1. FTA D&A National Conference Atlanta 2015
FTA & FMCSA
FTA D&A National Conference
Atlanta 2015
JUAN MOYA & GEORGE GILPATRICK

3. Comparing the Regulations, Practices, and Industries
FTA
FMCSA

4. WHY COMPARE TWO MODES?

5. GUIDING REGULATIONs 49 CFR Part 40 49 CFR Part 655 49 CFR Part 382 FTA
FMCSA
49 CFR Part 40
49 CFR Part 655
49 CFR Part 382

6. FTA FMCSA Who’s Covered?
Recipients of FTA funding under 5307, 5309 and covered
Recipients of FTA funding under not covered unless they receive funds from a covered entity to provide safety-sensitive services
Regulation is of the employers only
FMCSA
“Every person and all employers of such persons”
Includes fed, state, local government employers
The testing rules cover drivers only
Who hold a Commercial Driver’s License under 383
Actually drive, or are intended to drive, a Commercial Motor Vehicle on public roads
FMCSA § Applicability.
(a) This part applies to every person and to all employers of such persons who operate a commercial motor vehicle in commerce in any State, and is subject to:
(a)(1) The commercial driver’s license requirements of part 383 of this subchapter;
(a)(2) The Licencia Federal de Conductor (Mexico) requirements; or
(a)(3) The commercial drivers license requirements of the Canadian National Safety Code 6 6

7. FTA FMCSA Prohibited Drugs Prohibited drugs Prohibited drugs
Marijuana*
Cocaine
Amphetamines
Opiates
PCP
MDMA (Ecstasy)
FMCSA
Prohibited drugs
Marijuana*
Cocaine
Amphetamines
Opiates
PCP
MDMA (Ecstasy)
§ Testing procedures.
Each employer shall ensure that all alcohol or controlled substances testing conducted under this part complies with the procedures set forth in part 40 of this title. The provisions of part 40 of this title that address alcohol or controlled substances testing are made applicable to employers by this part.
§ Drug testing
(b) When administering a drug test, an employer shall ensure that the following drugs are tested for:
(1) Marijuana;
(2) Cocaine;
(3) Opiates;
(4) Amphetamines; and
(5) Phencyclidine.
(c) Consumption of these products is prohibited at all times
Note that as of October 1, 2010, MDMA (Ecstasy) became one of the tested drugs together with a new Custody and Control Form and lowered screening and confirmation levels for Amphetamines and Cocaine..
*No Policy Changes at Federal Level 7 7

8. Safety-Sensitive Functions
FTA
Operators, Dispatchers, Mechanics, CDL/Non-Revenue, Armed Security, Supervisors if may perform S-S
Includes trainees when driving, even if not in revenue service
Volunteers if required to have a CDL or for remuneration in excess of actual expenses
FMCSA
CDL drivers operating CMVs on public roads when they are:
Driving or required to be ready to drive
Waiting to be dispatched
Inspecting, repairing, securing assistance, loading or unloading the CMV
Covers mechanics, dispatchers, etc. if they may be required to drive a CMV at any time
Sec Definitions.
Safety-sensitive function means any of the following duties, when performed by employees of recipients, subrecipients, operators, or contractors:
(1) Operating a revenue service vehicle, including when not in revenue service;
Sec Random testing.
A covered employee may be randomly tested for prohibited drug use anytime while on duty.
Sec Definitions.
Performing (a safety-sensitive function) means a driver is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
Safety-sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions shall include:
(1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by §§392.7 and of this subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in operation;
(4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of § of this subchapter);
(5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle. 8 8

