Compliance and Regulatory Update: January, 2018

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Compliance and Regulatory Update: January, 2018

Part 40 Changes in Effect

How Will They Impact You?

On New Years Day the most recent changes to 49 CFR Part 40 took effect. Last month we reported on the most significant change which was revising the drug testing protocol to include four semi-synthetic opioids: oxycodone, oxymorphone, hydrocodone, and hydromorphone.However, there are other changes which were included in the same final rule.

Custody and Control Form

Health and Human Services (HHS) has issued a new Federal Drug Testing Custody and Control Form. However, the existing forms may be used until June 30, 2018. This changeover should be made automatically by the provider you utilize for collection services.

Medical Review Officers Can Question Medication Use

Historically, the regulations required the MRO to report medication use/medical information to a third party (e.g. employer, health care provider responsible for medical qualifications, etc.), if the MRO determined that the driver may be medically unqualified according to DOT Agency regulations, or if continued performance is likely to pose a significant safety risk. The MRO may report this information even if they verify the drug test result as ‘negative’.

As of January 1, 2018, prior to the MRO reporting this information to a third party, the driver will have up to five days to have their prescribing physician contact the MRO. The driver is responsible for facilitating the contact between the MRO and the prescribing physician. The physician should be willing to state to the MRO that the driver can safely perform safety-sensitive functions while taking the medication(s), or consider changing the medication to one that does not make the driver medically unqualified or does not pose a significant safety risk.

What Should Drivers Tell Their Physician?

Any driver taking prescription medication should have a conversation with their prescribing physician to discuss the details of their safety-sensitive work. For example, don’t just provide a job title but describe the exact job function(s) or ask the employer for a detailed description of the job function. This is important information for the physician to consider when deciding whether and what medication to prescribe.

Drug and Alcohol Policy

If your policy lists the specific families of drugs included in the testing, then you’ll need to revise your policy to include the addition of synthetic opioids. However, if your policy simply references Part 40 or the section numbers generically then you will not need to modify anything.

The regulations do not require that you distribute this revised policy to existing drivers. However, it would be a “best practice” to make sure that all existing drivers are made aware of the changes and are given a copy of the updated policy. This would also be a good time to remind drivers that using someone else’s prescription or using an outdated prescription meant for a specific situation (such as post surgery) can lead to a drug test positive.

Also, keep in mind that management and supervisory personnel should also receive information regarding the changes that are now in effect.

Personal Conveyance

Proposed Regulatory Guidance

The current guidance on personal conveyance (49 CFR 395.8, Question 26) was issued in November, 1996. The guidance contained the basic principle that a driver in off-duty status must be relieved from work and all responsibility for performing work. The guidance explicitly excluded the use of loaded vehicles as personal conveyance and the operation of the CMV as personal conveyance by drivers who have been placed out of service for HOS violations. The guidance has remained unchanged since it was issued.

The Federal Motor Carrier Safety Administration (FMCSA) has published a request for comments on proposed changes to the regulatory guidance regarding personal conveyance. The new language focuses on the reason the vehicle is being operated, not whether or not it is loaded. The reason for making this change is to allow drivers of straight trucks to utilize their vehicle for personal conveyance, even if the truck is loaded. While the operator of a tractor trailer can drop the trailer if it’s loaded, the operator of a single unit cannot “drop” the load and thus would be prevented from utilizing the truck as personal conveyance.

This is the complete text of the proposed guidance:

A driver may record time operating a CMV for personal conveyance (i.e., for personal use or reasons) as off-duty only when the driver is relieved from work and all responsibility for performing work.

Examples of appropriate uses of a CMV while off-duty for personal conveyance include, but are not limited to:

1. Time spent traveling from a driver’s en route lodging (such as a motel or truck stop) to restaurants and entertainment facilities and back to the lodging.

2. Commuting from the last location where on-duty activity occurred to the driver’s permanent residence and back to that last on-duty location. This would include commuting between the driver’s terminal and his or her residence, between trailer-drop lots and the driver’s residence, and between work sites and his or her residence.

Examples of uses of a CMV that would not qualify as personal conveyance include, but are not limited to, the following:

1. The movement of a CMV to enhance the operational readiness of a motor carrier. For example, moving the CMV closer to its next loading or unloading point or other motor carrier scheduled destination, regardless of other factors.

2. After delivering a towed unit, and the towing unit no longer meets the definition of a CMV, the driver returns to the point of origin under the direction of the motor carrier in order to pick up another towed unit.

3. Continuation of a CMV trip in interstate commerce, even after the vehicle is unloaded. In this scenario, on duty time does not end until the driver reaches a location designated or authorized by the carrier for parking or storage of the CMV, such as a permanent residence, authorized lodging, or home terminal.

4. Bobtailing or operating with an empty trailer to retrieve another load.

5. Repositioning a CMV and or trailer at the direction of the motor carrier.

The CMV may be used for personal conveyance even if it is laden, since the load is not being transported for the commercial benefit of the carrier at that time.

One scenario that this new guidance does not address is how to handle a situation where a loading or unloading delay at a customer has resulted in the driver running out of hours. If the customer will not allow the driver to remain on their property, or even drop the trailer to bobtail somewhere, would movement of the vehicle be allowed under personal conveyance to travel to a safe location to park?

FMCSA is receiving comments on this proposal until January 18, 2018. It may be in the interest of the motor carrier industry to explore further clarification of this guidance and how it applies to real world situations.

Roadside Inspections

Electronic Response Possible?

The Commercial Motor Vehicle Safety Alliance (CVSA) has sent a request to the Federal Motor Carrier Safety Administration (FMCSA) regarding the handling of roadside inspection reports. At the end of each inspection the driver is provided with a copy of the report which is required to be forwarded to the motor carrier. The motor carrier is then required to address the issues identified on the report and then certify that the problems have been corrected and return the report to the issuing jurisdiction within 15 days.

CVSA is requesting that FMCSA review the requirements in Â§396.9(d)(3) and consider steps to help alleviate this paperwork burden for both industry and enforcement by transitioning to an electronic system for certifying necessary repairs have been completed. CVSA believes that more jurisdictions would be able to use the information if it were more readily accessible through an electronic system. It is possible that there are models already in place for such a system and CVSA encourages FMCSA to reach out to the motor carrier industry for input on how best to structure such a system.