On Dec. 5, 2016, the Federal Motor Carrier Safety Administration (FMCSA) issued a final rule that aims to improve roadway safety by establishing a National Drug and Alcohol Testing Clearinghouse.
Under the final rule, motor carriers and other employers of commercial motor vehicle (CMV) drivers must use the Clearinghouse to ensure that current and prospective employees do not have any unresolved drug and alcohol violations that render them ineligible to operate a CMV. Employers will also be required to report information about positive drug test results, alcohol test results greater than 0.04 blood alcohol content, refusals to test and other non-test violations of FMCSA’s drug and alcohol regulations.
These requirements take effect on Jan. 6, 2020, the date that the Clearinghouse is scheduled to become operational. Employers, CMV drivers and other parties will need to register to use the system and may sign up to receive an email notification that registration is open.
What is the Drug and Alcohol Clearinghouse and what information will it contain?
The Clearinghouse is a secure online database that will give employers, the FMCSA, State Driver Licensing Agencies (SDLAs) and state law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations.
The Clearinghouse will contain records of violations of drug and alcohol prohibitions in 49 CFR part 382, subpart B, including positive drug or alcohol test results and test refusals. When a driver with a drug and alcohol program violation completes the required return-to-duty process, this information will also be recorded in the Clearinghouse.
Who is authorized to use the Clearinghouse?
To access the Clearinghouse (once it is operational), a user must request access from the FMCSA by registering. Authorized users will include:
- Motor carriers and other employers with drivers operating CMVs that require a CDL or CLP;
- CDL/CLP drivers;
- Consortium/third-party administrators;
- Medical review officers;
- Substance abuse professionals;
- State driver licensing agencies; and
- Federal and state enforcement personnel.
If a driver has a drug and alcohol program violation in one state and applies for a CDL in another state, will the Clearinghouse be able to connect that driver’s drug and alcohol violation history to the new CDL?
Yes. The Clearinghouse will identify drivers who move frequently and obtain CDLs in different states and link those CDLs, in order to maintain complete and accurate information on such drivers.
Does every driver need to register for the Clearinghouse?
No. Clearinghouse registration is not a required step for drivers. If a driver is never required to provide consent to a pre-employment or other full query, and never incurs a drug and alcohol program violation, then the driver will not need to register for the Clearinghouse.
However, a driver will need to be registered to provide electronic consent in the Clearinghouse for a prospective or current employer to conduct a full query of his or her driver record. A full query releases detailed violation information contained in a driver’s Clearinghouse record to the querying employer.
Beginning January 6, 2020, a full query will be required during a pre-employment driver investigation for a CDL holder who will perform safety-sensitive functions, including operating a CMV. Early registration will allow drivers to respond quickly to a query request. A driver must also be registered to view the information electronically in his or her own Clearinghouse record.
How are employers and consortia/third-party administrators (C/TPAs) required to use the Clearinghouse?
The Clearinghouse offers employers a centralized location to report drug and alcohol program violations and check that no current or prospective employee is prohibited from performing safety-sensitive functions, such as operating a CMV, due to an unresolved drug and alcohol program violation—that is, a violation for which the driver has not completed the return-to-duty process. This query must be conducted as part of a pre-employment driver investigation, and at least annually for current employees.
In addition, employers may designate a C/TPA(s) who can report violations and perform queries on their behalf. An owner-operator is an employer that employs himself or herself as a CDL driver and must designate the C/TPA in the Clearinghouse. To complete these actions, employers and C/TPAs will be required to register with the Clearinghouse.
How will driver data be protected in the Clearinghouse?
The Clearinghouse will meet all relevant federal security standards, and the FMCSA will verify the effectiveness of the security protections on a regular basis.
Driver information will not be available to the public. Only authorized users will be able to register and access the Clearinghouse for designated purposes. The Clearinghouse will require authentication (username/password) to access records.
Drivers registered in the Clearinghouse will be able to access their Clearinghouse records at any time, and at no cost to them. Drivers will only be able to access their own information, not information about other drivers.
