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FMCSA withdraws proposed requirements for collection & use of "supporting documents" to verify the accuracy of driver Record of Duty Status (RODS).

As of October 25, 2007 the FMCSA withdrew it November 3, 2004 notice of proposed rulemaking (NPRM) that would have required motor carriers to maintain hours of service (HOS) documents to enable Federal or State investigators to connect the documents with RODS easily. Based on comments received, the proposed "self-monitoring" system list of documents to maintain:

  • Were not accessible to many carriers, especially smaller carriers;
  • Did not always provide data that could be used to verify RODS;
  • Would be an undue paperwork burden on motor carriers, affecting smaller carriers more
    [creating issues with the Paperwork Reduction Act of 1995 (PRA)];
  • Would be costly to maintain, require excess staff and reprogramming electronic records;
  • Might require carriers to maintain both paper and electronic records;
  • Did not meet criteria of Hazardous Materials Transportation Authorization Act;
  • Would likely result in excessive applications for exemptions that FMCSA could not process timely, and would result in routine granting of exemptions;
  • Could result in enforcement action even if a carrier had identified violations and disciplined drivers for those violations; and

FMCSA has analyzed all the information collection burden against the PRA and issued a issued a final rule advising that there are no changes to the HOS rule already in place.

New Entrant audits to Get Tougher

In a new rule taking effect February 17, 2009, the Federal Motor Carrier Safety Administration (FMCSA) has raised the bar on its "new entrant" safety audits, which all new carriers must pass within the first 18 months of operation.

Among the changes, the FMCSA has identified 16 violations that will result in automatic failure of the audit and - if corrective action is not taken within 45 - 60 days - revocation of the carriers registration will take place.

 Drug and Alcohol

DOT issues Final Rule allowing Employers and Third Party Administrators to release drug & alcohol violation results to State Commercial Driver Licensing (CDL) authorities that require them.

Effective February 25, 2010 DOT has authorized Employers to release the results of CDL driver drug and alcohol violations to State commercial driver licensing (CDL) authorities that require them.

Consortia/Third Party Administrators (C/TPAs) are also authorized to release violation results to those authorities for owner-operators who hold CDLs who are served by the C/TPA.

In both instances, the release of such results will not be considered a violation of Part 40.321 because authority to release results to authorized state authorities is granted under Part 40.331(e).

This rule can be found at http://edocket.access.gpo.gov/2010-3729.pdf

New "direct observation" procedures for return-to-duty & follow-up drug tests now in effect.

Effective August 31, 2009 DOT made direct observation mandatory for all return-to-duty & follow-up drug tests.  The procedure, originally scheduled to begin on August 25, 2008, was issued a temporary stay following a legal challenge of the rule. The U. S. Court of Appeal for the D. C. Circuit cleared the way for approval.  The new rule reads:

40.67 When and how is a directly observed collection conducted?

(b) As an employer you must direct a collection under direct observation of the employee if the drug test is a return-to-duty or a follow-up test.

Under direct observation procedures, the collector or observer will request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist & and lower clothing and underpants.  The employee must then turn around to show that s/he does not have a prosthetic device that is to be used to substitute a urine specimen [40.67(i)].  Failure by the employee to do so will be considered a refusal to test.

Congress to seek a national database of positive drug and alcohol tests under proposed "Safe Roads Act".

The "Safe Roads Act" currently before Congress would establish a national, centralized database for commercial vehicle operators who have tested positive for either drugs and/or alcohol.

Under the proposed Act medical review officers (MROs), employers and other service agents would be required to report positive results to the Federal Motor Carrier Safety Administration (FMCSA) and would also require employers to check the database before hiring a prospective driver/employee.

Currently drivers are sometimes able to omit information regarding a positive test and not complete the required evaluation and treatment program required.  If a prospective employer is not diligent with background checks the violation can be overlooked.

Other requirements under the Safe Roads Act would be to prohibit an employer from hiring a driver unless the employer determines that within the last 3 years that the driver:

  1. Has been tested for alcohol and drugs under a DOT rule

  2. Hasn't test positive, or if s/he has tested positive, has completed the required evaluation, education and/or treatment under FMCSA rules.

  3. Hasn't refused to take a required test.

Also under the Act, once a driver's record is submitted to the database DOT will notify the driver, who will be able to either obtain information, update their information or dispute their record.

CDL licenses could also be affected by the Act in that DOT would be authorized to share the database with state licensing agencies which could result in the disqualification or suspension of their driving privileges.

Watch this site for future updates.


DOT identifies new situations which will result in a determination of a "Refusal to test"  by an employee.

