Lance Finley – CHASE, LLC – workplace substance abuse prevention and detection programs

FMCSA Clearinghouse II requires CDL downgrade

November 18, 2024, FMCSA Clearinghouse II requires CDL downgrade

What is the FMCSA Commercial Driver’s License Drug and Alcohol Clearinghouse?

The Clearinghouse is a secure online database that gives employers, FMCSA, State Driver Licensing Agencies (SDLAs), and State law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations. An act of Congress directed the Secretary of Transportation to establish the Clearinghouse.

The Clearinghouse enables employers to identify drivers who commit a drug and alcohol program violation while working for one employer, but who fail to subsequently inform another employer, as required.

Improving Highway Safety

The Clearinghouse provides FMCSA, SDLAs, and employers the necessary tools to identify drivers who are prohibited from operating a CMV based on U.S. Department of Transportation (DOT) drug and alcohol program violations, and ensure that such drivers receive the required evaluation and treatment before operating a commercial motor vehicle (CMV) on public roads.

The First Clearinghouse Rule

The first Clearinghouse final rule requires FMCSA-regulated employers, medical review officers (MROs), substance abuse professionals (SAPs), and consortia/third-party administrators (C/TPAs) to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 Code of Federal Regulations, Parts 40 and 382 by current and prospective employees.

The first Clearinghouse rule also requires the following:

Employers are required to query the Clearinghouse for current and prospective employees’ drug and alcohol violations before permitting those employees to operate a CMV on public roads.
Employers are required to annually query the Clearinghouse for each driver they currently employ.

The Second Clearinghouse Rule (CDL Downgrades)

The second Clearinghouse final rule (Clearinghouse-II) supports FMCSA’s goal of ensuring that only qualified drivers are eligible to obtain and retain a CDL. Beginning November 18, 2024, SDLAs will be required to remove the commercial driving privileges of drivers in a “prohibited” status in the Clearinghouse, which would result in a downgrade of the CDL until the driver completes the return-to-duty (RTD) process.

Clearinghouse-II also requires the following:

SDLAs must also query the Clearinghouse before issuing, renewing, upgrading, or transferring CDLs and issuing, renewing, and upgrading CLPs.
SDLAs must review a driver’s information when notified by FMCSA of a driver’s Clearinghouse status change.

Note: SDLAs with legislative authority currently have the option to voluntarily query the Clearinghouse and downgrade CDLs for prohibited drivers and may do so before the November 18, 2024 compliance date.

SOURCE: https://clearinghouse.fmcsa.dot.gov/About

Fall 2024

In this Newsletter

Oral Fluid Testing Part 2
Why Do We Need a Non-DOT Policy?
Drug & Alcohol History Checks

Oral Fluid Testing Part 2

Urine or Oral Fluid – Who Decides?

Urine drug testing is not going away in the DOT drug testing program once there are oral fluid devices approve for DOT use. Only the employer can authorize the use of either urine or oral fluid or switch to the other when there might be a problem collection such as:

A temperature that’s out of range.
A shy bladder with up to a three-hour wait time.
A specimen that appears to have been tampered with.
Dry mouth.

Applicants and employees cannot choose for themselves between urine and oral fluid testing. Collectors cannot make the decision to perform urine or oral fluid testing. The regulations stipulate that the choice is always an employer’s decision, however oral fluid testing will be required for directly observed collections for transgender and nonbinary individuals.

Employers should have standing orders so that the collectors know what specimen they need to collect for regular collections and direct observation, shy bladder, and dry mouth collections. The standing orders should include information on when to switch from urine to oral fluid or oral fluid to urine.

Now is the time to start making decisions about how you will incorporate Oral Fluid testing into your DOT drug testing program.

You should be aware that some information you’ll need may not be available yet, such as cost information, for comparison. Costs can’t be established by device manufacturers, labs, clinics, or TPAs until the devices and labs are approved.

Final Rule

Why Do We Need a Non-DOT Policy?

As a reminder…

Employers must have an up-to-date company NON-DOT drug and alcohol testing policy for employees and situations not covered under Federal (DOT) testing regulation. This includes but is not limited to, office personnel, post-accident testing when an accident does not meet DOT definitions, or work that is not covered under DOT authority (FMCSA, PHMSA, FAA, FTA or USCG). In addition to an up-to-date NON-DOT policy, you are subject to the state law and need addendums for each state in which the work is occurring. This is particularly important with marijuana testing regulation, restrictions on point of care collection testing (if your company wishes to do instant testing), restrictions on random testing, etc. There are many nuances to NON-DOT testing, especially for multi-state employers and we encourage our clients to take the necessary steps to get their NON-DOT policies updated, then reviewed and approved by their legal counsel. Current and up-to-date policies are necessary to protect against litigation and other legal issues that could arise related to drug and alcohol testing. The importance of this cannot be overemphasized. DON’T WAIT!

