Commercial Driver's License Drug and Alcohol Clearinghouse, 87686-87731 [2016-27398]

Download as PDF 87686 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration I. Executive Summary A. Purpose and Summary of the Major Provisions of the Clearinghouse 49 CFR Parts 382, 383, 384 and 391 [Docket No. FMCSA–2011–0031] RIN 2126–AB18 Commercial Driver’s License Drug and Alcohol Clearinghouse Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. AGENCY: FMCSA amends the Federal Motor Carrier Safety Regulations to establish requirements for the Commercial Driver’s License Drug and Alcohol Clearinghouse (Clearinghouse), a database under the Agency’s administration that will contain information about violations of FMCSA’s drug and alcohol testing program for the holders of commercial driver’s licenses (CDLs). This rule is mandated by the Moving Ahead for Progress in the 21st Century Act (MAP– 21). It will improve roadway safety by identifying commercial motor vehicle (CMV) drivers who have committed drug and alcohol violations that render them ineligible to operate a CMV. DATES: Effective Date: January 4, 2017. Compliance Date: January 6, 2020. FOR FURTHER INFORMATION CONTACT: Mr. Juan Jose Moya, Compliance Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590– 0001, by telephone at (202) 366–4844 or via email at fmcsadrugandalcohol@ dot.gov. FMCSA office hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366–9826. SUPPLEMENTARY INFORMATION: SUMMARY: sradovich on DSK3GMQ082PROD with RULES2 Table of Contents I. Executive Summary A. Purpose and Summary of the Major Provisions of the Clearinghouse B. Benefits and Costs II. Abbreviations III. Legal Basis for the Rulemaking IV. Background on FMCSA’s Drug and Alcohol Testing Program V. Discussion of Comments Received on the Proposed Rule VI. Section-by-Section Explanation of Changes From the Notice of Proposed Rulemaking A. Part 382 B. Part 382, Subpart G (Sections 382.701 through 382.727) C. Part 383 VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 D. Part 384 E. Part 391 VII. Regulatory Analyses and Notices The purpose of the Clearinghouse, as mandated by section 32402 of MAP–21, is to maintain records of all drug and alcohol program violations in a central repository and require that employers query the system to determine whether current and prospective employees have incurred a drug or alcohol violation that would prohibit them from performing safety-sensitive functions covered by the FMCSA and U.S. Department of Transportation (DOT) drug and alcohol testing regulations. This will provide FMCSA and employers the necessary tools to identify drivers who are prohibited from operating a CMV and ensure that such drivers receive the required evaluation and treatment before resuming safety-sensitive functions. Specifically, information maintained in the Clearinghouse will ensure that drivers who commit a drug or alcohol violation while working for another employer, or who attempt to find work with another employer, do not perform safety-sensitive functions until completing the return-to-duty process. The Clearinghouse thus addresses the situation in which drivers can conceal their drug and alcohol violations merely by moving on to the next job or the next jurisdiction. As explained below, drug and alcohol violation records maintained in the Clearinghouse will ‘‘follow’’ the driver regardless of how many times he or she changes employers, seeks employment or applies for a CDL in a different State. The Clearinghouse will be administered and maintained in strict compliance with applicable Federal security standards. The Agency will comply with the consent requirements of the Privacy Act prior to releasing any driver’s Clearinghouse record to an employer. Employers and medical review officers (MROs), or their designated representatives, are required to report information about positive drug test results, alcohol test results greater than 0.04 blood alcohol content, refusals to test and other non-test violations of FMCSA’s drug and alcohol regulations. In addition, Substance Abuse Professionals (SAPs) are required to report information about drivers undergoing the return-to-duty drug and alcohol rehabilitation process. Employers must search the Clearinghouse for information during PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 the pre-employment process for prospective employees and at least once a year for current employees to determine whether anyone has incurred a drug or alcohol violation with a different employer that would prohibit him or her from performing safetysensitive functions. B. Benefits and Costs In the Initial Regulatory Analysis, the Agency estimated the annual benefit of the proposed rule at $187 million and the annual cost at $186 million. The present value of the proposed rule was $8 million at a 7 percent discount rate. The Final Regulatory Impact Analysis estimates the annual benefit of the final rule at $196 million and the annual cost at $154 million. Net present value benefit is estimated at $316 million at a 7 percent discount rate. The principal factor causing the reduction in costs is the analytical change necessary to account for the program change concerning the testing rate for annual random drug tests. Effective January 1, 2016, the random drug testing rate is now 25 percent of drivers employed by a carrier, as opposed to 50 percent. This change was made pursuant to 49 CFR 382.305, and is unrelated to the Clearinghouse or the final rule. The industry has only been in operation for less than a year at the lower testing rate. Therefore, no drug survey data available that indicates that the random positive drug test rate has, or will, materially diverge from the three-year average of positive test rates used to estimate the number of positive random drug tests for the forecast period. This change reduces the estimate of the number of annual random positive drug tests from 28,000 in the Initial Regulatory Impact Analysis to 10,000 in the Final Regulatory Impact Analysis. The principal effect of this change is a reduction in return-to-duty costs from the $101 million estimated in the Initial Regulatory Impact Analysis to $56 million in the Final Regulatory Impact Analysis. In addition, FMCSA estimated drivers’ opportunity cost for the personal income they would forgo for the hours in which they are in substance abuse education or treatment programs. This opportunity cost is included in the estimate of total returnto-duty costs. In the Final RIA, FMCSA estimated employers’ opportunity cost as the monetized value of on-duty time lost for the entire period of time drivers, with drug and alcohol violations are detected as a result of the final rule, are prohibited from performing safetysensitive functions. The Agency estimates about $196 million in annual benefits from crash E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations reductions resulting from the rule. The benefits consist of $55 million in safety benefits from the annual queries and $141 million in safety benefits from the pre-employment queries. FMCSA estimates that the rule would result in $154 million in total annual costs, which include: • $29 million that is the estimated monetized value of employees’ time to prepare annual employer queries; • $11 million that is the estimated monetized value of employees’ time to prepare pre-employment queries; • $3 million for employers to designate service agents, and $1 million for SAPs to report initiation of the return-to-duty Initial Assessment; • $5 million incurred by various reporting entities to register with the Clearinghouse, verify authorization, and become familiar with the rule, plus an additional $700,000 for these entities to report positive tests; • $35 million of fees and consent and verification costs consisting of $24 million in Clearinghouse access fees incurred by employers for preemployment queries, limited annual queries and full annual queries, plus $11 million of the monetized value of drivers’ time to provide consents to employers and verification to FMCSA to allow employers access to drivers’ records; • $2.2 million for development of the Clearinghouse and management of records; • $56 million incurred by drivers to go through the return-to-duty process, including $7 million of opportunity costs in the form of income forgone for 87687 those hours spent in substance abuse education and treatment programs in lieu of hours that could be spent in nonsafety-sensitive in positions; and • $11.5 million of opportunity costs incurred by employers due to lost onduty hours and profits associated with drivers suspended from safety-sensitive functions until successful completion of the return-duty-process. Total net benefits of the rule are $42 million annually ($196 million–$154 million). The 10-year projection of net benefits is $316 million when discounted at 7 percent and $369 million when discounted at 3 percent. The annualized net benefit of the final rule is $42 million at the 7 percent and 3 percent discount rates. The estimated benefits include only those associated with reductions in CMV crashes. TOTAL NET BENEFIT PROJECTION OVER A 10-YEAR PERIOD Total Annual 10-year 10-year 7% 3% Discount rate Total Benefits ............................................................................................................. Total Costs ................................................................................................................. Total Net Benefits ...................................................................................................... sradovich on DSK3GMQ082PROD with RULES2 II. Abbreviations AAMVA American Association of Motor Vehicle Administrators ABA American Bus Association AMRO American Medical Review Officers, LLC ATA American Trucking Associations ATF Alcohol Testing Form BLS Bureau of Labor Statistics Boeing The Boeing Company CAA Clean Air Act Cahill-Swift Cahill Swift LLC CCF Federal Drug Testing Custody and Control Form CCTA California Construction Trucking Association CDL Commercial Driver’s License CDLIS Commercial Driver’s License Information System Clearinghouse FMCSA’s Commercial Driver’s License Drug and Alcohol Clearinghouse CLP Commercial Learner’s Permit CMV Commercial Motor Vehicle C/TPA Consortia/Third Party Administrator CVTA Commercial Vehicle Training Association DOT U.S. Department of Transportation Driver Check Driver Check Medical Testing and Assessment DrugPak DrugPak LLC DUI Driving a Commercial Motor Vehicle While Under the Influence of Alcohol or Drugs eCCF Electronic Custody and Control Form EIN Employer Identification Number E-MAIL Electronic Mail FCRA Fair Credit Reporting Act FE FirstEnergy Corporation VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 $196,000,000 154,000,000 42,000,000 FMCSA Federal Motor Carrier Safety Administration FMCSRs Federal Motor Carrier Safety Regulations Foley Foley Carrier Services GAO Government Accountability Office Greyhound Greyhound Lines, Inc. HHS Health and Human Services HIPAA Health Insurance Portability and Accountability Act of 1996 IBT International Brotherhood of Teamsters IT Information Technology J.B. Hunt J.B. Hunt Transport, Inc. MAP–21 Moving Ahead for Progress in the 21st Century Act MRO Medical Review Officer MROCC Medical Review Officer Certification Council NCSL National Conference of State Legislators NGA National Governors Association NPRM Notice of Proposed Rulemaking NPTC National Private Truck Council NTSB National Transportation Safety Board NYAPT New York Association for Pupil Transportation OMB Office of Management and Budget OOIDA Owner-Operator Independent Drivers Association, Inc. OTETA Omnibus Transportation Employee Testing Act of 1991 PII Personally Identifiable Information PSP Pre-Employment Screening Program PTC Pipeline Testing Consortium, Inc. Quest Diagnostics Quest Diagnostics Incorporated RIA Regulatory Impact Analysis SAMHSA Substance Abuse and Mental Health Services Administration SAP Substance Abuse Professional PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 $1,472,985,521 1,157,345,766 315,639,754 $1,722,077,349 1,353,060,774 369,016,575 SAPAA Substance Abuse Program Administrators Association Schneider Schneider National, Inc. SDLA State Driver Licensing Agency TTD Transportation Trades Department, AFL–CIO UMRA Unfunded Mandates Reform Act of 1995 WPCI Western Pathology Consultants, Inc. III. Legal Basis for the Rulemaking Section 32402 of the Moving Ahead for Progress in the 21st Century Act (MAP–21) (Pub. L. 112–141, 126 Stat. 405), codified at 49 U.S.C. 31306a, directs the Secretary of Transportation (Secretary) to establish a national Clearinghouse containing CMV operators’ violations of FMCSA’s drug and alcohol testing program. This rule implements that mandate. In addition, FMCSA has general authority to promulgate safety standards, including those governing drivers’ use of drugs or alcohol while operating a CMV. The Motor Carrier Safety Act of 1984 (the 1984 Act), codified at 49 U.S.C. 31136(a), provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. The 1984 Act requires the Secretary to prescribe safety standards for CMVs which, at a minimum, shall ensure that: (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on CMV operators do not impair their ability to E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87688 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations operate the vehicles safely; (3) the physical condition of CMV operators is adequate to enable them to operate the vehicles safely; (4) CMV operation does not have a deleterious effect on the physical condition of the operators; and (5) CMV drivers are not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a CMV in violation of regulations promulgated under 49 U.S.C. 31136 or 49 U.S.C. chapters 51 or 313 (49 U.S.C. 31136(a)). Section 211 of the 1984 Act also grants the Secretary broad power, in carrying out motor carrier safety statutes and regulations, to ‘‘prescribe recordkeeping and reporting requirements’’ and to ‘‘perform other acts the Secretary considers appropriate’’ (49 U.S.C. 31133(a)(8) and (10)). The FMCSA Administrator has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313 and 49 U.S.C. chapter 311, subchapters I and III, relating to CMV programs and safety regulation. This rule will implement, in part, the Agency’s delegated authority under 49 U.S.C. 31136(a)(1) to ensure that CMVs are ‘‘operated safely,’’ and, under section 31136(a)(3), to ensure that ‘‘the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely.’’ The final rule does not directly address the operational responsibilities imposed on CMV drivers (section 31136(a)(2)) or possible physical effects caused by driving a CMV (section 31136(a)(4)). FMCSA prohibits employers from submitting false reports of drug or alcohol violations to the Clearinghouse, which could be used to exercise coercive influence over drivers (49 U.S.C. 31136(a)(5)). FMCSA also exercises the broad recordkeeping and implementation authority under 49 U.S.C. 31133(a)(8) and (10). The Omnibus Transportation Employee Testing Act of 1991 (OTETA) (Pub. L. 102–143, Title V, 105 Stat. 917, at 952, October 28, 1991, codified at 49 U.S.C. 31306), mandated the alcohol and controlled substances (drug) testing program for DOT. OTETA affirmed the existing regulations for drug testing and required the Secretary to promulgate regulations for alcohol testing for persons in safety-sensitive positions in four modes of transportation—motor carrier, airline, railroad, and mass transit. Those regulations, including subsequent amendments, are codified at 49 CFR part 40, ‘‘Procedures for Transportation Workplace Drug and Alcohol Testing Programs.’’ Part 40 establishes requirements for all DOT- VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 regulated parties, including employers of drivers with CDLs subject to FMCSA testing requirements, for conducting drug and alcohol tests. Part 40 also defines the roles and responsibilities of service agents, including MROs, SAPs, and consortia/third party administrators (C/TPAs), who perform critical functions under DOT-wide drug and alcohol testing program requirements. In 1994, FMCSA’s predecessor agency, the Federal Highway Administration (FHWA), published a final rule addressing the OTETA and amending regulations, including penalties, codified in 49 CFR part 382, ‘‘Controlled Substances and Alcohol Use and Testing.’’ In 2001, FMCSA revised its regulations in 49 CFR part 382 to make FMCSA’s drug and alcohol testing procedures consistent with and non-duplicative of the revised regulations at 49 CFR part 40. This rule incorporates many of the findings and recommendations contained in FMCSA’s March 2004 report to Congress, which was required under section 226 of the Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106–159, 113 Stat. 1748, 1771, December 9, 1999).1 IV. Background on FMCSA’s Drug and Alcohol Testing Program Agency regulations at 49 CFR part 382 apply to persons and employers of such persons who operate CMVs in commerce in the United States and who are subject to the CDL requirements in 49 CFR part 383 or the equivalent CDL requirements for Canadian and Mexican drivers (49 CFR 382.103(a)). Part 382 requires that employers conduct preemployment drug testing, post-accident testing, random drug and alcohol testing, and reasonable suspicion testing, as well as return-to-duty testing and follow-up testing for those drivers who test positive or otherwise violate DOT drug and alcohol program requirements. Motor carrier employers are prohibited from allowing an employee to perform safety-sensitive functions, which include operating a CMV, if the employee tests positive on a DOT drug or alcohol test, refuses to take a required test, or otherwise violates the DOT or FMCSA drug and alcohol testing regulations. The prohibition on performing safety-sensitive functions continues until the employee satisfies 1 ‘‘A Report to Congress On the Feasibility and Merits of Reporting Verified Positive Federal Controlled Substance Test Results to the States and Requiring FMCSA-Regulated Employers to Query the State Databases Before Hiring a Commercial Drivers License (CDL) Holder,’’ Federal Motor Carrier Safety Administration, March 2004, Pg. 2. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 all of the requirements of the return-toduty process prescribed in 49 CFR part 40, subpart O. Additionally, part 382 provides that an employer may not allow a covered employee to perform safety-sensitive functions when the employer has actual knowledge that a driver has engaged in on-duty or preduty alcohol use, used alcohol prior to post-accident testing, or used a controlled substance. An employer has ‘‘actual knowledge’’ of a driver’s drug or alcohol use while performing safetysensitive functions based upon the employer’s direct observation of employee drug or alcohol use, an admission by the employee of drug or alcohol use, information provided by a previous employer, or if the employee receives a traffic citation for driving a CMV while under the influence of drugs or alcohol. An employer may not use a driver under these circumstances until the driver has completed the return-toduty process prescribed in 49 CFR part 40, subpart O. Although not required to do so, the employer may, at its discretion, fire the employee without giving the opportunity to complete the return-to-duty process. FMCSA does not regulate an employer’s decision to terminate or the conditions under which an employer chooses to keep a driver on after a drug or alcohol violation. The Federal Motor Carrier Safety Regulations (FMCSRs) require that a motor carrier employer obtain information from a job applicant that includes the names and addresses of the applicant’s employers for the past 3 years, and whether or not the applicant was subject to the FMCSRs and to the drug and alcohol testing requirements under 49 CFR part 40 (49 CFR 391.21(b)). Interstate motor carrier employers are then required to investigate the applicant’s history under the DOT drug and alcohol testing program by contacting any named DOTregulated employers to determine whether the applicant has, within the past 3 years, violated the drug and alcohol prohibitions under part 382 or the testing requirements under part 40 (49 CFR 391.23(e)). A similar background check requirement exists in part 40. See 49 CFR 40.25 (DOTregulated employers must contact all of the applicant’s employers for the 2 years prior to the employee application date and obtain drug and alcohol test information, including information that these employers obtained from previous employers). Part 40 defines an ‘‘employee’’ as ‘‘any person who is designated in a DOT agency regulation as subject to drug testing and/or alcohol testing’’ including ‘‘applicants for employment subject to E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations pre-employment testing’’ (49 CFR 40.3). Pursuant to this definition, an individual is an employee of any DOTregulated employer for whom the individual takes a pre-employment drug test, regardless of whether the individual is subsequently hired by the employer. As a result, an individual must list that prospective employer, when applying for a new covered position (see 49 CFR 40.25). FMCSA published the Notice of Proposed Rulemaking (NPRM) for the Drug and Alcohol Clearinghouse on April 22, 2014 (79 FR 9703). Changes to the published proposal are discussed in detail below. V. Discussion of Comments Received on the Proposed Rule The Agency received 165 comments. FMCSA’s responses to those comments follow. sradovich on DSK3GMQ082PROD with RULES2 General Support/Opposition to the Clearinghouse Comment. Ninety-seven commenters expressed general support for the proposal to establish the Clearinghouse. These commenters included 26 trade associations, 23 service agents, 13 employers, 3 safety advocacy organizations, 2 trade unions, the NTSB, a U.S. Congressman, a transportation consultant, and 27 individuals. Common reasons cited for general support of the proposal include that it will improve safety, deter drivers from job-hopping to evade the drug and alcohol violations, and provide employers with easy access to the information they need to hire safe, qualified drivers. Ten commenters expressed opposition to establishing the Clearinghouse. The majority of the commenters registering opposition were drivers who were concerned with overlapping reporting responsibilities and the lack of sufficient time for reporting information. Compliance Date Comment. SAPAA, NYAPT, First Advantage, WPCI and Quest Diagnostics requested that FMCSA give stakeholders enough time to restructure processes and systems before compliance is required. SAPAA requested at least a 1year delay from the date of publication. First Advantage suggested that the compliance date coincide with the release of the HHS eCCF. National Ready Mixed Concrete Association and FE suggested a 2-year compliance period, while another commenter suggested a 3-year period. Response. FMCSA notes that we did not propose a compliance date in the NPRM. This final rule includes a 3-year VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 compliance period. FMCSA believes 3 years is necessary to provide the Agency time to design and implement the information technology (IT) systems needed to facilitate the reporting of results and violations of the drug and alcohol testing rules and the responses to queries from employers and prospective employers. Also, this period of time will ensure that stakeholders have sufficient time to prepare for this rule. Applicability—Canadian and Mexican Employees, Employers, and Service Agents Comment. Driver Check, Schneider, OOIDA and other commenters requested that the Agency clarify whether the proposed requirements apply to Canadian and Mexican commercial drivers, employers, C/TPAs, MROs, SAPs, and certified laboratories that are subject to the FMCSA testing regulations. Some of these commenters expressed concern that the proposal does not explain how the rule will be implemented and enforced against regulated entities in Canada and Mexico. One expressed concern that some of the proposed provisions would present privacy issues for Canadians because of a recent case involving an employer in the Province of Alberta. Driver Check asked whether the Clearinghouse data entry fields would be able to accommodate Canadian addresses and CDL numbers. The same commenter asked if the Clearinghouse would accommodate French, which is one of Canada’s official languages. Response. The Clearinghouse is designed to create an overlay onto FMCSA’s drug and alcohol testing program to enhance compliance. As a result, all Clearinghouse requirements in this rule apply to employees, employers, and service agents that are otherwise subject to DOT and FMCSA drug and alcohol testing requirements as codified in 49 CFR parts 40 and 382. Therefore, all Mexican or Canadian employees, employers, or service agents that are currently required to comply with DOT and FMCSA drug and alcohol testing requirements must comply with this rule. Canadian and Mexican motor carriers will follow the same procedures as U.S.based motor carriers to query and report to the Clearinghouse. All Canadian and Mexican motor carriers engaged in cross-border trucking are required to obtain a USDOT number and maintain active registration. They will use those credentials to register with the Clearinghouse just as any U.S.-based carrier would. Similarly, FMCSA will enforce Clearinghouse requirements PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 87689 using the same tools it currently uses to enforce DOT and FMCSA drug and alcohol testing requirements against Canadian and Mexican motor carriers: Investigations, roadside inspections, and other enforcement mechanisms. Currently, FMCSA is able to access information about Canadian CDL holders through the CDLIS pointer system. As a result, FMCSA does not anticipate having trouble accessing or accommodating Canadian information as a part of the Clearinghouse design. To the extent that issues arise that may affect the ability of Canadian carriers to comply with the requirements of this rule due to differences between Canadian and U.S. privacy laws and regulations, the Agency will work with Canadian authorities to resolve those issues. FMCSA intends to provide access to the Clearinghouse only in English, although parties will be able to enter French or Spanish words and names in the various data entry fields. Users with limited English proficiency may seek assistance with the Clearinghouse by contacting FMCSA’s Office of Civil Rights at (202) 366–8810 to request a language accommodation. Comment. Several commenters expressed concern that FMCSA’s requirement that motor carriers implement a random drug testing program violates Canadian law. Specifically, they cite to Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Paper & Pulp, Ltd., [2013] 2 S.C.R. 458, and a grievance arbitration between Uniform Local 707A and Suncor Energy, Inc. that set limitations on an employer’s ability to require random alcohol testing for employees working under a collective bargaining agreement. Response. The decisions in the referenced proceedings do not address the issue of Canadian motor carriers’ compliance with FMCSA’s random drug and alcohol testing requirements. Although this rule would require employers to report the results of positive or refused random tests to the Clearinghouse, it does not in and of itself establish the requirement that foreign motor carriers implement random testing programs. To the contrary, 20 years ago, FMCSA’s predecessor made clear that the Agency’s drug and alcohol requirements apply equally to foreign drivers. See ‘‘Controlled Substances and Alcohol Use and Testing; Foreign-based Motor Carriers and Drivers,’’ 60 FR 49322, Sept. 22, 1995. Moreover, in accordance with bilateral agreements between the United States and Canada, Canadian drivers are—and have been—subject to E:\FR\FM\05DER2.SGM 05DER2 87690 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 all U.S. regulations when operating CMVs in the United States. Canadian motor carriers concerned about the effect of these recent cases on their cross-border transportation operations should consult with local legal counsel. Applicability—Motor Carriers Operating Non-CDL CMVs Comment. A number of commenters including J. B. Hunt Transport, Inc. and several trade associations requested that FMCSA also require motor carriers that operate non-CDL CMVs to query the Clearinghouse. Several commented that if this rule is implemented as proposed, CDL drivers with a drug or alcohol violation would seek employment with non-CDL motor carriers because the proposed rule does not require them to query the Clearinghouse. J.B. Hunt posited that ‘‘many drivers who fail a test and can’t ‘job-hop’ due to the Clearinghouse will downgrade to an operator’s license and migrate to carriers not required to conduct testing or check for past test failures.’’ Other commenters were also concerned that the rule, as proposed, would push unsafe drivers into the non-CDL segment of the motor carrier industry. Another commenter observed that 49 CFR 382.501(c) prohibits a driver with a drug or alcohol violation from operating CMVs that do not require a CDL, but under the proposed rule, non-CDL CMV employers would not know whether a driver is subject to this prohibition. Response. The MAP–21 mandate underlying this rule applies only to individuals who hold a valid CDL and who are subject to drug and alcohol testing under Title 49 of the Code of Federal Regulations (including part 382) and to those who employ such individuals (49 U.S.C. 31306a(m)(4)(A)). The drug and alcohol testing and reporting requirements of part 382 apply to CDL holders who operate CMVs with GVWRs of 26,001 pounds or more, a vehicle that is designed to transport 16 or more passengers, including the driver, or a vehicle of any size used in the transport of hazardous materials, and to employers of such persons (§§ 382.103(a) and 383.5). The NPRM did not propose to change any underlying requirement of part 382. FMCSA acknowledges, as one commenter noted, that § 382.501prohibits any driver from performing safety-sensitive functions, including operating CMVs that do not require a CDL, if the driver has violated part 382. We note, however, that the provision applies only to CDL holders. FHWA, in adopting § 382.501(c) in 1994, explained its intent: ‘‘. . . a driver removed from performing safety- VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 sensitive functions because of a rule violation occurring in a 26,001 pound or greater vehicle in inter- or intrastate commerce, also is prohibited from driving a 10,001 pound or greater vehicle in interstate commerce, until complying [with return-to-duty requirements].’’ (59 FR 7484, 7501, February 15, 1994). Further, § 382.501(c) does not subject CDL holders operating CMVs with GVWRs between 10,001 and 26,000 pounds, or their employers, to the requirements of part 382. FMCSA therefore concludes that, at this time, it would not be appropriate to require that motor carriers who employ individuals (either non-CDL holders or CDL holders) to operate CMVs with GVWRs between 10,001 and 26,000 pounds, to query the Clearinghouse. Such a requirement would expand the reach of this rulemaking to employers and drivers who are not required to participate in FMCSA’s drug and alcohol testing program. Because those parties are not subject to part 382 requirements, they did not have sufficient notice that Clearinghouse requirements could become applicable to them and, accordingly, have not had a fair opportunity to participate in this proceeding. Should FMCSA, on the basis of demonstrable need, subsequently exercise its discretion under the 1984 Act (49 U.S.C. 31136(1) and (3)) to require that these employers query the Clearinghouse, we will provide notice and an opportunity for comment. The Agency notes, however, that. ‘‘non-CDL’’ employers operating in interstate commerce remain subject to the investigation and inquiry requirements of § 391.23. Employers obtaining records related to an applicant’s driving and safety performance history under § 391.23(a) would, for example, be able to discern whether the applicant had voluntarily downgraded a CDL to a motor vehicle operator’s license and thus have a basis on which to question the applicant concerning the reason for the downgrade. ‘‘Non-CDL’’ employers must also request drug and alcohol testing information from ‘‘all previous DOT regulated employers that employed the driver within the previous three years . . . in a safety-sensitive function that required alcohol and controlled substance testing specified by 49 CFR part 40’’ (§ 391.23(e)). Section 391.23(f) requires that prospective employers provide previous employers with the driver’s written consent, as required by § 40.321(b), to allow for the release of this privacy-protected information. Use of FMCSA’s Pre-employment Screening Program (PSP) will also assist motor PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 carrier employers in finding disqualifying drug and alcohol offenses and identifying prior DOT-regulated employers. The availability of this information will enable prospective employers to determine whether applicants who are CDL holders are subject to § 382.501. Additionally, subject to applicable State requirements, ‘‘non-CDL’’ employers may conduct preemployment and/or random non-DOT drug and alcohol testing (though the results of such tests would not be reportable to the Clearinghouse, as explained below). Applicability—Non-DOT Tests Comment. Cahill-Swift, Driver IQ/ CARCO, J.B. Hunt, Schneider, C.R. England and the ATA requested that FMCSA permit employers to report nonDOT tests to the Clearinghouse. OOIDA opposed including non-DOT tests in the Clearinghouse. Response. Congress did not grant FMCSA the authority to require employers to report non-DOT tests to the Clearinghouse. Congress directed the Agency to establish the Clearinghouse as a repository of DOT drug and alcohol testing program violations. See 49 U.S.C. 31306a(a). This is consistent with the rules applicable to FMCSA’s drug and alcohol testing program: All FMCSA-required tests must be conducted in accordance with DOT rules. See 49 U.S.C. 31306(c); 49 CFR 382.105. Although employers may conduct testing beyond that required by FMCSA and DOT rules, positive results for these non-DOT tests must be kept completely separate from DOT test results and do not constitute violations of FMCSA or DOT rules. See 49 CFR 382.105; 49 CFR 40.13. Accordingly, FMCSA will not expand the scope of the Clearinghouse to include non-DOT tests. Applicability—Municipalities Comment. A commenter asked whether this final rule would apply to municipalities. Response. Generally speaking, municipalities are subject to FMCSA’s drug and alcohol testing program to the extent they employ drivers who are required to hold a CDL to operate a CMV. See 49 U.S.C. 31301, 31306; 49 CFR 382.103. Because this rule applies to all employers and employees subject to FMCSA’s drug and alcohol testing rules, it would also apply to any municipality subject to those rules. Applicability—Fair Credit Reporting Act (FCRA) Comment. Foley and C.R. England asked whether the information in the E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations Clearinghouse would be subject to the FCRA when it is used for preemployment background checks. C.R. England asked that FMCSA issue guidance stating whether a prospective employer would be required to submit an adverse employment action letter to a prospective employee if he or she were not hired as a result of information disseminated from the Clearinghouse. OOIDA stated that FMCSA must comply with the FCRA. Response. FMCSA will comply with applicable FCRA requirements; however, not all provisions in the FCRA apply to the Agency’s administration of the Clearinghouse. Information that a prospective employer receives from the Clearinghouse during a pre-employment check is not subject to requirements on the use of ‘‘consumer reports’’ under the FCRA. While still subject to some FCRA requirements, as noted below, this type of ‘‘pre-employment’’ information on a prospective employee, solely considered for employment purposes and required by Federal regulation and law, qualifies as an ‘‘excluded communication’’ under 15 U.S.C. 1681a(d)(2)(D), 1681a(o), and 1681a(y) of the FCRA. FMCSA, as the government agency communicating this information, is subject to disclosure requirements under section 1681a(o)(5)(C). FMCSA meets these disclosure requirements through the provisions of this final rule on driver notification and access to the Clearinghouse in 49 CFR 382.707 and 382.709. Under § 382.707, FMCSA must notify a driver when information concerning that driver has been added to, revised, or removed from the Clearinghouse. When information concerning that driver has been released from the Clearinghouse to an employer, the Agency must specify the reason for the release. Such notice will inform the driver how to access his or her information in the Clearinghouse and will comply with the disclosure requirements in section 1681a(o)(5)(C). An employer that takes adverse action based in whole or in part on a communication from the Clearinghouse, whether that information indicates a current disqualification or a resolved violation, would be subject to the FCRA’s ‘‘subsequent disclosure’’ requirement. This requirement provides that the employer shall disclose ‘‘a summary containing the nature and substance of the communication upon which the adverse action is based.’’ 15 U.S.C. 1681a(y)(2). Employers should consult with their own experts for more information on how to comply with the FCRA. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Federalism Comment. Several commenters said that the Clearinghouse rule would have implications for Federalism under Executive Order (E.O.) 13132. A rule has implications for Federalism if it has a substantial direct effect on State or local governments. NPTC, Cahill-Swift and First Advantage observed that some States have their own reporting requirements for drug and alcohol violations and requested guidance on how those reporting requirements would be affected. First Advantage asked if the Clearinghouse could send notice directly to the SDLA, to eliminate double reporting. NYAPT said that pending legislation in New York would require an MRO or C/TPA to report positive results of a school bus driver’s random drug or alcohol test to the New York Department of Motor Vehicles. Response. Nothing in this final rule will change or otherwise affect State or local drug and alcohol violation reporting requirements so long as they are compatible with this final rule. See 49 U.S.C. 31306a(l). Incompatible State or local requirements are subject to preemption. Each State will have to evaluate its own requirements to determine whether they are compatible with this final rule. With respect to the Clearinghouse reporting to States, at this time FMCSA is considering the most efficient way to share information with the SDLAs. There is a more complete discussion below of Agency efforts to coordinate information sharing with SDLAs. Privacy Considerations Comment. A commenter stated that the Clearinghouse would violate the requirements of HIPAA. Response. The Drug and Alcohol Clearinghouse established in this final rule is not subject to HIPPA requirements. HIPAA, which governs the dissemination of protected health information, applies to all records generated or received by ‘‘covered entities.’’ 45 CFR 160.103; 45 CFR 164.104(a). HIPAA defines a covered entity as: ‘‘(1) A health plan; (2) A health care clearinghouse; or (3) A health care provider that transmits any health information in electronic form.’’ Id. The Drug and Alcohol Clearinghouse does not fall into any of these categories. Even if drug and alcohol testing is viewed as protected under HIPAA, where DOT requires the use or disclosure of such information, its release is mandated by Federal law, and would not violate the requirements of HIPAA. Further information on this topic is available at PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 87691 www.transportation.gov/odapc/hipaastatement. Comment. The Association of American Railroads and the American Short Line and Regional Railroad Association asked whether releasing information to the Clearinghouse would violate the Federal Railroad Administration’s (FRA) drug and alcohol regulations. Response. FMCSA consulted with FRA’s drug and alcohol testing program, which concluded that the Clearinghouse would not create a conflict with FRA’s regulations. Any CDL driver who is subject to and violates part 382, even if that driver is working in a different DOT agency’s industry, would be reported to the Clearinghouse. Motor Carrier Registration Comment. OOIDA suggested that FMCSA query the Clearinghouse as a part of the motor carrier registration process to determine whether any company principals have unresolved drug or alcohol violations. Response. Company principals who do not currently serve in a safetysensitive function (e.g., they do not operate CMVs), or have never served in a safety-sensitive function are not a focus of this rulemaking. OOIDA’s comment relates to registration requirements and is beyond the scope of this rulemaking. FMCSA will, however, take this comment under advisement as it moves forward with implementation of the Unified Registration System, see ‘‘Unified Registration System,’’ 78 FR 52608, August 23, 2013, and, as appropriate, when further developing the registration processes in an NPRM concerning ‘‘MAP–21 Enhancements and Other Updates to the Unified Registration System’’. That said, nothing in this rule would prohibit FMCSA from querying the Clearinghouse during the registration process, as a part of its audit and enforcement functions. Definition of Positive Alcohol Test (§ 382.107) Comment. The American College of Occupational and Environmental Medicine, Cahill-Swift, and C.R. England suggested that FMCSA remove the proposed definition of ‘‘positive alcohol test.’’ Some of these commenters stated that the definition is confusing because it has not been used previously and does not appear in 49 CFR part 40. Others said it would create confusion between the different prohibitions that apply when a driver has a blood alcohol level of between 0.02–0.039 or 0.04 and higher. Conversely, SAPAA and NYAPT supported the proposed definition of ‘‘positive alcohol test.’’ E:\FR\FM\05DER2.SGM 05DER2 87692 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations Response. The FMCSRs prohibit a driver with a blood alcohol level of 0.02–0.039 from driving a CMV. But being on duty with this blood alcohol level does not constitute a violation and does not require a driver to complete the return-to-duty process before resuming safety-sensitive functions. 49 CFR 382.505(a). A driver who is on duty with a blood alcohol level of 0.04 or higher, however, is in violation of FMCSA’s rules and must complete the return-to-duty process. 49 CFR 382.201. FMCSA proposed to define a positive alcohol test to make it easier to differentiate between the consequences of results showing a blood alcohol level of 0.02–0.039 and 0.04 or higher. We understand, however, that this definition could be confusing given that it would be a violation of FMCSA’s rules for a driver to operate a CMV with a blood alcohol level of either 0.02 or 0.04, but that different consequences would apply. As a result, we have removed the definition of positive alcohol test from the rule along with all references to it in the regulatory text. The final rule uses the term ‘‘an alcohol confirmation test with a concentration of 0.04 or higher’’ in all places where ‘‘positive alcohol test result’’ appeared in the proposal. sradovich on DSK3GMQ082PROD with RULES2 Definition of Owner-Operator Comment. Foley suggested that FMCSA define the term ‘‘owneroperator’’ because it was not clear whether the term refers to one-person companies or includes companies owned by a driver. Response. It is not necessary to define ‘‘owner-operator’’ because that term does not appear anywhere in the regulatory text of this final rule. That said, § 382.103(b) explains that part 382, which includes this final rule, is applicable to all driver-owned firms without differentiating between oneperson companies and companies owned by drivers. The only differences are that § 382.103(b) also requires that one-person company owner-operators join a testing pool with at least one other person and new § 382.705(b)(6) requires that an employer who employs himself/herself as a driver must designate a C/TPA to comply with the employer reporting requirements in this rule. Definition of Service Agent Comment. A commenter requested that FMCSA define the term ‘‘service agent.’’ Response. Prior to the enactment of MAP–21, part 382 incorporated the definition of ‘‘service agent’’ set forth in 49 CFR 40.3, which applied to service VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 agents providing services only in connection with the DOT-wide drug and alcohol testing requirements in part 40. MAP–21 included an expanded definition of ‘‘service agent’’ which, while functionally equivalent to the definition of ‘‘service agent’’ in § 40.3, applied the term to the Clearinghouse requirements. Accordingly, the NPRM proposed a definition of ‘‘service agent’’ consistent with that change. However, following publication of the NPRM, DOT amended its definition of ‘‘service agent’’ in § 40.3 to conform to MAP–21 so that it is clear the definition is not limited to those persons providing services only in connection with part 40 requirements (81 FR 52364, August 8, 2016). The revised definition in § 40.3 now encompasses service agents who provide services in connection with drug and alcohol testing requirements, including the Clearinghouse requirements. Consequently, no new definition of ‘‘service agent’’ is necessary in the final rule. Driver Identification (§ 382.123) Social Security Numbers Comment. FMCSA proposed that drivers be identified by their CDL number and State of licensure rather than Social Security Number or other Employee ID Number on the alcohol testing form (ATF) and Federal Drug Testing Custody and Control Form (CCF). A number of commenters opposed this change. Driver Check, Driver IQ/CARCO, Schneider and an individual commenter objected to using CDL numbers in lieu of Social Security Numbers because they believed that when a driver moves to a new State his or her license number would change, complicating the Clearinghouse’s ability to track the driver. NYAPT, MROCC, CVTA and an individual commenter supported using CDL numbers. Driver IQ/CARCO and CCTA suggested that FMCSA should use CDLIS to track a driver’s previous CDLs in other States. First Advantage and another commenter interpreted FMCSA’s proposal to require a change to the ATF and CCF. These commenters stated that FMCSA did not have the authority to propose a change to these forms, which come under the authority of HHS. The IBT stated that use of the CDL number and State of issuance in lieu of a Social Security Number would reduce the risk of identity theft in the event the Clearinghouse suffered a security breach. SAPAA, Foley and Quest Diagnostics asked what would happen if a collection site mistakenly used a Social Security Number or EIN on the ATF or CCF. First Advantage also asked PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 how the system would track foreign CDL numbers. Response. After careful consideration of the comments and evaluation of FMCSA’s information technology systems, the Agency concluded that the most accurate and secure method to identify a driver in the Clearinghouse is by using his or her CDL number and State of issuance. This is consistent with Federal and DOT policies which strongly encourage agencies to avoid using Social Security Numbers as an identifier whenever possible. Moreover, by interfacing with the CDLIS driver record system, the Clearinghouse will be able to identify drivers quickly and easily using the driver’s CDL number and State of issuance, including foreign drivers. Contrary to the concerns some commenters raised, the Clearinghouse will be able to identify both domestic and foreign drivers and track their drug and alcohol violation records regardless of the number of times the driver moves to a new State and obtains a new CDL. Using a driver’s CDL number and State of issuance to track drug and alcohol violations does not require a change to the CCF or ATF. These forms specifically permit the use of either the Social Security number or an employee identification number. Under this final rule, the person completing the form is required to use the driver’s CDL number and State of issuance as the employee identification number. Once laboratories are approved to use HHS’s eCCF, the likelihood of a collection site mistakenly using an identification number other than the CDL number and State of issuance will drop significantly. But in those cases in which the CDL number and State of issuance is not entered, the parties will have an opportunity to input the correct number later in the process. Driving Schools Comment. C.R. England and CVTA wanted to know how this rule would be applied to driving school students and prospective employees taking preemployment drug tests prior to obtaining a CDL. CVTA asked FMCSA to clarify that the rule would not require the reporting of non-CDL holder testing results. Response. MAP–21 requires that certain records related to drug and alcohol testing of ‘‘commercial motor vehicle operators’’ be reported to the Clearinghouse. MAP–21 defines ‘‘commercial motor vehicle operator’’ as ‘‘an individual who (A) possesses a valid commercial driver’s license issued in accordance with section 31308; and (B) is subject to controlled substances and alcohol testing under [49 CFR part E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations 382]’’ (49 U.S.C. 31306a(m)(4)). The Agency believes that, in accordance with that definition, the drug and alcohol records for CLP holders are required to be reported to the Clearinghouse because the CLP is a valid commercial driver’s license and CLP holders are subject to drug and alcohol testing. Non-CDL holders—that is, persons who hold neither a CLP nor a CDL—are not subject to the Clearinghouse reporting requirements. While employers may conduct non-DOT drug and alcohol tests on employees who do not hold CDLs or CLPs, those tests are not considered DOT tests under parts 40 and 382 and cannot be reported to the Clearinghouse. USDOT Numbers Comment. FMCSA proposed to require employers to provide their USDOT number or their Internal Revenue Service-issued EIN on the CCF. First Advantage and Quest Diagnostics said that laboratories currently use account numbers to identify clients and that they would have to create new data fields to record USDOT numbers or EINs. MROCC, AMRO and PTC stated that, in many States, intrastate employers do not need to have USDOT numbers and that obtaining EINs would be burdensome. Two commenters also observed that the CCF does not include information to remind the collection site to record the USDOT number. Response. As discussed below, FMCSA decided to eliminate the requirement that laboratories submit annual summaries of employer testing data. As a result, there is no longer a need to include USDOT numbers or EINs on the CCF. Accordingly, FMCSA removed this requirement from § 382.123(b)(1). sradovich on DSK3GMQ082PROD with RULES2 Definition of ‘‘Reasonable Time’’ and ‘‘Refuse to Submit’’ Comment. OOIDA requested that FMCSA clarify that a driver has not refused to submit to a drug or alcohol test under § 40.191 or § 40.261 when certain circumstances cause a driver to be delayed in reaching a testing facility. OOIDA requested that FMCSA make this clarification through guidance or by creating definitions of the terms ‘‘reasonable time’’ and ‘‘refuse to submit.’’ Response. FMCSA cannot make this change as a part of this final rule. The comments are related to DOT-wide drug and alcohol testing program requirements that are beyond both the scope of the Agency’s authority and the scope of the final rule. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Electronic Forms Comment. One commenter wanted to know whether entities involved in drug testing could continue to use paper forms. The commenter stated that in some circumstances computer facilities are unavailable to complete electronic forms. SAPAA, Driver IQ/CARCO, National Association of Professional Background Screeners and ATA supported the use of electronic forms and stated that FMCSA should allow parties to use electronic signatures for required authorizations and consents. Response. It is beyond the scope of this rulemaking to change how entities involved in drug testing exchange information that is not submitted to FMCSA. The SAMHSA, which administers the CCF, has issued guidance on the use of paper and electronic CCFs. You can access that guidance at www.samhsa.gov/sites/ default/files/guidance-2014-ccf.pdf. Changes to the electronic CCF are beyond the scope of FMCSA’s authority—and this rulemaking. Questions on that issue should be directed to SAMHSA. You may access more information on SAMHSA at www.samhsa.gov. Under certain circumstances, electronic documents and signatures can be used to satisfy part 382 requirements. We note, as discussed below, that this rule permits drivers to provide electronic consent for limited queries. Consent related to full queries must be provided electronically through the Clearinghouse. The Agency’s previously published guidance on electronic signatures and documents can be found at https://www.gpo.gov/ fdsys/pkg/FR-2011-01-04/pdf/201033238.pdf (‘‘Regulatory Guidance Concerning Electronic Signatures and Documents,’’ 76 FR 411 (Jan. 4, 2011)). It is important to be aware, however, that FMCSA’s guidance applies only to those requirements that appear in 49 CFR parts 300–399. Except for use in the eCCF, the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) has not approved the use of electronic signatures or documents to satisfy the requirements of the DOTwide drug and alcohol regulations, which are found at 49 CFR part 40.2 Any questions about part 40 regulations should be directed to ODAPC. You can find ODAPC contact information at https://www.transportation.gov/odapc. Further, we note that electronic documents and signatures fall within the scope of a separate NPRM that 2 See ‘‘Use of Electronic Chain of Custody and Control Form in DOT-Regulated Drug Testing Programs,’’ 80 FR 19551 (April 13, 2015). PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 87693 FMCSA published on April 28, 2014 (79 FR 23306), in which the Agency proposes to amend its regulations to allow the use of electronic records and signatures to satisfy its regulatory requirements. In addition, under section 5203 of the Fixing America’s Surface Transportation (FAST) Act (Pub. L. 114– 94, 129 Stat. 1312, Dec. 4, 2015), FMCSA is required to take certain steps in addressing the Agency’s Regulatory Guidance Program. Therefore, changes to regulatory guidance regarding electronic documents and signatures may also occur under this initiative. Employer Responsibilities (§ 382.217) Comment. FMCSA proposed a new section that would prohibit employers from allowing a driver to operate a CMV if the driver does not comply with the return-to-duty process after a refusal, a positive drug test, an alcohol confirmation test with a concentration of 0.04 or higher, or if the employer has actual knowledge that the driver has used alcohol or controlled substances as defined in § 382.107. NYAPT expressed support for this provision. FE suggested that a driver should be able to resume operating a CMV after being cleared by the SAP and passing a return-to-duty drug test regardless of whether the appropriate documentation had been updated in the Clearinghouse. SAPAA and FE wanted to know whether § 382.217(d) requires employers to report actual knowledge of drug or alcohol use to the Clearinghouse when a driver voluntarily self-reports such use under § 382.121. SAPAA suggested that § 382.217 should include each violation under which a driver is not allowed to engage in a safetysensitive function prior to complying with the return-to-duty process. Response. The purpose of § 382.217 is to prohibit employers from allowing a driver to operate a CMV if that driver is subject to the prohibitions in 49 CFR part 382, subpart B, and has not completed the return-to-duty process as required by 49 CFR part 382. This section does not impose reporting obligations; those obligations are in part 382, subpart G. Nor does this section limit the types of actual knowledge violations that give rise to employer prohibitions. After consideration of the above comments and further review of the proposed regulatory text, we conclude that, although this purpose was expressed in the preamble, the regulatory text does not clearly convey the intended result. Accordingly, this final rule revises the regulatory text to clarify that no employer may allow a driver to operate a CMV if he or she is E:\FR\FM\05DER2.SGM 05DER2 87694 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations subject to any of the prohibitions in 49 CFR part 382, subpart B. Among other things, these prohibitions specifically include drivers for whom the employer has actual knowledge (as defined in § 382.107) that the driver used controlled substances, engaged in onduty or pre-duty alcohol use, or used alcohol prior to taking a post-accident test. See §§ 382.205, 382.207, 382.209, and 382.213. sradovich on DSK3GMQ082PROD with RULES2 Retention of Records (Section 382.401) Comment. This section requires that employers retain documents related to the administration of employers’ drug and alcohol testing programs for a minimum of 5 years. FMCSA proposed changes to clarify that this requirement includes records establishing that an employer has actual knowledge of a driver’s traffic citation for driving a CMV while under the influence of alcohol or drugs. NYAPT stated that it was unnecessary to retain records of traffic citations. Towing and Recovery Association of America and Conference of Northeastern Towing Association stated that an employer’s C/TPA should be able to maintain these records. SAPAA stated that employers keep records of citations in their safety department, not with their drug and alcohol program records. Similarly, FE said that records of citations are not maintained in drug and alcohol program records and it should not be the responsibility of employers to keep records of those citations. Response. We believe that the commenters may have misunderstood the effect of the proposed change. Existing FMCSA regulations already require that employers maintain all records related to their drug and alcohol testing programs for at least 5 years. The purpose of the proposed change was to clarify that an employer must retain a DUI traffic citation only when it uses that citation as the basis for establishing that it had actual knowledge of a driver’s use of drugs or alcohol in violation of FMCSA’s drug and alcohol testing program. The proposed change was not intended to require employers to maintain copies of all traffic citations. In addition, it is left to the employer’s discretion whether to use a C/TPA to administer and maintain records related to the employer’s drug and alcohol program. Nothing in this proposed change would have affected that. Regardless, it appears that the proposed change created more confusion than clarity. As a result, the final rule clarifies that employers must maintain drug and alcohol program records, including records of all part VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 382 drug and alcohol violations, for a minimum of 5 years. Laboratories’ Duty To Report Controlled Substances Test Results (§ 382.404) Comment. FMCSA proposed to require each laboratory to report a summary of test results for each motor carrier using the laboratory to conduct controlled substances testing under FMCSA’s requirements. A C/TPA commented that many owner-operators do not have independent accounts at laboratories; instead, their C/TPAs are the contact point with the laboratory. SAPAA and Quest Diagnostics said that the semi-annual statistical summary information laboratories provide to ODAPC is not required to be electronic and that creating an electronic format would be burdensome. First Advantage said that laboratories do not currently collect USDOT numbers and would have to create a new field in their IT systems to collect this information. Cahill-Swift commented that laboratories often indicate that a test is an FMCSA test when an employer has testing responsibilities for more than one mode and that it would be difficult for laboratories to separate them out. Several commenters said that the reporting requirement was duplicative and that FMCSA should use the information that is reported to ODAPC and Drug and Alcohol Management Information System (DAMIS). Along the same lines, a commenter suggested that if the laboratories are reporting this information, carriers should not have to submit summaries. On the other hand, commenters such as Schneider, IBT and an individual supported the proposed requirement. Response. After considering the comments on this proposal, FMCSA decided to eliminate proposed § 382.404. The overwhelming majority of commenters indicated that the proposed laboratory reporting requirement would require changes to existing laboratory IT systems’ information collection procedures and that the summaries would result in redundant reporting. In light of the burden on the industry and the fact that other less burdensome means of obtaining this information exist, FMCSA will not require laboratories to submit annual summary reports. Access to Facilities and Records (§ 382.405) Comment. FMCSA previously required employers to make records of their DOT drug and alcohol testing programs available to certain officials with regulatory authority over the employers. FMCSA proposed to extend PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 that requirement to service agents as well. FMCSA also proposed to provide the NTSB access to a driver’s record in the Clearinghouse when that driver is involved in a crash under investigation. One commenter misinterpreted this section to mean that FMCSA would disclose Clearinghouse information to officials with regulatory authority over employers and requested that FMCSA narrow the purposes for which these officials could request information. SAPAA said that C/TPAs were better able to comply with record requests than employers, as long as the employers provide C/TPAs with all of the relevant information. The NTSB requested that it be granted access to all information in the Clearinghouse that ‘‘may be pertinent to its investigative mission.’’ Response. Under 49 CFR 40.331(c), service agents are obligated to make drug and alcohol testing program records available to certain DOT officials as well as other officials with regulatory authority over employers. This final rule extends a requirement in § 382.405 that was previously limited to employers and now will include service agents as well. This change applies to records under the service agents’ control and does not apply to information in the Clearinghouse. This change makes § 382.405 consistent with part 40. Congress authorized FMCSA to grant the NTSB access to an individual’s Clearinghouse record ‘‘if the individual is involved in an accident that is under investigation by the National Transportation Safety Board.’’ 49 U.S.C. 31306a(i). Based on this statutory language, FMCSA believes that Congress intended to limit the NTSB’s access to individual records to instances when that particular individual is involved in an accident under NTSB investigation. Accordingly, § 382.405 remains as proposed. Medical Review Officer or C/TPA Record Retention for Controlled Substances (§ 382.409) Comment. FMCSA proposed to amend § 382.409(c) to add the Clearinghouse to the list of entities to which an MRO or C/TPA may release a driver’s drug test results. SAPAA and NYAPT stated their support for this change. SAPAA also suggested that the MRO be required to tell the driver that the MRO must report violations to the Clearinghouse and that the MRO be required to notify the driver’s employer when a verified result is entered into the Clearinghouse. Driver IQ/CARCO and DOT Right Hunters suggested adding SAPs, the NTSB, and consumer reporting agencies to the list of entities E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 to which MROs are permitted to release drug tests. One commenter stated that § 382.409(c) is confusing and could be in conflict with §§ 40.163(g) and 40.293(g), which permit the release of test information to SAPs. Response. In this final rule, in accordance with § 382.601, employers must notify drivers that drug and alcohol testing program violations will be reported to the Clearinghouse. As a result, it is not necessary for MROs also to provide this notification. In addition, MROs have been and will continue to be required to notify employers of violations, in accordance with § 382.407. Since the employer will be made aware of the violation directly by the MRO, there is no reason for the MRO to provide additional notification when the result is entered in the Clearinghouse. The purpose of the changes to § 382.409(c) in this final rule is to include the Clearinghouse in the category of entities to which MROs and C/TPAs may report test results. FMCSA did not intend, and did not propose, to expand the list of entities that are entitled to obtain drug test results beyond the Clearinghouse. Moreover, § 382.409(c), as proposed, is consistent with the parallel provisions authorizing the release of drug and alcohol information under the DOT-wide drug and alcohol testing program. See 49 CFR 40.331. FMCSA is not aware that the substantive language of § 382.409 has caused any confusion over an MRO’s authorization to provide drug and alcohol test information to SAPs. Further, it is unnecessary to add any language to allow for release of information to SAPs. The DOT-wide program expressly authorizes MROs to release drug-related violation information about a driver to the driver’s SAP without additional consent. 49 CFR 40.163(g); 40.327(b); 40.293(g). Finally, no statutory or regulatory authority permits the release of information to a consumer reporting agency without the driver’s consent. To the contrary, such a release would be inconsistent with the fundamental privacy protections that parts 40 and 382 afford. Notification to Employers of a Controlled Substances or Alcohol Testing Program Violation (§ 382.415) Comment. FMCSA proposed to require drivers to notify all employers if they violate FMCSA’s drug and alcohol testing regulations in 49 CFR part 40 or 382. Several commenters expressed general support for this provision. The Florida Trucking Association, SAPAA, VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 MROCC, AMRO and PTC asked how FMCSA would enforce this requirement. Commenters also asked about the time frame in which the driver would have to report this information to employers. A commenter requested additional information about how notification would be delivered and what would happen if an employer claimed not to have received notification. IBT said that a driver with only one employer should not have to report the violation to that employer. Response. The purpose of this provision is to require a driver to notify his or her employers if he or she has a drug or alcohol violation while working for a different employer or in connection with pre-employment testing with a new prospective employer. The text of the regulation specifically states that this notification must be made in writing before the end of the business day following the day the employee received notice of the violation or prior to performing any safety-sensitive function, whichever comes first. FMCSA recognizes that there is some confusion about whether drivers with only one employer must provide this notification and whether drivers with multiple employers must notify the employer that administered the test. To clarify this requirement, FMCSA has amended this provision to state expressly that drivers are not required to notify the employer who administered the test. Drivers who violate this provision are subject to the civil penalties authorized by 49 U.S.C. 521(b)(2)(C), and criminal penalties authorized by section 521(b)(6), with civil penalties adjusted for inflation as provided in § 382.507. FMCSA may enforce this provision against drivers in connection with any type of enforcement activity that it is currently authorized to conduct, including roadside inspections and compliance reviews. Comment. SAPAA stated that it is possible for a C/TPA to represent several employers all of which employ the same driver. The commenter asked whether, when the driver has a violation with one employer, a C/TPA could notify the other employers it also represents. Response. A service agent is prohibited from releasing information about a driver’s violations to other employers that the C/TPA represents without the driver’s specific consent. See 49 CFR 40.351(c). For purposes of FMCSA’s drug and alcohol program, specific consent means a statement signed by the employee that he or she agrees to the release of a particular piece of information to an explicitly identified PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 87695 person or organization at a particular time. Id. The employee may not grant a ‘‘blanket release,’’ in which he or she agrees to a release of a category of information (e.g., all test results) or to release information to a category of parties (e.g., other employers who are members of a C/TPA or companies to which the employee may apply for employment). Comment. One commenter observed that the NPRM stated that each employer must separately follow the return-to-duty requirements and asked whether a driver with multiple employers is required to have multiple SAP evaluations and follow-up testing plans. Response. FMCSA apologizes for any confusion it may have caused in the NPRM. A driver with a drug or alcohol violation must complete the return-toduty process. Each employer must be sure that the driver has completed those requirements before it allows the driver to resume safety-sensitive functions. But the driver need not complete multiple evaluations and testing plans simply because he or she has multiple employers. Employer Obligation To Promulgate a Policy on the Misuse of Alcohol and Use of Controlled Substance (§ 382.601) Comment. Existing regulations require employers to provide employees with educational materials about the FMCSA’s drug and alcohol testing program requirements and the employer’s policies for implementing those requirements. See § 382.601. FMCSA proposed to require that employers include notice in the educational materials that violations of FMCSA’s drug and alcohol testing program would be reported to the Clearinghouse. A commenter suggested requiring employers to reference § 382.405, which governs access to driver records, in the employer’s educational materials. The American Bus Association (ABA) objected to the burden it places on small and large passenger carriers to provide additional educational materials. The IBT suggested that employers be required to provide information to employees about virtually all aspects of how employers and employees can use the Clearinghouse. The commenter also suggested that employers make clear that a driver’s self-report of the need for assistance with substance abuse in accordance with § 382.121 would not be reported to the Clearinghouse. Response. The purpose of this change is to require employers, as a part of their educational materials, to notify drivers that drug and alcohol test information E:\FR\FM\05DER2.SGM 05DER2 87696 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations will be reported to the Clearinghouse. As a part of implementing this rule, FMCSA will conduct driver outreach to help drivers understand their rights and responsibilities. Because FMCSA is cognizant of the burdens changes to mandated materials place on employers, the changes to § 382.601 in this final rule are limited to updating the requirements in that section to include the Clearinghouse. Sections 382.121 and 382.405 have been in existence for a number of years; we are unaware of any problem associated with employerprovided educational materials that requires additional regulatory intervention at this time. sradovich on DSK3GMQ082PROD with RULES2 Drug and Alcohol Clearinghouse (§ 382.701) FMCSA proposed to require employers to conduct pre-employment and annual queries of the Clearinghouse. Pre-Employment Investigations Under §§ 40.25, 382.413, and 391.23 Comment. ATA, Cahill-Swift, Driver IQ/CARCO, C.R. England, Boeing, NPTC, MROCC, AMRO, PTC, J.B. Hunt, and an individual commenter asked whether employers would have to do a background investigation on prospective employees’ drug and alcohol testing history in accordance with §§ 40.25, 382.413, and 391.23 if the employer conducted a pre-employment query of the Clearinghouse. Many of these commenters observed that it would be redundant to complete a background investigation and also query the Clearinghouse. Accordingly, they suggested that FMCSA either eliminate the background investigation requirement or, alternatively, provide an exemption. Response. FMCSA agrees that it would be redundant for employers to request information on an employee’s drug and alcohol testing history and query the Clearinghouse. Under current regulations, employers are required to determine whether a prospective employee violated FMCSA’s drug and alcohol testing program during the preceding 3 years and, if so, whether he or she has completed the return-to-duty process. In this final rule, FMCSA eliminates the requirement that employers both query the Clearinghouse and conduct a drug and alcohol history background investigation, with limited exceptions as discussed below. Employers will be required to query the Clearinghouse and request drug and alcohol testing histories from previous employers until the Clearinghouse has been in operation for at least 3 years. After 3 years, employers subject to part VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 382 will no longer be required to request drug and alcohol testing histories from previous employers, except in the following situations. When an employer relies on the § 382.301(b) exception to the pre-employment testing requirement, the employer must meet all of the requirements, including verifying that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use rule within the previous 6 months. In addition, for drivers subject to follow-up testing, an employer must request the follow-up testing plan from the previous employer if the driver’s Clearinghouse record does not indicate that he/she successfully completed follow-up testing. Employers are required to obtain an employee’s ongoing follow-up testing plan pursuant to § 40.25(b)(5). As discussed below, the duration of the follow-up testing and the number and type of follow-up tests prescribed by the SAP will not be reported to the Clearinghouse. Therefore employers will continue to be required to request this information directly from the previous employer. The need to request the follow-up testing plan will be apparent when the driver’s Clearinghouse record indicates that he/ she successfully completed the returnto-duty process, but there is no report, required under § 382.705(b)(1)(v), that the driver completed all follow-up tests as prescribed by the SAP. In cases where a driver who is subject to followup testing is not currently employed, the gaining employer may obtain the driver’s follow-up testing plan from the SAP, whose contact information will be available in the Clearinghouse. Finally, if a prospective employee was subject to drug and alcohol testing with a DOT mode other than FMCSA, employers must continue to request background information from those DOT-regulated employers, who are not subject to the Clearinghouse reporting requirements. The Clearinghouse therefore will not contain any nonFMCSA drug and alcohol information. FMCSA revised §§ 382.413 and 391.23 to implement these changes. These revisions will make clear that an employer that queries the Clearinghouse has satisfied the background investigation requirements of § 40.25(b), subject to the exceptions described above. Frequency of Queries Permitted Comment. ATA, FE, Cahill-Swift, J.B. Hunt, and Driver IQ/CARCO asked whether employers would be limited to PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 just one query per employee per year and suggested that they should be able to query the database more frequently. Response. Nothing in the rule prohibits employers from conducting queries on drivers more than once per year. The annual query requirement, which can be met by conducting either a full or limited query, merely sets the minimum frequency for conducting queries. FMCSA made minor changes to § 382.701(b) to make this clear. Employers may conduct more frequent queries so long as they obtain employee consent in accordance with § 382.703. FMCSA envisions that employers would obtain one general consent to conduct a limited query (or queries) from drivers at the time they are hired. Employers should ensure that the general consent to query does not restrict them to one query per year if they intend to conduct limited queries on a more frequent basis. Burden of Annual Queries Comment. Boeing, ABA, and a number of other commenters said that the annual query requirement is unnecessary and burdensome. Boeing added that the time and resources associated with the annual query would be burdensome, especially for large employers. Response. FMCSA disagrees that the annual query requirement is unnecessary or overly burdensome. The number of commenters interested in conducting queries more often than once a year points to the opposite conclusion: That employers believe Clearinghouse queries will be a useful tool for identifying problem employees. The purpose of this requirement is to ensure that drivers who commit a drug or alcohol violation while working for another employer or attempting to find work with another employer do not continue performing safety-sensitive functions without complying with the return-to-duty process. Without the annual query, employers have no way of knowing about violations with other employers that render a driver ineligible to drive. FMCSA envisions that employers would obtain one general consent to query from drivers at the time they are hired in order to conduct these annual or more frequent limited queries, reducing the burden on employers to obtain such consent on a yearly basis. As noted above, employers also have the option of conducting a full query in order to satisfy the annual query requirement; in such cases, specific consent must first be obtained from the driver. E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations Employer Alert of Positive Test Result Comment. FMCSA proposed that an employer would be notified if new information about a driver is entered into the Clearinghouse within 7 days of an employer conducting a query. One commenter stated that the 7-day time period is too short. SAPAA, MROCC, AMRO and PTC, and several trucking associations requested that FMCSA extend the time from 7 days to 30 days to take into account hiring delays and the time it takes to process preemployment drug tests. Response. FMCSA believes that these comments have merit and, as a result, includes a 30-day notification period in this final rule. FMCSA interprets the statutory mandate that the Agency provide notification to an employer within 7 days as a minimum, not a maximum time period. This interpretation is consistent with the purposes of the Clearinghouse: To improve compliance and enhance safety. See 49 U.S.C. 31306a(a)(2). As the commenters observe, it could take more than 7 days after a drug test for a violation to be processed, verified, and entered into the Clearinghouse. This means that a driver submitting applications to more than one employer could have a positive pre-employment drug test without other employers’ knowledge. By extending the notification period, employers are more likely to get the necessary information to determine whether a driver is in compliance with FMCSA’s drug and alcohol testing program. Accordingly, FMCSA extends the notification period for employers to 30 days. sradovich on DSK3GMQ082PROD with RULES2 Full Query in Lieu of Limited Query Comment. FMCSA proposed that the annual query requirement would be satisfied by conducting a limited query to determine whether any information about a particular driver existed in the Clearinghouse. If the limited query shows that information exists, the employer would be required to obtain consent to conduct a full query to gain access to the information. Schneider, the CCTA, and another commenter objected to conducting a limited query in advance of a full query and requested that the regulation provide for only full queries. Response. An employer that conducts a limited query will receive a response that says that information either exists or does not exist in the Clearinghouse. If the response indicates that there is information, the employer must obtain specific consent from the driver to conduct a full query that releases the content of that information. Nothing VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 prevents an employer from obtaining specific consent to conduct a full query each year. But to ease the burden associated with obtaining annual consent, FMCSA offers employers the option of doing a limited query, which may be conducted with a multi-year consent to query. Comment. A commenter asked what kind of information would trigger a full query. Response. If a limited query returns a response indicating that any information about that driver exists in the Clearinghouse, the employer must conduct a full query to find out whether the information shows that the driver is eligible to perform safety-sensitive functions. Annual Queries—Miscellaneous Comment. One commenter expressed support for the annual query requirement. Two commenters asked whether they would be able to conduct annual queries of all employees in a batch. Response. Nothing in this rule would foreclose the possibility of batchprocessing annual queries. Details on Clearinghouse functionality will be addressed during the design and development process. FMCSA will provide information to stakeholders on that functionality closer to the Clearinghouse compliance date. Comment. A commenter asked whether the annual query could be conducted at the same time as other required annual checks. Response. Nothing in the rule mandates when the annual checks be conducted except that they occur at least once per year. Employers are free to choose the time of year that best suits their operational needs. FMCSA anticipates that many employers will choose to conduct Clearinghouse queries at the same time they conduct other required annual verifications, but that decision is left entirely to the employer. Comment. An individual wanted to know, in the event of multiple employers, which employer would be responsible for querying the Clearinghouse. CCTA asked if owneroperators are required to query themselves. Response. Anyone who employs a driver, regardless of whether that driver has other employers, must query the Clearinghouse in accordance with § 382.701. This includes owneroperators who, as both employers and employees, are subject to all provisions of FMCSA’s drug and alcohol regulations. See 49 CFR 382.103(b). A driver who owns a company, regardless PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 87697 of whether it has one or many drivers, must comply with all employer and employee Clearinghouse requirements. Comment. Another commenter asked what FMCSA hopes to achieve through the annual query. The same commenter wanted to know what an employer is supposed to do if an annual query returns results showing that a driver violated FMCSA’s drug and alcohol testing program with another employer. Response. The goal of the annual query, which is mandated by Congress (see 49 U.S.C. 31306a(f)(4)), is to make employers aware of drug and alcohol violations a driver may have incurred while working for another employer or in connection with pre-employment testing with a prospective employer. If the annual search shows a drug or alcohol violation, the employer would be prohibited from allowing a driver to perform safety-sensitive functions until the driver complied with the return-toduty requirements. Comment. MROCC, AMRO and PTC asked about the time frame for an employer to conduct a full query after a limited query indicates that there is information about a particular driver in the Clearinghouse. Response. When a limited query shows that there is information in the Clearinghouse about a particular driver, the employer making the query (or service agent making it on the employer’s behalf) must conduct a full query within 24 hours. If the full query is not conducted within 24 hours, the driver in question is prohibited from performing safety-sensitive functions. The driver may resume safety-sensitive functions once a full query is conducted so long as it shows that the driver is not prohibited from performing those functions. FMCSA amended § 382.701(b) to make this requirement clear. Driver Consent To Permit Access to Information in the Clearinghouse (§ 382.703) FMCSA proposed that employers may not query the Clearinghouse without the affected driver’s consent. Consent Required Comment. Several commenters suggested that FMCSA allow employers to query the Clearinghouse at will without driver consent. Response. In authorizing FMCSA to establish the Clearinghouse, Congress specifically required that a driver grant consent before the Clearinghouse releases information in a driver’s Clearinghouse record. 49 U.S.C. 31306a(h)(1). The Agency therefore has no discretion to permit employers to E:\FR\FM\05DER2.SGM 05DER2 87698 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations query the Clearinghouse without the driver’s consent and accordingly, § 382.703, prohibits employers from conducting either limited or full queries without obtaining the driver’s consent. The issue of driver consent is addressed more fully below. sradovich on DSK3GMQ082PROD with RULES2 Electronic Consent Comment. Schneider, WPCI, C.R. England, ATA and DrugPak, LLC (DrugPak) recommended that FMCSA allow the use of electronic signatures for driver consent. Response. FMCSA anticipates that, for the full query, drivers will provide electronic consent through the Clearinghouse, as noted below. The Agency intends to include this functionality in the design of the Clearinghouse system. For limited queries, drivers and employers will have the option of using either paper or electronic methods to create and maintain documentation of driver consent. You may access FMCSA’s guidance on how to create and maintain electronic signatures at ‘‘Regulatory Guidance Concerning Electronic Signatures and Documents,’’ 76 FR 411 (Jan. 4, 2011). ‘‘Blanket’’ Consent Forms Comment. Several commenters suggested that employers should obtain driver consent to query the Clearinghouse as a part of the driver’s employment application. Cahill-Swift, Driver IQ/CARCO, J.B. Hunt, ABA and Schneider recommended blanket consents for both full and limited queries for as long as the driver is employed with that employer. Foley, C.R. England, MRROC, AMRO and PTC also expressed support for blanket consents for limited queries. Commenters suggested that limited consent be combined with the driver employment application or preemployment screening program (PSP) consent, while another suggested that it should be solicited during the driver’s annual review. SAPAA suggested that consent forms be valid for 3 years. Response. Under existing regulations, employees may not grant blanket consent to release drug and alcohol testing program information. 49 CFR 40.321. Accordingly, FMCSA does not permit employees to grant blanket consent to conduct annual Clearinghouse queries. But nothing in this final rule prevents an employer from obtaining general consent for limited queries because limited queries do not release driver information. Employers and employees are free to work out the details for obtaining general consent for limited queries, such VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 as when the consent is originally obtained, for how long it is effective, and whether is it is combined with other consent forms. Standard Consent Form Comment. One commenter suggested that FMCSA establish a standard consent form so that employees know what information they are consenting to release with each type of query. OOIDA suggested that FMCSA prescribe the exact language for the consent form, including details about the type of consent given and the driver’s rights under Clearinghouse rules. OOIDA also suggested that consent forms have time limits, the full and limited query consent forms should be separate, and drivers should receive a copy of each form he or she signs. Response. To preserve the maximum flexibility for employers and employees, FMCSA does not provide a standard consent form in this final rule. However, we will provide a sample consent form on the Clearinghouse Web site that employers may use or adapt. With respect to limited queries, employers and employees are free to structure the consent in the way that permits the most efficient use of their resources. For example, it may be combined with other documents and consents or it could be a stand-alone document. It could be subject to renewal each year, or be effective for the duration of employment. It could be limited to one query per year, or permit an unlimited number of queries. Employers are required to keep records of this consent for a minimum of 3 years after the last query and compliance with this requirement is subject to audit. Nothing prohibits employers from providing employees a copy of their consent. FMCSA will not, however, compel employers to include detailed information about the Clearinghouse or an individual’s rights on the consent form. The Agency intends that consent for full queries will be managed electronically through the Clearinghouse. FMCSA envisions that an employer will make an electronic request for records through the Clearinghouse and, once FMCSA receives electronic confirmation of consent from the driver, records, if they exist, would be released to the requesting employer. Employers would not be required to obtain or keep any other written forms of consent for full queries. The Clearinghouse will provide notice to the driver each time his or her information is released in connection with a full query. In addition, a driver will be given the option to receive PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 electronic notification each time someone conducts a limited query on that driver. The driver will be given the opportunity to provide electronic contact information when he or she registers with the Clearinghouse. Consent for Service Agents To Query the Clearinghouse Comment. First Advantage and CCTA suggested that service agents should be able to query the Clearinghouse on behalf of an employer. Response. Employers may designate service agents to query the Clearinghouse on their behalf. Service agents accessing the Clearinghouse must be authorized by the employer and registered in accordance with § 382.711. FMCSA Verification of Employee Consent Comment. Two commenters wanted to know how FMCSA would verify driver consent for a full query. Response. The driver would log into the Clearinghouse and authorize the release of his or her records to a particular employer. The driver would have to establish log-in credentials when registering with the Clearinghouse in order to verify his or her identity. Reporting to the Clearinghouse (§ 382.705) FMCSA proposed to require employers, MROs, and SAPs to report information about violations of FMCSA’s drug and alcohol testing program to the Clearinghouse. Section 382.705 identified and assigned responsibility for these reporting requirements. Harassment or Coercion Comment. OOIDA stated that it was concerned that a motor carrier could misuse its role in the reporting process to coerce, harass, or retaliate against drivers. Response. In response to concerns about employers submitting false allegations to the Clearinghouse in order to coerce, harass, or retaliate against drivers, FMCSA has established new requirements for reports of violations based on an employer’s actual knowledge or on a driver’s failure to appear for a test. These new requirements, codified in new § 382.705(b)(3) and (5), call for the employer to document the violation contemporaneously and/or to submit supporting information, under penalty of perjury, about the violation to the Clearinghouse. For more information on these procedures and the consequences for false reporting, see the discussion of § 382.705(b)(3) and (5) below. In E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations addition, drivers who believe that inaccurate information about them has been entered into the Clearinghouse may request correction of their record in accordance with § 382.717 or DOT’s Privacy Act procedures (49 CFR part 10, subpart E) (See also discussion of the Privacy Act elsewhere in this preamble.) sradovich on DSK3GMQ082PROD with RULES2 Inaccurate Reporting Comment. A number of commenters were concerned about how the reporting of inaccurate information to the Clearinghouse would affect drivers. OOIDA urged that every requirement be carefully considered to maximize accuracy and eliminate room for error. Another commenter recommended that no SAP reports or return-to-duty information should be reported to the Clearinghouse because there is a risk of inaccurate reporting. Response. Minimizing the risk for error was an important consideration for the Agency while developing this rule. Entries to the Clearinghouse will be made electronically using pre-defined data fields to minimize incorrect entries. Anyone reporting information will not be able to make an entry without including all required information. In addition, each time an entry is made to a driver’s record, that driver will be notified in accordance with § 382.707. In the event of an incorrect entry, drivers will be able to request corrections in accordance with the procedures in § 382.717. Cancelled or Changed Tests Comment. SAPAA asked what happens when a test is cancelled. Two commenters recommended that cancelled tests should be deleted and not kept for any purposes. Cahill-Swift asked whether a record is immediately expunged from the Clearinghouse when an MRO changes a reported positive or refusal. Response. In accordance with part 40, a cancelled test may not be considered positive or used as a basis for prohibiting a driver from performing safety-sensitive functions or requiring the driver to complete the return-to-duty process. 49 CFR 40.207, 40.267. Accordingly, no cancelled test should be reported to the Clearinghouse. In the event an MRO cancels a test that he or she previously reported to the Clearinghouse, that MRO must report that change to the Clearinghouse within 1 business day (§ 382.705(a)(3)). FMCSA would then remove that test from the Clearinghouse. FMCSA would not, however, remove the information from its archives. Although this information would not be accessible to employers, it is important that FMCSA retain a record VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 of all cancelled tests for auditing and enforcement purposes. If an MRO fails to report the cancelled test within the required time frame, the employee can submit a request for removal through the Clearinghouse data correction procedures in § 382.717. Redundant Reporting Responsibilities Comment. C.R. England, Greyhound Lines Inc. (Greyhound), OOIDA, CCTA and other commenters said that the proposed reporting requirements were redundant because different entities— for example, employers and MROs— were responsible for reporting the same information. These commenters requested less duplicative and burdensome requirements. One of the commenters suggested using chain of custody or other numbers to track specimens and prevent duplicate reporting of positive test results from different sources. Response. FMCSA did not intend to include any redundant reporting requirements in the proposed rule. We believe that several commenters were confused because § 382.705 requires both employers and MROs to report refusals. FMCSA intended, however, for MROs to report only those refusals related to the portion of the testing process in which they are involved, as identified in § 40.191. Similarly, FMCSA intended for employers to report all other refusals identified in § 40.191. In other words, § 382.705 requires employers and MROs to report different kinds of refusals with no overlapping responsibilities. To clarify that MROs and employers have mutually exclusive reporting requirements, this final rule distinguishes between those paragraphs of 49 CFR 40.191 that implicate MRO reporting and those that implicate employer reporting. The final rule now states that employers are required to report refusals to take drug tests pursuant to § 40.191(a)(1)–(4), (a)(6), (a)(8)–(10), or (d)(1) and to report situations in which the employee admits to the collector that he or she adulterated or substituted the specimen in accordance with § 40.191(a)(11). MROs, on the other hand, are required to report refusals that are determined pursuant to § 40.191(a)(5), (a)(7), (b), and (d)(2). MROs are also required to report refusals when the employee admits to the MRO that he or she adulterated or substituted the specimen in accordance with § 40.191(a)(11). Additionally, we note that MROs and employers do not have overlapping reporting responsibilities related to positive test results. Consequently, duplicate reporting, in which the same PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 87699 test result is reported to the Clearinghouse by different sources, will not occur. However, to the extent that duplicate test results are inadvertently reported to the Clearinghouse by the same source as a result of administrative error, drivers may request that duplicate reports be removed through the data correction procedures established under § 382.717. Who Should Report Information Comment. Several commenters said that only employers should enter information to alleviate burdens on service agents and to promote accuracy. OOIDA suggested alternative regulatory text that would make employers responsible for reporting all refusals to test. Several commenters supported having MROs, not employers, report positive test information to eliminate opportunities for employers to report inaccurate information, both inadvertently and intentionally. One commenter supported having SAPs enter SAP information to ensure accurate data is entered. Commenters also suggested having blood alcohol technicians or screening test technicians instead of employers enter alcohol test results, also to improve accuracy. Other commenters stated that employers, MROs, and SAPs should be able to allow third parties or assistants to enter information into the Clearinghouse to alleviate their reporting burdens. Greyhound and another commenter supported having each party enter information related to their immediate firsthand knowledge as a way of ensuring checks and balances in the reporting process. Two commenters supported having MROs report positive test results because they believe some employers would choose not to report the positive tests so that their employees could continue driving. A number of commenters suggested that SDLAs report information on citations for DUI while driving a CMV. Other commenters expressed concern about the conflict of interest owner-operators have in selfreporting their own drug and alcohol violations. Response. FMCSA considered permitting only employers to input information into the Clearinghouse and determined that the better option is to have service agents enter their own information. This minimizes the risk of error by preventing the information from passing through multiple hands before reporting and holds each actor responsible for the integrity of his or her own reportable information. Furthermore, consolidating reporting authority into the hands of employers could make it easier for unscrupulous E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87700 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations employers to misuse their reporting role either to coerce drivers or help them evade the consequences of receiving a positive test. Nothing in the final rule prohibits an MRO or SAP from allowing authorized staff to enter information into the Clearinghouse. The MRO or SAP remains responsible, however, for the accuracy of any information entered by staff on their behalf. The rule does not require SDLAs to report DUI citations to the Clearinghouse. FMCSA believes that some of the commenters misunderstood the requirement to report that an individual was cited for a DUI while driving a CMV. The rule proposed that it would be the employer’s responsibility to report a violation of §§ 382.205, 382.207, or 382.213 that is based on the employer’s actual knowledge of a citation for DUI while driving a CMV. The Clearinghouse was never intended to be a repository for all citations for DUI while driving a CMV. In accordance with § 382.107, it will only contain those citations that an employer uses to substantiate actual knowledge that an employee violated FMCSA’s drug and alcohol program. In this final rule, FMCSA will require employers to report and substantiate all violations of § 382.205, § 382.207, or § 382.213 based on the employer’s actual knowledge of the circumstances. We discuss these provisions in more detail below. In addition, this final rule mandates that any owner-operator, regardless of whether he or she operates solo or has other driver-employees, must use a C/ TPA to comply with the employer reporting requirements established in this rule. FMCSA implements this requirement in response to commenters’ concerns about the conflict of interest owner-operators have in self-reporting their own drug and alcohol violations. The Agency does not believe that this will cause any increased costs or burdens on owner-operators. In the case of owner-operators who employ only themselves, they are already required to participate in a testing pool managed by a C/TPA. See § 382.103(b). Similarly, FMCSA’s experience has shown that most owner-operators with other employees tend to be very small motor carriers that find it more convenient to use C/TPAs to manage their drug and alcohol programs. Accordingly, adding the reporting function to the C/TPA’s duties should not create new burdens; to the contrary, consolidating all reporting into the C/TPA’s hands should achieve efficiencies. