February 2017

FMCSA Establishes National Drug & Alcohol Clearinghouse

DOT logoThe U.S. Dept. of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) published its final rule (Docket No. FMCSA-2011-0031) in the Federal Register on Dec. 5, 2016. The new rule establishes a national drug and alcohol clearinghouse for commercial truck and bus drivers. The clearinghouse database will serve as a central repository that will contain information about violations of FMCSA’s drug and alcohol testing program by holders of commercial driver’s licenses (CDLs). The final rule becomes effective Jan. 4, 2017 with a mandatory compliance date of Jan. 6, 2020.

FMSCA logoThe FMCSA final rule is intended to improve roadway safety by identifying commercial motor vehicle (CMV) drivers who have committed drug and alcohol violations, thereby rendering them ineligible to operate a CMV. The clearinghouse addresses the situation in which drivers can conceal their drug and alcohol violations merely by moving on to the next job or the next jurisdiction. The drug and alcohol violation records maintained in the clearinghouse will ‘‘follow’’ the driver regardless of how many times he or she changes employers, seeks employment or applies for a CDL in a different state.

Once the clearinghouse is established, motor carrier employers will be required to query the system annually for information concerning current employees (or prospective employees during the pre-employment process) who have unresolved violations of the federal drug and alcohol testing regulations that prohibit them from operating a commercial motor vehicle (CMV). It also requires employers and medical review officers (MROs) to report drug and alcohol testing program violations.

The final rule requires motor carriers, medical review officers, third-party administrators, and substance abuse professionals to report information about drivers who:

  • Test positive for drugs or alcohol;
  • Refuse drug and alcohol testing; and
  • Undergo the return-to-duty drug and alcohol rehabilitation process

The Drug & Alcohol Clearinghouse final rule projects annual net benefits of $42 million, with crash reductions resulting from annual and pre-employment queries by FMCSA-regulated motor carriers.

“This is a major safety win for the general public and the entire commercial motor vehicle industry,” said FMCSA Administrator Scott Darling.

“The clearinghouse will allow carriers across the country to identify current and prospective drivers who have tested positive for drugs or alcohol, and employ those who drive drug- and alcohol-free. Drivers who test positive for drugs or alcohol will no longer be able to conceal those test results from employers and continue to drive while posing a safety risk to the driving public.”

Federal safety regulations require employers to conduct pre-employment drug testing and random drug and alcohol testing. Motor carriers are prohibited from allowing employees to perform safety-sensitive functions, which include operating a CMV, if the employee tests positive on a DOT drug or alcohol test. The prohibition on performing safety-sensitive functions continues until the employee satisfies all of the requirements of the return-to-duty process prescribed in the regulations. Additionally, the regulations in 49 CFR part 382 provide that an employer may not allow a covered employee to perform safety-sensitive functions when the employer has actual knowledge that a driver has engaged in on-duty or pre-duty alcohol use, used alcohol prior to post-accident testing or used a controlled substance. An employer has “actual knowledge” of a driver’s drug or alcohol use while performing safety-sensitive functions based upon the employer’s direct observation of employee drug or alcohol use, an admission by the employee of drug or alcohol use, information provided by a previous employer, or if the employee receives a traffic citation for driving a CMV while under the influence of drugs or alcohol.

Although not required to do so, the employer may, at its discretion, fire the employee without giving the opportunity to complete the return-to-duty process. FMCSA does not regulate an employer’s decision to terminate or the conditions under which an employer chooses to keep a driver on after a drug or alcohol violation.

Information must be reported to the clearinghouse by a prospective or current employer of a CDL driver when/for:

  • An alcohol confirmation test with a concentration of 0.04 or higher;
  • Refusal to test (alcohol) as specified in 49 CFR 40.261;
  • Refusal to test (drug) not requiring a determination by the MRO as specified in 49 CFR 40.191;
  • Actual knowledge, as defined in 49 CFR 382.107, that a driver has used alcohol on duty, used alcohol within four hours of coming on duty, used alcohol prior to post-accident testing, or has used a controlled substance;
  • Negative return-to-duty test results (drug and alcohol testing, as applicable); and
  • Completion of follow-up testing

Each employer and service agent must register with the clearinghouse before accessing or reporting information in the clearinghouse. Employer clearinghouse registrations must include:

  • Name, address and telephone number;
  • USDOT number, except if the registrant does not have a USDOT number, it may be requested to provide other information to verify identity; and
  • Name of the person(s) the employer authorizes to report information to or obtain information from the clearinghouse and any additional information FMCSA needs to validate his or her identity.

Employers must also verify the names annually for those authorized person(s) to report or obtain information from the clearinghouse, and the identification and authorization of the Consortium/Third Party Administrator (C/TPA) or other service agent used to query or report information to the clearinghouse or comply with the requirements of part 382. Employers are required to update any changes to this information within 10 days.

In accordance with the Privacy Act of 1974 (5 U.S.C. § 552a), a driver must grant consent before an employer can request access to that driver’s clearinghouse record and before FMCSA can release the driver’s clearinghouse record to an employer. The final rule also requires that FMCSA must notify a driver when information concerning that driver has been added to, revised or removed from the clearinghouse, or when information concerning that driver has been released from the clearinghouse to an employer and specify the reason for the release. Drivers will be notified by letter sent by U.S. Mail to the address on record with the State Driver Licensing Agency that issued the driver’s commercial driver’s license. However, a driver may provide the clearinghouse with an alternative means or address for notification, including e-mail.

After registering with the clearinghouse a driver can review his or her information at no cost.

To view the drug and alcohol clearinghouse Final Rule, follow this link:

https://www.federalregister.gov/documents/2016/12/05/2016-27398/commercial-drivers-license-drug-and-alcohol-clearinghouse, or contact ShipMate, Inc. at +1 (310) 370-3600 or e-mail at shipmate@shipmate.com.