The FMCSA will only share detailed drug and alcohol violation information with prospective or current employers when an employer has requested and received specific consent from the driver. Drivers will be able to see the information that would be released to an employer before consenting to the release.
Driver information will be shared only with the FMCSA and other enforcement agencies as required to enforce drug and alcohol use testing regulations.
How do authorized users sign up to access the Clearinghouse database and when will registration be available?
Employers, drivers, medical review officers, substance abuse professionals, and C/TPAs must register in the Clearinghouse to access the Clearinghouse database. Registration is scheduled to open in fall 2019.
How are Medical Review Officers (MROs) required to use the Clearinghouse?
MROs will use the Clearinghouse to report verified positive drug test results, or if a driver refuses to take a drug test. An MRO must report any changes of a verified drug test within one business day of making any changes to the reported results. Registration will be required to complete these actions.
How are Substance Abuse Professionals (SAPs) required to use the Clearinghouse?
SAPs will use the Clearinghouse to report specific information about a CDL driver’s return-to-duty (RTD) activities. This information includes the date of completion of the initial assessment, and the date the SAP determines that the driver is eligible for RTD testing.
Does the final rule change any of the existing drug and alcohol program requirements in part 40?
No, the final rule does not change any existing requirements in the US DOT-wide procedures for transportation workplace drug and alcohol testing.
How will State Driver Licensing Agencies (SDLAs) use the Clearinghouse?
As of Jan. 6, 2020, SDLAs will be able to query the Clearinghouse prior to completing licensing transactions, such as the issuance, renewal, transfer, and upgrade of a CDL.
How will CDL drivers by notified when information about them is added to the Clearinghouse?
The Clearinghouse will notify the driver using the method indicated during the driver’s Clearinghouse registration—either mail or email—any time information about the driver is added, revised, or removed. If the driver has not yet registered for the Clearinghouse, these notifications will be sent by mail using the address associated with the driver’s CDL.
Can a driver correct information recorded about him or her in the Clearinghouse?
Yes. The final rule provides a petition process for drivers to request corrections to their Clearinghouse record (§ 382.717). Drivers may challenge only the accuracy of information reported, not the accuracy or validity of test results or refusals.
Can there be more than one Clearinghouse user per company?
Yes. Employers, C/TPAs, MROs, and SAPs will need to register their company. The individual users will be managed by a representative for each company who will serve as a Clearinghouse administrator to manage the company’s account.
How do I manage my company’s Clearinghouse user accounts?
Employers, C/TPAs, MROs, and SAPs will identify a representative for their company to serve as a Clearinghouse administrator. These Clearinghouse administrators have the option to invite users to serve in an assistant role, enabling them to use the Clearinghouse on their company’s behalf.
- MROs and SAPs can assign assistants to enter information on their behalf.
- Employers and C/TPAs can assign assistants to conduct queries or report violation information on their behalf.
Motor carriers will manage these Clearinghouse administrator and assistant roles via their FMCSA Portal account. Other Clearinghouse administrators will be able to invite and manage assistants once they are registered. Registration is scheduled to open in the fall of 2019.
Once the Clearinghouse is implemented, will prospective employers still need to conduct drug and alcohol three-year employment driver investigations with previous employers?
Yes, a prospective employer or their designated C/TPA will be required to conduct both electronic queries in the Clearinghouse and manual inquiries with previous employers to meet the three-year timeframe for pre-employment driver investigations as required per § 391.23(e).
On January 6, 2023, once three years of violation data is stored in the Clearinghouse, prospective employers will no longer be required to conduct manual inquiries with a CDL driver’s previous employers; the prospective employer’s query of the Clearinghouse will satisfy that requirement.
However, if a prospective employee was subject to drug and alcohol testing by a DOT mode other than the FMCSA, prospective employers must continue to request drug and alcohol violation information from those DOT-regulated employers, since that information will not be reported to the Clearinghouse.
Will violations that occur before the Clearinghouse Implementation Date be included in the Clearinghouse?