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Employers and Drivers Regulated by More Than One Mode Comment. Two commenters stated that some drivers work for companies that are regulated by more than one mode and suggested that results of a test conducted under the authority of another mode be reported to the Clearinghouse. Response. In accordance with Congress’s mandate in MAP–21, this final rule applies to part 382 drug and alcohol violations only. See 49 U.S.C. 31306a(a)(3). FMCSA does not have the authority to require employers to report other modes’ drug and alcohol violations to the Clearinghouse. Reporting Truthfully and Accurately Comment. FMCSA proposed that every person or entity with access to the Clearinghouse be required to report truthfully and accurately, and expressly prohibited them from knowingly reporting false or inaccurate information. OOIDA suggested that FMCSA remove the term ‘‘knowingly’’ from this requirement. Response. FMCSA proposed using the term ‘‘knowingly’’ because the Agency does not intend to impose sanctions on inadvertent errors. That said, the Agency recognizes the serious consequences drivers could face as a result of parties who report inaccurate information. Accordingly, the Agency expanded the prohibition to provide sanctions when a person reports information he or she knows or should know is false or inaccurate. This holds those reporting information to the Clearinghouse to a higher standard of accountability. Reporting Follow-Up Tests Comment. Driver Check asked whether employers are required to report negative as well as positive follow-up tests. OOIDA suggested that the number of follow-up tests be reported to the Clearinghouse. SAPAA suggested that employers report aftercare information during the followup period. Response. Although employers must report negative return-to-duty tests, they are not required to report negative follow-up tests. The reason for the distinction between the two is because reporting a negative return-to-duty test changes a driver’s status from prohibited to eligible to perform safetysensitive functions. A negative followup test does not cause a change in the driver’s status until the employer reports successful completion of all follow-up tests. Employers and MROs must, however, report positive return- PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 to-duty and follow-up tests just as they would for any other positive test. In addition, employers will report to the Clearinghouse that a driver has completed the return-to-duty process when he or she has successfully completed all required follow-up tests. FMCSA does not believe that reporting aftercare information is appropriate at this time. The purpose of the Clearinghouse is to be a tool for employers to use to determine whether an employee or prospective employee is prohibited from performing a safetysensitive function. While the details of aftercare are relevant to the driver’s return-to-duty process, they do not, in and of themselves, indicate whether a driver is prohibited from driving. Time Allowed for Reporting Comment. FMCSA proposed to require MROs, employers, C/TPAs, and SAPs to report to the Clearinghouse within 1 day of the event triggering a reporting requirement. Many commenters said that this did not allow enough time. DrugPak said that this requirement was not consistent with FMCSA’s statutory authority, which simply required ‘‘timely’’ reporting. WPCI said that the rule should have a more specific time frame such as 24 hours. Yet another commenter requested that the reporting period be extended to 2 days. A commenter said that there are no time limits applicable to C/TPAs and requested that FMCSA change the rule to include them. Several commenters suggested that SAPs have up to 72 hours to report information. A different commenter suggested that SAPs have 5 days to report information. Response. After consideration of these comments, FMCSA changed the proposed provisions so that this final rule requires MROs to report within 2 days of verifying a drug test. FMCSA makes this change to allow MROs a little more time to comply with their reporting requirements. The 2-day time frame is consistent with current MRO requirements for transmitting a report of a verified test to the employer within 2 days of verification. See 49 CFR 40.167(c). There is no comparable reporting period in part 40 for employers or SAPs, however. FMCSA appreciates the commenters’ concerns about the short period of time required for reporting, but must also balance this requirement against the public safety interest in timely reporting and the driver’s interest in returning to work as soon as he or she is eligible. Accordingly, this final rule requires SAPs to complete their reporting requirements by the close of E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations the business day after the event that triggered their reporting responsibility. For employers, the reporting period has been extended to the end of the third business day following the event triggering the violation. This change was made to reflect the fact that, in the case of a violation substantiated by an employer’s actual knowledge of drug or alcohol use, or in the case of an employer’s report of a driver’s failure to appear for a test, new reporting requirements apply. The final rule affords more time for employers to report violations because employers are now required to generate or gather documents in order to substantiate these types of reports. These reporting requirements are discussed in further detail below. In order to maintain a uniform reporting period applicable to employer reports, the reporting period in this rule applies to all reports made by employers, not just those requiring additional documentation. We also note these reporting periods establish the maximum amount of time in which MROs, SAPs and employers can submit their reports to the Clearinghouse. Nothing in this rule prohibits the submission of reports at an earlier point within the reporting window. C/TPAs who report information to the Clearinghouse stand in the shoes of the employer, when they are designated to take on that responsibility. Accordingly, any time frame applicable to an employer is equally applicable to the C/ TPA acting on the employer’s behalf. sradovich on DSK3GMQ082PROD with RULES2 Reporting Actual Knowledge of Drug or Alcohol Use Comment. FMCSA’s proposal to require employers to report violations based on their actual knowledge of an employee’s drug or alcohol use only when substantiated by a citation for DUI in a CMV is narrower than the scope of actual knowledge violations defined in § 382.107. Twenty-three commenters objected to this limitation and recommended that FMCSA require employers to report all violations based on actual knowledge, as defined in § 382.107. They stated that limited reporting would leave the Clearinghouse incomplete and would be inconsistent with Congress’s mandate in MAP–21 that all violations of the Agency’s drug and alcohol program be reported to the Clearinghouse. Commenters also said that FMCSA’s concerns about inadequate documentation for violations based on actual knowledge were inconsistent with existing regulations that require employers to report these types of violations in accordance with VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 pre-employment background investigations. Several commenters supported the proposal and said that reports to the Clearinghouse should not be based on undocumented information that could be used to coerce drivers. One of these commenters, OOIDA, said that employers should order a reasonable suspicion test when they have actual knowledge of a violation, but opposed permitting ‘‘unverified’’ actual knowledge violations to be reported to the Clearinghouse. One commenter stated that no DUI information should be available. Response. After considering the comments on this issue, FMCSA agrees that it is appropriate to include all actual knowledge violations of part 382 in the Clearinghouse. By including such violations, employers will be able to query the Clearinghouse to obtain a complete picture of a driver’s drug and alcohol violations history. This change also allows employers to use a Clearinghouse query to satisfy the drug and alcohol background investigation requirements in §§ 382.413 and 391.23, as discussed above. We note that neither DOT nor non-DOT tests are included in the scope of reportable actual knowledge violations. Any violation based on an employer’s actual knowledge of a driver’s drug or alcohol use requires detailed, contemporaneous documentation in the Clearinghouse. Employers are required to report the details of the violation and upload evidence documenting the violation by the end of the third business day following the triggering event. Employers must report the date of the violation, a detailed description of the event, including the approximate time the violation occurred, and the names and contact information for any corroborating witness. Employers must also provide evidence to support each fact alleged in its description of the violation. In the absence of any tangible written, video, or audio evidence, the employer must attest to each fact alleged in an affidavit. Finally, the employer must verify that it provided all of the evidence supporting the violation to the employee. The Agency intends, during the implementation phase, to build technology into the Clearinghouse that allows an employer to report an actual knowledge violation only if the employer attests that the report contains the required evidentiary support, as described above, and that the employer has provided a copy of the report to the employee. In the event that an employer falsely certifies that either of those requirements for submission of the PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 87701 report have been met, the employee may request that the information be removed from the Clearinghouse under new § 382.717(a)(2)(ii). Additionally, the employer would be subject to criminal and civil penalties as discussed below. Reporting an actual knowledge violation to the Clearinghouse will have the effect of prohibiting a driver from engaging in his or her occupation; however, it typically is not accompanied by the type of paperwork or documentation that accompanies a test result. Given the severity of the consequences for the employee, we do not believe that an employer should be able to report an actual knowledge violation without evidence substantiating each allegation. Accordingly, these requirements create objective standards for documenting actual knowledge violations and hold employers accountable for what they report to the Clearinghouse. In addition, as a part of the system design and implementation process, FMCSA intends to build functionality into the Clearinghouse that requires the person submitting information to state that it is true and correct and that will warn the user that the submission of false or misleading information is subject to civil and criminal penalties under § 382.507. These requirements are implemented to address concerns about coercion and harassment. They are designed to ensure that no employer reports any violation based on actual knowledge without providing evidence to support the violation. Moreover, no employer will be able to report any violation based on actual knowledge after the window for reporting has closed, eliminating the possibility for after-the-fact harassment or coercion. Although a full query will alert an employer or prospective employer when a driver has a prohibition based on an employer’s actual knowledge, the Clearinghouse will not release the details of that violation to anyone other than the driver. The circumstances of the violation have no bearing on whether the employee is eligible to perform safety-sensitive functions. All that is relevant is whether the driver is prohibited from performing safetysensitive functions. The Agency believes that this reporting requirement does not impose an additional cost burden on employers because a prudent employer would compile such documentation to support the termination or transfer of an employee to a non-safety-sensitive function, pending the driver’s completion of the return-to-duty process. E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87702 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations Reporting Refusals To Test Comment. OOIDA expressed concern regarding a situation that exists under the current drug and alcohol testing program, in which a false allegation of a driver’s refusal to test may be made by the motor carrier as a means of harassing, coercing, or retaliating against the driver. OOIDA cited a specific example in which an employer reported a test refusal for a driver who was no longer in the motor carrier’s employ at the time of the alleged refusal. Among other things, OOIDA recommended that FMCSA require the employer to provide supporting documents to prevent the motor carrier’s submission of false or inaccurate reports of driver refusals, and to provide for the timely removal of such reports if they do occur. Response. The Agency understands the serious consequences to a driver whenever any violation is reported to the Clearinghouse. Consequently, it is incumbent upon FMCSA to ensure, to the extent feasible, that employers do not report violations to the Clearinghouse that are false or inaccurate, and that employers who do so will be subject to appropriate sanctions. FMCSA notes, however, that we have no basis on which to anticipate that widespread fraud by employers subject to the Clearinghouse reporting requirements will occur. On the other hand, we acknowledge that unscrupulous employers could, as the commenter described, attempt to use the Clearinghouse for purposes of coercion or harassment when reporting a test refusal. Accordingly, we are adding new documentation requirements related to the reporting, by an employer, or a C/ TPA acting as the employer’s service agent, of a driver’s failure to appear for an alcohol or drug test. Under 49 CFR 40.261(a)(1) and 49 CFR 40.191(a)(1), failure to appear at a testing site after being directed to do so by an employer constitutes a refusal. In submitting such reports to the Clearinghouse under § 382.705(b)(3), an employer must provide documentation, such as a contemporaneous record or an affidavit, of the time and date that the driver was notified to appear at a testing site, as well as the time and date the driver was directed to appear; documentation, such as electronic mail or an affidavit, of the date the employee was terminated or resigned (if applicable); and documentation, such as a certificate of service or other evidence, showing the employer provided the driver with all the information reported under this paragraph. C/TPAs who report ‘‘failure VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 to appear’’ refusals by self-employed drivers pursuant to § 382.705(b)(6) would be required to document, by affidavit or other means, that they were designated as the service agent for that employer at the time the ‘‘failure to appear’’ refusal occurred. The Agency envisions that employers, or C/TPAs acting as their service agents, could rely on a single affidavit to fulfill these documentation requirements, as long as all the required information is included. Further, we presume that the documentation of test notifications, a driver’s employment status, or the existence of a valid business relationship between self-employed drivers and C/TPAs, are records reasonably kept in the ordinary course of business and would not need to be created solely to comply with these reporting requirements. The NPRM proposed, under § 382.705(b)(1), that employers report test refusals to the Clearinghouse by the close of the business day following the date on which they obtained the information. In recognition of the fact that additional time may be needed to comply with these new documentation requirements for ‘‘failure to appear’’ refusals, in this rule we extend the reporting period for all test refusals to the close of the third business day following the date on which the violation information was obtained. Further, we note that the 3-year implementation period for this rule will afford employers ample opportunity to make any necessary adjustments to their record keeping systems in order to comply with these requirements. Similar to the reporting requirements for actual knowledge violations, FMCSA intends that the Clearinghouse functionality will allow ‘‘failure to appear’’ refusals to be reported only if the employer certifies that the report contains the required documentation, as described above, and a copy of the documentation has been provided to the employee. As noted above, FMCSA also intends that the Clearinghouse functionality will require the person submitting information to state that it is true and correct and will warn the user that the submission of false or misleading information is subject to civil and criminal penalties under § 382.507. These requirements are implemented to address concerns about coercion and harassment. Finally, in the event that an employer falsely certifies either that the required documentation has been provided, or that the employee has received a copy of the documentation, the employee may request that FMCSA remove the PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 report from the Clearinghouse pursuant to new § 382.717(a)(2)(iii). Reporting Return-to-Duty Test Eligibility Comment. FMCSA proposed to require SAPs to report the date they determined that a driver successfully completed the education and/or treatment process as defined in 49 CFR part 40, subpart O, and was eligible for return-to-duty testing under part 382. A commenter said that the language referencing eligibility for testing was unnecessary and that employers could confuse it with a statement of fitnessfor-duty determination. The commenter suggested limiting the SAP’s determination to successful compliance with the SAP’s recommendation. Response. Section 382.705(d)(1)(iv), as proposed, accurately reflects the state of the law: Once a SAP determines that a driver has successfully completed the education and/or treatment process as defined in subpart O, the driver is eligible to take a return-to-duty test. See 49 CFR 40.305. FMCSA is unaware that employers have been confusing eligibility to take the return-to-duty test with a fitness-for-duty determination. Accordingly, FMCSA does not see any reason to change the language in this section. Notice to Drivers and Employers of Entry, Revision, Removal or Release of Information (§ 382.707) Comment. FMCSA proposed to notify a driver when information about that driver is entered, changed, removed, or released. Everyone commenting on this issue supported driver notification. OOIDA requested that drivers be able to obtain information identifying the person to whom records are released. SAPAA and TTD requested that FMCSA establish a time frame in which the driver would be notified about activity in the Clearinghouse. Driver Check asked how drivers licensed outside of the United States would be notified of Clearinghouse activity. SAPAA asked whether C/TPAs could receive notification on behalf of owneroperators. A commenter disagreed with the proposal to send notification of Clearinghouse activity via U.S. Mail and suggested that the rule provide for electronic notification. Response. FMCSA understands that commenters have many questions about how the Clearinghouse will operate. Many of the operational details will be developed during the implementation phase, and thus are not appropriate for codification in FMCSA’s rules. That said, it is FMCSA’s intention that drivers will have access to their E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 Clearinghouse records, including information on who submits information and to whom information is released. With respect to timing, as soon as there is activity in a driver’s Clearinghouse record, FMCSA will initiate notification. If a driver takes no action to designate an address or method of notification, the default method is to send notification via U.S. Mail to the current address on file with the driver’s State of licensure. All drivers will have the option to provide an alternate electronic method of notification when they register with the Clearinghouse. The time it takes the driver to receive the notification would vary depending on which notification method is selected. Drivers’ Access to Information in the Clearinghouse (§ 382.709) Comment. FMCSA proposed to grant drivers access to any information in their Clearinghouse record, except as restricted by law. Two commenters recommended that FMCSA prohibit drivers from having access to their own follow-up testing plans and prohibit employers from sharing that information with drivers. One of those commenters said that many employers believe that they are not prohibited from sharing follow-up testing plans with drivers. Boeing was concerned that owneroperators would have access to their follow-up plans. Finally, a driver requested clarification about how often he would be required to check his own records in the Clearinghouse. Response. Section 382.705(d)(1)(v) of the NPRM proposed that SAPs report to the Clearinghouse the frequency, number, and type of follow-up tests as well as the duration of the follow-up testing plan. Section 40.329 currently requires that SAPs redact the follow-up testing information from any reports provided to employees so that they will not be aware of either the number or type of follow-up tests or the duration of the testing period. When DOT adopted this requirement in 2001, it noted the concern that providing employees with access to their followup plans ‘‘could lessen the deterrent effect of follow-up tests’’ (66 FR 41949 (August 2001)). However, the Privacy Act generally requires that an employee be permitted, upon request, access to information about him/her in their Clearinghouse record that is retrievable by that employee’s name or other identifying particular. Accordingly, in order to ensure compliance with current part 40 requirements, in this rule FMCSA removes the proposed requirement in § 382.705 that SAPs report the follow-up testing plan to the VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Clearinghouse. SAPs will thus continue to provide that information directly to the employer as part of the follow-up evaluation report required by § 40.311(d). Therefore, follow-up testing plans will not be included in a driver’s Clearinghouse record. Subsequent employers will be required to obtain the follow-up testing plan from the previous employer, if the driver’s Clearinghouse record does not indicate that follow-up testing has been completed. In cases where a driver who is subject to followup testing is not currently employed, the gaining employer may obtain the driver’s follow-up testing plan from the SAP, whose contact information will be available in the Clearinghouse. (See, also, discussion of this issue under ‘‘Pre-Employment Investigations Under §§ 40.25, 382.413 and 391.23’’, above.) Finally, nothing in this rule requires drivers to query the Clearinghouse. Drivers are, however, free to query their own records at any time and as often as they choose. Clearinghouse Registration (Section 382.711) FMCSA proposed that each employer and designated service agent register with the Clearinghouse before accessing or reporting information to the Clearinghouse. Consumer Reporting and Background Screening Agencies Comment. Many commenters, including Cahill-Swift, Driver IQ/ CARCO, J.B. Hunt, Foley, NPTC, ABA, Schneider, C.R. England and several trucking associations, supported allowing consumer reporting and background screening agencies to access the Clearinghouse. A number of these commenters suggested that FMCSA expand the definition of ‘‘service agent’’ to include these third party service providers. OOIDA opposed third party service provider access to the Clearinghouse unless the service provider was acting specifically on behalf of an employer with a right to access the Clearinghouse. That commenter urged tight controls on Clearinghouse access. Response. As noted previously, the final rule does not include a new definition of ‘‘service agent,’’ as proposed in the NPRM, because DOT recently expanded the definition of that term in 49 CFR 40.3 to apply to those persons who provide services in connection with the Clearinghouse. Accordingly, a consumer reporting or background screening agency acting on behalf of an employer in connection with fulfilling that employer’s obligations under parts 40 and 382 may PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 87703 register to access the Clearinghouse, but those entities’ use of the accessed information is limited. No third party service agent may disseminate, or make any other use of the information in the Clearinghouse except to communicate it directly to the specific employer that authorized the provider to query the Clearinghouse on its behalf. No third party service agent may publish or consolidate Clearinghouse information for commercial or other purposes. SAP and MRO Access to Information in the Clearinghouse Comment. SAPAA, American Substance Abuse Professionals, First Advantage and other commenters requested that SAPs and MROs have access to information in the Clearinghouse to help them assess return-to-duty treatment and education requirements. Response. In FMCSA’s judgment, Congress did not intend for anyone other than employers (or an employer’s designated agent), SDLAs, the NTSB, and individual drivers to access the information in the Clearinghouse. (See 49 U.S.C. 31306a(h)–(j).) The statute limits employer use of the information to determine whether a driver has a drug or alcohol prohibition, while SDLAs may not use the information for any purpose other than determining the qualifications of a CDL applicant. The NTSB can use the information only in connection with a crash investigation. The statute does not contemplate using the information for MRO verifications and SAP assessment determinations. Moreover, we note that the DOT-wide drug and alcohol rules do not provide for MROs to use historical drug and alcohol information as a part of the verification process. Certainly, if a driver wishes to provide that information, he or she may. But it is not currently required as a part of the MRO’s function. The Agency agrees that historical information may be relevant to the SAP’s role in the return-to-duty process, and notes that nothing in this final rule prohibits SAPs from obtaining this information directly from the drivers under their care as a condition of providing an assessment. Designation of Service Agents and Employees and Credentials Required for Registration Comment. FMCSA proposed that employers must specifically designate those employees and service agents who are authorized to access the Clearinghouse on their behalf. FMCSA also proposed that MROs and SAPs must certify compliance with part 40 and provide evidence of the E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87704 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations professional credentials required by part 40. A commenter asked when the employer would designate its MRO and how it would make a change of designation. The same commenter said that some MROs are contracted with C/ TPAs rather than individual employers. Several commenters asked what kind of evidence MROs and SAPs must provide concerning their professional credentials. First Advantage said that providing evidence of certification and licensing would be time consuming and expensive. An individual expressed concern about how FMCSA would verify or authenticate these credentials. Several commenters asked whether an MRO working for several different organizations would need multiple registrations and whether different MROs working for one organization would need individual registrations. Finally, Driver IQ/CARCO suggested that employers and service agents should not have to verify their designated employees on an annual basis. Response. An employer is not required to designate which MRO or MROs may report information to the Clearinghouse for that employer’s employees. Furthermore, in an effort to eliminate the potential opportunity for employers to conceal violations of their own employees, FMCSA requires MROs, rather than employers, to report verified drug test results to the Clearinghouse. Requiring that MROs report verified drug test results independently will help preserve their impartiality while eliminating any potential for employers to exert pressure on the MRO during the verification process. To register with the Clearinghouse, MROs and SAPs must upload documentation showing that they are qualified, in accordance with the requirements of 49 CFR 40.121 and 40.281, to act as an MRO or SAP. The type of documentation will vary depending on the individual MRO or SAP’s professional qualifications. FMCSA does not consider this process to be time consuming. Under current rules, MROs and SAPs are otherwise required to maintain this documentation and provide it upon request to DOT agency representatives. (See 49 CFR 40.121(e) and 40.281(e).) Providing this information to the Clearinghouse as a condition of access is no different than responding to an agency request to produce the same information. An MRO’s registration will be personal to that individual and will depend on his or her credentials and other qualifications. Accordingly, each MRO must have his or her own personal VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 registration regardless of the type of organization with which he or she is affiliated. FMCSA did not make any changes to the requirement that employers annually verify the identity of employees who are authorized to access the Clearinghouse on their employer’s behalf. All employers are obligated to keep their verifications updated, but in the event that an employer fails to do so, the annual verification procedure will ensure that unauthorized employees do not retain access to the Clearinghouse indefinitely. Duration, Cancellation, and Revocation of Access (§ 382.713) Comment. FMCSA proposed to make Clearinghouse registration effective for 5 years, cancel inactive registrations after 2 years, and revoke registration for failure to comply with applicable rules. Cahill-Swift asked whether nonpayment of fees would result in revocation. OOIDA and another commenter stated that a registrant’s access must be revoked if it fails to comply with the rules. OOIDA requested that a registrant’s failure to comply with Clearinghouse rules be considered a pattern or practice of noncompliance under part 385, subpart K. Another commenter suggested that the Agency reconsider its proposal that FMCSA staff process Clearinghouse requests for motor carriers that have had their registrations revoked. Response. While the details of payment options will be determined during the contract bidding process, FMCSA anticipates that payment would be made prior to an employer conducting a search or gaining access to information. Under this scenario, nonpayment would simply result in the employer being unable to conduct a search. In this final rule, FMCSA retains the right to revoke Clearinghouse registration for anyone who fails to comply with the applicable rules. However, an employer that had its registration revoked for failure to comply with the Clearinghouse rules would nonetheless have to ensure that its employees were not subject to prohibitions related to drug or alcohol violations. We anticipate that, in order to query or report violations, such employers would need to contact FMCSA’s drug and alcohol program directly, so that program staff could conduct queries or enter violations into the Clearinghouse in a timely manner. The Agency recognizes that these alternative means of querying and reporting are not nearly as efficient as using the Clearinghouse directly and PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 expects that revocation of an employer’s access would occur only when an employer has egregiously violated the Clearinghouse’s rules of use. During the implementation phase, we will continue to explore more efficient means of querying and reporting for employers whose access has been revoked. We expect, however, that the civil and criminal penalties associated with an employer’s failure to lawfully use the Clearinghouse (§§ 382.723(c) and 382.727) will provide, in most instances, an adequate deterrent to its misuse. FMCSA’s regulations governing patterns or practices of safety violations by motor carrier management are specifically limited to violations of safety regulations arising under 49 U.S.C. chapter 311, subchapter III. Authority for the Clearinghouse arises under 49 U.S.C. 31306a, which does not fall within chapter 311, subchapter III. Accordingly, instances of noncompliance with this final rule will not be considered for the purposes of establishing a pattern or practice of safety violations under part 385, subpart K. Authorization To Enter Information Into the Clearinghouse (§ 382.715) Comment. FMCSA proposed to require an employer to designate a C/ TPA in the Clearinghouse before the C/ TPA could enter information on the employer’s behalf. A commenter asked whether this provision also applied to SAPs. Several commenters were confused by the section of the NPRM that proposed to require employers to designate SAPs for employees and requested that FMCSA clarify that employees, not employers, designate SAPs. Response. As proposed, § 382.715 applied only to employer designations of C/TPAs. In the NPRM, FMCSA inadvertently stated that employers must designate SAPs in the Clearinghouse; that was not correct. In accordance with long-standing rules governing the selection of SAPs, the employer must provide the employee with the list of DOT-qualified SAPs and each employee is free to choose his or her own DOT-qualified SAP. (See 49 CFR 40.287, 40.289.) Accordingly, in this final rule, FMCSA amended § 382.715 to make clear that employees must designate SAPs to enter information about their own return-toduty process. FMCSA makes this change to ensure that only the employee’s selected SAP can report information to the Clearinghouse. FMCSA also made conforming changes to § 382.711 to make clear that service agents may E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations submit information on behalf of either an employer or an employee. sradovich on DSK3GMQ082PROD with RULES2 Procedures for Correcting Information in the Database (§ 382.717) FMCSA proposed administrative procedures for correcting errors in a driver’s Clearinghouse record. FMCSA Review of Petitions for Correction Comment. TTD, OOIDA and IBT stated that under the proposed process, it would take too long to resolve errors. TTD requested alternative ways to expedite the decision-making process. OOIDA requested that FMCSA respond to a petition within 14–21 days, depending on the nature of the correction. Yet another commenter requested a 5-day resolution period. CCTA stated that, if resolution of petitions were delayed, employers, MROs, and C/TPAs could face litigation. Another commenter recommended a simple appeals process, but did not include any specifics. An individual asked if it is the responsibility of the driver to update the Clearinghouse when a citation for a DUI in a CMV does not result in a conviction. Another seemed to have misunderstood this section, believing that drivers had only 30 days to submit a petition. Response. In response to these comments, FMCSA decided to amend its proposal. This rule provides for a 14day resolution period when a request for expedited treatment is granted in accordance with § 382.717(e). To be considered for expedited treatment, an inaccurate record, or a record not reported to the Clearinghouse in compliance with this section, must be preventing the petitioner from performing safety-sensitive functions. In addition, the petitioner must provide a complete petition including all documentation supporting his or her request. Failure to include all relevant information will impede the Agency’s ability to resolve the petitioner’s request in a timely manner. The Agency also removed the proposed requirement in § 382.717(a) that petitions for review be submitted within 18 months of the date the allegedly erroneous information was reported to the Clearinghouse. Upon further consideration, we determined that drivers should have the option to request that inaccurate information be corrected for as long as the allegedly erroneous record is retained in the Clearinghouse. Finally, as further discussed below, FMCSA reduced the time in which it will resolve petitions for administrative review and notify the driver of its decision from 90 days, as VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 proposed, to 45 days following the Agency’s receipt of a complete petition. We also reduced the time in which we will complete an administrative review under § 382.717(f) from 60 days, as proposed, to 30 days. Where an employer has reported a citation for DUI in a CMV to the Clearinghouse and that citation did not result in a conviction, the driver is responsible for submitting a request for removal under § 382.717(a)(2)(i). Administrative Protections for Drivers Comment. A commenter requested that the Clearinghouse contain contact information for those reporting information to the Clearinghouse. C.R. England, Foley, and other commenters requested complete, clear procedures for removing erroneous information. Some of those commenters also requested that FMCSA hold those who report erroneous information accountable. Other commenters were concerned with how FMCSA would handle false positives and identity theft. TTD stated that the credibility of the Clearinghouse depends on a fair and expeditious process for correcting errors. C.R. England wanted to ensure that the Clearinghouse would not prevent qualified drivers from working. IBT emphasized the need for accurate, upto-date information. Response. FMCSA believes that holding people who report to the Clearinghouse accountable for the accuracy of their submission is critical to the integrity of the Clearinghouse. When registering to access the Clearinghouse, all parties who have reporting obligations to the Clearinghouse will be required to provide identifying information, including name, address, telephone number and any other information needed to verify the registrant’s identity (§ 382.711). With respect to removing erroneous information, all procedures in part 40 continue to apply to the processing of drug and alcohol tests. A positive test that is reported but subsequently cancelled would not be a prohibition on driving and therefore would be removed from the Clearinghouse. If a positive test is incorrectly associated with a particular driver, regardless of whether the error results from identity theft, mistake, or administrative error, the affected driver would submit a petition under § 382.717 to correct the erroneously reported information. Additional remedies related to the correction or removal of violation reports submitted to the Clearinghouse are discussed below. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 87705 Privacy Act Comment. OOIDA and another commenter requested that FMCSA include Privacy Act procedures in part 382, and one of those commenters requested FCRA procedures allowing an individual to submit a statement disputing or explaining their record. OOIDA stated that the Clearinghouse’s authorizing statute requires FMCSA to comply with certain requirements for the release of information under the Privacy Act and the FCRA. Response. MAP–21 requires that a ‘‘release of information’’ from the Clearinghouse comply with the applicable provisions of the Privacy Act and the FCRA (49 U.S.C. 31306a (d)(1) and (2)). The final rule complies with the ‘‘release of information’’ requirements of the Privacy Act, as defined in 5 U.S.C. 552(a)(b), which generally prohibit the disclosure of records ‘‘except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.’’ As noted above, an employer may not request access to an employee’s Clearinghouse record without prior electronic consent of the driver, and the Agency must receive electronic consent from the driver before releasing a Clearinghouse record to the employer (§ 382.703(b) and (d)). Other Privacy Act procedures to which commenters refer are currently set forth in 49 CFR part 10, ‘‘Maintenance Of and Access to Records Pertaining to Individuals,’’ the DOT-wide rules implementing the Privacy Act. The part 10 regulations include, for example, procedures for individuals to request that their records be corrected (49 CFR 10.41) and to file a concise written statement of disagreement with an agency’s refusal to amend that individual’s record (49 CFR 10.45). Further, we note that the System of Records Notice (SORN), to be issued for public comment following publication of this final rule, will describe the specific means by which the Agency intends to implement the Privacy Act requirements as they pertain to the Clearinghouse, including how individuals can exercise their rights under the Privacy Act. As discussed above, information disseminated through the Clearinghouse is considered ‘‘excluded’’ communications for the purposes of the FCRA. Accordingly, no FCRA procedures are necessary. Challenges to Clearinghouse Data Comment. Under proposed § 382.717(c), petitioners were limited to contesting the accuracy of information E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87706 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations reported to the Clearinghouse and could not challenge the accuracy of positive test results or refusals. CCTA said that FMCSA should permit challenges to the accuracy and correctness of Clearinghouse reports, including refusals. The same commenter requested that FMCSA create a clear dispute resolution process, clarifying what can be challenged through the process. C.R. England requested that FMCSA clearly define the rights of drivers with respect to correcting errors on their records, including placing the burden of proof on the reporting party. Finally, two commenters objected to removing a report of a citation for DUI in a CMV, even if that citation did not result in a conviction. Response. Nothing in this final rule creates a new right under part 40 to challenge the substantive outcome of a drug or alcohol test or the accuracy of a driver’s refusal to test at a collection site or a refusal to test when notified by an employer to submit to testing. Individuals wishing to challenge the accuracy of information in their Clearinghouse record that is not otherwise addressed under § 382.717 may follow the Privacy Act procedures set forth in 49 CFR part 10, subpart E (Correction of Records). Section 382.717 does, however, contain data correction procedures to ensure accuracy in reporting. For example, a driver may use the procedures set forth in this rule to challenge an incorrect name or CDL number, or to remove duplicate test results (that is, a single test result reported more than once to the Clearinghouse), but may not challenge the outcome of a test. To make it clearer that the procedures in § 382.717 pertain primarily to the correction of data that is erroneously reported in the Clearinghouse record (except as otherwise provided in § 382.717(a)(2)) and not for substantive challenges to drug and alcohol violation determinations, we re-designated paragraph (c) as paragraph (a) in this section. FMCSA will consider each correction request on a case-by-case basis and assess the validity of information presented in determining whether correction is warranted. FMCSA notes the importance of the difference between a citation for DUI in a CMV and a conviction. Although a driver must immediately discontinue safety-sensitive functions after being cited for a DUI in a CMV, he or she may resume safety-sensitive functions without completing the return-to-duty process if that citation does not result in a conviction. Prohibiting a driver from performing safety-sensitive functions VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 when a citation does not result in a conviction contravenes fundamental principles of fairness. Using the expedited procedures in § 382.717, the driver is responsible for requesting that FMCSA remove from the Clearinghouse an employer’s report related to a citation that did not result in a conviction. Comment. OOIDA recommended that if a driver submits a ‘‘substantive’’ request for correction with complete supporting documentation, the challenged information should not be released in response to an employer query until a decision has been made on the request for correction. Response. As explained above, resolution of a challenge to the substance of a drug or alcohol violation—as opposed to simple data correction or the employer’s failure to comply with reporting requirements under § 382.705(b)(3) and (5)—is outside the scope of this rule. Accordingly, FMCSA will not process such a request under § 382.717. We note that the withholding of violation reports pending resolution of a request to challenge the substance of a violation would be inconsistent with DOT-wide drug and alcohol compliance rules. Section 40.331 of those rules requires an employer to release information with proper consent and does not provide an exception for information that a driver is challenging as inaccurate. That rule is applicable DOT-wide and FMCSA does not have the authority to change that provision. Moreover, it would not be in the interest of safety to withhold violation reports during the review period. FMCSA believes that to do so would encourage drivers to file frivolous or baseless challenges to accurate reports solely for the purpose of extending their ability to continue performing safetysensitive functions. Adopting the commenter’s suggestion would thus delay necessary rehabilitation and keep drug and alcohol abusers on the road. Neither of these outcomes serves the best interests of the driver or the motoring public. Notification to Employers of Corrections Comment. One commenter suggested that, after correcting errors, FMCSA should require individuals to alert employers that queried the driver’s record that inaccurate data has been corrected. Response. FMCSA agrees that alerting employers that they have viewed inaccurate information about a driver significantly contributes to the accuracy and fairness of the Clearinghouse. Accordingly, this final rule includes new § 382.717(g), requiring that the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 Clearinghouse update employers when they have viewed information that was subsequently corrected or removed under § 382.717(a)(2) or in accordance with the Privacy Act. Availability and Removal of Information (§ 382.719) Comment. FMCSA proposed that information about a violation would remain available to employers for a term of either 3 or 5 years, or until the driver completed the return-to-duty process, whichever is longer. Many commenters were in favor of a 5-year term. Some of these commenters recommended 5 years because they were concerned that the record would otherwise be removed before the driver completed all followup tests. Others favored 5 years because it aligns with part 382 record keeping requirements. The Institute of Makers of Explosives stated that it would support an even longer retention period. Another commenter supported a 10-year retention period. On the other hand, a number of individual commenters were in favor of a 3-year term. Yet others were in favor of removing information as soon as the driver completed the return-to-duty process. Some commenters suggested that information be retained for 3 years from the driver’s completion of the return-to-duty process. Another commenter suggested that information be made available for at least 5 years after the driver’s return-to-duty date. Response. After carefully considering FMCSA’s statutory authority and the safety implications of this proposed requirement, the Agency concluded that 5 years is the appropriate document retention period. We explain the rationale for our interpretation below. The basis for a 3-year retention period was 49 U.S.C. 31306a(f)(3), which requires prospective employers to use the Clearinghouse to determine whether any employment prohibitions exist on new hires and prohibits employers from hiring anyone to drive a CMV if that person has had a drug or alcohol violation during the preceding 3 years. This requirement mirrors current FMCSA regulations that also direct employers to investigate prospective hires’ compliance with DOT drug and alcohol programs during the preceding 3 years. (See 49 CFR 391.23(e); see also 49 CFR 40.25, 382.413.) FMCSA interprets section 31306a(f)(3) to codify the investigation requirement in § 391.23(e) and to mandate that employers use the Clearinghouse to conduct the investigation. We implement that statutory requirement by amending § 391.23(e) to state explicitly that conducting a pre-employment E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations search of the Clearinghouse, as required by § 382.701, satisfies the employer’s obligation to investigate a prospective employee’s drug and alcohol compliance history (with limited exceptions as previously noted). We do not interpret anything in section 31306a(f)(3) to require FMCSA to retire these records after 3 years. Nor do we interpret that provision to prohibit FMCSA from releasing information after 3 years have passed. In fact, nothing in this section directs FMCSA to take any action with respect to records retention. To the contrary, this section simply places an obligation on employers to conduct the background investigation already required in § 391.23 using the Clearinghouse. Moreover, nothing in either FMCSA’s existing regulations or section 31306a(f)(3) prohibits employers from requesting or obtaining drug and alcohol compliance histories going back more than 3 years. In FMCSA’s judgment, the 3-year pre-employment look—back is intended to be the regulatory (and now statutory) minimum. Employers have an interest in obtaining information going back more than 3 years because a driver’s drug or alcohol violation does not necessarily expire after 3 years; that violation continues to prohibit that driver from performing safety-sensitive functions until he or she completes the return-to-duty process. As long as the driver’s consent to release records is not limited to a 3-year look back, employers can request and obtain information about drug and alcohol compliance going back at least 5 years because, under § 382.401, employers are required to keep records of drivers’ drug and alcohol violations for a minimum of 5 years. Whether and to what extent employers seek records going back further than 3 years is a decision that individual employers make based on their particular business needs. For example, a company’s safety or risk management policies may dictate a more extensive background investigation than the regulatory minimum. How an employer chooses to balance its hiring needs, risk management, and safety policies is a matter for private decision making. Nothing in this final rule would change this practice. The basis for the 5-year retention period is section 31306a(g)(6), titled ‘‘retention of records,’’ which directs the Agency to hold records of driver violations in the Clearinghouse for 5 years, except where a driver has failed to complete the return-to-duty process. Assuming a driver completes the returnto-duty process within 5 years, the statute directs the Agency to archive the VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 records in a separate location. We interpret this section to require the Agency to make all records of driver violations available to authorized employers for 5 years or until the driver completes the return-to-duty process, whichever is longer. After that, the Agency must move them to the archives. There are fundamental differences between the 3-year and 5-year look— back provisions in section 31306a that direct us to require a 5-year retention period in this final rule. For example, while the 3-year look back in section 31306a(f)(3) focuses on the scope of an employer’s pre-employment background investigation, the 5-year look back in section 31306a(g)(6) focuses on the Agency’s recordkeeping requirements. As discussed above, FMCSA interprets section 31306a(f)(3) to codify the existing drug and alcohol investigation requirements and to direct employers to conduct those investigations using the Clearinghouse. We interpret section 31306a(g)(6), on the other hand, to be focused exclusively on the matter of how long FMCSA should make records available to employers and what to do with those records after they should no longer be made available. Comparing the text of sections 31306a(f)(3) and (g)(6) provides additional support for this interpretation. Section 31306a(f)(3) provides no recordkeeping guidance at all; it does not address what happens if a prospective hire has an unresolved drug or alcohol violation dating back more than 3 years, or what should happen to the records after the time for release has expired. Nor does it make any mention of the look-back period for annual queries; it is focused exclusively on how an employer should conduct a pre-employment background investigation. Section 31306a(g)(6), on the other hand, addresses all of these other contingencies and is, in fact, titled ‘‘retention of records.’’ Based on all of the considerations discussed above, we interpret MAP–21 to mandate a 5-year record retention period. But, even in the face of statutory ambiguity, we believe that safety interests dictate that the 5-year retention period is appropriate. Overwhelmingly, employers who submitted comments to the docket requested that they have access to 5 years’ worth of drug and alcohol compliance histories so that they could make informed decisions about the risk they assume when they hire drivers. Moreover, FMCSA believes the fact that a driver’s compliance history will follow him or her for a minimum of 5 years will act as a significant deterrent to illegal drug and alcohol use. As we continue to raise the PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 87707 severity of the consequences for unsafe conduct behind the wheel, drivers who wish to be productive participants in the industry should modify their behavior accordingly. Comment. FMCSA proposed that information on a citation for a DUI in a CMV would be removed within 2 days of FMCSA granting a request for a determination that the citation did not result in a conviction. A commenter requested that this be shortened to 1 day. Response. FMCSA believes that 2 days are required to verify the accuracy of the documentation supporting the request. Accordingly, this provision remains as proposed. Comment. Cahill-Swift requested that the date FMCSA uses to determine whether sufficient time has passed to remove a violation from the Clearinghouse be the date the test was administered instead of the date of the violation determination. The commenter stated that, generally, part 40 uses the test date as the point of reference for future action and requested that FMCSA modify proposed § 382.719(a)(4) to conform. Response. FMCSA concluded that the date a record is submitted to the Clearinghouse is the violation determination date, which will be used to calculate the date information will be removed from the Clearinghouse. This approach is consistent with MAP–21 requirements. Fees (§ 382.721) Comment. FMCSA proposed to collect a reasonable fee from employers querying the Clearinghouse, but to grant drivers access to their own records without assessing a fee. Most commenters were concerned about keeping the fees low or eliminating them altogether. At least one commenter asked the Agency to identify what the actual fees will be. Commenters such as First Advantage, ABA, C.R. England, ATA and several others requested that FMCSA establish subscription-based fees. ATA, Florida Trucking Association and other commenters stated that FMCSA had previously expressed preference for a subscription-based fee structure. SAPAA requested that there be only a one-time registration fee. NTPC, Ohio Trucking Association, Cahill-Swift, Driver IQ/CARCO, J.B. Hunt, and American Moving and Storage Association requested that FMCSA permit employers to choose between subscription- and transactionbased fees. One commenter suggested that FMCSA use the PSP program as a model. ATA suggested that it not be used as a model, stating that the E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87708 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations contractor would earn excessive and unreasonable profits based on the PSP fee structure. ATA and others stated that they did not want the fees to greatly exceed the contractor’s costs to manage the Clearinghouse. Minnesota Trucking Association suggested that subscriptionbased fees should be limited to $10–$20 per employer. SAPAA asked for details regarding the procedure for paying the fees. OOIDA requested that the cost for the limited query be much lower than the cost for the full query. An individual requested that the fees be set at a more ‘‘reasonable’’ level. Response. FMCSA proposed § 382.721 to establish its authority to collect fees from entities required to query the Clearinghouse; however, FMCSA does not set the specific dollar amounts for user fees as a part of this rulemaking. We note, however, that under § 382.721 no driver will be required to pay a fee to access his or her own records in the Clearinghouse. FMCSA will contract with a thirdparty to operate and maintain the Clearinghouse. Accordingly, Clearinghouse user fees will be determined through that competitive bidding process. One of the criteria for selecting a contractor to design and operate the Clearinghouse will be the ability to provide reliable, accurate, and cost-effective service to stakeholders. In its request for proposal FMCSA will require batch processing of data, subscription fees and pre-population of recurring data. This should minimize transaction costs relative to the time per test, per driver and per entity costing methodology used to estimate the costs of queries. The Regulatory Impact Analysis (RIA) acknowledges that annual queries to the Clearinghouse impose costs on employers not present under the current regulations. The annual query is a statutory requirement pursuant to 49 U.S.C. 31306a(f)(4). The RIA demonstrates that the rule produces net benefits based on a conservative estimate of the incremental cost of annual queries calculated on a per transaction basis (e.g., cost per test, cost per driver, etc.). For purpose of the RIA, the Agency conceptualized fees for limited and full queries and preemployment queries based on its experience with Pre-employment Screening Program (PSP) Database. The fee for requesting a driver’s record through PSP is $10.3 Employers’ use of the PSP to screen prospective employees is voluntary. The Clearinghouse is a mandatory program 3 https://www.psp.fmcsa.dot.gov/psp/ default.aspx. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 with an expected number of transactions well in excess of the number of PSP voluntary transactions. As a result, FMCSA believes Clearinghouse fixed costs will be spread over a larger volume of transactions than the volume of PSP transactions. These costs include, but are not limited to, hardware, software, labor costs for systems analysts and contractor staff available to assist Clearinghouse users. Unauthorized Access or Use Prohibited (Section 382.723) Comment. FMCSA proposed rules that would prohibit unauthorized access to or misuse of information obtained from the Clearinghouse. One commenter was generally concerned that employers would misuse Clearinghouse information. TTD was concerned that prospective employers would query the Clearinghouse for information about a driver even if that driver were not applying for a position that mandated a Clearinghouse check. The same commenter requested that FMCSA include safeguards to ensure that people requesting information are legitimate employers and that the information goes to them directly. Another commenter recommended that FMCSA anonymize information before using it for research purposes. Response. FMCSA takes its mandate to secure sensitive information and protect driver privacy very seriously. Accordingly, this final rule includes provisions that prohibit the release of information without affirmative driver consent and audit functions to verify compliance with these rules. Anyone who violates those provisions is subject to civil and criminal penalties. FMCSA appreciates all public comments on how to address driver privacy protections and will take all of them into consideration as it moves into the implementation process. Access by State Licensing Authorities (§ 382.725) Comment. FMCSA proposed to grant each SDLA access to the Clearinghouse to determine whether an applicant for a CDL is qualified to operate a CMV. ATA, J.B. Hunt and other commenters suggested that SDLAs be required to check the Clearinghouse before issuing a CDL. ATA suggested that SDLAs be required to check the Clearinghouse annually. ATA and the Florida Trucking Association recommended that SDLAs be required to revoke a CDL when violations are reported to the Clearinghouse. Another commenter pointed out that one provision of MAP– 21 makes SDLA access to the Clearinghouse mandatory while another PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 provision makes it permissive and asked FMCSA to reconcile this inconsistency. The same commenter also requested guidance on what an SDLA is supposed to do with Clearinghouse information. A number of commenters recommended that the Clearinghouse automatically notify SDLAs when there are changes to a driver’s record. Schneider suggested that law enforcement have access to the Clearinghouse. A commenter suggested that FMCSA enter into agreements to obtain DUI information from SDLAs. Driver Check asked whether Canadian licensing agencies would have access to the Clearinghouse. Response. After careful consideration of these comments, FMCSA decided to require that SDLAs access Clearinghouse information prior to issuing CDLs. While 49 U.S.C. 31306a(h)(2) requires that FMCSA only provide SDLAs with Clearinghouse access, section 31311(a)(24) requires that SDLAs use that access prior to issuing or renewing a CDL. Accordingly, FMCSA amended proposed § 382.725(a) to require SDLAs to access a driver’s information in the Clearinghouse in order to determine whether the driver is qualified to operate a CMV prior to issuing, renewing, upgrading, or transferring a CDL. FMCSA also made conforming changes in existing § 383.73 to implement section 31311(a)(24) and make clear that Clearinghouse access is mandatory prior to the SDLA taking action on a CDL. To ease the burden on States, FMCSA intends to integrate this function into the CDLIS pointer system, which connects the records of CDL holders in all 50 States and the District of Columbia. FMCSA will work closely with AAMVA, which administers CDLIS, to provide for the most efficient and least burdensome method of granting SDLAs access to the Clearinghouse. The information in the Clearinghouse may have a direct impact on the ability of the individual to hold or obtain a CDL. If information available to an SDLA shows that a CDL applicant is not qualified to operate a CMV, that driver should not be issued a CDL. FMCSA will provide more detailed guidance on this subject in conjunction with its implementation of SDLA access to the Clearinghouse. At this time, FMCSA will not pursue agreements with law enforcement agencies to obtain information on DUI convictions. That information is currently available from other sources and need not be duplicated in the Clearinghouse. Further, because the Clearinghouse is limited to drug and alcohol violations under parts 40 and 382, inclusion of other disqualifying E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations offenses under part 383 is not appropriate. Finally, Canadian and Mexican licensing agencies will not have access to the Clearinghouse because Congress authorized access for only the SDLAs in the 50 States and the District of Columbia (49 U.S.C. 31306a(h)(2)). However, in accordance with its authority under section 31306a(b)(5), FMCSA intends to explore alternative ways in which information about drug and alcohol violations for CMV drivers licensed in Canada and Mexico can be made available to their respective licensing authorities and to U.S. law enforcement, including using the Foreign Convictions and Withdrawal Database under § 384.209(a)(2). sradovich on DSK3GMQ082PROD with RULES2 Penalties (§ 382.727) Comment. FMCSA proposed that employers, employees, and service agents be subject to penalties for violating new part 382, subpart G. An individual commenter asked how MROs would be held accountable for reporting positive tests. Another commenter said this provision should be worded the same as § 382.507, with the addition of the word ‘‘alleged.’’ Southern Company said that alleged violators should be issued a notice of claim or violation allowing the alleged violator to contest the charge. That commenter also requested that penalties be reserved for egregious violations. WPCI asked what the penalty would be for an employer that does not comply with the requirements. Response. Any employer, employee, or service agent, including an MRO, that does not comply with his or her responsibilities under part 382, subpart G, is subject to civil or criminal penalties under 49 U.S.C. 521(b)(2)(C). The employer, employee, or service agent may be issued a notice of claim or violation and afforded the opportunity to contest those charges in accordance with existing procedures in 49 CFR part 386. The type and severity of the penalty would depend on the specific circumstances surrounding the violation. Regulatory Impact Analysis Comment. In the RIA, FMCSA provided an explanation of the costs and benefits associated with the proposed rule. A number of commenters expressed concern about the cost to employers and the burden those costs would place on the motor carrier industry. Two commenters noted that the additional costs incurred by laboratories, MROs and CTPAs will be passed on to the employer, thereby further increasing the cost to employers. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Response. FMCSA recognizes that various entities interacting with the Clearinghouse will incur new or incremental costs of conducting business under the rule. FMCSA estimates these costs for the first entity that incurs the cost, as opposed to the entity that is ultimately responsible for paying for the cost. The RIA estimates the societal benefits, not the distributional benefits resulting from the avoidance of crashes. Motor carriers will benefit from this rule in a variety of ways. For example, the Clearinghouse will automate the pre-employment drug and alcohol background investigation process, which will save motor carriers time and conserve resources. In addition, closing the loopholes that allow job-hoppers to evade the consequences of drug and alcohol violations will increase employers’ confidence in the preemployment screening process, allowing them to more easily identify drivers who are not eligible to drive. While these are not the only benefits that will accrue to employers, they are some of the more tangible immediate benefits that will offset the costs of compliance. Comment. One commenter also noted that many benefits discussed in the RIA are only speculative while the costs are real and extremely burdensome for the passenger motor carrier industry, which is largely made up of small businesses. Response. The Agency disagrees that the benefits discussed in the RIA are speculative. As discussed above, motor carriers will see real benefits in terms of fewer resources being required to conduct investigations related to drivers’ drug and alcohol violations, an increase in the quality of drivers hired, and a reduction in the liability costs associated with unsafe drivers. Comment. A commenter said that the costs associated with this proposal, combined with the costs associated with a recent NPRM concerning vehicle leasing regulations, impose significant administrative costs on passenger motor carriers, and requests the Agency consider less burdensome alternatives. Response. FMCSA is sensitive to the cumulative costs of industry compliance with the Agency’s regulations. In responding to comments received in response to the NPRM, FMCSA considered the burden placed on stakeholders and made changes to alleviate those burdens where possible. But the Clearinghouse and many of its individual components are mandated by statute; the Agency’s ability to find less burdensome alternatives is constrained by these limitations. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 87709 Comment. Two commenters said that FMCSA’s cost estimate did not include the cost of training for service agents. A commenter estimated that implementing program changes for service agents may require up to 800 hours over a 3 to 5 month period, and a minimum of a year may be required for the effective implementation of the final program data requirements to allow for advanced planning and budgeting. Response. FMCSA included the cost of training for service agents in the Final RIA Section 6.6, titled ‘‘Registration, Rule Familiarization, and Verification’’, which identifies costs associated with familiarizing service agents with use of the Clearinghouse. As discussed above, there will be a 3-year compliance period, which we believe will give stakeholders adequate time to conduct necessary training and otherwise prepare for implementation of this final rule. Comment. A commenter said that the Agency also did not consider the full impact of entering data and creating a new laboratory report and the commenter estimated that the additional data entry would require an additional 15 seconds per specimen keyed. Some commenters also noted that implementing a new CCF containing the additional information that would be required under this proposal could result in significant cost to laboratories and those responsible for manufacturing and shipping forms. These commenters estimated that system modifications would require 750–910 hours per DHHS-certified laboratory conducting testing for FMCSA regulated employers, and at least 8 to 10 months for development, testing, implementation, and training. Response. FMCSA removed the laboratory reporting requirement from the final rule; accordingly, there are no longer any costs associated with this provision. Comment. A commenter challenged FMCSA’s estimate of 20 minutes for registration and rule familiarization, asserting that first-time registration alone will take more than 10 minutes. Further, the commenter asserted the Agency did not account for the annual costs of verifying information entered in the database. Response. The Agency does not agree that 20 minutes underestimates the time required for registration and rule familiarization. Much of the registration process will be automated and only a minimum amount of information is required to complete registration. All the information necessary for registration—name, address, phone number, authorized employees, USDOT E:\FR\FM\05DER2.SGM 05DER2 87710 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 Number, and professional qualifications—is otherwise required under FMCSA or DOT rules and should, therefore, be readily available. Moreover, FMCSA intends that the Clearinghouse will be designed to be interactive and user-friendly to maximize efficiencies. Finally, the cost of annual verification of authorized users was accounted for in the regulatory analysis. Comment. A commenter said that FMCSA underestimated the number of drivers subject to the rule by 1 million and provided an estimate of 5,240,740 drivers (based on commenter’s own data and available data from other sources, such as laboratory reports submitted to DOT). Response. The commenter estimated the number of FMCSA drivers as the difference between the total number of tests reported by all modes, including FMCSA,4 to DOT in 2012, pursuant to part 40, Appendix C and the commenters’ estimates of number random and pre-employment tests at a 25 percent testing rate applied to each mode’s (other than FMCSA) estimate of the total number of safety-sensitive employees. The number of blind tests and ‘‘all other tests’’ are assumed to be 1 percent and 2 percent of safetysensitive employees, respectively are also subtracted from the total number of tests. There are a number of flaws in this methodology. The commenter equates the number of employees to the number of tests. This is an apple to oranges comparison. The commenter ignores that drivers may change employers during the year, or are ‘‘multipleemployer drivers’’ as defined in 49 CFR 390.5 and as a result may be tested multiple times per year. The analysis estimates pre-employment tests as if they are random, by applying a 25 percent random testing rate to each modes total number of safety-sensitive employees. FMCSA relies on the statistics it publishes to determine the number of drivers affected by this rule.5 Although the number of drivers in operation at any given time is subject to change due to a variety of reasons, FMCSA believes this is the best estimate of the number of drivers currently subject to FMCSA’s drug and alcohol regulations. In the Regulatory Impact Analysis (RIA), FMCSA used its estimate of the number 4 The other modes are Pipeline and Hazardous Materials and Safety Administration, Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration and the U.S. Coast Guard. 5 http://ntl.bts.gov/lib/54000/54800/54841/2015 Pocket-Guide-March-30-2015-ForWebPublishing508c.pdf. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 of CDL-holder to the cost of annual queries. All other costs and benefits are estimated using the results of FMCSA’s Annual Drug and Alcohol Surveys. Comment. Several commenters stated that the cost of the proposed rule was overstated in the RIA. Commenters said that costs associated with completing the return-to-duty process should not be attributed to the Clearinghouse, claiming that they are attributed to the return-to-duty process under 49 CFR part 40, not part 382. Response. The Agency made the best estimate of costs based on available data, but concluded that it was better to err on the side of over-estimating rather than under-estimating costs. That said, we disagree that the return-to-duty costs should not be included in the total cost of the rule. Although the return-to-duty requirement arises out of the DOT-wide drug and alcohol regulations in 49 CFR part 40, the costs of completing the process are attributable to each DOT mode’s individual drug and alcohol program. One effect of the Clearinghouse is that drivers will improve their compliance with the return-to-duty requirements. Instead of job-hopping, we expect that drivers with violations will either complete the return-to-duty process or exit the industry. Accordingly, we take into account the increased costs—and benefits—of this improved compliance. Comment. One commenter suggested the estimated cost of $2.50 for limited annual queries is too high. Response. FMCSA agrees that the query cost estimates in the RIA were conservatively high. As discussed above, the dollar amount for the fees will ultimately be determined in connection with a competitive bidding process. The Agency expects that the per-transaction cost, whether structured on a per query or subscription basis, will be significantly lower than estimated in the RIA. In the absence of reliable data, we chose to base our estimate on the only comparable information available: The PSP user fees. We recognize, as commenters have stated, that the volume of Clearinghouse transactions will greatly exceed the number of PSP transactions, creating efficiencies that should result in significantly lower user costs. Comment. Another commenter questioned why a query would take 10 minutes, and suggested the Agency could reduce the burden by allowing large carriers to submit a batch list of drivers. Response. We agree that there is the potential for further cost savings through batch processing of queries. Among the options the Agency plans to PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 explore is providing employers the opportunity to conduct annual queries in batches. Nothing in the rule would foreclose that possibility. FMCSA will provide information to stakeholders on Clearinghouse functionality closer to the rule’s compliance date. Comment. A commenter stated that the labor rate and fringe rates used in Table 15 and subsequent tables in the RIA are not appropriate. According to the commenter, more than 80 percent of carriers have one to five power units. These carriers do not have office staff; a driver’s wage should be used for these carriers. The commenter questioned whether the assumption in the RIA that larger carriers will assign a sensitive task to a very low level staff person is reasonable. In addition, a commenter contended that the fringe rate used in the RIA is too high because the Bureau of Labor Statistics (BLS) fringe rate includes costs (leave, overtime, etc.) that BLS also includes in its wage rates, which are based on gross pay. The commenter alleged that combining the two results in double counting, and many drivers do not receive many of the fringe benefits. Response. We disagree that the labor rates are inappropriate for carriers operating five or fewer power units. In the Agency’s experience, many small motor carriers use C/TPAs, which employ office staff to administer drug and alcohol testing programs. We anticipate that C/TPAs will continue to administer the programs, including Clearinghouse requirements. In addition, we believe that the appropriate wage rates were used for developing query and test reporting transaction costs. The wage rate used to calculate the cost incurred by SAPs to report to the Clearinghouse results of return-to-duty progress is the BLS estimate of the hourly wage for Occupational and Safety Workers. The BLS hourly wage for heavy truck drivers was used to estimate driver consent costs. These rates are directly applicable to the individuals responsible for performing these tasks. The remaining cost estimates for registration, familiarization with the rule, preemployment queries, designation of C/ TPAs, and reporting of test results are based on the BLS wage rate for Bookkeeping, Accounting and Audit Clerks. The Agency has no information indicating that administrative functions performed by employees of C/TPAs, MROs, SAPs, and other service agents require a higher level sensitivity for personal information. Medical service and health care providers performing similar functions in other industries E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 have recordkeeping and reporting requirements comparable to the testing and reporting requirements of this rule. The commenter did not offer any information in support of the proposition that individuals responsible for administrative tasks associated with the rule fall under a BLS occupation other than for Bookkeeping, Accounting and Audit Clerks. Nevertheless, in the final Regulatory Impact Analysis, a wage rate of $33.27 per hour was used to estimate the cost for SAPs to report driver information to the Clearinghouse following an initial assessment. It is the median wage rate estimated by the BLS for Occupational Health and Safety Specialists.6 This occupational description is more closely related to health care professionals whose responsibilities include reporting highly sensitive personal medical information. Finally, the hourly wage rate and fringe benefits rate do not result in double counting of employment costs. Fringe benefits include paid leave, supplemental pay, insurance (health and life), retirement and savings, and legally required benefits (i.e., Social Security and Medicare). Comment. A commenter said the estimated benefits of the proposed rule were understated in the RIA. While the RIA mentioned benefits to drivers such as ‘‘improved health, quality of life and increased life expectancy,’’ these benefits were not included in the estimate. The commenter noted other benefits resulting from the rulemaking were not mentioned, including decreased drug and alcohol abuse by drivers, increased compliance with the regulations by employers, and the overall program benefits associated with improved drug and alcohol testing data. The commenter suggested expanding the discussion of non-quantifiable benefits. Response. We agree with the commenter that there are residual benefits from the proposed rule. However, they are not ‘‘direct’’ primary benefits, but rather secondary or tertiary ones. Furthermore, since they are largely unquantifiable, such benefits are mentioned, but do not warrant extensive analysis in the RIA. Changes From the Notice of Proposed Rulemaking This final rule makes the following changes to the NPRM in response to comments. In § 382.107, we removed the proposed definition of ‘‘positive alcohol 6 Bureau of Labor Statistics, ‘‘Occupational Employment and Wages,’’ May 2014, http:// www.bls.gov/oes/current/oes299011.htm#ind. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 test.’’ We eliminated proposed § 382.404, which would have required laboratories to report summary statistics on drug tests. As a result of that change, we will not collect employers’ USDOT Numbers on the ATF and CCF and, accordingly, removed those proposed requirements from § 382.123. Section 382.705 now requires that employers report all violations of FMCSA’s drug and alcohol testing program that are identified in part 382, subpart B, including violations based on any type of actual knowledge. We updated the text in other sections of the final rule to reflect these changes. In § 382.413, we extended the drug and alcohol background investigation requirement to cover the previous 3 years, consistent with the requirement in § 391.23. In both §§ 382.413 and 391.23, we added provisions that require employers to query the Clearinghouse in lieu of conducting the background investigations required under §§ 40.25 and 391.23, as the query satisfies these requirements for employers subject to § 382.701(a), with specified exceptions. We added language to § 382.415 to make it clear that a driver need not report a violation to the employer that administered the test. In § 382.701(a) and (b), we added language to make it more clear which type of query, full or limited, an employer is required to conduct, as well as a clearer explanation of the difference between full and limited queries. In paragraph (c) of that section we extended the employer notification period from 7 to 30 days after a Clearinghouse query. In paragraph (e), we clarified that, 3 years after the compliance date of this final rule, an employer who maintains a valid registration on the Clearinghouse system meets the recordkeeping requirement. In § 382.705(a), we changed an MRO’s reporting period to 2 business days. In paragraph (b), we changed the employer’s reporting period to the close of the third business day. We added language distinguishing between the types of refusals employers and MROs must report. We also added the requirement that employers report all drug and alcohol violations based on an employer’s actual knowledge and established evidentiary requirements for those reports. New paragraph (b)(3) identifies documentation requirements for the reporting of ‘‘failure to appear’’ test refusals. New paragraph (b)(6) requires owner-operators who employ themselves as drivers to designate a C/ TPA to comply with all employer related reporting requirements with respect to the individual’s drug and PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 87711 alcohol use. We provided new language for paragraph (c) that makes clear that C/TPAs are subject to the reporting requirements of the employers on whose behalf they report. Paragraph (c) also makes clear that the employer remains responsible for compliance regardless of whether it uses a C/TPA. We simplified the language in the introductory paragraph of paragraph (d) and amended paragraph (d)(2) to make clear that a SAP has until the close of the following business day to report his or her required information to the Clearinghouse. In paragraph (e), we expanded the responsibility for reporting information to the Clearinghouse truthfully and accurately by prohibiting anyone from reporting information he or she should know is false or inaccurate. In § 382.711(b), we added the requirement that an employer update its service agent designation within 10 days of making a change. In paragraph (d), we extended the rules governing C/TPA registration to all service agents. We updated the text throughout the final rule to conform to this change. In § 382.715, we updated the language to make clear that an employer must authorize a C/TPA or other service agent before they can enter any information into the Clearinghouse on the employer’s behalf. In response to comments, FMCSA added paragraph (b) to make clear that it is the employee, not the employer, who designates a SAP to enter information about the employee. We made changes to the procedures in § 382.717 for correcting information in the Clearinghouse. Any request for correction must be addressed to FMCSA’s Drug and Alcohol Program Manager and must include the words ‘‘Administrative Review of Drug and Alcohol Clearinghouse Decision.’’ We shortened FMCSA’s period for expedited treatment of a request for data correction from 30 days to 14 days and added a provision that requires the Agency to notify employers that previously accessed information was subsequently corrected or removed. We re-ordered the paragraphs, so that paragraph (a) clearly states that this section may only be used for data correction, with three exceptions related to a DUI citation that did not result in a conviction and reporting violations based on an employer’s actual knowledge and a driver’s refusal to appear for a test. In § 382.725, we clarified that an SDLA’s access to the Clearinghouse is solely for the purpose of determining whether the driver is qualified to operate a CMV. Finally, we amended part 383 to implement the statutory E:\FR\FM\05DER2.SGM 05DER2 87712 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations requirement that SDLAs query the Clearinghouse in connection with the issuance, upgrade, transfer, or renewal of a CDL. In § 383.73, we made changes to reflect the new requirement that SDLAs check the Clearinghouse before issuing, renewing, transferring or upgrading a CDL. In § 391.23, we made changes to require employers subject to § 382.701(a) to use the Clearinghouse to conduct drug and alcohol background investigations. VI. Section-by-Section Explanation of Changes From the Notice of Proposed Rulemaking FMCSA amends parts 382, 383, 384, and 391 in the following ways. A. Part 382 Section 382.103 In § 382.103, ‘‘Applicability,’’ this final rule makes clear that the requirements of part 382 apply to service agents; otherwise this section remains as proposed. Section 382.107 In § 382.107, this final rule includes definitions of ‘‘Clearinghouse’’ and ‘‘Negative return-to-duty test,’’ which remain as proposed. ‘‘Clearinghouse’’ means the database implemented by this final rule that contains records of drug and alcohol program violations. A ‘‘negative return-to-duty test’’ is a negative drug test or an alcohol test showing an alcohol concentration of less than 0.02. In response to comments, FMCSA removed the definition of ‘‘positive alcohol test’’ for the reasons explained in this final rule’s response to comments. sradovich on DSK3GMQ082PROD with RULES2 Section 382.123 The Agency proposed to amend this section to require anyone filling out an ATF or CCF to record the employee’s CDL number and State of issuance on the form. That requirement remains as proposed. FMCSA also proposed to require that the person filling out the form record the USDOT Number or EIN of the employer requesting the test. FMCSA requested that information so that laboratories could produce annual reports summarizing drug testing activity for specific employers. As discussed in the response to comments on this matter, the Agency eliminated the annual summary requirement. Without the annual summary requirement, it is not necessary to record USDOT Numbers or EINs on the ATF or CCF. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Section 382.217 FMCSA proposed a new § 382.217 that would prohibit an employer from allowing a driver to operate a CMV if the Clearinghouse has a record that shows that the driver has not successfully completed the return-toduty process required by 49 CFR 40.305. The core function of this section remains as proposed, with several changes to conform to updates in other sections of the rule. The first change removes reference to a ‘‘positive alcohol test’’ and replaces it with the specific alcohol test result that constitutes a violation (0.04 BAC or higher). The remaining several changes update § 382.217 to prohibit an employer from allowing a driver to operate a CMV if the Clearinghouse shows any violation of part 382, subpart B, including violations based on actual knowledge of drug or alcohol use. This conforms to changes in § 382.701, discussed in the relevant response to comments section of this rule. Section 382.401 Section 382.401, as proposed, was intended to require employers to keep records of all reportable drug and alcohol violations for a minimum of 5 years. As discussed in the response to comments on this issue, the proposed changes caused some confusion. Accordingly, this final rule makes clear that employers are required to keep records of all employee drug and alcohol violations for a minimum of 5 years. Section 382.405 The changes to § 382.405 remain as proposed. Section 382.405(d) requires service agents who maintain records for an employer to make copies of all DOT drug and alcohol test results available to the Secretary, any DOT agency, or any State or local officials with regulatory authority over the employer. Paragraph (e) authorizes FMCSA to provide the NTSB access to a CDL driver’s records in the Clearinghouse when that driver is involved in a crash under investigation by the NTSB and requires employers to disclose information related to the administration of post-accident testing following the crash under investigation. Section 382.409 The changes to § 382.409 remain as proposed. The changes add the Clearinghouse to the list of entities to which an MRO or C/TPA is authorized to release a driver’s drug test results. They also amend the title of § 382.409 to add the words ‘‘or consortium/third party administrator’’ so that it reads ‘‘Medical review officer or consortium/ PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 third party administrator record retention for controlled substances’’ to reflect more accurately the contents of the section. Section 382.413 In response to comments, this final rule includes changes to § 382.413. That section previously required employers to request drug and alcohol testing information from an employee’s employers during the preceding 2 years. First, we changed the scope of § 382.413 to cover drug and alcohol testing information during the preceding 3 years. This change reconciles § 382.413 with § 391.23(e), which currently requires employers to gather information going back 3 years. Second, § 382.413 now provides that an employer who queries the Clearinghouse does not have to make an additional request to previous FMCSAregulated employers for this information once the Clearinghouse has been in effect for 3 years. In other words, querying the Clearinghouse will satisfy the § 382.413 background investigation requirement—but only with respect to FMCSA-regulated employers. Employers must continue to request information from previous employers if the employee was subject to drug and alcohol testing under an employer regulated by one of the other DOT modes. For example, an FMCSA-regulated employer would have to request drug and alcohol information about employees who were subject to testing under Federal Railroad Administration, Federal Aviation Administration, or other modes’ regulations. If an employee violates the drug or alcohol testing program with an employer regulated by another mode, that person may not perform safety-sensitive functions for motor carrier employers until he or she successfully complies with the part 40 return-to-duty process. Because records of violations with non-FMCSAregulated employers will not be reported to the Clearinghouse, employers must continue to request those records directly from the previous employers. In addition, we added an exception pertaining to drivers who are subject to follow-up testing who have not completed their follow-up testing plan. In such cases, the gaining employer is required to request that information from the previous employer since the number, type, and duration of follow-up tests will not be reported to the Clearinghouse. E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations Section 382.415 Section 382.415 remains largely as proposed. That section requires an employee to notify all current employers when he or she violates the drug and alcohol rules in part 382. FMCSA intends that employees notify all current employers, aside from the employer that administered the test. The purpose of this section is to place an obligation on an employee with multiple employers to notify all other employers when he or she has a drug or alcohol violation with one of them. As discussed above, there was some confusion about how this section should work. Accordingly, the Agency amended the proposal to make clear that the employee need not notify the employer that ordered the test or documented the violation. Section 382.601 Section 382.601 remains largely as proposed. That section requires an employer to promulgate a policy on the misuse of drugs and alcohol and to provide educational materials on the subject to its new and current employees. This rule requires that materials required under this section put employees on notice that information on drug and alcohol violations will be reported to the Clearinghouse. FMCSA made several changes to the proposal to conform to other changes in this final rule. The first change removes reference to a ‘‘positive alcohol test’’ and replaces it with the specific result that constitutes a violation (0.04 BAC or higher). The remaining changes update the type of violations reportable to the Clearinghouse to include all violations in part 382, subpart B, including those based on actual knowledge of drug or alcohol use. sradovich on DSK3GMQ082PROD with RULES2 B. Part 382, Subpart G (§§ 382.701 Through 382.727) Section 382.701 This section sets out the basic requirements for querying the Clearinghouse. Paragraph (a) requires employers to conduct a pre-employment query on all prospective drivers to determine if they have drug or alcohol program violations. We made two organizational changes to paragraph (a). First, we added a paragraph title, ‘‘Preemployment query required’’ to alert the reader to the subject of the paragraph. Second, to provide better organization for the reader, we separated paragraph (a) into two subparagraphs. In paragraph (a)(1), we establish the employer’s requirement to conduct a preemployment query and identify the VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 different types of drug and alcohol violations that will be searched in the query. We updated the language in that paragraph to remove reference to a positive alcohol test, as discussed above. Also as discussed above, we updated the language in this section to include all of the prohibitions in part 382, subpart B, that constitute violations of FMCSA’s drug and alcohol program, including all violations based on an employer’s actual knowledge, as defined at § 382.107. In paragraph (a)(2), we added new language to state explicitly that an employer must have a prospective employee’s specific consent for a full release of information before it can conduct a pre-employment query. We refer to this type of query as a full query, meaning that the consent obtained grants the employer access to information about that driver. This is distinguished from a limited query, described in § 382.701(b)(2), which tells the employer whether there is any information in the Clearinghouse about that driver, but does not provide access to the information without further consent. For paragraph (b), we added a title, ‘‘Annual query required,’’ and separated the paragraph into three subparagraphs for organizational reasons. Paragraph (b)(1) requires employers to conduct a Clearinghouse query for all employees at least once a year to find out whether there is any information in the Clearinghouse about those employees. Paragraph (b)(2) explains that an employer may, but is not required, to conduct a full query. The employer may choose, instead, to conduct a limited query, which alerts the employer to whether information exists in the Clearinghouse about a particular employee, but does not release the substance of the information without additional specific consent from the employee. Paragraph (b)(3) tells the employer that if it conducts a limited query and the Clearinghouse reports back that it contains information about a particular employee, the employer must conduct a full query within 24 hours to determine whether that information shows that the employee is prohibited from performing safetysensitive functions. Once 24 hours pass, the employer may not allow the employee to perform safety-sensitive functions until it has completed the full query and the results show that the driver does not have any violations prohibiting him or her from performing safety-sensitive functions. We added language making this last point more clear. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 87713 As proposed, paragraph (c) provided that the Clearinghouse would notify employers if new information appeared in the Clearinghouse within 7 days of conducting a query. We include two changes to this paragraph in this final rule. First, similar to changes made to paragraphs (a) and (b), FMCSA added the following title for organizational purposes: ‘‘Employer notification.’’ Second, as discussed in the response to comments on this matter, FMCSA extended the new information notification period to 30 days. Paragraph (d) prohibits an employer from allowing an employee to drive if its Clearinghouse query shows that the employee has committed one of the part 382, subpart B, drug and alcohol violations without completing the return-to-duty process. We made two changes to this paragraph as a part of this final rule. First, like changes we made in the preceding paragraphs, we added a title for organizational purposes: ‘‘Prohibition.’’ Second, we updated the language in this section to include all of the prohibitions in part 382, subpart B, that constitute violations of FMCSA’s drug and alcohol program, including those based on an employer’s actual knowledge. Paragraph (e) remains substantively as proposed. It requires employers to maintain records of all Clearinghouse queries. FMCSA amended this section to clarify that the employer can maintain those records on the Clearinghouse system so long as its Clearinghouse registration is valid. Regardless, nothing prohibits an employer from maintaining the records as a part of its own recordkeeping system. FMCSA made only one change to proposed paragraph (e): It now includes a title, ‘‘Recordkeeping required,’’ for organizational purposes. Section 382.703 Section 382.703 remains largely as proposed. This section provides that no employer may obtain information about an individual from the Clearinghouse without that individual’s express consent. It also provides that an employee cannot perform safetysensitive functions if he or she refuses to give this consent. We updated the language in this section to make clear that the employee grants consent for the employer to view information about all of the driver’s part 382, subpart B drug and alcohol violations, including those based on the employer’s actual knowledge, as well as return-to-duty information. We also make clear, in new paragraph (d), that the driver must provide electronic consent to FMCSA before the Agency releases E:\FR\FM\05DER2.SGM 05DER2 87714 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 Clearinghouse records to the employer. Paragraph (d), as it appeared in the NPRM, pertained to a driver’s consent for FMCSA to release information under § 382.701(c). The text of that paragraph is unchanged and is now new paragraph (e). Section 382.705 Section 382.705 describes who is responsible for reporting information to the Clearinghouse. This paragraph contains several key changes and additions. Paragraph (a) lays out MRO reporting responsibilities, which include reporting verified positive, adulterated, or substituted test results and those results the MRO determines to be a refusal. This paragraph explains what information the MRO will report, including information identifying the driver and test results. The MRO is required to report this information within 2 business days of reaching a determination. But if the MRO subsequently makes a change to its determination, it must report that change by the close of the next business day. In response to comments, the Agency changed the initial MRO reporting period from 1 day to 2 days. Second, FMCSA simplified the instructions for recording a driver’s CDL number and State of issuance. Finally, the Agency eliminated the requirement that MROs report the requesting employer’s USDOT Number or EIN. As discussed above, FMCSA will no longer be collecting USDOT Numbers or EINs. Paragraph (b) lays out employer responsibilities for reporting an alcohol confirmation test with a concentration of 0.04 or higher, alcohol refusals, drug refusals that do not involve an MRO determination, negative return-to-duty tests, and successful completion of follow-up tests. The NPRM required the employer to report this information by the close of business the day after having received notice of the determination. In order to accommodate the employer’s need to comply with new documentation requirements for reporting certain violations, described below, we changed the reporting period to the end of the third business day following the date on which the employer obtained the violation information. When an employer has actual knowledge, as defined at § 382.107, that an employee has used alcohol on duty, before duty, or prior to taking a postaccident test, or that an employee used drugs in violation of FMCSA’s drug and alcohol regulations, the employer must report that use to the Clearinghouse. The employer must report all instances VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 of actual knowledge of prohibited drug or alcohol use by the close of the third business day following the day the employer became aware of the use. As discussed in the response to comments, paragraph (b) requires the employer to report detailed information on its knowledge of the drug or alcohol use and further requires the employer to provide evidence to substantiate the employee’s violation, and to demonstrate that this evidence was provided to the employee. No employer may report actual knowledge of drug or alcohol use after the close of the third business day following the day the employer became aware of the use. Paragraph (b)(3) also identifies employer responsibilities for reporting ‘‘failure to appear’’ test refusals to the Clearinghouse. As explained in the response to comments, paragraph (b) identifies the types of documentation that employers, and the C/TPAs’ designated as their service agents, must submit each time they report a ‘‘failure to appear’’ refusal and requires the employer to demonstrate that the documentation was provided to the employee. New paragraph (b)(6) requires owneroperators who employ themselves as drivers to designate a C/TPA to comply with all employer-related reporting requirements with respect to the individual’s drug and alcohol use. Paragraph (c) lays out a C/TPA’s Clearinghouse reporting responsibilities. In the NPRM, we provided a detailed list of all of the information an employer could ask a C/TPA to report. The comments we received indicated, however, that this approach caused confusion about how a C/TPA reports to the Clearinghouse. To eliminate this confusion, this final rule simply states that when a C/TPA acts on behalf of an employer, that C/TPA stands in the shoes of the employer with respect to all of the rights and responsibilities the employer delegated to it. Accordingly, a properly authorized C/TPA can fulfill any of an employer’s responsibilities under paragraph (b). That said, an employer does not discharge its responsibilities under paragraph (b) when it delegates compliance to a C/TPA; the employer remains responsible for compliance with paragraph (b) regardless of whom it assigns to interact with the Clearinghouse on its behalf. Paragraph (d) requires a SAP to report to the Clearinghouse when he or she conducts an initial assessment of an employee and when an employee completes the return-to-duty process. The NPRM proposed that the SAP make these reports within 1 business day PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 following the day of the event or determination that triggered the reporting obligation. After consideration of comments, we changed the reporting period to require SAPs to complete their reporting requirements by the close of the business day after the event that triggered their reporting responsibility. In addition, as discussed above in the response to comments, we no longer require that the SAP report the followup testing plan to the Clearinghouse. SAPs will continue to provide that information directly to employers in accordance with 49 CFR 40.311. Paragraph (e) obligates anyone reporting to the Clearinghouse to do so truthfully and accurately. As discussed in the Response to Comments section, we changed this final rule to prohibit anyone from reporting anything he or she knows or should know to be untruthful or inaccurate. Section 382.707 Section 382.707 remains as proposed. This section requires FMCSA to notify a driver when information about that driver is entered in, revised, or removed from the Clearinghouse. It also requires FMCSA to notify a driver when information from the Clearinghouse is released to an employer and to state the reason for the release. The Agency will send a letter by U.S. Mail to the address on record with the SDLA that issued the driver’s CDL unless drivers provide an alternate address or method of communication, such as electronic mail (email). Section 382.709 Section 382.709 remains essentially as proposed. This section grants a driver the right to review information in the Clearinghouse about himself or herself. This section now makes clear that, in order to access such information, a driver must register with the Clearinghouse. Section 382.711 Under § 382.711(a), all users must register with the Clearinghouse before querying or reporting any information. In the proposal, this paragraph stated that only employers and their service agents had to register. This language inadvertently excluded service agents that work for employees, i.e. SAPs, who also must register. We corrected this oversight by changing the language in this section to provide that each employer and each service agent must register with the Clearinghouse. Paragraph (b) explains what an employer must do to register with the Clearinghouse. The employer must provide contact information, USDOT E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations Number, names of authorized users, and authorizations for service agents, if the employer uses them. The employer must keep its list of authorized users current, but at a minimum, will be required to re-authorize them annually. With respect to service agents, FMCSA added the requirement that employers must update their designations within 10 days of a change. Paragraph (b) is different from the proposal in three ways. First, with respect to the contact information an employer must provide, we removed reference to the EIN. FMCSA will not allow a motor carrier to use an EIN in lieu of a USDOT Number for identification purposes. All motor carriers must use their USDOT Numbers to register. If an employer does not have a USDOT Number, it will leave this field blank. Second, we updated the language in paragraph (b)(3) to include service agents (other than C/TPAs) as entities that can act on an employer’s behalf for querying and reporting to the Clearinghouse. Finally, to eliminate any confusion about an employer’s obligation to update service agent designations, we included the 10-day period for reporting a change in service agent designation. Paragraph (c) is the same as was proposed in the NPRM. It explains what MROs and SAPs must do to register with the Clearinghouse. MROs and SAPs must provide contact information, certification that the MRO or SAP meets the minimum requirements in part 40 for MROs or SAPs, and documentation that shows that the MRO or SAP meets those minimum qualifications or training requirements. For example, an MRO would be required to provide documentation showing that he or she is a licensed physician, as required by § 40.121(a), and has completed the required training or re-training requirements in § 40.121(c). He or she would also be required to certify that he or she has the basic knowledge and experience related to drug testing and DOT regulations, as required by § 40.121(b). A SAP would be required to provide documentation showing that he or she is licensed or certified to provide substance abuse counseling in accordance with the requirements of § 40.281(a), has completed the qualification training in § 40.281(c), and has completed the continuing education requirements in § 40.281(d). He or she would also be required to certify that he or she has the basic knowledge and experience related to substance abuse diagnosis and treatment, SAP functions, and DOT drug and alcohol testing regulations required by § 40.281(b). VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Paragraph (d) remains largely as proposed. It explains what C/TPAs and other service agents must do to register with the Clearinghouse. They must provide contact information and names of authorized users. Similar to employer requirements in paragraph (b), C/TPAs and other service agents must verify their authorized users annually. The Agency made some changes to the text to make clear that these registration requirements apply to C/TPAs as well as other service agents acting on an employer’s behalf. Section 382.713 Section 382.713 remains as proposed. It explains the terms under which Clearinghouse registrations remain active, or are revoked or cancelled. The initial Clearinghouse registration term is 5 years unless the Agency takes action to revoke or cancel it. The Agency will cancel any registrant that does not use the Clearinghouse for 2 years. The Agency also has the authority to revoke the Clearinghouse registration of anyone who does not comply with Clearinghouse regulations. Section 382.715 Section 382.715(a) requires employers to authorize C/TPAs or other service agents to access the Clearinghouse on their behalf before the C/TPA or other service agent can enter information on their behalf into the Clearinghouse. Similarly, paragraph (b) requires employees to authorize a SAP before the SAP can enter information about the employee’s return-to-duty process. The final rule differs from the proposal in several respects. Originally, this section had only one paragraph that required employers to designate C/TPAs acting on their behalf. Changes implemented in this final rule require employers to designate any other service agents authorized to enter information on the employer’s behalf as well. That original paragraph is now paragraph (a). In response to comments, FMCSA added paragraph (b) to make clear that it is the employee, not the employer, who designates a SAP to enter information about the employee. Section 382.717 Section 382.717 explains the procedures for a driver to request that FMCSA change information reported incorrectly to the Clearinghouse. We reordered the paragraphs in the final rule to highlight that the procedures in this section may be used primarily to request data correction. Accordingly, paragraph (a), which was proposed as paragraph (c), explains that no driver may use the procedures in § 382.717 to PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 87715 challenge a particular test result. The procedures are for challenging information that was not accurately reported. Paragraph (a) contains two exceptions related to reporting violations based on an employer’s actual knowledge of drug or alcohol use and one exception related to reporting a driver’s failure to appear for a test. The first remains as proposed: A driver may petition the Agency to remove a violation when it is based on the driver receiving a citation for DUI in a CMV and the citation does not result in a conviction. The second is new: A driver may petition the Agency to remove a report of a violation that does not meet the minimum reporting requirements, including evidentiary requirements, provided in § 382.705(b)(5). The third exception is also new: A driver may petition for removal of a report of a ‘‘failure to appear’’ refusal that does not meet the reporting requirements in new § 382.705(b)(3). Paragraph (b), which was proposed as paragraph (a), provides that the petition must include information identifying the driver and the information he or she wants to be corrected, the reasons he or she believes the information is inaccurate, and evidence supporting his or her challenge. As noted above, we removed the proposed requirement that petitions be submitted within 18 months of the date the allegedly incorrect information was reported to the Clearinghouse. The address for submitting the petition is in paragraph (c), which was originally proposed as paragraph (b). FMCSA added ‘‘Attention: Drug and Alcohol Program Manager’’ to the address as a part of this final rule. In addition, we added the option for electronic submission of petitions through the Clearinghouse system; the precise means by which electronic submission is accomplished will be addressed during the implementation process. In order to reflect the addition of an electronic submittal option, we changed the title of the paragraph from ‘‘Address’’ to ‘‘Submission of Petition’’. Paragraph (d) provides that FMCSA will inform the driver of its decision to remove, retain, or correct the driver’s information in the Clearinghouse and will explain the basis for its decision. The Agency reduced, from 90 days (as proposed) to 45 days, the time in which it will respond to petitions submitted under this section. We believe that the electronic submission of petitions will allow us to process those requests more efficiently. Paragraph (e) provides an option for drivers to request expedited treatment. A driver may request expedited E:\FR\FM\05DER2.SGM 05DER2 87716 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 treatment only if the driver is prohibited from performing safety-sensitive functions because of the information incorrectly reported under paragraph (a)(1) or (2). If the request is granted, FMCSA will subsequently issue a decision within 14 days of receiving a complete petition. Submission of a petition for correction does not authorize a driver to resume safetysensitive functions or otherwise stay the effective date of the driver’s prohibition on performing safety-sensitive functions. Paragraph (e) remains as proposed with one exception. This final rule shortens the time for FMCSA to consider an expedited request from 30 to 14 days. The reasons for this change are discussed in the response to comments discussion. Paragraph (f) explains that a driver may seek administrative review if FMCSA does not grant his or her petition for correction. The driver must submit a request, with the words ‘‘Administrative Review of Drug and Alcohol Clearinghouse Decision’’ conspicuously noted at the top of the document, to FMCSA’s Associate Administrator for Enforcement. The request must explain the basis for administrative review and provide all supporting explanations and documents. FMCSA will issue a decision within 30 days and that decision will constitute the final agency order on the matter. Paragraph (f) remains largely as proposed, except that this final rule added the requirement for prominent display of ‘‘Administrative Review of Drug and Alcohol Clearinghouse Decision’’ at the top of the request and the option to submit the request electronically through the Clearinghouse. We reduced the time in which the Agency will complete its administrative review from 60 days (as proposed) to 30 days because we believe the electronic submission of requests for review will allow for a speedier resolution. The 30-day time frame is also consistent with the administrative review provisions of the Privacy Act. In response to comments, we added a new paragraph (g). That paragraph explains that after FMCSA corrects or removes information in response to a petition, it will notify any employer that viewed the incorrect information that a correction has been made. Section 382.719 Under § 382.719, the Clearinghouse will stop releasing information about a driver’s drug and alcohol violations under the following conditions: (1) The SAP reports all of the required information about the initial assessment and driver completion of the return-to- VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 duty process; (2) the employer reports that the driver had a negative return-toduty test; (3) the employer reports that the driver completed all of the prescribed follow-up tests; and (4) 5 years have passed since the date of the violation determination, which is the date the violation was submitted to the Clearinghouse. Unless all of these conditions are satisfied, information in the Clearinghouse will remain available to employers with authorized access. As previously noted, exceptions apply to records otherwise removed from the Clearinghouse, such as a DUI citation not resulting in a conviction or records removed in accordance with § 382.717. Once these conditions are satisfied and the information is removed, FMCSA will maintain an archived record of this information—not available to employers—for internal use such as research into the effectiveness of the drug and alcohol program, auditing for compliance with this rule, and identifying non-compliant employers or employees for enforcement action. This final rule differs from the proposal in one critical aspect: How long the Clearinghouse will make records available to employers before moving them to the archives. In the NPRM, FMCSA announced a dual proposal concerning the searchable records retention period. Based on the language of MAP–21, the Agency concluded that there was a basis for making the minimum period for which employers could search records either 3 or 5 years. After considering comments, we conclude that the statutory provisions in MAP–21, as well as overarching safety considerations, compel the Agency to implement the 5-year retention period. A full discussion of the Agency’s analysis is in the response to comments. Section 382.721 Section 382.721 remains as proposed. It authorizes FMCSA to collect fees from entities that are required to query the Clearinghouse. The Agency is prohibited, however, from collecting fees from drivers accessing their own records. Section 382.723 Section 382.723 remains as proposed. It prohibits unauthorized access to the Clearinghouse, inaccurate or misleading reporting to the Clearinghouse, and unauthorized disclosure of information obtained from the Clearinghouse. Employers are limited to using information from the Clearinghouse for determining whether a driver is prohibited from operating a CMV. And employers may not divulge any PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 information to anyone not directly involved in that determination. Anyone who violates the requirements of this section is subject to the civil and criminal penalties in § 382.507. This section would not prohibit FMCSA from accessing information in the Clearinghouse for research, auditing, or enforcement purposes. For example, FMCSA could use the information in the database to identify trends in testing data that could help the Agency focus its oversight activities. Section 382.725 Section 382.725 requires each State chief commercial driver’s license official to obtain information in the Clearinghouse about an applicant for a CDL for the purpose of determining whether that applicant is qualified to operate a CMV. The applicant is not required to grant prior consent; an applicant is deemed to have granted consent by virtue of applying for a CDL. The chief commercial driver’s license officials are required to protect the privacy and confidentiality of the information they receive. Failure to comply will result in the official losing his or her right of access. As proposed, this section authorized, but did not require, States to access the Clearinghouse. As discussed in the response to comments, section 31306a(h)(2) makes access permissive, but MAP–21 amendments to section 31311(a) make it mandatory. To implement the amendments to section 31311(a), this final rule will require that States query the Clearinghouse to determine whether an applicant is qualified under FMCSA’s regulations to operate a CMV. FMCSA is aware that some States have licensing standards that prohibit applicants from obtaining CDLs if they failed or refused a drug or alcohol test, or have other drug and alcohol program violations. This rule also will permit those States to use the information in the driver’s record, obtained from the Clearinghouse, to determine whether the individual is qualified to operate a commercial motor vehicle in accordance with applicable State laws and regulations. This implements the permissive access requirements of section 31306a(h)(2) and reconciles the two different types of access referenced in that section and the amendments to section 31311(a). Section 382.727 Section 382.727 remains as proposed. It explains that there are civil and criminal penalties for violations of the Clearinghouse regulations. As stated above, 49 CFR 382.507 already E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations establishes civil and criminal liability for employers and drivers who violate any provision of 49 CFR part 382; however, § 382.727 extends civil and criminal liability to all employees, medical review officers, and service agents for violations of 49 CFR part 382, subpart G. C. Part 383 Section 383.73 This final rule includes changes to the CDL standards in part 383 that were not proposed in the NPRM. As discussed above and in the response to comments, these changes implement the statutory requirement that SDLAs obtain driver information from the Clearinghouse before issuing a CDL. Accordingly, new paragraphs (b)(10), (c)(10), (d)(9), and (e)(8) require the States to query the Clearinghouse before issuing a new, renewed, upgraded, or transferred CDL. FMCSA will work with the States to provide for an automatic, electronic query system to minimize costs and maximize efficiencies. D. Part 384 Section 384.235 This final rule includes a conforming change to part 384. FMCSA recognizes the need to hold States accountable to request information from the Clearinghouse in accordance with the new changes to § 383.73. E. Part 391 sradovich on DSK3GMQ082PROD with RULES2 Section 391.23 This final rule includes changes to § 391.23(e) and (f) that were not proposed in the NPRM. Section 391.23(e) requires employers to investigate a prospective employee’s drug and alcohol compliance history during the preceding 3 years. Section 391.23(f) prohibits employers from allowing a driver to operate a CMV if he or she refuses to grant consent for the release of his or her information. As discussed above and in the response to comments, section 31306a(f)(3) requires employers to use the Clearinghouse to conduct this background investigation. Once the Clearinghouse has been in operation for 3 years, any preemployment query will provide the employee’s 3-year compliance history. To implement the requirement in section 31306a(f)(3) and to avoid redundant searches and investigations, the Agency amended § 391.23(e) to state that an employer subject to § 382.701(a) must query the Clearinghouse, after it has been in operation for 3 years, to satisfy the drug and alcohol background investigation requirement. Similarly, the VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Agency amended § 391.23(f) to prohibit an employer from allowing a driver to operate a CMV if he or she refuses to grant consent for the query. As explained in § 382.413, however, employers must continue to request information from previous employers if the employee was subject to drug and alcohol testing under an employer regulated by one of the other DOT modes. For employees subject to followup testing who have not completed their follow-up testing plan prescribed by the SAP, gaining employers must continue to request the follow-up plan from the previous employer because that information will not be reported to the Clearinghouse. VII. Regulatory Analyses and Notices Executive Order (E.O.) 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563 (Improving Regulation and Regulatory Review) FMCSA has determined that this rulemaking is an economically significant regulatory action under section 3(f) of Executive Order (E.O.) 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). It also is significant under Department of Transportation regulatory policies and procedures because the economic costs and benefits of the rule exceed the $100 million annual threshold and because of the substantial congressional and public interest concerning the crash risks associated with CMV drivers operating while under the influence of drugs or alcohol. FMCSA has prepared a Regulatory Impact Assessment (RIA) of the benefits and costs of the rule. The summary of the RIA follows. RIA Estimates of Benefits and Costs In the Initial RIA, the Agency estimated the annual benefit of the proposed rule at $187 million and the annual cost at $186 million. The present value of the proposed rule was $9 million at a 7 percent discount rate. The Final RIA estimates the annual benefit of the final rule at $196 million and the annual cost at $154 million. The present value of the final rule is estimated at $42 million at a 7 percent discount rate. The principal factor causing the reduction in costs is the analytical change necessary to account for the recent program concerning the testing rate for annual random drug tests. Effective January 1, 2016, the random drug testing rate is now 25 percent of drivers employed by a carrier, as opposed to 50 percent. This change was PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 87717 made pursuant to 49 CFR 382.305, and is unrelated to the Clearinghouse or the final rule. The industry has been in operation for less than a year at the lower testing rate. Therefore, no drug survey data is available that indicates that the random positive drug test rate has, or will, materially diverge from the three-year average of positive test rates used to estimate the number of positive random drug tests for the forecast period. This change reduces the estimate of the number of annual random positive drug tests from 28,000 in the Initial Regulatory Impact Analysis to 10,000 in the Final Regulatory Impact Analysis. The principal effect of this change is a reduction in return-to-duty costs from the $101 million estimated in the Initial Regulatory Impact Analysis to $56 million. The final analysis also includes updates of drug and alcohol survey data through 2013 and crash statistic. These changes had a modest impact on estimated benefits and estimated costs other than return-toduty costs. All employers subject to the drug and alcohol testing regulations are required to query the Clearinghouse (1) on an annual basis to determine whether their employees have drug or alcohol violations that would prohibit them from performing safety-sensitive function and (2) as part of a prospective driver’s pre-employment screening process. Given the established, sizeable success of mandatory testing programs on crash reduction,7 concrete improvements in the process of disseminating positive-test results and making them accessible to employers are expected to bring substantial benefits. The Agency estimates about $196 million in annual crash reduction benefits from the rule, which consists of $55 million from the annual queries and $141 million from the pre-employment queries. FMCSA estimates about $154 million in total annual costs, which include costs for: • $29 million that is the estimated monetized value of employees’ time to prepare annual employer queries; • $11 million that is the estimated monetized value of employees’ time to prepare pre-employment queries; 7 Jacobson, Mireille, ‘‘Drug Testing in the Trucking Industry: The Effect on Highway Safety,’’ The Journal of Law and Economics, April 2003, Vol. 46, pp.130–156. Brady, Joanne E., Susan P. Baker, Charles DiMaggio, Melissa McCarthy, George W. Rebok, and Guohua Li, ‘‘Effectiveness of Mandatory Alcohol Testing Programs in Reducing Alcohol Involvement in Fatal Motor Carrier Crashes,’’ American Journal of Epidemiology, Vol. 170, No. 6, pp.775–782 (Advance Access Publication 19-August-2009). E:\FR\FM\05DER2.SGM 05DER2 87718 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations • $3 million for employers to designate service agents, and $1 million for SAPs to report initiation of the return-to-duty Initial Assessment; • $5 million incurred by various reporting entities to register with the Clearinghouse, verify authorization, and become familiar with the rule, plus an additional $700,000 for these entities to report positive tests; • $35 million of fees and consent and verification costs consisting of $24 million in Clearinghouse access fees incurred by employers for preemployment queries, limited annual queries and full annual queries, plus $11 million of the monetized value of drivers’ time to provide consents to employers and verification to FMCSA to allow employers access to drivers’ records.; • $2.2 million for development of the Clearinghouse and management of records; • $56 million incurred by drivers to go through the return-to-duty process, including $7 million of opportunity costs incurred by drivers for those hours in which they are in substance abuse education and treatment programs; and • $11.5 million of opportunity costs incurred by employers due to lost onduty hours of drivers suspended from safety-sensitive functions until successful completion of the returnduty-process. The annual net benefit of the rule is $42 million. The 10-year projection of net benefits is $316 million when discounted at 7 percent and $369 million when discounted at 3 percent. Estimated benefits include only those associated with reductions in CMV crashes. FMCSA could not precisely quantify improved health, quality-of-life improvements, and increased life expectancy for CMV drivers. The Agency believes these non-quantified benefits are significant, and, if they were included in the benefits estimates, would clearly result in net benefits in excess of the estimated $38 million annual benefit. The net benefit of the final rule is summarized in the table below. TOTAL NET BENEFIT PROJECTION OVER A 10-YEAR PERIOD Total 10-year 10-year 7% 3% Annual Discount rate Total Benefits ............................................................................................................. Total Costs ................................................................................................................. Total Net Benefits ...................................................................................................... Benefit Analysis sradovich on DSK3GMQ082PROD with RULES2 The benefits of the rule derive from reductions in crashes due to the additional information on employeefailed and -refused drug and alcohol tests disseminated through the annual and pre-employment queries. The rationale is that drivers who fail or refuse drug and alcohol tests are assumed to be more crash-prone than drivers who take and pass these tests. Further, queries of the Clearinghouse provide the information on positive tests that prevents these identified drivers from operating until they successfully complete the return-to-duty process. Given this, the benefits of the rule are the reduction in crashes by drivers kept off the road by queries of the Clearinghouse. The Clearinghouse makes available information that employers would not otherwise obtain or be able to act on. A major study on the effectiveness of mandatory alcohol-testing programs in reducing alcohol involvement in fatal motor carrier crashes was published in 2009.8 The research analyzed data 9 on about 69,000 motor carrier drivers (and about 83,000 non-motor carrier drivers) 8 Brady, JE, Baker SP, DiMaggio C, McCarthy ML, Rebok GW, Li G, ‘‘Effectiveness of Mandatory Alcohol Testing Programs in Reducing Alcohol Involvement in Fatal Motor Carrier Crashes.’’ American Journal of Epidemiology. 2009; 170(6): 775–783. 9 From the Fatality Analysis Reporting System (FARS). VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 $196,000,000 154,000,000 42,000,000 involved in about 66,000 fatal multivehicle crashes over the 25 years from 1982 through 2006. Given that mandatory alcohol testing programs for motor carrier drivers began in 1995, this provides 13 years of data before the program was implemented and 12 years of data after implementation, which allows for a robust examination of the effectiveness of the program. The authors also controlled for age, gender, recent-past driving-while intoxicated (DWI) convictions, whether or not the driver survived, and other characteristics. These controls allowed for the specific isolation of whether (1995–2006) or not (1982–1994) the existence of a mandatory alcohol-testing program affected whether or not the fatal crash involved alcohol. The authors performed multivariate logistic-regression analyses that estimated the effects of the above-listed factors on whether or not alcohol was involved in the fatal crash. Whether or not alcohol was involved in the crash was defined by a blood-alcohol-level (BAC) greater than or equal to 0.01 grams per deciliter (g/DL) for the driver involved in the fatal crash. With the controls for driver age, gender, history of driving while intoxicated, and survival status, ‘‘implementation of the mandatory alcohol testing programs was found to be associated with a 23 percent reduced risk of alcohol involvement in fatal crashes by motor-carrier PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 $1,472,985,521 1,157,345,7665 315,639,0754 $1,722,077,349 1,353,060,774 369,016,575 drivers.’’ 10 The authors concluded that the ‘‘results from this study indicate that mandatory alcohol-testing programs may have contributed to a significant reduction in alcohol involvement in fatal motor carrier crashes.’’ 11 Given the authors’ estimate that the program reduces the risk by 23 percent, the Agency applies this percentage reduction to fatal crashes involving drivers for whom post-crash alcohol tests are positive. A major study on the effectiveness of drug-testing programs in reducing fatal motor carrier crashes was published in 2003.12 The research analyzed data 13 from all States (except Hawaii) for the 16 years from 1983 through 1998, generating 784 annual observations of fatal crashes (784 years = 49 States × 16 years per State). Federal drug-testing legislation passed in 1990, and 13 states passed drug-testing legislation between 1987–89,14 so this provides many years of data both before and after the program implementation, allowing for a robust analysis of the effectiveness of 10 Brady, et al., page 775. 11 Ibid. 12 Jacobson, Mireille, ‘‘Drug Testing in the Trucking Industry: The Effect on Highway Safety,’’ The Journal of Law and Economics, April 2003, Vol. 46, pp.130–156. 13 Data is from the Fatality Analysis Reporting System (FARS). 14 Connecticut, Iowa, Louisiana, Minnesota, Montana, Rhode Island, and Vermont in 1987, Utah, Nebraska, Kansas, Tennessee in 1988, and Florida and Maine in 1989. E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations the drug-testing program. The authors controlled for mandatory seat belt laws, speed-limit laws, the unemployment rate, miles driven and other factors. These controls allowed for the specific isolation of whether the fact that a State had standing drug-testing legislation or not (all States did after 1990) affected the number of traffic fatalities in the State. The authors employed a negative binomial model that estimated the effects of the above-listed factors on the number of fatalities in a given State in a given year. With controls for seat-belt laws, speed-limit laws, and other factors, drug-testing legislation is estimated to have led to about a 9–10 percent reduction in truck-accident fatalities.15 Given this estimation, the Agency applies this percentage reduction to fatal crashes involving drivers testing positive for drugs. The current drug-testing program is estimated to generate $152 million in annual crash-reduction benefits from 29,590 annual positive tests, which averages to approximately $5,100 per positive drug test ($152 million/29,590 positive tests, rounded to the nearest hundred). The mandatory annual query in the final rule would result in 6,100 instances of employer alerts to positive drug tests of their drivers that current employers would not otherwise have known about.16 A requirement that disseminates additional information on 6,100 other positive testing drivers can be estimated to generate the same proportion of benefits that the 29,590 from the current program generates. If 29,950 positive tests and consequent alerts generate $152 million in benefits, then 6,100 additional alerts would generate $31 million of benefits (($152 million/29,520) = ($31.1 million/6,100), rounded to the nearest million). The current alcohol testing program is estimated to generate $95 million in annual crash-reduction benefits from 3,135 annual positive alcohol tests, which averages to approximately $30,300 per positive alcohol test ($95 million/3,135 positive tests, rounded to nearest hundred). The mandatory annual query in the final rule would result in 800 instances of employer alerts to positive tests of their drivers that current employers would not otherwise have known about. A requirement that disseminates additional information on 800 other positive testing drivers can be estimated to generate the same proportion of benefits that the 3,135 from the current program generates. If 3,135 positive tests and consequent alerts generate $95 million in benefits, then 800 additional alerts would generate about $24 million of benefits (($95 million/3,135) = ($24.2 million/800), rounded to the nearest million). The annual drug and alcohol queries required by the rule are estimated to generate $55 million in benefits. Annual drug testing is estimated to produce benefits totaling $31 million. Annual alcohol testing is estimated to produce benefits totaling $24 million. The mandatory pre-employment query required by the final rule results in 15,100 instances of employer alerts to positive drug tests that prospective employers would not otherwise have known about. A requirement that disseminates additional information on 15,100 other positive drug testing drivers can be estimated to generate the same proportion of benefits that the 29,590 from the current program generates. If 29,590 positive tests and 87719 consequent alerts generate $152 million in benefits, then 15,100 additional alerts would generate $77 million in benefits (($152 million/29,590) = ($77.0 million/ 15,100)), rounded to the nearest million. The mandatory pre-employment query results in 2,100 instances where employers are alerted to positive alcohol tests of their drivers. Prospective employers of these drivers would not otherwise have known about these test results, in the absence of this rule. A requirement that disseminates additional information on 2,100 other positive testing drivers can be estimated to generate the same proportion of benefits that the 3,135 from the current program generates. If 3,135 positive tests and consequent alerts generate $95 million in benefits, then 2,100 additional alerts would generate $64 million in benefits (($95 million/3,135) = ($63.6 million/2,100), rounded to the nearest million). With annual benefits to the drugtesting side of the pre-employment queries estimated at $77 million and the alcohol-testing side at $64 million, total annual benefits realized from preemployment queries are estimated at $141 million ($77 million + $64 million). Given the $55 million in annual benefits from the information on positive drug and alcohol tests disseminated because of the mandatory annual queries ($31 million drug and $24 million alcohol) and the $141 million in annual benefits from the information on positive tests disseminated because of the mandatory pre-employment queries ($77 million drug and $64 million alcohol), the total annual benefits of rule are $196 million annually. The table below presents these benefit totals. TOTAL ANNUAL BENEFITS OF THE RULE Drug Alcohol Total Annual ........................................................................................................................ Pre-Employment ........................................................................................................ $31,000,000 77,000,000 $24,000,000 64,000,000 $55,000,000 141,000,000 Total .................................................................................................................... sradovich on DSK3GMQ082PROD with RULES2 Queries 108,000,000 88,000,000 196,000,000 Based on the annual benefits of $196 million, the 10-year benefit projection is $1.472 billion when discounted at 7 percent and $1,722 billion when discounted at 3 percent. By reducing drug and alcohol abuse by drivers, this rule could also lead to improved health, quality-of-life 15 Jacobson, M., p. 131. Agency estimates that 6,100 drivers with multiple employers are job-hoppers that have 16 The VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 improvements, and increased life expectancy for drivers beyond those associated with reductions in vehicle crashes. FMCSA estimates that the total annual cost of this action comes in at $154 million, which can be separated into several categories. The rule defines a number of entities with specific roles related to reporting to, or making queries of, the Clearinghouse. Therefore, the annual costs of the rule are organized by categories consistent with the role of each entity. multiple employers as defined in 49 CFR 391.63 and 49 CFR 391.65. That is, 30 percent of the sum of positive random survey tests (4,500), reasonable suspicion tests (405) and pre-employment tests (14,440) [6100 = ((4,500 + 405 + 14,440) × 30 percent).]. Cost Analysis PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\05DER2.SGM 05DER2 87720 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations • $29 million that is the estimated monetized value of employees’ time to prepare annual employer queries; • $11 million that is the estimated monetized value of employees’ time to prepare pre-employment queries; • $3 million for employers to designate service agents, and $1 million for SAPs to report initiation of the return-to-duty Initial Assessment; • $5 million incurred by various reporting entities to register with the Clearinghouse, verify authorization, and become familiar with the rule, plus an additional $700,000 for these entities to report positive tests; • $35 million of fees and consent and verification costs consisting of $24 million in Clearinghouse access fees incurred by employers for preemployment queries, limited annual queries and full annual queries, plus $11 million of the monetized value of drivers’ time to provide consents to employers and verification to FMCSA to allow employers access to drivers’ records.; • $2.2 million for development of the Clearinghouse and management of records; • $56 million incurred by drivers to go through the return-to-duty process, including $7 million of opportunity cost associates with the hours spent in substance abuse education and treatment programs in lieu of hours that could be spent in non-safety-sensitive in positions; and • $11 million of opportunity costs incurred by employers due to lost onduty hours associated with drivers suspended from safety-sensitive functions until successful completion of the return-duty-process. Annual costs by cost category are summarized in the table below. SUMMARY OF THE TOTAL ANNUAL COSTS OF THE RULE Cost category Entity Annual Queries ...................................................................................................................................... Pre-Employment Queries ...................................................................................................................... Designate Service Agents/Report Driver Info ....................................................................................... Report Positive Tests ............................................................................................................................ Register, Rule Familiarize, Verify Authorization .................................................................................... Access Fees to Employers and Drivers’ Cost to Provide Consent and Verification to FMCSA .......... Clearinghouse IT Costs ......................................................................................................................... Return-to-Duty Process ......................................................................................................................... Employers Opportunity Cost Due to Return-to-Duty ............................................................................. New-CDL and CDL-Renewal Queries ................................................................................................... Employers ................. Employers ................. Employers ................. Various ...................... Various ...................... Employers/Drivers ..... FMCSA ...................... Drivers ....................... Employer ................... SDLAs ....................... $29,000,000 11,000,000 4,000,000 700,000 5,000,000 35,000,000 2.2000,000 56,000,000 11,490,000 0 Grand Total ..................................................................................................................................... .................................... 154,000,000 Based on the annual cost of $154 million, the 10-year cost projection is $1,157 billion when discounted at 7 percent and $1.353 billion when discounted at 3 percent. sradovich on DSK3GMQ082PROD with RULES2 Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act The Regulatory Flexibility Act of 1980 (Pub. L. 96–354, 94 Stat. 1164 (codified at 5 U.S.C. 601)) requires Federal agencies to ‘‘. . . endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.’’ The Act requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term ‘‘small entities’’ comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an analysis of the impact of all regulations (or proposals) on small entities, and mandates that agencies shall strive to VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 lessen any adverse effects on these businesses. A Final Regulatory Flexibility Analysis (RFA) must address the following topics: (1) A statement of the reasons why action by the Agency is being considered; FMCSA is issuing this final rule pursuant to a statutory mandate and recommendations of the National Transportation Safety Board (NTSB) and the General Accountability Office (GAO). Section 32402 of the Moving Ahead for Progress in the 21st Century Act (MAP–21) (Pub. L. 112–141, 126 Stat. 405), codified at 49 U.S.C. 31306a, directs the Secretary of Transportation (Secretary) to establish a national clearinghouse containing commercial motor vehicle operators’ violations of FMCSA’s drug and alcohol testing program. In addition, FMCSA has general authority to promulgate safety standards, including those governing drivers’ use of drugs or alcohol while operating a CMV. The Motor Carrier Safety Act of 1984 (Pub. L. 98–554, Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act), as amended, provides authority to regulate drivers, motor carriers, and vehicle equipment and requires the Secretary to prescribe minimum safety standards for CMVs. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 Annual cost FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313 and 49 U.S.C. chapter 311, subchapters I and III, relating to CMV programs and safety regulation. The NTSB recommendation arose from its investigation of 1999 bus crash in New Orleans resulted in 22 passenger fatalities. The driver of the motor-coach had failed pre-employment drug testing when applying for previous positions. He had also failed to disclose on his employment application that a previous employer had fired him after he tested positive for a controlled substance. Therefore, his employer at the time of the crash was unaware of the driver’s history of positive tests because of his failure to provide a complete employment history. Without that history, his employer was unable to contact prior employers to obtain his drug and alcohol test history.17 The NTSB made recommendations to the Agency pertaining to the reporting of CMV driver drug and alcohol testing results. Specifically, the NTSB recommended that FMCSA ‘‘develop a system that records all positive drug and 17 ‘‘Motor-coach Run-off-the-Road in New Orleans, Louisiana-May 9, 1999,’’ National Transportation Safety Board, HAR 01/01, August 28, 2001, p. 66. E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations alcohol test results and refusal determinations that are conducted under the DOT testing requirements, require prospective employers to query the system before making a hiring decision, and require certifying authorities to query the system before making a certification decision.’’ 18 This final rule addresses the NTSB’s recommendation. The GAO issued two reports discussing its observations of drivers ‘‘job-hopping’’ under FMCSA’s current regulations. When CDL holders fail, or refuse to submit to, a drug or alcohol test, some quit that job and—after a brief delay to ensure that drugs or alcohol are no longer detectable—pass the preemployment test at another carrier and resume driving without having a completed the return-to-duty process. Obviously, job-hopping defeats the purpose of the drug and alcohol testing program. The GAO identified and verified 43 cases (based on insider information supplied by a third party to a Congressman).19 The GAO recommended that Congress provide FMCSA the authority to establish a national database for reporting positive test results and that FMCSA undertake this rulemaking to create a national database of positive and refusal-to-test drug and alcohol test results to prevent CDL holders from job-hopping.20 (2) A statement of the significant issues raised by the public comments in response to the initial RFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; In response to the NPRM and Initial RFA, public comments were submitted by 165 individuals including national trucking and motor coach industry associations, regional trucking associations, trade unions, SDLA’s and the NTSB.21 There were no comments specific to the Initial RFA. The final rule revises 49 CFR part 382, Controlled Substances and Alcohol Use and Testing, to establish a database, identified as the ‘‘Commercial Driver’s License Drug and Alcohol Clearinghouse,’’ for reporting of drug 18 Ibid., p. 74. sradovich on DSK3GMQ082PROD with RULES2 19 Government Accountability Office, ‘‘Examples of Job-hopping by Commercial Drivers after Failing Drug Tests,’’ GAO 08–829R, (Washington, DC, June 30, 2008, p. 3. 20 Government Accountability Office, ‘‘Motor Carrier Safety: Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them off the Road,’’ GAO–08–600 (Washington, DC: May 15, 2008), pp. 44–45. 21 See Regulation.gov at http:// www.regulations.gov/ #!searchResults;rpp=25;po=0;s=FMCSA-20110031;dct=O%252BPS. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 and alcohol violations. Upon implementation, the final rule also requires employers to query the Clearinghouse for drug and alcohol test result information on employees and prospective employees. This rule is intended to increase compliance with FMCSA’s drug and alcohol testing program. (3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not submit comments in response to the NPRM. (4) Description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; Because FMCSA does not have direct revenue figures for all carriers, power units serve as a proxy to determine the carrier size that will qualify as a small business given the SBA’s revenue threshold. In order to produce this estimate, it is necessary to determine the average revenue generated by a power unit. With regard to truck power units, the Agency has estimated that a power unit produces about $189,000 in revenue annually (in 2014 dollars).22 According to the SBA, motor carriers with annual revenue of $27.5 million 23 are considered small businesses.24 This equates to 146 power units (145.503 = $27,500,000/$189,000). Thus, FMCSA considers motor carriers of property with 146 PUs or fewer to be small businesses for purposes of this analysis. The Agency then looked at the number and percentage of property carriers with recent activity that will fall under that definition (of having 146 power units or fewer). The results show that over 99 percent of all interstate property carriers 22 ‘‘The 2000 TTS Blue Book of Trucking Companies,’’ number adjusted to 2014 dollars for inflation. $172,000 estimate in 2008 indexed for inflation to 2014 dollars: (236.736/215.303) × $172,000 = $189,000, rounded to nearest thousand) using the annual CPI. See http://www.bls.gov/data/ inflation_calculator.htm. Accessed December 22, 2015. 23 Subsector 484 on page 26 of SBA guidelines (July 14, 2014) See http://www.sba.gov/sites/ default/files/Size_Standards_Table.pdf. Accessed December 22, 2015. 24 U.S. Small Business Administration Table of Small Business Size Standards matched to North American Industry Classification (NAIC) System codes, effective August 22, 2008. See NAIC subsector 484, Truck Transportation. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 87721 with recent activity have 146 power units or fewer. This amounts to 515,000 carriers (514,800 = 99 percent × 520,000 active motor carriers, rounded to the nearest thousand). Therefore, an overwhelming majority of interstate carriers of property are small entities. (5) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; The final rule requires additional reporting, recordkeeping and compliance requirements beyond what is required by FMCSA’s current drug and alcohol testing regulations. The entities required to report to, or make queries of, the Clearinghouse are employers, MROs, C/TPAs and SAPs. There are an estimated 58,500 annual positive drug and alcohol tests consisting of 52,000 positive drug tests and 6,500 positive alcohol tests at full participation (including refusals). Each positive drug test will be reported to the Clearinghouse by an MRO. Each positive alcohol test will be reported by an employer or a C/TPA. Each driver’s subsequent return-to-duty process for positive test results and test refusals will be reported by an SAP. Ninety-nine percent of motor carriers, MROs, C/ TPAs, and SAPs are most likely small entities. With regard to SAPs submitting driver information, FMCSA estimates that drivers, bookkeepers, audit clerks accounting clerks, and occupational health and safety specialists, will perform reporting functions under the final rule. (6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected; The Agency did not identify any significant alternatives to the rule that could lessen the burden on small entities without compromising its goals or the Agency’s statutory mandate to implement the Clearinghouse. Because small businesses are such a large part of the demographic the Agency regulates, providing alternatives to small business to permit noncompliance with FMCSA E:\FR\FM\05DER2.SGM 05DER2 87722 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations regulations is neither feasible nor consistent with sound public policy. (7) A description of the steps taken by the covered agency to minimize any additional cost of credit for small entities. FMCSA is not a covered agency as defined in 5 U.S.C. 609(d)(2) of the Regulatory Flexibility Act. Therefore, it is not required to take steps to minimize any additional cost of credit for small entities. sradovich on DSK3GMQ082PROD with RULES2 Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to assess the effect of their discretionary regulatory actions (2 U.S.C. 1531–1538). An assessment under UMRA is not required for regulations that incorporate requirements specifically set forth in law (2 U.S.C. 1531). Because MAP–21 mandated that DOT establish, operate, and maintain a clearinghouse for records related to alcohol and drug testing of CMV operators, an assessment was not prepared. Federalism (E.O. 13132) A rule has implications for Federalism under E.O. 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. FMCSA recognized that, as a practical matter, this rule may have an impact on the States. Accordingly, by letters sent March 28, 2011, the Agency sought advice from the National Governors Association (NGA), National Conference of State Legislators (NCSL), and the AAMVA on the topic of developing a database that the Agency believed would increase the effectiveness of its drug and alcohol testing program. (Copies of the letters are available in the docket for this rulemaking.) FMCSA offered NGA, NCSL, and AAMVA officials the opportunity to meet and discuss issues of concern to the States. FMCSA did not receive any responses to this letter. Nevertheless, during the public comment period several commenters indicated that the Clearinghouse rule would have implications for Federalism under this executive order. At this time, section 32402 of MAP– 21 preempts State and local laws inconsistent with the Clearinghouse. Preemption specifically applies to the reporting of drug and alcohol tests, refusals, and any other violation of FMCSA’s drug and alcohol testing program. MAP–21 does not preempt State laws related to a driver’s CDL or VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 driving record. Each State must review its current requirements to determine whether they are compatible with this final rule. Civil Justice Reform (E.O. 12988) This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children (E.O. 13045) FMCSA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FMCSA determined that this final rule will not create an environmental risk to health or safety that may disproportionately affect children. Taking of Private Property (E.O. 12630) FMCSA reviewed this action in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it would not effect a taking of private property or otherwise have taking implications. Privacy Impact Assessment FMCSA conducted a privacy impact assessment of this action as required by section 522(a)(5) of division H of the FY 2005 Omnibus Appropriations Act, Pub. L. 108–447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a note to 5 U.S.C. 552a]. The assessment considers any impacts of the final rule on the privacy of information in an identifiable form and related matters. FMCSA has determined that this action would impact the handling of personally identifiable information (PII). FMCSA has also determined the risks and effects the rulemaking might have on collecting, storing, and sharing PII and has examined and evaluated protections and alternative information handling processes in developing the rule in order to mitigate potential privacy risks. The Privacy Impact Assessment for the Clearinghouse is available for review in the docket for this rulemaking. Intergovernmental Review (E.O. 12372) The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rule. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520), a Federal agency must obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. FMCSA analyzed this PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 action and preliminarily determined that its implementation would create a new information collection burden on CDL holders, motor carriers, and entities that provide services as part of FMCSA’s mandatory alcohol and controlled substances testing process under 49 CFR part 382. FMCSA will seek approval of the information collection requirements in a new information collection entitled ‘‘Commercial Driver’s License Drug and Alcohol Clearinghouse.’’ The collected information encompasses information that is generated, maintained, retained, disclosed, and provided to, or for, the Agency for a database that will be entitled the ‘‘Commercial Driver’s License Drug and Alcohol Clearinghouse’’ or Clearinghouse. DOT currently has approval for two information collections for its alcohol and controlled substances testing programs: (1) The Federal Chain of Custody and Control Form, OMB control number 0930–0158, and (2) the U.S. Department of Transportation Alcohol and Controlled Substances Testing Program, OMB control number 2105–0529. Although the Clearinghouse obtains information from the forms covered by the two information collections, this action does not create any revisions or additional burden under those collections. This rule will create a new information collection to cover the requirements set forth in the amendments to 49 CFR part 382. These amendments will create new requirements for CDL drivers, employers of CDL drivers, MROs, SAPs, and C/TPAs to register with the new database, which will be created and administered by FMCSA. Clearinghouse registration will be a prerequisite to both placing information in the database and obtaining information from the database. Access to information in the database will be strictly limited and controlled, and available only with the consent of the CDL holders about whom information is sought. Prospective employers of CDL drivers are required to query the Clearinghouse to determine if job applicants have controlled substance or alcohol testing violations that preclude them, under existing FMCSA regulations in part 382, from carrying out safety-sensitive functions. Employers will also be required to query the database once annually for information about drivers whom they currently employ. Employers, C/TPAs that perform testing and other services for carriers, MROs, and SAPs will place information into the database about alcohol and controlled substances testing violations. E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations This final rule contains procedures for correcting information in the database and specifies that most interactions with the database will be carried out using electronic media. The total burden to respondents for queries, designations, registration, familiarization, reporting, and recordkeeping to the Clearinghouse is estimated at about 1.86 million hours 87723 annually. The hours attributed to each activity are presented in the table below. TOTAL ANNUAL NUMBER OF BURDEN HOURS Submissions Responsible Performed by Annual Queries ............................................. Pre-Employment Queries .............................. Designate C/TPAs ......................................... SAPs Report Driver Information Following Initial Assessment. Report/Notify Positive Tests .......................... Register/Familiarize/Verify ............................ Driver Consent and Verifications .................. New-CDL and CDL-Renewal Queries .......... Employer .................. Employer .................. Employer .................. SAPs ......................... 5,200,000 1,996,328 520,000 55,580 10 10 10 10 867,000 333,000 87,000 9,000 ..................... ..................... ...................... ...................... Bookkeeping Clerk ... Bookkeeping Clerk ... Bookkeeping Clerk ... Occupational Health Specialist. Bookkeeping Clerk ... Bookkeeping Clerk ... Drivers ...................... SDLAs ...................... 117,000 793,000 2,357,328 0 10 20; 10 10 0 20,000 155,000 393,000 0 ................................... ................................... 11,039,655 ........................ 1,864,000 Total Instances/Hours ............................ sradovich on DSK3GMQ082PROD with RULES2 FMCSA prepared an information collection request and supporting statement that was submitted to the Office of Management and Budget and that is available for viewing pursuant to a notice to be published in the Federal Register. National Environmental Policy Act and Clean Air Act When FMCSA drafted the NPRM, the Agency prepared a draft environmental assessment (EA) under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The EA evaluated a range of proposed alternatives considered by FMCSA and determined that, if the NPRM reduces CMV crashes as estimated, there would be a small net benefit to the environment. The benefits include: Lives saved and injuries prevented from reducing CMV crashes, the reduction of fuel consumed and prevention of greenhouse gas and criteria pollutant emissions from traffic congestion caused by a CMV crash, the reduction of solid waste generated in CMV crashes from damaged vehicles, infrastructure and goods, and hazardous materials spilled during a CMV crash. (See section 3.2.1 of the draft EA for details.) However, after reviewing FMCSA’s NEPA Implementing Procedures and Policy for Considering Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR 9680), FMCSA determined that this final rule is excluded from further environmental review and documentation because it falls under a categorical exclusion (CE). The CE in paragraph 6(r) applies to regulations implementing employer controlled substances and alcohol use and testing procedures. As FMCSA received no comments on the draft EA, and does not expect the environmental VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 Various Various Drivers SDLAs impacts listed above to be considered significant under NEPA, the Agency has prepared a statement of Categorical Exclusion Determination for this final rule and does not find it necessary to issue a final EA or prepare an Environmental Impact Statement. FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and general conformity regulations (40 CFR part 51, subpart W, and part 93, subpart B) promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA’s general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants. Environmental Justice (E.O. 12898) FMCSA evaluated the environmental effects of this final rule in accordance with E.O. 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were ‘‘disproportionate’’ and ‘‘high and adverse impact’’ on minority or low-income populations. Energy Supply, Distribution, or Use (E.O. 13211) FMCSA has analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. While FMCSA’s analysis shows a small reduction in fuel used due to eliminating traffic idling caused by CMV crashes, we have determined that it would not be a ‘‘significant energy action’’ under that Executive Order because it would not be likely to have PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 Instances Minutes Total hours a significant adverse effect on the supply, distribution, or use of energy. Indian Tribal Governments (E.O. 13175) This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. National Technology Transfer and Advancement Act (Technical Standards) The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. FAST Act Waiver of Advance Notice of Proposed Rulemaking/Negotiated Rulemaking FMCSA is aware of the regulatory reform requirements imposed by the FAST Act concerning public participation in rulemaking (49 U.S.C. E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 87724 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations 31136(g)). In the Agency’s judgment, these requirements, which pertain to certain major rules, are not applicable to this final rule. In any event, the Agency finds that, for the reasons stated below, publication of an advance notice of proposed rulemaking under 49 U.S.C. 31136(g)(1)(A), or a negotiated rulemaking under 49 U.S.C. 31136(g)(1)(B), is unnecessary and contrary to the public interest in accordance with the waiver provision in 49 U.S.C. 31136(g)(3). This final rule implements the MAP– 21 mandate that DOT establish and maintain a national clearinghouse for records related to alcohol and controlled substances testing. The public had ample opportunity to comment on the Agency’s February 20, 2014 NPRM proposing the establishment of the Clearinghouse (79 FR 9703). The Agency received 165 comments to the 2014 NPRM and made significant changes, reflected in this rule, in response to the commentary. Further, the final rule is the product of years of study and deliberation concerning an important public safety issue. As previously noted, this rule implements the NTSB’s recommendation, included in its August 2001 report on the 1999 New Orleans bus crash resulting in multiple fatalities, that FMCSA establish a system to record positive DOT drug and alcohol test results and require prospective employers to query the system before hiring a driver. The rule also incorporates many of the findings and recommendations contained in FMCSA’s March 2004 report to Congress, ‘‘A Report to Congress on the Feasibility and Merits of Reporting Verified Positive Federal Controlled Substance Test Results to the States and Requiring FMCSA-Regulated Employers to Query the State Databases Before Hiring a Commercial Drivers License (CDL) Holder’’. In addition, this rule implements a key recommendation of the GAO’s May 2008 Report to Congress, ‘‘Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them off the Road’’ (GAO–08–600) and responds to concerns identified in GAO’s June 2008 report to Congress, ‘‘Examples of Job-hopping by Commercial Drivers after Failing Drug Tests’’ (GAO–08– 0829R). In view of the extensive record of public input, study and oversight that informs this final rule, any further public participation measures would be unnecessary. Because the Agency strongly believes that establishment of the Clearinghouse will improve highway safety, the public interest is VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 best served by the publication of this rule. List of Subjects 49 CFR Part 382 Administrative practice and procedure, Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation. 49 CFR Part 383 Administrative practice and procedure, Commercial driver’s license, Highway safety, Motor carriers. 49 CFR Part 384 Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers. 49 CFR Part 391 Driver qualification, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation. For the reasons discussed in the preamble, the Federal Motor Carrier Safety Administration amends 49 CFR parts 382, 383, 384, and 391 as follows: PART 382—CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING 1. The authority citation for part 382 continues to read as follows: ■ Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 32934 of Pub. L. 112–141, 126 Stat. 405, 830; and 49 CFR 1.87. 2. Amend § 382.103 by revising the introductory text of paragraph (a) to read as follows: ■ § 382.103 Applicability. (a) This part applies to service agents and to every person and to all employers of such persons who operate a commercial motor vehicle in commerce in any State and are subject to: * * * * * ■ 3. Amend § 382.107 by adding the definitions ‘‘Commercial Driver’s License Drug and Alcohol Clearinghouse’’ and ‘‘Negative return-toduty test result’’ in alphabetical order to read as follows: § 382.107 Definitions. * * * * * Commercial Driver’s License Drug and Alcohol Clearinghouse (Clearinghouse) means the FMCSA database that subpart G of this part requires employers and service agents to report information to and to query regarding drivers who are PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 subject to the DOT controlled substance and alcohol testing regulations. * * * * * Negative return-to-duty test result means a return-to-duty test with a negative drug result and/or an alcohol test with an alcohol concentration of less than 0.02, as described in § 40.305 of this title. * * * * * ■ 4. Add § 382.123 to read as follows: § 382.123 Driver identification. (a) Identification information on the Alcohol Testing Form (ATF). For each alcohol test performed under this part, the employer shall provide the driver’s commercial driver’s license number and State of issuance in Step 1, Section B of the ATF. (b) Identification information on the Federal Drug Testing Custody and Control Form (CCF). For each controlled substance test performed under this part, the employer shall provide the following information, which must be recorded as follows: (1) The driver’s commercial driver’s license number and State of issuance in Step 1, section C of the CCF. (2) The employer’s name and other identifying information required in Step 1, section A of the ATF. ■ 5. Add § 382.217 to read as follows: § 382.217 Employer responsibilities. No employer may allow, require, permit or authorize a driver to operate a commercial motor vehicle during any period in which an employer determines that a driver is not in compliance with the return-to-duty requirements in 49 CFR part 40, subpart O, after the occurrence of any of the following events: (a) The driver receives a positive, adulterated, or substituted drug test result conducted under part 40 of this title. (b) The driver receives an alcohol confirmation test result of 0.04 or higher alcohol concentration conducted under part 40 of this title. (c) The driver refused to submit to a test for drugs or alcohol required under this part. (d) The driver used alcohol prior to a post-accident alcohol test in violation of § 382.209. (e) An employer has actual knowledge, as defined at § 382.107, that a driver has: (1) Used alcohol while performing safety-sensitive functions in violation of § 382.205; (2) Used alcohol within four hours of performing safety-sensitive functions in violation of § 382.207; or E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations (3) Used a controlled substance. 6. Amend § 382.401 by revising paragraph (b)(1)(vi) to read as follows: ■ § 382.401 Retention of records. * * * * * (b) * * * (1) * * * (vi) Records related to the administration of the alcohol and controlled substances testing program, including records of all driver violations, and * * * * * ■ 7. Amend § 382.405 by revising paragraphs (d) and (e) to read as follows: § 382.405 Access to facilities and records. * * * * * (d) Each employer, and each service agent who maintains records for an employer, must make available copies of all results for DOT alcohol and/or controlled substances testing conducted by the employer under this part and any other information pertaining to the employer’s alcohol misuse and/or controlled substances use prevention program when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers. (e) When requested by the National Transportation Safety Board as a part of a crash investigation: (1) Employers must disclose information related to the employer’s administration of a post-accident alcohol and/or a controlled substances test administered following the crash under investigation; and (2) FMCSA will provide access to information in the Clearinghouse concerning drivers who are involved with the crash under investigation. * * * * * ■ 8. Amend § 382.409 by revising the section heading and paragraph (c) to read as follows: § 382.409 Medical review officer or consortium/third party administrator record retention for controlled substances. sradovich on DSK3GMQ082PROD with RULES2 * * * * * (c) No person may obtain the individual controlled substances test results retained by a medical review officer (MRO as defined in § 40.3 of this title) or a consortium/third party administrator (C/TPA as defined in § 382.107), and no MRO or C/TPA may release the individual controlled substances test results of any driver to any person, without first obtaining a specific, written authorization from the tested driver. Nothing in this paragraph (c) shall prohibit a MRO or a C/TPA VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 87725 from releasing to the employer, the Clearinghouse, or to the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the controlled substances and alcohol testing program under this part, the information delineated in part 40, subpart G, of this title. ■ 9. Revise § 382.413 to read as follows: notice of the violation, or prior to performing any safety-sensitive function, whichever comes first. ■ 11. Amend § 382.601 by: ■ a. Removing the period at the end of paragraph (b)(11) and adding ‘‘; and’’ in its place; and ■ b. Adding paragraph (b)(12). The addition reads as follows: § 382.413 Inquiries for alcohol and controlled substances information from previous employers. § 382.601 Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances. (a) Employers must request alcohol and controlled substances information from previous employers in accordance with the requirements of § 40.25 of this title, except that the employer must request information from all DOTregulated employers that employed the driver within the previous 3 years and the scope of the information requested must date back 3 years. (b) As of January 6, 2023, employers must use the Drug and Alcohol Clearinghouse in accordance with § 382.701(a) to comply with the requirements of § 40.25 of this title with respect to FMCSA-regulated employers. Exception: When an employee who is subject to follow-up testing has not successfully completed all follow-up tests, employers must request the employee’s follow-up testing plan directly from the previous employer in accordance with § 40.25(b)(5) of this title. (c) If an applicant was subject to an alcohol and controlled substance testing program under the requirements of a DOT Agency other than FMCSA, the employer must request the alcohol and controlled substances information required under this section and § 40.25 of this title directly from those employers regulated by a DOT Agency other than FMCSA. ■ 10. Add § 382.415 to read as follows: * § 382.415 Notification to employers of a controlled substances or alcohol testing program violation. Each person holding a commercial driver’s license and subject to the DOT controlled substances and alcohol testing requirements in this part who has violated the alcohol and controlled substances prohibitions under part 40 of this title or this part without complying with the requirements of part 40, subpart O, must notify in writing all current employers of such violation(s). The driver is not required to provide notification to the employer that administered the test or documented the circumstances that gave rise to the violation. The notification must be made before the end of the business day following the day the employee received PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 * * * * (b) * * * (12) The requirement that the following personal information collected and maintained under this part shall be reported to the Clearinghouse: (i) A verified positive, adulterated, or substituted drug test result; (ii) An alcohol confirmation test with a concentration of 0.04 or higher; (iii) A refusal to submit to any test required by subpart C of this part; (iv) An employer’s report of actual knowledge, as defined at § 382.107: (A) On duty alcohol use pursuant to § 382.205; (B) Pre-duty alcohol use pursuant to § 382.207; (C) Alcohol use following an accident pursuant to § 382.209; and (D) Controlled substance use pursuant to § 382.213; (v) A substance abuse professional (SAP as defined in § 40.3 of this title) report of the successful completion of the return-to-duty process; (vi) A negative return-to-duty test; and (vii) An employer’s report of completion of follow-up testing. * * * * * ■ 12. Add subpart G to part 382 to read as follows: Subpart G—Requirements and Procedures for Implementation of the Commercial Driver’s License Drug and Alcohol Clearinghouse Sec. 382.701 Drug and Alcohol Clearinghouse. 382.703 Driver consent to permit access to information in the Clearinghouse. 382.705 Reporting to the Clearinghouse. 382.707 Notice to drivers of entry, revision, removal, or release of information. 382.709 Drivers’ access to information in the Clearinghouse. 382.711 Clearinghouse registration. 382.713 Duration, cancellation, and revocation of access. 382.715 Authorization to enter information into the Clearinghouse. 382.717 Procedures for correcting information in the database. 382.719 Availability and removal of information. 382.721 Fees. 382.723 Unauthorized access or use prohibited. E:\FR\FM\05DER2.SGM 05DER2 87726 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations 382.725 Access by State licensing authorities. 382.727 Penalties. Subpart G—Requirements and Procedures for Implementation of the Commercial Driver’s License Drug and Alcohol Clearinghouse sradovich on DSK3GMQ082PROD with RULES2 § 382.701 Drug and Alcohol Clearinghouse. (a) Pre-employment query required. (1) Employers must not employ a driver subject to controlled substances and alcohol testing under this part to perform a safety-sensitive function without first conducting a preemployment query of the Clearinghouse to obtain information about whether the driver has a verified positive, adulterated, or substituted controlled substances test result; has an alcohol confirmation test with a concentration of 0.04 or higher; has refused to submit to a test in violation of § 382.211; or that an employer has reported actual knowledge, as defined at § 382.107, that the driver used alcohol on duty in violation of § 382.205, used alcohol before duty in violation of § 382.207, used alcohol following an accident in violation of § 382.209, or used a controlled substance, in violation of § 382.213. (2) The employer must conduct a full query under this section, which releases information in the Clearinghouse to an employer and requires that the individual driver give specific consent. (b) Annual query required. (1) Employers must conduct a query of the Clearinghouse at least once per year for information for all employees subject to controlled substance and alcohol testing under this part to determine whether information exists in the Clearinghouse about those employees. (2) In lieu of a full query, as described in paragraph (a)(2) of this section, an employer may obtain the individual driver’s consent to conduct a limited query to satisfy the annual query requirement in paragraph (b)(1) of this section. The limited query will tell the employer whether there is information about the individual driver in the Clearinghouse, but will not release that information to the employer. The individual driver may give consent to conduct limited queries that is effective for more than one year. (3) If the limited query shows that information exists in the Clearinghouse about the individual driver, the employer must conduct a full query, in accordance with paragraph (a)(2) of this section, within 24 hours of conducting the limited query. If the employer fails to conduct a full query within 24 hours, VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 the employer must not allow the driver to continue to perform any safetysensitive function until the employer conducts the full query and the results confirm that the driver’s Clearinghouse record contains no prohibitions as defined in paragraph (d) of this section. (c) Employer notification. If any information described in paragraph (a) of this section is entered into the Clearinghouse about a driver during the 30-day period immediately following an employer conducting a query of that driver’s records, FMCSA will notify the employer. (d) Prohibition. No employer may allow a driver to perform any safetysensitive function if the results of a Clearinghouse query demonstrate that the driver has a verified positive, adulterated, or substituted controlled substances test result; has an alcohol confirmation test with a concentration of 0.04 or higher; has refused to submit to a test in violation of § 382.211; or that an employer has reported actual knowledge, as defined at § 382.107, that the driver used alcohol on duty in violation of § 382.205, used alcohol before duty in violation of § 382.207, used alcohol following an accident in violation of § 382.209, or used a controlled substance in violation of § 382.213, except where a query of the Clearinghouse demonstrates: (1) That the driver has successfully completed the SAP evaluation, referral, and education/treatment process set forth in part 40, subpart O, of this title; achieves a negative return-to-duty test result; and completes the follow-up testing plan prescribed by the SAP. (2) That, if the driver has not completed all follow-up tests as prescribed by the SAP in accordance with § 40.307 of this title and specified in the SAP report required by § 40.311 of this title, the driver has completed the SAP evaluation, referral, and education/treatment process set forth in part 40, subpart O, of this title and achieves a negative return-to-duty test result, and the employer assumes the responsibility for managing the followup testing process associated with the testing violation. (e) Recordkeeping required. Employers must retain for 3 years a record of each query and all information received in response to each query made under this section. As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement. § 382.703 Driver consent to permit access to information in the Clearinghouse. (a) No employer may query the Clearinghouse to determine whether a PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 record exists for any particular driver without first obtaining that driver’s written or electronic consent. The employer conducting the search must retain the consent for 3 years from the date of the last query. (b) Before the employer may access information contained in the driver’s Clearinghouse record, the driver must submit electronic consent through the Clearinghouse granting the employer access to the following specific records: (1) A verified positive, adulterated, or substituted controlled substances test result; (2) An alcohol confirmation test with a concentration of 0.04 or higher; (3) A refusal to submit to a test in violation of § 382.211; (4) An employer’s report of actual knowledge, as defined at § 382.107, of: (i) On duty alcohol use pursuant to § 382.205; (ii) Pre-duty alcohol use pursuant to § 382.207; (iii) Alcohol use following an accident pursuant to § 382.209; and (iv) Controlled substance use pursuant to § 382.213; (5) A SAP report of the successful completion of the return-to-duty process; (6) A negative return-to-duty test; and (7) An employer’s report of completion of follow-up testing. (c) No employer may permit a driver to perform a safety-sensitive function if the driver refuses to grant the consent required by paragraphs (a) and (b) of this section. (d) A driver granting consent under this section must provide consent electronically to the Agency through the Clearinghouse prior to release of information to an employer in accordance with § 382.701(a)(2) or (b)(3). (e) A driver granting consent under this section grants consent for the Agency to release information to an employer in accordance with § 382.701(c). § 382.705 Reporting to the Clearinghouse. (a) MROs. (1) Within 2 business days of making a determination or verification, MROs must report the following information about a driver to the Clearinghouse: (i) Verified positive, adulterated, or substituted controlled substances test results; (ii) Refusal-to-test determination by the MRO in accordance with 49 CFR 40.191(a)(5), (7), and (11), (b), and (d)(2). (2) MROs must provide the following information for each controlled substances test result specified in paragraph (a)(1) of this section: E:\FR\FM\05DER2.SGM 05DER2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations (i) Reason for the test; (ii) Federal Drug Testing Custody and Control Form specimen ID number; (iii) Driver’s name, date of birth, and CDL number and State of issuance; (iv) Employer’s name, address, and USDOT number, if applicable; (v) Date of the test; (vi) Date of the verified result; and (vii) Test result. The test result must be one of the following: (A) Positive (including the controlled substance(s) identified); (B) Refusal to test: Adulterated; (C) Refusal to test: Substituted; or (D) Refusal to provide a sufficient specimen after the MRO makes a determination, in accordance with § 40.193 of this title, that the employee does not have a medical condition that has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine. Under this subpart a refusal would also include a refusal to undergo a medical examination or evaluation to substantiate a qualifying medical condition. (3) Within 1 business day of making any change to the results report in accordance with paragraph (a)(1) of this section, a MRO must report that changed result to the Clearinghouse. (b) Employers. (1) Employers must report the following information about a driver to the Clearinghouse by the close of the third business day following the date on which they obtained that information: (i) An alcohol confirmation test result with an alcohol concentration of 0.04 or greater; (ii) A negative return-to-duty test result; (iii) A refusal to take an alcohol test pursuant to 49 CFR 40.261; (iv) A refusal to test determination made in accordance with 49 CFR 40.191(a)(1) through (4), (a)(6), (a)(8) through (11), or (d)(1), but in the case of a refusal to test under (a)(11), the employer may report only those admissions made to the specimen collector; and (v) A report that the driver has successfully completed all follow-up tests as prescribed in the SAP report in accordance with §§ 40.307, 40.309, and 40.311 of this title. (2) The information required to be reported under paragraph (b)(1) of this section must include, as applicable: (i) Reason for the test; (ii) Driver’s name, date of birth, and CDL number and State of issuance; (iii) Employer name, address, and USDOT number; (iv) Date of the test; VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 (v) Date the result was reported; and (vi) Test result. The test result must be one of the following: (A) Negative (only required for returnto-duty tests administered in accordance with § 382.309); (B) Positive; or (C) Refusal to take a test. (3) For each report of a violation of 49 CFR 40.261(a)(1) or 40.191(a)(1), the employer must report the following information: (i) Documentation, including, but not limited to, electronic mail or other contemporaneous record of the time and date the driver was notified to appear at a testing site; and the time, date and testing site location at which the employee was directed to appear, or an affidavit providing evidence of such notification; (ii) Documentation, including, but not limited to, electronic mail or other correspondence, or an affidavit, indicating the date the employee was terminated or resigned (if applicable); (iii) Documentation, including, but not limited to, electronic mail or other correspondence, or an affidavit, showing that the C/TPA reporting the violation was designated as a service agent for an employer who employs himself/herself as a driver pursuant to paragraph (b)(6) of this section when the reported refusal occurred (if applicable); and (iv) Documentation, including a certificate of service or other evidence, showing that the employer provided the employee with all documentation reported under paragraph (b)(3) of this section. (4) Employers must report the following violations by the close of the third business day following the date on which the employer obtains actual knowledge, as defined at § 382.107, of: (i) On-duty alcohol use pursuant to § 382.205; (ii) Pre-duty alcohol use pursuant to § 382.207; (iii) Alcohol use following an accident pursuant to § 382.209; and (iv) Controlled substance use pursuant to § 382.213. (5) For each violation in paragraph (b)(4) of this section, the employer must report the following information: (i) Driver’s name, date of birth, CDL number and State of issuance; (ii) Employer name, address, and USDOT number, if applicable; (iii) Date the employer obtained actual knowledge of the violation; (iv) Witnesses to the violation, if any, including contact information; (v) Description of the violation; (vi) Evidence supporting each fact alleged in the description of the PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 87727 violation required under paragraph (b)(4) of this section, which may include, but is not limited to, affidavits, photographs, video or audio recordings, employee statements (other than admissions pursuant to § 382.121), correspondence, or other documentation; and (vii) A certificate of service or other evidence showing that the employer provided the employee with all information reported under paragraph (b)(4) of this section. (6) An employer who employs himself/herself as a driver must designate a C/TPA to comply with the employer requirements in paragraph (b) of this section related to his or her own alcohol and controlled substances use. (c) C/TPAs. Any employer may designate a C/TPA to perform the employer requirements in paragraph (b) of this section. Regardless of whether it uses a C/TPA to perform its requirements, the employer retains ultimate responsibility for compliance with this section. Exception: An employer does not retain responsibility where the C/TPA is designated to comply with employer requirements as described in paragraph (b)(6) of this section. (d) SAPs. (1) SAPs must report to the Clearinghouse for each driver who has completed the return-to-duty process in accordance with 49 CFR part 40, subpart O, the following information: (i) SAPs name, address, and telephone number; (ii) Driver’s name, date of birth, and CDL number and State of issuance; (iii) Date of the initial substanceabuse-professional assessment; and (iv) Date the SAP determined that the driver demonstrated successful compliance as defined in 49 CFR part 40, subpart O, and was eligible for return-to-duty testing under this part. (2) SAP must report the information required by paragraphs (d)(1)(i) through (iii) of this section by the close of the business day following the date of the initial substance abuse assessment, and must report the information required by paragraph (d)(1)(iv) of this section by the close of the business day following the determination that the driver has completed the return-to-duty process. (e) Reporting truthfully and accurately. Every person or entity with access must report truthfully and accurately to the Clearinghouse and is expressly prohibited from reporting information he or she knows or should know is false or inaccurate. E:\FR\FM\05DER2.SGM 05DER2 87728 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations REPORTING ENTITIES AND CIRCUMSTANCES Reporting entity Prospective/Current CDL Driver. Employer When information will be reported to clearinghouse of Service Agent acting on behalf of Current Employer of CDL Driver. MRO ................................................ SAP ................................................. —An alcohol confirmation test with a concentration of 0.04 or higher. —Refusal to test (alcohol) as specified in 49 CFR 40.261. —Refusal to test (drug) not requiring a determination by the MRO as specified in 49 CFR 40.191. —Actual knowledge, as defined in 49 CFR 382.107, that a driver has used alcohol on duty, used alcohol within four hours of coming on duty, used alcohol prior to post-accident testing, or has used a controlled substance. —Negative return-to-duty test results (drug and alcohol testing, as applicable) —Completion of follow-up testing. —An alcohol confirmation test with a concentration of 0.04 or higher. —Refusal to test (alcohol) as specified in 49 CFR 40.261. —Refusal to test (drug) not requiring a determination by the MRO as specified in 49 CFR 40.191. —Actual knowledge, as defined in 49 CFR 382.107, that a driver has used alcohol on duty, used alcohol within four hours of coming on duty, used alcohol prior to post-accident testing, or has used a controlled substance. —Negative return-to-duty test results (drug and alcohol testing, as applicable) —Completion of follow-up testing. —Verified positive, adulterated, or substituted drug test result. —Refusal to test (drug) requiring a determination by the MRO as specified in 49 CFR 40.191. —Identification of driver and date the initial assessment was initiated. —Successful completion of treatment and/or education and the determination of eligibility for return-to-duty testing. § 382.707 Notice to drivers of entry, revision, removal, or release of information. (a) FMCSA must notify a driver when information concerning that driver has been added to, revised, or removed from the Clearinghouse. (b) FMCSA must notify a driver when information concerning that driver has been released from the Clearinghouse to an employer and specify the reason for the release. (c) Drivers will be notified by letter sent by U.S. Mail to the address on record with the State Driver Licensing Agency that issued the driver’s commercial driver’s license. Exception: A driver may provide the Clearinghouse with an alternative means or address for notification, including electronic mail. § 382.709 Drivers’ access to information in the Clearinghouse. A driver may review information in the Clearinghouse about himself or herself, except as otherwise restricted by law or regulation. A driver must register with the Clearinghouse before accessing his or her information. sradovich on DSK3GMQ082PROD with RULES2 § 382.711 Clearinghouse registration. (a) Clearinghouse registration required. Each employer and service agent must register with the Clearinghouse before accessing or reporting information in the Clearinghouse. (b) Employers. (1) Employer Clearinghouse registration must include: (i) Name, address, and telephone number; (ii) USDOT number, except if the registrant does not have a USDOT Number, it may be requested to provide other information to verify identity; and VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 (iii) Name of the person(s) the employer authorizes to report information to or obtain information from the Clearinghouse and any additional information FMCSA needs to validate his or her identity. (2) Employers must verify the names of the person(s) authorized under paragraph (b)(1)(iii) of this section annually. (3) Identification of the C/TPA or other service agent used to comply with the requirements of this part, if applicable, and authorization for the C/ TPA to query or report information to the Clearinghouse. Employers must update any changes to this information within 10 days. (c) MROs and SAPs. Each MRO or SAP must provide the following to apply for Clearinghouse registration: (1) Name, address, telephone number, and any additional information FMCSA needs to validate the applicant’s identity; (2) A certification that the applicant’s access to the Clearinghouse is conditioned on his or her compliance with the applicable qualification and/or training requirements in 49 CFR part 40; and (3) Evidence of required professional credentials to verify that the applicant currently meets the applicable qualification and/or training requirements in 49 CFR part 40. (d) C/TPAs and other service agents. Each consortium/third party administrator or other service agent must provide the following to apply for Clearinghouse registration: (1) Name, address, telephone number, and any additional information FMCSA PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 needs to validate the applicant’s identity; and (2) Name, title, and telephone number of the person(s) authorized to report information to and obtain information from the Clearinghouse. (3) Each C/TPA or other service agent must verify the names of the person(s) authorized under paragraph (d)(2) of this section annually. § 382.713 Duration, cancellation, and revocation of access. (a) Term. Clearinghouse registration is valid for 5 years, unless cancelled or revoked. (b) Cancellation. FMCSA will cancel Clearinghouse registrations for anyone who has not queried or reported to the Clearinghouse for 2 years. (c) Revocation. FMCSA has the right to revoke the Clearinghouse registration of anyone who fails to comply with any of the prescribed rights and restrictions on access to the Clearinghouse, including but not limited to, submission of inaccurate or false information and misuse or misappropriation of access rights or protected information from the Clearinghouse and failure to maintain the requisite qualifications, certifications and/or training requirements as set forth in part 40 of this title. § 382.715 Authorization to enter information into the Clearinghouse. (a) C/TPAs. No C/TPA or other service agent may enter information into the Clearinghouse on an employer’s behalf unless the employer designates the C/ TPA or other service agent. (b) SAPs. A driver must designate a SAP before that SAP can enter any E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations information about the driver’s return-toduty process into the Clearinghouse. sradovich on DSK3GMQ082PROD with RULES2 § 382.717 Procedures for correcting information in the database. (a) Petitions limited to inaccurately reported information. (1) Under this section, petitioners may challenge only the accuracy of information reporting, not the accuracy of test results or refusals. (2) Exceptions. (i) Petitioners may request that FMCSA remove from the Clearinghouse an employer’s report of actual knowledge that the driver received a traffic citation for driving a commercial motor vehicle while under the influence of alcohol or controlled substances if the citation did not result in a conviction. For the purposes of this section, conviction has the same meaning as used in 49 CFR part 383. (ii) Petitioners may request that FMCSA remove from the Clearinghouse an employer’s report of actual knowledge (other than as provided for in paragraph (a)(2)(i) of this section) if that report does not comply with the reporting requirements in § 382.705(b)(5). (iii) Petitioners may request that FMCSA remove from the Clearinghouse an employer’s report of a violation under 49 CFR 40.261(a)(1) or 40.191(a)(1) if that report does not comply with the reporting requirements in § 382.705(b)(3). (b) Petition. Any driver or authorized representative of the driver may submit a petition to the FMCSA contesting the accuracy of information in the Clearinghouse. The petition must include: (1) The petitioner’s name, address, telephone number, and CDL number and State of issuance; (2) Detailed description of the basis for the allegation that the information is not accurate; and (3) Evidence supporting the allegation that the information is not accurate. Failure to submit evidence is cause for dismissing the petition. (c) Submission of petition. The petitioner may submit his/her petition electronically through the Clearinghouse or in writing to: Federal Motor Carrier Safety Administration, Office of Enforcement and Compliance, Attention: Drug and Alcohol Program Manager, 1200 New Jersey Avenue SE., Washington, DC 20590. (d) Notice of decision. Within 45 days of receiving a complete petition, FMCSA will inform the driver in writing of its decision to remove, retain, or correct the information in the database and provide the basis for the decision. VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 (e) Request for expedited treatment. (1) A driver may request expedited treatment to correct inaccurate information in his or her Clearinghouse record under paragraph (a)(1) of this section if the inaccuracy is currently preventing him or her from performing safety-sensitive functions, or to remove employer reports under paragraph (a)(2) of this section if such reports are currently preventing him or her from performing safety-sensitive functions. This request may be included in the original petition or as a separate document. (2) If FMCSA grants expedited treatment, it will subsequently inform the driver of its decision in writing within 14 days of receipt of a complete petition. (f) Administrative review. (1) A driver may request FMCSA to conduct an administrative review if he or she believes that a decision made in accordance with paragraph (d) or (e) of this section was in error. (2) The request must prominently state at the top of the document: ‘‘Administrative Review of Drug and Alcohol Clearinghouse Decision’’ and the driver may submit his/her request electronically through the Clearinghouse or in writing to the Associate Administrator for Enforcement (MC–E), Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. (3) The driver’s request must explain the error he or she believes FMCSA committed and provide information and/or documents to support his or her argument. (4) FMCSA will complete its administrative review no later than 30 days after receiving the driver’s request for review. The Associate Administrator’s decision will constitute the final Agency action. (g) Subsequent notification to employers. When information is corrected or removed in accordance with this section, or in accordance with 49 CFR part 10, FMCSA will notify any employer that accessed the incorrect information that a correction or removal was made. § 382.719 Availability and removal of information. (a) Driver information not available. Information about a driver’s drug or alcohol violation will not be available to an employer conducting a query of the Clearinghouse after all of the following conditions relating to the violation are satisfied: PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 87729 (1) The SAP reports to the Clearinghouse the information required in § 382.705(d); (2) The employer reports to the Clearinghouse that the driver’s returnto-duty test results are negative; (3) The driver’s current employer reports that the driver has successfully completed all follow-up tests as prescribed in the SAP report in accordance with §§ 40.307, 40.309, and 40.311 of this title; and (4) Five years have passed since the date of the violation determination. (b) Driver information remains available. Information about a particular driver’s drug or alcohol violation will remain available to employers conducting a query until all requirements in paragraph (a) of this section have been met. (c) Exceptions. (1) Within 2 business days of granting a request for removal pursuant to § 382.717(a)(2)(i), FMCSA will remove information from the Clearinghouse. (2) Information about a particular driver’s drug or alcohol violation may be removed in accordance with § 382.717(a)(2)(ii) and (iii) or in accordance with 49 CFR part 10. (d) Driver information remains available. Nothing in this part shall prevent FMCSA from using information removed under this section for research, auditing, or enforcement purposes. § 382.721 Fees. FMCSA may collect a reasonable fee from entities required to query the Clearinghouse. Exception: No driver may be required to pay a fee to access his or her own information in the Clearinghouse. § 382.723 Unauthorized access or use prohibited. (a) Except as expressly authorized in this subpart, no person or entity may access the Clearinghouse. No person or entity may share, distribute, publish, or otherwise release any information in the Clearinghouse except as specifically authorized by law. No person may report inaccurate or misleading information to the Clearinghouse. (b) An employer’s use of information received from the Clearinghouse is limited to determining whether a prohibition applies to a driver performing a safety-sensitive function with respect to a commercial motor vehicle. No employer may divulge or permit any other person or entity to divulge any information from the Clearinghouse to any person or entity not directly involved in determining whether a prohibition applies to a driver performing a safety-sensitive function E:\FR\FM\05DER2.SGM 05DER2 87730 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations with respect to a commercial motor vehicle. (c) Violations of this section are subject to civil and criminal penalties in accordance with applicable law, including those set forth at § 382.507. (d) Nothing in this part shall prohibit FMCSA from accessing information about individual drivers in the Clearinghouse for research, auditing, or enforcement purposes. § 382.725 Access by State licensing authorities. (a) In order to determine whether a driver is qualified to operate a commercial motor vehicle, the chief commercial driver’s licensing official of a State must obtain the driver’s record from the Clearinghouse if the driver has applied for a commercial driver’s license from that State. (b) By applying for a commercial driver’s license, a driver is deemed to have consented to the release of information from the Clearinghouse in accordance with this section. (c) The chief commercial driver’s licensing official’s use of information received from the Clearinghouse is limited to determining an individual’s qualifications to operate a commercial motor vehicle. No chief driver’s licensing official may divulge or permit any other person or entity to divulge any information from the Clearinghouse to any person or entity not directly involved in determining an individual’s qualifications to operate a commercial motor vehicle. (d) A chief commercial driver’s licensing official who does not take appropriate safeguards to protect the privacy and confidentiality of information obtained under this section is subject to revocation of his or her right of access under this section. § 382.727 Penalties. An employer, employee, MRO, or service agent who violates any provision of this subpart shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b)(2)(C). PART 383—COMMERCIAL DRIVER’S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 13. The authority citation for part 383 is revised to read as follows: sradovich on DSK3GMQ082PROD with RULES2 ■ Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 214 and 215 of Pub. L. 106–159, 113 Stat. 1748, 1766, 1767; sec. 1012(b) of Pub. L. 107–56, 115 Stat. 272, 297; sec. 4140 of Pub. L. 109–59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112–141, 126 Stat. 405, 830; sec. 7208 of Pub. L. 114–94, 129 Stat. 1312, 1593; and 49 CFR 1.87. ■ 14. Amend § 383.73 by: VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 a. Removing the word ‘‘and’’ at the end of paragraph (b)(8); ■ b. Removing the period at the end of paragraph (b)(9) and adding ‘‘; and’’ in its place; ■ c. Adding paragraph (b)(10); ■ d. Removing ‘‘and:’’ at the end of paragraph (c)(8) and adding a semicolon in its place; ■ e. Removing the period at the end of paragraph (c)(9) and adding ‘‘; and’’ in its place; ■ f. Adding paragraph (c)(10); ■ g. Removing the word ‘‘and’’ at the end of paragraph (d)(7); ■ h. Removing the period at the end of paragraph (d)(8) and adding ‘‘; and’’ in its place; ■ i. Adding paragraph (d)(9); ■ j. Removing ‘‘and:’’ at the end of paragraph (e)(6) and adding a semicolon in its place; ■ k. Removing the period at the end of paragraph (e)(7) and adding ‘‘; and’’ in its place; ■ l. Adding paragraphs (e)(8) and (f)(4). The additions read as follows: ■ § 383.73 State procedures. * * * * * (b) * * * (10) Beginning January 6, 2020, request information from the Drug and Alcohol Clearinghouse in accordance with § 382.725 of this chapter. (c) * * * (10) Beginning January 6, 2020, request information from the Drug and Alcohol Clearinghouse in accordance with § 382.725 of this chapter. (d) * * * (9) Beginning January 6, 2020, request information from the Drug and Alcohol Clearinghouse in accordance with § 382.725 of this chapter. (e) * * * (8) Beginning January 6, 2020, request information from the Drug and Alcohol Clearinghouse in accordance with § 382.725 of this chapter. (f) * * * (4) Beginning January 6, 2020, for drivers seeking issuance, renewal, upgrade or transfer of a non-domiciled CDL, request information from the Drug and Alcohol Clearinghouse in accordance with § 382.725 of this chapter. * * * * * PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER’S LICENSE PROGRAM 15. The authority citation for this part is revised to read as follows: ■ Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103 and 215 of Pub. L. 106– 59, 113 Stat. 1753, 1767; sec. 32934 of Pub. PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 L. 112–141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114–94, 129 Stat. 1312, 1560; and 49 CFR 1.87. ■ 16. Add § 384.235 to read as follows: § 384.235 Commercial driver’s license Drug and Alcohol Clearinghouse. Beginning January 6, 2020, the State must request information from the Clearinghouse in accordance with § 383.73 of this chapter. PART 391—QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS 17. The authority citation for part 391 continues to read as follows: ■ Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502; sec. 4007(b) of Pub. L. 102–240, 105 Stat. 1914, 2152; sec. 114 of Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106–159, 113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112–141, 126 Stat. 405, 830; and 49 CFR 1.87. 18. Amend § 391.23 by adding paragraph (e)(4) and revising paragraph (f) to read as follows: ■ § 391.23 Investigation and inquiries. * * * * * (e) * * * (4) As of January 6, 2023, employers subject to § 382.701(a) of this chapter must use the Drug and Alcohol Clearinghouse to comply with the requirements of this section with respect to FMCSA-regulated employers. (i) Exceptions. (A) If an applicant who is subject to follow-up testing has not successfully completed all follow-up tests, the employer must request the applicant’s follow-up testing plan directly from the previous employer in accordance with § 40.25(b)(5) of this title. (B) If an applicant was subject to an alcohol and controlled substance testing program under the requirements of a DOT mode other than FMCSA, the employer must request alcohol and controlled substances information required under this section directly from those employers regulated by a DOT mode other than FMCSA. (ii) [Reserved] (f)(1) A prospective motor carrier employer must provide to the previous employer the driver’s consent meeting the requirements of § 40.321(b) of this title for the release of the information in paragraph (e) of this section. If the driver refuses to provide this consent, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle for that motor carrier. (2) If a driver refuses to grant consent for the prospective motor carrier E:\FR\FM\05DER2.SGM 05DER2 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations employer to query the Drug and Alcohol Clearinghouse in accordance with paragraph (e)(4) of this section, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle. * * * * * 87731 Issued under the authority delegated in 49 CFR 1.87 on: November 8, 2016. T.F. Scott Darling, III, Administrator. [FR Doc. 2016–27398 Filed 12–2–16; 8:45 am] sradovich on DSK3GMQ082PROD with RULES2 BILLING CODE 4910–EX–P VerDate Sep<11>2014 19:23 Dec 02, 2016 Jkt 241001 PO 00000 Frm 00047 Fmt 4701 Sfmt 9990 E:\FR\FM\05DER2.SGM 05DER2

