Entrapment?
I have issues with the Federal Motor Carrier Safety Administration guidance to drivers and students regarding interpretations they have provided that ask drivers/students to perjure themselves and violate 49 CFR § 390.35 Certificates, reports, and records: Falsification, reproduction, or alteration.
The guidance in the FAQ below ask drivers to falsify their status by attesting to be "employers" when they're not:
Can a driver complete a return-to-duty (RTD) test and have a negative RTD test result reported to the Clearinghouse if the driver does not have an employer?
Yes. Under 49 CFR 382.705(b)(1)(ii), employers that are subject to FMCSA’s drug and alcohol regulations in 49 CFR part 382 are required to report drivers’ negative RTD test results to the Clearinghouse. However, if a driver does not have a current or prospective employer subject to part 382 to send the driver for an RTD test and upload the negative result, the driver may register in the Clearinghouse as an owner-operator and designate a consortium/third-party administrator (C/TPA) for the limited purpose of completing the RTD process. Once designated, the C/TPA can direct the driver to submit to an RTD test and report the negative RTD test result to the Clearinghouse on the driver’s behalf. When the C/TPA reports the negative RTD test result, the driver’s Clearinghouse status will change from “prohibited” to “not prohibited,” thereby allowing the driver to resume driving a CMV and performing other safety-sensitive functions. Note: the driver’s follow-up testing plan prescribed by the substance abuse professional must be administered by the driver’s employer when the driver resumes working in a DOT safety-sensitive position.
Drivers using this option will need to create a new account in the Clearinghouse with the “Employer” role (note: this will require creating a new Login.gov account). When registering, select “Register as an Employer and Driver” and be sure to select “Yes” for the question “Are you an owner-operator?” Download step-by-step instructions. Drivers should not apply for a U.S. DOT Number when using this option to complete the RTD process.
Last Updated : September 16, 2024
The Federal Motor Carrier Safety Administration 's guidance is asking drivers to falsify the application on the D & A Clearinghouse's website. Whether or not the Federal Motor Carrier Safety Administration takes action is not relevant as the fact remains the "DRIVER" falsified the application violating Part § 390.35.
The Federal Motor Carrier Safety Administration cannot entrap drivers/students to make the Federal Motor Carrier Safety Administration 's job simpler. Parts 40, 382 and 390.5T defines an "Employer." And a driver that has no intention of owning a commercial motor vehicle per Part 382 can state they're an "employer:"
§ 40.1 Who does this regulation cover?
§ 40.3 What do the terms used in this part mean?
Employer. A person or entity employing one or more employees (including an individual who is self-employed) subject to DOT agency regulations requiring compliance with this part. The term includes an employer's officers, representatives, and management personnel. Service agents are not employers for the purposes of this part.
The Federal Motor Carrier Safety Administration has no authority over Part 40, that was clarified in the application by The Trucking Alliance when they asked the Federal Motor Carrier Safety Administration to include hair follicle testing. The Secretary of the U.S. Department of Transportation is the entity that regulates Part 40;.
§ 40.5 Who issues authoritative interpretations of this regulation?
The Federal Motor Carrier Safety Administration 's instructions violations Part § 40.11 What are the general responsibilities of employers under this regulation? and Part § 40.13 How do DOT drug and alcohol tests relate to non-DOT tests?: whereas, the driver is not an employer.
Since drivers/students do not own a commercial motor vehicle per Part § 382.107 Definitions they are not "EMPLOYERS":
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Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with this part. The term, as used in this part, means the entity responsible for overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations of this part and any applicable DOT agency regulations. Service agents are not employers for the purposes of this part.
Drivers may be a "DRIVER" if they're operating a commercial motor vehicle:
Driver means any person who operates a commercial motor vehicle. This includes, but is not limited to: Full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors.
Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle.
(1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
(2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater; or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
CDL/CLP students are also asked to falsify an application:
Training providers may also be C/TPAs While independent CDL training providers (i.e., training programs that are not operated by an employer) do not employ student drivers, they may provide the services of a consortium/third-party administrator (C/TPA) to student drivers. Independent CDL training providers intending to provide C/TPA services must register in the Clearinghouse as a C/TPA. To allow an independent CDL training provider to access the Clearinghouse on their behalf, the student driver must designate the CDL training provider as their C/TPA, and the CDL training provider must accept the designation request. For a summary of C/TPA Clearinghouse requirements, download the C/TPA Brochure.
Question:
Is a person who is attending a truck driving school, and does not yet have a commercial learner’s permit (CLP) or CDL, required to complete the part 40, subpart O return-to-duty process if they test positive on a drug or alcohol test administered by the school?
Answer:
Student drivers who do not have a CLP or CDL are not subject to the DOT drug and alcohol testing requirements. Therefore, a drug test performed by the driving school on a student who does not have a CLP or CDL is not a DOT drug or alcohol test and the student would not be subject to the DOT return-to-duty process.
If a driver training school employs a student driver, who holds a CLP or CDL, or leases a CMV to the student driver and the CMV is operated in commerce by the school, then the regulations in 49 CFR Part 382 apply to the driver training school. If the school is not an employer, the student driver is ultimately responsible for meeting these requirements, however the school may ensure that the student driver has complied with the requirements of part 382 prior to allowing the student driver to operate a CDL vehicle. See 49 CFR 382.103.
I appreciate that the Federal Motor Carrier Safety Administration has approximately 500 field investigators and 813,000 carriers with 15,000,000 CDLIS pointers vs 5,000,000 jobs; however, it cannot ask drivers/student to perjure themselves and violate 49 CFR Part § 390.35 Certificates, reports, and records: Falsification, reproduction, or alteration.
The Federal Motor Carrier Safety Administration has ZERO jurisdiction over 49 CFR Part §40; therefore, the Federal Motor Carrier Safety Administration cannot ask drivers/students/collectors to violate 49 CFR Part §40 or exclude those violating 49 CFR Part §40 any leeway in violating said rules.
I plan on spending the $400 or so to file an appeal with the US District Court here in Albuquerque. It seems to me the Federal Motor Carrier Safety Administration is asking drivers/students to perjure themselves and violate § 390.35 Certificates, reports, and records: Falsification, reproduction, or alteration.
I struggle with how our government functions..
Peace.