No. The Clearinghouse will contain only violations that occurred on or after January 6, 2020. If a driver’s violation occurred prior to January 6, 2020, and is in the return-to-duty process when the Clearinghouse is implemented, the violation and any related return-to-duty activity will not be entered into the Clearinghouse.
Is the Clearinghouse subject to the Privacy Act requirements?
Yes. The Clearinghouse is subject to certain provisions of the Privacy Act. For example, the Agency will verify the driver’s consent for the release of information prior to allowing an employer to access the driver’s Clearinghouse record. Drivers have the right to request inaccurate information in their Clearinghouse record be corrected or removed. In addition, the FMCSA will notify employers if previously-released Clearinghouse information has been subsequently corrected or removed.
Is the FMCSA subject to obligations under the Fair Credit Reporting Act (FCRA) for the Clearinghouse?
Yes. The Clearinghouse is subject to certain provisions of the FCRA. However, the Agency does not fall within FCRA’s definition of “consumer reporting agency.” Therefore, provisions of the FCRA that impose obligations on “consumer reporting agencies” do not apply to the Agency’s administration of the Clearinghouse regulations. If an employer or C/TPA is subject to the FCRA, they should comply with their individual requirements. Employers should consult with their own experts for more information on how to comply with FCRA.
What happens if an employer or service agent submits false information to the Clearinghouse?
An employer or service agent who knowingly submits false information to the Clearinghouse may be subject to criminal or civil penalties. Employers and C/TPAs are required to provide specific documentation to support the reporting of actual knowledge or a refusal to test. The FMCSA will remove information from a driver’s Clearinghouse record that is determined to be false.
Are employers required to query the Clearinghouse or report drug and alcohol program violations for drivers who do not hold a CDL or CLP?
No. Only employers who employ drivers subject to the licensing requirements in 49 CFR Part 383 and the drug and alcohol testing requirements in 49 CFR Part 382 are required to query or report information in the Clearinghouse. However, employers of drivers not holding a CDL or CLP must still comply with the driver investigation requirements of § 391.23(e), which includes drug and alcohol violation history.
Will drivers be able to access their own information in the Clearinghouse?
Yes. Once a driver has registered in the Clearinghouse, he or she will be able to access his or her Clearinghouse record electronically, at no cost. This record would include any violation information available in the Clearinghouse, along with the status of their return-to-duty process, if applicable.
How long will CDL driver violation records be available for release to employers from the Clearinghouse?
Driver violation records will be available in the Clearinghouse for five years from the date of the violation determination, or until the violation is resolved through the successful completion of the return-to-duty process and follow-up testing plan, whichever is later.
What actions will CDL drivers be able to take in the Clearinghouse?
Drivers will be able to:
- View their own driver record electronically;
- Provide consent to release detailed violation information to a current or prospective employer; and
- Identify a SAP so that the SAP may enter specific information regarding the driver’s return-to-duty activities.
To complete these actions, drivers must be registered in the Clearinghouse. Registration is scheduled to open in the fall of 2019.
Are Canadian and Mexican CDL drivers conducting operations in the U.S. subject to the Clearinghouse requirements?
Yes, all Mexican or Canadian employers, employees or service agents operating in the U.S. that are subject to the FMCSA drug and alcohol testing requirements must comply with the Clearinghouse final rule.
Are Canadian and Mexican employers required to report drug and alcohol program violations to the Clearinghouse?
Only Canadian and Mexican employers operating in the U.S. that are subject to the FMCSA drug and alcohol testing requirements must report drug and alcohol program violations to the Clearinghouse.
Can Canadian and Mexican MROs report confirmed positive test results and refusals to test to the Clearinghouse?
Yes, if they meet the requirements under § 40.121.
Can Canadian and Mexican SAPs report date of initial assessment and date the driver is eligible for return-to-duty testing?
Yes, if they meet the requirements under § 40.281.
Will any information from the Clearinghouse appear in the National Highway Traffic Safety Administration’s National Driver Register?
No. Information from the Clearinghouse will not be shared with the National Highway Traffic Safety Administration’s National Driver Register.
How does the Clearinghouse impact employers of CDL and CLP holders?