Agencies

[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Rules and Regulations]
[Pages 87686-87731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27398]



[[Page 87685]]

Vol. 81

Monday,

No. 233

December 5, 2016

Part II





Department of Transportation





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Federal Motor Carrier Safety Administration





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49 CFR Parts 382, 383, 384, et al.





 Commercial Driver's License Drug and Alcohol Clearinghouse; Final Rule

Federal Register / Vol. 81 , No. 233 / Monday, December 5, 2016 / 
Rules and Regulations

[[Page 87686]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 382, 383, 384 and 391

[Docket No. FMCSA-2011-0031]
RIN 2126-AB18


Commercial Driver's License Drug and Alcohol Clearinghouse

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations to 
establish requirements for the Commercial Driver's License Drug and 
Alcohol Clearinghouse (Clearinghouse), a database under the Agency's 
administration that will contain information about violations of 
FMCSA's drug and alcohol testing program for the holders of commercial 
driver's licenses (CDLs). This rule is mandated by the Moving Ahead for 
Progress in the 21st Century Act (MAP-21). It will improve roadway 
safety by identifying commercial motor vehicle (CMV) drivers who have 
committed drug and alcohol violations that render them ineligible to 
operate a CMV.

DATES: Effective Date: January 4, 2017. Compliance Date: January 6, 
2020.

FOR FURTHER INFORMATION CONTACT: Mr. Juan Jose Moya, Compliance 
Division, Federal Motor Carrier Safety Administration, 1200 New Jersey 
Avenue SE., Washington, DC 20590-0001, by telephone at (202) 366-4844 
or via email at fmcsadrugandalcohol@dot.gov. FMCSA office hours are 
from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. 
If you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose and Summary of the Major Provisions of the 
Clearinghouse
    B. Benefits and Costs
II. Abbreviations
III. Legal Basis for the Rulemaking
IV. Background on FMCSA's Drug and Alcohol Testing Program
V. Discussion of Comments Received on the Proposed Rule
VI. Section-by-Section Explanation of Changes From the Notice of 
Proposed Rulemaking
    A. Part 382
    B. Part 382, Subpart G (Sections 382.701 through 382.727)
    C. Part 383
    D. Part 384
    E. Part 391
VII. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose and Summary of the Major Provisions of the Clearinghouse

    The purpose of the Clearinghouse, as mandated by section 32402 of 
MAP-21, is to maintain records of all drug and alcohol program 
violations in a central repository and require that employers query the 
system to determine whether current and prospective employees have 
incurred a drug or alcohol violation that would prohibit them from 
performing safety-sensitive functions covered by the FMCSA and U.S. 
Department of Transportation (DOT) drug and alcohol testing 
regulations. This will provide FMCSA and employers the necessary tools 
to identify drivers who are prohibited from operating a CMV and ensure 
that such drivers receive the required evaluation and treatment before 
resuming safety-sensitive functions. Specifically, information 
maintained in the Clearinghouse will ensure that drivers who commit a 
drug or alcohol violation while working for another employer, or who 
attempt to find work with another employer, do not perform safety-
sensitive functions until completing the return-to-duty process. The 
Clearinghouse thus addresses the situation in which drivers can conceal 
their drug and alcohol violations merely by moving on to the next job 
or the next jurisdiction. As explained below, drug and alcohol 
violation records maintained in the Clearinghouse will ``follow'' the 
driver regardless of how many times he or she changes employers, seeks 
employment or applies for a CDL in a different State. The Clearinghouse 
will be administered and maintained in strict compliance with 
applicable Federal security standards. The Agency will comply with the 
consent requirements of the Privacy Act prior to releasing any driver's 
Clearinghouse record to an employer.
    Employers and medical review officers (MROs), or their designated 
representatives, are required to report information about positive drug 
test results, alcohol test results greater than 0.04 blood alcohol 
content, refusals to test and other non-test violations of FMCSA's drug 
and alcohol regulations. In addition, Substance Abuse Professionals 
(SAPs) are required to report information about drivers undergoing the 
return-to-duty drug and alcohol rehabilitation process. Employers must 
search the Clearinghouse for information during the pre-employment 
process for prospective employees and at least once a year for current 
employees to determine whether anyone has incurred a drug or alcohol 
violation with a different employer that would prohibit him or her from 
performing safety-sensitive functions.

B. Benefits and Costs

    In the Initial Regulatory Analysis, the Agency estimated the annual 
benefit of the proposed rule at $187 million and the annual cost at 
$186 million. The present value of the proposed rule was $8 million at 
a 7 percent discount rate. The Final Regulatory Impact Analysis 
estimates the annual benefit of the final rule at $196 million and the 
annual cost at $154 million. Net present value benefit is estimated at 
$316 million at a 7 percent discount rate.
    The principal factor causing the reduction in costs is the 
analytical change necessary to account for the program change 
concerning the testing rate for annual random drug tests. Effective 
January 1, 2016, the random drug testing rate is now 25 percent of 
drivers employed by a carrier, as opposed to 50 percent. This change 
was made pursuant to 49 CFR 382.305, and is unrelated to the 
Clearinghouse or the final rule. The industry has only been in 
operation for less than a year at the lower testing rate. Therefore, no 
drug survey data available that indicates that the random positive drug 
test rate has, or will, materially diverge from the three-year average 
of positive test rates used to estimate the number of positive random 
drug tests for the forecast period. This change reduces the estimate of 
the number of annual random positive drug tests from 28,000 in the 
Initial Regulatory Impact Analysis to 10,000 in the Final Regulatory 
Impact Analysis. The principal effect of this change is a reduction in 
return-to-duty costs from the $101 million estimated in the Initial 
Regulatory Impact Analysis to $56 million in the Final Regulatory 
Impact Analysis. In addition, FMCSA estimated drivers' opportunity cost 
for the personal income they would forgo for the hours in which they 
are in substance abuse education or treatment programs. This 
opportunity cost is included in the estimate of total return-to-duty 
costs. In the Final RIA, FMCSA estimated employers' opportunity cost as 
the monetized value of on-duty time lost for the entire period of time 
drivers, with drug and alcohol violations are detected as a result of 
the final rule, are prohibited from performing safety-sensitive 
functions.
    The Agency estimates about $196 million in annual benefits from 
crash

[[Page 87687]]

reductions resulting from the rule. The benefits consist of $55 million 
in safety benefits from the annual queries and $141 million in safety 
benefits from the pre-employment queries. FMCSA estimates that the rule 
would result in $154 million in total annual costs, which include:
     $29 million that is the estimated monetized value of 
employees' time to prepare annual employer queries;
     $11 million that is the estimated monetized value of 
employees' time to prepare pre-employment queries;
     $3 million for employers to designate service agents, and 
$1 million for SAPs to report initiation of the return-to-duty Initial 
Assessment;
     $5 million incurred by various reporting entities to 
register with the Clearinghouse, verify authorization, and become 
familiar with the rule, plus an additional $700,000 for these entities 
to report positive tests;
     $35 million of fees and consent and verification costs 
consisting of $24 million in Clearinghouse access fees incurred by 
employers for pre-employment queries, limited annual queries and full 
annual queries, plus $11 million of the monetized value of drivers' 
time to provide consents to employers and verification to FMCSA to 
allow employers access to drivers' records;
     $2.2 million for development of the Clearinghouse and 
management of records;
     $56 million incurred by drivers to go through the return-
to-duty process, including $7 million of opportunity costs in the form 
of income forgone for those hours spent in substance abuse education 
and treatment programs in lieu of hours that could be spent in non-
safety-sensitive in positions; and
     $11.5 million of opportunity costs incurred by employers 
due to lost on-duty hours and profits associated with drivers suspended 
from safety-sensitive functions until successful completion of the 
return-duty-process.
    Total net benefits of the rule are $42 million annually ($196 
million-$154 million). The 10-year projection of net benefits is $316 
million when discounted at 7 percent and $369 million when discounted 
at 3 percent. The annualized net benefit of the final rule is $42 
million at the 7 percent and 3 percent discount rates. The estimated 
benefits include only those associated with reductions in CMV crashes.

