Rule would create a “single federal repository recording positive drug and alcohol tests by CDL holders that employers would be able to search to ensure that the driver is able to perform safety-sensitive duties.”

UPDATED: FMCSA to issue long-sought rule on CDL drug/alcohol clearinghouse

Feb. 13, 2014
Clearinghouse would enable access to verified positive drug/alcohol test results

A proposed rule, which trucking has lobbied some 15 years for, to set up a national clearinghouse— a central database-- of CDL holders to track those in violation of federal drug/alcohol-use regulations has at last been announced by the Federal Motor Carrier Safety Administration (FMCSA).

According to the agency, the rule “would help improve roadway safety by making it easier to determine whether a truck or bus driver is prohibited from operating a commercial motor vehicle for failing to comply with federal drug and alcohol regulations, including mandatory testing.”

The clearinghouse would enable access to verified positive test results of commercial driver´s license (CDL) holders, which indicate the illegal presence of controlled substances and alcohol. The database would also track refusals by CDL holders to submit to drug and alcohol tests.

FMCSA is expected to publish a Notice of Proposed Rulemaking (NPRM) in tomorrow’s edition of the Federal Register.  Advance notice of that can be viewed here.

The news release on the NPRM does not state an implementation date for the clearinghouse.

The agency pointed out that current federal regulations only require employers to conduct mandatory pre-employment screening of a CDL holder’s qualifications based strictly on his or her driving record.

By contrast, the agency said the new rule would create a “single federal repository recording positive drug and alcohol tests by CDL holders that employers would be able to search to ensure that the driver is able to perform safety-sensitive duties.”

In addition, the proposed would require employers to conduct pre-employment searches for all new CDL drivers along with annual searches of drug/alcohol violations on current drivers.

And by requiring those employer checks, per the Dept. of Transportation (DOT), the central database would also assist FMCSA in verifying that motor carriers themselves are meeting their drug/alcohol-testing responsibilities.

"We are leveraging technology to create a one-stop verification point to help companies hire drug- and alcohol-free drivers," said FMCSA Administrator Anne S. Ferro.

"This proposal moves us further down the road toward improving safety for truck and bus companies, commercial drivers and the motoring public everywhere," Ferro added.

Per the NPRM, if the rule is finalized it will be required that the following information is recorded on CDL holders: 

  • Failing of a drug and/or alcohol test
  • Refusal to submit to a drug and/or alcohol test
  • Successfully completion of a substance-abuse program (and thus legally qualified to return to duty)

FMCSA noted that to ensure the privacy of drivers, each CDL holder would need to provide his or her consent before an employer could access the clearinghouse.

The agency noted that drivers who refuse to provide this information “could still be employed by the truck or bus company; however, they could not occupy safety-sensitive positions, such as operating a commercial motor vehicle.”

“Based on FMCSA’s news release, the description of the proposed rule is in line with what I expected,” Richard P. Schweitzer, general counsel for the National Private Truck Council (NPTC), told FleetOwner.

“If finalized, the rule will provide some relief to carriers in trying to ascertain the drug and alcohol testing record of driver applicants,” he continued.

Carriers that are prospective employers “will be able to access the online database rather than trying to get reliable information directly from prior employers,” Schweitzer added.

A rule that would establish a drug/alcohol violations database—the clearinghouse—and how it would function has been a goal of trucking lobbyists since the late 1990s.for some time.

Issuance of such a proposed rule by DOT by this October 1st was mandated by the last highway-reauthorization bill MAA-21, passed by Congress in 2012.

David Heller, director of safety and policy for the Truckload Carriers Assn. (TCA), told FleetOwner that release of the proposed rule had been delayed during the necessary review process by the White House’s Office of Management & Budget (OMB).

OMB cleared the DOT draft on Jan. 27th with some changes, apparently to address privacy concerns and other legal complexities.

Going back to the 1990s, the clearinghouse has been sought by trucking to ensure that truckers could no longer “cover up” positive drug/alcohol test results by not disclosing them on job applications.

The American Trucking Assns. (ATA) first urged Congress in 1999 to require a study of the feasibility of such a clearinghouse.  FMCSA issued that report back in 2004, but ATA said that “only after an industry-supported 2012 Congressional mandate for the agency to create such a database” did the NPRM finally get issued this week.

“It is unfortunate that it took so long for the Federal Motor Carrier Safety Administration to act on this common-sense safety solution, but we are pleased the agency has finally taken the first step toward creation of this clearinghouse,” said ATA president & CEO Biill Graves.

According to ATA, the proposed rulemaking is a “significant step in the right direction to improve the safety of our roads and the effectiveness of DOT's drug and alcohol testing program.”

Abigail Potter, ATA's research analyst for Policy & Regulatory Affairs, told FleetOwner that “very rarely are proposed rules perfect. ATA is very pleased to see that FMCSA plans to give employers the option of designating third-party administrators to act on behalf of the employer to input and receive information for the clearinghouse.

“We still have concerns about the cost of fees, employer reporting requirements, and are very troubled that the rule does not eliminate the redundant/time -consuming process of contacting previous employers,” Potter continued. “However, we are still reviewing the NPRM and will be working with our members to identify areas that are problematic for our comments to FMCSA.”

Potter emphasized that, once implemented, the clearinghouse will help “to reduce a major loophole in the U.S. DOT drug and alcohol program,” pointing out to FleetOwner that  “currently, drivers that test positive for drugs and alcohol can circumvent the return-to-duty process that is federally required by ‘job-hopping’ to another motor carrier.

“Motor carriers are relying on the honestly of prospective drivers to ensure compliance of the federal regulations,” continued Potter. “The clearinghouse will help to close this loophole and make sure that drivers who do test positive are getting treatment.”

“No carrier wants to put an unsafe driver behind the wheel,” commented ATA chairman Phil Byrd, president of Bulldog Hiway Express.

“This clearinghouse will be another tool we in the trucking industry can use to ensure that only the safest, most qualified drivers move America’s freight,” added Byrd.

In its news release on the NPRM, FMCSA also related the following:

  • In 2013, on 2,095 occasions, or in 0.23 percent of random roadside inspections, CDL holder was immediately placed out-of-service and cited for violating federal regulations governing alcohol consumption. And in 2012, FMCSA records show that there were 2,494 violations of this regulation.
  • In 2013, on 1,240 occasions, or in 0.13 percent of the unannounced inspections, a CDL holder was placed immediately out-of-service and cited for violating federal regulations governing controlled substances. In 2012, FMCSA records show that there were 1,139 violations of this regulation.

This update includes comments provided to FleetOwner by ATA's Abigail Potter.

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