The Clearinghouse will offer employers a centralized location to query driver information and report drug and alcohol program violations incurred by their current and prospective employees holding CDLs and CLPs. These employers must use the Clearinghouse to:
- Conduct a full query as part of each pre-employment driver investigation process;
- Conduct limited queries at least annually for every driver they employ;
- Request electronic consent from each driver for a full query, including pre-employment queries;
- Report drug and alcohol program violations; and
- Record negative return-to-duty test results and the date of successful completion of a follow-up testing plan for any driver they employ with unresolved drug and alcohol program violations.
What violation and return-to-duty information must employers report to the Clearinghouse?
Per § 382.705(b), employers must report the following information to the Clearinghouse:
- An alcohol confirmation test result with an alcohol concentration of 0.04 or greater;
- A CDL driver’s refusal to submit to a DOT test for drug or alcohol use;
- Actual knowledge, as defined in § 107;
- Negative return-to-duty test results; and
- The date a driver successfully completed all follow-up tests as ordered by a substance abuse professional.
What information is an employer required to report to the Clearinghouse when reporting actual knowledge that a CDL driver used alcohol or controlled substance as defined in § 382.107?
Per § 382.705(b)(5), when reporting actual knowledge, employers must report the following:
- Driver name, date of birth, CDL number and state of issuance;
- Employer name, address and DOT number, if applicable;
- Date the employer obtained actual knowledge of the violation;
- Witnesses to the violation, if any, including contact information;
- Description of the violation;
- Evidence supporting each fact alleged in the description of the violation, which may include, but is not limited to, affidavits, photographs, video or audio recordings, employee statements (other than admissions pursuant to § 121), correspondence or other documentation; and
- A certificate of service or other evidence showing that the employer provided the employee with all information reported.
What is the time frame in which an employer must submit a report of an employee’s drug and alcohol program violation to the Clearinghouse?
Employers are required to report a drug and alcohol program violation by the close of the third business day following the date on which the employer obtained the information.
What are the repercussions if an employer does not meet the required time frame for reporting a violation?
The employer may still report the drug and alcohol program violation even if the required timeframe has passed. However, the Clearinghouse will capture the date the violation was reported. This information may be reviewed during an investigation of the employer’s operations and compliance with the Federal Motor Carrier Safety Regulations.
When must current and prospective employers conduct a query of a CDL driver’s information in the Clearinghouse?
An employer must conduct a pre-employment query for a prospective employee in the Clearinghouse prior to hiring the employee for a position requiring him or her to perform safety-sensitive functions, such as operating a CMV. The employer must also query the Clearinghouse annually for all currently employed CDL drivers.
What is the difference between a full and limited query?
A limited query allows an employer to determine if an individual driver’s Clearinghouse record has any information about resolved or unresolved drug and alcohol program violations, but does not release any specific violation information contained in the driver’s Clearinghouse record. Limited queries require only a general driver consent, which is obtained outside the Clearinghouse. This general consent is not required on an annual basis, as it may be effective for more than one year. However, the limited consent request must specify the timeframe for which the driver is providing consent.
A full query allows the employer to see detailed information about any drug and alcohol program violations in a driver’s Clearinghouse record. An employer must obtain the driver’s electronic consent in the Clearinghouse prior to the release of detailed violation information during the full query.
Will employees need to be queried annually based upon the calendar year or by hire date?
Employees must be queried at least once within a 365-day period based on their hire date, or another 12-month period determined by the employer, as long as the requirements of § 382.701(b) are met.
What is the consent process for full and limited queries?
Section 382.703(a) states “No employer may query the Clearinghouse to determine whether a record exists for any particular driver without first obtaining that driver’s written or electronic consent.” The type of consent required depends on the type of query.
For a limited query, a general consent is required. This will be obtained outside the Clearinghouse. Employers may obtain a multi-year general consent from the driver for limited queries. The FMCSA will post a sample limited consent form on the Clearinghouse website for employers’ reference.
For a full query, the driver must provide specific consent to the employer prior to each full query. This consent must be provided electronically within the Clearinghouse.