                               Total Net Benefit Projection Over a 10-Year Period
----------------------------------------------------------------------------------------------------------------
                         Total                                 Annual            10-year            10-year
----------------------------------------------------------------------------------------------------------------
                     Discount rate                                                  7%                 3%
----------------------------------------------------------------------------------------------------------------
Total Benefits.........................................       $196,000,000     $1,472,985,521     $1,722,077,349
Total Costs............................................        154,000,000      1,157,345,766      1,353,060,774
Total Net Benefits.....................................         42,000,000        315,639,754        369,016,575
----------------------------------------------------------------------------------------------------------------

II. Abbreviations

AAMVA American Association of Motor Vehicle Administrators
ABA American Bus Association
AMRO American Medical Review Officers, LLC
ATA American Trucking Associations
ATF Alcohol Testing Form
BLS Bureau of Labor Statistics
Boeing The Boeing Company
CAA Clean Air Act
Cahill-Swift Cahill Swift LLC
CCF Federal Drug Testing Custody and Control Form
CCTA California Construction Trucking Association
CDL Commercial Driver's License
CDLIS Commercial Driver's License Information System
Clearinghouse FMCSA's Commercial Driver's License Drug and Alcohol 
Clearinghouse
CLP Commercial Learner's Permit
CMV Commercial Motor Vehicle
C/TPA Consortia/Third Party Administrator
CVTA Commercial Vehicle Training Association
DOT U.S. Department of Transportation
Driver Check Driver Check Medical Testing and Assessment
DrugPak DrugPak LLC
DUI Driving a Commercial Motor Vehicle While Under the Influence of 
Alcohol or Drugs
eCCF Electronic Custody and Control Form
EIN Employer Identification Number
E-MAIL Electronic Mail
FCRA Fair Credit Reporting Act
FE FirstEnergy Corporation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
Foley Foley Carrier Services
GAO Government Accountability Office
Greyhound Greyhound Lines, Inc.
HHS Health and Human Services
HIPAA Health Insurance Portability and Accountability Act of 1996
IBT International Brotherhood of Teamsters
IT Information Technology
J.B. Hunt J.B. Hunt Transport, Inc.
MAP-21 Moving Ahead for Progress in the 21st Century Act
MRO Medical Review Officer
MROCC Medical Review Officer Certification Council
NCSL National Conference of State Legislators
NGA National Governors Association
NPRM Notice of Proposed Rulemaking
NPTC National Private Truck Council
NTSB National Transportation Safety Board
NYAPT New York Association for Pupil Transportation
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association, Inc.
OTETA Omnibus Transportation Employee Testing Act of 1991
PII Personally Identifiable Information
PSP Pre-Employment Screening Program
PTC Pipeline Testing Consortium, Inc.
Quest Diagnostics Quest Diagnostics Incorporated
RIA Regulatory Impact Analysis
SAMHSA Substance Abuse and Mental Health Services Administration
SAP Substance Abuse Professional
SAPAA Substance Abuse Program Administrators Association
Schneider Schneider National, Inc.
SDLA State Driver Licensing Agency
TTD Transportation Trades Department, AFL-CIO
UMRA Unfunded Mandates Reform Act of 1995
WPCI Western Pathology Consultants, Inc.

III. Legal Basis for the Rulemaking

    Section 32402 of the Moving Ahead for Progress in the 21st Century 
Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405), codified at 49 U.S.C. 
31306a, directs the Secretary of Transportation (Secretary) to 
establish a national Clearinghouse containing CMV operators' violations 
of FMCSA's drug and alcohol testing program. This rule implements that 
mandate.
    In addition, FMCSA has general authority to promulgate safety 
standards, including those governing drivers' use of drugs or alcohol 
while operating a CMV. The Motor Carrier Safety Act of 1984 (the 1984 
Act), codified at 49 U.S.C. 31136(a), provides concurrent authority to 
regulate drivers, motor carriers, and vehicle equipment. The 1984 Act 
requires the Secretary to prescribe safety standards for CMVs which, at 
a minimum, shall ensure that: (1) CMVs are maintained, equipped, 
loaded, and operated safely; (2) the responsibilities imposed on CMV 
operators do not impair their ability to

[[Page 87688]]

operate the vehicles safely; (3) the physical condition of CMV 
operators is adequate to enable them to operate the vehicles safely; 
(4) CMV operation does not have a deleterious effect on the physical 
condition of the operators; and (5) CMV drivers are not coerced by a 
motor carrier, shipper, receiver, or transportation intermediary to 
operate a CMV in violation of regulations promulgated under 49 U.S.C. 
31136 or 49 U.S.C. chapters 51 or 313 (49 U.S.C. 31136(a)). Section 211 
of the 1984 Act also grants the Secretary broad power, in carrying out 
motor carrier safety statutes and regulations, to ``prescribe 
recordkeeping and reporting requirements'' and to ``perform other acts 
the Secretary considers appropriate'' (49 U.S.C. 31133(a)(8) and (10)).
    The FMCSA Administrator has been delegated authority under 49 CFR 
1.87(e) and (f) to carry out the functions vested in the Secretary by 
49 U.S.C. chapter 313 and 49 U.S.C. chapter 311, subchapters I and III, 
relating to CMV programs and safety regulation. This rule will 
implement, in part, the Agency's delegated authority under 49 U.S.C. 
31136(a)(1) to ensure that CMVs are ``operated safely,'' and, under 
section 31136(a)(3), to ensure that ``the physical condition of 
operators of commercial motor vehicles is adequate to enable them to 
operate the vehicles safely.'' The final rule does not directly address 
the operational responsibilities imposed on CMV drivers (section 
31136(a)(2)) or possible physical effects caused by driving a CMV 
(section 31136(a)(4)). FMCSA prohibits employers from submitting false 
reports of drug or alcohol violations to the Clearinghouse, which could 
be used to exercise coercive influence over drivers (49 U.S.C. 
31136(a)(5)). FMCSA also exercises the broad recordkeeping and 
implementation authority under 49 U.S.C. 31133(a)(8) and (10).
    The Omnibus Transportation Employee Testing Act of 1991 (OTETA) 
(Pub. L. 102-143, Title V, 105 Stat. 917, at 952, October 28, 1991, 
codified at 49 U.S.C. 31306), mandated the alcohol and controlled 
substances (drug) testing program for DOT. OTETA affirmed the existing 
regulations for drug testing and required the Secretary to promulgate 
regulations for alcohol testing for persons in safety-sensitive 
positions in four modes of transportation--motor carrier, airline, 
railroad, and mass transit. Those regulations, including subsequent 
amendments, are codified at 49 CFR part 40, ``Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs.'' Part 40 
establishes requirements for all DOT-regulated parties, including 
employers of drivers with CDLs subject to FMCSA testing requirements, 
for conducting drug and alcohol tests. Part 40 also defines the roles 
and responsibilities of service agents, including MROs, SAPs, and 
consortia/third party administrators (C/TPAs), who perform critical 
functions under DOT-wide drug and alcohol testing program requirements.
    In 1994, FMCSA's predecessor agency, the Federal Highway 
Administration (FHWA), published a final rule addressing the OTETA and 
amending regulations, including penalties, codified in 49 CFR part 382, 
``Controlled Substances and Alcohol Use and Testing.'' In 2001, FMCSA 
revised its regulations in 49 CFR part 382 to make FMCSA's drug and 
alcohol testing procedures consistent with and non-duplicative of the 
revised regulations at 49 CFR part 40.
    This rule incorporates many of the findings and recommendations 
contained in FMCSA's March 2004 report to Congress, which was required 
under section 226 of the Motor Carrier Safety Improvement Act of 1999 
(Pub. L. 106-159, 113 Stat. 1748, 1771, December 9, 1999).\1\
---------------------------------------------------------------------------

    \1\ ``A Report to Congress On the Feasibility and Merits of 
Reporting Verified Positive Federal Controlled Substance Test 
Results to the States and Requiring FMCSA-Regulated Employers to 
Query the State Databases Before Hiring a Commercial Drivers License 
(CDL) Holder,'' Federal Motor Carrier Safety Administration, March 
2004, Pg. 2.
---------------------------------------------------------------------------

IV. Background on FMCSA's Drug and Alcohol Testing Program

    Agency regulations at 49 CFR part 382 apply to persons and 
employers of such persons who operate CMVs in commerce in the United 
States and who are subject to the CDL requirements in 49 CFR part 383 
or the equivalent CDL requirements for Canadian and Mexican drivers (49 
CFR 382.103(a)). Part 382 requires that employers conduct pre-
employment drug testing, post-accident testing, random drug and alcohol 
testing, and reasonable suspicion testing, as well as return-to-duty 
testing and follow-up testing for those drivers who test positive or 
otherwise violate DOT drug and alcohol program requirements.
    Motor carrier employers are prohibited from allowing an employee to 
perform safety-sensitive functions, which include operating a CMV, if 
the employee tests positive on a DOT drug or alcohol test, refuses to 
take a required test, or otherwise violates the DOT or FMCSA drug and 
alcohol testing regulations. The prohibition on performing safety-
sensitive functions continues until the employee satisfies all of the 
requirements of the return-to-duty process prescribed in 49 CFR part 
40, subpart O. Additionally, part 382 provides that an employer may not 
allow a covered employee to perform safety-sensitive functions when the 
employer has actual knowledge that a driver has engaged in on-duty or 
pre-duty alcohol use, used alcohol prior to post-accident testing, or 
used a controlled substance. An employer has ``actual knowledge'' of a 
driver's drug or alcohol use while performing safety-sensitive 
functions based upon the employer's direct observation of employee drug 
or alcohol use, an admission by the employee of drug or alcohol use, 
information provided by a previous employer, or if the employee 
receives a traffic citation for driving a CMV while under the influence 
of drugs or alcohol. An employer may not use a driver under these 
circumstances until the driver has completed the return-to-duty process 
prescribed in 49 CFR part 40, subpart O. Although not required to do 
so, the employer may, at its discretion, fire the employee without 
giving the opportunity to complete the return-to-duty process. FMCSA 
does not regulate an employer's decision to terminate or the conditions 
under which an employer chooses to keep a driver on after a drug or 
alcohol violation.
    The Federal Motor Carrier Safety Regulations (FMCSRs) require that 
a motor carrier employer obtain information from a job applicant that 
includes the names and addresses of the applicant's employers for the 
past 3 years, and whether or not the applicant was subject to the 
FMCSRs and to the drug and alcohol testing requirements under 49 CFR 
part 40 (49 CFR 391.21(b)). Interstate motor carrier employers are then 
required to investigate the applicant's history under the DOT drug and 
alcohol testing program by contacting any named DOT-regulated employers 
to determine whether the applicant has, within the past 3 years, 
violated the drug and alcohol prohibitions under part 382 or the 
testing requirements under part 40 (49 CFR 391.23(e)). A similar 
background check requirement exists in part 40. See 49 CFR 40.25 (DOT-
regulated employers must contact all of the applicant's employers for 
the 2 years prior to the employee application date and obtain drug and 
alcohol test information, including information that these employers 
obtained from previous employers).
    Part 40 defines an ``employee'' as ``any person who is designated 
in a DOT agency regulation as subject to drug testing and/or alcohol 
testing'' including ``applicants for employment subject to

[[Page 87689]]

pre-employment testing'' (49 CFR 40.3). Pursuant to this definition, an 
individual is an employee of any DOT-regulated employer for whom the 
individual takes a pre-employment drug test, regardless of whether the 
individual is subsequently hired by the employer. As a result, an 
individual must list that prospective employer, when applying for a new 
covered position (see 49 CFR 40.25).
    FMCSA published the Notice of Proposed Rulemaking (NPRM) for the 
Drug and Alcohol Clearinghouse on April 22, 2014 (79 FR 9703). Changes 
to the published proposal are discussed in detail below.

V. Discussion of Comments Received on the Proposed Rule

    The Agency received 165 comments. FMCSA's responses to those 
comments follow.

General Support/Opposition to the Clearinghouse

    Comment. Ninety-seven commenters expressed general support for the 
proposal to establish the Clearinghouse. These commenters included 26 
trade associations, 23 service agents, 13 employers, 3 safety advocacy 
organizations, 2 trade unions, the NTSB, a U.S. Congressman, a 
transportation consultant, and 27 individuals. Common reasons cited for 
general support of the proposal include that it will improve safety, 
deter drivers from job-hopping to evade the drug and alcohol 
violations, and provide employers with easy access to the information 
they need to hire safe, qualified drivers. Ten commenters expressed 
opposition to establishing the Clearinghouse. The majority of the 
commenters registering opposition were drivers who were concerned with 
overlapping reporting responsibilities and the lack of sufficient time 
for reporting information.

Compliance Date

    Comment. SAPAA, NYAPT, First Advantage, WPCI and Quest Diagnostics 
requested that FMCSA give stakeholders enough time to restructure 
processes and systems before compliance is required. SAPAA requested at 
least a 1-year delay from the date of publication. First Advantage 
suggested that the compliance date coincide with the release of the HHS 
eCCF. National Ready Mixed Concrete Association and FE suggested a 2-
year compliance period, while another commenter suggested a 3-year 
period.
    Response. FMCSA notes that we did not propose a compliance date in 
the NPRM. This final rule includes a 3-year compliance period. FMCSA 
believes 3 years is necessary to provide the Agency time to design and 
implement the information technology (IT) systems needed to facilitate 
the reporting of results and violations of the drug and alcohol testing 
rules and the responses to queries from employers and prospective 
employers. Also, this period of time will ensure that stakeholders have 
sufficient time to prepare for this rule.

Applicability--Canadian and Mexican Employees, Employers, and Service 
Agents

    Comment. Driver Check, Schneider, OOIDA and other commenters 
requested that the Agency clarify whether the proposed requirements 
apply to Canadian and Mexican commercial drivers, employers, C/TPAs, 
MROs, SAPs, and certified laboratories that are subject to the FMCSA 
testing regulations. Some of these commenters expressed concern that 
the proposal does not explain how the rule will be implemented and 
enforced against regulated entities in Canada and Mexico. One expressed 
concern that some of the proposed provisions would present privacy 
issues for Canadians because of a recent case involving an employer in 
the Province of Alberta. Driver Check asked whether the Clearinghouse 
data entry fields would be able to accommodate Canadian addresses and 
CDL numbers. The same commenter asked if the Clearinghouse would 
accommodate French, which is one of Canada's official languages.
    Response. The Clearinghouse is designed to create an overlay onto 
FMCSA's drug and alcohol testing program to enhance compliance. As a 
result, all Clearinghouse requirements in this rule apply to employees, 
employers, and service agents that are otherwise subject to DOT and 
FMCSA drug and alcohol testing requirements as codified in 49 CFR parts 
40 and 382. Therefore, all Mexican or Canadian employees, employers, or 
service agents that are currently required to comply with DOT and FMCSA 
drug and alcohol testing requirements must comply with this rule.
    Canadian and Mexican motor carriers will follow the same procedures 
as U.S.-based motor carriers to query and report to the Clearinghouse. 
All Canadian and Mexican motor carriers engaged in cross-border 
trucking are required to obtain a USDOT number and maintain active 
registration. They will use those credentials to register with the 
Clearinghouse just as any U.S.-based carrier would. Similarly, FMCSA 
will enforce Clearinghouse requirements using the same tools it 
currently uses to enforce DOT and FMCSA drug and alcohol testing 
requirements against Canadian and Mexican motor carriers: 
Investigations, roadside inspections, and other enforcement mechanisms.
    Currently, FMCSA is able to access information about Canadian CDL 
holders through the CDLIS pointer system. As a result, FMCSA does not 
anticipate having trouble accessing or accommodating Canadian 
information as a part of the Clearinghouse design. To the extent that 
issues arise that may affect the ability of Canadian carriers to comply 
with the requirements of this rule due to differences between Canadian 
and U.S. privacy laws and regulations, the Agency will work with 
Canadian authorities to resolve those issues. FMCSA intends to provide 
access to the Clearinghouse only in English, although parties will be 
able to enter French or Spanish words and names in the various data 
entry fields. Users with limited English proficiency may seek 
assistance with the Clearinghouse by contacting FMCSA's Office of Civil 
Rights at (202) 366-8810 to request a language accommodation.
    Comment. Several commenters expressed concern that FMCSA's 
requirement that motor carriers implement a random drug testing program 
violates Canadian law. Specifically, they cite to Communications, 
Energy and Paperworkers Union of Canada, Local 30 v. Irving Paper & 
Pulp, Ltd., [2013] 2 S.C.R. 458, and a grievance arbitration between 
Uniform Local 707A and Suncor Energy, Inc. that set limitations on an 
employer's ability to require random alcohol testing for employees 
working under a collective bargaining agreement.
    Response. The decisions in the referenced proceedings do not 
address the issue of Canadian motor carriers' compliance with FMCSA's 
random drug and alcohol testing requirements. Although this rule would 
require employers to report the results of positive or refused random 
tests to the Clearinghouse, it does not in and of itself establish the 
requirement that foreign motor carriers implement random testing 
programs. To the contrary, 20 years ago, FMCSA's predecessor made clear 
that the Agency's drug and alcohol requirements apply equally to 
foreign drivers. See ``Controlled Substances and Alcohol Use and 
Testing; Foreign-based Motor Carriers and Drivers,'' 60 FR 49322, Sept. 
22, 1995. Moreover, in accordance with bilateral agreements between the 
United States and Canada, Canadian drivers are--and have been--subject 
to

[[Page 87690]]

all U.S. regulations when operating CMVs in the United States. Canadian 
motor carriers concerned about the effect of these recent cases on 
their cross-border transportation operations should consult with local 
legal counsel.

Applicability--Motor Carriers Operating Non-CDL CMVs

    Comment. A number of commenters including J. B. Hunt Transport, 
Inc. and several trade associations requested that FMCSA also require 
motor carriers that operate non-CDL CMVs to query the Clearinghouse. 
Several commented that if this rule is implemented as proposed, CDL 
drivers with a drug or alcohol violation would seek employment with 
non-CDL motor carriers because the proposed rule does not require them 
to query the Clearinghouse. J.B. Hunt posited that ``many drivers who 
fail a test and can't `job-hop' due to the Clearinghouse will downgrade 
to an operator's license and migrate to carriers not required to 
conduct testing or check for past test failures.'' Other commenters 
were also concerned that the rule, as proposed, would push unsafe 
drivers into the non-CDL segment of the motor carrier industry. Another 
commenter observed that 49 CFR 382.501(c) prohibits a driver with a 
drug or alcohol violation from operating CMVs that do not require a 
CDL, but under the proposed rule, non-CDL CMV employers would not know 
whether a driver is subject to this prohibition.
    Response. The MAP-21 mandate underlying this rule applies only to 
individuals who hold a valid CDL and who are subject to drug and 
alcohol testing under Title 49 of the Code of Federal Regulations 
(including part 382) and to those who employ such individuals (49 
U.S.C. 31306a(m)(4)(A)). The drug and alcohol testing and reporting 
requirements of part 382 apply to CDL holders who operate CMVs with 
GVWRs of 26,001 pounds or more, a vehicle that is designed to transport 
16 or more passengers, including the driver, or a vehicle of any size 
used in the transport of hazardous materials, and to employers of such 
persons (Sec. Sec.  382.103(a) and 383.5). The NPRM did not propose to 
change any underlying requirement of part 382.
    FMCSA acknowledges, as one commenter noted, that Sec.  
382.501prohibits any driver from performing safety-sensitive functions, 
including operating CMVs that do not require a CDL, if the driver has 
violated part 382. We note, however, that the provision applies only to 
CDL holders. FHWA, in adopting Sec.  382.501(c) in 1994, explained its 
intent: ``. . . a driver removed from performing safety-sensitive 
functions because of a rule violation occurring in a 26,001 pound or 
greater vehicle in inter- or intrastate commerce, also is prohibited 
from driving a 10,001 pound or greater vehicle in interstate commerce, 
until complying [with return-to-duty requirements].'' (59 FR 7484, 
7501, February 15, 1994). Further, Sec.  382.501(c) does not subject 
CDL holders operating CMVs with GVWRs between 10,001 and 26,000 pounds, 
or their employers, to the requirements of part 382.
    FMCSA therefore concludes that, at this time, it would not be 
appropriate to require that motor carriers who employ individuals 
(either non-CDL holders or CDL holders) to operate CMVs with GVWRs 
between 10,001 and 26,000 pounds, to query the Clearinghouse. Such a 
requirement would expand the reach of this rulemaking to employers and 
drivers who are not required to participate in FMCSA's drug and alcohol 
testing program. Because those parties are not subject to part 382 
requirements, they did not have sufficient notice that Clearinghouse 
requirements could become applicable to them and, accordingly, have not 
had a fair opportunity to participate in this proceeding. Should FMCSA, 
on the basis of demonstrable need, subsequently exercise its discretion 
under the 1984 Act (49 U.S.C. 31136(1) and (3)) to require that these 
employers query the Clearinghouse, we will provide notice and an 
opportunity for comment.
    The Agency notes, however, that. ``non-CDL'' employers operating in 
interstate commerce remain subject to the investigation and inquiry 
requirements of Sec.  391.23. Employers obtaining records related to an 
applicant's driving and safety performance history under Sec.  
391.23(a) would, for example, be able to discern whether the applicant 
had voluntarily downgraded a CDL to a motor vehicle operator's license 
and thus have a basis on which to question the applicant concerning the 
reason for the downgrade. ``Non-CDL'' employers must also request drug 
and alcohol testing information from ``all previous DOT regulated 
employers that employed the driver within the previous three years . . 
. in a safety-sensitive function that required alcohol and controlled 
substance testing specified by 49 CFR part 40'' (Sec.  391.23(e)). 
Section 391.23(f) requires that prospective employers provide previous 
employers with the driver's written consent, as required by Sec.  
40.321(b), to allow for the release of this privacy-protected 
information. Use of FMCSA's Pre-employment Screening Program (PSP) will 
also assist motor carrier employers in finding disqualifying drug and 
alcohol offenses and identifying prior DOT-regulated employers. The 
availability of this information will enable prospective employers to 
determine whether applicants who are CDL holders are subject to Sec.  
382.501.
    Additionally, subject to applicable State requirements, ``non-CDL'' 
employers may conduct pre-employment and/or random non-DOT drug and 
alcohol testing (though the results of such tests would not be 
reportable to the Clearinghouse, as explained below).

Applicability--Non-DOT Tests

    Comment. Cahill-Swift, Driver IQ/CARCO, J.B. Hunt, Schneider, C.R. 
England and the ATA requested that FMCSA permit employers to report 
non-DOT tests to the Clearinghouse. OOIDA opposed including non-DOT 
tests in the Clearinghouse.
    Response. Congress did not grant FMCSA the authority to require 
employers to report non-DOT tests to the Clearinghouse. Congress 
directed the Agency to establish the Clearinghouse as a repository of 
DOT drug and alcohol testing program violations. See 49 U.S.C. 
31306a(a). This is consistent with the rules applicable to FMCSA's drug 
and alcohol testing program: All FMCSA-required tests must be conducted 
in accordance with DOT rules. See 49 U.S.C. 31306(c); 49 CFR 382.105. 
Although employers may conduct testing beyond that required by FMCSA 
and DOT rules, positive results for these non-DOT tests must be kept 
completely separate from DOT test results and do not constitute 
violations of FMCSA or DOT rules. See 49 CFR 382.105; 49 CFR 40.13. 
Accordingly, FMCSA will not expand the scope of the Clearinghouse to 
include non-DOT tests.

Applicability--Municipalities

    Comment. A commenter asked whether this final rule would apply to 
municipalities.
    Response. Generally speaking, municipalities are subject to FMCSA's 
drug and alcohol testing program to the extent they employ drivers who 
are required to hold a CDL to operate a CMV. See 49 U.S.C. 31301, 
31306; 49 CFR 382.103. Because this rule applies to all employers and 
employees subject to FMCSA's drug and alcohol testing rules, it would 
also apply to any municipality subject to those rules.

Applicability--Fair Credit Reporting Act (FCRA)

    Comment. Foley and C.R. England asked whether the information in 
the

[[Page 87691]]

Clearinghouse would be subject to the FCRA when it is used for pre-
employment background checks. C.R. England asked that FMCSA issue 
guidance stating whether a prospective employer would be required to 
submit an adverse employment action letter to a prospective employee if 
he or she were not hired as a result of information disseminated from 
the Clearinghouse. OOIDA stated that FMCSA must comply with the FCRA.
    Response. FMCSA will comply with applicable FCRA requirements; 
however, not all provisions in the FCRA apply to the Agency's 
administration of the Clearinghouse. Information that a prospective 
employer receives from the Clearinghouse during a pre-employment check 
is not subject to requirements on the use of ``consumer reports'' under 
the FCRA. While still subject to some FCRA requirements, as noted 
below, this type of ``pre-employment'' information on a prospective 
employee, solely considered for employment purposes and required by 
Federal regulation and law, qualifies as an ``excluded communication'' 
under 15 U.S.C. 1681a(d)(2)(D), 1681a(o), and 1681a(y) of the FCRA.
    FMCSA, as the government agency communicating this information, is 
subject to disclosure requirements under section 1681a(o)(5)(C). FMCSA 
meets these disclosure requirements through the provisions of this 
final rule on driver notification and access to the Clearinghouse in 49 
CFR 382.707 and 382.709. Under Sec.  382.707, FMCSA must notify a 
driver when information concerning that driver has been added to, 
revised, or removed from the Clearinghouse. When information concerning 
that driver has been released from the Clearinghouse to an employer, 
the Agency must specify the reason for the release. Such notice will 
inform the driver how to access his or her information in the 
Clearinghouse and will comply with the disclosure requirements in 
section 1681a(o)(5)(C).
    An employer that takes adverse action based in whole or in part on 
a communication from the Clearinghouse, whether that information 
indicates a current disqualification or a resolved violation, would be 
subject to the FCRA's ``subsequent disclosure'' requirement. This 
requirement provides that the employer shall disclose ``a summary 
containing the nature and substance of the communication upon which the 
adverse action is based.'' 15 U.S.C. 1681a(y)(2). Employers should 
consult with their own experts for more information on how to comply 
with the FCRA.

Federalism

    Comment. Several commenters said that the Clearinghouse rule would 
have implications for Federalism under Executive Order (E.O.) 13132. A 
rule has implications for Federalism if it has a substantial direct 
effect on State or local governments. NPTC, Cahill-Swift and First 
Advantage observed that some States have their own reporting 
requirements for drug and alcohol violations and requested guidance on 
how those reporting requirements would be affected. First Advantage 
asked if the Clearinghouse could send notice directly to the SDLA, to 
eliminate double reporting. NYAPT said that pending legislation in New 
York would require an MRO or C/TPA to report positive results of a 
school bus driver's random drug or alcohol test to the New York 
Department of Motor Vehicles.
    Response. Nothing in this final rule will change or otherwise 
affect State or local drug and alcohol violation reporting requirements 
so long as they are compatible with this final rule. See 49 U.S.C. 
31306a(l). Incompatible State or local requirements are subject to 
preemption. Each State will have to evaluate its own requirements to 
determine whether they are compatible with this final rule.
    With respect to the Clearinghouse reporting to States, at this time 
FMCSA is considering the most efficient way to share information with 
the SDLAs. There is a more complete discussion below of Agency efforts 
to coordinate information sharing with SDLAs.

Privacy Considerations

    Comment. A commenter stated that the Clearinghouse would violate 
the requirements of HIPAA.
    Response. The Drug and Alcohol Clearinghouse established in this 
final rule is not subject to HIPPA requirements. HIPAA, which governs 
the dissemination of protected health information, applies to all 
records generated or received by ``covered entities.'' 45 CFR 160.103; 
45 CFR 164.104(a). HIPAA defines a covered entity as: ``(1) A health 
plan; (2) A health care clearinghouse; or (3) A health care provider 
that transmits any health information in electronic form.'' Id. The 
Drug and Alcohol Clearinghouse does not fall into any of these 
categories. Even if drug and alcohol testing is viewed as protected 
under HIPAA, where DOT requires the use or disclosure of such 
information, its release is mandated by Federal law, and would not 
violate the requirements of HIPAA. Further information on this topic is 
available at www.transportation.gov/odapc/hipaa-statement.
    Comment. The Association of American Railroads and the American 
Short Line and Regional Railroad Association asked whether releasing 
information to the Clearinghouse would violate the Federal Railroad 
Administration's (FRA) drug and alcohol regulations.
    Response. FMCSA consulted with FRA's drug and alcohol testing 
program, which concluded that the Clearinghouse would not create a 
conflict with FRA's regulations. Any CDL driver who is subject to and 
violates part 382, even if that driver is working in a different DOT 
agency's industry, would be reported to the Clearinghouse.

Motor Carrier Registration

    Comment. OOIDA suggested that FMCSA query the Clearinghouse as a 
part of the motor carrier registration process to determine whether any 
company principals have unresolved drug or alcohol violations.
    Response. Company principals who do not currently serve in a 
safety-sensitive function (e.g., they do not operate CMVs), or have 
never served in a safety-sensitive function are not a focus of this 
rulemaking. OOIDA's comment relates to registration requirements and is 
beyond the scope of this rulemaking. FMCSA will, however, take this 
comment under advisement as it moves forward with implementation of the 
Unified Registration System, see ``Unified Registration System,'' 78 FR 
52608, August 23, 2013, and, as appropriate, when further developing 
the registration processes in an NPRM concerning ``MAP-21 Enhancements 
and Other Updates to the Unified Registration System''. That said, 
nothing in this rule would prohibit FMCSA from querying the 
Clearinghouse during the registration process, as a part of its audit 
and enforcement functions.

Definition of Positive Alcohol Test (Sec.  382.107)

    Comment. The American College of Occupational and Environmental 
Medicine, Cahill-Swift, and C.R. England suggested that FMCSA remove 
the proposed definition of ``positive alcohol test.'' Some of these 
commenters stated that the definition is confusing because it has not 
been used previously and does not appear in 49 CFR part 40. Others said 
it would create confusion between the different prohibitions that apply 
when a driver has a blood alcohol level of between 0.02-0.039 or 0.04 
and higher. Conversely, SAPAA and NYAPT supported the proposed 
definition of ``positive alcohol test.''

[[Page 87692]]

    Response. The FMCSRs prohibit a driver with a blood alcohol level 
of 0.02-0.039 from driving a CMV. But being on duty with this blood 
alcohol level does not constitute a violation and does not require a 
driver to complete the return-to-duty process before resuming safety-
sensitive functions. 49 CFR 382.505(a). A driver who is on duty with a 
blood alcohol level of 0.04 or higher, however, is in violation of 
FMCSA's rules and must complete the return-to-duty process. 49 CFR 
382.201.
    FMCSA proposed to define a positive alcohol test to make it easier 
to differentiate between the consequences of results showing a blood 
alcohol level of 0.02-0.039 and 0.04 or higher. We understand, however, 
that this definition could be confusing given that it would be a 
violation of FMCSA's rules for a driver to operate a CMV with a blood 
alcohol level of either 0.02 or 0.04, but that different consequences 
would apply. As a result, we have removed the definition of positive 
alcohol test from the rule along with all references to it in the 
regulatory text. The final rule uses the term ``an alcohol confirmation 
test with a concentration of 0.04 or higher'' in all places where 
``positive alcohol test result'' appeared in the proposal.
Definition of Owner-Operator
    Comment. Foley suggested that FMCSA define the term ``owner-
operator'' because it was not clear whether the term refers to one-
person companies or includes companies owned by a driver.
    Response. It is not necessary to define ``owner-operator'' because 
that term does not appear anywhere in the regulatory text of this final 
rule. That said, Sec.  382.103(b) explains that part 382, which 
includes this final rule, is applicable to all driver-owned firms 
without differentiating between one-person companies and companies 
owned by drivers. The only differences are that Sec.  382.103(b) also 
requires that one-person company owner-operators join a testing pool 
with at least one other person and new Sec.  382.705(b)(6) requires 
that an employer who employs himself/herself as a driver must designate 
a C/TPA to comply with the employer reporting requirements in this 
rule.
Definition of Service Agent
    Comment. A commenter requested that FMCSA define the term ``service 
agent.''
    Response. Prior to the enactment of MAP-21, part 382 incorporated 
the definition of ``service agent'' set forth in 49 CFR 40.3, which 
applied to service agents providing services only in connection with 
the DOT-wide drug and alcohol testing requirements in part 40. MAP-21 
included an expanded definition of ``service agent'' which, while 
functionally equivalent to the definition of ``service agent'' in Sec.  
40.3, applied the term to the Clearinghouse requirements. Accordingly, 
the NPRM proposed a definition of ``service agent'' consistent with 
that change. However, following publication of the NPRM, DOT amended 
its definition of ``service agent'' in Sec.  40.3 to conform to MAP-21 
so that it is clear the definition is not limited to those persons 
providing services only in connection with part 40 requirements (81 FR 
52364, August 8, 2016). The revised definition in Sec.  40.3 now 
encompasses service agents who provide services in connection with drug 
and alcohol testing requirements, including the Clearinghouse 
requirements. Consequently, no new definition of ``service agent'' is 
necessary in the final rule.

Driver Identification (Sec.  382.123)

Social Security Numbers
    Comment. FMCSA proposed that drivers be identified by their CDL 
number and State of licensure rather than Social Security Number or 
other Employee ID Number on the alcohol testing form (ATF) and Federal 
Drug Testing Custody and Control Form (CCF). A number of commenters 
opposed this change. Driver Check, Driver IQ/CARCO, Schneider and an 
individual commenter objected to using CDL numbers in lieu of Social 
Security Numbers because they believed that when a driver moves to a 
new State his or her license number would change, complicating the 
Clearinghouse's ability to track the driver. NYAPT, MROCC, CVTA and an 
individual commenter supported using CDL numbers. Driver IQ/CARCO and 
CCTA suggested that FMCSA should use CDLIS to track a driver's previous 
CDLs in other States. First Advantage and another commenter interpreted 
FMCSA's proposal to require a change to the ATF and CCF. These 
commenters stated that FMCSA did not have the authority to propose a 
change to these forms, which come under the authority of HHS. The IBT 
stated that use of the CDL number and State of issuance in lieu of a 
Social Security Number would reduce the risk of identity theft in the 
event the Clearinghouse suffered a security breach. SAPAA, Foley and 
Quest Diagnostics asked what would happen if a collection site 
mistakenly used a Social Security Number or EIN on the ATF or CCF. 
First Advantage also asked how the system would track foreign CDL 
numbers.
    Response. After careful consideration of the comments and 
evaluation of FMCSA's information technology systems, the Agency 
concluded that the most accurate and secure method to identify a driver 
in the Clearinghouse is by using his or her CDL number and State of 
issuance. This is consistent with Federal and DOT policies which 
strongly encourage agencies to avoid using Social Security Numbers as 
an identifier whenever possible. Moreover, by interfacing with the 
CDLIS driver record system, the Clearinghouse will be able to identify 
drivers quickly and easily using the driver's CDL number and State of 
issuance, including foreign drivers. Contrary to the concerns some 
commenters raised, the Clearinghouse will be able to identify both 
domestic and foreign drivers and track their drug and alcohol violation 
records regardless of the number of times the driver moves to a new 
State and obtains a new CDL.
    Using a driver's CDL number and State of issuance to track drug and 
alcohol violations does not require a change to the CCF or ATF. These 
forms specifically permit the use of either the Social Security number 
or an employee identification number. Under this final rule, the person 
completing the form is required to use the driver's CDL number and 
State of issuance as the employee identification number.
    Once laboratories are approved to use HHS's eCCF, the likelihood of 
a collection site mistakenly using an identification number other than 
the CDL number and State of issuance will drop significantly. But in 
those cases in which the CDL number and State of issuance is not 
entered, the parties will have an opportunity to input the correct 
number later in the process.
Driving Schools
    Comment. C.R. England and CVTA wanted to know how this rule would 
be applied to driving school students and prospective employees taking 
pre-employment drug tests prior to obtaining a CDL. CVTA asked FMCSA to 
clarify that the rule would not require the reporting of non-CDL holder 
testing results.
    Response. MAP-21 requires that certain records related to drug and 
alcohol testing of ``commercial motor vehicle operators'' be reported 
to the Clearinghouse. MAP-21 defines ``commercial motor vehicle 
operator'' as ``an individual who (A) possesses a valid commercial 
driver's license issued in accordance with section 31308; and (B) is 
subject to controlled substances and alcohol testing under [49 CFR part

[[Page 87693]]

382]'' (49 U.S.C. 31306a(m)(4)). The Agency believes that, in 
accordance with that definition, the drug and alcohol records for CLP 
holders are required to be reported to the Clearinghouse because the 
CLP is a valid commercial driver's license and CLP holders are subject 
to drug and alcohol testing. Non-CDL holders--that is, persons who hold 
neither a CLP nor a CDL--are not subject to the Clearinghouse reporting 
requirements. While employers may conduct non-DOT drug and alcohol 
tests on employees who do not hold CDLs or CLPs, those tests are not 
considered DOT tests under parts 40 and 382 and cannot be reported to 
the Clearinghouse.
USDOT Numbers
    Comment. FMCSA proposed to require employers to provide their USDOT 
number or their Internal Revenue Service-issued EIN on the CCF. First 
Advantage and Quest Diagnostics said that laboratories currently use 
account numbers to identify clients and that they would have to create 
new data fields to record USDOT numbers or EINs. MROCC, AMRO and PTC 
stated that, in many States, intrastate employers do not need to have 
USDOT numbers and that obtaining EINs would be burdensome. Two 
commenters also observed that the CCF does not include information to 
remind the collection site to record the USDOT number.
    Response. As discussed below, FMCSA decided to eliminate the 
requirement that laboratories submit annual summaries of employer 
testing data. As a result, there is no longer a need to include USDOT 
numbers or EINs on the CCF. Accordingly, FMCSA removed this requirement 
from Sec.  382.123(b)(1).
Definition of ``Reasonable Time'' and ``Refuse to Submit''
    Comment. OOIDA requested that FMCSA clarify that a driver has not 
refused to submit to a drug or alcohol test under Sec.  40.191 or Sec.  
40.261 when certain circumstances cause a driver to be delayed in 
reaching a testing facility. OOIDA requested that FMCSA make this 
clarification through guidance or by creating definitions of the terms 
``reasonable time'' and ``refuse to submit.''
    Response. FMCSA cannot make this change as a part of this final 
rule. The comments are related to DOT-wide drug and alcohol testing 
program requirements that are beyond both the scope of the Agency's 
authority and the scope of the final rule.
Electronic Forms
    Comment. One commenter wanted to know whether entities involved in 
drug testing could continue to use paper forms. The commenter stated 
that in some circumstances computer facilities are unavailable to 
complete electronic forms. SAPAA, Driver IQ/CARCO, National Association 
of Professional Background Screeners and ATA supported the use of 
electronic forms and stated that FMCSA should allow parties to use 
electronic signatures for required authorizations and consents.
    Response. It is beyond the scope of this rulemaking to change how 
entities involved in drug testing exchange information that is not 
submitted to FMCSA. The SAMHSA, which administers the CCF, has issued 
guidance on the use of paper and electronic CCFs. You can access that 
guidance at www.samhsa.gov/sites/default/files/guidance-2014-ccf.pdf. 
Changes to the electronic CCF are beyond the scope of FMCSA's 
authority--and this rulemaking. Questions on that issue should be 
directed to SAMHSA. You may access more information on SAMHSA at 
www.samhsa.gov.
    Under certain circumstances, electronic documents and signatures 
can be used to satisfy part 382 requirements. We note, as discussed 
below, that this rule permits drivers to provide electronic consent for 
limited queries. Consent related to full queries must be provided 
electronically through the Clearinghouse. The Agency's previously 
published guidance on electronic signatures and documents can be found 
at https://www.gpo.gov/fdsys/pkg/FR-2011-01-04/pdf/2010-33238.pdf 
(``Regulatory Guidance Concerning Electronic Signatures and 
Documents,'' 76 FR 411 (Jan. 4, 2011)).
    It is important to be aware, however, that FMCSA's guidance applies 
only to those requirements that appear in 49 CFR parts 300-399. Except 
for use in the eCCF, the DOT Office of Drug and Alcohol Policy and 
Compliance (ODAPC) has not approved the use of electronic signatures or 
documents to satisfy the requirements of the DOT-wide drug and alcohol 
regulations, which are found at 49 CFR part 40.\2\ Any questions about 
part 40 regulations should be directed to ODAPC. You can find ODAPC 
contact information at https://www.transportation.gov/odapc.
---------------------------------------------------------------------------

    \2\ See ``Use of Electronic Chain of Custody and Control Form in 
DOT-Regulated Drug Testing Programs,'' 80 FR 19551 (April 13, 2015).
---------------------------------------------------------------------------

    Further, we note that electronic documents and signatures fall 
within the scope of a separate NPRM that FMCSA published on April 28, 
2014 (79 FR 23306), in which the Agency proposes to amend its 
regulations to allow the use of electronic records and signatures to 
satisfy its regulatory requirements. In addition, under section 5203 of 
the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94, 
129 Stat. 1312, Dec. 4, 2015), FMCSA is required to take certain steps 
in addressing the Agency's Regulatory Guidance Program. Therefore, 
changes to regulatory guidance regarding electronic documents and 
signatures may also occur under this initiative.

Employer Responsibilities (Sec.  382.217)

    Comment. FMCSA proposed a new section that would prohibit employers 
from allowing a driver to operate a CMV if the driver does not comply 
with the return-to-duty process after a refusal, a positive drug test, 
an alcohol confirmation test with a concentration of 0.04 or higher, or 
if the employer has actual knowledge that the driver has used alcohol 
or controlled substances as defined in Sec.  382.107. NYAPT expressed 
support for this provision. FE suggested that a driver should be able 
to resume operating a CMV after being cleared by the SAP and passing a 
return-to-duty drug test regardless of whether the appropriate 
documentation had been updated in the Clearinghouse.
    SAPAA and FE wanted to know whether Sec.  382.217(d) requires 
employers to report actual knowledge of drug or alcohol use to the 
Clearinghouse when a driver voluntarily self-reports such use under 
Sec.  382.121. SAPAA suggested that Sec.  382.217 should include each 
violation under which a driver is not allowed to engage in a safety-
sensitive function prior to complying with the return-to-duty process.
    Response. The purpose of Sec.  382.217 is to prohibit employers 
from allowing a driver to operate a CMV if that driver is subject to 
the prohibitions in 49 CFR part 382, subpart B, and has not completed 
the return-to-duty process as required by 49 CFR part 382. This section 
does not impose reporting obligations; those obligations are in part 
382, subpart G. Nor does this section limit the types of actual 
knowledge violations that give rise to employer prohibitions.
    After consideration of the above comments and further review of the 
proposed regulatory text, we conclude that, although this purpose was 
expressed in the preamble, the regulatory text does not clearly convey 
the intended result. Accordingly, this final rule revises the 
regulatory text to clarify that no employer may allow a driver to 
operate a CMV if he or she is

[[Page 87694]]

subject to any of the prohibitions in 49 CFR part 382, subpart B. Among 
other things, these prohibitions specifically include drivers for whom 
the employer has actual knowledge (as defined in Sec.  382.107) that 
the driver used controlled substances, engaged in on-duty or pre-duty 
alcohol use, or used alcohol prior to taking a post-accident test. See 
Sec. Sec.  382.205, 382.207, 382.209, and 382.213.

Retention of Records (Section 382.401)

    Comment. This section requires that employers retain documents 
related to the administration of employers' drug and alcohol testing 
programs for a minimum of 5 years. FMCSA proposed changes to clarify 
that this requirement includes records establishing that an employer 
has actual knowledge of a driver's traffic citation for driving a CMV 
while under the influence of alcohol or drugs. NYAPT stated that it was 
unnecessary to retain records of traffic citations. Towing and Recovery 
Association of America and Conference of Northeastern Towing 
Association stated that an employer's C/TPA should be able to maintain 
these records. SAPAA stated that employers keep records of citations in 
their safety department, not with their drug and alcohol program 
records. Similarly, FE said that records of citations are not 
maintained in drug and alcohol program records and it should not be the 
responsibility of employers to keep records of those citations.
    Response. We believe that the commenters may have misunderstood the 
effect of the proposed change. Existing FMCSA regulations already 
require that employers maintain all records related to their drug and 
alcohol testing programs for at least 5 years. The purpose of the 
proposed change was to clarify that an employer must retain a DUI 
traffic citation only when it uses that citation as the basis for 
establishing that it had actual knowledge of a driver's use of drugs or 
alcohol in violation of FMCSA's drug and alcohol testing program. The 
proposed change was not intended to require employers to maintain 
copies of all traffic citations. In addition, it is left to the 
employer's discretion whether to use a C/TPA to administer and maintain 
records related to the employer's drug and alcohol program. Nothing in 
this proposed change would have affected that.
    Regardless, it appears that the proposed change created more 
confusion than clarity. As a result, the final rule clarifies that 
employers must maintain drug and alcohol program records, including 
records of all part 382 drug and alcohol violations, for a minimum of 5 
years.

Laboratories' Duty To Report Controlled Substances Test Results (Sec.  
382.404)

    Comment. FMCSA proposed to require each laboratory to report a 
summary of test results for each motor carrier using the laboratory to 
conduct controlled substances testing under FMCSA's requirements. A C/
TPA commented that many owner-operators do not have independent 
accounts at laboratories; instead, their C/TPAs are the contact point 
with the laboratory. SAPAA and Quest Diagnostics said that the semi-
annual statistical summary information laboratories provide to ODAPC is 
not required to be electronic and that creating an electronic format 
would be burdensome. First Advantage said that laboratories do not 
currently collect USDOT numbers and would have to create a new field in 
their IT systems to collect this information. Cahill-Swift commented 
that laboratories often indicate that a test is an FMCSA test when an 
employer has testing responsibilities for more than one mode and that 
it would be difficult for laboratories to separate them out. Several 
commenters said that the reporting requirement was duplicative and that 
FMCSA should use the information that is reported to ODAPC and Drug and 
Alcohol Management Information System (DAMIS). Along the same lines, a 
commenter suggested that if the laboratories are reporting this 
information, carriers should not have to submit summaries. On the other 
hand, commenters such as Schneider, IBT and an individual supported the 
proposed requirement.
    Response. After considering the comments on this proposal, FMCSA 
decided to eliminate proposed Sec.  382.404. The overwhelming majority 
of commenters indicated that the proposed laboratory reporting 
requirement would require changes to existing laboratory IT systems' 
information collection procedures and that the summaries would result 
in redundant reporting. In light of the burden on the industry and the 
fact that other less burdensome means of obtaining this information 
exist, FMCSA will not require laboratories to submit annual summary 
reports.

Access to Facilities and Records (Sec.  382.405)

    Comment. FMCSA previously required employers to make records of 
their DOT drug and alcohol testing programs available to certain 
officials with regulatory authority over the employers. FMCSA proposed 
to extend that requirement to service agents as well. FMCSA also 
proposed to provide the NTSB access to a driver's record in the 
Clearinghouse when that driver is involved in a crash under 
investigation. One commenter misinterpreted this section to mean that 
FMCSA would disclose Clearinghouse information to officials with 
regulatory authority over employers and requested that FMCSA narrow the 
purposes for which these officials could request information. SAPAA 
said that C/TPAs were better able to comply with record requests than 
employers, as long as the employers provide C/TPAs with all of the 
relevant information. The NTSB requested that it be granted access to 
all information in the Clearinghouse that ``may be pertinent to its 
investigative mission.''
    Response. Under 49 CFR 40.331(c), service agents are obligated to 
make drug and alcohol testing program records available to certain DOT 
officials as well as other officials with regulatory authority over 
employers. This final rule extends a requirement in Sec.  382.405 that 
was previously limited to employers and now will include service agents 
as well. This change applies to records under the service agents' 
control and does not apply to information in the Clearinghouse. This 
change makes Sec.  382.405 consistent with part 40.
    Congress authorized FMCSA to grant the NTSB access to an 
individual's Clearinghouse record ``if the individual is involved in an 
accident that is under investigation by the National Transportation 
Safety Board.'' 49 U.S.C. 31306a(i). Based on this statutory language, 
FMCSA believes that Congress intended to limit the NTSB's access to 
individual records to instances when that particular individual is 
involved in an accident under NTSB investigation. Accordingly, Sec.  
382.405 remains as proposed.

Medical Review Officer or C/TPA Record Retention for Controlled 
Substances (Sec.  382.409)

    Comment. FMCSA proposed to amend Sec.  382.409(c) to add the 
Clearinghouse to the list of entities to which an MRO or C/TPA may 
release a driver's drug test results. SAPAA and NYAPT stated their 
support for this change. SAPAA also suggested that the MRO be required 
to tell the driver that the MRO must report violations to the 
Clearinghouse and that the MRO be required to notify the driver's 
employer when a verified result is entered into the Clearinghouse. 
Driver IQ/CARCO and DOT Right Hunters suggested adding SAPs, the NTSB, 
and consumer reporting agencies to the list of entities

[[Page 87695]]

to which MROs are permitted to release drug tests. One commenter stated 
that Sec.  382.409(c) is confusing and could be in conflict with 
Sec. Sec.  40.163(g) and 40.293(g), which permit the release of test 
information to SAPs.
    Response. In this final rule, in accordance with Sec.  382.601, 
employers must notify drivers that drug and alcohol testing program 
violations will be reported to the Clearinghouse. As a result, it is 
not necessary for MROs also to provide this notification. In addition, 
MROs have been and will continue to be required to notify employers of 
violations, in accordance with Sec.  382.407. Since the employer will 
be made aware of the violation directly by the MRO, there is no reason 
for the MRO to provide additional notification when the result is 
entered in the Clearinghouse.
    The purpose of the changes to Sec.  382.409(c) in this final rule 
is to include the Clearinghouse in the category of entities to which 
MROs and C/TPAs may report test results. FMCSA did not intend, and did 
not propose, to expand the list of entities that are entitled to obtain 
drug test results beyond the Clearinghouse. Moreover, Sec.  382.409(c), 
as proposed, is consistent with the parallel provisions authorizing the 
release of drug and alcohol information under the DOT-wide drug and 
alcohol testing program. See 49 CFR 40.331. FMCSA is not aware that the 
substantive language of Sec.  382.409 has caused any confusion over an 
MRO's authorization to provide drug and alcohol test information to 
SAPs.
    Further, it is unnecessary to add any language to allow for release 
of information to SAPs. The DOT-wide program expressly authorizes MROs 
to release drug-related violation information about a driver to the 
driver's SAP without additional consent. 49 CFR 40.163(g); 40.327(b); 
40.293(g).
    Finally, no statutory or regulatory authority permits the release 
of information to a consumer reporting agency without the driver's 
consent. To the contrary, such a release would be inconsistent with the 
fundamental privacy protections that parts 40 and 382 afford.

Notification to Employers of a Controlled Substances or Alcohol Testing 
Program Violation (Sec.  382.415)

    Comment. FMCSA proposed to require drivers to notify all employers 
if they violate FMCSA's drug and alcohol testing regulations in 49 CFR 
part 40 or 382. Several commenters expressed general support for this 
provision. The Florida Trucking Association, SAPAA, MROCC, AMRO and PTC 
asked how FMCSA would enforce this requirement. Commenters also asked 
about the time frame in which the driver would have to report this 
information to employers. A commenter requested additional information 
about how notification would be delivered and what would happen if an 
employer claimed not to have received notification. IBT said that a 
driver with only one employer should not have to report the violation 
to that employer.
    Response. The purpose of this provision is to require a driver to 
notify his or her employers if he or she has a drug or alcohol 
violation while working for a different employer or in connection with 
pre-employment testing with a new prospective employer. The text of the 
regulation specifically states that this notification must be made in 
writing before the end of the business day following the day the 
employee received notice of the violation or prior to performing any 
safety-sensitive function, whichever comes first. FMCSA recognizes that 
there is some confusion about whether drivers with only one employer 
must provide this notification and whether drivers with multiple 
employers must notify the employer that administered the test. To 
clarify this requirement, FMCSA has amended this provision to state 
expressly that drivers are not required to notify the employer who 
administered the test. Drivers who violate this provision are subject 
to the civil penalties authorized by 49 U.S.C. 521(b)(2)(C), and 
criminal penalties authorized by section 521(b)(6), with civil 
penalties adjusted for inflation as provided in Sec.  382.507. FMCSA 
may enforce this provision against drivers in connection with any type 
of enforcement activity that it is currently authorized to conduct, 
including roadside inspections and compliance reviews.
    Comment. SAPAA stated that it is possible for a C/TPA to represent 
several employers all of which employ the same driver. The commenter 
asked whether, when the driver has a violation with one employer, a C/
TPA could notify the other employers it also represents.
    Response. A service agent is prohibited from releasing information 
about a driver's violations to other employers that the C/TPA 
represents without the driver's specific consent. See 49 CFR 40.351(c). 
For purposes of FMCSA's drug and alcohol program, specific consent 
means a statement signed by the employee that he or she agrees to the 
release of a particular piece of information to an explicitly 
identified person or organization at a particular time. Id. The 
employee may not grant a ``blanket release,'' in which he or she agrees 
to a release of a category of information (e.g., all test results) or 
to release information to a category of parties (e.g., other employers 
who are members of a C/TPA or companies to which the employee may apply 
for employment).
    Comment. One commenter observed that the NPRM stated that each 
employer must separately follow the return-to-duty requirements and 
asked whether a driver with multiple employers is required to have 
multiple SAP evaluations and follow-up testing plans.
    Response. FMCSA apologizes for any confusion it may have caused in 
the NPRM. A driver with a drug or alcohol violation must complete the 
return-to-duty process. Each employer must be sure that the driver has 
completed those requirements before it allows the driver to resume 
safety-sensitive functions. But the driver need not complete multiple 
evaluations and testing plans simply because he or she has multiple 
employers.

Employer Obligation To Promulgate a Policy on the Misuse of Alcohol and 
Use of Controlled Substance (Sec.  382.601)

    Comment. Existing regulations require employers to provide 
employees with educational materials about the FMCSA's drug and alcohol 
testing program requirements and the employer's policies for 
implementing those requirements. See Sec.  382.601. FMCSA proposed to 
require that employers include notice in the educational materials that 
violations of FMCSA's drug and alcohol testing program would be 
reported to the Clearinghouse. A commenter suggested requiring 
employers to reference Sec.  382.405, which governs access to driver 
records, in the employer's educational materials. The American Bus 
Association (ABA) objected to the burden it places on small and large 
passenger carriers to provide additional educational materials. The IBT 
suggested that employers be required to provide information to 
employees about virtually all aspects of how employers and employees 
can use the Clearinghouse. The commenter also suggested that employers 
make clear that a driver's self-report of the need for assistance with 
substance abuse in accordance with Sec.  382.121 would not be reported 
to the Clearinghouse.
    Response. The purpose of this change is to require employers, as a 
part of their educational materials, to notify drivers that drug and 
alcohol test information

[[Page 87696]]

will be reported to the Clearinghouse. As a part of implementing this 
rule, FMCSA will conduct driver outreach to help drivers understand 
their rights and responsibilities. Because FMCSA is cognizant of the 
burdens changes to mandated materials place on employers, the changes 
to Sec.  382.601 in this final rule are limited to updating the 
requirements in that section to include the Clearinghouse. Sections 
382.121 and 382.405 have been in existence for a number of years; we 
are unaware of any problem associated with employer-provided 
educational materials that requires additional regulatory intervention 
at this time.

Drug and Alcohol Clearinghouse (Sec.  382.701)

    FMCSA proposed to require employers to conduct pre-employment and 
annual queries of the Clearinghouse.
Pre-Employment Investigations Under Sec. Sec.  40.25, 382.413, and 
391.23
    Comment. ATA, Cahill-Swift, Driver IQ/CARCO, C.R. England, Boeing, 
NPTC, MROCC, AMRO, PTC, J.B. Hunt, and an individual commenter asked 
whether employers would have to do a background investigation on 
prospective employees' drug and alcohol testing history in accordance 
with Sec. Sec.  40.25, 382.413, and 391.23 if the employer conducted a 
pre-employment query of the Clearinghouse. Many of these commenters 
observed that it would be redundant to complete a background 
investigation and also query the Clearinghouse. Accordingly, they 
suggested that FMCSA either eliminate the background investigation 
requirement or, alternatively, provide an exemption.
    Response. FMCSA agrees that it would be redundant for employers to 
request information on an employee's drug and alcohol testing history 
and query the Clearinghouse. Under current regulations, employers are 
required to determine whether a prospective employee violated FMCSA's 
drug and alcohol testing program during the preceding 3 years and, if 
so, whether he or she has completed the return-to-duty process. In this 
final rule, FMCSA eliminates the requirement that employers both query 
the Clearinghouse and conduct a drug and alcohol history background 
investigation, with limited exceptions as discussed below.
    Employers will be required to query the Clearinghouse and request 
drug and alcohol testing histories from previous employers until the 
Clearinghouse has been in operation for at least 3 years. After 3 
years, employers subject to part 382 will no longer be required to 
request drug and alcohol testing histories from previous employers, 
except in the following situations. When an employer relies on the 
Sec.  382.301(b) exception to the pre-employment testing requirement, 
the employer must meet all of the requirements, including verifying 
that the driver participated in the controlled substances testing 
specified in Sec.  382.301(b)(2)(i) and (ii) and had no recorded 
violations of another DOT agency's controlled substances use rule 
within the previous 6 months.
    In addition, for drivers subject to follow-up testing, an employer 
must request the follow-up testing plan from the previous employer if 
the driver's Clearinghouse record does not indicate that he/she 
successfully completed follow-up testing. Employers are required to 
obtain an employee's ongoing follow-up testing plan pursuant to Sec.  
40.25(b)(5). As discussed below, the duration of the follow-up testing 
and the number and type of follow-up tests prescribed by the SAP will 
not be reported to the Clearinghouse. Therefore employers will continue 
to be required to request this information directly from the previous 
employer. The need to request the follow-up testing plan will be 
apparent when the driver's Clearinghouse record indicates that he/she 
successfully completed the return-to-duty process, but there is no 
report, required under Sec.  382.705(b)(1)(v), that the driver 
completed all follow-up tests as prescribed by the SAP. In cases where 
a driver who is subject to follow-up testing is not currently employed, 
the gaining employer may obtain the driver's follow-up testing plan 
from the SAP, whose contact information will be available in the 
Clearinghouse.
    Finally, if a prospective employee was subject to drug and alcohol 
testing with a DOT mode other than FMCSA, employers must continue to 
request background information from those DOT-regulated employers, who 
are not subject to the Clearinghouse reporting requirements. The 
Clearinghouse therefore will not contain any non-FMCSA drug and alcohol 
information. FMCSA revised Sec. Sec.  382.413 and 391.23 to implement 
these changes. These revisions will make clear that an employer that 
queries the Clearinghouse has satisfied the background investigation 
requirements of Sec.  40.25(b), subject to the exceptions described 
above.
Frequency of Queries Permitted
    Comment. ATA, FE, Cahill-Swift, J.B. Hunt, and Driver IQ/CARCO 
asked whether employers would be limited to just one query per employee 
per year and suggested that they should be able to query the database 
more frequently.
    Response. Nothing in the rule prohibits employers from conducting 
queries on drivers more than once per year. The annual query 
requirement, which can be met by conducting either a full or limited 
query, merely sets the minimum frequency for conducting queries. FMCSA 
made minor changes to Sec.  382.701(b) to make this clear.
    Employers may conduct more frequent queries so long as they obtain 
employee consent in accordance with Sec.  382.703. FMCSA envisions that 
employers would obtain one general consent to conduct a limited query 
(or queries) from drivers at the time they are hired. Employers should 
ensure that the general consent to query does not restrict them to one 
query per year if they intend to conduct limited queries on a more 
frequent basis.
Burden of Annual Queries
    Comment. Boeing, ABA, and a number of other commenters said that 
the annual query requirement is unnecessary and burdensome. Boeing 
added that the time and resources associated with the annual query 
would be burdensome, especially for large employers.
    Response. FMCSA disagrees that the annual query requirement is 
unnecessary or overly burdensome. The number of commenters interested 
in conducting queries more often than once a year points to the 
opposite conclusion: That employers believe Clearinghouse queries will 
be a useful tool for identifying problem employees. The purpose of this 
requirement is to ensure that drivers who commit a drug or alcohol 
violation while working for another employer or attempting to find work 
with another employer do not continue performing safety-sensitive 
functions without complying with the return-to-duty process. Without 
the annual query, employers have no way of knowing about violations 
with other employers that render a driver ineligible to drive. FMCSA 
envisions that employers would obtain one general consent to query from 
drivers at the time they are hired in order to conduct these annual or 
more frequent limited queries, reducing the burden on employers to 
obtain such consent on a yearly basis. As noted above, employers also 
have the option of conducting a full query in order to satisfy the 
annual query requirement; in such cases, specific consent must first be 
obtained from the driver.

[[Page 87697]]

Employer Alert of Positive Test Result
    Comment. FMCSA proposed that an employer would be notified if new 
information about a driver is entered into the Clearinghouse within 7 
days of an employer conducting a query. One commenter stated that the 
7-day time period is too short. SAPAA, MROCC, AMRO and PTC, and several 
trucking associations requested that FMCSA extend the time from 7 days 
to 30 days to take into account hiring delays and the time it takes to 
process pre-employment drug tests.
    Response. FMCSA believes that these comments have merit and, as a 
result, includes a 30-day notification period in this final rule. FMCSA 
interprets the statutory mandate that the Agency provide notification 
to an employer within 7 days as a minimum, not a maximum time period. 
This interpretation is consistent with the purposes of the 
Clearinghouse: To improve compliance and enhance safety. See 49 U.S.C. 
31306a(a)(2). As the commenters observe, it could take more than 7 days 
after a drug test for a violation to be processed, verified, and 
entered into the Clearinghouse. This means that a driver submitting 
applications to more than one employer could have a positive pre-
employment drug test without other employers' knowledge. By extending 
the notification period, employers are more likely to get the necessary 
information to determine whether a driver is in compliance with FMCSA's 
drug and alcohol testing program. Accordingly, FMCSA extends the 
notification period for employers to 30 days.
Full Query in Lieu of Limited Query
    Comment. FMCSA proposed that the annual query requirement would be 
satisfied by conducting a limited query to determine whether any 
information about a particular driver existed in the Clearinghouse. If 
the limited query shows that information exists, the employer would be 
required to obtain consent to conduct a full query to gain access to 
the information. Schneider, the CCTA, and another commenter objected to 
conducting a limited query in advance of a full query and requested 
that the regulation provide for only full queries.
    Response. An employer that conducts a limited query will receive a 
response that says that information either exists or does not exist in 
the Clearinghouse. If the response indicates that there is information, 
the employer must obtain specific consent from the driver to conduct a 
full query that releases the content of that information. Nothing 
prevents an employer from obtaining specific consent to conduct a full 
query each year. But to ease the burden associated with obtaining 
annual consent, FMCSA offers employers the option of doing a limited 
query, which may be conducted with a multi-year consent to query.
    Comment. A commenter asked what kind of information would trigger a 
full query.
    Response. If a limited query returns a response indicating that any 
information about that driver exists in the Clearinghouse, the employer 
must conduct a full query to find out whether the information shows 
that the driver is eligible to perform safety-sensitive functions.
Annual Queries--Miscellaneous
    Comment. One commenter expressed support for the annual query 
requirement. Two commenters asked whether they would be able to conduct 
annual queries of all employees in a batch.
    Response. Nothing in this rule would foreclose the possibility of 
batch-processing annual queries. Details on Clearinghouse functionality 
will be addressed during the design and development process. FMCSA will 
provide information to stakeholders on that functionality closer to the 
Clearinghouse compliance date.
    Comment. A commenter asked whether the annual query could be 
conducted at the same time as other required annual checks.
    Response. Nothing in the rule mandates when the annual checks be 
conducted except that they occur at least once per year. Employers are 
free to choose the time of year that best suits their operational 
needs. FMCSA anticipates that many employers will choose to conduct 
Clearinghouse queries at the same time they conduct other required 
annual verifications, but that decision is left entirely to the 
employer.
    Comment. An individual wanted to know, in the event of multiple 
employers, which employer would be responsible for querying the 
Clearinghouse. CCTA asked if owner-operators are required to query 
themselves.
    Response. Anyone who employs a driver, regardless of whether that 
driver has other employers, must query the Clearinghouse in accordance 
with Sec.  382.701. This includes owner-operators who, as both 
employers and employees, are subject to all provisions of FMCSA's drug 
and alcohol regulations. See 49 CFR 382.103(b). A driver who owns a 
company, regardless of whether it has one or many drivers, must comply 
with all employer and employee Clearinghouse requirements.
    Comment. Another commenter asked what FMCSA hopes to achieve 
through the annual query. The same commenter wanted to know what an 
employer is supposed to do if an annual query returns results showing 
that a driver violated FMCSA's drug and alcohol testing program with 
another employer.
    Response. The goal of the annual query, which is mandated by 
Congress (see 49 U.S.C. 31306a(f)(4)), is to make employers aware of 
drug and alcohol violations a driver may have incurred while working 
for another employer or in connection with pre-employment testing with 
a prospective employer. If the annual search shows a drug or alcohol 
violation, the employer would be prohibited from allowing a driver to 
perform safety-sensitive functions until the driver complied with the 
return-to-duty requirements.
    Comment. MROCC, AMRO and PTC asked about the time frame for an 
employer to conduct a full query after a limited query indicates that 
there is information about a particular driver in the Clearinghouse.
    Response. When a limited query shows that there is information in 
the Clearinghouse about a particular driver, the employer making the 
query (or service agent making it on the employer's behalf) must 
conduct a full query within 24 hours. If the full query is not 
conducted within 24 hours, the driver in question is prohibited from 
performing safety-sensitive functions. The driver may resume safety-
sensitive functions once a full query is conducted so long as it shows 
that the driver is not prohibited from performing those functions. 
FMCSA amended Sec.  382.701(b) to make this requirement clear.