9. Policy Provisions: LARGE OVERLAP
FTA
Develop policy statement
Disseminate policy or notice of availability to employees
No explicit requirement for notice to employee organizations
Adopted by local governing board
No requirement for certification of receipt
FMCSA
SAME
Provide educational material explaining policy and procedures to each CDL driver
Written notice to employee organizations
No adoption requirement
Certification of receipt required
Sec Required elements of an anti-drug use and alcohol misuse program.
An anti-drug use and alcohol misuse program shall include the following:
(a) A statement describing the employer's policy on prohibited drug use and alcohol misuse in the workplace, including the consequences associated with prohibited drug use and alcohol misuse. This policy statement shall include all of the elements specified in Sec Each employer shall disseminate the policy consistent with the provisions of Sec
Sec Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances.
(a) General requirements. Each employer shall provide educational materials that explain the requirements of this part and the employer's policies and procedures with respect to meeting these requirements.
(1) The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle.
(2) Each employer shall provide written notice to representatives of employee organizations of the availability of this information.
(d) Certificate of receipt. Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in this section. Each employer shall maintain the original of the signed certificate and may provide a copy of the certificate to the driver. 9 9

10. Policy Provisions: LARGE OVERLAP
FTA
Person, office, or position for questions
Safety-sensitive categories
Prohibited behavior
Testing circumstances
Testing procedures
FMCSA
Person who answers questions
Categories of drivers subject to regs
Covered safety-sensitive duties
Prohibited behavior
Testing circumstances
Testing procedures
Sec Policy statement contents.
The local governing board of the employer or operator shall adopt an anti-drug and alcohol misuse policy statement. The statement must be made available to each covered employee, and shall include the following:
(a) The identity of the person, office, branch and/or position designated by the employer to answer employee questions about the employer's anti-drug use and alcohol misuse programs.
(b) Required content. The materials to be made available to drivers shall include detailed discussion of at least the following:
(1) The identity of the person designated by the employer to answer driver questions about the materials;
(2) The categories of drivers who are subject to the provisions of this part
(NOTE: The requirement is only applicable to drivers with a CDL who are expected to be in readiness to drive a Commercial Motor Vehicle for the employer). 10 10

11. Policy Provisions: LARGE OVERLAP
FTA
Requirement to submit to testing
Refusal behaviors
Consequences of positive/refused test including immediate removal
Consequences of BAC 0.02 to 0.039
FMCSA
SAME
FTA Policy content requirements are found at
Policy statement contents.
FMCSA policy statement requirements are found at
Sec Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances. 11 11

12. Policy Provisions: LARGE OVERLAP
FTA
Additional employer provisions
FMCSA
Effects of alcohol & drugs, signs and symptoms, methods of intervention, referral to EAP and/or management
Additional employer provisions
FTA requires a 1-hour substance abuse awareness training program for all newly-hired covered employees.
Sec Education and training programs.
Each employer shall establish an employee education and training program for all covered employees, including:
(a) Education. The education component shall include display and distribution to every covered employee of: informational material and a community service hot-line telephone number for employee assistance, if available.
(b) Training--(1) Covered employees. Covered employees must receive at least 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use.
FMCSA requires the types of materials used in a substance-abuse awareness session to be distributed to employees with the policy and procedure educational material but does not require the 1-hour employee training program. 12 12

13. Special Case: Employees of Multi-Modal Employers
Pre-employment Test: Only 1
Random rate: Mode regulating 50%+ of employee’s time
Modal reg during duty: Determines PA and RS test type
Essentially the same wording is found in the FTA and the FMCSA regulation
Sec Random testing.
Sec Random testing.
(FTA version)
(j) If a given covered employee is subject to random drug and alcohol testing under the testing rules of more than one DOT agency for the same employer, the employee shall be subject to random drug and alcohol testing at the percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the employee's function.
(k) If an employer is required to conduct random drug and alcohol testing under the drug and alcohol testing rules of more than one DOT agency, the employer may--
(1) Establish separate pools for random selection, with each pool containing the covered employees who are subject to testing at the same required rate; or
(2) Randomly select such employees for testing at the highest percentage rate established for the calendar year by any DOT agency to which the employer is subject.
Sec (j) and § (n) both state: “If a given driver is subject to random alcohol or controlled substances testing under the random alcohol or controlled substances testing rules of more than one DOT agency for the same employer, the driver shall be subject to random alcohol and/or controlled substances testing at the annual percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the driver's function.” 13 13

