Controlled Substances and Alcohol Testing Responsibilities of Commercial Driver Staffing Agencies and Motor Carriers That Use Them

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
23 December 2016

[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Notices]
[Pages 94481-94482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30991]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration


Controlled Substances and Alcohol Testing Responsibilities of 
Commercial Driver Staffing Agencies and Motor Carriers That Use Them

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of Enforcement Guidance.

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SUMMARY: This notice addresses commercial driver staffing agencies that 
employ commercial drivers who are supplied to motor carriers to operate 
commercial motor vehicles (CMV). If these CMVs require a commercial 
driver's license (CDL), the drivers are subject to the U.S. Department 
of Transportation (DOT) controlled substances (drug) and alcohol 
testing regulations. Under the Federal Motor Carrier Safety Regulations 
(FMCSR), a driver staffing agency may qualify as an employer.

DATES: This enforcement guidance is effective immediately.

FOR FURTHER INFORMATION CONTACT: Mr. Juan Moya, Office of Enforcement 
and Compliance, Department of Transportation, Federal Motor Carrier 
Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 
20590-0001. Telephone Number: (202) 366-4844; Email Address: 
fmcsadrugandalcohol@dot.gov. Office hours are from 8:00 a.m. to 5:00 
p.m.,

[[Page 94482]]

E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: The term ``employer,'' as defined in 49 CFR 
382.107, encompasses driver staffing agencies that employ persons who 
operate CMVs and are subject to CDL requirements. The term 
``Employer,'' as defined in 49 CFR 382.107, encompasses a person or 
entity employing one or more employees who are subject to DOT agency 
regulations requiring compliance with the DOT drug and alcohol program 
requirements in parts 40 and 382, Service agents,\1\ however, are not 
employers for the purposes of these regulations.
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    \1\ Service agent. Any person or entity, other than an employee 
of the employer, who provides services specified under this part to 
employers and/or employees in connection with DOT drug and alcohol 
testing requirements. This includes, but is not limited to, 
collectors, BATs and STTs, laboratories, MROs, substance abuse 
professionals, and C/TPAs. To act as service agents, persons and 
organizations must meet the qualifications set forth in applicable 
sections of this part. Service agents are not employers for purposes 
of this part.
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    Commercial driver staffing agencies supply the motor carrier 
industry with intermittent, casual, or occasional drivers to help meet 
industry business demands. The staffing agency directly employs the 
driver, and pays the driver's wages and employment taxes. Therefore, 
FMCSA has jurisdiction over these companies as employers of persons 
under Part 382 of the Federal Motor Carrier Safety Regulations 
(FMCSRs). As employers, driver staffing agencies are required to make 
records available for inspection upon request by a special agent or 
authorized representative of the FMCSA.
    Section 382.103(a) further clarifies that the drug and alcohol 
regulations apply to persons and to employers of such persons who 
operate a CMV in commerce and are subject to the CDL requirements under 
49 CFR part 383. Accordingly, staffing agencies, if they choose, may be 
responsible for ensuring compliance with all of the DOT drug and 
alcohol testing program requirements for their commercial drivers 
subject to parts 382 and 383 of the FMCSRs and 49 CFR part 40. These 
requirements include, but are not limited to, drug and alcohol testing, 
driver education, record retention, providing agency access to records, 
and requesting drug and alcohol information from a driver's previous 
employers. If a driver staffing agency chooses not to establish its own 
DOT drug and alcohol testing program when it provides a CDL driver to a 
motor carrier, the motor carrier is solely responsible for complying 
with part 382 prior to allowing the driver to perform a safety-
sensitive function.
    This guidance addresses the use of ``casual, intermittent, and 
occasional'' drivers, who may be leased from a driver staffing agency. 
FMCSA recognizes that motor carriers needing a CDL driver on short 
notice may not have the time or ability to conduct pre-employment 
testing or to place the short-term driver into the motor carrier's 
random testing pool. Accordingly, FMCSA guidance provides for adoption 
of the DOT drug and alcohol testing program of another part 382 
employer for purposes of regulatory compliance of the ``borrowed'' or 
leased driver. Section 382.301(c)(2), which addresses ``Pre-employment 
Testing,'' recognizes the situations where a motor carrier use, but 
does not employ, a driver more than once a year to operate a CMV. The 
regulation provides that employers, who use such drivers who must 
verify the driver's participation in a DOT drug and alcohol testing 
program every six months and maintain records of such verification 
pursuant to the record retention requirements in section 382.401 
Regulatory guidance to section 382.301 explains that this provision was 
intended to apply to drivers who are ``temporarily leased'' or loaned 
to a motor carrier ``for one or more trips generally for a time period 
less than 30 days.'' See 49 CFR 382.301(c)(2) and (62 FR 16385) 
``Guidance Question 1'').
    Accordingly, FMCSA interprets a casual, intermittent, or occasional 
driver as one who works for another employer for any period of less 
than 30 consecutive days. If a leased driver operates or is expected to 
operate for a motor carrier employer for more than 30 consecutive days, 
the driver should be included in that motor carrier employer's random 
testing pool and that motor carrier employer should assume full 
responsibility for the driver under its own DOT drug and alcohol 
testing program. A driver staffing agency may remove the driver from 
its random testing pool or allow the driver to remain in its testing 
pool based on its reasonable expectation on whether the driver will or 
will not return to its employment as a temporary leased driver.
    A motor carrier that leases one or more CDL drivers from a driver 
staffing agency is responsible for ensuring that each leased driver is 
participating in a compliant DOT drug and alcohol testing program. The 
motor carrier remains responsible at all times for ensuring compliance 
with all of the rules, including random testing, for all drivers which 
they use, regardless of any utilization of third parties to administer 
parts of the program. Therefore, to use another's program, an employer 
must make the other program, by contract, consortium agreement, or 
other arrangement, the employer's own program. This would entail, among 
other things, being held responsible for the other program's 
compliance, having records forwarded to the employer's principal place 
of business on 2 day-notice, and being notified of and acting upon 
positive test results. For purposes of the leased driver, the motor 
carrier must adopt the staffing agency's drug and alcohol testing 
program as its own program. Accordingly, the motor carrier remains 
responsible for any non-compliance by the driver staffing agency. This 
arrangement is consistent with FMCSA guidance on employer use of 
another employer's DOT drug and alcohol testing program for casual, 
intermittent, or occasional drivers. See (62 FR 16387 dated April 4, 
1997. It is intended for short-term leased drivers.
    If the staffing agency has not conducted the required testing, the 
motor carrier must treat the leased driver as a new employee and 
conduct all required part 382 drug and alcohol testing and program 
requirements before utilizing the driver to conduct a safety-sensitive 
function. These requirements include conducting the required background 
inquiries, providing a copy of the drug and alcohol policy and 
educational materials, conducting a pre-employment drug test, placing 
the driver in a random testing pool, and all other recordkeeping, 
testing, and programmatic requirements in parts 382 and 390.
    By adopting the driver staffing agency's drug and alcohol testing 
program as its own, the motor carrier assumes responsibility for the 
driver staffing agency's regulatory compliance with respect to the 
leased driver. Accordingly, motor carriers should ensure that the 
driver staffing agency has a fully compliant program under DOT 
regulations and is able to provide within 48 hours the required driver 
qualification records.
    Pursuant to 49 CFR 382.507, employers that violate the requirements 
of 49 CFR part 382 or part 40 may be subject to the civil and/or 
criminal penalty provisions of 49 U.S.C. 521(b).

    Issued on: December 15, 2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-30991 Filed 12-22-16; 8:45 am]
 BILLING CODE 4910-EX-P