Three-Month Waiver in Response to the Economic Consequences of the
COVID-19 Public Health Emergency –
To Relieve Employers of Commercial Motor Vehicle Drivers Subject to 49 CFR Part 382
from Certain Pre-Employment Testing Requirements

June 5, 2020

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Grant of waiver.
SUMMARY: FMCSA grants a three-month waiver from certain pre-employment testing
requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds
to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery,
issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019
(COVID-19) public health emergency.
DATES: This waiver is effective June 5, 2020, and ends on September 30, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. David J. Yessen, Chief of the
Compliance Division, Office of Enforcement and Compliance, 202-366-1812, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107,
June 9, 1998) provides the Secretary of Transportation (the Secretary) authority to grant waivers
from any of the Federal Motor Carrier Safety Regulations issued under Chapter 313 of Title 49
of the United States Code or 49 U.S.C. § 31136, to a person(s) seeking regulatory relief (49
U.S.C. §§ 31136(e), 31315(a)). The Secretary must make a determination that the waiver is in
the public interest and that it is likely to achieve a level of safety equivalent to, or greater than,
the level of safety that would be obtained in the absence of the waiver. Individual waivers may
be granted for a specific unique event for a period up to three months. TEA-21 authorizes the
Secretary to grant waivers without requesting public comment, and without providing public
notice.
The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to
carry out the functions vested in the Secretary by 49 U.S.C. chapter 313, relating to commercial
motor vehicle operators, and 49 U.S.C. chapter 311, subchapter I and III, relating to commercial
motor vehicle programs and safety regulations.
Background
On May 19, 2020, the President issued Executive Order No. 13924 setting forth “the policy of
the United States to combat the economic consequences of COVID-19 with the same vigor and
resourcefulness with which the fight against COVID-19 itself has been waged.” Among other
things, the Executive Order directed executive branch agencies to “address this economic
emergency by … waiving [] or providing exemptions from regulations and other requirements
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that may inhibit economic recovery consistent with applicable law and with protection of the
public health and safety ….” This waiver responds to the unique circumstances of certain preemployment testing requirements arising from the economic emergency identified in the
President’s Executive Order, as further described below.
Various measures employed to reduce the spread of COVID-19, including social distancing, and
stay-at-home and business closure orders issued by State and local governments, have
significantly decreased demand for motor carrier services, particularly from passenger carriers.
In response to the COVID-19 public health emergency, many employers have imposed layoffs,
furloughs, or otherwise temporarily removed employees from performing safety-sensitive
functions, as defined in 49 CFR 382.107, resulting in their removal from the random pool for
controlled substances and alcohol testing for a period greater than 30 days. As employers begin
calling these drivers back to work, they will incur the cost of conducting pre-employment
controlled substances testing before using these drivers to perform safety-sensitive functions, as
required by 49 CFR 382.301. The administrative and cost burdens of pre-employment testing for
furloughed drivers outside the random testing pool for more than 30 days falls on motor carrier
employers at the very time they are attempting to return to expanded levels of operation. The
Agency finds that temporary regulatory relief from this burden will aid in the economic recovery
of motor carriers impacted by the COVID-19 public health emergency, without negatively
impacting safety. FMCSA also concludes that this waiver will aid in the Nation’s overall
economic recovery by enabling the efficient resumption of the transportation of people and cargo
throughout the United States.
FMCSA’s Determination and Regulatory Provisions Waived
Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the
public interest to issue a waiver, until September 30, 2020, limited in scope and circumstances,
that is likely to achieve a level of safety equivalent to, or greater than, the level of safety that
would be obtained in the absence of the waiver.
Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safetysensitive functions for an employer, the driver must undergo pre-employment testing for
controlled substances and the employer must receive a verified negative controlled substances
test result for that driver from a medical review officer or a consortium/third party administrator.
This requirement also applies each time a driver returns to work after a furlough, lay-off, or other
period of unemployment when the driver does not continue to be subject to random controlled
substances testing in accordance with 49 CFR 382.305.
Section 382.301(b) provides an exception allowing an employer to forgo administration of a preemployment test if the driver has participated in a controlled substances testing program that
meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while
participating in that program, the driver either: (i) was tested for controlled substances within the
past 6 months or (ii) participated in the random controlled substances testing program for the
previous 12 months. In addition, under the exception, the employer would be required to ensure
that no prior employer of the driver has records of a violation of 49 CFR part 382 or the
controlled substances use rule of another DOT agency within the previous six months.
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As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for
the company for more than 30 days, the cost and logistical barriers of testing a large influx of
drivers in a short timeframe are significant, at a time when the commercial trucking and
motorcoach industry is facing unprecedented economic challenges. This problem is further
compounded by the reduced availability of controlled substances testing resources due to
continued facility closures or other testing impediments caused by the COVID-19 public health
emergency.
This waiver would extend, from 30 days to 90 days, the period under which drivers would
qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would
allow employers to forego pre-employment testing for drivers who have participated in a
controlled substances testing program that meets the requirements of 49 CFR part 382 within the
previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for
drivers who were in a testing program within the previous 90 days will provide relief from the
administrative burdens and costs associated with administering tests and allow them to return