UPCOMING WEBINAR

HASE is sponsoring a webinar on November 21, 2024, at 11:00am CST. The webinar is hosted by Bill Judge and Nick Hartman of Drug Screening Compliance Institute. They will cover the general importance of updated company policies and then go into more detail about state specific drug testing, particularly marijuana testing laws in a few of the more complicated states, for example: New Jersey, New York and Minnesota. Please mark your calendars, the link will be sent out soon.

Drug Screening Compliance Institute

Drug & Alcohol History Check Process Reminders

Both a verified negative DOT urine drug test report and a properly initiated DOT Drug & Alcohol History Check are required before a new hire or rehire is eligible to perform PHMSA, FRA or FAA covered functions for any DOT regulated employer.

49 CFR Part 40 Section 40.25

If CHASE provides this service for you, in order for the history check to be completed within 30 days, you must submit the forms to CHASE within 3 days of any PE or RTD drug test. There must be a signed authorization form for each previous DOT regulated employer within the last 2 to 3 years. As a courtesy to help keep you in compliance, CHASE periodically sends deficit lists out to our clients for those employees who are missing the forms however, you should not wait for these lists to send the required documents.

There are still a few instances where your FMCSA employees are required to complete the drug and alcohol history check forms in addition to the FMCSA Clearinghouse query.

if your FMCSA employee also performs covered functions under another DOT agency, such as a CDL driver who operates equipment on a pipeline job site.
to obtain information from previous employers for new hires/rehires who have violations reported in the Clearinghouse or if an employee self-discloses a previous violation to you.
to obtain drug and alcohol testing information if a CDL driver was previously in a position covered by other DOT agencies such as PHMSA, FRA, etc

Help us keep you in compliance by submitting history checks on each new hire/rehire within 3 days of the pre-employment drug test.

Dr. Phillip Hayes

Dr. Phillip Walton Hayes, 81 of Dickson, TN passed away peacefully on March 28th, 2024, at Alive Hospice in Nashville, TN.

Phil was born on February 18, 1943, to Mitchell and Virginia Hayes and was a lifelong resident of Dickson, TN.

From an early age, Phil loved the outdoors and was one of the first Eagle Scout recipients in the Highland Rim District. During his High School years, he was an accomplished athlete and excelled in football and basketball at Dickson High School earning him an All-Midstate selection as quarterback. Not only did Phil excel in athletics but in leadership and academics as well, he was president of his class all four years of high school.

Phil went on to attend Vanderbilt University as an undergrad and was a member of Sigma Chi fraternity, he then went on to medical school at the University of Tennessee Memphis and completed his residency at Vanderbilt University. Upon completion of his residency, Phil came back to Dickson to start his practice in Internal Medicine and Gastroenterology. At this time, he was the first Internist in Dickson and loved helping his patients and serving his community.

Due to health reasons, Phil decided to leave his practice and later started CHASE, LLC which remains in operation today, 33 years after its inception. Phil poured his heart and soul into CHASE, making it a very successful business. He not only enjoyed the business aspect of CHASE he cherished the long-time friends and relationships that developed during his time there.

Phil was an avid duck hunter and a long-standing member of the Davy Crocket hunting club. He had previous involvement with the Tennessee Conservation League and the Tennessee Wildlife Resource Agency (Commissioner). In his later years, Phil very much enjoyed watching and playing the stock market, reading and spending time with his friends during duck season. Phil also loved his family and found special joy with his granddaughters.

If you ever got to spend time with Phil Hayes, you know one of his God given talents was telling stories. He was by far the best storyteller we will ever know, and we will forever miss his story telling hours sitting on the porch watching the Buffalo River.

It is hard to summarize the life of Phil as it is one that was full of not only accomplishments but adventures.

Oral Fluid Testing Part 1

Over the next few months, we will be sharing more information about Oral Fluid testing. Now is the time to start making decisions about how you will incorporate Oral Fluid testing into your DOT drug testing program. Your choices will need to be documented, included in your testing policies and shared with all clinics and collection companies that you utilize for testing.

The United States Department of Transportation (DOT) has approved oral fluid drug testing for DOT-regulated employers. Oral fluid testing will not begin until two laboratories are certified by the United States Department of Health and Human Services (HHS). This is still not available at this time.