14. Random Testing: Most Policy Provisions Similar
FTA
Random testing rate
25% drugs
10% alcohol
Selection scientifically valid method
Unannounced and unpredictable
Reasonable spread through calendar year
At all times of day
FMCSA
Random testing rate
50% drugs
10% alcohol
Same
Same!
No comparable requirement
The FTA rule seems a little stronger on the distribution of random tests throughout all hours when safety-sensitive services are performed.
Sec Random testing.
(g) Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.
Sec Random testing.
(k)(1) Each employer shall ensure that random alcohol and controlled substances tests conducted under this part are unannounced.
(2) Each employer shall ensure that the dates for administering random alcohol and controlled substances tests conducted under this part are spread reasonably throughout the calendar year. 14 14

15. Consequences for Failed or Refused Tests
Violation
Removal from safety-sensitive function
SAP referral process
Must comply with Part 40 Subpart O
Return-to-Duty and Follow-Up
655 reiterates Part 40 requirement for employer to advise employee of readily- available SAP-counseling-treatment program … 382 does not
Sec Referral, evaluation, and treatment.
If a covered employee has a verified positive drug test result, or has a confirmed alcohol test of 0.04 or greater, or refuses to submit to a drug or alcohol test required by this part, the employer shall advise the employee of the resources available for evaluating and resolving problems associated with prohibited drug use and alcohol misuse, including the names, addresses, and telephone numbers of substance abuse professionals (SAPs) and counseling and treatment programs.
No directly similar FMCSA provision, but the policy and procedural educational material will include this information. Section and its regulatory interpretations clearly state that a driver detected of controlled substance use or alcohol misuse may not return to safety-sensitive duties except through the 49 CFR Part O SAP process.
§ The rules require an employer to advise the employee, who engages in conduct prohibited under the DOT rules, of the available resources for evaluation and treatment including the names, addresses, and telephone numbers of SAPs and counseling and treatment programs. In the scenario where the employer discharges the employee, that employer would be considered to be in compliance with the rules if it provided the list to the employee and ensured that SAPs on the list were qualified. This employer has no further obligation (e.g., to facilitate referral to the SAP; ensure that the employee receives an SAP evaluation; pay for the evaluation; or seek to obtain, or maintain the SAP evaluation synopsis). 15 15

16. Policy Provisions: Availability for Testing
FTA
Drug random testing anytime an employee is on duty.
Alcohol random testing only just before, during, just after performance.
May negotiate arrangements for employees who must leave at end of shift
FMCSA
Same
May notify driver on off-duty status of a drug test
Testing time counts against Hours of Service
FMCSA rules allow employers to notify employees who are off-duty to report immediately for a random drug test. This is not allowed for a random alcohol test. See FMCSA guidance to question 17 to 49 CFR
Testing At End of Shift (FTA Drug and Alcohol Regulation Updates Issue 22, page 2)
FTA has consistently stated that an employee must remain subject to random testing any time during his or her work shift, including just prior to the shift end, as long as the employer has provided prior notification. However, in a Letter of Interpretation dated March 26, 2002 and addressed to the Amalgamated Transit Union, FTA Chief Counsel, William P. Sears, stated that even though the statutory requirement to conduct random drug and alcohol testing is not subject to collective bargaining, the employer has limited discretion regarding the scheduling of random tests. Therefore, “union and management are not precluded from negotiating a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments, to be tested no later than three hours before the shift ends.” Mr.. Sears went on to clarify, however, that any negotiated process cannot excuse a covered employee from random testing once selected, nor should it extend to an employee who has not provided advance, verifiable notice of a previously scheduled commitment to the employer. For this and other letters of interpretation go to 16 16

