hazardous energy

Lockout/Tagout (LOTO) requirements are designed to protect workers from hazardous energy during the servicing and maintenance of machines and equipment. The standard applies to the control of energy during these activities, where unexpected energization or the release of stored energy could cause injury.

As part of this regulation, employers must establish an energy control program that includes specific procedures for shutting down, isolating, blocking, and securing machines or equipment to control hazardous energy. The regulation also requires evaluating the procedures at least annually to ensure they are accurate and effective.

Employee training is dependent on the role of the employees including:

• Authorized employees, who perform the lockout/tagout procedures, must be trained in recognizing hazardous energy sources and the methods to isolate and control them.
• Affected employees, who operate or use the machines being serviced, need to be aware of the procedures and the importance of not attempting to restart equipment that has been locked or tagged out.
• Other employees, who may be in the area, should be informed about the lockout/tagout procedures and the significance of the devices used.

Key to remember: This tragic incident highlights the urgent need for employers to enforce safety when working with machines, including machine guarding and lockout/tagout procedures, and ensure employees are well-trained to recognize and mitigate hazards.