FMCSA and FTA Issue New Guidance on Use of Drug and Alcohol Clearinghouse by Carriers and Drivers Op

The Federal Motor Carrier Safety Administration (FMCSA), in consultation with the Federal Transit Administration (FTA), has issued new guidance via their website (dated Dec. 13, 2019) related to participation in the FMCSA’s Drug and Alcohol Clearinghouse by motor carriers and their drivers that provide service subsidized by the FTA. The Clearinghouse rules go into effect Jan. 6.

As a general rule, a carrier and its drivers that operate service funded under 49 USC 5307, 5309 or 5311 are subject to the FTA’s drug and alcohol testing requirements and are not subject to the similar requirements of the FMCSA. 49 CFR 382.103(d)(1) specifically states that the FMCSA’s drug and alcohol testing regulations in 49 CFR Part 382 “shall not apply” to employers and their drivers required to comply with the FTA’s alcohol and/or controlled substances testing requirements in 49 CFR Part 655.

49 CFR 655.3 provides that the Part 655 drug and alcohol testing requirements apply to each recipient and subrecipient receiving Federal assistance under 49 USC 5307, 5309, or 5311 and their contractors.

Drug or alcohol testing violations under the Part 655 requirements may not be reported to the Clearinghouse. Only Part 382 drug and alcohol program violations may be reported to the Clearinghouse. The Federal Drug Testing Custody and Control Form (CCF) specifies the DOT agency requesting the test, and employers may only report to the Clearinghouse a positive result when FMCSA is the agency designated on the CCF.

But the new guidance discusses participation in the Clearinghouse for carriers and their drivers that operate both FTA-subsidized service and non-subsidized service (e.g., operating subsidized scheduled service Monday-Friday, but charter or tour work on the weekends and holidays). The guidance states:

Under 49 CFR § 382.103(d)(1), the requirements of 49 CFR Part 382 do not apply to employers and their drivers “required to comply with the alcohol and/or controlled substances testing requirements of part 655 (Federal Transit Administration (FTA) alcohol and controlled substances testing regulations).” Does this mean that FTA-regulated employers and drivers are exempt from the Clearinghouse requirements?

It depends. Drivers who perform only FTA-regulated safety-sensitive functions are exempt from Part 382, including the Clearinghouse requirements, as are their employers. These drivers and employers are subject only to the alcohol and/or controlled substances testing requirements of Part 655. On the other hand, FTA-regulated entities that employ drivers who also perform FMCSA-regulated safety-sensitive functions must comply with the relevant alcohol and/or controlled substances testing requirements of Part 382. The following examples illustrate how employers subject to Part 655 also could be subject to Part 382.

Example #1: A driver operates a bus under the authority of the FTA during the week, but sometimes operates a charter bus, for the same employer, on the weekend. The charter operation is regulated by FMCSA, not FTA. If the driver is involved in a crash during the charter operation and is subject to post-accident testing, that testing is conducted under the authority of FMCSA (§ 382.303) and the results must be reported to the Clearinghouse. The same would be true for any testing conducted under the authority of FMCSA (e.g., random testing for drivers in an FMCSA random pool (§ 382.305)). This result is the same for any employer regulated by more than one Department of Transportation (DOT) mode; the modal authority under which the testing is conducted determines which sets of regulations apply.

Example #2: A driver regularly operates a bus under the authority of the FTA, but sometimes operates a truck, for which a commercial driver’s license (CDL) is required, for the same employer. In situations like this, the dual FTA/FMCSA regulated employer must conduct a pre-employment query for any driver expected to perform any FMCSA-regulated safety-sensitive functions in the course of their employment, and conduct an annual query for all drivers who have performed any FMCSA-regulated function within the last year.

Thus, to determine which drug and alcohol testing rules apply, you must look at the type of service provided (FTA-subsidized or non-subsidized). A carrier that conducts any non-FTA-subsidized service must register with the Clearinghouse, and all drivers that might be asked to operate in non-FTA-subsidized service must also register with the Clearinghouse. Carriers must make an annual query of the Clearinghouse database for any driver that performed any FMCSA-regulated work in the previous year.

In addition, each part of the drug and alcohol testing rules apply differently to FTA and FMCSA-regulated service.

(i) Pre-Employment Testing. If a prospective driver will be or might be driving charters or driving non-FTA funded routes, the pre-employment test must be under Part 382 and must include the Clearinghouse because the driver may be subject to FMCSA regulations. If there is no possibility that the driver will be doing FMCSA work (i.e., charters or non-FTA subsidized scheduled service), then the Clearinghouse search is not required.

(ii) Reasonable Suspicion Testing. Whether Part 382 or Part 655 applies will be determined by the work the driver was performing at the time of the observation and directive to report for a test. If the driver was performing FTA funded work, Part 655 will apply. If the driver was performing non-FTA funded work, then part 382 applies as long as the work they are performing is covered by FMCSA, i.e., driving a CDL vehicle.

(iii) Post-Accident Testing. Whether Part 382 or Part 655 applies will be determined by the work the driver was performing at the time of the accident. If the driver was performing FTA funded work, Part 655 will apply. If the driver was performing non- FTA funded work, then part 382 applies.

(iv) Random Testing. For employees who perform work covered by both FTA and FMCSA regulations (for example, a driver who drives the FTA-funded 5311(f) intercity route Monday-Friday but who also does charter trips (covered by FMCSA) on the weekends), FTA requires that a covered employee subject to testing under more than one DOT agency must be subject to random testing by the DOT agency regulating more than 50 percent of the employee’s function.

Under this scenario, there could be a random pool for part 382 drivers and a second random pool for part 655 drivers in the same company. There is an alternative, however, under 49 CFR 655.45((k)(2) that permits the employer to place all drivers in a single pool and test everyone at the higher testing rate (FMCSA or FTA, whichever percentage rate is higher) But if all drivers are combined into one large pool, the box that gets checked on the CCF (FTA or FMCSA) when a driver is sent for a random test would be determined based on which modality governs more than 50% of that employee's work.

(v) Return-To-Duty Testing. Return to duty testing would be subject to same terms as pre-employment testing, meaning that the driver would be subject to Part 382 if there is any likelihood of performing non-FTA-subsidized work.

(vi) Follow-Up Testing. The follow-up testing should match the Return to Duty test type unless the 50 percent rule is different for that driver.

Finally, motorcoach operators should be aware of the similarities and potential differences between the random testing rates depending on which testing program your drivers fall under. Also, be aware that these rates can potentially change annually.

Questions? Contact:

Rick Schweitzer
ABA General Council
202.223.3040 office
703.946.2458 mobile
rpschweitzer@rpslegal.com