FMCSA Establishes National Drug and Alcohol Testing Clearinghouse
The trucking industry must maintain a zero-tolerance policy when it comes to drug and alcohol use. However, under the current drug and alcohol screening programs, employers do not always have the proper tools to identify accurately and expeditiously CDL holders who have received positive drug or alcohol results in the past, have refused a drug or alcohol test or have violated other drug and alcohol testing regulations.
Often, carriers use the best information available and rely on a driver’s word that they haven’t been involved in any drug- or alcohol-related infractions. Because of this, drivers who have had positive test results without completing the required substance abuse program can continue to work without their employer knowing or move among different carriers unnoticed.
Because drivers who are under the influence compromise safety, initiatives needed to be put in place to address driver drug and alcohol use.
In 2012, Congress directed the Secretary of Transportation to establish a national Clearinghouse containing CMV operators’ violations of FMCSA’s drug and alcohol testing program in Section 32402 of the Moving Ahead for Progress in the 21st Century Act (MAP-21). This rule implements that mandate and responds to earlier recommendations of the National Transportation Safety Board.
This information collection supports the DOT Strategic Goal of Safety by ensuring that drivers are qualified to operate trucks and buses on our nation’s highways.
On December 2, 2016 the Federal Motor Carrier Safety Administration (“FMCSA”) announced its final rule establishing a national drug and alcohol clearinghouse for commercial truck and bus drivers. The Clearinghouse will be an electronic database containing records of violations of drug and alcohol prohibitions in sub-part B of part 382. Such violations will include positive drug or alcohol test results, refusals, and other drug and alcohol violations for drivers required to have a commercial driver’s license (CDL).When a driver completes the return-to-duty process, this information will also be recorded in the Clearinghouse.
“An overwhelming majority of the nation’s freight travels by truck, and millions of passengers reach their destinations by bus, so creating a central, comprehensive, and searchable database of commercial motor vehicle drivers who violate federal drug and alcohol testing requirements has been a departmental priority,” said U.S. Transportation Secretary Anthony Foxx. “This system will be a new technological tool that will make our roads safer.”
Once the clearinghouse is established, motor carrier employers will be required to query the system for information concerning current or prospective employees 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 to report drug and alcohol testing program violations.
The drug and alcohol clearinghouse final rule annual net benefits are an estimated $42 million, with crash reductions resulting from annual and per-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.”
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.
Additionally, motor carriers will be required to annually search the clearinghouse for current employees, and during the per-employment process for prospective employees, to determine whether a driver violated drug or alcohol testing requirements with a different employer that would prohibit them from operating a CMV.
Federal safety regulations require employers to conduct per-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.
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. After registering with the Clearinghouse, a driver can review his or her information at no cost. The Clearinghouse provides an administrative process for drivers to request corrections on their Clearinghouse record. Drivers may challenge only the accuracy of information reported, not the accuracy or validity of test results or refusals.
Driver violation records will be available in the Clearinghouse to authorized employers for 5 years from the date of the violation determination, or until the driver completes the return-to-duty process, whichever is later. There are limited exceptions which could result in earlier removal of driver violations from the Clearinghouse.
The Clearinghouse also has requirements for Owner-Operators. An employer who employs himself/herself as a driver is subject to the requirements pertaining to employers as well as those pertaining to drivers. The existing part 382 regulations require that one-person company owner-operators join a random drug and alcohol testing pool with at least one other person. Under the Clearinghouse final rule, an employer who employs himself/herself as a driver must also designate a consortium/third party administrator (C/TPA) to comply with the employer’s Clearinghouse reporting requirements.
If a driver has a drug or alcohol violation in one state and then applies for a CDL in another state, the Clearinghouse will be able to connect the history. The Clearinghouse will identify drivers who move frequently and obtain CDLs in different states and link those CDLs, to maintain complete and accurate information on such drivers.
Congress directed FMCSA to establish a national drug and alcohol clearinghouse as mandated by the Moving Ahead for Progress in the 21st Century Act (MAP-21).
The rule has an effective date of January 4, 2017, with a compliance date of January 6, 2020.
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