17. Policy Provisions: Refusal to Submit
FTA
Description of kind of behavior that constitutes a refusal to test
Statement such refusal constitutes a violation of employer’s policy
Part 655 does not list refusal behaviors
FMCSA
Explanation of what constitutes a refusal to test and
The attendant consequences
Part 382 lists drug but not alcohol refusal behaviors
For both FTA and FMCSA, Part 40, Sections 191 (Drug Refusals) and (Alcohol Refusals) contains the exclusive list of behaviors that constitutes a refusal to test. FTA references Part 40 for a current list of refusals.
FMCSA includes the list of drug refusals in its Definitions section § Alcohol behaviors are not listed because they are more obvious and happen at the collection site and are reported immediately to the DER.
A Refusal to Test is a violation of the employer’s policy, equivalent to a positive test, and results in removal from safety-sensitive duties.
As the employer’s representative, the DER has the non-delegable duty to determine whether an employee has refused a drug or alcohol test. (40.355(I)). However, the MRO is the decision-maker in shy-bladder and adulteration-substitution refusals. 17 17

18. Policy Provisions: Testing after Notification
FTA
If not performing safety-sensitive function, proceed immediately.
If performing safety-sensitive function, cease performing and proceed immediately.
FMCSA
If driving, proceed immediately to the collection site, then cease performing safety-sensitive duty.
If performing any safety-sensitive function other than driving, cease performing and proceed as soon as possible.
Sec Random testing. - (h) Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately. If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately.
Sec Random testing. - (l) Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible. 18 18

19. FTA FMCSA CRITICAL COMPARISON: COVERAGE
Regulation is applicable to employer
Employer requires compliance from safety-sensitive employee
FMCSA
Regulation of employer
Regulation of safety-sensitive employee
Owner-operators must comply with employer and employee provisions
FTA regulates the employer. The employer is required to gain compliance of the employees. There is not direct regulation of the employee.
FMCSA regulates the employer and the employee. Both employer and driver may be subject to civil and/or criminal penalties for non-compliance with 49 CFR Part USC § 507 Enforcement 19 19

20. EXEMPTIONS
FTA
Contract maintenance for systems in areas of less than 200,000
Taxi operators if transit patrons are free to choose from 2+ taxi providers
Recipients of 5310 funds
Volunteers if no CDL or remuneration above expenses
FMCSA
Persons required to comply with Part 655 ( (d)(1))
Persons waived from CDL requirements by the licensing state
Military personnel (mandatory)
Operators of a farm vehicle (permissive)
Firefighters and ambulance drivers (permissive)
Both modes have certain exemptions.
FTA exemptions generally based on population of the geographic area of the grantee, whether the patron can choose from among several taxi providers, or whether the service provided by the contractor is “incidental” (e.g. occasional police details).
FMCSA has mandatory exemptions and permissive exemptions based on state regulations. Drivers required to comply with the FTA Part 655 are exempted from 382.
States are required to exempt military personnel because they are required to waive the CDL requirements for military personnel.
States have the discretion to waive the CDL requirements for
Operators of farm vehicles and
Operators of fire trucks and other emergency vehicles with sirens and lights that are not subject to normal traffic laws. . 20 20

21. FTA FMCSA CRITICAL COMPARISON: PRE-EMPLOYMENT
Employees working part-time for two covered entities are in both random pools and must take two pre-employment tests
FMCSA
Employers may use an employee w/o a pre-employment test if the employee is and has been in a random testing program for a year and not had a drug/alcohol violation. [ (b)]
Generally will take 2nd pre-employment test
FTA generally requires individuals who perform safety-sensitive functions for more than one employer to be in the random testing programs of both employers. The pre-employment requirements of both employers apply.
The following rules are intended to apply only to individual owners, not independent operators who own small fleets.
(b) An employer is not required to administer a controlled substances test required by paragraph (a) of this section if:
(1) The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of this part or the controlled substances use rule of another DOT agency within the previous six months.
§ What limitations apply to the activities of service agents?
(f) As an exception to paragraph (e) of this section, you may act as an intermediary in the transmission of SAP report from the SAP to an owner-operator or other self-employed individual.
(h) As an exception to paragraph (g) of this section, you may make decisions to test an employee based upon reasonable suspicion, post-accident, return-to-duty, and follow-up determination criteria with respect to an owner-operator or other self-employed individual.
(j) As an exception to paragraph (i) of this section, you may make a determination that an employee has refused a drug or alcohol test, if: (1) You schedule a required test for an owner-operator or other self-employed individual, and the individual fails to appear for the test without a legitimate reason; 21 21