Which users will be charged a fee for using the Clearinghouse?
The Clearinghouse statute allows the FMCSA to collect Clearinghouse fees when querying from all employers, including federal, state or local government entities that employ CMV operators.
For which actions in the Clearinghouse will employers be charged a fee?
Employers will be charged a fee to conduct limited and full queries within the Clearinghouse only. There will not be a fee for registration or other Clearinghouse activities.
How much will it cost to conduct full and limited queries in the Clearinghouse?
The fee structure for the queries is still pending. Employers subscribed to the Clearinghouse email list will receive a notification from the FMCSA when the cost information has been posted on the Clearinghouse website.
May an employer authorize a C/TPA to conduct queries in the Clearinghouse on their behalf?
Yes. Employers may designate C/TPAs to conduct queries or report violations on their behalf. A C/TPA must be registered in the Clearinghouse before an employer can select it and must be designated by the employer before reporting drug and alcohol program violations or querying the Clearinghouse on the employer’s behalf. Owner-operators must designate their C/TPAs as part of their Clearinghouse registration process.
What must employers do when an authorized service agent is no longer conducting business for the employer’s company?
Employers must update any changes to its service agents within 10 days of the change.
How is driver violation and return-to-duty information stored in the Clearinghouse?
Employers (and C/TPAs acting on behalf employers) enter drug and alcohol program violation information into the Clearinghouse.
MROs enter drug violation information. The driver does not need to be registered in the Clearinghouse for a violation to be added to their Clearinghouse record.
SAPs enter the date of initial assessment and date a driver is eligible for return-to-duty testing.
Employers will enter negative return-to-duty test result(s) and the date a driver’s follow-up testing plan has been successfully completed.
Can an employer or MRO enter a drug and alcohol program violation in a CDL driver’s Clearinghouse record if the driver is not registered in the Clearinghouse?
Yes. When a violation is entered, the Clearinghouse associates it with a driver’s CDL information. This will be recorded even if the driver has not registered for the Clearinghouse. When an employer queries a driver’s information in the Clearinghouse (with the appropriate consent), it will enter the driver’s CDL information to verify if any violations are associated with that driver’s CDL.
Drivers will be required to enter their CDL information during their Clearinghouse registration. This will allow them to view any violation or return-to-duty information associated with their CDL.
Will a prospective employee’s drug and alcohol violation history with DOT modes other than the FMCSA be available in the Clearinghouse?
No. The Clearinghouse will contain only drug and alcohol violation information for employees subject to the testing requirements under the Federal Motor Carrier Safety Regulations in 49 CFR Part 382 . Employers must continue to request information from previous employers if an employee was subject to DOT drug and alcohol testing required by a DOT modal administration other than FMCSA (as required by § 391.23(e)(4)(i)(B))).
Safety-sensitive employees under the Federal Transit Administration umbrella should not be included in the Clearinghouse database.
If an employee performs safety-sensitive functions that would subject him or her to the DOT testing programs of more than one DOT agency, the employee will be subject to random alcohol or controlled substances testing at the annual percentage rate established for the calendar year by the DOT agency regulating more than 50% of the employee’s safety-sensitive work, as per § 382.305 (n)(0). This situation may occur where an employee performs both CDL functions and pipeline maintenance functions for a DOT-regulated employer.
May employers report the results of drug or alcohol tests not required by the DOT to the Clearinghouse?
No. Only results of DOT drug or alcohol tests or refusals may be reported to the Clearinghouse. While employers may conduct drug and alcohol testing that is outside the scope of the DOT testing requirements, positive test results or refusals for non-DOT testing may not be reported to the Clearinghouse.
How do owner-operators meet their Clearinghouse obligations?
Owner-operators are subject to the requirements pertaining to employers as well as those pertaining to drivers. Under the Clearinghouse final rule, an employer who employs him- or herself as a CDL driver must designate a consortium/third-party administrator to comply with Clearinghouse reporting requirements (§ 382.705(b)(6)).
Do owner-operators have to conduct queries on themselves?
