Groups representing motor carrier employers and the law enforcement community have asked the Federal Motor Carrier Safety Administration to expand its proposed drug and alcohol testing clearinghouse to require that employers report their observations of and drivers’ admission of substance misuse to the clearinghouse.

FMCSA in February proposed to establish a clearinghouse for drug and alcohol testing results and refusals to submit to testing. The goal is to prevent drivers who violate the regulations from masking the violations by withholding the identities of previous employers when seeking new jobs. Comments on FMCSA’s notice of proposed rulemaking (NPRM) are due May 21. The deadline originally was April 21, but the Owner-Operator Independent Drivers Association sought more time, in part because it anticipated this new development.

In a May 5 petition for supplemental notice of proposed rulemaking (SNPRM), seven organizations - American Bus Assn., American Trucking Assns., Commercial Vehicle Safety Alliance, National Private Truck Council, National Tank Truck Carriers, Truckload Carriers Assn. and United Motorcoach Assn. - said they support FMCSA’s current proposal as far as it goes. “However, we are concerned that the agency does not propose to require reporting of all drug and alcohol violations to the clearinghouse.”

“Specifically, employers would not be called upon to report their direct observations of drug or alcohol misuse or employee admissions of misuse,” the groups said in the petition. Failing to capture these two types of violations undermines the clearinghouse’s effectiveness, they said.

The groups said that under FMCSA’s proposal, a manager could observe a driver engaging in misconduct or the driver could even admit to misconduct, but the next potential employer would learn of the violation only if all three of the following conditions existed:

  • The driver provided an honest and complete employment history to the subsequent employer
  • The past employer was still in business
  • The past employer dutifully furnished details of the driver’s violation to the subsequent employer

“In other words, under the conditions proposed by FMCSA in the NPRM, the current loophole will remain open.”

In addition to including observations of and, admission of, substance misuse in the clearinghouse, the seven organizations said FMCSA should propose to eliminate the previous employer inquiry requirements as redundant and obsolete. “Since employers would be able to learn of all violations by querying the clearinghouse, retention of the previous employer inquiry requirement would simply represent an additional burden on employers without a corresponding safety benefit.”

“We are taking a look at the petition, but only positive test results should be documented,” said OOIDA spokesperson Norita Taylor. “A driver’s permanent record should not be tainted by unverifiable accusations or assertions.”

Although the petition comes during the comment period on FMCSA’s proposal, the laws governing federal government regulations could prevent the agency from expanding the scope in the final rule, Rob Abbott, ATA’s vice president for safety policy, told Fleet Owner. “Since they did not propose it in the NPRM, they must issue an SNPRM and take comments on it in order to make the change,” Abbott said.

Failing to provide notice and opportunity to comment can be lethal for a rule, especially one likely to generate opposition in some sectors. One of the federal appeals court decisions invalidating FMCSA’s hours-of-service regulations rested on the agency’s decision to change its methodology for analyzing crash risk without notice and comment.

“The NPRM requested public comment on this issue so we welcome their views,” said FMCSA spokeswoman Marissa Padilla. FMCSA also has placed a copy of the groups’ letter in the public docket so that all interested parties are aware of the request, she said.