81 FR 94481 - Controlled Substances and Alcohol Testing Responsibilities of Commercial Driver Staffing Agencies and Motor Carriers That Use Them

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 81, Issue 247 (December 23, 2016)

Page Range		94481-94482
FR Document		2016-30991

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.

Federal Register, Volume 81 Issue 247 (Friday, December 23, 2016)

[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Notices]
[Pages 94481-94482]
From the Federal Register Online  [www.thefederalregister.org]
[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: 
[email protected]. 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

94482 Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / Notices

E.T., Monday through Friday, except allowing the driver to perform a safety- parts of the program. Therefore, to use
Federal holidays. sensitive function. another’s program, an employer must
SUPPLEMENTARY INFORMATION: The term This guidance addresses the use of make the other program, by contract,
‘‘employer,’’ as defined in 49 CFR ‘‘casual, intermittent, and occasional’’ consortium agreement, or other
382.107, encompasses driver staffing drivers, who may be leased from a arrangement, the employer’s own
agencies that employ persons who driver staffing agency. FMCSA program. This would entail, among
operate CMVs and are subject to CDL recognizes that motor carriers needing a other things, being held responsible for
requirements. The term ‘‘Employer,’’ as CDL driver on short notice may not have the other program’s compliance, having
defined in 49 CFR 382.107, the time or ability to conduct pre-
records forwarded to the employer’s
encompasses a person or entity employment testing or to place the
principal place of business on 2 day-
employing one or more employees who short-term driver into the motor carrier’s
random testing pool. Accordingly, notice, and being notified of and acting
are subject to DOT agency regulations upon positive test results. For purposes
requiring compliance with the DOT FMCSA guidance provides for adoption
of the DOT drug and alcohol testing of the leased driver, the motor carrier
drug and alcohol program requirements must adopt the staffing agency’s drug
in parts 40 and 382, Service agents,1 program of another part 382 employer
for purposes of regulatory compliance of and alcohol testing program as its own
however, are not employers for the program. Accordingly, the motor carrier
purposes of these regulations. the ‘‘borrowed’’ or leased driver. Section
382.301(c)(2), which addresses ‘‘Pre- remains responsible for any non-
Commercial driver staffing agencies
employment Testing,’’ recognizes the compliance by the driver staffing
supply the motor carrier industry with
situations where a motor carrier use, but agency. This arrangement is consistent
intermittent, casual, or occasional
does not employ, a driver more than with FMCSA guidance on employer use
drivers to help meet industry business
once a year to operate a CMV. The of another employer’s DOT drug and
demands. The staffing agency directly
regulation provides that employers, who alcohol testing program for casual,
employs the driver, and pays the
use such drivers who must verify the intermittent, or occasional drivers. See
driver’s wages and employment taxes.
driver’s participation in a DOT drug and (62 FR 16387 dated April 4, 1997. It is
Therefore, FMCSA has jurisdiction over
alcohol testing program every six intended for short-term leased drivers.
these companies as employers of
months and maintain records of such
persons under Part 382 of the Federal If the staffing agency has not
verification pursuant to the record
Motor Carrier Safety Regulations retention requirements in section conducted the required testing, the
(FMCSRs). As employers, driver staffing 382.401 Regulatory guidance to section motor carrier must treat the leased
agencies are required to make records 382.301 explains that this provision was driver as a new employee and conduct
available for inspection upon request by intended to apply to drivers who are all required part 382 drug and alcohol
a special agent or authorized ‘‘temporarily leased’’ or loaned to a testing and program requirements before
representative of the FMCSA. motor carrier ‘‘for one or more trips utilizing the driver to conduct a safety-
Section 382.103(a) further clarifies generally for a time period less than 30 sensitive function. These requirements
that the drug and alcohol regulations days.’’ See 49 CFR 382.301(c)(2) and (62 include conducting the required
apply to persons and to employers of FR 16385) ‘‘Guidance Question 1’’). background inquiries, providing a copy
such persons who operate a CMV in Accordingly, FMCSA interprets a of the drug and alcohol policy and
commerce and are subject to the CDL casual, intermittent, or occasional driver educational materials, conducting a pre-
requirements under 49 CFR part 383. as one who works for another employer
Accordingly, staffing agencies, if they employment drug test, placing the
for any period of less than 30 driver in a random testing pool, and all
choose, may be responsible for ensuring consecutive days. If a leased driver
compliance with all of the DOT drug other recordkeeping, testing, and
operates or is expected to operate for a
and alcohol testing program programmatic requirements in parts 382
motor carrier employer for more than 30
requirements for their commercial and 390.
consecutive days, the driver should be
drivers subject to parts 382 and 383 of included in that motor carrier By adopting the driver staffing
the FMCSRs and 49 CFR part 40. These employer’s random testing pool and that agency’s drug and alcohol testing
requirements include, but are not motor carrier employer should assume program as its own, the motor carrier
limited to, drug and alcohol testing, full responsibility for the driver under assumes responsibility for the driver
driver education, record retention, its own DOT drug and alcohol testing staffing agency’s regulatory compliance
providing agency access to records, and program. A driver staffing agency may with respect to the leased driver.
requesting drug and alcohol information remove the driver from its random Accordingly, motor carriers should
from a driver’s previous employers. If a testing pool or allow the driver to ensure that the driver staffing agency
driver staffing agency chooses not to remain in its testing pool based on its has a fully compliant program under
establish its own DOT drug and alcohol reasonable expectation on whether the DOT regulations and is able to provide
testing program when it provides a CDL driver will or will not return to its within 48 hours the required driver
driver to a motor carrier, the motor employment as a temporary leased qualification records.
carrier is solely responsible for driver.
complying with part 382 prior to A motor carrier that leases one or Pursuant to 49 CFR 382.507,
more CDL drivers from a driver staffing employers that violate the requirements
1 Service agent. Any person or entity, other than agency is responsible for ensuring that of 49 CFR part 382 or part 40 may be
an employee of the employer, who provides each leased driver is participating in a subject to the civil and/or criminal
mstockstill on DSK3G9T082PROD with NOTICES