Yes. Anyone who employs a 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 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.
What are an MRO’s responsibilities for reporting information to the Clearinghouse?
Within two business days of making a determination or verification of a DOT-approved drug test, an medical review officer must report:
- Verified positive, adulterated, or substituted controlled substances test results; or
- Refusal-to-test determination.
What information is an MRO required to provide when reporting a determination or verification?
The following information must be provided:
- Reason for the test;
- Federal Drug Testing Chain of Custody Form (CCF) specimen ID number;
- Driver’s name, date of birth, and CDL number and state of issuance;
- Employer’s name, address, and DOT Number, if applicable;
- Date of the test and date of the verified result;
- Test result; and
- In the case of an adulterated specimen, the adulterant/reason.
What is the timeframe within which an MRO is required to report to the Clearinghouse?
Within two business days of making a determination or verification of a DOT-approved drug test.
If an MRO changes a verified drug test result per 49 CFR Part 40, how long does the MRO have to submit the change to the Clearinghouse?
If an MRO changes a verified drug test, the MRO must submit that change to the Clearinghouse within one business day of making the change in the reported results.
What identifying number should be documented for drivers on the Federal Drug Testing Chain of Custody Form (CCF) and Alcohol Testing Form (ATF)?
The current paper versions of the CCF and ATF specifically permit the use of either the driver’s social security number or an employee identification number. However, under § 382.705, the driver’s CDL number and the state of issuance must be used in place of the SSN or EIN when completing the Federal CCF or ATF.
Is a social security number or employee identification number required to enter a driver’s violation into the Clearinghouse?
No. The final rule only requires the driver’s CDL number and issuing state when reporting a drug and alcohol program violation in the Clearinghouse.
What information is a SAP required to report to the Clearinghouse for each CDL driver engaging their services?
A SAP must report the following:
- Driver’s name, date of birth, CDL number and state of issuance;
- Date of initial assessment; and
- Date the SAP determined the driver demonstrated successful compliance with education and treatment requirements and is eligible for return-to-duty testing.
What is the timeframe within which a SAP is required to report to the Clearinghouse?
- The close of the business day following the date of the initial assessment.
- The close of the business day following the determination that a driver demonstrated successful compliance with education and treatment requirement and is eligible for return-to-duty testing.
Will a driver’s follow-up testing plan be available in the Clearinghouse?
No, follow-up testing plans will not be included in a driver’s Clearinghouse record. When a prospective employee has not completed a follow-up testing plan prescribed by the SAP, the subsequent new employer must obtain the follow-up testing plan from the previous employer, as required in §382.413, and report the date the follow-up testing plan was completed.
Will employers have access to violation information regarding current employees, including violations recorded by a different employer?
Employers may conduct a limited query, which requires consent outside of the Clearinghouse. If the limited query returns that records were found in the Clearinghouse for the queried driver, the employer must receive electronic consent for a full query from the driver in the Clearinghouse before detailed information may be released to the querying employer. The employer may also conduct a full query at any time, provided the employer has obtained the required electronic consent for the release of detailed violation information for the queried driver.
Will employers have the option to submit multiple queries at one time, rather than conduct each query individually?
The Clearinghouse will support a feature allowing employers to upload a file containing multiple drivers to be queried; these queries will be conducted in batches. A template of the file to be used for this process will be made available on the Clearinghouse website.
May a C/TPA register for an employer for the Clearinghouse on their behalf?
No. As part of the Clearinghouse registration process, each authorized user must obtain their own unique login.gov credentials and will use these credentials to access the Clearinghouse. For security reasons, a user verification process must be completed to ensure that only the authorized user is using their credentials.
Are there plans to support an employer interface allowing for automated uploads via web service, or similar?
At this time, there are no integration specifications available. Due to the FMCSA security requirements and the sensitive nature of driver violation information, employers and C/TPAs must access the Clearinghouse directly. In addition, the final rule requires FMCSA to record specific consent for the release of the driver’s detailed violation information within the Clearinghouse.
Source: U.S. Department of Transportation, Federal Motor Carrier Safety Administration