FMCSA Proposal Eliminates Confusion on Schedule I Drug Use by CMV Drivers

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The agency also plans to eliminate incorrect use of the term “actual knowledge” and harmonize Part 382 refusal-to-test provisions with Part 40 requirements.

Today, the Federal Motor Carrier Safety Administration (FMCSA) proposed changes designed to clear up “perceived” inconsistencies regarding Schedule I drug use by CMV drivers. The bottom line is that the use of Schedule I drugs by CMV drivers is never permitted.

Change 1: Schedule I Drugs
Here’s why some people are confused. Although 49 CFR Part 392.4 clearly prohibits the use of Schedule I drugs, other parts of the regulations are not so definitive. FMCSA is concerned that some may be interpreting that certain regulations (49 CFR Parts 382.213, 391.41 (b) (12), 391.43(f )) permit the use of Schedule I drugs when recommended by a medical practitioner.

While a physician’s prescription validates the use of other drugs, it does not, nor has it ever, applied to Schedule I drugs. In fact, Schedule I drugs cannot legally be prescribed in the United States. Even when a driver is taking a Schedule I drug as directed by a physician, the Medical Review Officer is not permitted to report a verified negative test result.

Under the proposed changes, the regulations will use the term “non-Schedule I drug” when making an exception for use as directed by a medical professional.

What’s a Schedule I Drug?

Schedule I Drugs are one of five classifications established by the Controlled Substances Act, which regulates the manufacture, possession, use and distribution of certain substances. Schedule I substances are those that have:

  • a high potential for abuse;
  • no accepted medical use in the U.S.; and
  • a lack of accepted safety for use under medical supervision.

At this time, Federal law only allows for the use of Schedule I substances in research, chemical analysis or the manufacture of other drugs. Examples of Schedule I drugs include marijuana, heroin, ecstasy (MDMA), mescaline and peyote.

Medical Examination Form to Be Updated
In conjunction with the regulatory change, FMCSA plans to update the Medical Examiniation Report for Commercial Driver Fitness Determination form. Once the changes are finalized, Foley will update DQF 2: Medical Examiniation Report and DQF 2-1: Medical Examiner’s Instructions and ensure that they are available before the effective date.

Change 2: Refusals
FMCSA is also proposing to clear up an inconsistency between the DOT’s Part 40 and FMCSA’s Part 382 drug and alcohol testing regulations. Part 40 deems refusing pre-employment and return-to-duty tests as violations that require drivers to complete the return-to-duty process. Currently, FMCSA’s 49 CFR 382.211 does not include pre-employment and return-to-duty refusals as violations. The agency is proposing to correct this inconsistency by adding pre-employment and return-to-duty refusals to the prohibitions in 382.211.

Change 3: Actual Knowledge vs. Knowledge

Finally, FMCSA is proposing to replace the term “actual knowledge” with “knowledge” in 49 CFR Parts 382.201 and 382.215 to clarify the regulations. The problem is that “actual knowledge” is defined elsewhere as the observation of alcohol or controlled substances use. Parts 382.201 and 382.215 address test results — not observed use — so the use of the term knowledge is more appropriate.

Comments Due by Sept. 6
FMCSA is accepting comments on the proposed changes through September 6, 2011. To comment, or to read what others have to say, visit and search for Docket No. FMCSA-2011-0073. To request a PDF copy of the proposal, send an email to This email address is being protected from spambots. You need JavaScript enabled to view it..

Transportation Ticker

U.S., Mexico Ink Cross-Border Trucking Agreement. The United States and Mexico signed a three-year memorandum of understanding this week paving the way for the return of cross-border trucking and the suspension of retaliatory tariffs.

Safety is a major focus of the pilot program, according to the DOT. Mexico-based carriers participating in the pilot will be required to complete a three-stage evaluation process in order to receive permanent operating authority.

The program’s terms and conditions require Mexico-based carriers and drivers to comply with all Federal Motor Vehicle Safety Standards, track hours-of-service compliance with electronic monitoring systems, and submit to drug tests conducted by HHS-certified labs in the U.S. Additionally, the DOT will review complete driving records, and program participants must complete an English language assessment.
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Editor: Roxanne Swidrak, Vice President, Operations • 1-800-253-5506 • • Vol. 111, No. 694 • © Foley Carrier Services, LLC. 2011