On August 25, 2008 DOT revised it's list of scenarios considered to be a refusal by an employee to take a drug test.  In addition to the previous ones DOT added the following situations:
  • Failure to wash hands before and after providing the specimen
  • Failure to follow the collector's direct observation instructions
  • Possess or wear a prosthetic or other device that could be used to interfere with the collection process
  • Admit to the collector or MRO that the specimen was adulterated or substituted.
Invalid Tests - Problems in Drug Testing
In it's ongoing effort to deal with attempts to beat drug tests, the DOT has made changes in it's regulations to deal with invalid drug tests effective August 25, 2008.
40.3 Definition of an Invalid Test:

The result for a drug test for a urine specimen contains an unidentified adulterant or an unidentified interfering substance, has abnormal physical characteristics, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing or obtaining a valid drug test result..

When a laboratory determines an invalid test result the MRO must take action based on his/her discussion with the laboratory certifying scientist and then conduct a verification interview with the employee and the following outcomes may occur:
  • If the test is also positive for an illegal drug, the MRO rules on the positive result; or
  • If the employee denies any drug use or has no explanation for the result the MRO cancels the test and orders another collection under direct observation; or
  • If the employee admits to adulterating or substituting the specimen the MRO rules "refusal to test"; or
  • If the employee admits to drug use the MRO cancels the test and notes the reason and notifies the Designated Employer Representative (DER) for the employer who must then take appropriate action under its agency regulations; or
  • If another test is done, but not under direct observation as required, the employee will be sent back for another test under direct observation; or
  • If the result of the directly observed re-collection is invalid for a different reason, the employee must be sent back for another direct observation test; or
  • If the test is conducted under direct observation and the invalid result is the same, the employee must undergo an examination to determine "clinical evidence of substance abuse".  If there is no clinical evidence of substance abuse the MRO will report the result of the test as negative.
  • If there is clinical evidence of substance abuse the test is cancelled.  The result is not a negative if the test was for pre-employment, return-to-duty or follow-up, therefore the employee can't resume safety-sensitive functions because a negative test result is required for those tests.
See sections 40.159-160 for more information on Invalid Tests.
 Medical (FMCSA/DOT) Examinations

DOT to combine Medical Examiner's Certificate with State CDL License

Effective January 30, 2009 the DOT will begin the process of adding Medical Examiner Certificate (Wallet Card) information on State CDL Licenses under the authority of the Motor Carrier Safety Improvement Act of 1999 (MCSIA).  Under the new procedures drivers must self-certify to their State Driver License Agency (SDLA) whether they are intrastate or interstate drivers and whether they are subject to the medical exam requirements of Part 391 and provide any medical waiver, exemption or Skill Performance Evaluation (SPE) information.  Based on the DOT's time schedule for implementation, a driver's medical examiner's certificate information will eventually be added to the CDL license indicating whether the driver is "certified" or "not-certified".

Any driver applying for a CDL license before January 30, 2012 will have to self-certify intrastate or interstate driving and Part 391 status before being granted a permit.  Current CDL holders must self-certify on or after January 30, 2012 but on or before January 30, 2014.  New CDL applicants after January 30, 2012 must provide the original or a copy of their medical examiner's certificate to the SDLA and existing CDL holders must do the same on or before January 30, 2014.  Once the medical examiner information is on the CDL license the driver will no longer be required to possess a copy of the medical examiner's certificate and enforcement officials will no longer request the card or recognize it unless it is date-stamped by the SDLA and in the process of being added to the state's Commercial Driver License Information System (CDLIS).

SDLAs will be required to date-stamp the medical examiner's certificate upon receipt by the driver, furnish the driver with a copy, and enter the information into its CDLIS within 10 days of receipt.  In the interim, an Employer can accept the date-stamped copy as proof of qualification and can place it in the driver's qualification file for up to 15 days from the date stamp, by which time the Employer must obtain the driver's Motor Vehicle Record (MVR) which will indicate whether the driver is certified or not certified.  Any driver whose medical certificate expires and the state does not receive a new one will have his/her CDL license downgraded in 60 days from the expiration date of the previous certificate if the information is not received by the SDLA.

DOT proposal would require medical examiners to be certified and nationally registered in order to perform FMCSA/DOT driver exams.  

On December 1, 2008 the DOT proposed a rule that would require Medical Examiners to be trained, certified and registered in order to perform regulated driver physical exams.  The comment period expired on January 30, 2009 and the DOT is expected to issue a final rule once it has evaluated all comments and reaches a decision.

Under the proposed rule Examiners, in addition to being licensed by their respective states to perform the exams, would also have to undergo a training program on DOT exams, pass an FMCSA certification test and then be listed on the National Registry of Certified Medical Examiners.  In order to maintain certification the Examiners must maintain their state licenses, keep their Registry information updated, undergo periodic training, pass a certification test once in every 6 years & receive a new registry number, as well as maintain documentation of their certification. 

Examiners can be removed from the Registry if they fail to comply with Registry requirements, the FMCSA finds errors & omissions or improperly completed medical certifications or reports, issues certification to persons who do not meet the medical requirements, fail to follow 391.43 guidelines, and/or file false training claims.

The Medical Examiner's certificate will be revised to add the examiner's registry number.

Watch this site for developments.