When must a truck company randomly drug and alcohol test a driver after hiring?

A motor carrier must randomly givedice alcohol tests to 10% of its drivers and must randomly drug test 50% of its drivers. These percentages can be increased or decreased by the Federal Motor Carrier Safety Administration publishing a new percentage rate in the Federal Register. The new percentage requirement would then take place beginning January 1 of the following year.

The tests must be scientifically random, such as using a computer program that randomly chooses based on an employee identification number. The dates for random tests must not be announced and should be spaced randomly throughout the year. If a driver is chosen during the random testing for one period, that driver must still be included in all future random screens. That is, a driver is not “safe” from being chosen for a random screen simply because he was selected during the last screening period.

These regulations are found in Title 49 of the Code of Federal Regulations in Part 382.305.

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When must a truck company give a driver a drug test?

There are six general times drug test checklistwhen it is mandatory for a motor carrier to drug test a driver, or other employee in a safety-sensitive position:

  1. Before hiring—the driver must always be tested unless he or she has been in a federally-approved drug testing program in the past 30 days and meets other strict requirements.
  2. After a collision—the driver must be tested in all instances when there has been a death and in some cases when there have been injuries or a towed vehicle.
  3. Randomly—all motor carriers must have random drug testing of 50% of its drivers annually.
  4. Reasonable suspicion—all carriers must drug test drivers it has a reasonable suspicion violate drug regulations.
  5. Return-to-duty—all drivers must receive a return-to-duty drug test.
  6. Follow-up—Follow up tests must meet federal requirements.

These drug tests are all mandated by Part 382, Subpart C of Title 49 of the Code of Federal Regulations.

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When must a truck company randomly drug and alcohol test a driver before hiring?

drug testBefore hiring: Drivers of commercial vehicles must always be drug tested before a motor carrier hires them, unless:

• the driver participated in a federally-approved drug testing program in the past 30 days

AND

• was either
o tested for drugs in the past 6 months OR
o participated in a random drug program in the past 12 months

AND

• no prior employer of the driver has knowledge or records of a drug violation in the past 6 months

If a motor carrier does not drug test a driver because it believes he or she is exempt, then the carrier must obtain and retain the name of the program, proof of participation, proof the program meets certain federal requirements, proof that the driver has not refused to be drug tested, and the date and results of any drug tests.

A motor carrier may, but is not required, to test for alcohol before hiring a driver.These regulations are found in Title 49 of the Code of Federal Regulations in Part 382.201.

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How much insurance coverage is available in bus collision cases?

busA for-hire motor carrier operating in interstate commerce must have $5 million insurance for any vehicle that seats 16 passengers or more. The minimum insurance for vehicles that transport less than 16 passengers is $1.5 million. This applies, for example, when a private bus company takes people across state lines to a casino or from one state to another, like Greyhound or Megabus. These minimum insurance amounts are required by Title 49 of the Code of Federal Regulations, Part 387.

The federal minimum limits do not apply to school buses that transport students and teachers to and from school. Also, the minimum insurance limits do not apply to a bus operated by a motor carrier under contract with a school district when transporting preschool, elementary and secondary school student. A small minority of states have adopted 48 CFR 387, which means the limits apply in those states. In other states, it is necessary to look to state minimum insurance limits.

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What laws apply in a school bus accident?

The law that governs commercial motor vehicles, their companies and drivers is the school-busFederal Motor Carrier Safety Regulations (FMCSRs). These regulations are found in Title 49 of the Code of Federal Regulations and govern many areas of commercial transportation, such as random and post-collision drug and alcohol screening, minimum insurance limits, hours of service requirements, maintenance and inspection of vehicles, driver qualification criteria and much more.

On the whole, school buses are not covered by the FMCSRs except for drug and alcohol testing and commercial driver’s license requirements in some circumstances. Why not? The federal regulations apply to transportation that occurs interstate—across state lines. When a transportation company never crosses state line, which is usually true with school buses, then the federal government largely defers to state law.

To make things more complicated, most states have adopted the FMCSRs, so it’s necessary to analyze what regulations apply from state-to-state.

There is also a distinction between public transportation and for-hire school buses, even if hired by a public school. Here’s a quick guide when a school bus is involved in interstate transportation:

  School to Home or Home to School Extracurricular School Activities
Public School Transportation provided by Government Entity Not subject to FMCSRs Not subject to FMCSRs
Private School Transportation of non-college students Not subject to FMCSRs Subject to FMCSRs as non-business private motor carrier of passengers
Contract Transportation of non-college students Not subject to FMCSRs Subject to FMCSRs as for-hire carrier
Private college transporting with its employees Subject to FMCSRs as non-business private motor carrier of passengers Subject to FMCSRs as non-business private motor carrier of passengers
Contract Transportation of college students Subject to FMCSRs as for-hire carrier Subject to FMCSRs as for-hire carrier
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FMCSA Plans to Catch Chameleon Carriers

chameleonThe Federal Motor Carrier Safety Administration (FMCSA) has plans over the next two years to improve identification of chameleon carriers. Chameleon carriers, also called reincarnated carriers are motor carriers that shut down, often due to outstanding fines related to safety compliance, and reform as another company. In the past, the new company started with a clean slate and could start breaking the law again. I have handled many cases like this and have taken several to trial. In one, a family was repeatedly forced to close down their trucking companies for failure to conduct random drug tests, as required by federal regulation. They formed a total of 13 different companies before I took the case to trial in which one of their drivers was high on crystal meth and killed another truck driver.

