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FMCSA CLEARINGHOUSE: Pay to Play, and You Must Play

The countdown is on to January 6, 2020, the official compliance date for the Federal Motor Carrier Safety Administration’s(“FMCSA”) Commercial Driver’s License Drug and Alcohol Clearinghouse (“Clearinghouse”). According to the Executive Summary of the Final Rule, “[t]he purpose of the Clearinghouse … is to maintain records of all drug and alcohol program violations in a central repository and require that employers query the system to determine whether current and prospective employees have incurred a drug or alcohol violation that would prohibit them from performing safety-sensitive functions covered by the FMCSA and U.S. Department of Transportation (DOT) drug and alcohol testing regulations.” 81 FR 87686. In theory, the Clearinghouse sounds great — a one-stop, “liquor store drive thru” to assist Carriers in verifying qualified drivers. The FMCSA has set up scores of webpages dedicated to promoting and explaining the program and hailing its strengths:

“If a driver has a drug and alcohol program violation in one State, then applies for a commercial driver’s license in another State, will the Clearinghouse be able to connect that driver’s drug and alcohol violation history to the new CDL?” Yes.

“Does the Clearinghouse contain all drug and alcohol information for a driver in one place?” Yes.

“Is the Clearinghouse subject to the Privacy Act requirements?” Yes.

“Can a driver correct information recorded about him in the Clearinghouse?” Yes.

According to the FMCSA, “[t]he Clearinghouse will improve highway safety by helping employers, FMCSA, State Driver Licensing Agencies, and State law enforcement to quickly and efficiently identify drivers who are not legally permitted to operate commercial motor vehicles (CMVs) due to drug and alcohol program violations. This secure online database will provide access to real-time information, ensuring that drivers committing these violations complete the necessary steps before getting back behind the wheel, or performing any other safety-sensitive function.” “FMCSA: Drug & Alcohol Clearinghouse “Coming Soon Commercial Driver’s License Drug and Alcohol Clearinghouse”, https://clearinghouse.fmcsa.dot.gov/ (September 10, 2019).

It’s all very exciting. Until you read further. The fine print gets you every time, and the time for the practical application in preparation for compliance with the Clearinghouse rules is immediate. In reviewing the Frequently Asked Questions concerning the Clearinghouse, or even better, the language of the Final Rule itself, it becomes quite clear the benefits of the Clearinghouse come most often at the expense of the employer in the way of time, personnel obligation, and financial resources.

Employers may register for the Clearinghouse as early as this fall to create an account to gain access to the system. The majority of Clearinghouse obligations may be found at FMCSA §§382.701-727. These provisions include, but are not limited to, the following requirements for employers of drivers: 1) conducting a pre-employment query of the Clearinghouse for driver drug and alcohol histories (382.701(a)); 2) conducting an annual query of the Clearinghouse for all employees subject to controlled substance and alcohol testing (382.701(2)); 3) retaining query records for three years (382.701(3)); obtaining driver written or electronic consent to access the Clearinghouse for a particular driver’s records (382.703(1)); and reporting the results of various alcohol, refusal, and negative return to duty tests in sufficient detail and with adequate documentation within three business days (382.705(b)). The regulations leave open the option of penalty for noncompliance. As an added difficulty, drivers must first provide consent within the Clearinghouse before employers can access specific driver data.

As for cost, pricing options were recently released by the FMCSA on August 20, 2019 for query plans (i.e. driver data search plans). Individual query plans charge a flat rate of $1.25 per query, which is applied to both limited and full queries. Various “bundles” are also available within the individual query plan. For example, employers can pay $125 for 100 queries, $1,250 for 1,000 queries, or $9,375 for 7, 500 queries. The unlimited query plan charges an annual fee of $24,500. All employers of CDL drivers are required to purchase a query plan, beginning now, in the fall of 2019.

The bottom line is an employer of commercial drivers is required to utilize the Clearinghouse, which means it is required to comply with entering data into the Clearinghouse and pay a fee to use the Clearinghouse. You must pay to play, and you must play. Although employers are able to use third party administrators under the rule, for most, the Clearinghouse will mean recruiting, HR, or safety departments will be faced with an additional task of not only pulling Clearinghouse data, but ensuring timely data entry as well.

The legal implication of non-compliance goes beyond non-feasance with a new program. In a world of Reptile litigation and negligent supervision claims, stringent record keeping andFMCSA compliance becomes more important than ever. Time is of the essence to establish a game plan to put personnel in place, set aside a budget, and figure out how to emphasize the positives of the Clearinghouse while mastering the employer obligations.

For questions or comments regarding FMCSA compliance, including the new Clearinghouse, please feel free to contact Amy Tracy (atracy@setlifflaw.com) at 804-377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261

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