22. Pre-Employment D&A Test History COMMON CONFUSION
FTA
2 year review of drug and alcohol testing records
49 CFR Section 40.25
Alcohol tests of >=0.04
Verified positive drug tests
Refusals/adulterated/etc.
Other violations of DOT agency drug/alcohol regs.
Documentation of successful completion of SAP-required RTD/follow-up process
FMCSA
3 year review of history for interstate drivers
49 CFR Section Investigations & Inquiries
3-yr State driving records
3-yr Safety performance from all employers
3-yr Alcohol and controlled substance violations from all employers
Same information as Part 40 requirements
2-year requirements for intra-state drivers (Section 40.25)
By Part 40.25, FTA and other modal employers must require applicants to release prior drug and alcohol testing histories from previous employers for whom they performed safety-sensitive duties within the previous 2 years.
FMCSA Part requires inter-state employers to gather driver-qualification information for employment in the previous 3 years. That includes (presumably for consistency) the same prior drug and alcohol testing information required for a 2-year look-back period by Part
The state licensing agency sets driver qualification standards for intra-state drivers. 22 22

23. Employees Removed from Random Pool
FTA
Pre-employment test if employee is out of pool for more than 90 days
FMCSA
Pre-employment test if employee is out of pool for more than 30 days
Both modes have recognized the need to provide options to employers regarding the random-testing status of employees on temporary lay-off or temporary leave.
Generally, an employee on temporarily-unavailable status will be left in the random testing pool. If that employee is randomly selected while absent, he/she will be tested as soon as he/she returns if the return is within the random selection period in which they were drawn.
Alternatively, the employer may remove the name from the random pool for the period of absence. If the employee is out of the random pool for a specified period of time, the employee must then take a pre-employment test to be reinstated in a safety-sensitive position and have his/her name returned to the random pool.
For FMCSA, if the employee is out of the pool for more than 30 days, the employee must past a pre-employment test for reinstatement.
The specified period is more than 90 days for FTA. 23 23

24. POST-ACCIDENT TESTING: DECISION MAKER IS KEY
FTA
Fatality-mandatory;
or Person receives medical attention away from scene or Vehicle disabled.
NEXUS = UNLESS
Employee’s performance can be fully discounted as contributing.
FMCSA
Fatality-mandatory;
or Person receives medical attention away from scene or Vehicle disabled.
NEXUS = AND
Operator receives moving traffic citation.
The tables below are the FMCSA’s post-accident decision matrix and a corresponding FTA decision matrix. FMCSA calls for a positive finding of Nexus, while FTA’s calls for a negative finding, i.e. that no Nexus exists. 24 24