Pros of Oral Fluid Testing

Cheating on oral fluid testing is more difficult
Can eliminate the three-hour shy bladder wait
There is a shorter window of detection than urine testing, so it’s beneficial for reasonable suspicion testing and post-accident testing
Eliminates direct observation dilemma

Cons of Oral Fluid Testing

Different detection rates from urine tests may hold donors to differing standards
Does not show historical drug use, so may miss positives that a urine test would catch
Untested in a largescale environment, like a job site, to know the true logistics of testing with this method

Non-DOT Programs

Now is a good time to reevaluate your employees in NonDOT positions and put a drug testing program in place. Let CHASE help you get started.

Registration Alerts

High Phishing Alert: Fake Safety Audit

An email is being sent to registered entities by someone pretending to be FMCSA and notifying you need to schedule a safety audit. The link to request the safety audit has what appears to be a SAFER URL and mirrors FMCSA’s MC-150, but includes fields to enter a PIN #, EIN #, and Social Security Number. Not only is some of this information Personal Identifiable information (PII), but this information would also allow the unauthorized party to gain access to your FMCSA account. The email containing the link is also very convincing this is coming from FMCSA.

Communications relating to safety audits will typically come directly from an FMCSA dedicated mailbox, or from the entity within the State that has been assigned the responsibility to conduct the safety audit. While these emails typically end in a “.gov”, we encourage our stakeholders and customers to verify any email or communication they feel to be suspicious with the appropriate agency or contact your FMCSA Division Office directly to clarify. The Federal Trade Commission (FTC) recommends following certain procedures for email verification.

FMCSA Registration Forms Processing Timeframes

Please be advised that we are experiencing delays in processing registration forms. At the current time, the estimated processing time may take up to two weeks. Multiple submissions may cause further delays in the processing timeframe. Services are still available for you to make online updates through the FMCSA Registration System. Thank you for your patience as we work to improve your experience to keep our motor carrier community safe and thriving.

Supporting Evidence for Updating Registration Records

Effective June 29, 2023: We implemented new requirements for updating a company’s registration record. Customers are required to submit supporting evidence along with their registration forms. • MCS-150/150B/150C, MCSA-5889 and OP-1 Forms: A copy of the Company Officer’s driver’s license is required.  • Updates to Company EIN: A copy of the company’s IRS EIN confirmation letter is required (Form SS-4). • Updates to Company Legal Business Name: A copy of the company’s Articles of Incorporation or Amendments, as issued by the Secretary of State, is required.

Go to FMCSA Registration Forms page if you need to download a form. Our support team is available to assist you with any other inquiries or concerns you may have. We are actively working on optimizing our procedures.

UPDATE: FMCSA Publishes Broker/Freight Forwarder Financial Responsibility Final Rule

On November 16, 2023, FMCSA published a Final Rule on broker and freight forwarder financial responsibility requirements. With this rule, the Agency has finalized regulations in five separate areas:

assets readily available;
immediate suspension of broker/freight forwarder operating authority registration;
surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency;
enforcement authority; and
entities eligible to provide trust funds for form BMC-85 trust fund filings.

It is FMCSA’s intent that the provisions in this rule will alleviate the effects of broker or trustee non-payment of claims. The rule is effective on January 16, 2024. The notice is available on the Federal Register at https://www.federalregister.gov/documents/2023/11/16/2023-25312/broker-and-freight-forwarder-financial-responsibility

HOW TO Define FMCSA Operating Authority Types for Freight Forwarders and Brokers

Continuing with the FMCSA’s Office of Registration “HOW TO” Video Series, we would like to present “HOW TO Define FMCSA Operating Authority (OA) Types for Freight Forwarders and Brokers”. If you’re registering with FMCSA for the first time, or if you are expanding your operations to offer additional services, you need to understand the requirements for Operating Authority (OA). In this video, we cover the types of Operating Authority (OA) for Brokers and Freight Forwarders, as these are distinct and different from Motor Carrier of Property (except Household Goods), Motor Carrier of Household Goods, and Motor Carrier of Passengers. The video summarizes regulatory guidance FMCSA issued on June 16, 2023, clarifying the definitions of “broker” and “bona fide agents”. It also explains the minimum levels of financial responsibility in the form of either a surety bond or trust fund agreement for $75,000 that both brokers and freight forwarders must maintain, as well as the appropriate levels of bodily injury and property damage insurance freight forwarders must maintain if they operate commercial motor vehicles. In addition, brokers and freight forwarders must designate a Process Agent in each State that they operate.

