Violations of Federal Regulation 49 CFR Part 382 (controlled substances and alcohol) continue to trip up trucking carriers and drivers. According to the Federal Motor Carrier Safety Administration, failing to comply with Part 382 accounts for 40% of acute violations and 20% of critical violations for carriers.
Acute and critical violations are what FMCSA uses during a compliance review to arrive at a motor carrier’s safety rating.
In some cases, these violations are a matter of proper and accurate recordkeeping. While not in the transportation space, Deutsche Bank Securities recently learned a hard lesson when it comes to recordkeeping. On Jan. 2, the firm reached a settlement with the U.S. Financial Industry Regulatory Authority (FINRA). The settlement, a $2.5 million fine, was for not properly retaining records as required by FINRA, the independent, nongovernmental agency that writes and enforces rules for financial brokers and broker-dealers, is common in industry.
The lack of proper record retention is an issue that permeates nearly every industry, trucking and transportation included. When it comes to compliance with the still-new Drug & Alcohol Clearinghouse regulation, who is responsible for ensuring compliance with the myriad of rules and regulations?
“Fleet professionals wear multiple hats, so it’s not uncommon for compliance record-keeping to be partially met or completely overlooked,” Kathy Close, transportation editor with J. J. Keller & Associates, said. “It’s not intentional but rather the reality of having more work than time. An electronic fleet management system improves compliance and creates efficiencies that make a real impact on the individual and the organization.”
Managing compliance with regulations can be time-consuming and, as Close mentioned, easy to miss a step. J. J. Keller offers the Encompass Platform, an electronic record-keeping platform that can assist fleets in maintaining compliance. The firm also offers The BIG 5: Your Roadmap for a Strong FMCSA Compliance Program, a new, free e-Book for total FMCSA compliance, including Drug & Alcohol program management.
The issue of record-keeping compliance is likely to reach a new level of importance for fleets in 2021 thanks to a U.S. Department of Transportation final rule issued on Jan. 11. The rule would establish fines of up to $5,833 for each violation of the Drug & Alcohol Clearinghouse.
“Any employer, employee, medical review officer or service agent who violates any provision of 49 CFR Part 382, Subpart G … is subject to a civil penalty not to exceed $5,833,” the rule states. Federal Motor Carrier Safety Administration (FMCSA) data showed that, as of Dec. 1, 162,485 employers, 1,599 MROs and 9,048 consortium/third-party administrators had registered with the Clearinghouse, all of which are responsible for being compliant.
Regardless of whether a fleet chooses to handle compliance in-house or outsources it to compliance specialists like J. J. Keller, avoiding issues begins with understanding the rules and, unfortunately, the burden in doing so rests with the carrier.
“The FMCSA can’t observe your operations firsthand; they need you to document what you’re doing and then provide that documentation as proof that you’re complying with their rules,” Rick Malchow, industry business advisor at J. J. Keller, said. “If you don’t have a certain record, or if you tossed it out too soon, they have nothing to go on to verify your compliance and you’ve opened yourself up to violations and penalties.”
The basics of the regulations
The challenge for fleets is not only compliance with record-keeping regulations but knowing what those regulations involve. For instance, who is subject to testing, what prohibitions are there for CDL and non-CDL drivers and how often is a test required?
CDL drivers who fall under 49 CFR Part 382 (controlled substances and alcohol), are subject to testing, according to J. J. Keller. Both CDL and non-CDL drivers fall under jurisdiction of §392.4 (drugs and other substances) and §392.5 (alcohol), and although these don’t trigger testing requirements like Part 382, carriers need to be aware of any compliance requirements.
In either case, a driver operating under the influence affects a fleet’s Drug & Alcohol BASIC score.
According to Part §392.4, both CDL and non-CDL drivers are prohibited from using any Schedule I drug (including marijuana), amphetamines, narcotics or any over-the-counter drug that interferes with the ability to safely operate a commercial motor vehicle.
Physician exemptions are possible for non-Schedule I drugs. Drivers should also avoid alcohol use four hours prior to duty and, if they are involved in an accident, for eight hours following the incident in case a post-crash test is necessary. There is also a 24-hour out-of-service rule for drivers found in possession of, being under the influence of, or using alcohol.
The rules listed above are only part of the compliance equation for motor carriers. This information must be documented to ensure full compliance. Document location and retention are covered by §390.29. Documents can also be stored at a regional office, service provider or driver work-reporting location. §40.333 and Sections §382.401 cover confidentiality of documents and secure them at a location with controlled access.
While the regulations allow for offsite storage, FMCSA mandates that documents and records be made available within 48 hours at a carrier’s principal place of business. Because of this, many fleets find that the most effective way to comply is through the use of electronic recordkeeping systems like J. J. Keller’s Encompass Platform, which provides 24/7 access to their files from anywhere.
“The list of records that have to be kept is quite extensive, making the record-keeping labor-intensive, particularly if you are managing paper records and tracking testing and results on spreadsheets. Depending on the size of the fleet, you could find your program out of compliance before you realize,” Close said.
To complicate matters, retention requirements vary based on the document. For instance, drug and alcohol history under §382.413/§40.25(b) must be retained for the duration of employment plus three years. Safety performance history inquiries kept in driver investigation history files are sufficient for meeting the requirements under this regulation.
Drug & Alcohol Clearinghouse records, though, have differing time frames for retention. The document trail starts with the required preemployment query (as of Jan. 6, 2020) for anyone hired into a safety-sensitive position. Annual queries must be conducted on existing drivers (the first time this was required was no later than Jan. 5, 2021). Limited queries can also be conducted, with a signed consent form from the driver. These Clearinghouse records must be retained for three years from the date of the query.
FMCSA has mandated time frames of record retention. This period can vary from one year to five years, depending on the record itself, creating complexity in the process. Even referring to the official regulation governing record retention, 49 CFR 382.401, can be time-consuming as a fleet manager tries to find the correct regulation for the document in question.
The burden for record retention and compliance with regulations falls to the carriers themselves, leaving compliance specialists like J. J. Keller & Associates and technology platforms like the J.J. Keller Encompass(R) Fleet Management Platform to play an important role in helping overburdened fleet managers.