The US Department of Transportation’s (USDOT) Federal Motor Carrier Safety Administration (FMCSA) has issued a proposed rulemaking (NPRM) which would establish a new nationwide database for reporting and tracking drug and alcohol related citations and test results for operators of commercial vehicles (CMV) holding Commercial Driver’s Licenses (CDL). The proposal was published in the Federal Register under Docket Number FMCSA–2010–0031 on the 20th of February, 2014 and if implemented will have a significant impact on the freight trucking industry and other transport modes who have employees holding CDL’s.
The proposal would create what would be known as the “Commercial Driver’s License Drug and Alcohol Clearinghouse” and would contain information available on a national basis regarding the testing and or violation/citation status for CDL holders who are employed by firms regulated under the FMCSA. Such employers, as well as Medical Review Officers (MRO), Substance Abuse Professionals (SAP), and what are known as Consortia/Third Party Administrators (C/TPA) would all be required to report a plethora of assorted related citations and results, including but not necessarily limited to positive or adulterated drug or alcohol test results, citations issued for driving under the influence of such substances, refusal to submit to examination, etc. Laboratories conducting such test analyses would also be required to report annual summary information about their test programs.
At present, motor carriers operate under what can reasonably be called a hodgepodge of state laws which in some cases do and in other cases do not require the reporting of such information. The concern being addressed is that some drivers may seek to avoid such testing, long a requirement under federal law, by skipping from one employer or state to another, and as a result, persons who have failed, or failed to take, such exams may slip through the cracks in enforcement and notification. A federal database would go a long way towards solving that.
However, the proposal, made under the auspices of the “Moving Ahead for Progress in the 21st Century (or, “MAP”) Act, is not without pitfalls. The requirement for motor carriers to report specific driver violations can be construed as placing them somewhat in the role of an enforcement agency, which many would contend is not their role. Additionally, doing so would provide a public database under which certain information could, under some circumstances, be used in ways potentially harmful to their own interests, without a concomitant ability to defend themselves. MRO’s or other parties might face similar issues, or could potentially face litigation from CDL holders claiming incorrect placement on the listing due to a false or mistaken report. The proposal establishes protocols for controlled access to the database; however, recent events in the news have cast no small doubt on the federal government’s ability to hold information in a secure fashion (i.e., the NSA scandal, etc). Whether or not this would pass the test of litigation under constitutional grounds—since most of the people on the listing would presumably not have been convicted of any criminal act under any rules of evidence nor have had any ability to dispute their inclusion on the list in a court of law remains open to question. One proposed amendment to 49 CFR 382.415 would place an affirmative obligation on a driver to report to his or her employer or potential employer if he or she “violates the drug and alcohol testing regulations in parts 40 or 382.” How this language squares with the constitutional prohibition on self-incrimination under the 5th Amendment to the constitution seems unclear. The proposal seeks to address many of these issues in one form or another—i.e., petitions, appeals, etc etc, but in the end, the NPRM is just that—a proposal, not law, and the industry and CDL holders will have a chance to comment on any aspect they may find of interest or concern.
Here is a link to the proposed rulemaking:
http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03213.pdf
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