Driver Consent To Permit Access to Information in the Clearinghouse 
(Sec.  382.703)

    FMCSA proposed that employers may not query the Clearinghouse 
without the affected driver's consent.
Consent Required
    Comment. Several commenters suggested that FMCSA allow employers to 
query the Clearinghouse at will without driver consent.
    Response. In authorizing FMCSA to establish the Clearinghouse, 
Congress specifically required that a driver grant consent before the 
Clearinghouse releases information in a driver's Clearinghouse record. 
49 U.S.C. 31306a(h)(1). The Agency therefore has no discretion to 
permit employers to

[[Page 87698]]

query the Clearinghouse without the driver's consent and accordingly, 
Sec.  382.703, prohibits employers from conducting either limited or 
full queries without obtaining the driver's consent. The issue of 
driver consent is addressed more fully below.
Electronic Consent
    Comment. Schneider, WPCI, C.R. England, ATA and DrugPak, LLC 
(DrugPak) recommended that FMCSA allow the use of electronic signatures 
for driver consent.
    Response. FMCSA anticipates that, for the full query, drivers will 
provide electronic consent through the Clearinghouse, as noted below. 
The Agency intends to include this functionality in the design of the 
Clearinghouse system. For limited queries, drivers and employers will 
have the option of using either paper or electronic methods to create 
and maintain documentation of driver consent. You may access FMCSA's 
guidance on how to create and maintain electronic signatures at 
``Regulatory Guidance Concerning Electronic Signatures and Documents,'' 
76 FR 411 (Jan. 4, 2011).
``Blanket'' Consent Forms
    Comment. Several commenters suggested that employers should obtain 
driver consent to query the Clearinghouse as a part of the driver's 
employment application. Cahill-Swift, Driver IQ/CARCO, J.B. Hunt, ABA 
and Schneider recommended blanket consents for both full and limited 
queries for as long as the driver is employed with that employer. 
Foley, C.R. England, MRROC, AMRO and PTC also expressed support for 
blanket consents for limited queries. Commenters suggested that limited 
consent be combined with the driver employment application or pre-
employment screening program (PSP) consent, while another suggested 
that it should be solicited during the driver's annual review. SAPAA 
suggested that consent forms be valid for 3 years.
    Response. Under existing regulations, employees may not grant 
blanket consent to release drug and alcohol testing program 
information. 49 CFR 40.321. Accordingly, FMCSA does not permit 
employees to grant blanket consent to conduct annual Clearinghouse 
queries. But nothing in this final rule prevents an employer from 
obtaining general consent for limited queries because limited queries 
do not release driver information. Employers and employees are free to 
work out the details for obtaining general consent for limited queries, 
such as when the consent is originally obtained, for how long it is 
effective, and whether is it is combined with other consent forms.
Standard Consent Form
    Comment. One commenter suggested that FMCSA establish a standard 
consent form so that employees know what information they are 
consenting to release with each type of query. OOIDA suggested that 
FMCSA prescribe the exact language for the consent form, including 
details about the type of consent given and the driver's rights under 
Clearinghouse rules. OOIDA also suggested that consent forms have time 
limits, the full and limited query consent forms should be separate, 
and drivers should receive a copy of each form he or she signs.
    Response. To preserve the maximum flexibility for employers and 
employees, FMCSA does not provide a standard consent form in this final 
rule. However, we will provide a sample consent form on the 
Clearinghouse Web site that employers may use or adapt. With respect to 
limited queries, employers and employees are free to structure the 
consent in the way that permits the most efficient use of their 
resources. For example, it may be combined with other documents and 
consents or it could be a stand-alone document. It could be subject to 
renewal each year, or be effective for the duration of employment. It 
could be limited to one query per year, or permit an unlimited number 
of queries. Employers are required to keep records of this consent for 
a minimum of 3 years after the last query and compliance with this 
requirement is subject to audit. Nothing prohibits employers from 
providing employees a copy of their consent.
    FMCSA will not, however, compel employers to include detailed 
information about the Clearinghouse or an individual's rights on the 
consent form.
    The Agency intends that consent for full queries will be managed 
electronically through the Clearinghouse. FMCSA envisions that an 
employer will make an electronic request for records through the 
Clearinghouse and, once FMCSA receives electronic confirmation of 
consent from the driver, records, if they exist, would be released to 
the requesting employer. Employers would not be required to obtain or 
keep any other written forms of consent for full queries. The 
Clearinghouse will provide notice to the driver each time his or her 
information is released in connection with a full query. In addition, a 
driver will be given the option to receive electronic notification each 
time someone conducts a limited query on that driver. The driver will 
be given the opportunity to provide electronic contact information when 
he or she registers with the Clearinghouse.
Consent for Service Agents To Query the Clearinghouse
    Comment. First Advantage and CCTA suggested that service agents 
should be able to query the Clearinghouse on behalf of an employer.
    Response. Employers may designate service agents to query the 
Clearinghouse on their behalf. Service agents accessing the 
Clearinghouse must be authorized by the employer and registered in 
accordance with Sec.  382.711.
FMCSA Verification of Employee Consent
    Comment. Two commenters wanted to know how FMCSA would verify 
driver consent for a full query.
    Response. The driver would log into the Clearinghouse and authorize 
the release of his or her records to a particular employer. The driver 
would have to establish log-in credentials when registering with the 
Clearinghouse in order to verify his or her identity.

Reporting to the Clearinghouse (Sec.  382.705)

    FMCSA proposed to require employers, MROs, and SAPs to report 
information about violations of FMCSA's drug and alcohol testing 
program to the Clearinghouse. Section 382.705 identified and assigned 
responsibility for these reporting requirements.
Harassment or Coercion
    Comment. OOIDA stated that it was concerned that a motor carrier 
could misuse its role in the reporting process to coerce, harass, or 
retaliate against drivers.
    Response. In response to concerns about employers submitting false 
allegations to the Clearinghouse in order to coerce, harass, or 
retaliate against drivers, FMCSA has established new requirements for 
reports of violations based on an employer's actual knowledge or on a 
driver's failure to appear for a test. These new requirements, codified 
in new Sec.  382.705(b)(3) and (5), call for the employer to document 
the violation contemporaneously and/or to submit supporting 
information, under penalty of perjury, about the violation to the 
Clearinghouse. For more information on these procedures and the 
consequences for false reporting, see the discussion of Sec.  
382.705(b)(3) and (5) below. In

[[Page 87699]]

addition, drivers who believe that inaccurate information about them 
has been entered into the Clearinghouse may request correction of their 
record in accordance with Sec.  382.717 or DOT's Privacy Act procedures 
(49 CFR part 10, subpart E) (See also discussion of the Privacy Act 
elsewhere in this preamble.)
Inaccurate Reporting
    Comment. A number of commenters were concerned about how the 
reporting of inaccurate information to the Clearinghouse would affect 
drivers. OOIDA urged that every requirement be carefully considered to 
maximize accuracy and eliminate room for error. Another commenter 
recommended that no SAP reports or return-to-duty information should be 
reported to the Clearinghouse because there is a risk of inaccurate 
reporting.
    Response. Minimizing the risk for error was an important 
consideration for the Agency while developing this rule. Entries to the 
Clearinghouse will be made electronically using pre-defined data fields 
to minimize incorrect entries. Anyone reporting information will not be 
able to make an entry without including all required information. In 
addition, each time an entry is made to a driver's record, that driver 
will be notified in accordance with Sec.  382.707. In the event of an 
incorrect entry, drivers will be able to request corrections in 
accordance with the procedures in Sec.  382.717.
Cancelled or Changed Tests
    Comment. SAPAA asked what happens when a test is cancelled. Two 
commenters recommended that cancelled tests should be deleted and not 
kept for any purposes. Cahill-Swift asked whether a record is 
immediately expunged from the Clearinghouse when an MRO changes a 
reported positive or refusal.
    Response. In accordance with part 40, a cancelled test may not be 
considered positive or used as a basis for prohibiting a driver from 
performing safety-sensitive functions or requiring the driver to 
complete the return-to-duty process. 49 CFR 40.207, 40.267. 
Accordingly, no cancelled test should be reported to the Clearinghouse. 
In the event an MRO cancels a test that he or she previously reported 
to the Clearinghouse, that MRO must report that change to the 
Clearinghouse within 1 business day (Sec.  382.705(a)(3)). FMCSA would 
then remove that test from the Clearinghouse. FMCSA would not, however, 
remove the information from its archives. Although this information 
would not be accessible to employers, it is important that FMCSA retain 
a record of all cancelled tests for auditing and enforcement purposes. 
If an MRO fails to report the cancelled test within the required time 
frame, the employee can submit a request for removal through the 
Clearinghouse data correction procedures in Sec.  382.717.
Redundant Reporting Responsibilities
    Comment. C.R. England, Greyhound Lines Inc. (Greyhound), OOIDA, 
CCTA and other commenters said that the proposed reporting requirements 
were redundant because different entities--for example, employers and 
MROs--were responsible for reporting the same information. These 
commenters requested less duplicative and burdensome requirements. One 
of the commenters suggested using chain of custody or other numbers to 
track specimens and prevent duplicate reporting of positive test 
results from different sources.
    Response. FMCSA did not intend to include any redundant reporting 
requirements in the proposed rule. We believe that several commenters 
were confused because Sec.  382.705 requires both employers and MROs to 
report refusals. FMCSA intended, however, for MROs to report only those 
refusals related to the portion of the testing process in which they 
are involved, as identified in Sec.  40.191. Similarly, FMCSA intended 
for employers to report all other refusals identified in Sec.  40.191. 
In other words, Sec.  382.705 requires employers and MROs to report 
different kinds of refusals with no overlapping responsibilities.
    To clarify that MROs and employers have mutually exclusive 
reporting requirements, this final rule distinguishes between those 
paragraphs of 49 CFR 40.191 that implicate MRO reporting and those that 
implicate employer reporting. The final rule now states that employers 
are required to report refusals to take drug tests pursuant to Sec.  
40.191(a)(1)-(4), (a)(6), (a)(8)-(10), or (d)(1) and to report 
situations in which the employee admits to the collector that he or she 
adulterated or substituted the specimen in accordance with Sec.  
40.191(a)(11). MROs, on the other hand, are required to report refusals 
that are determined pursuant to Sec.  40.191(a)(5), (a)(7), (b), and 
(d)(2). MROs are also required to report refusals when the employee 
admits to the MRO that he or she adulterated or substituted the 
specimen in accordance with Sec.  40.191(a)(11).
    Additionally, we note that MROs and employers do not have 
overlapping reporting responsibilities related to positive test 
results. Consequently, duplicate reporting, in which the same test 
result is reported to the Clearinghouse by different sources, will not 
occur. However, to the extent that duplicate test results are 
inadvertently reported to the Clearinghouse by the same source as a 
result of administrative error, drivers may request that duplicate 
reports be removed through the data correction procedures established 
under Sec.  382.717.
Who Should Report Information
    Comment. Several commenters said that only employers should enter 
information to alleviate burdens on service agents and to promote 
accuracy. OOIDA suggested alternative regulatory text that would make 
employers responsible for reporting all refusals to test. Several 
commenters supported having MROs, not employers, report positive test 
information to eliminate opportunities for employers to report 
inaccurate information, both inadvertently and intentionally. One 
commenter supported having SAPs enter SAP information to ensure 
accurate data is entered. Commenters also suggested having blood 
alcohol technicians or screening test technicians instead of employers 
enter alcohol test results, also to improve accuracy. Other commenters 
stated that employers, MROs, and SAPs should be able to allow third 
parties or assistants to enter information into the Clearinghouse to 
alleviate their reporting burdens. Greyhound and another commenter 
supported having each party enter information related to their 
immediate firsthand knowledge as a way of ensuring checks and balances 
in the reporting process. Two commenters supported having MROs report 
positive test results because they believe some employers would choose 
not to report the positive tests so that their employees could continue 
driving. A number of commenters suggested that SDLAs report information 
on citations for DUI while driving a CMV. Other commenters expressed 
concern about the conflict of interest owner-operators have in self-
reporting their own drug and alcohol violations.
    Response. FMCSA considered permitting only employers to input 
information into the Clearinghouse and determined that the better 
option is to have service agents enter their own information. This 
minimizes the risk of error by preventing the information from passing 
through multiple hands before reporting and holds each actor 
responsible for the integrity of his or her own reportable information. 
Furthermore, consolidating reporting authority into the hands of 
employers could make it easier for unscrupulous

[[Page 87700]]

employers to misuse their reporting role either to coerce drivers or 
help them evade the consequences of receiving a positive test.
    Nothing in the final rule prohibits an MRO or SAP from allowing 
authorized staff to enter information into the Clearinghouse. The MRO 
or SAP remains responsible, however, for the accuracy of any 
information entered by staff on their behalf.
    The rule does not require SDLAs to report DUI citations to the 
Clearinghouse. FMCSA believes that some of the commenters misunderstood 
the requirement to report that an individual was cited for a DUI while 
driving a CMV. The rule proposed that it would be the employer's 
responsibility to report a violation of Sec. Sec.  382.205, 382.207, or 
382.213 that is based on the employer's actual knowledge of a citation 
for DUI while driving a CMV. The Clearinghouse was never intended to be 
a repository for all citations for DUI while driving a CMV. In 
accordance with Sec.  382.107, it will only contain those citations 
that an employer uses to substantiate actual knowledge that an employee 
violated FMCSA's drug and alcohol program.
    In this final rule, FMCSA will require employers to report and 
substantiate all violations of Sec.  382.205, Sec.  382.207, or Sec.  
382.213 based on the employer's actual knowledge of the circumstances. 
We discuss these provisions in more detail below.
    In addition, this final rule mandates that any owner-operator, 
regardless of whether he or she operates solo or has other driver-
employees, must use a C/TPA to comply with the employer reporting 
requirements established in this rule. FMCSA implements this 
requirement in response to commenters' concerns about the conflict of 
interest owner-operators have in self-reporting their own drug and 
alcohol violations. The Agency does not believe that this will cause 
any increased costs or burdens on owner-operators. In the case of 
owner-operators who employ only themselves, they are already required 
to participate in a testing pool managed by a C/TPA. See Sec.  
382.103(b). Similarly, FMCSA's experience has shown that most owner-
operators with other employees tend to be very small motor carriers 
that find it more convenient to use C/TPAs to manage their drug and 
alcohol programs. Accordingly, adding the reporting function to the C/
TPA's duties should not create new burdens; to the contrary, 
consolidating all reporting into the C/TPA's hands should achieve 
efficiencies.
Employers and Drivers Regulated by More Than One Mode
    Comment. Two commenters stated that some drivers work for companies 
that are regulated by more than one mode and suggested that results of 
a test conducted under the authority of another mode be reported to the 
Clearinghouse.
    Response. In accordance with Congress's mandate in MAP-21, this 
final rule applies to part 382 drug and alcohol violations only. See 49 
U.S.C. 31306a(a)(3). FMCSA does not have the authority to require 
employers to report other modes' drug and alcohol violations to the 
Clearinghouse.
Reporting Truthfully and Accurately
    Comment. FMCSA proposed that every person or entity with access to 
the Clearinghouse be required to report truthfully and accurately, and 
expressly prohibited them from knowingly reporting false or inaccurate 
information. OOIDA suggested that FMCSA remove the term ``knowingly'' 
from this requirement.
    Response. FMCSA proposed using the term ``knowingly'' because the 
Agency does not intend to impose sanctions on inadvertent errors. That 
said, the Agency recognizes the serious consequences drivers could face 
as a result of parties who report inaccurate information. Accordingly, 
the Agency expanded the prohibition to provide sanctions when a person 
reports information he or she knows or should know is false or 
inaccurate. This holds those reporting information to the Clearinghouse 
to a higher standard of accountability.
Reporting Follow-Up Tests
    Comment. Driver Check asked whether employers are required to 
report negative as well as positive follow-up tests. OOIDA suggested 
that the number of follow-up tests be reported to the Clearinghouse. 
SAPAA suggested that employers report aftercare information during the 
follow-up period.
    Response. Although employers must report negative return-to-duty 
tests, they are not required to report negative follow-up tests. The 
reason for the distinction between the two is because reporting a 
negative return-to-duty test changes a driver's status from prohibited 
to eligible to perform safety-sensitive functions. A negative follow-up 
test does not cause a change in the driver's status until the employer 
reports successful completion of all follow-up tests. Employers and 
MROs must, however, report positive return-to-duty and follow-up tests 
just as they would for any other positive test. In addition, employers 
will report to the Clearinghouse that a driver has completed the 
return-to-duty process when he or she has successfully completed all 
required follow-up tests.
    FMCSA does not believe that reporting aftercare information is 
appropriate at this time. The purpose of the Clearinghouse is to be a 
tool for employers to use to determine whether an employee or 
prospective employee is prohibited from performing a safety-sensitive 
function. While the details of aftercare are relevant to the driver's 
return-to-duty process, they do not, in and of themselves, indicate 
whether a driver is prohibited from driving.
Time Allowed for Reporting
    Comment. FMCSA proposed to require MROs, employers, C/TPAs, and 
SAPs to report to the Clearinghouse within 1 day of the event 
triggering a reporting requirement. Many commenters said that this did 
not allow enough time. DrugPak said that this requirement was not 
consistent with FMCSA's statutory authority, which simply required 
``timely'' reporting. WPCI said that the rule should have a more 
specific time frame such as 24 hours. Yet another commenter requested 
that the reporting period be extended to 2 days. A commenter said that 
there are no time limits applicable to C/TPAs and requested that FMCSA 
change the rule to include them. Several commenters suggested that SAPs 
have up to 72 hours to report information. A different commenter 
suggested that SAPs have 5 days to report information.
    Response. After consideration of these comments, FMCSA changed the 
proposed provisions so that this final rule requires MROs to report 
within 2 days of verifying a drug test. FMCSA makes this change to 
allow MROs a little more time to comply with their reporting 
requirements. The 2-day time frame is consistent with current MRO 
requirements for transmitting a report of a verified test to the 
employer within 2 days of verification. See 49 CFR 40.167(c).
    There is no comparable reporting period in part 40 for employers or 
SAPs, however. FMCSA appreciates the commenters' concerns about the 
short period of time required for reporting, but must also balance this 
requirement against the public safety interest in timely reporting and 
the driver's interest in returning to work as soon as he or she is 
eligible. Accordingly, this final rule requires SAPs to complete their 
reporting requirements by the close of

[[Page 87701]]

the business day after the event that triggered their reporting 
responsibility.
    For employers, the reporting period has been extended to the end of 
the third business day following the event triggering the violation. 
This change was made to reflect the fact that, in the case of a 
violation substantiated by an employer's actual knowledge of drug or 
alcohol use, or in the case of an employer's report of a driver's 
failure to appear for a test, new reporting requirements apply. The 
final rule affords more time for employers to report violations because 
employers are now required to generate or gather documents in order to 
substantiate these types of reports. These reporting requirements are 
discussed in further detail below. In order to maintain a uniform 
reporting period applicable to employer reports, the reporting period 
in this rule applies to all reports made by employers, not just those 
requiring additional documentation.
    We also note these reporting periods establish the maximum amount 
of time in which MROs, SAPs and employers can submit their reports to 
the Clearinghouse. Nothing in this rule prohibits the submission of 
reports at an earlier point within the reporting window.
    C/TPAs who report information to the Clearinghouse stand in the 
shoes of the employer, when they are designated to take on that 
responsibility. Accordingly, any time frame applicable to an employer 
is equally applicable to the C/TPA acting on the employer's behalf.
Reporting Actual Knowledge of Drug or Alcohol Use
    Comment. FMCSA's proposal to require employers to report violations 
based on their actual knowledge of an employee's drug or alcohol use 
only when substantiated by a citation for DUI in a CMV is narrower than 
the scope of actual knowledge violations defined in Sec.  382.107. 
Twenty-three commenters objected to this limitation and recommended 
that FMCSA require employers to report all violations based on actual 
knowledge, as defined in Sec.  382.107. They stated that limited 
reporting would leave the Clearinghouse incomplete and would be 
inconsistent with Congress's mandate in MAP-21 that all violations of 
the Agency's drug and alcohol program be reported to the Clearinghouse. 
Commenters also said that FMCSA's concerns about inadequate 
documentation for violations based on actual knowledge were 
inconsistent with existing regulations that require employers to report 
these types of violations in accordance with pre-employment background 
investigations.
    Several commenters supported the proposal and said that reports to 
the Clearinghouse should not be based on undocumented information that 
could be used to coerce drivers. One of these commenters, OOIDA, said 
that employers should order a reasonable suspicion test when they have 
actual knowledge of a violation, but opposed permitting ``unverified'' 
actual knowledge violations to be reported to the Clearinghouse.
    One commenter stated that no DUI information should be available.
    Response. After considering the comments on this issue, FMCSA 
agrees that it is appropriate to include all actual knowledge 
violations of part 382 in the Clearinghouse. By including such 
violations, employers will be able to query the Clearinghouse to obtain 
a complete picture of a driver's drug and alcohol violations history. 
This change also allows employers to use a Clearinghouse query to 
satisfy the drug and alcohol background investigation requirements in 
Sec. Sec.  382.413 and 391.23, as discussed above. We note that neither 
DOT nor non-DOT tests are included in the scope of reportable actual 
knowledge violations.
    Any violation based on an employer's actual knowledge of a driver's 
drug or alcohol use requires detailed, contemporaneous documentation in 
the Clearinghouse. Employers are required to report the details of the 
violation and upload evidence documenting the violation by the end of 
the third business day following the triggering event. Employers must 
report the date of the violation, a detailed description of the event, 
including the approximate time the violation occurred, and the names 
and contact information for any corroborating witness. Employers must 
also provide evidence to support each fact alleged in its description 
of the violation. In the absence of any tangible written, video, or 
audio evidence, the employer must attest to each fact alleged in an 
affidavit. Finally, the employer must verify that it provided all of 
the evidence supporting the violation to the employee.
    The Agency intends, during the implementation phase, to build 
technology into the Clearinghouse that allows an employer to report an 
actual knowledge violation only if the employer attests that the report 
contains the required evidentiary support, as described above, and that 
the employer has provided a copy of the report to the employee. In the 
event that an employer falsely certifies that either of those 
requirements for submission of the report have been met, the employee 
may request that the information be removed from the Clearinghouse 
under new Sec.  382.717(a)(2)(ii). Additionally, the employer would be 
subject to criminal and civil penalties as discussed below.
    Reporting an actual knowledge violation to the Clearinghouse will 
have the effect of prohibiting a driver from engaging in his or her 
occupation; however, it typically is not accompanied by the type of 
paperwork or documentation that accompanies a test result. Given the 
severity of the consequences for the employee, we do not believe that 
an employer should be able to report an actual knowledge violation 
without evidence substantiating each allegation. Accordingly, these 
requirements create objective standards for documenting actual 
knowledge violations and hold employers accountable for what they 
report to the Clearinghouse.
    In addition, as a part of the system design and implementation 
process, FMCSA intends to build functionality into the Clearinghouse 
that requires the person submitting information to state that it is 
true and correct and that will warn the user that the submission of 
false or misleading information is subject to civil and criminal 
penalties under Sec.  382.507. These requirements are implemented to 
address concerns about coercion and harassment. They are designed to 
ensure that no employer reports any violation based on actual knowledge 
without providing evidence to support the violation. Moreover, no 
employer will be able to report any violation based on actual knowledge 
after the window for reporting has closed, eliminating the possibility 
for after-the-fact harassment or coercion.
    Although a full query will alert an employer or prospective 
employer when a driver has a prohibition based on an employer's actual 
knowledge, the Clearinghouse will not release the details of that 
violation to anyone other than the driver. The circumstances of the 
violation have no bearing on whether the employee is eligible to 
perform safety-sensitive functions. All that is relevant is whether the 
driver is prohibited from performing safety-sensitive functions.
    The Agency believes that this reporting requirement does not impose 
an additional cost burden on employers because a prudent employer would 
compile such documentation to support the termination or transfer of an 
employee to a non-safety-sensitive function, pending the driver's 
completion of the return-to-duty process.

[[Page 87702]]

Reporting Refusals To Test
    Comment. OOIDA expressed concern regarding a situation that exists 
under the current drug and alcohol testing program, in which a false 
allegation of a driver's refusal to test may be made by the motor 
carrier as a means of harassing, coercing, or retaliating against the 
driver. OOIDA cited a specific example in which an employer reported a 
test refusal for a driver who was no longer in the motor carrier's 
employ at the time of the alleged refusal. Among other things, OOIDA 
recommended that FMCSA require the employer to provide supporting 
documents to prevent the motor carrier's submission of false or 
inaccurate reports of driver refusals, and to provide for the timely 
removal of such reports if they do occur.
    Response. The Agency understands the serious consequences to a 
driver whenever any violation is reported to the Clearinghouse. 
Consequently, it is incumbent upon FMCSA to ensure, to the extent 
feasible, that employers do not report violations to the Clearinghouse 
that are false or inaccurate, and that employers who do so will be 
subject to appropriate sanctions. FMCSA notes, however, that we have no 
basis on which to anticipate that widespread fraud by employers subject 
to the Clearinghouse reporting requirements will occur. On the other 
hand, we acknowledge that unscrupulous employers could, as the 
commenter described, attempt to use the Clearinghouse for purposes of 
coercion or harassment when reporting a test refusal.
    Accordingly, we are adding new documentation requirements related 
to the reporting, by an employer, or a C/TPA acting as the employer's 
service agent, of a driver's failure to appear for an alcohol or drug 
test. Under 49 CFR 40.261(a)(1) and 49 CFR 40.191(a)(1), failure to 
appear at a testing site after being directed to do so by an employer 
constitutes a refusal. In submitting such reports to the Clearinghouse 
under Sec.  382.705(b)(3), an employer must provide documentation, such 
as a contemporaneous record or an affidavit, of the time and date that 
the driver was notified to appear at a testing site, as well as the 
time and date the driver was directed to appear; documentation, such as 
electronic mail or an affidavit, of the date the employee was 
terminated or resigned (if applicable); and documentation, such as a 
certificate of service or other evidence, showing the employer provided 
the driver with all the information reported under this paragraph. C/
TPAs who report ``failure to appear'' refusals by self-employed drivers 
pursuant to Sec.  382.705(b)(6) would be required to document, by 
affidavit or other means, that they were designated as the service 
agent for that employer at the time the ``failure to appear'' refusal 
occurred. The Agency envisions that employers, or C/TPAs acting as 
their service agents, could rely on a single affidavit to fulfill these 
documentation requirements, as long as all the required information is 
included. Further, we presume that the documentation of test 
notifications, a driver's employment status, or the existence of a 
valid business relationship between self-employed drivers and C/TPAs, 
are records reasonably kept in the ordinary course of business and 
would not need to be created solely to comply with these reporting 
requirements.
    The NPRM proposed, under Sec.  382.705(b)(1), that employers report 
test refusals to the Clearinghouse by the close of the business day 
following the date on which they obtained the information. In 
recognition of the fact that additional time may be needed to comply 
with these new documentation requirements for ``failure to appear'' 
refusals, in this rule we extend the reporting period for all test 
refusals to the close of the third business day following the date on 
which the violation information was obtained. Further, we note that the 
3-year implementation period for this rule will afford employers ample 
opportunity to make any necessary adjustments to their record keeping 
systems in order to comply with these requirements.
    Similar to the reporting requirements for actual knowledge 
violations, FMCSA intends that the Clearinghouse functionality will 
allow ``failure to appear'' refusals to be reported only if the 
employer certifies that the report contains the required documentation, 
as described above, and a copy of the documentation has been provided 
to the employee. As noted above, FMCSA also intends that the 
Clearinghouse functionality will require the person submitting 
information to state that it is true and correct and will warn the user 
that the submission of false or misleading information is subject to 
civil and criminal penalties under Sec.  382.507. These requirements 
are implemented to address concerns about coercion and harassment.
    Finally, in the event that an employer falsely certifies either 
that the required documentation has been provided, or that the employee 
has received a copy of the documentation, the employee may request that 
FMCSA remove the report from the Clearinghouse pursuant to new Sec.  
382.717(a)(2)(iii).
Reporting Return-to-Duty Test Eligibility
    Comment. FMCSA proposed to require SAPs to report the date they 
determined that a driver successfully completed the education and/or 
treatment process as defined in 49 CFR part 40, subpart O, and was 
eligible for return-to-duty testing under part 382. A commenter said 
that the language referencing eligibility for testing was unnecessary 
and that employers could confuse it with a statement of fitness-for-
duty determination. The commenter suggested limiting the SAP's 
determination to successful compliance with the SAP's recommendation.
    Response. Section 382.705(d)(1)(iv), as proposed, accurately 
reflects the state of the law: Once a SAP determines that a driver has 
successfully completed the education and/or treatment process as 
defined in subpart O, the driver is eligible to take a return-to-duty 
test. See 49 CFR 40.305. FMCSA is unaware that employers have been 
confusing eligibility to take the return-to-duty test with a fitness-
for-duty determination. Accordingly, FMCSA does not see any reason to 
change the language in this section.

Notice to Drivers and Employers of Entry, Revision, Removal or Release 
of Information (Sec.  382.707)

    Comment. FMCSA proposed to notify a driver when information about 
that driver is entered, changed, removed, or released. Everyone 
commenting on this issue supported driver notification. OOIDA requested 
that drivers be able to obtain information identifying the person to 
whom records are released. SAPAA and TTD requested that FMCSA establish 
a time frame in which the driver would be notified about activity in 
the Clearinghouse. Driver Check asked how drivers licensed outside of 
the United States would be notified of Clearinghouse activity. SAPAA 
asked whether C/TPAs could receive notification on behalf of owner-
operators. A commenter disagreed with the proposal to send notification 
of Clearinghouse activity via U.S. Mail and suggested that the rule 
provide for electronic notification.
    Response. FMCSA understands that commenters have many questions 
about how the Clearinghouse will operate. Many of the operational 
details will be developed during the implementation phase, and thus are 
not appropriate for codification in FMCSA's rules. That said, it is 
FMCSA's intention that drivers will have access to their

[[Page 87703]]

Clearinghouse records, including information on who submits information 
and to whom information is released. With respect to timing, as soon as 
there is activity in a driver's Clearinghouse record, FMCSA will 
initiate notification. If a driver takes no action to designate an 
address or method of notification, the default method is to send 
notification via U.S. Mail to the current address on file with the 
driver's State of licensure. All drivers will have the option to 
provide an alternate electronic method of notification when they 
register with the Clearinghouse. The time it takes the driver to 
receive the notification would vary depending on which notification 
method is selected.

Drivers' Access to Information in the Clearinghouse (Sec.  382.709)

    Comment. FMCSA proposed to grant drivers access to any information 
in their Clearinghouse record, except as restricted by law. Two 
commenters recommended that FMCSA prohibit drivers from having access 
to their own follow-up testing plans and prohibit employers from 
sharing that information with drivers. One of those commenters said 
that many employers believe that they are not prohibited from sharing 
follow-up testing plans with drivers. Boeing was concerned that owner-
operators would have access to their follow-up plans. Finally, a driver 
requested clarification about how often he would be required to check 
his own records in the Clearinghouse.
    Response. Section 382.705(d)(1)(v) of the NPRM proposed that SAPs 
report to the Clearinghouse the frequency, number, and type of follow-
up tests as well as the duration of the follow-up testing plan. Section 
40.329 currently requires that SAPs redact the follow-up testing 
information from any reports provided to employees so that they will 
not be aware of either the number or type of follow-up tests or the 
duration of the testing period. When DOT adopted this requirement in 
2001, it noted the concern that providing employees with access to 
their follow-up plans ``could lessen the deterrent effect of follow-up 
tests'' (66 FR 41949 (August 2001)). However, the Privacy Act generally 
requires that an employee be permitted, upon request, access to 
information about him/her in their Clearinghouse record that is 
retrievable by that employee's name or other identifying particular. 
Accordingly, in order to ensure compliance with current part 40 
requirements, in this rule FMCSA removes the proposed requirement in 
Sec.  382.705 that SAPs report the follow-up testing plan to the 
Clearinghouse. SAPs will thus continue to provide that information 
directly to the employer as part of the follow-up evaluation report 
required by Sec.  40.311(d). Therefore, follow-up testing plans will 
not be included in a driver's Clearinghouse record. Subsequent 
employers will be required to obtain the follow-up testing plan from 
the previous employer, if the driver's Clearinghouse record does not 
indicate that follow-up testing has been completed. In cases where a 
driver who is subject to follow-up testing is not currently employed, 
the gaining employer may obtain the driver's follow-up testing plan 
from the SAP, whose contact information will be available in the 
Clearinghouse. (See, also, discussion of this issue under ``Pre-
Employment Investigations Under Sec. Sec.  40.25, 382.413 and 391.23'', 
above.) Finally, nothing in this rule requires drivers to query the 
Clearinghouse. Drivers are, however, free to query their own records at 
any time and as often as they choose.

Clearinghouse Registration (Section 382.711)

    FMCSA proposed that each employer and designated service agent 
register with the Clearinghouse before accessing or reporting 
information to the Clearinghouse.
Consumer Reporting and Background Screening Agencies
    Comment. Many commenters, including Cahill-Swift, Driver IQ/CARCO, 
J.B. Hunt, Foley, NPTC, ABA, Schneider, C.R. England and several 
trucking associations, supported allowing consumer reporting and 
background screening agencies to access the Clearinghouse. A number of 
these commenters suggested that FMCSA expand the definition of 
``service agent'' to include these third party service providers. OOIDA 
opposed third party service provider access to the Clearinghouse unless 
the service provider was acting specifically on behalf of an employer 
with a right to access the Clearinghouse. That commenter urged tight 
controls on Clearinghouse access.
    Response. As noted previously, the final rule does not include a 
new definition of ``service agent,'' as proposed in the NPRM, because 
DOT recently expanded the definition of that term in 49 CFR 40.3 to 
apply to those persons who provide services in connection with the 
Clearinghouse. Accordingly, a consumer reporting or background 
screening agency acting on behalf of an employer in connection with 
fulfilling that employer's obligations under parts 40 and 382 may 
register to access the Clearinghouse, but those entities' use of the 
accessed information is limited. No third party service agent may 
disseminate, or make any other use of the information in the 
Clearinghouse except to communicate it directly to the specific 
employer that authorized the provider to query the Clearinghouse on its 
behalf. No third party service agent may publish or consolidate 
Clearinghouse information for commercial or other purposes.
SAP and MRO Access to Information in the Clearinghouse
    Comment. SAPAA, American Substance Abuse Professionals, First 
Advantage and other commenters requested that SAPs and MROs have access 
to information in the Clearinghouse to help them assess return-to-duty 
treatment and education requirements.
    Response. In FMCSA's judgment, Congress did not intend for anyone 
other than employers (or an employer's designated agent), SDLAs, the 
NTSB, and individual drivers to access the information in the 
Clearinghouse. (See 49 U.S.C. 31306a(h)-(j).) The statute limits 
employer use of the information to determine whether a driver has a 
drug or alcohol prohibition, while SDLAs may not use the information 
for any purpose other than determining the qualifications of a CDL 
applicant. The NTSB can use the information only in connection with a 
crash investigation. The statute does not contemplate using the 
information for MRO verifications and SAP assessment determinations. 
Moreover, we note that the DOT-wide drug and alcohol rules do not 
provide for MROs to use historical drug and alcohol information as a 
part of the verification process. Certainly, if a driver wishes to 
provide that information, he or she may. But it is not currently 
required as a part of the MRO's function. The Agency agrees that 
historical information may be relevant to the SAP's role in the return-
to-duty process, and notes that nothing in this final rule prohibits 
SAPs from obtaining this information directly from the drivers under 
their care as a condition of providing an assessment.
Designation of Service Agents and Employees and Credentials Required 
for Registration
    Comment. FMCSA proposed that employers must specifically designate 
those employees and service agents who are authorized to access the 
Clearinghouse on their behalf. FMCSA also proposed that MROs and SAPs 
must certify compliance with part 40 and provide evidence of the

[[Page 87704]]

professional credentials required by part 40. A commenter asked when 
the employer would designate its MRO and how it would make a change of 
designation. The same commenter said that some MROs are contracted with 
C/TPAs rather than individual employers. Several commenters asked what 
kind of evidence MROs and SAPs must provide concerning their 
professional credentials. First Advantage said that providing evidence 
of certification and licensing would be time consuming and expensive. 
An individual expressed concern about how FMCSA would verify or 
authenticate these credentials.
    Several commenters asked whether an MRO working for several 
different organizations would need multiple registrations and whether 
different MROs working for one organization would need individual 
registrations. Finally, Driver IQ/CARCO suggested that employers and 
service agents should not have to verify their designated employees on 
an annual basis.
    Response. An employer is not required to designate which MRO or 
MROs may report information to the Clearinghouse for that employer's 
employees. Furthermore, in an effort to eliminate the potential 
opportunity for employers to conceal violations of their own employees, 
FMCSA requires MROs, rather than employers, to report verified drug 
test results to the Clearinghouse. Requiring that MROs report verified 
drug test results independently will help preserve their impartiality 
while eliminating any potential for employers to exert pressure on the 
MRO during the verification process.
    To register with the Clearinghouse, MROs and SAPs must upload 
documentation showing that they are qualified, in accordance with the 
requirements of 49 CFR 40.121 and 40.281, to act as an MRO or SAP. The 
type of documentation will vary depending on the individual MRO or 
SAP's professional qualifications. FMCSA does not consider this process 
to be time consuming. Under current rules, MROs and SAPs are otherwise 
required to maintain this documentation and provide it upon request to 
DOT agency representatives. (See 49 CFR 40.121(e) and 40.281(e).) 
Providing this information to the Clearinghouse as a condition of 
access is no different than responding to an agency request to produce 
the same information.
    An MRO's registration will be personal to that individual and will 
depend on his or her credentials and other qualifications. Accordingly, 
each MRO must have his or her own personal registration regardless of 
the type of organization with which he or she is affiliated.
    FMCSA did not make any changes to the requirement that employers 
annually verify the identity of employees who are authorized to access 
the Clearinghouse on their employer's behalf. All employers are 
obligated to keep their verifications updated, but in the event that an 
employer fails to do so, the annual verification procedure will ensure 
that unauthorized employees do not retain access to the Clearinghouse 
indefinitely.

Duration, Cancellation, and Revocation of Access (Sec.  382.713)

    Comment. FMCSA proposed to make Clearinghouse registration 
effective for 5 years, cancel inactive registrations after 2 years, and 
revoke registration for failure to comply with applicable rules. 
Cahill-Swift asked whether non-payment of fees would result in 
revocation. OOIDA and another commenter stated that a registrant's 
access must be revoked if it fails to comply with the rules. OOIDA 
requested that a registrant's failure to comply with Clearinghouse 
rules be considered a pattern or practice of noncompliance under part 
385, subpart K. Another commenter suggested that the Agency reconsider 
its proposal that FMCSA staff process Clearinghouse requests for motor 
carriers that have had their registrations revoked.
    Response. While the details of payment options will be determined 
during the contract bidding process, FMCSA anticipates that payment 
would be made prior to an employer conducting a search or gaining 
access to information. Under this scenario, non-payment would simply 
result in the employer being unable to conduct a search.
    In this final rule, FMCSA retains the right to revoke Clearinghouse 
registration for anyone who fails to comply with the applicable rules. 
However, an employer that had its registration revoked for failure to 
comply with the Clearinghouse rules would nonetheless have to ensure 
that its employees were not subject to prohibitions related to drug or 
alcohol violations. We anticipate that, in order to query or report 
violations, such employers would need to contact FMCSA's drug and 
alcohol program directly, so that program staff could conduct queries 
or enter violations into the Clearinghouse in a timely manner. The 
Agency recognizes that these alternative means of querying and 
reporting are not nearly as efficient as using the Clearinghouse 
directly and expects that revocation of an employer's access would 
occur only when an employer has egregiously violated the 
Clearinghouse's rules of use.
    During the implementation phase, we will continue to explore more 
efficient means of querying and reporting for employers whose access 
has been revoked. We expect, however, that the civil and criminal 
penalties associated with an employer's failure to lawfully use the 
Clearinghouse (Sec. Sec.  382.723(c) and 382.727) will provide, in most 
instances, an adequate deterrent to its misuse.
    FMCSA's regulations governing patterns or practices of safety 
violations by motor carrier management are specifically limited to 
violations of safety regulations arising under 49 U.S.C. chapter 311, 
subchapter III. Authority for the Clearinghouse arises under 49 U.S.C. 
31306a, which does not fall within chapter 311, subchapter III. 
Accordingly, instances of non-compliance with this final rule will not 
be considered for the purposes of establishing a pattern or practice of 
safety violations under part 385, subpart K.

Authorization To Enter Information Into the Clearinghouse (Sec.  
382.715)

    Comment. FMCSA proposed to require an employer to designate a C/TPA 
in the Clearinghouse before the C/TPA could enter information on the 
employer's behalf. A commenter asked whether this provision also 
applied to SAPs. Several commenters were confused by the section of the 
NPRM that proposed to require employers to designate SAPs for employees 
and requested that FMCSA clarify that employees, not employers, 
designate SAPs.
    Response. As proposed, Sec.  382.715 applied only to employer 
designations of C/TPAs. In the NPRM, FMCSA inadvertently stated that 
employers must designate SAPs in the Clearinghouse; that was not 
correct. In accordance with long-standing rules governing the selection 
of SAPs, the employer must provide the employee with the list of DOT-
qualified SAPs and each employee is free to choose his or her own DOT-
qualified SAP. (See 49 CFR 40.287, 40.289.) Accordingly, in this final 
rule, FMCSA amended Sec.  382.715 to make clear that employees must 
designate SAPs to enter information about their own return-to-duty 
process. FMCSA makes this change to ensure that only the employee's 
selected SAP can report information to the Clearinghouse. FMCSA also 
made conforming changes to Sec.  382.711 to make clear that service 
agents may

[[Page 87705]]

submit information on behalf of either an employer or an employee.

Procedures for Correcting Information in the Database (Sec.  382.717)

    FMCSA proposed administrative procedures for correcting errors in a 
driver's Clearinghouse record.
FMCSA Review of Petitions for Correction
    Comment. TTD, OOIDA and IBT stated that under the proposed process, 
it would take too long to resolve errors. TTD requested alternative 
ways to expedite the decision-making process. OOIDA requested that 
FMCSA respond to a petition within 14-21 days, depending on the nature 
of the correction. Yet another commenter requested a 5-day resolution 
period. CCTA stated that, if resolution of petitions were delayed, 
employers, MROs, and C/TPAs could face litigation. Another commenter 
recommended a simple appeals process, but did not include any 
specifics. An individual asked if it is the responsibility of the 
driver to update the Clearinghouse when a citation for a DUI in a CMV 
does not result in a conviction. Another seemed to have misunderstood 
this section, believing that drivers had only 30 days to submit a 
petition.
    Response. In response to these comments, FMCSA decided to amend its 
proposal. This rule provides for a 14-day resolution period when a 
request for expedited treatment is granted in accordance with Sec.  
382.717(e). To be considered for expedited treatment, an inaccurate 
record, or a record not reported to the Clearinghouse in compliance 
with this section, must be preventing the petitioner from performing 
safety-sensitive functions. In addition, the petitioner must provide a 
complete petition including all documentation supporting his or her 
request. Failure to include all relevant information will impede the 
Agency's ability to resolve the petitioner's request in a timely 
manner.
    The Agency also removed the proposed requirement in Sec.  
382.717(a) that petitions for review be submitted within 18 months of 
the date the allegedly erroneous information was reported to the 
Clearinghouse. Upon further consideration, we determined that drivers 
should have the option to request that inaccurate information be 
corrected for as long as the allegedly erroneous record is retained in 
the Clearinghouse. Finally, as further discussed below, FMCSA reduced 
the time in which it will resolve petitions for administrative review 
and notify the driver of its decision from 90 days, as proposed, to 45 
days following the Agency's receipt of a complete petition. We also 
reduced the time in which we will complete an administrative review 
under Sec.  382.717(f) from 60 days, as proposed, to 30 days.
    Where an employer has reported a citation for DUI in a CMV to the 
Clearinghouse and that citation did not result in a conviction, the 
driver is responsible for submitting a request for removal under Sec.  
382.717(a)(2)(i).
Administrative Protections for Drivers
    Comment. A commenter requested that the Clearinghouse contain 
contact information for those reporting information to the 
Clearinghouse. C.R. England, Foley, and other commenters requested 
complete, clear procedures for removing erroneous information. Some of 
those commenters also requested that FMCSA hold those who report 
erroneous information accountable. Other commenters were concerned with 
how FMCSA would handle false positives and identity theft. TTD stated 
that the credibility of the Clearinghouse depends on a fair and 
expeditious process for correcting errors. C.R. England wanted to 
ensure that the Clearinghouse would not prevent qualified drivers from 
working. IBT emphasized the need for accurate, up-to-date information.
    Response. FMCSA believes that holding people who report to the 
Clearinghouse accountable for the accuracy of their submission is 
critical to the integrity of the Clearinghouse. When registering to 
access the Clearinghouse, all parties who have reporting obligations to 
the Clearinghouse will be required to provide identifying information, 
including name, address, telephone number and any other information 
needed to verify the registrant's identity (Sec.  382.711).
    With respect to removing erroneous information, all procedures in 
part 40 continue to apply to the processing of drug and alcohol tests. 
A positive test that is reported but subsequently cancelled would not 
be a prohibition on driving and therefore would be removed from the 
Clearinghouse. If a positive test is incorrectly associated with a 
particular driver, regardless of whether the error results from 
identity theft, mistake, or administrative error, the affected driver 
would submit a petition under Sec.  382.717 to correct the erroneously 
reported information. Additional remedies related to the correction or 
removal of violation reports submitted to the Clearinghouse are 
discussed below.
Privacy Act
    Comment. OOIDA and another commenter requested that FMCSA include 
Privacy Act procedures in part 382, and one of those commenters 
requested FCRA procedures allowing an individual to submit a statement 
disputing or explaining their record. OOIDA stated that the 
Clearinghouse's authorizing statute requires FMCSA to comply with 
certain requirements for the release of information under the Privacy 
Act and the FCRA.
    Response. MAP-21 requires that a ``release of information'' from 
the Clearinghouse comply with the applicable provisions of the Privacy 
Act and the FCRA (49 U.S.C. 31306a (d)(1) and (2)). The final rule 
complies with the ``release of information'' requirements of the 
Privacy Act, as defined in 5 U.S.C. 552(a)(b), which generally prohibit 
the disclosure of records ``except pursuant to a written request by, or 
with the prior written consent of, the individual to whom the record 
pertains.'' As noted above, an employer may not request access to an 
employee's Clearinghouse record without prior electronic consent of the 
driver, and the Agency must receive electronic consent from the driver 
before releasing a Clearinghouse record to the employer (Sec.  
382.703(b) and (d)). Other Privacy Act procedures to which commenters 
refer are currently set forth in 49 CFR part 10, ``Maintenance Of and 
Access to Records Pertaining to Individuals,'' the DOT-wide rules 
implementing the Privacy Act. The part 10 regulations include, for 
example, procedures for individuals to request that their records be 
corrected (49 CFR 10.41) and to file a concise written statement of 
disagreement with an agency's refusal to amend that individual's record 
(49 CFR 10.45). Further, we note that the System of Records Notice 
(SORN), to be issued for public comment following publication of this 
final rule, will describe the specific means by which the Agency 
intends to implement the Privacy Act requirements as they pertain to 
the Clearinghouse, including how individuals can exercise their rights 
under the Privacy Act.
    As discussed above, information disseminated through the 
Clearinghouse is considered ``excluded'' communications for the 
purposes of the FCRA. Accordingly, no FCRA procedures are necessary.
Challenges to Clearinghouse Data
    Comment. Under proposed Sec.  382.717(c), petitioners were limited 
to contesting the accuracy of information

[[Page 87706]]

reported to the Clearinghouse and could not challenge the accuracy of 
positive test results or refusals. CCTA said that FMCSA should permit 
challenges to the accuracy and correctness of Clearinghouse reports, 
including refusals. The same commenter requested that FMCSA create a 
clear dispute resolution process, clarifying what can be challenged 
through the process. C.R. England requested that FMCSA clearly define 
the rights of drivers with respect to correcting errors on their 
records, including placing the burden of proof on the reporting party. 
Finally, two commenters objected to removing a report of a citation for 
DUI in a CMV, even if that citation did not result in a conviction.
    Response. Nothing in this final rule creates a new right under part 
40 to challenge the substantive outcome of a drug or alcohol test or 
the accuracy of a driver's refusal to test at a collection site or a 
refusal to test when notified by an employer to submit to testing. 
Individuals wishing to challenge the accuracy of information in their 
Clearinghouse record that is not otherwise addressed under Sec.  
382.717 may follow the Privacy Act procedures set forth in 49 CFR part 
10, subpart E (Correction of Records).
    Section 382.717 does, however, contain data correction procedures 
to ensure accuracy in reporting. For example, a driver may use the 
procedures set forth in this rule to challenge an incorrect name or CDL 
number, or to remove duplicate test results (that is, a single test 
result reported more than once to the Clearinghouse), but may not 
challenge the outcome of a test. To make it clearer that the procedures 
in Sec.  382.717 pertain primarily to the correction of data that is 
erroneously reported in the Clearinghouse record (except as otherwise 
provided in Sec.  382.717(a)(2)) and not for substantive challenges to 
drug and alcohol violation determinations, we re-designated paragraph 
(c) as paragraph (a) in this section. FMCSA will consider each 
correction request on a case-by-case basis and assess the validity of 
information presented in determining whether correction is warranted.
    FMCSA notes the importance of the difference between a citation for 
DUI in a CMV and a conviction. Although a driver must immediately 
discontinue safety-sensitive functions after being cited for a DUI in a 
CMV, he or she may resume safety-sensitive functions without completing 
the return-to-duty process if that citation does not result in a 
conviction. Prohibiting a driver from performing safety-sensitive 
functions when a citation does not result in a conviction contravenes 
fundamental principles of fairness. Using the expedited procedures in 
Sec.  382.717, the driver is responsible for requesting that FMCSA 
remove from the Clearinghouse an employer's report related to a 
citation that did not result in a conviction.
    Comment. OOIDA recommended that if a driver submits a 
``substantive'' request for correction with complete supporting 
documentation, the challenged information should not be released in 
response to an employer query until a decision has been made on the 
request for correction.
    Response. As explained above, resolution of a challenge to the 
substance of a drug or alcohol violation--as opposed to simple data 
correction or the employer's failure to comply with reporting 
requirements under Sec.  382.705(b)(3) and (5)--is outside the scope of 
this rule. Accordingly, FMCSA will not process such a request under 
Sec.  382.717. We note that the withholding of violation reports 
pending resolution of a request to challenge the substance of a 
violation would be inconsistent with DOT-wide drug and alcohol 
compliance rules. Section 40.331 of those rules requires an employer to 
release information with proper consent and does not provide an 
exception for information that a driver is challenging as inaccurate. 
That rule is applicable DOT-wide and FMCSA does not have the authority 
to change that provision.
    Moreover, it would not be in the interest of safety to withhold 
violation reports during the review period. FMCSA believes that to do 
so would encourage drivers to file frivolous or baseless challenges to 
accurate reports solely for the purpose of extending their ability to 
continue performing safety-sensitive functions. Adopting the 
commenter's suggestion would thus delay necessary rehabilitation and 
keep drug and alcohol abusers on the road. Neither of these outcomes 
serves the best interests of the driver or the motoring public.
Notification to Employers of Corrections
    Comment. One commenter suggested that, after correcting errors, 
FMCSA should require individuals to alert employers that queried the 
driver's record that inaccurate data has been corrected.
    Response. FMCSA agrees that alerting employers that they have 
viewed inaccurate information about a driver significantly contributes 
to the accuracy and fairness of the Clearinghouse. Accordingly, this 
final rule includes new Sec.  382.717(g), requiring that the 
Clearinghouse update employers when they have viewed information that 
was subsequently corrected or removed under Sec.  382.717(a)(2) or in 
accordance with the Privacy Act.

Availability and Removal of Information (Sec.  382.719)

    Comment. FMCSA proposed that information about a violation would 
remain available to employers for a term of either 3 or 5 years, or 
until the driver completed the return-to-duty process, whichever is 
longer. Many commenters were in favor of a 5-year term. Some of these 
commenters recommended 5 years because they were concerned that the 
record would otherwise be removed before the driver completed all 
follow-up tests. Others favored 5 years because it aligns with part 382 
record keeping requirements. The Institute of Makers of Explosives 
stated that it would support an even longer retention period. Another 
commenter supported a 10-year retention period.
    On the other hand, a number of individual commenters were in favor 
of a 3-year term. Yet others were in favor of removing information as 
soon as the driver completed the return-to-duty process. Some 
commenters suggested that information be retained for 3 years from the 
driver's completion of the return-to-duty process. Another commenter 
suggested that information be made available for at least 5 years after 
the driver's return-to-duty date.
    Response. After carefully considering FMCSA's statutory authority 
and the safety implications of this proposed requirement, the Agency 
concluded that 5 years is the appropriate document retention period. We 
explain the rationale for our interpretation below.
    The basis for a 3-year retention period was 49 U.S.C. 31306a(f)(3), 
which requires prospective employers to use the Clearinghouse to 
determine whether any employment prohibitions exist on new hires and 
prohibits employers from hiring anyone to drive a CMV if that person 
has had a drug or alcohol violation during the preceding 3 years. This 
requirement mirrors current FMCSA regulations that also direct 
employers to investigate prospective hires' compliance with DOT drug 
and alcohol programs during the preceding 3 years. (See 49 CFR 
391.23(e); see also 49 CFR 40.25, 382.413.) FMCSA interprets section 
31306a(f)(3) to codify the investigation requirement in Sec.  391.23(e) 
and to mandate that employers use the Clearinghouse to conduct the 
investigation. We implement that statutory requirement by amending 
Sec.  391.23(e) to state explicitly that conducting a pre-employment

[[Page 87707]]

search of the Clearinghouse, as required by Sec.  382.701, satisfies 
the employer's obligation to investigate a prospective employee's drug 
and alcohol compliance history (with limited exceptions as previously 
noted). We do not interpret anything in section 31306a(f)(3) to require 
FMCSA to retire these records after 3 years. Nor do we interpret that 
provision to prohibit FMCSA from releasing information after 3 years 
have passed. In fact, nothing in this section directs FMCSA to take any 
action with respect to records retention. To the contrary, this section 
simply places an obligation on employers to conduct the background 
investigation already required in Sec.  391.23 using the Clearinghouse.
    Moreover, nothing in either FMCSA's existing regulations or section 
31306a(f)(3) prohibits employers from requesting or obtaining drug and 
alcohol compliance histories going back more than 3 years. In FMCSA's 
judgment, the 3-year pre-employment look--back is intended to be the 
regulatory (and now statutory) minimum. Employers have an interest in 
obtaining information going back more than 3 years because a driver's 
drug or alcohol violation does not necessarily expire after 3 years; 
that violation continues to prohibit that driver from performing 
safety-sensitive functions until he or she completes the return-to-duty 
process. As long as the driver's consent to release records is not 
limited to a 3-year look back, employers can request and obtain 
information about drug and alcohol compliance going back at least 5 
years because, under Sec.  382.401, employers are required to keep 
records of drivers' drug and alcohol violations for a minimum of 5 
years. Whether and to what extent employers seek records going back 
further than 3 years is a decision that individual employers make based 
on their particular business needs. For example, a company's safety or 
risk management policies may dictate a more extensive background 
investigation than the regulatory minimum. How an employer chooses to 
balance its hiring needs, risk management, and safety policies is a 
matter for private decision making. Nothing in this final rule would 
change this practice.
    The basis for the 5-year retention period is section 31306a(g)(6), 
titled ``retention of records,'' which directs the Agency to hold 
records of driver violations in the Clearinghouse for 5 years, except 
where a driver has failed to complete the return-to-duty process. 
Assuming a driver completes the return-to-duty process within 5 years, 
the statute directs the Agency to archive the records in a separate 
location. We interpret this section to require the Agency to make all 
records of driver violations available to authorized employers for 5 
years or until the driver completes the return-to-duty process, 
whichever is longer. After that, the Agency must move them to the 
archives.
    There are fundamental differences between the 3-year and 5-year 
look--back provisions in section 31306a that direct us to require a 5-
year retention period in this final rule. For example, while the 3-year 
look back in section 31306a(f)(3) focuses on the scope of an employer's 
pre-employment background investigation, the 5-year look back in 
section 31306a(g)(6) focuses on the Agency's recordkeeping 
requirements. As discussed above, FMCSA interprets section 31306a(f)(3) 
to codify the existing drug and alcohol investigation requirements and 
to direct employers to conduct those investigations using the 
Clearinghouse. We interpret section 31306a(g)(6), on the other hand, to 
be focused exclusively on the matter of how long FMCSA should make 
records available to employers and what to do with those records after 
they should no longer be made available.
    Comparing the text of sections 31306a(f)(3) and (g)(6) provides 
additional support for this interpretation. Section 31306a(f)(3) 
provides no recordkeeping guidance at all; it does not address what 
happens if a prospective hire has an unresolved drug or alcohol 
violation dating back more than 3 years, or what should happen to the 
records after the time for release has expired. Nor does it make any 
mention of the look-back period for annual queries; it is focused 
exclusively on how an employer should conduct a pre-employment 
background investigation. Section 31306a(g)(6), on the other hand, 
addresses all of these other contingencies and is, in fact, titled 
``retention of records.'' Based on all of the considerations discussed 
above, we interpret MAP-21 to mandate a 5-year record retention period.
    But, even in the face of statutory ambiguity, we believe that 
safety interests dictate that the 5-year retention period is 
appropriate. Overwhelmingly, employers who submitted comments to the 
docket requested that they have access to 5 years' worth of drug and 
alcohol compliance histories so that they could make informed decisions 
about the risk they assume when they hire drivers. Moreover, FMCSA 
believes the fact that a driver's compliance history will follow him or 
her for a minimum of 5 years will act as a significant deterrent to 
illegal drug and alcohol use. As we continue to raise the severity of 
the consequences for unsafe conduct behind the wheel, drivers who wish 
to be productive participants in the industry should modify their 
behavior accordingly.
    Comment. FMCSA proposed that information on a citation for a DUI in 
a CMV would be removed within 2 days of FMCSA granting a request for a 
determination that the citation did not result in a conviction. A 
commenter requested that this be shortened to 1 day.
    Response. FMCSA believes that 2 days are required to verify the 
accuracy of the documentation supporting the request. Accordingly, this 
provision remains as proposed.
    Comment. Cahill-Swift requested that the date FMCSA uses to 
determine whether sufficient time has passed to remove a violation from 
the Clearinghouse be the date the test was administered instead of the 
date of the violation determination. The commenter stated that, 
generally, part 40 uses the test date as the point of reference for 
future action and requested that FMCSA modify proposed Sec.  
382.719(a)(4) to conform.
    Response. FMCSA concluded that the date a record is submitted to 
the Clearinghouse is the violation determination date, which will be 
used to calculate the date information will be removed from the 
Clearinghouse. This approach is consistent with MAP-21 requirements.

Fees (Sec.  382.721)

    Comment. FMCSA proposed to collect a reasonable fee from employers 
querying the Clearinghouse, but to grant drivers access to their own 
records without assessing a fee. Most commenters were concerned about 
keeping the fees low or eliminating them altogether. At least one 
commenter asked the Agency to identify what the actual fees will be. 
Commenters such as First Advantage, ABA, C.R. England, ATA and several 
others requested that FMCSA establish subscription-based fees. ATA, 
Florida Trucking Association and other commenters stated that FMCSA had 
previously expressed preference for a subscription-based fee structure. 
SAPAA requested that there be only a one-time registration fee. NTPC, 
Ohio Trucking Association, Cahill-Swift, Driver IQ/CARCO, J.B. Hunt, 
and American Moving and Storage Association requested that FMCSA permit 
employers to choose between subscription- and transaction-based fees. 
One commenter suggested that FMCSA use the PSP program as a model. ATA 
suggested that it not be used as a model, stating that the

[[Page 87708]]

contractor would earn excessive and unreasonable profits based on the 
PSP fee structure. ATA and others stated that they did not want the 
fees to greatly exceed the contractor's costs to manage the 
Clearinghouse. Minnesota Trucking Association suggested that 
subscription-based fees should be limited to $10-$20 per employer. 
SAPAA asked for details regarding the procedure for paying the fees. 
OOIDA requested that the cost for the limited query be much lower than 
the cost for the full query. An individual requested that the fees be 
set at a more ``reasonable'' level.
    Response. FMCSA proposed Sec.  382.721 to establish its authority 
to collect fees from entities required to query the Clearinghouse; 
however, FMCSA does not set the specific dollar amounts for user fees 
as a part of this rulemaking. We note, however, that under Sec.  
382.721 no driver will be required to pay a fee to access his or her 
own records in the Clearinghouse.
    FMCSA will contract with a third-party to operate and maintain the 
Clearinghouse. Accordingly, Clearinghouse user fees will be determined 
through that competitive bidding process. One of the criteria for 
selecting a contractor to design and operate the Clearinghouse will be 
the ability to provide reliable, accurate, and cost-effective service 
to stakeholders. In its request for proposal FMCSA will require batch 
processing of data, subscription fees and pre-population of recurring 
data. This should minimize transaction costs relative to the time per 
test, per driver and per entity costing methodology used to estimate 
the costs of queries.
    The Regulatory Impact Analysis (RIA) acknowledges that annual 
queries to the Clearinghouse impose costs on employers not present 
under the current regulations. The annual query is a statutory 
requirement pursuant to 49 U.S.C. 31306a(f)(4). The RIA demonstrates 
that the rule produces net benefits based on a conservative estimate of 
the incremental cost of annual queries calculated on a per transaction 
basis (e.g., cost per test, cost per driver, etc.). For purpose of the 
RIA, the Agency conceptualized fees for limited and full queries and 
pre-employment queries based on its experience with Pre-employment 
Screening Program (PSP) Database. The fee for requesting a driver's 
record through PSP is $10.\3\ Employers' use of the PSP to screen 
prospective employees is voluntary. The Clearinghouse is a mandatory 
program with an expected number of transactions well in excess of the 
number of PSP voluntary transactions. As a result, FMCSA believes 
Clearinghouse fixed costs will be spread over a larger volume of 
transactions than the volume of PSP transactions. These costs include, 
but are not limited to, hardware, software, labor costs for systems 
analysts and contractor staff available to assist Clearinghouse users.
---------------------------------------------------------------------------

    \3\ https://www.psp.fmcsa.dot.gov/psp/default.aspx.
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Unauthorized Access or Use Prohibited (Section 382.723)

    Comment. FMCSA proposed rules that would prohibit unauthorized 
access to or misuse of information obtained from the Clearinghouse. One 
commenter was generally concerned that employers would misuse 
Clearinghouse information. TTD was concerned that prospective employers 
would query the Clearinghouse for information about a driver even if 
that driver were not applying for a position that mandated a 
Clearinghouse check. The same commenter requested that FMCSA include 
safeguards to ensure that people requesting information are legitimate 
employers and that the information goes to them directly. Another 
commenter recommended that FMCSA anonymize information before using it 
for research purposes.
    Response. FMCSA takes its mandate to secure sensitive information 
and protect driver privacy very seriously. Accordingly, this final rule 
includes provisions that prohibit the release of information without 
affirmative driver consent and audit functions to verify compliance 
with these rules. Anyone who violates those provisions is subject to 
civil and criminal penalties. FMCSA appreciates all public comments on 
how to address driver privacy protections and will take all of them 
into consideration as it moves into the implementation process.

