FMCSA clearinghouse rule puts bullseye on freight capacity

When even a small percentage of tens of thousands of trucks get forced off the road, a major freight capacity shift can ensue – and that’s exactly the scenario playing out now that states have new enforcement power over roughly 179,000 truck drivers.

That’s the number of drivers in “prohibited status” as of Oct. 1, the latest data available from the Federal Motor Carrier Safety Administration’s Drug & Alcohol Clearinghouse. On Monday, all those drivers’ CDLs were automatically revoked. Those most affected are the small-business trucking companies that move most of the nation’s freight.

“So what happens in those companies with five to 10 trucks that currently have drivers that were in prohibited status or weren’t properly going through the return-to-duty process? It’s going to be a slow burn” of capacity exiting the market, Adam Wingfield, founder and managing director of Innovative Logistics Group, told FreightWaves CEO Craig Fuller on Thursday.

Before Nov. 18, drivers with drug or alcohol violations recorded in FMCSA’s clearinghouse were “grounded” – but not necessarily kept from driving, if they found a way to cheat the system.

But Wingfield, discussing the capacity implications with Fuller at FreightWaves’ F3: Future of Freight Festival in Chattanooga, Tennessee, contends that the new enforcement powers granted to the states for prohibited-status drivers – automatic revocation of the drivers’ CDLs – is the biggest game-changer for freight capacity since FMCSA stood up the clearinghouse in January 2020.

“With round two of clearinghouse implementation, what’s happening is, you’re not just being grounded, we’re also taking away your keys,” Wingfield said. “And because all 50 states agreed to receive [federal] funding for that, now they have to comply with the process of actually removing that CDL privilege – that’s the difference.”

The new enforcement provided to the states means that a driver with a drug or alcohol violation is prohibited from performing any “safety-sensitive functions” – including operating a truck – until the driver completes FMCSA’s return-to-duty (RTD) process, which involves education, treatment and an RTD test.

It doesn’t stop there. After successfully completing an RTD test, to remain in a “not prohibited” status a driver must pass a follow-up testing plan as specified by a substance abuse professional, which must include a minimum of six unannounced follow-up tests in the first year of returning to driving.

Enforcement will depend on how strict each state is in implementing the new provision. FMCSA deliberately gave deference to state driver’s license agencies, which will have 60 days after they’re notified by FMCSA that a driver residing in that state is in prohibited status to complete and record the CDL downgrade on the driver’s record.

Also, states are able to determine whether the reason for the downgrade is posted on a CMV operator’s driving record, and how long the information will remain there, according to the regulation.

But Wingfield expects that enforcement at roadside inspections will be strong, particularly given that each violation can generate a civil penalty of close to $6,000.

“Just think about the ongoing pain point this is going to create,” he told Fuller. “I think that the enforcement side of it is going to change the way capacity is viewed in the marketplace.”

Fuller underscored the significance of new clearinghouse enforcement in light of the freight recession the trucking industry has been mired in the past several years.

“It’s been a pretty miserable time for many parts of the market, and this is another case for how that supply and demand balance can be affected,” he said. “Even if we’re only talking 10%, it’s a big enough impact because of how marginally close we are in that balance where it could lead to a pretty significant capacity crunch.”

Wingfield agreed, noting that 10% of 179,000 drivers with CDLs revoked “means we’re taking 17,000 trucks off the road. That’s not small in any market.”