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FMCSA aims to close OOS loophole for drug violations
CVSA petition seeks addition of specific language present for alcohol-related violations
(KampolG via Getty Images)
Key Takeaways:
- FMCSA on Sept. 17 granted a CVSA petition and began rulemaking to close a loophole that can allow drivers placed out of service for drug possession to keep operating.
- CVSA said the gap prevents enforcement of active out-of-service orders after drugs are confiscated because later stops may lack contraband for a new violation.
- The proposal would impose a 24-hour out-of-service period and explicitly bar driving during that time while FMCSA reviews comments before deciding on regulatory changes.
The Federal Motor Carrier Safety Administration will begin a rulemaking process to close an enforcement loophole that can allow truck drivers placed out of service for drug possession to keep operating after the drugs have been confiscated.
FMCSA on Sept. 17 granted a petition from the Commercial Vehicle Safety Alliance seeking changes to 49 CFR 392.4, which governs drugs and other substances. The proposal would add language already found in the agency’s alcohol regulation, making it explicitly illegal for a driver to violate an out-of-service order once it has been issued.
Under current rules, drivers found in possession of drugs can be placed out of service, but the regulation does not specifically prohibit them from continuing to drive while that order remains in effect. By contrast, alcohol-related violations carry a mandatory 24-hour out-of-service period and language that allows enforcement officers to cite drivers who continue operating during that time.
CVSA said the gap creates a problem when a driver is stopped a second time after the drugs have been seized.
“If the same driver had been placed out of service for possession of alcohol, because of the language found in 392.5(c), the second inspector would be able to enforce the out-of-service order,” CVSA stated in its petition. “Possession of a controlled substance poses the same risk to safety as possession of alcohol.”
CVSA noted that in most cases, inspectors or law enforcement officers confiscate the controlled substance during the initial roadside stop. Once the drugs are removed from the vehicle, a second officer who later stops the driver has no contraband on which to base a new drug-possession violation.
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“Because the controlled substance was seized at the first stop, there is no longer any contraband in the vehicle to authorize the issuance of a new out-of-service order and, as a result, there is no way to enforce the original out-of-service order and prevent the driver from continuing on their trip,” CVSA said.
The proposed rule would address that problem by requiring drivers found in violation of the drug-possession provisions to be placed out of service immediately for 24 hours and by explicitly prohibiting them from driving until the order expires.
CVSA submitted the petition after the Alabama Law Enforcement Agency identified the issue during roadside enforcement. In one case cited by CVSA, a driver was placed out of service in Mississippi for 24 hours after being found with marijuana. The driver was later stopped in Alabama while the out-of-service order was still active, but law enforcement there was stymied by the lack of specific language to keep the driver off the road.
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“Currently, there is no language in 392.4, ‘Drugs and other substances,’ prohibiting a driver from violating an out-of-service order,” CVSA said.
FMCSA Administrator Derek Barrs said the petition presented sufficient justification to begin the rulemaking process. He emphasized, however, that opening a rulemaking does not guarantee a regulatory change and that the agency will consider all available information, including public comments, before deciding whether to amend the regulation.