25. FTA

26. FMCSA

27. Post-Accident: Time Requirement
FTA
As soon as practicable after operator dismissed from accident scene and medical attention has been provided
Testing delayed till Nexus decision made
Alcohol 2/8 hour rule
Drugs 32 hour rule
FMCSA
As soon as practicable following an occurrence, operator dismissed and medical attention provided
AND Citation issued
If no citation in 8 hrs, or 8 hrs has elapsed, no alcohol testing
If no citation in 32 hours, no drug testing
§ Post-accident testing. (a)(2) Nonfatal accidents. (i) As soon as practicable following an accident not involving the loss of human life in which a mass transit vehicle is involved, the employer shall drug and alcohol test each covered employee operating the mass transit vehicle at the time of the accident unless the employer determines, using the best information available at the time of the decision, that the covered employee’s performance can be completely discounted as a contributing factor to the accident.
(d) The decision not to administer a drug and/or alcohol test under this section shall be based on the employer's determination, using the best available information at the time of the determination that the employee's performance could not have contributed to the accident. Such a decision must be documented in detail, including the decision-making process used to reach the decision not to test.
Under FTA, there is no authorization to conduct a post-accident test until a decision has been made on whether (or not) an operator’s performance may be completely discounted as a possibly contributing factor. Both FTA and FMCSA use the standard --- “as soon as practicable”.
§ (d) (1) Alcohol tests. If a test required by this section is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered.
(2) (2) Controlled substance tests. If a test required by this section is not administered within 32 hours following the accident, the employer shall cease attempts to administer a controlled substances test, and prepare and maintain on file a record stating the reasons the test was not promptly administered. Records shall be submitted to the FMCSA upon request 27 27

28. FTA FMCSA Reasonable Suspicion
For both drugs and alcohol, decision made ONLY on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors
No required written report (everybody does)
FMCSA
Decision to test is for the same reasons.
Observations may include indications of chronic effects and withdrawal effects for drugs, not alcohol.
Written report w/in 24 hours of observed behavior or before results of test are released if earlier than 24 hrs.
§ Reasonable suspicion testing.
(a) An employer shall require a driver to submit to an alcohol test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning alcohol. The employer’s determination that reasonable suspicion exists to require the driver to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.
(b) An employer shall require a driver to submit to a controlled substances test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning controlled substances. The employer’s determination that reasonable suspicion exists to require the driver to undergo a controlled substances test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances.
The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with § The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver
That is, the employer must prepare a report of the rationale for testing and release it within 24 hours of the test and before the controlled substances reports are released. 28 28

29. Retention of Training Records
FTA
Two years:
Records relating to the collection process and employee training
Other records same for FTA and FMCSA descriptions more detailed
FMCSA
Indefinite Period:
Records relating to education and training of BATs, STTs, supervisors and drivers
Maintained while the employee performs that function, then for 2 years
FTA defines absolute retention periods of 1,2 or 5 years for defined classes of records.. Records relating to the training program for employees and supervisors are 2 year records. Records relating the “collection process” are 2 year records. The term “collection process” includes all of the program administration records not associated with positive and refused tests. Records of non-negative tests and all associated records have a 5-year retention period.
FMCSA requires all “program administration” records to be retained for 5 years rather than two. However, within that, there is the standard breakdown 1, 2 and 5 year records.
Records documenting Breath Alcohol and Saliva Test Technician, employee and supervisor training are called “indefinite records” and are maintained for two years after the employee leaves the company. 29 29

30. FTA FMCSA Alcohol Prohibitions
No performing covered activity if BAC 0.04 or greater
No drinking 4 hrs before S-S duties
No drinking while on-call specified hours
8 hour off-duty after BAC between 0.02 and 0.039, or until <0.02
FMCSA
SAME
No corresponding on-call requirement
24-hour mandatory off-duty after BAC between 0.02 and 0.039
The difference between the FMCSA’s direct regulation of the driver and the employer, versus the FTA’s regulation only of the employer, is evident in the text of each mode’s prohibition against the use of alcohol before performing safety-sensitive duties.
FMCSA
§ Pre-duty use.
No driver shall perform safety-sensitive functions within four hours after using alcohol. No employer having actual knowledge that a driver has used alcohol within four hours shall permit a driver to perform or continue to perform safety-sensitive functions
FTA
Sec Pre-duty use.
(a) General. Each employer shall prohibit a covered employee from using alcohol within 4 hours prior to performing safety-sensitive functions. No employer having actual knowledge that a covered employee has used alcohol within four hours of performing a safety-sensitive function shall permit the employee to perform or continue to perform safety-sensitive functions.
Also, the FMCSA does not have a formal “on-call” prohibition. 30 30