The FMCSA is in the early stages of using its new system ARCHI (Application Review and Chameleon Investigation). Using information from the FMCSA’s Licensing and Insurance database, new carrier applicants are screened using all available data fields to spot chameleons–including address, phone number, applicant name, employer identification number and more. ARCHI algorithm also considers whether the prior carrier was in bankruptcy, was involved in a fatal or serious injury crash, was fined by the FMCSA, ever issued an out-of-service order or received an unsatisfactory safety fitness rating.

Now that ARCHI has been implemented, the FMCSA plans to spend the next year analyzing data and quantifying false-negative and false-positive results.

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New Illinois Laws for Obtaining a Driver’s License

Illinois has three new laws that apply to new drivers. Two take effect January 1, 2014:
1. Judges will no longer be permitted to sentence a person to “supervision” if they cause a fatal collision and do not have a clean driving record. Supervision allows the driver to pay a fine and sometimes attend driving school to avoid having a violation listed on their record.

2. Anybody ages 18-21 who did not take driver’s education in high school must complete a 6 hour driver training course before the state will issue a driver’s license.

In addition, the state has immediately put into effect a rule that it will deny driver’s licenses to anybody 18 years old or younger who have outstanding traffic citations.

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Horse trailer legislation

For the third year in a row, the U.S. Senate is considering legislation to make double-decker transport of horses illegal. The Horse Transportation Safety Act of 2013 bans transportation of horses in trailers with two or more levels, according to bill co-sponsor Senator Robert Menendez (D-NJ). Co-sponsor Senator Kirk of Illinois (R) states that it is not only a matter of cruelty but that motorists lives are put at risk.

The states of Maryland, Massachusetts, New York, Pennsylvania, Rhode Island and Vermont already ban double-decker horse transport. Arizona, California, Minnesota and Virginia have laws regulating their use. In 2007, the USDA banned double-decker trailer use for transporting horses to slaughter but does not have authority to issue a ban for other uses.

The bill is Senate Bill 1459 to amend Title 49 of the United States Code to prohibit the interstate transportation of horses in motor vehicles with 2 or more levels stacked on top of each other.horse trailer

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The OP-1 and MCS-150 forms in truck accident cases

OP-1 is a form motor carriers use to register with the Federal Motor Carrier Safety Administration (FMCSA) for operating authority. MCS- 150 is form to register for a USDOT number. Many companies will have filled out both forms. If you are an attorney handling a tractor trailer collision case, make sure you send a Freedom of Information Act requests request for both. They both include a spot for the carrier to sign that it is familiar with Federal Motor Carrier Safety Regulations. The forms contain other useful information such as commodities carried.

The states of Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, New York, Nebraska, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming require MCS-150 registration of commercial vehicles even when intrastate. All carriers will have MCS-150s, but not all will have OP-1s (for example, a private carrier). Brokers and freight forwarder will have an OP-1 but not an MCS-150.

Hazardous material haulers fill out an MCS-150B; all other carriers fill out an MCS-150. Brokers and for hire carriers hauling property fill out an OP-1. For-hire passenger carriers must fill out an OP-1(P). Freight forwarders fill out an OP-1(FF). OP-1(MX) refers to a Mexican carrier and OP-1(NNA) refers to a non-North American Carrier.

Here is a chart from the FMCSA that explains what company must fill out what form.

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FMCSA will not enforce 30 minute rest provision against short haul drivers

The Federal Motor Carrier Safety Administration (FMCSA) announced this week that consistent with the August 2, 2013 U.S. Court of Appeals decision, it will immediately cease enforcement of the 30 minute rest break provision against short haul drivers. While the court decision does not take effect until 52 days or more after the decision, the FMCSA will not wait to cease enforcement.

This means that all drivers (with or without commercial drivers licenses or CDLs) operating within 100 air miles of their workplace and who satisfy the requirement of 49 CFR 395.1(e)(1) are not required to take a 30 minute break after 8 hours driving. This is also true for non-CDL drivers who operate within 150 air miles of their workplace and who satisfy the requirements of 49 CFR 395.1(e)(2).

The FMCSA will initiate rulemaking consistent with the non-enforcement stance. I take this to mean that the FMCSA will not be appealing the recent court decision; certainly not with regard to the issue surrounding short haul drivers.

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