Now Using Login.gov

In response to the presidential mandate for Multi-Factor Authentication (MFA), in 2024, the FMCSA began its transition to Login.gov. All users with credentials for any FMCSA system will be required to use a Login.gov account to access FMCSA systems. Effective January 1st, Login.gov will solely be used for accessing the FMCSA Portal and the Unified Registration System (URS). More information will be shared as we work on the transition.
If you have an existing FMCSA Portal account, verify your FMCSA Portal Profile, ensuring your portal account’s email matches your Login.gov account. If you haven’t registered with Login.gov yet, use your Portal account email for registration. For assistance or inquiries about your Portal email, contact us.

Fraud Advisory

If you suspect your company has been victim of fraud or identity theft, we recommend using the official website of the Federal Trade Commission (FTC) dedicated to reporting fraud cases at: https://reportfraud.ftc.gov/#/

If you need assistance with your registration, please contact FMCSA by calling 1-800-832-5660.

FMCSA Position on Aggressive Telemarketing

FMCSA will not call you immediately after you submit your application for registration. However, FMCSA publicly displays motor carrier contact information (name, address, phone number) in accordance with the Government’s Open Data Policy and USDOT’s commitment in its Open Government Plan. This includes displaying contact information for all existing carriers registered with FMCSA and for all future applicants. Once this information becomes publicly available, please note that you may be contacted by private businesses and/or vendors.

While FMCSA requires evidence of financial responsibility and a process agent for many entities, the U.S. Government does not endorse and generally does not require the use of private businesses or vendors. FMCSA will not contact regulated entities through telemarketers or “robo-call” automated solicitations, nor will we request a credit card number or charge a fee for our downloadable forms. Please report aggressive or misleading telemarketers that pose as FMCSA or USDOT at: https://reportfraud.ftc.gov/#/

If you need assistance with your registration, please contact FMCSA by calling 1-800-832-5660.

FMCSA Daily Decisions on Operating Authority (CPLs, Reinstatements, Re-entitlements)

The official record of an entity’s operating authority registration is found on the FMCSA’s Licensing & Insurance (L&I) system once the certificate, permit, or license is generated. Once the L&I System reflects that FMCSA has issued the certificate, permit, or license, the motor carrier, broker, or freight forwarder is authorized to commence operations. The information in the L&I system is the authoritative source for whether an entity is authorized to engaged in non-exempt, for-hire interstate operations.

Hard copies of certificates do not represent an active authority to engage in operations. For this reason, FMCSA does not require domestic motor carriers or freight forwarders to maintain a copy of their certificate, permit, or license in the commercial motor vehicle. Enforcement of operating authority registration violations must be based on information maintained in the L&I System, not on the information in a paper copy of the certificate, permit, or license, or (for U.S. domestic motor carriers) on the absence of a paper copy in the vehicle.

Before beginning non-exempt, for-hire motor carrier, broker, or freight forwarder operations in interstate commerce, entities are required under 49 U.S.C. 13901 to obtain operating authority registration. FMCSA regulations in 49 CFR part 365 were promulgated to implement the operating authority registration requirement. Under 49 CFR part 365, entities must submit an application for operating authority registration to FMCSA for review. Under 49 CFR 365.115(b), after FMCSA review and publication in the FMCSA Register, “[i]f no one opposes the application, the grant published in the FMCSA Register will become effective by issuance of a certificate, permit, or license.”

While the above message is still accurate, FMCSA is now making available the six daily decision letters to the public the day they are generated. This prevents customers from having to wait on the hard copy letter that comes in the mail. Anyone can access these daily decision letters on our FMCSA Registration Homepage located on the left and top menu of our page. You can also find it by clicking on the “Daily Decisions” blue button below.

Credit: https://www.fmcsa.dot.gov/ February 16, 2024

DOT Publishes Drug Testing Rule

This final rule amends the U.S. Department of Transportation’s regulated industry drug testing program to include oral fluid testing. This additional methodology for drug testing will give employers a choice that will help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.

In order for an employer to implement oral fluid testing under the Department’s regulation, the U.S. Department of Health and Human Services (HHS) will need to certify at least two laboratories for oral fluid testing, which has not yet been done.

The final rule includes other provisions to update the Department’s regulation and to harmonize, as needed, with the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid established by HHS.

In addition, this rule amends the FAA, FMCSA, FRA and FTA regulations to ensure consistency within the Department of Transportation and by removing or adjusting references to the word “urine” and /or add references to oral fluid, as well as, removing or amending some definitions for conformity and to make other miscellaneous technical changes or corrections.

Part 40 Federal Register, Court Decisions and Legislation | US Department of Transportation