In conjunction with our prior article, Some Clarity Through The Smoke, this piece will provide an overview of the Federal Motor Carrier Administration’s (FMCSA) new Commercial Driver’s License (CDL) Drug and Alcohol Clearinghouse (Clearinghouse). The Clearinghouse is the latest attempt by FMCSA to improve highway safety and is codified in subpart G of FMCSA’s drug and alcohol testing regulations, 49 Code of Federal Regulations (CFR) Part 382. See 49 CFR § 382.701.
The What and the When…
Beginning on January 6, 2020, the Clearinghouse rule will require FMCSA-regulated employers, Owner-Operators, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), consortia/third party administrators (C/TPAs), and other service agents to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 CFR, parts 40 and 382 by current and prospective employees.
“The Clearinghouse will provide FMCSA and employers the necessary tools to identify drivers who are prohibited from operating a CMV based on DOT drug and alcohol program violations and ensure that such drivers receive the required evaluation and treatment before operating a CMV on public roads. Specifically, information maintained in the Clearinghouse will enable employers to identify drivers who commit a drug or alcohol program violation while working for one employer, but who fail to subsequently inform another employer (as required by current regulations). Records of drug and alcohol program violations will remain in the Clearinghouse for five (5) years, or until the driver has completed the return-to-duty process, whichever is later.”
The Clearinghouse will be a secure online database which will allow employers to identify drivers who are not legally permitted to operate commercial motor vehicles (CMVs) due to drug and alcohol program violations. Such violations will include positive drug or alcohol test results, refusals, and other drug and alcohol violations for drivers required to have their CDL. When a driver completes the return-to-duty (RTD) process, this information will also be reported in the Clearinghouse. The rule will help improve safety by ensuring that no CMV operators who have committed drug and alcohol violations can attempt to work with another employer before completing RTD requirements, which includes evaluation and treatment by a substance abuse professional (SAP). The goal is to prevent drivers from being able to hide violations as their records will be accessible even if they change employers or apply for a CMV license in another state. In this regard, the database will provide real-time access and updates so that employers can make better decisions. The database will be equally accessible to motor carriers hiring owner operators as independent contractors.
Similarly, the database will also provide real-time access to the FMCSA, State Driver Licensing Agencies, and law enforcement officials to help them identify CDL drivers who have violated federal drug and alcohol testing program requirements. This information and knowledge will allow these entities to take any necessary action in order to maintain safety on our nation’s highways.
It is important to note that the Clearinghouse will contain only violations that occurred on or after the rule’s implementation date of January 5, 2020. Any violations that occur before January 6, 2020 will not be included in the Clearinghouse. In addition, although employers of non-CDL drivers are not subject to the Clearinghouse query or reporting requirements, as part of the hiring process, they must still comply with the driver investigation requirements of 49 CFR § 391.23(e), which includes obtaining a drug and alcohol violation history.
The FMCSA has provided a means for drivers to dispute data that is uploaded in error to their profile. The dispute process is not a means for challenging a verified drug or alcohol test, but a method to dispute records loaded under a CDL number in error or request removal of DUIs that did not result in a conviction.
The Next Steps…
All authorized users including, employers, drivers, owner-operators, MROs, SAPs, and C/TPAs must register with the Clearinghouse in order to access the database. Clearinghouse registration is scheduled to open in the fall of 2019. As of the date of this publication, registration has not officially opened yet. The following link will allow potential users to sign up to receive updates, including a notification once registration is open. https://clearinghouse.fmcsa.dot.gov/FAQ. Clearinghouse registration is valid for five (5) years, unless cancelled or revoked.
During registration, users will create an account to access the Clearinghouse. For the first three (3) years, or until January 6, 2023, in addition to procuring the new FMCSA clearinghouse report, employers will be required to continue processing the manual verification requests with all former employers (in the previous three years) as they onboard new commercial drivers. Since the onboarding process will require two different types of queries, employers can anticipate an increase in the cost of hiring a new driver.
After January 6, 2023, employers will only be required to use the Clearinghouse for identifying drivers with drug and alcohol program violations. It will be important for employers to keep a close eye on the requirements and projected dates as information is subject to change from the original projections and requirements made by the FMCSA.
