FMCSA proposes ‘driving ban’ for drug/alcohol violators

Federal regulators are proposing that state agencies stop issuing, renewing or upgrading a commercial driver’s license (CDL) or commercial learner’s permit (CLP) to drivers with drug and alcohol violations as well as to downgrade drivers’ CDL and CLP driving privileges.

Such a “driving ban,” according to the Federal Motor Carrier Safety Administration (FMCSA), “is intended to keep these drivers off the road until they comply with return-to-duty [RTD] requirements.”

In its notice of proposed rulemaking, which includes a 60-day comment period after publishing in the Federal Register on April 28, the FMCSA explained that while it is illegal to drive a truck if a driver has drug or alcohol violations, the prohibition has largely been self-enforcing because the agency relies primarily on information provided by drivers and their employers. Before the Drug and Alcohol Clearinghouse was created, the agency did not have “real-time access” to driver violations.

“The Clearinghouse final rule addressed that information gap so that, based on violations reported to the Clearinghouse, FMCSA can now provide certain State enforcement personnel real-time notice of the driver’s prohibited driving status,” FMCSA stated. “However, the information gap still exists with regard to the SDLAs [state driver license agencies]. This [proposed rule] would establish how, and when, SDLAs would access and use driver-specific information from the Clearinghouse.”

The proposed rule would also revise how employer reports of actual knowledge of a driver’s drug or alcohol use to the Clearinghouse are handled.

To increase compliance with the commercial motor vehicle (CMV) driving prohibition for drivers with drug and alcohol violations, FMCSA proposes two alternatives. The first “preferred” alternative would require SDLAs to initiate a mandatory downgrade of the CLP and CDL driving privilege. Drivers would be required to complete the RTD process and comply with state-established procedures for reinstating their driving privilege.

Under a second alternative, SDLAs “would be provided optional notice of a driver’s prohibited status” from the Drug and Alcohol Clearinghouse. “The States would decide whether and how they would use the information under State law and policy to prevent a driver from operating a CMV without a valid CLP or CDL,” according to the proposed rule.

FMCSA acknowledged the potential costs that both drivers and their companies could incur as a result of the proposed rule: a driver could lose income between the time he or she completes RTD requirements and the point at which their driving privileges are reinstated by the SDLA, and their carrier could see lost profits due to the loss of productive driving hours during the same period.

However, based on established downgrade procedures, “drivers will incur minimal opportunity costs and reinstatement costs,” FMCSA asserted. It pointed out that, based on data from the U.S. Department of Health and Human Services, 82% of drivers would be referred by substance abuse professionals to two-day education programs as part of the RTD process.

Given this short duration, most drivers would complete the RTD process before a downgrade would be recorded on their record, “thus they would incur neither opportunity costs nor reinstatement costs,” the agency contends.

Taking into account opportunity costs, reinstatement costs, and IT-related costs, the agency estimates the proposed rule would cost between $32.8 to $44.0 million over 10 years.

The rulemaking seeks comment on 13 specific questions, including whether or not commenters agree with the FMCSA’s preferred alternative, and how much time SDLAs would need to adapt their IT systems and implement related processes to request, receive, and act on information from the Clearinghouse.

The FMCSA reported last week that the Clearinghouse, which began allowing carriers to check the status of driver violations January 6, had close to 900,000 registered users with 17,000 drug and alcohol test violations logged.