drivers to the workforce in a more efficient manner, thus promoting job creation and economic
growth.
Public Interest
FMCSA finds that the granting of this waiver is in the public interest because it will facilitate the
efficient return of furloughed commercial motor vehicle drivers to the workforce, allowing them
to resume critical transportation functions performed by passenger and property motor carriers.
In addition, this waiver will reduce the regulatory burden on employers and furloughed drivers
subject to the pre-employment testing requirement.
Safety Equivalency
Due to the limited scope of this waiver and the ample precautions that remain in place, FMCSA
has determined that the waiver is likely to achieve a level of safety that is equivalent to the level
of safety that would be obtained absent the waiver. The waiver of a particular regulation should
not be looked at in isolation but rather as part of the whole of all regulations governing the safety
of drivers. Waiver determinations are made holistically, taking all relevant factors into account.
See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). For example, in
these circumstances, it is important to note that this waiver does not alter any of the remaining
controlled substances and alcohol use and testing requirements for a driver performing safetysensitive functions, and that motor carrier employers subject to the waiver have access, in real
time, to driver-specific drug and alcohol violation information through the Drug and Alcohol
Clearinghouse (Clearinghouse).
Section 382.301(b) sets forth the following conditions a driver must meet to be excepted from
pre-employment testing:
(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:
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(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 [part 382] or the controlled substances use rule of
another DOT agency within the previous six months.
FMCSA finds that extending the period for which drivers would qualify for the pre-employment
testing exception under 49 CFR 382.301(b)(1), from 30 to 90 days, will not negatively impact
safety. The existing requirement that an employer relying on the § 382.301(b) exception must
verify that the driver participated in the controlled substances testing specified in
§ 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled
substances use regulations within the previous 6 months remains in effect. Moreover, employers
must conduct a pre-employment query of the Clearinghouse for returning drivers, as required by
§ 382.701(a). The Clearinghouse, which became operational on January 6, 2020, enables
employers to identify drivers, including furloughed drivers, who have committed an FMCSA
controlled substances and alcohol testing program violation that renders them ineligible to
perform safety-sensitive functions. Such drivers are prohibited from performing safety-sensitive
functions until completing the return-to-duty process, as set forth in 49 CFR part 40, subpart O.
The Clearinghouse provides employers with a useful new tool for identifying drivers’ drug and
alcohol program violations that did not exist at the time the Agency enacted the 30-day limit for
the exception in § 382.301(b). Further, employers must continue to complete a background
investigation on returning or prospective drivers’ controlled substances and alcohol testing
history with all DOT-regulated employers that employed the driver within the previous 3 years,
in accordance with 49 CFR §§ 40.25, 382.413, and 391.23.
FMCSA believes that the current regulatory framework, as well as the additional measures listed
below under Terms, Conditions, and Restrictions of the Waiver, taken collectively, provide the
assurance needed to meet the legal standard that granting the waiver is likely to achieve an
“equivalent level of safety.” Therefore, FMCSA has determined that extending from 30 to 90
days the period for which drivers would qualify for the pre-employment testing exception under
49 CFR 382.301(b) during the period of the waiver is likely to achieve a level of safety that is
equivalent to, or greater than, the level of safety that would be obtained in the absence of the
waiver.
Unique Circumstances
The COVID-19 public health emergency has led to unprecedented impacts to the Nation’s
economy. Various measures employed to reduce the spread of COVID-19, including social
distancing, and stay-at-home and business closure orders issued by State and local governments,
have significantly decreased demand for motor carrier services, particularly from passenger
carriers. In response to the COVID-19 public health emergency, many employers have imposed
layoffs, furloughs, or otherwise temporarily removed employees from performing safetysensitive functions. FMCSA finds that the circumstances surrounding this waiver are unique due
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to the urgent need to remove regulatory barriers to allow the efficient resumption of motor
carrier operations.
For the reasons noted, FMCSA grants a three-month waiver as provided above, subject to the
terms, conditions, and restrictions below.
Terms, Conditions, and Restrictions of the Waiver
This waiver covers employers of drivers subject to the requirements of 49 CFR part 382 for the
period beginning at 12:01 a.m. (ET) on June 5, 2020, and continuing through 11:59 p.m. on
September 30, 2020.
(1) Employers must verify that the driver participated in the controlled substances testing
specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT
agency’s controlled substances use regulations within the previous 6 months;
(2) Employers must comply with the Clearinghouse pre-employment query requirement set forth
in 49 CFR 382.701(a);
(3) Employers must not allow a driver to perform any safety-sensitive function if the results of a
Clearinghouse pre-employment query demonstrate that the driver is prohibited from doing
so, in accordance with 49 CFR 382.701(d);
(4) Employers must complete the investigations and inquiries required by 49 CFR §§ 40.25,
382.413, and 391.23;
(5) Accident Notification. Each employer must notify FMCSA within 5 business days of an
accident (as defined in 49 CFR 390.5), involving any driver operating under the terms of this
waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry). Notification shall
be by email to MCPSD@DOT.GOV. The notification must specify that the driver was
operating under the terms of this waiver and must include the following information:
i. Date of the accident;
ii. City or town, and State in which the accident occurred, or closest to the accident scene;
iii. Driver’s name and license number;
iv. Vehicle number and State license number;
v. Number of individuals suffering physical injury;
vi. Number of fatalities;
vii. The police-reported cause of the accident (if available at time of the report); and
viii. Whether the driver was cited for violation of any traffic laws, or motor carrier safety
regulations; and
(6) FMCSA reserves the right to revoke this waiver due to drivers’ involvement in accidents or
employers’ failure to comply with the terms of this waiver.

Jim Mullen
Deputy Administrator

The Federal Motor Carrier Safety Administration has canceled a study meant to gauge the safety aspects of allowing truck drivers to split their on- and off-duty time into segments. The agency’s new — and pressing — move to propose changes to hours of service regulations has rendered the study moot, according to sources familiar with the agency’s decision, including a senior official at FMCSA.

David Heller, vice president of regulatory affairs for the Truckload Carriers Association, said a high-level official at the agency told him in late October that the study had been nixed. The FMCSA official said then that the “study is no longer needed,” Heller says, because of the advanced notice of proposed rulemaking (ANPRM) published in August that sought feedback on ways to potentially reform hours of service regulations.

The study has been in the works for several years, and a pilot program was scheduled to begin this year. Researchers hoped to study 200 truck drivers operating in real-world conditions, with some of them abiding by current hours of service regulations and some operating under rules that allow them to split their 10-hour off-duty period into segments of 5-5, 6-4 and 7-3. Current hours of service regs only allow for rolling splits where the longest period is at least eight hours.

The administration wants to fast track any changes to hours of service,” Heller said. FMCSA Administrator Ray Martinez used the same “fast track” phrasing in August. As Overdrive previously suggested in reporting, Heller said a proposed rule is expected to be published within the first few months of 2019 — much quicker than the study’s results could be obtained.

A senior official at FMCSA confirmed that the agency has “pulled the plug” on the study, saying it wouldn’t be finished in time to provide any insight into the agency’s proposal to alter hours of service regulations.

Heller also pointed out that the website that the agency was using to promote the study and provide updates, sleeperberthstudy.com, is no longer active.

Trucker Bob Stanton noted that, among those likely to challenge any shift in hours of service, the study held the potential to help tamp down criticism, particularly from crash victims’ advocates, of the perceived “lack of data to support the proposed changes.”

Such advocates, Stanton added, have “said they would litigate without research to support the changes.”

FMCSA published its ANPRM in late August and solicited feedback for 45 days on how and why it should make any changes to the existing HOS rule. The agency received roughly 5,200 comments on the ANPRM. Adding split-sleeper berth options to hours of service regs and in other ways changing how the split works is among hours revisions proffered by groups in petitions highlighted in the agency’s ANPRM.

OVERDRIVE

There are a number of reasons why you or a driver may be given a refusal to test

Sometimes, it’s as simple as not showing up for a required test. Or, perhaps you showed up for the test, but were unable to provide an adequate sample.

Regardless of the circumstances, the DOT views a refusal to test as being equal to a positive test result. If you’re given a refusal to test, you can expect the following to occur:

• You will be immediately removed from all safety sensitive job functions. If you’re behind the
  wheel of a truck, you will need to stop driving as soon as you can safely do so.
• You must be evaluated by a Substance Abuse Professional (SAP).
•  If the SAP recommends any counseling or substance abuse treatment, you must complete
  that before returning to work.
• You must take a return-to-duty drug test and provide a negative result.

Substance Abuse Professionals

A Substance Abuse Professional (SAP) works directly with employees who have tested positive or otherwise violated DOT drug and alcohol rules. If you or your driver is pulled from safety sensitive job functions because of a violation, the assigned SAP will provide an evaluation and provide the recommended next steps for the employee. This may include education, counseling, treatment, follow-up tests and aftercare.

It’s important to remember that SAPs act as a neutral party in the return-to-duty process and neither represent the employee or the employer. Instead, their job is to provide unbiased recommendations based on DOT regulations and their own professional standards.

Your Responsibility as a Safety Sensitive Employee

If you’re employed as a DOT-regulated, safety-sensitive employee, there are certain rules you must follow in order to remain compliant with the federal safety regulations:

• You must not report to work, or perform any safety-sensitive functions, while you’re either under the influence, or in possession, of alcohol or illicit drugs.
• You must not use alcohol within four hours of reporting to work. If you’re a flight crew member or flight attendant, you must not use alcohol for eight hours before reporting to work.
• You must not use any controlled substances (unless prescribed by an authorized medical practitioner) while on duty.
• You must not refuse to submit to drug or alcohol testing.
• You must not adulterate or substitute your specimen. This will be considered a refusal to test.

Complying with your federal drug and alcohol testing requirements is an important part of  your career as a commercial motor carrier.

A federal rule to require truck operators to use electronic logging devices to keep records of duty status is slated to be published in the Federal Register on Friday, the Federal Motor Carrier Safety Administration has announced. The rule will take effect Dec. 16, 2017, giving carriers and drivers a two-year window to comply with the rule’s requirements.

Upon beginning use of an ELD, drivers will no longer be required to keep and maintain paper logs. They will, however, be required to maintain supporting documentation and submit them to their carrier or, for owner-operators, keep them on file.

The rule requires drivers currently required to keep paper logs to use ELDs, with a few exceptions (see them below). The mandate, however, will not apply to drivers of vehicles built before the year 2000 — a change made from 2014’s proposed version of the rule.

The rule also spells out safeguards against driver harassment via the devices, hardware specifications of the devices and supporting documentation drivers must continue to keep after the mandate.

FMCSA says the rule will save the industry $1 billion a year, mostly in time and money saved on paperwork, the agency says. It also says the rule will “save 26 lives and 562 injuries” a year, the agency said in a press release.

Here’s a look at the mandate’s key components:

A proposed federal rule to require the use of speed limiters on heavy-duty trucks has cleared its final hurdle in the regulatory process and will likely be published in the coming weeks. The White House’s Office of Management and Budget stamped its approval on the rule Aug. 12, according to the White House’s online rulemaking portal.

The Notice of Proposed Rulemaking may now be published at the U.S. Department of Transportation’s discretion. Rules are generally published in the weeks following their clerance of the OMB.

The speed limiter rulemaking was initiated in March 2014, following a petition by the American Trucking Associations and Roadsafe America. ATA has said it asked the DOT to implement a 65 mph speed limit on trucks weighing more than 26,000 lbs.

The U.S. Senate’s Appropriations Committee April 21 passed 30-0 a bill that corrects a legislative mess-up from December that put the 34-hour restart in jeopardy.

It makes clear that the restart remains available for use by truck operators should a pending study by the Department of Transportation find that pre-July 2013 restart rules are more effective for truckers’ fatigue levels than those that took effect July 1, 2013.

Should that be the case, the bill would also kick in a few changes to hours of service limits. Specifically, it would set a 73-hour cap on the amount of time truckers can spend on duty in any consecutive seven-day period after utilizing a 34-hour restart. According to the bill’s text obtained by Overdrive, “the 7-day measurement period moves forward 1 day at midnight each day.”

Current 60 hours in 7 days and 70 hours in 8 days provisions would remain intact.

If, however, the DOT study finds that the July 1, 2013-enacted restart regs are the safer rules, then hours of service regulations from July 2013 would go back into effect. In that case, truckers could use a 34-hour restart to reset their weekly clock, but the restart would be required to contain two 1 a.m. to 5 a.m. periods and would be limited to use once per week.

In this scenario, the new 73-hour cap would not go into effect.

Before the Senate’s legislation, the 2017 FY Transportation and Housing and Urban Development funding bill, can become law, it must still be passed by the full Senate, where amendments could change it. The same provisions must also be taken up by the U.S. House and passed there.

The changes to truckers’ hours of service rules were prompted by the need for Congressional action to fix a technical problem enacted by last year’s omnibus funding act. The provisions in that law pertaining to the 34-hour restart could kill the 34-hour restart entirely, per some interpretations.

The Senate’s action with the T-HUD bill shows Congress may intend to do more than clarify its December mistake. Lawmakers and lobbyists appear to be using the need for Congressional action as a means to circumvent the Federal Motor Carrier Safety Administration and the formal executive rulemaking process to enact hours changes.
The Senate and House have not passed a lone Transportation and Housing and Urban Development (THUD) funding bill in years, settling for so-called omnibus funding bills late in the year. If that’s the case this year, the provisions would need to be included in such a bill and passed by both chambers of Congress

Other trucking-related initiatives in the bill include a deadline for DOT to finish work on a rule to mandate the use of speed limiters on heavy trucks and assign more federal funds to the deployment of autonomous vehicles.

Trucking org calls for removal of hours reform in Senate bill, says ELDs should guide new rules

The Trucking Alliance issued a statement May 2 urging Congress to forgo the recently unveiled changes to hours of service regulations for truck drivers and to wait on the implementation of the coming electronic logging device mandate before issuing any reforms to hours of service regs.

The May 2 letter comes in response to provisions included in the Senate’s 2017 Department of Transportation funding bill relating to hours of service rules. In short, the bill could set a new 73-hour cap on the amount of hours truckers can work in a consecutive seven-day period following a 34-hour restart. The new cap would be contingent on a pending study by the DOT’s Federal Motor Carrier Safety Administration. Should the study find the hours rules currently in effect are safer than those in effect between July 2013 and December 2014, the 73-hour cap would take effect. For more details on the potential changes

§ 395.8: Driver’s record of duty status.

Disclaimer:

Roadcheck, the annual inspection blitz done by a joint effort of the Commercial Vehicle Safety Alliance, Federal Motor Carrier Safety Administration and others, is set to take place next week, June 2-4.This year’s special emphasis will be cargo securement, though inspectors will still be primarily performing full 37-step Level I inspections — the most thorough inspection — throughout the week. Roadcheck, as most of you well know, I’d wager, is coming up as usual the first week of June, the 2nd through 4th to be exact. The nationwide inspection blitz, as it’s typically described, this year takes as its theme a focus on cargo securement (flatbedders, look out!), though the general routine during Roadcheck is the full Level 1 truck/driver inspection. It’s a big time for inspections all around the country, but at once, judging by nationwide inspection numbers of the last couple years, the “Roadcheck effect” in the numbers overall looks minimal in month-to-month view. The more observant among readers over the years have routinely remarked that law enforcement’s telegraphing of the event with announcements months ahead of time may dampen its impact. Good week to take a little well-deserved R&R for many truckers, such that that’s possible. June, the month the blitz has taken place the last two years, showed actually smaller numbers than the month preceding it in 2013, lending credence to reader reports of some states “getting started early” on the blitz, to paraphrase more than one May dispatch we’ve gotten over the years. June inspection numbers in 2014 were only slightly higher than May last year. As a general rule, too, activity is certainly elevated on the inspections front this time of year, as the Spring freight season heats up with temps. Good weather brings the inspectors out, too, with greater regularity and frequency. In 2014, the month of June accounted for 9 percent of total inspections throughout the year, nearly a percentage point above the 8.3 percent that would be an normative month for the year if inspection numbers were consistent month-to-month. (Data here and in the chart above are from the federal system, analyzed by Overdrive and the folks at RigDig Business Intelligence, unless otherwise noted. Access more via OverdriveOnline.com/csa, updated through 2013, with 2014 inspection and violation numbers and rates, maps and charts coming soon.)  Roughly 10,000 inspectors from state, local and federal enforcement agencies will  perform nearly 70,000 inspections on trucks and buses over the 72-hour period. They will be stationed at 1,500 inspection points around North America