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Friday, April 18, 2014

FMCSA ClearingHouse Coming Soon

by Tommy Eden

Motor carriers have always taken drug abuse seriously, but they have even more reason to do so now. The Federal Motor Carrier Safety Administration has released proposed regulations that would create a drug and alcohol testing clearinghouse for interstate truck and bus drivers.

The proposed regulations, expected to take effect October 1, 2014, are based on legislation that was prompted by incidents like the following:

  • On March 19, 2014, Crystal Transport, Inc., of Boston was ordered to stop doing business in interstate commerce after FMCSA investigators found evidence that three drivers, all of whom had tested positive for controlled substances, had been allowed to transport passengers for most of 2013.

  • On March 11, 2014, federal investigators found that the motor carrier GEG Construction, Inc., of Indian Orchard, Massachusetts, put drivers to work before receiving their drug and alcohol test results. Although the test results were negative, it was a violation of federal law to allow them to drive before the results were received. In another instance, a driver without a valid commercial driver’s license was allowed to drive.

  • On February 25, 2014, federal investigators found that motor carrier Allen Quandahl, LLC, of Waukon, Iowa, also employed drivers before receiving their negative pre-employment drug and alcohol test results and also allowed a driver without a valid commercial driver's license to operate a commercial vehicle.

Thus far in 2014, the FMCSA reports that it has revoked the operating authority of more than 75 bus and truck companies and has levied thousands of dollars in fines. Nine motor carriers and four commercial drivers have been declared to be “imminent hazards” to public safety.
According to the DOT, for each of the past three years, federal and state safety inspectors have conducted approximately 3.5 million random roadside inspections of commercial vehicles and of their drivers, according to the FMCSA.
·         In 2013, on 2,095 occasions, or in 0.23 percent of the unannounced inspections, a CDL holder was immediately placed out-of-service and cited for violating federal regulations governing alcohol consumption. In 2012, FMCSA records show that there were 2,494 violations of this regulation.
·         In 2013, on 1,240 occasions, or in 0.13 percent of the unannounced inspections, a CDL holder was placed immediately out-of-service and cited for violating federal regulations governing controlled substances. In 2012, FMCSA records show that there were 1,139 violations of this regulation.
To combat the hiring of unsafe drivers in violation of FMCSA Drug & Alcohol Testing Regulations, the Agency has issued Proposed Regulations Creating a National Drug and Alcohol Testing Clearinghouse for Commercial Truck and Bus Drivers which will be the topic of a free Constangy Webinar on April 16, 2014.

The proposed regulations were issued as part of the Moving Ahead for Progress in the 21st Century Act, which President Obama signed into law on July 6, 2012. The proposal would create a national database containing drug and alcohol information about drivers holding CDLs that can be accessed by trucking and bus companies regulated by the U.S. Department of Transportation.

Comments are being accepted through April 21, and a final rule is expected in late June.

Once a final rule is in place, employers will need to update their FMCSA and Federal Transit Administration (FTA) policies, forms, and toolkits; adopt various internal reporting and confidentiality protocols; and conduct training and modify their Service Agent contracts. The regulation, if adopted, will touch every CDL holder and their employers, and is the most significant regulatory change since 2001, when the regulations at 49 CFR Part 40 were adopted. The Constangy Workplace  Drug Testing Practice Team is ready to guide our clients in all of these DOT regulated areas, as well as with state specific drug free workplace policies.   
Trucking and Bus companies and anyone else hiring commercial drivers (CDL) will have to use the clearinghouse to do pre-employment checks on all new driver hires as well as doing yearly checks on their existing drivers. Medical Review Officers (MROs) will have to report drug positives and employers will be required to report alcohol positives for those drivers who:
·         Fail a drug and/or alcohol test;
·         Refuse to submit to a drug and/or alcohol test; 
·         Successfully complete a substance abuse program and are legally qualified to return to duty will be reported by the Substance Abuse Professional (SAP);
·         Private, third-party drug and alcohol testing laboratories also would be required to report summary information annually to find trucking companies who not have a testing program; and
·         The proposed rule will also require employers to report actual knowledge of traffic citations for driving a commercial motor vehicle (CMV) while under the influence (DUI) of alcohol or drugs. 
To ensure the privacy of drivers involved, each CDL holder would need to provide his or her consent, before an employer could access the clearinghouse.