Access by State Licensing Authorities (Sec.  382.725)

    Comment. FMCSA proposed to grant each SDLA access to the 
Clearinghouse to determine whether an applicant for a CDL is qualified 
to operate a CMV. ATA, J.B. Hunt and other commenters suggested that 
SDLAs be required to check the Clearinghouse before issuing a CDL. ATA 
suggested that SDLAs be required to check the Clearinghouse annually. 
ATA and the Florida Trucking Association recommended that SDLAs be 
required to revoke a CDL when violations are reported to the 
Clearinghouse. Another commenter pointed out that one provision of MAP-
21 makes SDLA access to the Clearinghouse mandatory while another 
provision makes it permissive and asked FMCSA to reconcile this 
inconsistency. The same commenter also requested guidance on what an 
SDLA is supposed to do with Clearinghouse information. A number of 
commenters recommended that the Clearinghouse automatically notify 
SDLAs when there are changes to a driver's record. Schneider suggested 
that law enforcement have access to the Clearinghouse. A commenter 
suggested that FMCSA enter into agreements to obtain DUI information 
from SDLAs. Driver Check asked whether Canadian licensing agencies 
would have access to the Clearinghouse.
    Response. After careful consideration of these comments, FMCSA 
decided to require that SDLAs access Clearinghouse information prior to 
issuing CDLs. While 49 U.S.C. 31306a(h)(2) requires that FMCSA only 
provide SDLAs with Clearinghouse access, section 31311(a)(24) requires 
that SDLAs use that access prior to issuing or renewing a CDL. 
Accordingly, FMCSA amended proposed Sec.  382.725(a) to require SDLAs 
to access a driver's information in the Clearinghouse in order to 
determine whether the driver is qualified to operate a CMV prior to 
issuing, renewing, upgrading, or transferring a CDL. FMCSA also made 
conforming changes in existing Sec.  383.73 to implement section 
31311(a)(24) and make clear that Clearinghouse access is mandatory 
prior to the SDLA taking action on a CDL. To ease the burden on States, 
FMCSA intends to integrate this function into the CDLIS pointer system, 
which connects the records of CDL holders in all 50 States and the 
District of Columbia. FMCSA will work closely with AAMVA, which 
administers CDLIS, to provide for the most efficient and least 
burdensome method of granting SDLAs access to the Clearinghouse.
    The information in the Clearinghouse may have a direct impact on 
the ability of the individual to hold or obtain a CDL. If information 
available to an SDLA shows that a CDL applicant is not qualified to 
operate a CMV, that driver should not be issued a CDL. FMCSA will 
provide more detailed guidance on this subject in conjunction with its 
implementation of SDLA access to the Clearinghouse.
    At this time, FMCSA will not pursue agreements with law enforcement 
agencies to obtain information on DUI convictions. That information is 
currently available from other sources and need not be duplicated in 
the Clearinghouse. Further, because the Clearinghouse is limited to 
drug and alcohol violations under parts 40 and 382, inclusion of other 
disqualifying

[[Page 87709]]

offenses under part 383 is not appropriate.
    Finally, Canadian and Mexican licensing agencies will not have 
access to the Clearinghouse because Congress authorized access for only 
the SDLAs in the 50 States and the District of Columbia (49 U.S.C. 
31306a(h)(2)). However, in accordance with its authority under section 
31306a(b)(5), FMCSA intends to explore alternative ways in which 
information about drug and alcohol violations for CMV drivers licensed 
in Canada and Mexico can be made available to their respective 
licensing authorities and to U.S. law enforcement, including using the 
Foreign Convictions and Withdrawal Database under Sec.  384.209(a)(2).

Penalties (Sec.  382.727)

    Comment. FMCSA proposed that employers, employees, and service 
agents be subject to penalties for violating new part 382, subpart G. 
An individual commenter asked how MROs would be held accountable for 
reporting positive tests. Another commenter said this provision should 
be worded the same as Sec.  382.507, with the addition of the word 
``alleged.'' Southern Company said that alleged violators should be 
issued a notice of claim or violation allowing the alleged violator to 
contest the charge. That commenter also requested that penalties be 
reserved for egregious violations. WPCI asked what the penalty would be 
for an employer that does not comply with the requirements.
    Response. Any employer, employee, or service agent, including an 
MRO, that does not comply with his or her responsibilities under part 
382, subpart G, is subject to civil or criminal penalties under 49 
U.S.C. 521(b)(2)(C). The employer, employee, or service agent may be 
issued a notice of claim or violation and afforded the opportunity to 
contest those charges in accordance with existing procedures in 49 CFR 
part 386. The type and severity of the penalty would depend on the 
specific circumstances surrounding the violation.
Regulatory Impact Analysis
    Comment. In the RIA, FMCSA provided an explanation of the costs and 
benefits associated with the proposed rule. A number of commenters 
expressed concern about the cost to employers and the burden those 
costs would place on the motor carrier industry. Two commenters noted 
that the additional costs incurred by laboratories, MROs and CTPAs will 
be passed on to the employer, thereby further increasing the cost to 
employers.
    Response. FMCSA recognizes that various entities interacting with 
the Clearinghouse will incur new or incremental costs of conducting 
business under the rule. FMCSA estimates these costs for the first 
entity that incurs the cost, as opposed to the entity that is 
ultimately responsible for paying for the cost. The RIA estimates the 
societal benefits, not the distributional benefits resulting from the 
avoidance of crashes.
    Motor carriers will benefit from this rule in a variety of ways. 
For example, the Clearinghouse will automate the pre-employment drug 
and alcohol background investigation process, which will save motor 
carriers time and conserve resources. In addition, closing the 
loopholes that allow job-hoppers to evade the consequences of drug and 
alcohol violations will increase employers' confidence in the pre-
employment screening process, allowing them to more easily identify 
drivers who are not eligible to drive. While these are not the only 
benefits that will accrue to employers, they are some of the more 
tangible immediate benefits that will offset the costs of compliance.
    Comment. One commenter also noted that many benefits discussed in 
the RIA are only speculative while the costs are real and extremely 
burdensome for the passenger motor carrier industry, which is largely 
made up of small businesses.
    Response. The Agency disagrees that the benefits discussed in the 
RIA are speculative. As discussed above, motor carriers will see real 
benefits in terms of fewer resources being required to conduct 
investigations related to drivers' drug and alcohol violations, an 
increase in the quality of drivers hired, and a reduction in the 
liability costs associated with unsafe drivers.
    Comment. A commenter said that the costs associated with this 
proposal, combined with the costs associated with a recent NPRM 
concerning vehicle leasing regulations, impose significant 
administrative costs on passenger motor carriers, and requests the 
Agency consider less burdensome alternatives.
    Response. FMCSA is sensitive to the cumulative costs of industry 
compliance with the Agency's regulations. In responding to comments 
received in response to the NPRM, FMCSA considered the burden placed on 
stakeholders and made changes to alleviate those burdens where 
possible. But the Clearinghouse and many of its individual components 
are mandated by statute; the Agency's ability to find less burdensome 
alternatives is constrained by these limitations.
    Comment. Two commenters said that FMCSA's cost estimate did not 
include the cost of training for service agents. A commenter estimated 
that implementing program changes for service agents may require up to 
800 hours over a 3 to 5 month period, and a minimum of a year may be 
required for the effective implementation of the final program data 
requirements to allow for advanced planning and budgeting.
    Response. FMCSA included the cost of training for service agents in 
the Final RIA Section 6.6, titled ``Registration, Rule Familiarization, 
and Verification'', which identifies costs associated with 
familiarizing service agents with use of the Clearinghouse. As 
discussed above, there will be a 3-year compliance period, which we 
believe will give stakeholders adequate time to conduct necessary 
training and otherwise prepare for implementation of this final rule.
    Comment. A commenter said that the Agency also did not consider the 
full impact of entering data and creating a new laboratory report and 
the commenter estimated that the additional data entry would require an 
additional 15 seconds per specimen keyed. Some commenters also noted 
that implementing a new CCF containing the additional information that 
would be required under this proposal could result in significant cost 
to laboratories and those responsible for manufacturing and shipping 
forms. These commenters estimated that system modifications would 
require 750-910 hours per DHHS-certified laboratory conducting testing 
for FMCSA regulated employers, and at least 8 to 10 months for 
development, testing, implementation, and training.
    Response. FMCSA removed the laboratory reporting requirement from 
the final rule; accordingly, there are no longer any costs associated 
with this provision.
    Comment. A commenter challenged FMCSA's estimate of 20 minutes for 
registration and rule familiarization, asserting that first-time 
registration alone will take more than 10 minutes. Further, the 
commenter asserted the Agency did not account for the annual costs of 
verifying information entered in the database.
    Response. The Agency does not agree that 20 minutes underestimates 
the time required for registration and rule familiarization. Much of 
the registration process will be automated and only a minimum amount of 
information is required to complete registration. All the information 
necessary for registration--name, address, phone number, authorized 
employees, USDOT

[[Page 87710]]

Number, and professional qualifications--is otherwise required under 
FMCSA or DOT rules and should, therefore, be readily available. 
Moreover, FMCSA intends that the Clearinghouse will be designed to be 
interactive and user-friendly to maximize efficiencies. Finally, the 
cost of annual verification of authorized users was accounted for in 
the regulatory analysis.
    Comment. A commenter said that FMCSA underestimated the number of 
drivers subject to the rule by 1 million and provided an estimate of 
5,240,740 drivers (based on commenter's own data and available data 
from other sources, such as laboratory reports submitted to DOT).
    Response. The commenter estimated the number of FMCSA drivers as 
the difference between the total number of tests reported by all modes, 
including FMCSA,\4\ to DOT in 2012, pursuant to part 40, Appendix C and 
the commenters' estimates of number random and pre-employment tests at 
a 25 percent testing rate applied to each mode's (other than FMCSA) 
estimate of the total number of safety-sensitive employees. The number 
of blind tests and ``all other tests'' are assumed to be 1 percent and 
2 percent of safety-sensitive employees, respectively are also 
subtracted from the total number of tests. There are a number of flaws 
in this methodology. The commenter equates the number of employees to 
the number of tests. This is an apple to oranges comparison. The 
commenter ignores that drivers may change employers during the year, or 
are ``multiple-employer drivers'' as defined in 49 CFR 390.5 and as a 
result may be tested multiple times per year. The analysis estimates 
pre-employment tests as if they are random, by applying a 25 percent 
random testing rate to each modes total number of safety-sensitive 
employees.
---------------------------------------------------------------------------

    \4\ The other modes are Pipeline and Hazardous Materials and 
Safety Administration, Federal Railroad Administration, Federal 
Transit Administration, Federal Aviation Administration and the U.S. 
Coast Guard.
---------------------------------------------------------------------------

    FMCSA relies on the statistics it publishes to determine the number 
of drivers affected by this rule.\5\ Although the number of drivers in 
operation at any given time is subject to change due to a variety of 
reasons, FMCSA believes this is the best estimate of the number of 
drivers currently subject to FMCSA's drug and alcohol regulations. In 
the Regulatory Impact Analysis (RIA), FMCSA used its estimate of the 
number of CDL-holder to the cost of annual queries. All other costs and 
benefits are estimated using the results of FMCSA's Annual Drug and 
Alcohol Surveys.
---------------------------------------------------------------------------

    \5\ http://ntl.bts.gov/lib/54000/54800/54841/2015 Pocket-Guide-
March-30-2015-ForWebPublishing-508c.pdf.
---------------------------------------------------------------------------

    Comment. Several commenters stated that the cost of the proposed 
rule was overstated in the RIA. Commenters said that costs associated 
with completing the return-to-duty process should not be attributed to 
the Clearinghouse, claiming that they are attributed to the return-to-
duty process under 49 CFR part 40, not part 382.
    Response. The Agency made the best estimate of costs based on 
available data, but concluded that it was better to err on the side of 
over-estimating rather than under-estimating costs. That said, we 
disagree that the return-to-duty costs should not be included in the 
total cost of the rule. Although the return-to-duty requirement arises 
out of the DOT-wide drug and alcohol regulations in 49 CFR part 40, the 
costs of completing the process are attributable to each DOT mode's 
individual drug and alcohol program. One effect of the Clearinghouse is 
that drivers will improve their compliance with the return-to-duty 
requirements. Instead of job-hopping, we expect that drivers with 
violations will either complete the return-to-duty process or exit the 
industry. Accordingly, we take into account the increased costs--and 
benefits--of this improved compliance.
    Comment. One commenter suggested the estimated cost of $2.50 for 
limited annual queries is too high.
    Response. FMCSA agrees that the query cost estimates in the RIA 
were conservatively high. As discussed above, the dollar amount for the 
fees will ultimately be determined in connection with a competitive 
bidding process. The Agency expects that the per-transaction cost, 
whether structured on a per query or subscription basis, will be 
significantly lower than estimated in the RIA. In the absence of 
reliable data, we chose to base our estimate on the only comparable 
information available: The PSP user fees. We recognize, as commenters 
have stated, that the volume of Clearinghouse transactions will greatly 
exceed the number of PSP transactions, creating efficiencies that 
should result in significantly lower user costs.
    Comment. Another commenter questioned why a query would take 10 
minutes, and suggested the Agency could reduce the burden by allowing 
large carriers to submit a batch list of drivers.
    Response. We agree that there is the potential for further cost 
savings through batch processing of queries. Among the options the 
Agency plans to explore is providing employers the opportunity to 
conduct annual queries in batches. Nothing in the rule would foreclose 
that possibility. FMCSA will provide information to stakeholders on 
Clearinghouse functionality closer to the rule's compliance date.
    Comment. A commenter stated that the labor rate and fringe rates 
used in Table 15 and subsequent tables in the RIA are not appropriate. 
According to the commenter, more than 80 percent of carriers have one 
to five power units. These carriers do not have office staff; a 
driver's wage should be used for these carriers. The commenter 
questioned whether the assumption in the RIA that larger carriers will 
assign a sensitive task to a very low level staff person is reasonable. 
In addition, a commenter contended that the fringe rate used in the RIA 
is too high because the Bureau of Labor Statistics (BLS) fringe rate 
includes costs (leave, overtime, etc.) that BLS also includes in its 
wage rates, which are based on gross pay. The commenter alleged that 
combining the two results in double counting, and many drivers do not 
receive many of the fringe benefits.
    Response. We disagree that the labor rates are inappropriate for 
carriers operating five or fewer power units. In the Agency's 
experience, many small motor carriers use C/TPAs, which employ office 
staff to administer drug and alcohol testing programs. We anticipate 
that C/TPAs will continue to administer the programs, including 
Clearinghouse requirements.
    In addition, we believe that the appropriate wage rates were used 
for developing query and test reporting transaction costs. The wage 
rate used to calculate the cost incurred by SAPs to report to the 
Clearinghouse results of return-to-duty progress is the BLS estimate of 
the hourly wage for Occupational and Safety Workers. The BLS hourly 
wage for heavy truck drivers was used to estimate driver consent costs. 
These rates are directly applicable to the individuals responsible for 
performing these tasks. The remaining cost estimates for registration, 
familiarization with the rule, pre-employment queries, designation of 
C/TPAs, and reporting of test results are based on the BLS wage rate 
for Bookkeeping, Accounting and Audit Clerks.
    The Agency has no information indicating that administrative 
functions performed by employees of C/TPAs, MROs, SAPs, and other 
service agents require a higher level sensitivity for personal 
information. Medical service and health care providers performing 
similar functions in other industries

[[Page 87711]]

have recordkeeping and reporting requirements comparable to the testing 
and reporting requirements of this rule. The commenter did not offer 
any information in support of the proposition that individuals 
responsible for administrative tasks associated with the rule fall 
under a BLS occupation other than for Bookkeeping, Accounting and Audit 
Clerks. Nevertheless, in the final Regulatory Impact Analysis, a wage 
rate of $33.27 per hour was used to estimate the cost for SAPs to 
report driver information to the Clearinghouse following an initial 
assessment. It is the median wage rate estimated by the BLS for 
Occupational Health and Safety Specialists.\6\ This occupational 
description is more closely related to health care professionals whose 
responsibilities include reporting highly sensitive personal medical 
information.
---------------------------------------------------------------------------

    \6\ Bureau of Labor Statistics, ``Occupational Employment and 
Wages,'' May 2014, http://www.bls.gov/oes/current/oes299011.htm#ind.
---------------------------------------------------------------------------

    Finally, the hourly wage rate and fringe benefits rate do not 
result in double counting of employment costs. Fringe benefits include 
paid leave, supplemental pay, insurance (health and life), retirement 
and savings, and legally required benefits (i.e., Social Security and 
Medicare).
    Comment. A commenter said the estimated benefits of the proposed 
rule were understated in the RIA. While the RIA mentioned benefits to 
drivers such as ``improved health, quality of life and increased life 
expectancy,'' these benefits were not included in the estimate. The 
commenter noted other benefits resulting from the rulemaking were not 
mentioned, including decreased drug and alcohol abuse by drivers, 
increased compliance with the regulations by employers, and the overall 
program benefits associated with improved drug and alcohol testing 
data. The commenter suggested expanding the discussion of non-
quantifiable benefits.
    Response. We agree with the commenter that there are residual 
benefits from the proposed rule. However, they are not ``direct'' 
primary benefits, but rather secondary or tertiary ones. Furthermore, 
since they are largely unquantifiable, such benefits are mentioned, but 
do not warrant extensive analysis in the RIA.
Changes From the Notice of Proposed Rulemaking
    This final rule makes the following changes to the NPRM in response 
to comments.
    In Sec.  382.107, we removed the proposed definition of ``positive 
alcohol test.'' We eliminated proposed Sec.  382.404, which would have 
required laboratories to report summary statistics on drug tests. As a 
result of that change, we will not collect employers' USDOT Numbers on 
the ATF and CCF and, accordingly, removed those proposed requirements 
from Sec.  382.123. Section 382.705 now requires that employers report 
all violations of FMCSA's drug and alcohol testing program that are 
identified in part 382, subpart B, including violations based on any 
type of actual knowledge. We updated the text in other sections of the 
final rule to reflect these changes.
    In Sec.  382.413, we extended the drug and alcohol background 
investigation requirement to cover the previous 3 years, consistent 
with the requirement in Sec.  391.23. In both Sec. Sec.  382.413 and 
391.23, we added provisions that require employers to query the 
Clearinghouse in lieu of conducting the background investigations 
required under Sec. Sec.  40.25 and 391.23, as the query satisfies 
these requirements for employers subject to Sec.  382.701(a), with 
specified exceptions. We added language to Sec.  382.415 to make it 
clear that a driver need not report a violation to the employer that 
administered the test.
    In Sec.  382.701(a) and (b), we added language to make it more 
clear which type of query, full or limited, an employer is required to 
conduct, as well as a clearer explanation of the difference between 
full and limited queries. In paragraph (c) of that section we extended 
the employer notification period from 7 to 30 days after a 
Clearinghouse query. In paragraph (e), we clarified that, 3 years after 
the compliance date of this final rule, an employer who maintains a 
valid registration on the Clearinghouse system meets the recordkeeping 
requirement.
    In Sec.  382.705(a), we changed an MRO's reporting period to 2 
business days. In paragraph (b), we changed the employer's reporting 
period to the close of the third business day. We added language 
distinguishing between the types of refusals employers and MROs must 
report. We also added the requirement that employers report all drug 
and alcohol violations based on an employer's actual knowledge and 
established evidentiary requirements for those reports. New paragraph 
(b)(3) identifies documentation requirements for the reporting of 
``failure to appear'' test refusals. New paragraph (b)(6) requires 
owner-operators who employ themselves as drivers to designate a C/TPA 
to comply with all employer related reporting requirements with respect 
to the individual's drug and alcohol use. We provided new language for 
paragraph (c) that makes clear that C/TPAs are subject to the reporting 
requirements of the employers on whose behalf they report. Paragraph 
(c) also makes clear that the employer remains responsible for 
compliance regardless of whether it uses a C/TPA. We simplified the 
language in the introductory paragraph of paragraph (d) and amended 
paragraph (d)(2) to make clear that a SAP has until the close of the 
following business day to report his or her required information to the 
Clearinghouse. In paragraph (e), we expanded the responsibility for 
reporting information to the Clearinghouse truthfully and accurately by 
prohibiting anyone from reporting information he or she should know is 
false or inaccurate.
    In Sec.  382.711(b), we added the requirement that an employer 
update its service agent designation within 10 days of making a change. 
In paragraph (d), we extended the rules governing C/TPA registration to 
all service agents. We updated the text throughout the final rule to 
conform to this change.
    In Sec.  382.715, we updated the language to make clear that an 
employer must authorize a C/TPA or other service agent before they can 
enter any information into the Clearinghouse on the employer's behalf. 
In response to comments, FMCSA added paragraph (b) to make clear that 
it is the employee, not the employer, who designates a SAP to enter 
information about the employee.
    We made changes to the procedures in Sec.  382.717 for correcting 
information in the Clearinghouse. Any request for correction must be 
addressed to FMCSA's Drug and Alcohol Program Manager and must include 
the words ``Administrative Review of Drug and Alcohol Clearinghouse 
Decision.'' We shortened FMCSA's period for expedited treatment of a 
request for data correction from 30 days to 14 days and added a 
provision that requires the Agency to notify employers that previously 
accessed information was subsequently corrected or removed. We re-
ordered the paragraphs, so that paragraph (a) clearly states that this 
section may only be used for data correction, with three exceptions 
related to a DUI citation that did not result in a conviction and 
reporting violations based on an employer's actual knowledge and a 
driver's refusal to appear for a test.
    In Sec.  382.725, we clarified that an SDLA's access to the 
Clearinghouse is solely for the purpose of determining whether the 
driver is qualified to operate a CMV. Finally, we amended part 383 to 
implement the statutory

[[Page 87712]]

requirement that SDLAs query the Clearinghouse in connection with the 
issuance, upgrade, transfer, or renewal of a CDL.
    In Sec.  383.73, we made changes to reflect the new requirement 
that SDLAs check the Clearinghouse before issuing, renewing, 
transferring or upgrading a CDL.
    In Sec.  391.23, we made changes to require employers subject to 
Sec.  382.701(a) to use the Clearinghouse to conduct drug and alcohol 
background investigations.

VI. Section-by-Section Explanation of Changes From the Notice of 
Proposed Rulemaking

    FMCSA amends parts 382, 383, 384, and 391 in the following ways.

A. Part 382

Section 382.103
    In Sec.  382.103, ``Applicability,'' this final rule makes clear 
that the requirements of part 382 apply to service agents; otherwise 
this section remains as proposed.
Section 382.107
    In Sec.  382.107, this final rule includes definitions of 
``Clearinghouse'' and ``Negative return-to-duty test,'' which remain as 
proposed. ``Clearinghouse'' means the database implemented by this 
final rule that contains records of drug and alcohol program 
violations. A ``negative return-to-duty test'' is a negative drug test 
or an alcohol test showing an alcohol concentration of less than 0.02.
    In response to comments, FMCSA removed the definition of ``positive 
alcohol test'' for the reasons explained in this final rule's response 
to comments.
Section 382.123
    The Agency proposed to amend this section to require anyone filling 
out an ATF or CCF to record the employee's CDL number and State of 
issuance on the form. That requirement remains as proposed. FMCSA also 
proposed to require that the person filling out the form record the 
USDOT Number or EIN of the employer requesting the test. FMCSA 
requested that information so that laboratories could produce annual 
reports summarizing drug testing activity for specific employers. As 
discussed in the response to comments on this matter, the Agency 
eliminated the annual summary requirement. Without the annual summary 
requirement, it is not necessary to record USDOT Numbers or EINs on the 
ATF or CCF.
Section 382.217
    FMCSA proposed a new Sec.  382.217 that would prohibit an employer 
from allowing a driver to operate a CMV if the Clearinghouse has a 
record that shows that the driver has not successfully completed the 
return-to-duty process required by 49 CFR 40.305. The core function of 
this section remains as proposed, with several changes to conform to 
updates in other sections of the rule. The first change removes 
reference to a ``positive alcohol test'' and replaces it with the 
specific alcohol test result that constitutes a violation (0.04 BAC or 
higher). The remaining several changes update Sec.  382.217 to prohibit 
an employer from allowing a driver to operate a CMV if the 
Clearinghouse shows any violation of part 382, subpart B, including 
violations based on actual knowledge of drug or alcohol use. This 
conforms to changes in Sec.  382.701, discussed in the relevant 
response to comments section of this rule.
Section 382.401
    Section 382.401, as proposed, was intended to require employers to 
keep records of all reportable drug and alcohol violations for a 
minimum of 5 years. As discussed in the response to comments on this 
issue, the proposed changes caused some confusion. Accordingly, this 
final rule makes clear that employers are required to keep records of 
all employee drug and alcohol violations for a minimum of 5 years.
Section 382.405
    The changes to Sec.  382.405 remain as proposed. Section 382.405(d) 
requires service agents who maintain records for an employer to make 
copies of all DOT drug and alcohol test results available to the 
Secretary, any DOT agency, or any State or local officials with 
regulatory authority over the employer. Paragraph (e) authorizes FMCSA 
to provide the NTSB access to a CDL driver's records in the 
Clearinghouse when that driver is involved in a crash under 
investigation by the NTSB and requires employers to disclose 
information related to the administration of post-accident testing 
following the crash under investigation.
Section 382.409
    The changes to Sec.  382.409 remain as proposed. The changes add 
the Clearinghouse to the list of entities to which an MRO or C/TPA is 
authorized to release a driver's drug test results. They also amend the 
title of Sec.  382.409 to add the words ``or consortium/third party 
administrator'' so that it reads ``Medical review officer or 
consortium/third party administrator record retention for controlled 
substances'' to reflect more accurately the contents of the section.
Section 382.413
    In response to comments, this final rule includes changes to Sec.  
382.413. That section previously required employers to request drug and 
alcohol testing information from an employee's employers during the 
preceding 2 years. First, we changed the scope of Sec.  382.413 to 
cover drug and alcohol testing information during the preceding 3 
years. This change reconciles Sec.  382.413 with Sec.  391.23(e), which 
currently requires employers to gather information going back 3 years. 
Second, Sec.  382.413 now provides that an employer who queries the 
Clearinghouse does not have to make an additional request to previous 
FMCSA-regulated employers for this information once the Clearinghouse 
has been in effect for 3 years. In other words, querying the 
Clearinghouse will satisfy the Sec.  382.413 background investigation 
requirement--but only with respect to FMCSA-regulated employers. 
Employers must continue to request information from previous employers 
if the employee was subject to drug and alcohol testing under an 
employer regulated by one of the other DOT modes.
    For example, an FMCSA-regulated employer would have to request drug 
and alcohol information about employees who were subject to testing 
under Federal Railroad Administration, Federal Aviation Administration, 
or other modes' regulations. If an employee violates the drug or 
alcohol testing program with an employer regulated by another mode, 
that person may not perform safety-sensitive functions for motor 
carrier employers until he or she successfully complies with the part 
40 return-to-duty process. Because records of violations with non-
FMCSA-regulated employers will not be reported to the Clearinghouse, 
employers must continue to request those records directly from the 
previous employers.
    In addition, we added an exception pertaining to drivers who are 
subject to follow-up testing who have not completed their follow-up 
testing plan. In such cases, the gaining employer is required to 
request that information from the previous employer since the number, 
type, and duration of follow-up tests will not be reported to the 
Clearinghouse.

[[Page 87713]]

Section 382.415
    Section 382.415 remains largely as proposed. That section requires 
an employee to notify all current employers when he or she violates the 
drug and alcohol rules in part 382. FMCSA intends that employees notify 
all current employers, aside from the employer that administered the 
test. The purpose of this section is to place an obligation on an 
employee with multiple employers to notify all other employers when he 
or she has a drug or alcohol violation with one of them. As discussed 
above, there was some confusion about how this section should work. 
Accordingly, the Agency amended the proposal to make clear that the 
employee need not notify the employer that ordered the test or 
documented the violation.
Section 382.601
    Section 382.601 remains largely as proposed. That section requires 
an employer to promulgate a policy on the misuse of drugs and alcohol 
and to provide educational materials on the subject to its new and 
current employees. This rule requires that materials required under 
this section put employees on notice that information on drug and 
alcohol violations will be reported to the Clearinghouse. FMCSA made 
several changes to the proposal to conform to other changes in this 
final rule. The first change removes reference to a ``positive alcohol 
test'' and replaces it with the specific result that constitutes a 
violation (0.04 BAC or higher). The remaining changes update the type 
of violations reportable to the Clearinghouse to include all violations 
in part 382, subpart B, including those based on actual knowledge of 
drug or alcohol use.

B. Part 382, Subpart G (Sec. Sec.  382.701 Through 382.727)

Section 382.701
    This section sets out the basic requirements for querying the 
Clearinghouse. Paragraph (a) requires employers to conduct a pre-
employment query on all prospective drivers to determine if they have 
drug or alcohol program violations. We made two organizational changes 
to paragraph (a). First, we added a paragraph title, ``Pre-employment 
query required'' to alert the reader to the subject of the paragraph. 
Second, to provide better organization for the reader, we separated 
paragraph (a) into two subparagraphs. In paragraph (a)(1), we establish 
the employer's requirement to conduct a pre-employment query and 
identify the different types of drug and alcohol violations that will 
be searched in the query. We updated the language in that paragraph to 
remove reference to a positive alcohol test, as discussed above. Also 
as discussed above, we updated the language in this section to include 
all of the prohibitions in part 382, subpart B, that constitute 
violations of FMCSA's drug and alcohol program, including all 
violations based on an employer's actual knowledge, as defined at Sec.  
382.107.
    In paragraph (a)(2), we added new language to state explicitly that 
an employer must have a prospective employee's specific consent for a 
full release of information before it can conduct a pre-employment 
query. We refer to this type of query as a full query, meaning that the 
consent obtained grants the employer access to information about that 
driver. This is distinguished from a limited query, described in Sec.  
382.701(b)(2), which tells the employer whether there is any 
information in the Clearinghouse about that driver, but does not 
provide access to the information without further consent.
    For paragraph (b), we added a title, ``Annual query required,'' and 
separated the paragraph into three subparagraphs for organizational 
reasons. Paragraph (b)(1) requires employers to conduct a Clearinghouse 
query for all employees at least once a year to find out whether there 
is any information in the Clearinghouse about those employees. 
Paragraph (b)(2) explains that an employer may, but is not required, to 
conduct a full query. The employer may choose, instead, to conduct a 
limited query, which alerts the employer to whether information exists 
in the Clearinghouse about a particular employee, but does not release 
the substance of the information without additional specific consent 
from the employee. Paragraph (b)(3) tells the employer that if it 
conducts a limited query and the Clearinghouse reports back that it 
contains information about a particular employee, the employer must 
conduct a full query within 24 hours to determine whether that 
information shows that the employee is prohibited from performing 
safety-sensitive functions. Once 24 hours pass, the employer may not 
allow the employee to perform safety-sensitive functions until it has 
completed the full query and the results show that the driver does not 
have any violations prohibiting him or her from performing safety-
sensitive functions. We added language making this last point more 
clear.
    As proposed, paragraph (c) provided that the Clearinghouse would 
notify employers if new information appeared in the Clearinghouse 
within 7 days of conducting a query. We include two changes to this 
paragraph in this final rule. First, similar to changes made to 
paragraphs (a) and (b), FMCSA added the following title for 
organizational purposes: ``Employer notification.'' Second, as 
discussed in the response to comments on this matter, FMCSA extended 
the new information notification period to 30 days.
    Paragraph (d) prohibits an employer from allowing an employee to 
drive if its Clearinghouse query shows that the employee has committed 
one of the part 382, subpart B, drug and alcohol violations without 
completing the return-to-duty process. We made two changes to this 
paragraph as a part of this final rule. First, like changes we made in 
the preceding paragraphs, we added a title for organizational purposes: 
``Prohibition.'' Second, we updated the language in this section to 
include all of the prohibitions in part 382, subpart B, that constitute 
violations of FMCSA's drug and alcohol program, including those based 
on an employer's actual knowledge.
    Paragraph (e) remains substantively as proposed. It requires 
employers to maintain records of all Clearinghouse queries. FMCSA 
amended this section to clarify that the employer can maintain those 
records on the Clearinghouse system so long as its Clearinghouse 
registration is valid. Regardless, nothing prohibits an employer from 
maintaining the records as a part of its own recordkeeping system. 
FMCSA made only one change to proposed paragraph (e): It now includes a 
title, ``Recordkeeping required,'' for organizational purposes.
Section 382.703
    Section 382.703 remains largely as proposed. This section provides 
that no employer may obtain information about an individual from the 
Clearinghouse without that individual's express consent. It also 
provides that an employee cannot perform safety-sensitive functions if 
he or she refuses to give this consent. We updated the language in this 
section to make clear that the employee grants consent for the employer 
to view information about all of the driver's part 382, subpart B drug 
and alcohol violations, including those based on the employer's actual 
knowledge, as well as return-to-duty information. We also make clear, 
in new paragraph (d), that the driver must provide electronic consent 
to FMCSA before the Agency releases

[[Page 87714]]

Clearinghouse records to the employer. Paragraph (d), as it appeared in 
the NPRM, pertained to a driver's consent for FMCSA to release 
information under Sec.  382.701(c). The text of that paragraph is 
unchanged and is now new paragraph (e).
Section 382.705
    Section 382.705 describes who is responsible for reporting 
information to the Clearinghouse. This paragraph contains several key 
changes and additions. Paragraph (a) lays out MRO reporting 
responsibilities, which include reporting verified positive, 
adulterated, or substituted test results and those results the MRO 
determines to be a refusal. This paragraph explains what information 
the MRO will report, including information identifying the driver and 
test results. The MRO is required to report this information within 2 
business days of reaching a determination. But if the MRO subsequently 
makes a change to its determination, it must report that change by the 
close of the next business day.
    In response to comments, the Agency changed the initial MRO 
reporting period from 1 day to 2 days. Second, FMCSA simplified the 
instructions for recording a driver's CDL number and State of issuance. 
Finally, the Agency eliminated the requirement that MROs report the 
requesting employer's USDOT Number or EIN. As discussed above, FMCSA 
will no longer be collecting USDOT Numbers or EINs.
    Paragraph (b) lays out employer responsibilities for reporting an 
alcohol confirmation test with a concentration of 0.04 or higher, 
alcohol refusals, drug refusals that do not involve an MRO 
determination, negative return-to-duty tests, and successful completion 
of follow-up tests. The NPRM required the employer to report this 
information by the close of business the day after having received 
notice of the determination. In order to accommodate the employer's 
need to comply with new documentation requirements for reporting 
certain violations, described below, we changed the reporting period to 
the end of the third business day following the date on which the 
employer obtained the violation information.
    When an employer has actual knowledge, as defined at Sec.  382.107, 
that an employee has used alcohol on duty, before duty, or prior to 
taking a post-accident test, or that an employee used drugs in 
violation of FMCSA's drug and alcohol regulations, the employer must 
report that use to the Clearinghouse. The employer must report all 
instances of actual knowledge of prohibited drug or alcohol use by the 
close of the third business day following the day the employer became 
aware of the use. As discussed in the response to comments, paragraph 
(b) requires the employer to report detailed information on its 
knowledge of the drug or alcohol use and further requires the employer 
to provide evidence to substantiate the employee's violation, and to 
demonstrate that this evidence was provided to the employee. No 
employer may report actual knowledge of drug or alcohol use after the 
close of the third business day following the day the employer became 
aware of the use.
    Paragraph (b)(3) also identifies employer responsibilities for 
reporting ``failure to appear'' test refusals to the Clearinghouse. As 
explained in the response to comments, paragraph (b) identifies the 
types of documentation that employers, and the C/TPAs' designated as 
their service agents, must submit each time they report a ``failure to 
appear'' refusal and requires the employer to demonstrate that the 
documentation was provided to the employee.
    New paragraph (b)(6) requires owner-operators who employ themselves 
as drivers to designate a C/TPA to comply with all employer-related 
reporting requirements with respect to the individual's drug and 
alcohol use.
    Paragraph (c) lays out a C/TPA's Clearinghouse reporting 
responsibilities. In the NPRM, we provided a detailed list of all of 
the information an employer could ask a C/TPA to report. The comments 
we received indicated, however, that this approach caused confusion 
about how a C/TPA reports to the Clearinghouse. To eliminate this 
confusion, this final rule simply states that when a C/TPA acts on 
behalf of an employer, that C/TPA stands in the shoes of the employer 
with respect to all of the rights and responsibilities the employer 
delegated to it. Accordingly, a properly authorized C/TPA can fulfill 
any of an employer's responsibilities under paragraph (b). That said, 
an employer does not discharge its responsibilities under paragraph (b) 
when it delegates compliance to a C/TPA; the employer remains 
responsible for compliance with paragraph (b) regardless of whom it 
assigns to interact with the Clearinghouse on its behalf.
    Paragraph (d) requires a SAP to report to the Clearinghouse when he 
or she conducts an initial assessment of an employee and when an 
employee completes the return-to-duty process. The NPRM proposed that 
the SAP make these reports within 1 business day following the day of 
the event or determination that triggered the reporting obligation. 
After consideration of comments, we changed the reporting period to 
require SAPs to complete their reporting requirements by the close of 
the business day after the event that triggered their reporting 
responsibility. In addition, as discussed above in the response to 
comments, we no longer require that the SAP report the follow-up 
testing plan to the Clearinghouse. SAPs will continue to provide that 
information directly to employers in accordance with 49 CFR 40.311.
    Paragraph (e) obligates anyone reporting to the Clearinghouse to do 
so truthfully and accurately. As discussed in the Response to Comments 
section, we changed this final rule to prohibit anyone from reporting 
anything he or she knows or should know to be untruthful or inaccurate.
Section 382.707
    Section 382.707 remains as proposed. This section requires FMCSA to 
notify a driver when information about that driver is entered in, 
revised, or removed from the Clearinghouse. It also requires FMCSA to 
notify a driver when information from the Clearinghouse is released to 
an employer and to state the reason for the release. The Agency will 
send a letter by U.S. Mail to the address on record with the SDLA that 
issued the driver's CDL unless drivers provide an alternate address or 
method of communication, such as electronic mail (email).
Section 382.709
    Section 382.709 remains essentially as proposed. This section 
grants a driver the right to review information in the Clearinghouse 
about himself or herself. This section now makes clear that, in order 
to access such information, a driver must register with the 
Clearinghouse.
Section 382.711
    Under Sec.  382.711(a), all users must register with the 
Clearinghouse before querying or reporting any information. In the 
proposal, this paragraph stated that only employers and their service 
agents had to register. This language inadvertently excluded service 
agents that work for employees, i.e. SAPs, who also must register. We 
corrected this oversight by changing the language in this section to 
provide that each employer and each service agent must register with 
the Clearinghouse.
    Paragraph (b) explains what an employer must do to register with 
the Clearinghouse. The employer must provide contact information, USDOT

[[Page 87715]]

Number, names of authorized users, and authorizations for service 
agents, if the employer uses them. The employer must keep its list of 
authorized users current, but at a minimum, will be required to re-
authorize them annually. With respect to service agents, FMCSA added 
the requirement that employers must update their designations within 10 
days of a change.
    Paragraph (b) is different from the proposal in three ways. First, 
with respect to the contact information an employer must provide, we 
removed reference to the EIN. FMCSA will not allow a motor carrier to 
use an EIN in lieu of a USDOT Number for identification purposes. All 
motor carriers must use their USDOT Numbers to register. If an employer 
does not have a USDOT Number, it will leave this field blank. Second, 
we updated the language in paragraph (b)(3) to include service agents 
(other than C/TPAs) as entities that can act on an employer's behalf 
for querying and reporting to the Clearinghouse. Finally, to eliminate 
any confusion about an employer's obligation to update service agent 
designations, we included the 10-day period for reporting a change in 
service agent designation.
    Paragraph (c) is the same as was proposed in the NPRM. It explains 
what MROs and SAPs must do to register with the Clearinghouse. MROs and 
SAPs must provide contact information, certification that the MRO or 
SAP meets the minimum requirements in part 40 for MROs or SAPs, and 
documentation that shows that the MRO or SAP meets those minimum 
qualifications or training requirements. For example, an MRO would be 
required to provide documentation showing that he or she is a licensed 
physician, as required by Sec.  40.121(a), and has completed the 
required training or re-training requirements in Sec.  40.121(c). He or 
she would also be required to certify that he or she has the basic 
knowledge and experience related to drug testing and DOT regulations, 
as required by Sec.  40.121(b). A SAP would be required to provide 
documentation showing that he or she is licensed or certified to 
provide substance abuse counseling in accordance with the requirements 
of Sec.  40.281(a), has completed the qualification training in Sec.  
40.281(c), and has completed the continuing education requirements in 
Sec.  40.281(d). He or she would also be required to certify that he or 
she has the basic knowledge and experience related to substance abuse 
diagnosis and treatment, SAP functions, and DOT drug and alcohol 
testing regulations required by Sec.  40.281(b).
    Paragraph (d) remains largely as proposed. It explains what C/TPAs 
and other service agents must do to register with the Clearinghouse. 
They must provide contact information and names of authorized users. 
Similar to employer requirements in paragraph (b), C/TPAs and other 
service agents must verify their authorized users annually. The Agency 
made some changes to the text to make clear that these registration 
requirements apply to C/TPAs as well as other service agents acting on 
an employer's behalf.
Section 382.713
    Section 382.713 remains as proposed. It explains the terms under 
which Clearinghouse registrations remain active, or are revoked or 
cancelled. The initial Clearinghouse registration term is 5 years 
unless the Agency takes action to revoke or cancel it. The Agency will 
cancel any registrant that does not use the Clearinghouse for 2 years. 
The Agency also has the authority to revoke the Clearinghouse 
registration of anyone who does not comply with Clearinghouse 
regulations.
Section 382.715
    Section 382.715(a) requires employers to authorize C/TPAs or other 
service agents to access the Clearinghouse on their behalf before the 
C/TPA or other service agent can enter information on their behalf into 
the Clearinghouse. Similarly, paragraph (b) requires employees to 
authorize a SAP before the SAP can enter information about the 
employee's return-to-duty process.
    The final rule differs from the proposal in several respects. 
Originally, this section had only one paragraph that required employers 
to designate C/TPAs acting on their behalf. Changes implemented in this 
final rule require employers to designate any other service agents 
authorized to enter information on the employer's behalf as well. That 
original paragraph is now paragraph (a). In response to comments, FMCSA 
added paragraph (b) to make clear that it is the employee, not the 
employer, who designates a SAP to enter information about the employee.
Section 382.717
    Section 382.717 explains the procedures for a driver to request 
that FMCSA change information reported incorrectly to the 
Clearinghouse. We reordered the paragraphs in the final rule to 
highlight that the procedures in this section may be used primarily to 
request data correction. Accordingly, paragraph (a), which was proposed 
as paragraph (c), explains that no driver may use the procedures in 
Sec.  382.717 to challenge a particular test result. The procedures are 
for challenging information that was not accurately reported. Paragraph 
(a) contains two exceptions related to reporting violations based on an 
employer's actual knowledge of drug or alcohol use and one exception 
related to reporting a driver's failure to appear for a test. The first 
remains as proposed: A driver may petition the Agency to remove a 
violation when it is based on the driver receiving a citation for DUI 
in a CMV and the citation does not result in a conviction. The second 
is new: A driver may petition the Agency to remove a report of a 
violation that does not meet the minimum reporting requirements, 
including evidentiary requirements, provided in Sec.  382.705(b)(5). 
The third exception is also new: A driver may petition for removal of a 
report of a ``failure to appear'' refusal that does not meet the 
reporting requirements in new Sec.  382.705(b)(3).
    Paragraph (b), which was proposed as paragraph (a), provides that 
the petition must include information identifying the driver and the 
information he or she wants to be corrected, the reasons he or she 
believes the information is inaccurate, and evidence supporting his or 
her challenge. As noted above, we removed the proposed requirement that 
petitions be submitted within 18 months of the date the allegedly 
incorrect information was reported to the Clearinghouse.
    The address for submitting the petition is in paragraph (c), which 
was originally proposed as paragraph (b). FMCSA added ``Attention: Drug 
and Alcohol Program Manager'' to the address as a part of this final 
rule. In addition, we added the option for electronic submission of 
petitions through the Clearinghouse system; the precise means by which 
electronic submission is accomplished will be addressed during the 
implementation process. In order to reflect the addition of an 
electronic submittal option, we changed the title of the paragraph from 
``Address'' to ``Submission of Petition''.
    Paragraph (d) provides that FMCSA will inform the driver of its 
decision to remove, retain, or correct the driver's information in the 
Clearinghouse and will explain the basis for its decision. The Agency 
reduced, from 90 days (as proposed) to 45 days, the time in which it 
will respond to petitions submitted under this section. We believe that 
the electronic submission of petitions will allow us to process those 
requests more efficiently.
    Paragraph (e) provides an option for drivers to request expedited 
treatment. A driver may request expedited

[[Page 87716]]

treatment only if the driver is prohibited from performing safety-
sensitive functions because of the information incorrectly reported 
under paragraph (a)(1) or (2). If the request is granted, FMCSA will 
subsequently issue a decision within 14 days of receiving a complete 
petition. Submission of a petition for correction does not authorize a 
driver to resume safety-sensitive functions or otherwise stay the 
effective date of the driver's prohibition on performing safety-
sensitive functions. Paragraph (e) remains as proposed with one 
exception. This final rule shortens the time for FMCSA to consider an 
expedited request from 30 to 14 days. The reasons for this change are 
discussed in the response to comments discussion.
    Paragraph (f) explains that a driver may seek administrative review 
if FMCSA does not grant his or her petition for correction. The driver 
must submit a request, with the words ``Administrative Review of Drug 
and Alcohol Clearinghouse Decision'' conspicuously noted at the top of 
the document, to FMCSA's Associate Administrator for Enforcement. The 
request must explain the basis for administrative review and provide 
all supporting explanations and documents. FMCSA will issue a decision 
within 30 days and that decision will constitute the final agency order 
on the matter. Paragraph (f) remains largely as proposed, except that 
this final rule added the requirement for prominent display of 
``Administrative Review of Drug and Alcohol Clearinghouse Decision'' at 
the top of the request and the option to submit the request 
electronically through the Clearinghouse. We reduced the time in which 
the Agency will complete its administrative review from 60 days (as 
proposed) to 30 days because we believe the electronic submission of 
requests for review will allow for a speedier resolution. The 30-day 
time frame is also consistent with the administrative review provisions 
of the Privacy Act.
    In response to comments, we added a new paragraph (g). That 
paragraph explains that after FMCSA corrects or removes information in 
response to a petition, it will notify any employer that viewed the 
incorrect information that a correction has been made.
Section 382.719
    Under Sec.  382.719, the Clearinghouse will stop releasing 
information about a driver's drug and alcohol violations under the 
following conditions: (1) The SAP reports all of the required 
information about the initial assessment and driver completion of the 
return-to-duty process; (2) the employer reports that the driver had a 
negative return-to-duty test; (3) the employer reports that the driver 
completed all of the prescribed follow-up tests; and (4) 5 years have 
passed since the date of the violation determination, which is the date 
the violation was submitted to the Clearinghouse. Unless all of these 
conditions are satisfied, information in the Clearinghouse will remain 
available to employers with authorized access. As previously noted, 
exceptions apply to records otherwise removed from the Clearinghouse, 
such as a DUI citation not resulting in a conviction or records removed 
in accordance with Sec.  382.717. Once these conditions are satisfied 
and the information is removed, FMCSA will maintain an archived record 
of this information--not available to employers--for internal use such 
as research into the effectiveness of the drug and alcohol program, 
auditing for compliance with this rule, and identifying non-compliant 
employers or employees for enforcement action.
    This final rule differs from the proposal in one critical aspect: 
How long the Clearinghouse will make records available to employers 
before moving them to the archives. In the NPRM, FMCSA announced a dual 
proposal concerning the searchable records retention period. Based on 
the language of MAP-21, the Agency concluded that there was a basis for 
making the minimum period for which employers could search records 
either 3 or 5 years. After considering comments, we conclude that the 
statutory provisions in MAP-21, as well as over-arching safety 
considerations, compel the Agency to implement the 5-year retention 
period. A full discussion of the Agency's analysis is in the response 
to comments.
Section 382.721
    Section 382.721 remains as proposed. It authorizes FMCSA to collect 
fees from entities that are required to query the Clearinghouse. The 
Agency is prohibited, however, from collecting fees from drivers 
accessing their own records.
Section 382.723
    Section 382.723 remains as proposed. It prohibits unauthorized 
access to the Clearinghouse, inaccurate or misleading reporting to the 
Clearinghouse, and unauthorized disclosure of information obtained from 
the Clearinghouse. Employers are limited to using information from the 
Clearinghouse for determining whether a driver is prohibited from 
operating a CMV. And employers may not divulge any information to 
anyone not directly involved in that determination. Anyone who violates 
the requirements of this section is subject to the civil and criminal 
penalties in Sec.  382.507. This section would not prohibit FMCSA from 
accessing information in the Clearinghouse for research, auditing, or 
enforcement purposes. For example, FMCSA could use the information in 
the database to identify trends in testing data that could help the 
Agency focus its oversight activities.
Section 382.725
    Section 382.725 requires each State chief commercial driver's 
license official to obtain information in the Clearinghouse about an 
applicant for a CDL for the purpose of determining whether that 
applicant is qualified to operate a CMV. The applicant is not required 
to grant prior consent; an applicant is deemed to have granted consent 
by virtue of applying for a CDL. The chief commercial driver's license 
officials are required to protect the privacy and confidentiality of 
the information they receive. Failure to comply will result in the 
official losing his or her right of access.
    As proposed, this section authorized, but did not require, States 
to access the Clearinghouse. As discussed in the response to comments, 
section 31306a(h)(2) makes access permissive, but MAP-21 amendments to 
section 31311(a) make it mandatory. To implement the amendments to 
section 31311(a), this final rule will require that States query the 
Clearinghouse to determine whether an applicant is qualified under 
FMCSA's regulations to operate a CMV.
    FMCSA is aware that some States have licensing standards that 
prohibit applicants from obtaining CDLs if they failed or refused a 
drug or alcohol test, or have other drug and alcohol program 
violations. This rule also will permit those States to use the 
information in the driver's record, obtained from the Clearinghouse, to 
determine whether the individual is qualified to operate a commercial 
motor vehicle in accordance with applicable State laws and regulations. 
This implements the permissive access requirements of section 
31306a(h)(2) and reconciles the two different types of access 
referenced in that section and the amendments to section 31311(a).
Section 382.727
    Section 382.727 remains as proposed. It explains that there are 
civil and criminal penalties for violations of the Clearinghouse 
regulations. As stated above, 49 CFR 382.507 already

[[Page 87717]]

establishes civil and criminal liability for employers and drivers who 
violate any provision of 49 CFR part 382; however, Sec.  382.727 
extends civil and criminal liability to all employees, medical review 
officers, and service agents for violations of 49 CFR part 382, subpart 
G.

C. Part 383

Section 383.73
    This final rule includes changes to the CDL standards in part 383 
that were not proposed in the NPRM. As discussed above and in the 
response to comments, these changes implement the statutory requirement 
that SDLAs obtain driver information from the Clearinghouse before 
issuing a CDL. Accordingly, new paragraphs (b)(10), (c)(10), (d)(9), 
and (e)(8) require the States to query the Clearinghouse before issuing 
a new, renewed, upgraded, or transferred CDL. FMCSA will work with the 
States to provide for an automatic, electronic query system to minimize 
costs and maximize efficiencies.

D. Part 384

Section 384.235
    This final rule includes a conforming change to part 384. FMCSA 
recognizes the need to hold States accountable to request information 
from the Clearinghouse in accordance with the new changes to Sec.  
383.73.

E. Part 391

Section 391.23
    This final rule includes changes to Sec.  391.23(e) and (f) that 
were not proposed in the NPRM. Section 391.23(e) requires employers to 
investigate a prospective employee's drug and alcohol compliance 
history during the preceding 3 years. Section 391.23(f) prohibits 
employers from allowing a driver to operate a CMV if he or she refuses 
to grant consent for the release of his or her information. As 
discussed above and in the response to comments, section 31306a(f)(3) 
requires employers to use the Clearinghouse to conduct this background 
investigation. Once the Clearinghouse has been in operation for 3 
years, any pre-employment query will provide the employee's 3-year 
compliance history. To implement the requirement in section 
31306a(f)(3) and to avoid redundant searches and investigations, the 
Agency amended Sec.  391.23(e) to state that an employer subject to 
Sec.  382.701(a) must query the Clearinghouse, after it has been in 
operation for 3 years, to satisfy the drug and alcohol background 
investigation requirement. Similarly, the Agency amended Sec.  
391.23(f) to prohibit an employer from allowing a driver to operate a 
CMV if he or she refuses to grant consent for the query.
    As explained in Sec.  382.413, however, employers must continue to 
request information from previous employers if the employee was subject 
to drug and alcohol testing under an employer regulated by one of the 
other DOT modes. For employees subject to follow-up testing who have 
not completed their follow-up testing plan prescribed by the SAP, 
gaining employers must continue to request the follow-up plan from the 
previous employer because that information will not be reported to the 
Clearinghouse.

VII. Regulatory Analyses and Notices

Executive Order (E.O.) 12866 (Regulatory Planning and Review and DOT 
Regulatory Policies and Procedures as Supplemented by E.O. 13563 
(Improving Regulation and Regulatory Review)

    FMCSA has determined that this rulemaking is an economically 
significant regulatory action under section 3(f) of Executive Order 
(E.O.) 12866, Regulatory Planning and Review, as supplemented by E.O. 
13563 (76 FR 3821, January 21, 2011). It also is significant under 
Department of Transportation regulatory policies and procedures because 
the economic costs and benefits of the rule exceed the $100 million 
annual threshold and because of the substantial congressional and 
public interest concerning the crash risks associated with CMV drivers 
operating while under the influence of drugs or alcohol. FMCSA has 
prepared a Regulatory Impact Assessment (RIA) of the benefits and costs 
of the rule. The summary of the RIA follows.
RIA Estimates of Benefits and Costs
    In the Initial RIA, the Agency estimated the annual benefit of the 
proposed rule at $187 million and the annual cost at $186 million. The 
present value of the proposed rule was $9 million at a 7 percent 
discount rate. The Final RIA estimates the annual benefit of the final 
rule at $196 million and the annual cost at $154 million. The present 
value of the final rule is estimated at $42 million at a 7 percent 
discount rate.
    The principal factor causing the reduction in costs is the 
analytical change necessary to account for the recent program 
concerning the testing rate for annual random drug tests. Effective 
January 1, 2016, the random drug testing rate is now 25 percent of 
drivers employed by a carrier, as opposed to 50 percent. This change 
was made pursuant to 49 CFR 382.305, and is unrelated to the 
Clearinghouse or the final rule. The industry has been in operation for 
less than a year at the lower testing rate. Therefore, no drug survey 
data is available that indicates that the random positive drug test 
rate has, or will, materially diverge from the three-year average of 
positive test rates used to estimate the number of positive random drug 
tests for the forecast period. This change reduces the estimate of the 
number of annual random positive drug tests from 28,000 in the Initial 
Regulatory Impact Analysis to 10,000 in the Final Regulatory Impact 
Analysis. The principal effect of this change is a reduction in return-
to-duty costs from the $101 million estimated in the Initial Regulatory 
Impact Analysis to $56 million. The final analysis also includes 
updates of drug and alcohol survey data through 2013 and crash 
statistic. These changes had a modest impact on estimated benefits and 
estimated costs other than return-to-duty costs.
    All employers subject to the drug and alcohol testing regulations 
are required to query the Clearinghouse (1) on an annual basis to 
determine whether their employees have drug or alcohol violations that 
would prohibit them from performing safety-sensitive function and (2) 
as part of a prospective driver's pre-employment screening process.
    Given the established, sizeable success of mandatory testing 
programs on crash reduction,\7\ concrete improvements in the process of 
disseminating positive-test results and making them accessible to 
employers are expected to bring substantial benefits.
---------------------------------------------------------------------------

    \7\ Jacobson, Mireille, ``Drug Testing in the Trucking Industry: 
The Effect on Highway Safety,'' The Journal of Law and Economics, 
April 2003, Vol. 46, pp.130-156.
    Brady, Joanne E., Susan P. Baker, Charles DiMaggio, Melissa 
McCarthy, George W. Rebok, and Guohua Li, ``Effectiveness of 
Mandatory Alcohol Testing Programs in Reducing Alcohol Involvement 
in Fatal Motor Carrier Crashes,'' American Journal of Epidemiology, 
Vol. 170, No. 6, pp.775-782 (Advance Access Publication 19-August-
2009).
---------------------------------------------------------------------------

    The Agency estimates about $196 million in annual crash reduction 
benefits from the rule, which consists of $55 million from the annual 
queries and $141 million from the pre-employment queries. FMCSA 
estimates about $154 million in total annual costs, which include costs 
for:
     $29 million that is the estimated monetized value of 
employees' time to prepare annual employer queries;
     $11 million that is the estimated monetized value of 
employees' time to prepare pre-employment queries;

[[Page 87718]]

     $3 million for employers to designate service agents, and 
$1 million for SAPs to report initiation of the return-to-duty Initial 
Assessment;
     $5 million incurred by various reporting entities to 
register with the Clearinghouse, verify authorization, and become 
familiar with the rule, plus an additional $700,000 for these entities 
to report positive tests;
     $35 million of fees and consent and verification costs 
consisting of $24 million in Clearinghouse access fees incurred by 
employers for pre-employment queries, limited annual queries and full 
annual queries, plus $11 million of the monetized value of drivers' 
time to provide consents to employers and verification to FMCSA to 
allow employers access to drivers' records.;
     $2.2 million for development of the Clearinghouse and 
management of records;
     $56 million incurred by drivers to go through the return-
to-duty process, including $7 million of opportunity costs incurred by 
drivers for those hours in which they are in substance abuse education 
and treatment programs; and
     $11.5 million of opportunity costs incurred by employers 
due to lost on-duty hours of drivers suspended from safety-sensitive 
functions until successful completion of the return-duty-process.
    The annual net benefit of the rule is $42 million. The 10-year 
projection of net benefits is $316 million when discounted at 7 percent 
and $369 million when discounted at 3 percent. Estimated benefits 
include only those associated with reductions in CMV crashes.
    FMCSA could not precisely quantify improved health, quality-of-life 
improvements, and increased life expectancy for CMV drivers. The Agency 
believes these non-quantified benefits are significant, and, if they 
were included in the benefits estimates, would clearly result in net 
benefits in excess of the estimated $38 million annual benefit. The net 
benefit of the final rule is summarized in the table below.

