New FMCSA Rule Mandates CDL Downgrades for Drug Violations

Beginning Nov. 18, Clearinghouse II is intended to make it more difficult for drivers to continue operating after receiving a drug or alcohol violation. (shaunl/Getty Images)

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WASHINGTON — Beginning Nov. 18, federal trucking regulators will require state driver licensing agencies to downgrade a truck driver’s commercial driver license once a driver fails a drug or alcohol test and is placed on prohibited driving status.

The new requirement is part of the Federal Motor Carrier Safety Administration’s Drug & Alcohol Clearinghouse II regulation, intended to make it more difficult for drivers to continue operating after receiving a drug or alcohol violation, according to Bryan Price, chief of the agency’s drug and alcohol programs division.

Price spoke on Oct. 2 to a group of trucking executives attending American Trucking Associations’ Safety Management Council Fall Membership Conference.

The first Clearinghouse rule required employers to query the Clearinghouse for current and prospective employees’ drug and alcohol violations before permitting those employees to operate a commercial motor vehicle on public roads. It also required employers to annually query the Clearinghouse for each driver they currently employ.

Clearinghouse II will require state driver licensing agencies to remove the commercial driving privileges of drivers in a “prohibited” status in the Clearinghouse, downgrading the driver’s CDL until he or she completes the return-to-duty process. The new rule requires the state to complete and record the CDL downgrade on the Commercial Driver’s License Information System driver record within 60 days of notification.

The Clearinghouse, mandated by Congress, went into effect on Jan. 6, 2020. One of the aims of the Clearinghouse is to keep drivers from job hopping after they fail a substance test.

FMCSA has said the Clearinghouse is having the intended effect of taking large numbers of drivers caught using drugs off the highways. However, a persistent concern is that 177,000 drivers remain in prohibited driving status after failing their drug tests and have yet to complete a federal return-to-work process.

“With this rule beginning in November, we’re going to feed all those CDL numbers down to the DMVs, and the DMVs are required by this new federal rule to downgrade that driver’s license at the state level,” Price said. “When the state DMV downgrades the license, we think that if the driver’s company has insurance and runs an MVR [motor vehicle record] check and sees this guy’s license is no good, it’s going to go a long way toward helping us get more of these drivers off the road until they do the return-to-duty process.”

The prohibited duty status starts a 60-day clock for the state licensing agencies to downgrade CDLs and learning permits, Price said.

“Some of the states, a fair number of them, are already beginning downgrading,” he said. “Some states are also sending the drivers a warning letter — a shot across the bow — saying they are about to implement the new rule and the driver would need to begin the return-to-duty process, or we’re going to downgrade your license.”

Returning to duty requires several steps, including finding and engaging a certified substance abuse professional for a driver evaluation, following a prescribed education or treatment program, passing a return-to-duty test and completing a follow-up testing program that includes six random follow-up tests over 12 months.

Price said roughly 5 million drivers and just under 500,000 employers are currently registered in the Clearinghouse, which first went into effect on Jan. 6, 2020. As of September, the state of Texas led the nation with 14,000 drivers in prohibited status but claimed to have jumped out ahead of the new requirement by already having downgraded 7,000 CDLs in prohibited status, Price said.

Regulators already have begun making plans to do annual program reviews looking to see if state CDL programs are compliant with all of the new federal requirements, Price added.

“There are consequences for the states, up to potential funding ramifications if they don’t comply,” he said. “We haven’t heard from any state so far that said, ‘We’re not doing this.’ ”