In addition to registering, FMCSA regulations require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver-applicants that the following information will be reported to the Clearinghouse:
- A verified positive, adulterated, or substituted drug test result;
- An alcohol confirmation test with a concentration of 0.04 or higher;
- A refusal to submit to a drug or alcohol test;
- An employer’s report of actual knowledge, as defined at 49 CFR § 382.107;
- On duty alcohol use pursuant to 49 CFR § 382.205;
- Pre-duty alcohol use pursuant to 49 CFR § 382.207;
- Alcohol use following an accident pursuant to 49 CFR § 382.209;
- Drug use pursuant to 49 CFR § 382.213;
- A SAP’s report of the successful completion of the return-to-duty process;
- A negative return-to-duty test; and,
- An employer’s report of completion of follow-up testing.
Once employers are registered, starting on January 6, 2020, current and prospective employers must conduct a query of a driver’s information in the Clearinghouse. An employer will be required to conduct a query of the Clearinghouse for each currently-employed CDL-driver at least once a year. This annual query may be either full or limited. The annual query is the minimum requirement and employers may conduct queries more often, so long as they obtain the employee’s or driver’s consent.
A prospective employer must conduct a full pre-employment query of the Clearinghouse prior to employing a driver to perform a safety-sensitive function. A full query requires the driver’s specific consent to the release of information in the Clearinghouse to a specific individual or organization at a particular point in time. A limited query allows an employer to determine if any information about an individual driver exists in the Clearinghouse, but does not provide for the release of any specific violation information in the driver’s Clearinghouse record. Limited queries require only a general driver consent, but employers may obtain a multi-year general consent from the driver for the annual query requirement.
Note that anyone who employs a commercial driver’s license (CDL) holder must query the Clearinghouse (§ 382.701). This requirement includes owner-operators, who must comply with all Clearinghouse requirements imposed on both employers and employees. An owner-operator’s designated consortium/third-party administrator (C/TPA) may conduct queries on their behalf. However, the C/TPA is responsible for reporting drug and alcohol program violations to the Clearinghouse for the owner-operator.
According to Kevin Stewart, President of Pennsylvania Motor Truck Association, “The Drug and Alcohol Clearinghouse Rule is a positive step in removing potentially unsafe drivers from our roadways by giving motor carriers accurate and timely information about a driver’s drug testing history. By 2023, carriers will no longer be required to conduct manual inquiries regarding a driver’s drug and alcohol history which will streamline the background investigation process saving carriers both time and money. Furthermore, drivers will be able to view information specific to them contained within the Clearinghouse and be provided a means whereby they can request the removal of inaccurate or erroneous data.”
Although Mr. Stewart believes the Clearinghouse will be beneficial across the board, he did express some reservations regarding the economics for many carriers and owner-operators. Specifically, he stated that he was “disappointed in the costs associated with an annual subscription of $24,500.00 that would allow carriers to conduct unlimited queries in a 12-month period.” A second pricing option is a flat per-query rate of $1.25 for both limited and full queries.
Note that the $1.25 plan can be customized into 19 different bundles ranging from 1 to 7,500 different queries depending on the size of the company, with bundled pricing ranging from $1.25 to $9,375. The agency recommended choosing a query bundle large enough to cover the amount of drivers currently employed. Companies can purchase additional plans as needed.
These two options can only be purchased from the FMCSA Clearinghouse website (https://clearinghouse.fmcsa.dot.gov) and will be available for purchase starting in the fall of 2019 when registration opens. The fees will be used to maintain and administer the Clearinghouse database.
With respect to record retention, employers will be required to keep records of violations reported to the Clearinghouse for five (5) years. Employers must also retain records of each query and all information received in response to a query for three (3) years.
Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense).
On September 6, 2019, the FMCSA announced that only state driver licensing agencies (SDLAs) will have three additional years to comply with federal drug and alcohol clearinghouse requirements if a proposed rule is approved.
In a proposed rulemaking to be published by the FMCSA on September 6, 2019, the agency is delaying compliance for how state agencies query the Commercial Driver’s License Drug and Alcohol Clearinghouse database from January 6, 2020, to January 6, 2023. This proposed rulemaking is based on concerns raised two years ago by the American Association of Motor Vehicle Administrators (AAMVA), a trade association representing state driver licensing authorities. “In the Agency’s judgment, it would be premature to implement the States’ query requirement before addressing the questions and concerns raised by AAMVA in its 2017 petition for reconsideration,” FMCSA stated in its proposal.
The FMCSA emphasized that all other provisions of the Clearinghouse final rule will go into effect on January 6, 2020, including the reporting into the system of drug and alcohol testing program violations by drivers with CDLs, as well as required queries into the system by trucking companies and owner-operators for current and prospective drivers.
For further information on the Clearinghouse or to sign up for email updates from FMCSA, please visit: https://clearinghouse.fmcsa.dot.gov.