The Federal Motor Carrier Safety Administration (FMCSA) has granted state motor vehicle licensing agencies a three-year reprieve before they will be required to file inquiries with the Commercial Driver’s License (CDL) Drug and Alcohol Clearinghouse in advance of granting licenses to interstate truck and bus drivers.
Under the clearinghouse regulations FMCSA first adopted in 2016 the state agencies were slated to meet the requirements on the same date as employers—Jan. 6, 2020. State licensing agencies now have until Jan. 6, 2023, although they may choose to voluntarily request clearinghouse information following Jan. 6, 2020.
After the first final rule was published three years ago, the American Association of Motor Vehicle Administrators (AAMVA), a trade association representing driver licensing authorities from the 50 states and the District of Columbia, informed FMCSA that the rule failed to address a variety of important operational issues.
FMCSA opened an additional proposed rulemaking in November to address AAMVA’s request for a delay and issued that final rule on Dec. 6.
According to FMCSA, the compliance date extension allows it the time it needs to complete work on another rulemaking designed to address states’ access and use of driver-specific information from the clearinghouse. The postponement also is expected to allow additional time for FMCSA to develop an IT platform that will allow the state agencies to electronically request and receive clearinghouse information.
FMCSA also stated that it believes the three-year delay will have no impact on highway safety.
The delay for state agencies does not apply to truck and bus driver employers. Beginning on Jan. 6, CDL holders’ drug and alcohol testing violations must be reported to the clearinghouse, and trucking operations must perform the required queries for prospective and current driver-employees.
Also required to report these violations to the clearinghouse are Medical Review Officers (MROs), substance abuse professionals, consortia/third-party administrators and other service agents. Employers must query the clearinghouse before allowing a newly-hired driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers are required to sign a consent form allowing the employer to do so.
Employers also must query the clearinghouse at least once per year for each driver they currently employ. Employers are required to report drivers’ drug and alcohol program violations to the clearinghouse within three business days after the employer learns of this information. Drivers who test positive will be banned from performing safety-sensitive duties unless they comply with the return-to-duty process set forth in the FMCSA regulations.
Yet Another Rulemaking
In the future, FMCSA says it is planning to open yet another new rulemaking which is intended to deal with other issues that have been raised by AAMVA.
These are:
● What does FMCSA intend that states do with information they receive from the clearinghouse?
● What specific information would states receive in response to a request for information about an individual CDL holder or applicant?
● What privacy and data controls will be applied to the transmission of clearinghouse information to state agencies?
● How would an erroneous clearinghouse record be corrected?
● What are the cost implications for the state agencies?
FMCSA currently is working on developing the new proposal (which it calls “Clearinghouse II”) it promises will specifically address these issues raised by AAMVA. “Delaying the implementation of the states’ query requirement will provide FMCSA time to resolve AAMVA’s concerns and ensure a seamless implementation of the states’ clearinghouse-related requirements,” FMCSA explains.
Which inevitably leads to a couple of questions that could be expected to arise in the mind of any reasonable person: Why didn’t FMCSA anticipate earlier in the process, before issuing the original clearinghouse final rule in 2016, that it would need a mechanism in place for state licensing authorities to be able to access the clearinghouse data? And why did AAMVA fail to realize there was were serious issues for state licensing agencies that were contained in those 2016 rules until they appeared in final form three years ago?
Among those who commented on the delay after it was proposed in November was American Trucking Associations (ATA), which represents the nation’s for-hire truck fleets. ATA recommended that during the three-year delay for state agencies, FMCSA encourage states “to adopt their own procedures to review clearinghouse information through the FMCSA portal before issuing, upgrading, renewing or transferring a CDL.”
The Owner-Operator Independent Drivers Association (OOIDA), which represents drivers who are independent contractors, warned FMCSA that the proposed extension could cause additional confusion, noting that drivers might interpret any delay in the clearinghouse as a delay in the entire program, and fail to register at the proper time.
OOIDA suggested that FMCSA consider extending the compliance date for all clearinghouse requirements, which it said would have allowed the entire trucking industry sufficient opportunity to register and to provide additional time to ensure an efficient rollout.