31. Prescription Medications
FTA
FTA advisory info and substantial technical assistance is provided
No regulatory requirements
FTA Prescription and Over-the-Counter Medications Toolkit well-regarded by MROs
FMCSA
Drivers can not operate unless advised by licensed medical practitioner that Rx/OTC prescription will not impact ability to safely operate (a)
Employers may require drivers to inform the employer of any therapeutic drug use (c) – Include in policy.
Prohibitions § Controlled substances use.
(a) No driver shall report for duty or remain on duty requiring the performance of safety sensitive functions when the driver uses any drug or substance identified in 21 CFR Schedule I.
(b) No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non-Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § , who is familiar with the driver's medical history and has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle.
(c) No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety- sensitive function.
(d) An employer may require a driver to inform the employer of any therapeutic drug use.
FMCSA regulates the driver and requires the driver to disclose therapeutic drug use. There is no corresponding FTA regulation. The words “prescription” and “therapeutic” do not appear in Part 655. 31 31

32. Enforcement & Compliance
FTA
Suspension or ineligibility for federal funding
Annual certification of compliance (in Master Agreement)
State DOTs certify compliance of sub-recipients
FMCSA
Fines and penalties on employer and/or employee
Possibility of Issuance of an Out of Service order
No requirement to self-certify compliance except “New Entrant” companies
FMSCA:
After a new entrant satisfies all applicable pre-operational requirements, it will be subject to the new entrant safety monitoring procedures for a period of 18 months. During this 18-month period:
(a) The new entrant's roadside safety performance will be closely monitored to ensure the new entrant has basic safety management controls that are operating effectively.
(b) A safety audit will be conducted on the new entrant, once it has been in operation for enough time to have sufficient records to allow the agency to evaluate the adequacy of its basic safety management controls. This period will generally be at least 3 months.
(c) All records and documents required for the safety audit shall be made available for inspection upon request by an individual certified under FMCSA regulations to perform safety audits.
Automatic failure during the new entrant safety audit.
1. § (a)/§ (b)—Failing to implement an alcohol and/or controlled substances testing program (domestic and foreign motor carriers, respectively) Single occurrence.
2. § —Using a driver known to have an alcohol content of 0.04 or greater to perform a safety-sensitive function Single occurrence.
3. § —Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382 Single occurrence.
4. § —Using a driver known to have tested positive for a controlled substance Single occurrence.
5. § —Failing to implement a random controlled substances and/or alcohol testing program Single occurrence. 32 32

33. Another Issue: Exemptions From FMCSA §391 Medical Qualifications
FMCSA §391 applies to interstate ops
States establish medical qualifications for intrastate drivers (this covers most transit drivers)
Applies to pre-employment records reviews (and possibly require periodic testing)
Know your state’s adoption of FMCSA §391 Medical Qualifications
Each state is the issuer of the Commercial Motor Vehicle license. It is not a “national" license but, for interstate drivers, there are established, mandatory and consistent requirements across all states.
However, each state determines individually the requirements for intrastate drivers of commercial motor vehicles.
Since most transit drivers are intrastate drivers of CMVs, the local state determinations will impact the licensing process.
The remainder of the talk discusses the state options. 33 33 33

34. Thank you Regulatory Downloads from the Web.
The FMCSA Regulation Part 382: Controlled substances and alcohol use and testing
is best viewed on the FMCSA website at the URL listed below. This regularity presentation is especially useful because the FMCSA regulatory interpretations for each section are assessable from each section.. Copy and paste this link into your browser for immediate access.
The FTA regulation PART 655—PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN TRANSIT OPERATIONS is downloadable from the FTA safety and security/Volpe website at-
Another source is the GPOAccess website - slower but the regulation is automatically updated with each change and so is current to the day of download. The GPOAccess URL is: 34 34 34