CFA MEMBER, FOLEY CARRIER SERVICES HAS SUBMITTED COMMENTS TO THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION REGARDING THE PROPOSED DRUG AND ALCOHOL TESTING CLEARINGHOUSE.

While there was a lot to like about the rules, they feel that FMCSA needs to make some practical changes before they are ready. This update is republished from their Fast-FaxTM to keep you better informed. Contact Ryan Fagan, liaison to the CFA and Senior Compliance Specialist, at 860-815-0735 or Ryan.Fagan@Foleyservices.com for more information. Matt Wrobel will be presenting at the CFA Annual Convention in Sandusky, Ohio this summer.

As we reported in February, the Federal Motor Carrier Safety Administration has unveiled its long-awaited proposal for a Drug and Alcohol Testing Clearinghouse. This week, Foley Carrier Services submitted comments to FMCSA regarding the proposal and made some recommendations to help improve it based on our two decades of experience in this industry.

In general, we feel that carriers should welcome the clearinghouse. The broad idea is a very good one and will help streamline the hiring process and protect carriers against litigation. Looking at a driver’s safety history is routine after an accident. Even if drugs or alcohol played no part in the crash, if a driver had an incident in his history, its a safe bet that the carrier will be explaining to a jury why they hired the individual. Anything that helps carriers avoid that is a good move.

On the other hand, we strongly feel that regulations should not be overly burdensome to companies nor should they make compliance more difficult. Some of the regulations proposed, we felt, would have an unintended but highly disruptive effect on both drug and alcohol testing and hiring new drivers.

It is important to remember that these rules are in a very early stage. We have included highlights of our comments below and you can read the full document here: http://goo.gl/Ok49jl.

BACKGROUND CHECKS

We believe the burden of paperwork could become overwhelming and costly for Motor Carriers. We believe that drivers should sign a consent form for the initial and annual checks as a one-time action at the start of employment and that that consent should last for the life of employment. This system is already in place for Motor Vehicle Reports and FCRA covered checks. In the interest of safety and security we believe that the annual check should be a complete, detailed check. We would also like to expedite the process through the acceptance of electronic signatures on the required documents.

Finally, we believe that performing Clearinghouse checks should be opened up to third-party background check providers. These businesses often act as agents on behalf of Third- Party Administrators. We believe that FMCSA should make performing these checks as effortless as possible, including assigning duties to an agent for employers considering the enormous safety-improvement potential they hold.

CUSTODY AND CONTROL FORM

We have very serious concerns regarding the proposed usage of the Federal Custody and Control Form. Our experience with the requirement for listing DOT mode on the CCF tells us that relying on Collection Sites and drivers to comply is problematic and could result in incorrect, incomplete forms. Factoring in the lack of a dedicated field for this information, we predict disaster. Since the MRO is the last role in the chain of custody, uncorrected errors on forms would become an unintended burden for MROs. In this case, given the amount of information that FMCSA is requiring that does not have a prompt or instruction on the CCF, we believe that missing and incorrect information will become endemic.

Given that the likelihood of a significant number of donors failing to disclose the correct information is high, we would like clarification regarding procedure when information is missing or incorrect. Is it a correctable flaw as in the DOT Mode requirement? Would it be considered a fatal flaw given how disruptive the missing information would be to the Clearinghouse and to future background checks?

Furthermore, we are concerned that FMCSA would be proposing changes to the usage of the CCF without the partnership of the Office of Drug and Alcohol Policy and Compliance and the Department of Health and Human Services. We believe that any change to the usage of the CCF should come with changes to Part 40 and to the form itself.