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FMCSA PROPOSES DRUG AND ALCOHOL CLEARINGHOUSE FOR COMMERCIAL DRIVERS – Reports say the Federal Motor Carrier Safety Administration (FMCSA) has proposed a drug and alcohol clearinghouse to hold those who choose to drive commercial vehicles under the influence of drugs or alcohol more accountable.

The FMCSA revealed their plan for a clearinghouse that would store positive drug and alcohol test results; adulterated, substituted drug test results; test refusals; and successful completions of the return to duty process following a positive test result.  Currently, trucking companies and other commercial transportation companies are trusted to keep internal records of drug and alcohol testing pursuant to federal regulations.

The requirements would fall on both prospective and current employers, medical review officers, consortiums, third-party administrators, and substance abuse professionals.  For owner-operators, the FMCSA proposed the mandated use of a consortium or third-party administrator for completion of the reporting requirements to the clearinghouse.

The proposal states that positive test results may be kept for only three to five years for individuals who have successful completed the return to duty process and had subsequent negative follow-up test results.  The agency thus proposes to keep the positive test results indefinitely in the clearinghouse for those who do not complete the return to duty process after a positive test.

Truck drivers and other drivers with a CDL will be able to access the clearinghouse to view their own profiles, and the agency has proposed to notify drivers when changes are made to their profiles or when their records are assessed.  This notification would either be via mail or e-mail, depending on the driver’s preference.

The proposal requires that motor carriers check a driver’s records in the clearinghouse before hiring the driver, and the driver would have to give written consent for this search.  FMCSA also proposed that motor carriers be required to check the database annually on existing employees.  This proposal would impose a “limited” search, which would flag only employee records that have changed, and would also require consent from the drivers.  This consent would be allowed via a blanket consent signed at the time of employment.  If the employer wanted to do a full review of any employee records that had changed, they would have to get written permission.

The proposal provides that drivers who do not consent to employers searching their clearinghouse records will not be allowed to conduct safety-sensitive functions; i.e. they will not be able to operate a truck.

The proposal also has provisions for the reporting of citations for driving under the influence, but if the citation does not result in a conviction, it would have to be removed from the clearinghouse.

The FMCSA has acknowledged that mistakes happen, and has therefore included a proposed “challenge process” for erroneous data.  This process would be in place for clerical errors and inaccurate information, but is not an additional step in the appeals process for positive results.  The agency proposed that clerical errors be addressed within 90 days from the date of the challenge petition, and “critical information” corrections be addressed within 30 days.

The proposal does not mention the requirements of foreign-domiciled motor carriers operating in the U.S. and does not address whether a third-party vendor would be responsible for abiding by the clearinghouse requirements.

The notice of the proposal will publish in the Federal Register soon, which will begin a 60 day comment period for the public to comment on the FMCSA’s full proposal.

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