services specified under this part to employers and/
or employees in connection with DOT drug and
compliant DOT drug and alcohol testing penalty provisions of 49 U.S.C. 521(b).
alcohol testing requirements. This includes, but is program. The motor carrier remains Issued on: December 15, 2016.
not limited to, collectors, BATs and STTs, responsible at all times for ensuring
laboratories, MROs, substance abuse professionals, T.F. Scott Darling, III,
compliance with all of the rules,
and C/TPAs. To act as service agents, persons and Administrator.
organizations must meet the qualifications set forth
including random testing, for all drivers
which they use, regardless of any [FR Doc. 2016–30991 Filed 12–22–16; 8:45 am]
in applicable sections of this part. Service agents
are not employers for purposes of this part. utilization of third parties to administer BILLING CODE 4910–EX–P

VerDate Sep<11>2014 18:33 Dec 22, 2016 Jkt 241001 PO 00000 Frm 00171 Fmt 4703 Sfmt 9990 E:\FR\FM\23DEN1.SGM 23DEN1

Document Created: 2016-12-23 12:29:41
Document Modified: 2016-12-23 12:29:41

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of Enforcement Guidance.
Dates		This enforcement guidance is effective immediately.
Contact		Mr. Juan Moya, Office of Enforcement and Compliance, Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC
FR Citation		81 FR 94481

81 FR 94481 - Controlled Substances and Alcohol Testing Responsibilities of Commercial Driver Staffing Agencies and Motor Carriers That Use Them

DEPARTMENT OF TRANSPORTATIONFederal Motor Carrier Safety Administration

Federal Register Volume 81, Issue 247 (December 23, 2016)

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration