How to Successfully Survive a DOT Compliance Review Ken Edgell Pipeline Testing Consortium Drug and Alcohol Compliance Reviews All Modes conduct compliance reviews (CR) of DOT Drug and Alcohol Rules Drug and Alcohol portion of CR covers 49 CFR Part 40 and one Modal Rule (e.g., 49 CFR Part 382), as a minimum Scope of CR varies by mode (e.g., FMCSA review will be for more than “just drugs and alcohol”) CR – D&A Audit Basics Does company:      Have a program in place? Do appropriate testing? Use qualified Service Agents? Make immediate removals from safetysensitive duty when required? Maintain records? Provide proof of the above. 1 Paperwork Chain of Custody Form (CCF) Test Results SAP reports Background Checks (§40.25) New-hires Random Testing Lists Plans/Policies/Written Notices Interviews DER MRO SAP C/TPA Mock Collections Evaluation Outcomes Deficiencies: Yes or No If Yes, then:    Corrective Action Monetary Penalty Business Impact 2 Notification Letter Modes will notify employer under their regulatory purview      When (advanced notification) Where (principal place of business) CR time frame (6 mos. - 1 year) What records are/will be needed List of people to interview Employer Plans and Policies Employer plans/policy    How you intend to run your program What are your policies on prohibited drug use and alcohol misuse Education and training Written notice to each covered employee Employer Plans PHMSA: 199.101 (drugs), 199.202 (alcohol) “that conforms to the requirements of this part and the DOT Procedures.” FAA: “Antidrug and Alcohol Misuse Prevention Program Operations Specification,” 121.IX.A and B 3 Employer Policies and Notices Employee notices (e.g., 382.113) Ensure that materials and notices are provided to (each) those covered by program Educational materials Who is covered and when Who can answer questions How are tests conducted What is expected of employee What is a “refusal to test” Consequences of violation Payment for “split” test See Best Practices Manual: FTA Drug and Alcohol Testing Program, March 2002 Testing Laboratory 5-Panel drug tests Name of MRO DOT-approved device for alcohol tests Ability to produce training certificates Pre-Employment Tests Number of new hires for CR period Test results received prior to working in a safety-sensitive position FMCSA – PE “preemption” possibility, 382.301(b); verify Name/address of program; verify that driver participated; program complied w/Part 40; FAA -- 180 days may elapse between test and hire/work, 121 V.A.3 FTA – 90 days, 655.41(d) Background checks conducted, or record of “good faith” effort: dated copy of 40.25 requesthas form Driver not refused; date driver was last tested; results of any test w/in last 6 mos. PHMSA – 90 days, S.Wright email 4 40.25 -- “Background Check” Condition of employment pre-requisite 40.25(b) requirements Suggested form on ODAPC website www.dot.gov/ost/dapc/ Have up to 30 days to obtain information or produce “good faith effort” (FMCSA: specifies initial and follow-up; see Implementation Guidelines for Alcohol and Drug Regulations in highway Transportation, Aug. 2004) Random Testing Were enough tests conducted? All applicable personnel in testing pool? Testing conducted at industry testing rate or higher? If testing in C/TPA §40.347 (C/TPA pool, prove testing may perform RA is conducted per rule testing) §40.341 C/TPA services must meet requirements, or Scientifically valid method being used Work-shift spread (am, pm, weekends) Testing spread reasonably throughout the year “Scientifically valid method” Each covered employee has an equal chance of being tested Computer-based random-number generation, or Random-number (RN) table RN mapped to safety-sensitive employees’ identification numbers Testing conducted “with replacement” FMCSA: “The scientific community does not consider drawing names out of a hat or container to be a scientifically valid method for sampling.” FMCSA Implementation Guidelines 5 Calculating No. of RA tests: Example for FMCSA T = 50% x D/P (drugs) T = 10% x D/P (alcohol) T = Total RA tests (must equal or exceed) D = Driver positions eligible to be tested at time of selection P = Number of test periods per year 50% = RA drug test rate D = 49 drivers P = 4 test periods per year T T T T = = = = (.5 x 49)/4 (24.5)/4 6.125 round up 7 tests this period RA Test List (Sample) RAN SSN EMPLOYEE EMPLOYER TEST# DATE REMARKS 434 223-334444 226-553333 223-445555 221-442222 Jones, John Q Ken's Trucking Ken's Trucking 1 √ 1/3/07 1 2 √ 1/14/07* 2 Arnold, Mark T Baker, Ray R Ken's Trucking 3 √ 2/8/07 3 Ken’s Trucking 4 √ 2/17/07* 4 847 250-557777 Smith, Ann B Ken's Trucking 5 No See Alt1 Pre-approved vacation 951 Gates, Bill G Ken's Trucking 6 √ 3/14/07 6 Kent, Don M Ken's Trucking 7 √ 3/24/07* 7 1057 222-553333 228-551212 234-56-7890 Nova, Jean P Ken's Trucking Alt1 2/20/07 5 1221 234-55-6666 Hind, Rod T Ken's Trucking Alt2 Done 1256 245-88-6543 Trent, Tom T Ken’s Trucking Alt3 Done 451 690 699 1051 Jacks, Ace R Personnel File (Sample) 234-56-7890 Nova, Jean P 234-11-9090 Bonny, Parker L 234-55-6666 Hind, Rod T 244-99-8080 Gator, Ali B 245-88-6543 Trent, Tom T 226-55-1111 Zack, Harry D 235-77-3333 Jill, Wanda P 236-66-5555 Butler, Jerry G 223-33-4444 Jones, John Q 216-55-3333 Smith, Bill D 250-55-7777 Smith, Ann B 213-55-3333 Andrew, Joe T 211-66-4444 Manny, Mo J 223-88-5050 Newts, Gary W 221-09-7575 Mead, Ken L 214-60-4040 Taylor, Mike G 221-44-2222 Baker, Ray R 215-22-1111 French, Henry E 217-55-3333 Estes, Alan H 211-44-6666 Able, John H 210-33-7777 Murphy, Abe M 226-55-3333 Jacks, Ace R 227-44-8888 Bradley, Jim B 221-11-9999 Bradley, Omar H 222-55-3333 Gates, Bill G 215-44-7654 Huff, Sam U 257-77-9090 Albright, Nat R 240-77-2020 Crabs, Na H 291-33-4343 Bingo, Don A 223-99-5959 Grant, Ami E 272-44-3388 Oats, Warren F . 223-44-5555 Arnold, Mark T 228-55-1212 Kent, Don M . . . . . . . . . . . . 222-334532 Page, Homer R 6 “Reasonably spread” vs. Personnel “cycles” 240 Drivers; 4 Test periods (see *) 30 Average no. drivers = 20/mo. Minimum no. RA tests/yr. = 10 20 10 0 J* F M A* M J J* A S O* N D 240 Drivers; 4 Test periods* 50% x 20/4 = 2.5 in P1 (3) 50% x 30/4 = 3.75 in P2 (7) 50% x 20/4 = 2.5 in P3 (10) 50% x 10/4 = 1.25 in P4 (12) 40 Average no. drivers = 20/mo. 30 Minimum no. RA tests/yr. = 10 50% x 5/4 = .625 in P1 (1) 50% x 10/4 = 1.25 in P2 (3) 50% x 30/4 = 3.75 in P3 (7) 50% x 10/4 = 1.25 in P4 (9) 20 10 0 J* F M A* M J J* A S O* N D “Reasonably spread” – an alternative 240 Drivers; 5 Test periods* 40 Average no. drivers = 20/mo. 30 Minimum no. RA tests/yr. = 10 20 10 0 J* F M A* M J* J A* S O* N D 50% x 5/5 = .5 in P1 (1) 50% x 10/5 = 1 in P2 (2) 50% x 30/5 = 3 in P3 (5) 50% x 40/5 = 4 in P4 (9) 50% x 10/5 = 1 in P5 (10) Inspectors will expect you to know about your workforce and plan accordingly This expectation will not change even if testing is conducted by C/TPA Post-Accident Does accident meet modal criteria?  FMCSA (382.303):  Fatality? Yes, test.  Citation and injury?  Citation and towing?  Yes, test. Yes, test. If the accident did qualify, but test was not conducted – explain why 7 Reasonable Suspicion Determination made by trained supervisor or company official Written record of observation signed by supervisor or official who made observation Written record if test not conducted Return-to-duty and Follow-up RTD test:  Administered prior to individual returning to safety-sensitive duty FU tests:  Administered per SAP FU plan (number and frequency) Records Management Documentation that employees who tested positive (or refused) were removed from safety-sensitive duty Completed CCFs, by test category Results of tests (and associated reports) Dates of notifications for RA testing to employer Dates employees were notified to go for test MIS 8 Documentation of CCF (copy 2) Review Copy 2 Specimen ID# Employer Name Donor SSN Temp. Block, Observed Collector Name & Signature Donor’s Signature Consistent w/lab report? NEGATIVE Results Mark, Stamp, Initial, Date  John Jones, M.D. Report result – AFTER receipt of Copy 2 Lab Report Review Donor SSN Specimen ID# 14-Sept-2006 K CE 07/27/06 Clinical Reference Laboratory CLIA# 17D0667123 SAMSHA #0007 CAP #30211-01 09:36 PIPELINE TESTING CONSORT DR DAVID PAINE NAME: 0043761413 SSN: 000-00-0000 SAMPLE ID: 43374556 COLLECTED: 09/13/06 7 COMPOUND DR HUTCHINSON, KS 67502 CCF#:0043761413 RECEIVED: REPORTED: 09/14/06 09/14/06 EMPLOYER: KEN’S TRUCKING & GAS PH: (800) 555-1234 COLL SITE ID: N/S Negative Results COLL NAME: A CHIQUITA COLL PHONE: 8175554444 REASON FOR TEST: PRE-EMPLOYMENT SAMPLE TYPE: SAMSHA DRUG SCREEN INITIAL TEST ------------------ RESULT/STATUS ----------------------- CUTOFF/EXPECTED VALUES ---------------------------------------- COCAINE METABOLITES AMPHETAMINES (CLASS) MARIJUANA METABOLITE OPIATES PHENCYCLIDINE NEGATIVE NEGATIVE NEGATIVE NEGATIVE NEGATIVE 300 ng/Ml 100 ng/mL 50 ng/mL 2000 ng/mL 25 ng/mL RESPONSIBLE PERSON: RANDAL E. CLOUETTE, MSFS, RP REPORT CERTIFIED BY DANIEL R. KOLBOW Retention of Records Maintain records in a secure location Five years Three years One year 9 Compliance Review Notification (courtesy FMCSA, David Geasland) I will be in your place of business to conduct a Compliance Review on the above date. This review will cover what is commonly called the Federal Motor Carrier Safety regulations. You will need to provide the records as required in 49 Code of Federal Regulations. Parts 40 and 382 Controlled Substances (CST) and Alcohol Testing. Copy of the company policy, all drug and alcohol testing results, a summary of random alcohol and CST for this year and last year, the lists of drivers in all selection periods including who was selected for this year and last year, prior employer checks, and related documents. Part other 390 Accident records. This will include the Part 387 MCS 90 Insurance endorsement, for hire carriers only. register as well as accident reports. Part 395 Driver records of duty status for the past six months with supporting documentation to include all trip records and receipts. Part 391 Driver qualification. A list of current and terminated drivers for the past two years, including their hire date and CDL License Number. Driver qualification files which include: proper application, medical certificate, road test, motor vehicle record check, copy of the drivers CDL, annual review, annual certification, prior employer checks, and other related documents. Part 393 and 396 Maintenance records. This will include records for the past 12 months as well as roadside inspection reports. You must also have evidence of vehicle and brake inspector qualifications. FMCSA List of Acute and Critical Regulations §382.115(a) Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier) (acute). §382.201 Using a driver known to have an alcohol concentration of 0.04 or greater (acute). §382.211 Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382 (acute). §382.213(b) Using a driver known to have used a controlled substance (acute). §382.215 Using a driver known to have tested positive for a controlled substance (acute). §382.301(a) Using a driver before the motor carrier has received a negative preemployment controlled substance test result (critical). §382.303(a) Failing to conduct post accident testing on driver for alcohol and/or controlled substances (critical). §382.305 Failing to implement a random controlled substances and/or an alcohol testing program (acute). §382.305(b)(1) Failing to conduct random alcohol testing at an annual rate of not less than the applicable annual rate of the average number of driver positions (critical). §382.305(b)(2) Failing to conduct random controlled substances testing at an annual rate of not less than the applicable annual rate of the average number of driver positions (critical). List of Acute and Critical Regulations (cont.) §382.309(a) Using a driver who has not undergone a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02 (acute). §382.309(b) Using a driver who has not undergone a return-to-duty controlled substances test with a result indicating a verified negative result for controlled substances (acute). §382.503 Allowing a driver to perform safety sensitive function, after engaging in conduct prohibited by subpart B, without being evaluated by substance abuse professional, as required by §382.605 (critical). §382.505(a) Using a driver within 24 hours after being found to have an alcohol concentration of 0.02 or greater but less than 0.04 (acute). 382.605(c)(1) Using a driver who has not undergone a return-to-duty alcohol test with a result indicating an alcohol concentration of less than .02 or with verified negative test result, after engaging in conduct prohibited by part 382 subpart B (acute). §382.605(c)(2)(ii) Failing to subject a driver who has been identified as needing assistance to at least six unannounced follow-up alcohol and/or controlled substance tests in the first 12 months following the driver's return to duty (critical). 10 USCG Courtesy: Bob Schoening Vessel Inspection Now, how do you survive? Quality control PDCA The Shewhart Cycle Follow your rule By low, sell high 11