                               Total Net Benefit Projection Over a 10-Year Period
----------------------------------------------------------------------------------------------------------------
                         Total                                                   10-year            10-year
--------------------------------------------------------       Annual      -------------------------------------
                     Discount rate                                                  7%                 3%
----------------------------------------------------------------------------------------------------------------
Total Benefits.........................................       $196,000,000     $1,472,985,521     $1,722,077,349
Total Costs............................................        154,000,000     1,157,345,7665      1,353,060,774
Total Net Benefits.....................................         42,000,000       315,639,0754        369,016,575
----------------------------------------------------------------------------------------------------------------

Benefit Analysis
    The benefits of the rule derive from reductions in crashes due to 
the additional information on employee-failed and -refused drug and 
alcohol tests disseminated through the annual and pre-employment 
queries. The rationale is that drivers who fail or refuse drug and 
alcohol tests are assumed to be more crash-prone than drivers who take 
and pass these tests. Further, queries of the Clearinghouse provide the 
information on positive tests that prevents these identified drivers 
from operating until they successfully complete the return-to-duty 
process. Given this, the benefits of the rule are the reduction in 
crashes by drivers kept off the road by queries of the Clearinghouse. 
The Clearinghouse makes available information that employers would not 
otherwise obtain or be able to act on.
    A major study on the effectiveness of mandatory alcohol-testing 
programs in reducing alcohol involvement in fatal motor carrier crashes 
was published in 2009.\8\ The research analyzed data \9\ on about 
69,000 motor carrier drivers (and about 83,000 non-motor carrier 
drivers) involved in about 66,000 fatal multi-vehicle crashes over the 
25 years from 1982 through 2006. Given that mandatory alcohol testing 
programs for motor carrier drivers began in 1995, this provides 13 
years of data before the program was implemented and 12 years of data 
after implementation, which allows for a robust examination of the 
effectiveness of the program. The authors also controlled for age, 
gender, recent-past driving-while intoxicated (DWI) convictions, 
whether or not the driver survived, and other characteristics. These 
controls allowed for the specific isolation of whether (1995-2006) or 
not (1982-1994) the existence of a mandatory alcohol-testing program 
affected whether or not the fatal crash involved alcohol.
---------------------------------------------------------------------------

    \8\ Brady, JE, Baker SP, DiMaggio C, McCarthy ML, Rebok GW, Li 
G, ``Effectiveness of Mandatory Alcohol Testing Programs in Reducing 
Alcohol Involvement in Fatal Motor Carrier Crashes.'' American 
Journal of Epidemiology. 2009; 170(6): 775-783.
    \9\ From the Fatality Analysis Reporting System (FARS).
---------------------------------------------------------------------------

    The authors performed multivariate logistic-regression analyses 
that estimated the effects of the above-listed factors on whether or 
not alcohol was involved in the fatal crash. Whether or not alcohol was 
involved in the crash was defined by a blood-alcohol-level (BAC) 
greater than or equal to 0.01 grams per deciliter (g/DL) for the driver 
involved in the fatal crash. With the controls for driver age, gender, 
history of driving while intoxicated, and survival status, 
``implementation of the mandatory alcohol testing programs was found to 
be associated with a 23 percent reduced risk of alcohol involvement in 
fatal crashes by motor-carrier drivers.'' \10\ The authors concluded 
that the ``results from this study indicate that mandatory alcohol-
testing programs may have contributed to a significant reduction in 
alcohol involvement in fatal motor carrier crashes.'' \11\ Given the 
authors' estimate that the program reduces the risk by 23 percent, the 
Agency applies this percentage reduction to fatal crashes involving 
drivers for whom post-crash alcohol tests are positive.
---------------------------------------------------------------------------

    \10\ Brady, et al., page 775.
    \11\ Ibid.
---------------------------------------------------------------------------

    A major study on the effectiveness of drug-testing programs in 
reducing fatal motor carrier crashes was published in 2003.\12\ The 
research analyzed data \13\ from all States (except Hawaii) for the 16 
years from 1983 through 1998, generating 784 annual observations of 
fatal crashes (784 years = 49 States x 16 years per State). Federal 
drug-testing legislation passed in 1990, and 13 states passed drug-
testing legislation between 1987-89,\14\ so this provides many years of 
data both before and after the program implementation, allowing for a 
robust analysis of the effectiveness of

[[Page 87719]]

the drug-testing program. The authors controlled for mandatory seat 
belt laws, speed-limit laws, the unemployment rate, miles driven and 
other factors. These controls allowed for the specific isolation of 
whether the fact that a State had standing drug-testing legislation or 
not (all States did after 1990) affected the number of traffic 
fatalities in the State.
---------------------------------------------------------------------------

    \12\ Jacobson, Mireille, ``Drug Testing in the Trucking 
Industry: The Effect on Highway Safety,'' The Journal of Law and 
Economics, April 2003, Vol. 46, pp.130-156.
    \13\ Data is from the Fatality Analysis Reporting System (FARS).
    \14\ Connecticut, Iowa, Louisiana, Minnesota, Montana, Rhode 
Island, and Vermont in 1987, Utah, Nebraska, Kansas, Tennessee in 
1988, and Florida and Maine in 1989.
---------------------------------------------------------------------------

    The authors employed a negative binomial model that estimated the 
effects of the above-listed factors on the number of fatalities in a 
given State in a given year. With controls for seat-belt laws, speed-
limit laws, and other factors, drug-testing legislation is estimated to 
have led to about a 9-10 percent reduction in truck-accident 
fatalities.\15\ Given this estimation, the Agency applies this 
percentage reduction to fatal crashes involving drivers testing 
positive for drugs.
---------------------------------------------------------------------------

    \15\ Jacobson, M., p. 131.
---------------------------------------------------------------------------

    The current drug-testing program is estimated to generate $152 
million in annual crash-reduction benefits from 29,590 annual positive 
tests, which averages to approximately $5,100 per positive drug test 
($152 million/29,590 positive tests, rounded to the nearest hundred). 
The mandatory annual query in the final rule would result in 6,100 
instances of employer alerts to positive drug tests of their drivers 
that current employers would not otherwise have known about.\16\ A 
requirement that disseminates additional information on 6,100 other 
positive testing drivers can be estimated to generate the same 
proportion of benefits that the 29,590 from the current program 
generates. If 29,950 positive tests and consequent alerts generate $152 
million in benefits, then 6,100 additional alerts would generate $31 
million of benefits (($152 million/29,520) = ($31.1 million/6,100), 
rounded to the nearest million).
---------------------------------------------------------------------------

    \16\ The Agency estimates that 6,100 drivers with multiple 
employers are job-hoppers that have multiple employers as defined in 
49 CFR 391.63 and 49 CFR 391.65. That is, 30 percent of the sum of 
positive random survey tests (4,500), reasonable suspicion tests 
(405) and pre-employment tests (14,440) [6100 = ((4,500 + 405 + 
14,440) x 30 percent).].
---------------------------------------------------------------------------

    The current alcohol testing program is estimated to generate $95 
million in annual crash-reduction benefits from 3,135 annual positive 
alcohol tests, which averages to approximately $30,300 per positive 
alcohol test ($95 million/3,135 positive tests, rounded to nearest 
hundred). The mandatory annual query in the final rule would result in 
800 instances of employer alerts to positive tests of their drivers 
that current employers would not otherwise have known about. A 
requirement that disseminates additional information on 800 other 
positive testing drivers can be estimated to generate the same 
proportion of benefits that the 3,135 from the current program 
generates. If 3,135 positive tests and consequent alerts generate $95 
million in benefits, then 800 additional alerts would generate about 
$24 million of benefits (($95 million/3,135) = ($24.2 million/800), 
rounded to the nearest million).
    The annual drug and alcohol queries required by the rule are 
estimated to generate $55 million in benefits. Annual drug testing is 
estimated to produce benefits totaling $31 million. Annual alcohol 
testing is estimated to produce benefits totaling $24 million. The 
mandatory pre-employment query required by the final rule results in 
15,100 instances of employer alerts to positive drug tests that 
prospective employers would not otherwise have known about. A 
requirement that disseminates additional information on 15,100 other 
positive drug testing drivers can be estimated to generate the same 
proportion of benefits that the 29,590 from the current program 
generates. If 29,590 positive tests and consequent alerts generate $152 
million in benefits, then 15,100 additional alerts would generate $77 
million in benefits (($152 million/29,590) = ($77.0 million/15,100)), 
rounded to the nearest million.
    The mandatory pre-employment query results in 2,100 instances where 
employers are alerted to positive alcohol tests of their drivers. 
Prospective employers of these drivers would not otherwise have known 
about these test results, in the absence of this rule. A requirement 
that disseminates additional information on 2,100 other positive 
testing drivers can be estimated to generate the same proportion of 
benefits that the 3,135 from the current program generates. If 3,135 
positive tests and consequent alerts generate $95 million in benefits, 
then 2,100 additional alerts would generate $64 million in benefits 
(($95 million/3,135) = ($63.6 million/2,100), rounded to the nearest 
million).
    With annual benefits to the drug-testing side of the pre-employment 
queries estimated at $77 million and the alcohol-testing side at $64 
million, total annual benefits realized from pre-employment queries are 
estimated at $141 million ($77 million + $64 million).
    Given the $55 million in annual benefits from the information on 
positive drug and alcohol tests disseminated because of the mandatory 
annual queries ($31 million drug and $24 million alcohol) and the $141 
million in annual benefits from the information on positive tests 
disseminated because of the mandatory pre-employment queries ($77 
million drug and $64 million alcohol), the total annual benefits of 
rule are $196 million annually. The table below presents these benefit 
totals.

                                        Total Annual Benefits of the Rule
----------------------------------------------------------------------------------------------------------------
                        Queries                                 Drug             Alcohol             Total
----------------------------------------------------------------------------------------------------------------
Annual.................................................        $31,000,000        $24,000,000        $55,000,000
Pre-Employment.........................................         77,000,000         64,000,000        141,000,000
                                                        --------------------------------------------------------
    Total..............................................        108,000,000         88,000,000        196,000,000
----------------------------------------------------------------------------------------------------------------

    Based on the annual benefits of $196 million, the 10-year benefit 
projection is $1.472 billion when discounted at 7 percent and $1,722 
billion when discounted at 3 percent.
    By reducing drug and alcohol abuse by drivers, this rule could also 
lead to improved health, quality-of-life improvements, and increased 
life expectancy for drivers beyond those associated with reductions in 
vehicle crashes.
Cost Analysis
    FMCSA estimates that the total annual cost of this action comes in 
at $154 million, which can be separated into several categories. The 
rule defines a number of entities with specific roles related to 
reporting to, or making queries of, the Clearinghouse. Therefore, the 
annual costs of the rule are organized by categories consistent with 
the role of each entity.

[[Page 87720]]

     $29 million that is the estimated monetized value of 
employees' time to prepare annual employer queries;
     $11 million that is the estimated monetized value of 
employees' time to prepare pre-employment queries;
     $3 million for employers to designate service agents, and 
$1 million for SAPs to report initiation of the return-to-duty Initial 
Assessment;
     $5 million incurred by various reporting entities to 
register with the Clearinghouse, verify authorization, and become 
familiar with the rule, plus an additional $700,000 for these entities 
to report positive tests;
     $35 million of fees and consent and verification costs 
consisting of $24 million in Clearinghouse access fees incurred by 
employers for pre-employment queries, limited annual queries and full 
annual queries, plus $11 million of the monetized value of drivers' 
time to provide consents to employers and verification to FMCSA to 
allow employers access to drivers' records.;
     $2.2 million for development of the Clearinghouse and 
management of records;
     $56 million incurred by drivers to go through the return-
to-duty process, including $7 million of opportunity cost associates 
with the hours spent in substance abuse education and treatment 
programs in lieu of hours that could be spent in non-safety-sensitive 
in positions; and
     $11 million of opportunity costs incurred by employers due 
to lost on-duty hours associated with drivers suspended from safety-
sensitive functions until successful completion of the return-duty-
process.
    Annual costs by cost category are summarized in the table below.

                                  Summary of the Total Annual Costs of the Rule
----------------------------------------------------------------------------------------------------------------
                 Cost category                                      Entity                        Annual cost
----------------------------------------------------------------------------------------------------------------
Annual Queries.................................  Employers...................................        $29,000,000
Pre-Employment Queries.........................  Employers...................................         11,000,000
Designate Service Agents/Report Driver Info....  Employers...................................          4,000,000
Report Positive Tests..........................  Various.....................................            700,000
Register, Rule Familiarize, Verify               Various.....................................          5,000,000
 Authorization.
Access Fees to Employers and Drivers' Cost to    Employers/Drivers...........................         35,000,000
 Provide Consent and Verification to FMCSA.
Clearinghouse IT Costs.........................  FMCSA.......................................         2.2000,000
Return-to-Duty Process.........................  Drivers.....................................         56,000,000
Employers Opportunity Cost Due to Return-to-     Employer....................................         11,490,000
 Duty.
New-CDL and CDL-Renewal Queries................  SDLAs.......................................                  0
                                                ----------------------------------------------------------------
    Grand Total................................  ............................................        154,000,000
----------------------------------------------------------------------------------------------------------------

    Based on the annual cost of $154 million, the 10-year cost 
projection is $1,157 billion when discounted at 7 percent and $1.353 
billion when discounted at 3 percent.

Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 94 Stat. 
1164 (codified at 5 U.S.C. 601)) requires Federal agencies to ``. . . 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation.'' The Act requires Federal agencies to consider 
the effects of the regulatory action on small business and other small 
entities and to minimize any significant economic impact. The term 
``small entities'' comprises small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields and governmental jurisdictions with 
populations of less than 50,000. Accordingly, DOT policy requires an 
analysis of the impact of all regulations (or proposals) on small 
entities, and mandates that agencies shall strive to lessen any adverse 
effects on these businesses.
    A Final Regulatory Flexibility Analysis (RFA) must address the 
following topics:
    (1) A statement of the reasons why action by the Agency is being 
considered;
    FMCSA is issuing this final rule pursuant to a statutory mandate 
and recommendations of the National Transportation Safety Board (NTSB) 
and the General Accountability Office (GAO).
    Section 32402 of the Moving Ahead for Progress in the 21st Century 
Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405), codified at 49 U.S.C. 
31306a, directs the Secretary of Transportation (Secretary) to 
establish a national clearinghouse containing commercial motor vehicle 
operators' violations of FMCSA's drug and alcohol testing program. In 
addition, FMCSA has general authority to promulgate safety standards, 
including those governing drivers' use of drugs or alcohol while 
operating a CMV. The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, 
Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act), as amended, 
provides authority to regulate drivers, motor carriers, and vehicle 
equipment and requires the Secretary to prescribe minimum safety 
standards for CMVs. FMCSA has been delegated authority under 49 CFR 
1.87(e) and (f) to carry out the functions vested in the Secretary by 
49 U.S.C. chapter 313 and 49 U.S.C. chapter 311, subchapters I and III, 
relating to CMV programs and safety regulation.
    The NTSB recommendation arose from its investigation of 1999 bus 
crash in New Orleans resulted in 22 passenger fatalities. The driver of 
the motor-coach had failed pre-employment drug testing when applying 
for previous positions. He had also failed to disclose on his 
employment application that a previous employer had fired him after he 
tested positive for a controlled substance. Therefore, his employer at 
the time of the crash was unaware of the driver's history of positive 
tests because of his failure to provide a complete employment history. 
Without that history, his employer was unable to contact prior 
employers to obtain his drug and alcohol test history.\17\
---------------------------------------------------------------------------

    \17\ ``Motor-coach Run-off-the-Road in New Orleans, Louisiana-
May 9, 1999,'' National Transportation Safety Board, HAR 01/01, 
August 28, 2001, p. 66.
---------------------------------------------------------------------------

    The NTSB made recommendations to the Agency pertaining to the 
reporting of CMV driver drug and alcohol testing results. Specifically, 
the NTSB recommended that FMCSA ``develop a system that records all 
positive drug and

[[Page 87721]]

alcohol test results and refusal determinations that are conducted 
under the DOT testing requirements, require prospective employers to 
query the system before making a hiring decision, and require 
certifying authorities to query the system before making a 
certification decision.'' \18\ This final rule addresses the NTSB's 
recommendation.
---------------------------------------------------------------------------

    \18\ Ibid., p. 74.
---------------------------------------------------------------------------

    The GAO issued two reports discussing its observations of drivers 
``job-hopping'' under FMCSA's current regulations. When CDL holders 
fail, or refuse to submit to, a drug or alcohol test, some quit that 
job and--after a brief delay to ensure that drugs or alcohol are no 
longer detectable--pass the pre-employment test at another carrier and 
resume driving without having a completed the return-to-duty process. 
Obviously, job-hopping defeats the purpose of the drug and alcohol 
testing program. The GAO identified and verified 43 cases (based on 
insider information supplied by a third party to a Congressman).\19\ 
The GAO recommended that Congress provide FMCSA the authority to 
establish a national database for reporting positive test results and 
that FMCSA undertake this rulemaking to create a national database of 
positive and refusal-to-test drug and alcohol test results to prevent 
CDL holders from job-hopping.\20\
---------------------------------------------------------------------------

    \19\ Government Accountability Office, ``Examples of Job-hopping 
by Commercial Drivers after Failing Drug Tests,'' GAO 08-829R, 
(Washington, DC, June 30, 2008, p. 3.
    \20\ Government Accountability Office, ``Motor Carrier Safety: 
Improvements to Drug Testing Programs Could Better Identify Illegal 
Drug Users and Keep Them off the Road,'' GAO-08-600 (Washington, DC: 
May 15, 2008), pp. 44-45.
---------------------------------------------------------------------------

    (2) A statement of the significant issues raised by the public 
comments in response to the initial RFA, a statement of the assessment 
of the agency of such issues, and a statement of any changes made in 
the proposed rule as a result of such comments;
    In response to the NPRM and Initial RFA, public comments were 
submitted by 165 individuals including national trucking and motor 
coach industry associations, regional trucking associations, trade 
unions, SDLA's and the NTSB.\21\ There were no comments specific to the 
Initial RFA.
---------------------------------------------------------------------------

    \21\ See Regulation.gov at http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=FMCSA-2011-0031;dct=O%252BPS.
---------------------------------------------------------------------------

    The final rule revises 49 CFR part 382, Controlled Substances and 
Alcohol Use and Testing, to establish a database, identified as the 
``Commercial Driver's License Drug and Alcohol Clearinghouse,'' for 
reporting of drug and alcohol violations. Upon implementation, the 
final rule also requires employers to query the Clearinghouse for drug 
and alcohol test result information on employees and prospective 
employees. This rule is intended to increase compliance with FMCSA's 
drug and alcohol testing program.
    (3) The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration in response 
to the proposed rule, and a detailed statement of any change made to 
the proposed rule in the final rule as a result of the comments;
    The Chief Counsel for Advocacy of the Small Business Administration 
(SBA) did not submit comments in response to the NPRM.
    (4) Description of and an estimate of the number of small entities 
to which the rule will apply or an explanation of why no such estimate 
is available;
    Because FMCSA does not have direct revenue figures for all 
carriers, power units serve as a proxy to determine the carrier size 
that will qualify as a small business given the SBA's revenue 
threshold. In order to produce this estimate, it is necessary to 
determine the average revenue generated by a power unit.
    With regard to truck power units, the Agency has estimated that a 
power unit produces about $189,000 in revenue annually (in 2014 
dollars).\22\ According to the SBA, motor carriers with annual revenue 
of $27.5 million \23\ are considered small businesses.\24\ This equates 
to 146 power units (145.503 = $27,500,000/$189,000). Thus, FMCSA 
considers motor carriers of property with 146 PUs or fewer to be small 
businesses for purposes of this analysis. The Agency then looked at the 
number and percentage of property carriers with recent activity that 
will fall under that definition (of having 146 power units or fewer). 
The results show that over 99 percent of all interstate property 
carriers with recent activity have 146 power units or fewer.
---------------------------------------------------------------------------

    \22\ ``The 2000 TTS Blue Book of Trucking Companies,'' number 
adjusted to 2014 dollars for inflation. $172,000 estimate in 2008 
indexed for inflation to 2014 dollars: (236.736/215.303) x $172,000 
= $189,000, rounded to nearest thousand) using the annual CPI. See 
http://www.bls.gov/data/inflation_calculator.htm. Accessed December 
22, 2015.
    \23\ Subsector 484 on page 26 of SBA guidelines (July 14, 2014) 
See http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf. 
Accessed December 22, 2015.
    \24\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
(NAIC) System codes, effective August 22, 2008. See NAIC subsector 
484, Truck Transportation.
---------------------------------------------------------------------------

    This amounts to 515,000 carriers (514,800 = 99 percent x 520,000 
active motor carriers, rounded to the nearest thousand). Therefore, an 
overwhelming majority of interstate carriers of property are small 
entities.
    (5) A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record;
    The final rule requires additional reporting, recordkeeping and 
compliance requirements beyond what is required by FMCSA's current drug 
and alcohol testing regulations. The entities required to report to, or 
make queries of, the Clearinghouse are employers, MROs, C/TPAs and 
SAPs.
    There are an estimated 58,500 annual positive drug and alcohol 
tests consisting of 52,000 positive drug tests and 6,500 positive 
alcohol tests at full participation (including refusals). Each positive 
drug test will be reported to the Clearinghouse by an MRO. Each 
positive alcohol test will be reported by an employer or a C/TPA. Each 
driver's subsequent return-to-duty process for positive test results 
and test refusals will be reported by an SAP. Ninety-nine percent of 
motor carriers, MROs, C/TPAs, and SAPs are most likely small entities. 
With regard to SAPs submitting driver information, FMCSA estimates that 
drivers, bookkeepers, audit clerks accounting clerks, and occupational 
health and safety specialists, will perform reporting functions under 
the final rule.
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected;
    The Agency did not identify any significant alternatives to the 
rule that could lessen the burden on small entities without 
compromising its goals or the Agency's statutory mandate to implement 
the Clearinghouse. Because small businesses are such a large part of 
the demographic the Agency regulates, providing alternatives to small 
business to permit noncompliance with FMCSA

[[Page 87722]]

regulations is neither feasible nor consistent with sound public 
policy.
    (7) A description of the steps taken by the covered agency to 
minimize any additional cost of credit for small entities.
    FMCSA is not a covered agency as defined in 5 U.S.C. 609(d)(2) of 
the Regulatory Flexibility Act. Therefore, it is not required to take 
steps to minimize any additional cost of credit for small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal 
agencies to assess the effect of their discretionary regulatory actions 
(2 U.S.C. 1531-1538). An assessment under UMRA is not required for 
regulations that incorporate requirements specifically set forth in law 
(2 U.S.C. 1531). Because MAP-21 mandated that DOT establish, operate, 
and maintain a clearinghouse for records related to alcohol and drug 
testing of CMV operators, an assessment was not prepared.

Federalism (E.O. 13132)

    A rule has implications for Federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. FMCSA recognized that, as a 
practical matter, this rule may have an impact on the States. 
Accordingly, by letters sent March 28, 2011, the Agency sought advice 
from the National Governors Association (NGA), National Conference of 
State Legislators (NCSL), and the AAMVA on the topic of developing a 
database that the Agency believed would increase the effectiveness of 
its drug and alcohol testing program. (Copies of the letters are 
available in the docket for this rulemaking.) FMCSA offered NGA, NCSL, 
and AAMVA officials the opportunity to meet and discuss issues of 
concern to the States. FMCSA did not receive any responses to this 
letter. Nevertheless, during the public comment period several 
commenters indicated that the Clearinghouse rule would have 
implications for Federalism under this executive order.
    At this time, section 32402 of MAP-21 preempts State and local laws 
inconsistent with the Clearinghouse. Preemption specifically applies to 
the reporting of drug and alcohol tests, refusals, and any other 
violation of FMCSA's drug and alcohol testing program. MAP-21 does not 
preempt State laws related to a driver's CDL or driving record. Each 
State must review its current requirements to determine whether they 
are compatible with this final rule.

Civil Justice Reform (E.O. 12988)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Protection of Children (E.O. 13045)

    FMCSA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. FMCSA determined that this final rule will not create an 
environmental risk to health or safety that may disproportionately 
affect children.

Taking of Private Property (E.O. 12630)

    FMCSA reviewed this action in accordance with Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights, and has determined it would not effect a 
taking of private property or otherwise have taking implications.

Privacy Impact Assessment

    FMCSA conducted a privacy impact assessment of this action as 
required by section 522(a)(5) of division H of the FY 2005 Omnibus 
Appropriations Act, Pub. L. 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set 
out as a note to 5 U.S.C. 552a]. The assessment considers any impacts 
of the final rule on the privacy of information in an identifiable form 
and related matters. FMCSA has determined that this action would impact 
the handling of personally identifiable information (PII). FMCSA has 
also determined the risks and effects the rulemaking might have on 
collecting, storing, and sharing PII and has examined and evaluated 
protections and alternative information handling processes in 
developing the rule in order to mitigate potential privacy risks. The 
Privacy Impact Assessment for the Clearinghouse is available for review 
in the docket for this rulemaking.

Intergovernmental Review (E.O. 12372)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a 
Federal agency must obtain approval from OMB for each collection of 
information it conducts, sponsors, or requires through regulations. 
FMCSA analyzed this action and preliminarily determined that its 
implementation would create a new information collection burden on CDL 
holders, motor carriers, and entities that provide services as part of 
FMCSA's mandatory alcohol and controlled substances testing process 
under 49 CFR part 382. FMCSA will seek approval of the information 
collection requirements in a new information collection entitled 
``Commercial Driver's License Drug and Alcohol Clearinghouse.''
    The collected information encompasses information that is 
generated, maintained, retained, disclosed, and provided to, or for, 
the Agency for a database that will be entitled the ``Commercial 
Driver's License Drug and Alcohol Clearinghouse'' or Clearinghouse.
    DOT currently has approval for two information collections for its 
alcohol and controlled substances testing programs: (1) The Federal 
Chain of Custody and Control Form, OMB control number 0930-0158, and 
(2) the U.S. Department of Transportation Alcohol and Controlled 
Substances Testing Program, OMB control number 2105-0529. Although the 
Clearinghouse obtains information from the forms covered by the two 
information collections, this action does not create any revisions or 
additional burden under those collections.
    This rule will create a new information collection to cover the 
requirements set forth in the amendments to 49 CFR part 382. These 
amendments will create new requirements for CDL drivers, employers of 
CDL drivers, MROs, SAPs, and C/TPAs to register with the new database, 
which will be created and administered by FMCSA. Clearinghouse 
registration will be a prerequisite to both placing information in the 
database and obtaining information from the database. Access to 
information in the database will be strictly limited and controlled, 
and available only with the consent of the CDL holders about whom 
information is sought.
    Prospective employers of CDL drivers are required to query the 
Clearinghouse to determine if job applicants have controlled substance 
or alcohol testing violations that preclude them, under existing FMCSA 
regulations in part 382, from carrying out safety-sensitive functions. 
Employers will also be required to query the database once annually for 
information about drivers whom they currently employ. Employers, C/TPAs 
that perform testing and other services for carriers, MROs, and SAPs 
will place information into the database about alcohol and controlled 
substances testing violations.

[[Page 87723]]

This final rule contains procedures for correcting information in the 
database and specifies that most interactions with the database will be 
carried out using electronic media.
    The total burden to respondents for queries, designations, 
registration, familiarization, reporting, and recordkeeping to the 
Clearinghouse is estimated at about 1.86 million hours annually. The 
hours attributed to each activity are presented in the table below.

                                       Total Annual Number of Burden Hours
----------------------------------------------------------------------------------------------------------------
         Submissions             Responsible      Performed by      Instances         Minutes       Total hours
----------------------------------------------------------------------------------------------------------------
Annual Queries...............  Employer.......  Bookkeeping           5,200,000               10         867,000
                                                 Clerk.
Pre-Employment Queries.......  Employer.......  Bookkeeping           1,996,328               10         333,000
                                                 Clerk.
Designate C/TPAs.............  Employer.......  Bookkeeping             520,000               10          87,000
                                                 Clerk.
SAPs Report Driver             SAPs...........  Occupational             55,580               10           9,000
 Information Following                           Health
 Initial Assessment.                             Specialist.
Report/Notify Positive Tests.  Various........  Bookkeeping             117,000               10          20,000
                                                 Clerk.
Register/Familiarize/Verify..  Various........  Bookkeeping             793,000           20; 10         155,000
                                                 Clerk.
Driver Consent and             Drivers........  Drivers........       2,357,328               10         393,000
 Verifications.
New-CDL and CDL-Renewal        SDLAs..........  SDLAs..........               0                0               0
 Queries.
                              ----------------------------------------------------------------------------------
    Total Instances/Hours....  ...............  ...............      11,039,655   ..............       1,864,000
----------------------------------------------------------------------------------------------------------------

    FMCSA prepared an information collection request and supporting 
statement that was submitted to the Office of Management and Budget and 
that is available for viewing pursuant to a notice to be published in 
the Federal Register.

National Environmental Policy Act and Clean Air Act

    When FMCSA drafted the NPRM, the Agency prepared a draft 
environmental assessment (EA) under the National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The EA evaluated a range 
of proposed alternatives considered by FMCSA and determined that, if 
the NPRM reduces CMV crashes as estimated, there would be a small net 
benefit to the environment. The benefits include: Lives saved and 
injuries prevented from reducing CMV crashes, the reduction of fuel 
consumed and prevention of greenhouse gas and criteria pollutant 
emissions from traffic congestion caused by a CMV crash, the reduction 
of solid waste generated in CMV crashes from damaged vehicles, 
infrastructure and goods, and hazardous materials spilled during a CMV 
crash. (See section 3.2.1 of the draft EA for details.)
    However, after reviewing FMCSA's NEPA Implementing Procedures and 
Policy for Considering Environmental Impacts, Order 5610.1 (FMCSA 
Order), March 1, 2004 (69 FR 9680), FMCSA determined that this final 
rule is excluded from further environmental review and documentation 
because it falls under a categorical exclusion (CE). The CE in 
paragraph 6(r) applies to regulations implementing employer controlled 
substances and alcohol use and testing procedures. As FMCSA received no 
comments on the draft EA, and does not expect the environmental impacts 
listed above to be considered significant under NEPA, the Agency has 
prepared a statement of Categorical Exclusion Determination for this 
final rule and does not find it necessary to issue a final EA or 
prepare an Environmental Impact Statement.
    FMCSA also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and general conformity 
regulations (40 CFR part 51, subpart W, and part 93, subpart B) 
promulgated by the Environmental Protection Agency. Approval of this 
action is exempt from the CAA's general conformity requirement since it 
does not affect direct or indirect emissions of criteria pollutants.

Environmental Justice (E.O. 12898)

    FMCSA evaluated the environmental effects of this final rule in 
accordance with E.O. 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impact resulting from its promulgation. 
Environmental justice issues would be raised if there were 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations.

Energy Supply, Distribution, or Use (E.O. 13211)

    FMCSA has analyzed this rule under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. While FMCSA's analysis shows a small reduction in fuel used due to 
eliminating traffic idling caused by CMV crashes, we have determined 
that it would not be a ``significant energy action'' under that 
Executive Order because it would not be likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

Indian Tribal Governments (E.O. 13175)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through OMB, 
with an explanation of why using these standards would be inconsistent 
with applicable law or otherwise impractical. Voluntary consensus 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) are standards that are developed or adopted by 
voluntary consensus standards bodies. This rule does not use technical 
standards. Therefore, we did not consider the use of voluntary 
consensus standards.

FAST Act Waiver of Advance Notice of Proposed Rulemaking/Negotiated 
Rulemaking

    FMCSA is aware of the regulatory reform requirements imposed by the 
FAST Act concerning public participation in rulemaking (49 U.S.C.

[[Page 87724]]

31136(g)). In the Agency's judgment, these requirements, which pertain 
to certain major rules, are not applicable to this final rule. In any 
event, the Agency finds that, for the reasons stated below, publication 
of an advance notice of proposed rulemaking under 49 U.S.C. 
31136(g)(1)(A), or a negotiated rulemaking under 49 U.S.C. 
31136(g)(1)(B), is unnecessary and contrary to the public interest in 
accordance with the waiver provision in 49 U.S.C. 31136(g)(3).
    This final rule implements the MAP-21 mandate that DOT establish 
and maintain a national clearinghouse for records related to alcohol 
and controlled substances testing. The public had ample opportunity to 
comment on the Agency's February 20, 2014 NPRM proposing the 
establishment of the Clearinghouse (79 FR 9703). The Agency received 
165 comments to the 2014 NPRM and made significant changes, reflected 
in this rule, in response to the commentary. Further, the final rule is 
the product of years of study and deliberation concerning an important 
public safety issue. As previously noted, this rule implements the 
NTSB's recommendation, included in its August 2001 report on the 1999 
New Orleans bus crash resulting in multiple fatalities, that FMCSA 
establish a system to record positive DOT drug and alcohol test results 
and require prospective employers to query the system before hiring a 
driver. The rule also incorporates many of the findings and 
recommendations contained in FMCSA's March 2004 report to Congress, ``A 
Report to Congress on the Feasibility and Merits of Reporting Verified 
Positive Federal Controlled Substance Test Results to the States and 
Requiring FMCSA-Regulated Employers to Query the State Databases Before 
Hiring a Commercial Drivers License (CDL) Holder''. In addition, this 
rule implements a key recommendation of the GAO's May 2008 Report to 
Congress, ``Improvements to Drug Testing Programs Could Better Identify 
Illegal Drug Users and Keep Them off the Road'' (GAO-08-600) and 
responds to concerns identified in GAO's June 2008 report to Congress, 
``Examples of Job-hopping by Commercial Drivers after Failing Drug 
Tests'' (GAO-08-0829R). In view of the extensive record of public 
input, study and oversight that informs this final rule, any further 
public participation measures would be unnecessary. Because the Agency 
strongly believes that establishment of the Clearinghouse will improve 
highway safety, the public interest is best served by the publication 
of this rule.

List of Subjects

49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Highway safety, Motor carriers, Penalties, Safety, 
Transportation.

49 CFR Part 383

    Administrative practice and procedure, Commercial driver's license, 
Highway safety, Motor carriers.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

49 CFR Part 391

    Driver qualification, Highway safety, Motor carriers, Reporting and 
recordkeeping requirements, Safety, Transportation.

    For the reasons discussed in the preamble, the Federal Motor 
Carrier Safety Administration amends 49 CFR parts 382, 383, 384, and 
391 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

0
1. The authority citation for part 382 continues to read as follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 
32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.


0
2. Amend Sec.  382.103 by revising the introductory text of paragraph 
(a) to read as follows:


Sec.  382.103   Applicability.

    (a) This part applies to service agents and to every person and to 
all employers of such persons who operate a commercial motor vehicle in 
commerce in any State and are subject to:
* * * * *

0
3. Amend Sec.  382.107 by adding the definitions ``Commercial Driver's 
License Drug and Alcohol Clearinghouse'' and ``Negative return-to-duty 
test result'' in alphabetical order to read as follows:


Sec.  382.107   Definitions.

* * * * *
    Commercial Driver's License Drug and Alcohol Clearinghouse 
(Clearinghouse) means the FMCSA database that subpart G of this part 
requires employers and service agents to report information to and to 
query regarding drivers who are subject to the DOT controlled substance 
and alcohol testing regulations.
* * * * *
    Negative return-to-duty test result means a return-to-duty test 
with a negative drug result and/or an alcohol test with an alcohol 
concentration of less than 0.02, as described in Sec.  40.305 of this 
title.
* * * * *

0
4. Add Sec.  382.123 to read as follows:


Sec.  382.123   Driver identification.

    (a) Identification information on the Alcohol Testing Form (ATF). 
For each alcohol test performed under this part, the employer shall 
provide the driver's commercial driver's license number and State of 
issuance in Step 1, Section B of the ATF.
    (b) Identification information on the Federal Drug Testing Custody 
and Control Form (CCF). For each controlled substance test performed 
under this part, the employer shall provide the following information, 
which must be recorded as follows:
    (1) The driver's commercial driver's license number and State of 
issuance in Step 1, section C of the CCF.
    (2) The employer's name and other identifying information required 
in Step 1, section A of the ATF.

0
5. Add Sec.  382.217 to read as follows:


Sec.  382.217  Employer responsibilities.

    No employer may allow, require, permit or authorize a driver to 
operate a commercial motor vehicle during any period in which an 
employer determines that a driver is not in compliance with the return-
to-duty requirements in 49 CFR part 40, subpart O, after the occurrence 
of any of the following events:
    (a) The driver receives a positive, adulterated, or substituted 
drug test result conducted under part 40 of this title.
    (b) The driver receives an alcohol confirmation test result of 0.04 
or higher alcohol concentration conducted under part 40 of this title.
    (c) The driver refused to submit to a test for drugs or alcohol 
required under this part.
    (d) The driver used alcohol prior to a post-accident alcohol test 
in violation of Sec.  382.209.
    (e) An employer has actual knowledge, as defined at Sec.  382.107, 
that a driver has:
    (1) Used alcohol while performing safety-sensitive functions in 
violation of Sec.  382.205;
    (2) Used alcohol within four hours of performing safety-sensitive 
functions in violation of Sec.  382.207; or

[[Page 87725]]

    (3) Used a controlled substance.

0
6. Amend Sec.  382.401 by revising paragraph (b)(1)(vi) to read as 
follows:


Sec.  382.401   Retention of records.

* * * * *
    (b) * * *
    (1) * * *
    (vi) Records related to the administration of the alcohol and 
controlled substances testing program, including records of all driver 
violations, and
* * * * *

0
7. Amend Sec.  382.405 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  382.405  Access to facilities and records.

* * * * *
    (d) Each employer, and each service agent who maintains records for 
an employer, must make available copies of all results for DOT alcohol 
and/or controlled substances testing conducted by the employer under 
this part and any other information pertaining to the employer's 
alcohol misuse and/or controlled substances use prevention program when 
requested by the Secretary of Transportation, any DOT agency, or any 
State or local officials with regulatory authority over the employer or 
any of its drivers.
    (e) When requested by the National Transportation Safety Board as a 
part of a crash investigation:
    (1) Employers must disclose information related to the employer's 
administration of a post-accident alcohol and/or a controlled 
substances test administered following the crash under investigation; 
and
    (2) FMCSA will provide access to information in the Clearinghouse 
concerning drivers who are involved with the crash under investigation.
* * * * *

0
8. Amend Sec.  382.409 by revising the section heading and paragraph 
(c) to read as follows:


Sec.  382.409  Medical review officer or consortium/third party 
administrator record retention for controlled substances.

* * * * *
    (c) No person may obtain the individual controlled substances test 
results retained by a medical review officer (MRO as defined in Sec.  
40.3 of this title) or a consortium/third party administrator (C/TPA as 
defined in Sec.  382.107), and no MRO or C/TPA may release the 
individual controlled substances test results of any driver to any 
person, without first obtaining a specific, written authorization from 
the tested driver. Nothing in this paragraph (c) shall prohibit a MRO 
or a C/TPA from releasing to the employer, the Clearinghouse, or to the 
Secretary of Transportation, any DOT agency, or any State or local 
officials with regulatory authority over the controlled substances and 
alcohol testing program under this part, the information delineated in 
part 40, subpart G, of this title.

0
9. Revise Sec.  382.413 to read as follows:


Sec.  382.413  Inquiries for alcohol and controlled substances 
information from previous employers.

    (a) Employers must request alcohol and controlled substances 
information from previous employers in accordance with the requirements 
of Sec.  40.25 of this title, except that the employer must request 
information from all DOT-regulated employers that employed the driver 
within the previous 3 years and the scope of the information requested 
must date back 3 years.
    (b) As of January 6, 2023, employers must use the Drug and Alcohol 
Clearinghouse in accordance with Sec.  382.701(a) to comply with the 
requirements of Sec.  40.25 of this title with respect to FMCSA-
regulated employers. Exception: When an employee who is subject to 
follow-up testing has not successfully completed all follow-up tests, 
employers must request the employee's follow-up testing plan directly 
from the previous employer in accordance with Sec.  40.25(b)(5) of this 
title.
    (c) If an applicant was subject to an alcohol and controlled 
substance testing program under the requirements of a DOT Agency other 
than FMCSA, the employer must request the alcohol and controlled 
substances information required under this section and Sec.  40.25 of 
this title directly from those employers regulated by a DOT Agency 
other than FMCSA.

0
10. Add Sec.  382.415 to read as follows:


Sec.  382.415  Notification to employers of a controlled substances or 
alcohol testing program violation.

    Each person holding a commercial driver's license and subject to 
the DOT controlled substances and alcohol testing requirements in this 
part who has violated the alcohol and controlled substances 
prohibitions under part 40 of this title or this part without complying 
with the requirements of part 40, subpart O, must notify in writing all 
current employers of such violation(s). The driver is not required to 
provide notification to the employer that administered the test or 
documented the circumstances that gave rise to the violation. The 
notification must be made before the end of the business day following 
the day the employee received notice of the violation, or prior to 
performing any safety-sensitive function, whichever comes first.

0
11. Amend Sec.  382.601 by:
0
a. Removing the period at the end of paragraph (b)(11) and adding ``; 
and'' in its place; and
0
b. Adding paragraph (b)(12).
    The addition reads as follows:


Sec.  382.601  Employer obligation to promulgate a policy on the misuse 
of alcohol and use of controlled substances.

* * * * *
    (b) * * *
    (12) The requirement that the following personal information 
collected and maintained under this part shall be reported to the 
Clearinghouse:
    (i) A verified positive, adulterated, or substituted drug test 
result;
    (ii) An alcohol confirmation test with a concentration of 0.04 or 
higher;
    (iii) A refusal to submit to any test required by subpart C of this 
part;
    (iv) An employer's report of actual knowledge, as defined at Sec.  
382.107:
    (A) On duty alcohol use pursuant to Sec.  382.205;
    (B) Pre-duty alcohol use pursuant to Sec.  382.207;
    (C) Alcohol use following an accident pursuant to Sec.  382.209; 
and
    (D) Controlled substance use pursuant to Sec.  382.213;
    (v) A substance abuse professional (SAP as defined in Sec.  40.3 of 
this title) report of the successful completion of the return-to-duty 
process;
    (vi) A negative return-to-duty test; and
    (vii) An employer's report of completion of follow-up testing.
* * * * *

0
12. Add subpart G to part 382 to read as follows:
Subpart G--Requirements and Procedures for Implementation of the 
Commercial Driver's License Drug and Alcohol Clearinghouse
Sec.
382.701 Drug and Alcohol Clearinghouse.
382.703 Driver consent to permit access to information in the 
Clearinghouse.
382.705 Reporting to the Clearinghouse.
382.707 Notice to drivers of entry, revision, removal, or release of 
information.
382.709 Drivers' access to information in the Clearinghouse.
382.711 Clearinghouse registration.
382.713 Duration, cancellation, and revocation of access.
382.715 Authorization to enter information into the Clearinghouse.
382.717 Procedures for correcting information in the database.
382.719 Availability and removal of information.
382.721 Fees.
382.723 Unauthorized access or use prohibited.

[[Page 87726]]

382.725 Access by State licensing authorities.
382.727 Penalties.

Subpart G--Requirements and Procedures for Implementation of the 
Commercial Driver's License Drug and Alcohol Clearinghouse


Sec.  382.701  Drug and Alcohol Clearinghouse.

    (a) Pre-employment query required. (1) Employers must not employ a 
driver subject to controlled substances and alcohol testing under this 
part to perform a safety-sensitive function without first conducting a 
pre-employment query of the Clearinghouse to obtain information about 
whether the driver has a verified positive, adulterated, or substituted 
controlled substances test result; has an alcohol confirmation test 
with a concentration of 0.04 or higher; has refused to submit to a test 
in violation of Sec.  382.211; or that an employer has reported actual 
knowledge, as defined at Sec.  382.107, that the driver used alcohol on 
duty in violation of Sec.  382.205, used alcohol before duty in 
violation of Sec.  382.207, used alcohol following an accident in 
violation of Sec.  382.209, or used a controlled substance, in 
violation of Sec.  382.213.
    (2) The employer must conduct a full query under this section, 
which releases information in the Clearinghouse to an employer and 
requires that the individual driver give specific consent.
    (b) Annual query required. (1) Employers must conduct a query of 
the Clearinghouse at least once per year for information for all 
employees subject to controlled substance and alcohol testing under 
this part to determine whether information exists in the Clearinghouse 
about those employees.
    (2) In lieu of a full query, as described in paragraph (a)(2) of 
this section, an employer may obtain the individual driver's consent to 
conduct a limited query to satisfy the annual query requirement in 
paragraph (b)(1) of this section. The limited query will tell the 
employer whether there is information about the individual driver in 
the Clearinghouse, but will not release that information to the 
employer. The individual driver may give consent to conduct limited 
queries that is effective for more than one year.
    (3) If the limited query shows that information exists in the 
Clearinghouse about the individual driver, the employer must conduct a 
full query, in accordance with paragraph (a)(2) of this section, within 
24 hours of conducting the limited query. If the employer fails to 
conduct a full query within 24 hours, the employer must not allow the 
driver to continue to perform any safety-sensitive function until the 
employer conducts the full query and the results confirm that the 
driver's Clearinghouse record contains no prohibitions as defined in 
paragraph (d) of this section.
    (c) Employer notification. If any information described in 
paragraph (a) of this section is entered into the Clearinghouse about a 
driver during the 30-day period immediately following an employer 
conducting a query of that driver's records, FMCSA will notify the 
employer.
    (d) Prohibition. No employer may allow a driver to perform any 
safety-sensitive function if the results of a Clearinghouse query 
demonstrate that the driver has a verified positive, adulterated, or 
substituted controlled substances test result; has an alcohol 
confirmation test with a concentration of 0.04 or higher; has refused 
to submit to a test in violation of Sec.  382.211; or that an employer 
has reported actual knowledge, as defined at Sec.  382.107, that the 
driver used alcohol on duty in violation of Sec.  382.205, used alcohol 
before duty in violation of Sec.  382.207, used alcohol following an 
accident in violation of Sec.  382.209, or used a controlled substance 
in violation of Sec.  382.213, except where a query of the 
Clearinghouse demonstrates:
    (1) That the driver has successfully completed the SAP evaluation, 
referral, and education/treatment process set forth in part 40, subpart 
O, of this title; achieves a negative return-to-duty test result; and 
completes the follow-up testing plan prescribed by the SAP.
    (2) That, if the driver has not completed all follow-up tests as 
prescribed by the SAP in accordance with Sec.  40.307 of this title and 
specified in the SAP report required by Sec.  40.311 of this title, the 
driver has completed the SAP evaluation, referral, and education/
treatment process set forth in part 40, subpart O, of this title and 
achieves a negative return-to-duty test result, and the employer 
assumes the responsibility for managing the follow-up testing process 
associated with the testing violation.
    (e) Recordkeeping required. Employers must retain for 3 years a 
record of each query and all information received in response to each 
query made under this section. As of January 6, 2023, an employer who 
maintains a valid registration fulfills this requirement.


Sec.  382.703  Driver consent to permit access to information in the 
Clearinghouse.

    (a) No employer may query the Clearinghouse to determine whether a 
record exists for any particular driver without first obtaining that 
driver's written or electronic consent. The employer conducting the 
search must retain the consent for 3 years from the date of the last 
query.
    (b) Before the employer may access information contained in the 
driver's Clearinghouse record, the driver must submit electronic 
consent through the Clearinghouse granting the employer access to the 
following specific records:
    (1) A verified positive, adulterated, or substituted controlled 
substances test result;
    (2) An alcohol confirmation test with a concentration of 0.04 or 
higher;
    (3) A refusal to submit to a test in violation of Sec.  382.211;
    (4) An employer's report of actual knowledge, as defined at Sec.  
382.107, of:
    (i) On duty alcohol use pursuant to Sec.  382.205;
    (ii) Pre-duty alcohol use pursuant to Sec.  382.207;
    (iii) Alcohol use following an accident pursuant to Sec.  382.209; 
and
    (iv) Controlled substance use pursuant to Sec.  382.213;
    (5) A SAP report of the successful completion of the return-to-duty 
process;
    (6) A negative return-to-duty test; and
    (7) An employer's report of completion of follow-up testing.
    (c) No employer may permit a driver to perform a safety-sensitive 
function if the driver refuses to grant the consent required by 
paragraphs (a) and (b) of this section.
    (d) A driver granting consent under this section must provide 
consent electronically to the Agency through the Clearinghouse prior to 
release of information to an employer in accordance with Sec.  
382.701(a)(2) or (b)(3).
    (e) A driver granting consent under this section grants consent for 
the Agency to release information to an employer in accordance with 
Sec.  382.701(c).


Sec.  382.705  Reporting to the Clearinghouse.

    (a) MROs. (1) Within 2 business days of making a determination or 
verification, MROs must report the following information about a driver 
to the Clearinghouse:
    (i) Verified positive, adulterated, or substituted controlled 
substances test results;
    (ii) Refusal-to-test determination by the MRO in accordance with 49 
CFR 40.191(a)(5), (7), and (11), (b), and (d)(2).
    (2) MROs must provide the following information for each controlled 
substances test result specified in paragraph (a)(1) of this section:

[[Page 87727]]

    (i) Reason for the test;
    (ii) Federal Drug Testing Custody and Control Form specimen ID 
number;
    (iii) Driver's name, date of birth, and CDL number and State of 
issuance;
    (iv) Employer's name, address, and USDOT number, if applicable;
    (v) Date of the test;
    (vi) Date of the verified result; and
    (vii) Test result. The test result must be one of the following:
    (A) Positive (including the controlled substance(s) identified);
    (B) Refusal to test: Adulterated;
    (C) Refusal to test: Substituted; or
    (D) Refusal to provide a sufficient specimen after the MRO makes a 
determination, in accordance with Sec.  40.193 of this title, that the 
employee does not have a medical condition that has, or with a high 
degree of probability could have, precluded the employee from providing 
a sufficient amount of urine. Under this subpart a refusal would also 
include a refusal to undergo a medical examination or evaluation to 
substantiate a qualifying medical condition.
    (3) Within 1 business day of making any change to the results 
report in accordance with paragraph (a)(1) of this section, a MRO must 
report that changed result to the Clearinghouse.
    (b) Employers. (1) Employers must report the following information 
about a driver to the Clearinghouse by the close of the third business 
day following the date on which they obtained that information:
    (i) An alcohol confirmation test result with an alcohol 
concentration of 0.04 or greater;
    (ii) A negative return-to-duty test result;
    (iii) A refusal to take an alcohol test pursuant to 49 CFR 40.261;
    (iv) A refusal to test determination made in accordance with 49 CFR 
40.191(a)(1) through (4), (a)(6), (a)(8) through (11), or (d)(1), but 
in the case of a refusal to test under (a)(11), the employer may report 
only those admissions made to the specimen collector; and
    (v) A report that the driver has successfully completed all follow-
up tests as prescribed in the SAP report in accordance with Sec. Sec.  
40.307, 40.309, and 40.311 of this title.
    (2) The information required to be reported under paragraph (b)(1) 
of this section must include, as applicable:
    (i) Reason for the test;
    (ii) Driver's name, date of birth, and CDL number and State of 
issuance;
    (iii) Employer name, address, and USDOT number;
    (iv) Date of the test;
    (v) Date the result was reported; and
    (vi) Test result. The test result must be one of the following:
    (A) Negative (only required for return-to-duty tests administered 
in accordance with Sec.  382.309);
    (B) Positive; or
    (C) Refusal to take a test.
    (3) For each report of a violation of 49 CFR 40.261(a)(1) or 
40.191(a)(1), the employer must report the following information:
    (i) Documentation, including, but not limited to, electronic mail 
or other contemporaneous record of the time and date the driver was 
notified to appear at a testing site; and the time, date and testing 
site location at which the employee was directed to appear, or an 
affidavit providing evidence of such notification;
    (ii) Documentation, including, but not limited to, electronic mail 
or other correspondence, or an affidavit, indicating the date the 
employee was terminated or resigned (if applicable);
    (iii) Documentation, including, but not limited to, electronic mail 
or other correspondence, or an affidavit, showing that the C/TPA 
reporting the violation was designated as a service agent for an 
employer who employs himself/herself as a driver pursuant to paragraph 
(b)(6) of this section when the reported refusal occurred (if 
applicable); and
    (iv) Documentation, including a certificate of service or other 
evidence, showing that the employer provided the employee with all 
documentation reported under paragraph (b)(3) of this section.
    (4) Employers must report the following violations by the close of 
the third business day following the date on which the employer obtains 
actual knowledge, as defined at Sec.  382.107, of:
    (i) On-duty alcohol use pursuant to Sec.  382.205;
    (ii) Pre-duty alcohol use pursuant to Sec.  382.207;
    (iii) Alcohol use following an accident pursuant to Sec.  382.209; 
and
    (iv) Controlled substance use pursuant to Sec.  382.213.
    (5) For each violation in paragraph (b)(4) of this section, the 
employer must report the following information:
    (i) Driver's name, date of birth, CDL number and State of issuance;
    (ii) Employer name, address, and USDOT number, if applicable;
    (iii) Date the employer obtained actual knowledge of the violation;
    (iv) Witnesses to the violation, if any, including contact 
information;
    (v) Description of the violation;
    (vi) Evidence supporting each fact alleged in the description of 
the violation required under paragraph (b)(4) of this section, which 
may include, but is not limited to, affidavits, photographs, video or 
audio recordings, employee statements (other than admissions pursuant 
to Sec.  382.121), correspondence, or other documentation; and
    (vii) A certificate of service or other evidence showing that the 
employer provided the employee with all information reported under 
paragraph (b)(4) of this section.
    (6) An employer who employs himself/herself as a driver must 
designate a C/TPA to comply with the employer requirements in paragraph 
(b) of this section related to his or her own alcohol and controlled 
substances use.
    (c) C/TPAs. Any employer may designate a C/TPA to perform the 
employer requirements in paragraph (b) of this section. Regardless of 
whether it uses a C/TPA to perform its requirements, the employer 
retains ultimate responsibility for compliance with this section. 
Exception: An employer does not retain responsibility where the C/TPA 
is designated to comply with employer requirements as described in 
paragraph (b)(6) of this section.
    (d) SAPs. (1) SAPs must report to the Clearinghouse for each driver 
who has completed the return-to-duty process in accordance with 49 CFR 
part 40, subpart O, the following information:
    (i) SAPs name, address, and telephone number;
    (ii) Driver's name, date of birth, and CDL number and State of 
issuance;
    (iii) Date of the initial substance-abuse-professional assessment; 
and
    (iv) Date the SAP determined that the driver demonstrated 
successful compliance as defined in 49 CFR part 40, subpart O, and was 
eligible for return-to-duty testing under this part.
    (2) SAP must report the information required by paragraphs 
(d)(1)(i) through (iii) of this section by the close of the business 
day following the date of the initial substance abuse assessment, and 
must report the information required by paragraph (d)(1)(iv) of this 
section by the close of the business day following the determination 
that the driver has completed the return-to-duty process.
    (e) Reporting truthfully and accurately. Every person or entity 
with access must report truthfully and accurately to the Clearinghouse 
and is expressly prohibited from reporting information he or she knows 
or should know is false or inaccurate.

[[Page 87728]]



                  Reporting Entities and Circumstances
------------------------------------------------------------------------
                                    When information will be reported to
         Reporting entity                       clearinghouse
------------------------------------------------------------------------
Prospective/Current Employer of     --An alcohol confirmation test with
 CDL Driver.                         a concentration of 0.04 or higher.
                                    --Refusal to test (alcohol) as
                                     specified in 49 CFR 40.261.
                                    --Refusal to test (drug) not
                                     requiring a determination by the
                                     MRO as specified in 49 CFR 40.191.
                                    --Actual knowledge, as defined in 49
                                     CFR 382.107, that a driver has used
                                     alcohol on duty, used alcohol
                                     within four hours of coming on
                                     duty, used alcohol prior to post-
                                     accident testing, or has used a
                                     controlled substance.
                                    --Negative return-to-duty test
                                     results (drug and alcohol testing,
                                     as applicable)
                                    --Completion of follow-up testing.
Service Agent acting on behalf of   --An alcohol confirmation test with
 Current Employer of CDL Driver.     a concentration of 0.04 or higher.
                                    --Refusal to test (alcohol) as
                                     specified in 49 CFR 40.261.
                                    --Refusal to test (drug) not
                                     requiring a determination by the
                                     MRO as specified in 49 CFR 40.191.
                                    --Actual knowledge, as defined in 49
                                     CFR 382.107, that a driver has used
                                     alcohol on duty, used alcohol
                                     within four hours of coming on
                                     duty, used alcohol prior to post-
                                     accident testing, or has used a
                                     controlled substance.
                                    --Negative return-to-duty test
                                     results (drug and alcohol testing,
                                     as applicable)
                                    --Completion of follow-up testing.
MRO...............................  --Verified positive, adulterated, or
                                     substituted drug test result.
                                    --Refusal to test (drug) requiring a
                                     determination by the MRO as
                                     specified in 49 CFR 40.191.
SAP...............................  --Identification of driver and date
                                     the initial assessment was
                                     initiated.
                                    --Successful completion of treatment
                                     and/or education and the
                                     determination of eligibility for
                                     return-to-duty testing.
------------------------------------------------------------------------

Sec.  382.707   Notice to drivers of entry, revision, removal, or 
release of information.

    (a) FMCSA must notify a driver when information concerning that 
driver has been added to, revised, or removed from the Clearinghouse.
    (b) FMCSA must notify a driver when information concerning that 
driver has been released from the Clearinghouse to an employer and 
specify the reason for the release.
    (c) Drivers will be notified by letter sent by U.S. Mail to the 
address on record with the State Driver Licensing Agency that issued 
the driver's commercial driver's license. Exception: A driver may 
provide the Clearinghouse with an alternative means or address for 
notification, including electronic mail.


 Sec.  382.709   Drivers' access to information in the Clearinghouse.

    A driver may review information in the Clearinghouse about himself 
or herself, except as otherwise restricted by law or regulation. A 
driver must register with the Clearinghouse before accessing his or her 
information.


Sec.  382.711   Clearinghouse registration.

    (a) Clearinghouse registration required. Each employer and service 
agent must register with the Clearinghouse before accessing or 
reporting information in the Clearinghouse.
    (b) Employers. (1) Employer Clearinghouse registration must 
include:
    (i) Name, address, and telephone number;
    (ii) USDOT number, except if the registrant does not have a USDOT 
Number, it may be requested to provide other information to verify 
identity; and
    (iii) Name of the person(s) the employer authorizes to report 
information to or obtain information from the Clearinghouse and any 
additional information FMCSA needs to validate his or her identity.
    (2) Employers must verify the names of the person(s) authorized 
under paragraph (b)(1)(iii) of this section annually.
    (3) Identification of the C/TPA or other service agent used to 
comply with the requirements of this part, if applicable, and 
authorization for the C/TPA to query or report information to the 
Clearinghouse. Employers must update any changes to this information 
within 10 days.
    (c) MROs and SAPs. Each MRO or SAP must provide the following to 
apply for Clearinghouse registration:
    (1) Name, address, telephone number, and any additional information 
FMCSA needs to validate the applicant's identity;
    (2) A certification that the applicant's access to the 
Clearinghouse is conditioned on his or her compliance with the 
applicable qualification and/or training requirements in 49 CFR part 
40; and
    (3) Evidence of required professional credentials to verify that 
the applicant currently meets the applicable qualification and/or 
training requirements in 49 CFR part 40.
    (d) C/TPAs and other service agents. Each consortium/third party 
administrator or other service agent must provide the following to 
apply for Clearinghouse registration:
    (1) Name, address, telephone number, and any additional information 
FMCSA needs to validate the applicant's identity; and
    (2) Name, title, and telephone number of the person(s) authorized 
to report information to and obtain information from the Clearinghouse.
    (3) Each C/TPA or other service agent must verify the names of the 
person(s) authorized under paragraph (d)(2) of this section annually.


Sec.  382.713   Duration, cancellation, and revocation of access.

    (a) Term. Clearinghouse registration is valid for 5 years, unless 
cancelled or revoked.
    (b) Cancellation. FMCSA will cancel Clearinghouse registrations for 
anyone who has not queried or reported to the Clearinghouse for 2 
years.
    (c) Revocation. FMCSA has the right to revoke the Clearinghouse 
registration of anyone who fails to comply with any of the prescribed 
rights and restrictions on access to the Clearinghouse, including but 
not limited to, submission of inaccurate or false information and 
misuse or misappropriation of access rights or protected information 
from the Clearinghouse and failure to maintain the requisite 
qualifications, certifications and/or training requirements as set 
forth in part 40 of this title.


Sec.  382.715   Authorization to enter information into the 
Clearinghouse.

    (a) C/TPAs. No C/TPA or other service agent may enter information 
into the Clearinghouse on an employer's behalf unless the employer 
designates the C/TPA or other service agent.
    (b) SAPs. A driver must designate a SAP before that SAP can enter 
any

[[Page 87729]]

information about the driver's return-to-duty process into the 
Clearinghouse.


Sec.  382.717  Procedures for correcting information in the database.

    (a) Petitions limited to inaccurately reported information. (1) 
Under this section, petitioners may challenge only the accuracy of 
information reporting, not the accuracy of test results or refusals.
    (2) Exceptions. (i) Petitioners may request that FMCSA remove from 
the Clearinghouse an employer's report of actual knowledge that the 
driver received a traffic citation for driving a commercial motor 
vehicle while under the influence of alcohol or controlled substances 
if the citation did not result in a conviction. For the purposes of 
this section, conviction has the same meaning as used in 49 CFR part 
383.
    (ii) Petitioners may request that FMCSA remove from the 
Clearinghouse an employer's report of actual knowledge (other than as 
provided for in paragraph (a)(2)(i) of this section) if that report 
does not comply with the reporting requirements in Sec.  382.705(b)(5).
    (iii) Petitioners may request that FMCSA remove from the 
Clearinghouse an employer's report of a violation under 49 CFR 
40.261(a)(1) or 40.191(a)(1) if that report does not comply with the 
reporting requirements in Sec.  382.705(b)(3).
    (b) Petition. Any driver or authorized representative of the driver 
may submit a petition to the FMCSA contesting the accuracy of 
information in the Clearinghouse. The petition must include:
    (1) The petitioner's name, address, telephone number, and CDL 
number and State of issuance;
    (2) Detailed description of the basis for the allegation that the 
information is not accurate; and
    (3) Evidence supporting the allegation that the information is not 
accurate. Failure to submit evidence is cause for dismissing the 
petition.
    (c) Submission of petition. The petitioner may submit his/her 
petition electronically through the Clearinghouse or in writing to: 
Federal Motor Carrier Safety Administration, Office of Enforcement and 
Compliance, Attention: Drug and Alcohol Program Manager, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
    (d) Notice of decision. Within 45 days of receiving a complete 
petition, FMCSA will inform the driver in writing of its decision to 
remove, retain, or correct the information in the database and provide 
the basis for the decision.
    (e) Request for expedited treatment. (1) A driver may request 
expedited treatment to correct inaccurate information in his or her 
Clearinghouse record under paragraph (a)(1) of this section if the 
inaccuracy is currently preventing him or her from performing safety-
sensitive functions, or to remove employer reports under paragraph 
(a)(2) of this section if such reports are currently preventing him or 
her from performing safety-sensitive functions. This request may be 
included in the original petition or as a separate document.
    (2) If FMCSA grants expedited treatment, it will subsequently 
inform the driver of its decision in writing within 14 days of receipt 
of a complete petition.
    (f) Administrative review. (1) A driver may request FMCSA to 
conduct an administrative review if he or she believes that a decision 
made in accordance with paragraph (d) or (e) of this section was in 
error.
    (2) The request must prominently state at the top of the document: 
``Administrative Review of Drug and Alcohol Clearinghouse Decision'' 
and the driver may submit his/her request electronically through the 
Clearinghouse or in writing to the Associate Administrator for 
Enforcement (MC-E), Federal Motor Carrier Safety Administration, 1200 
New Jersey Ave. SE., Washington, DC 20590.
    (3) The driver's request must explain the error he or she believes 
FMCSA committed and provide information and/or documents to support his 
or her argument.
    (4) FMCSA will complete its administrative review no later than 30 
days after receiving the driver's request for review. The Associate 
Administrator's decision will constitute the final Agency action.
    (g) Subsequent notification to employers. When information is 
corrected or removed in accordance with this section, or in accordance 
with 49 CFR part 10, FMCSA will notify any employer that accessed the 
incorrect information that a correction or removal was made.


Sec.  382.719   Availability and removal of information.

    (a) Driver information not available. Information about a driver's 
drug or alcohol violation will not be available to an employer 
conducting a query of the Clearinghouse after all of the following 
conditions relating to the violation are satisfied:
    (1) The SAP reports to the Clearinghouse the information required 
in Sec.  382.705(d);
    (2) The employer reports to the Clearinghouse that the driver's 
return-to-duty test results are negative;
    (3) The driver's current employer reports that the driver has 
successfully completed all follow-up tests as prescribed in the SAP 
report in accordance with Sec. Sec.  40.307, 40.309, and 40.311 of this 
title; and
    (4) Five years have passed since the date of the violation 
determination.
    (b) Driver information remains available. Information about a 
particular driver's drug or alcohol violation will remain available to 
employers conducting a query until all requirements in paragraph (a) of 
this section have been met.
    (c) Exceptions. (1) Within 2 business days of granting a request 
for removal pursuant to Sec.  382.717(a)(2)(i), FMCSA will remove 
information from the Clearinghouse.
    (2) Information about a particular driver's drug or alcohol 
violation may be removed in accordance with Sec.  382.717(a)(2)(ii) and 
(iii) or in accordance with 49 CFR part 10.
    (d) Driver information remains available. Nothing in this part 
shall prevent FMCSA from using information removed under this section 
for research, auditing, or enforcement purposes.


Sec.  382.721   Fees.

    FMCSA may collect a reasonable fee from entities required to query 
the Clearinghouse. Exception: No driver may be required to pay a fee to 
access his or her own information in the Clearinghouse.


Sec.  382.723  Unauthorized access or use prohibited.

    (a) Except as expressly authorized in this subpart, no person or 
entity may access the Clearinghouse. No person or entity may share, 
distribute, publish, or otherwise release any information in the 
Clearinghouse except as specifically authorized by law. No person may 
report inaccurate or misleading information to the Clearinghouse.
    (b) An employer's use of information received from the 
Clearinghouse is limited to determining whether a prohibition applies 
to a driver performing a safety-sensitive function with respect to a 
commercial motor vehicle. No employer may divulge or permit any other 
person or entity to divulge any information from the Clearinghouse to 
any person or entity not directly involved in determining whether a 
prohibition applies to a driver performing a safety-sensitive function

[[Page 87730]]

with respect to a commercial motor vehicle.
    (c) Violations of this section are subject to civil and criminal 
penalties in accordance with applicable law, including those set forth 
at Sec.  382.507.
    (d) Nothing in this part shall prohibit FMCSA from accessing 
information about individual drivers in the Clearinghouse for research, 
auditing, or enforcement purposes.


Sec.  382.725  Access by State licensing authorities.

    (a) In order to determine whether a driver is qualified to operate 
a commercial motor vehicle, the chief commercial driver's licensing 
official of a State must obtain the driver's record from the 
Clearinghouse if the driver has applied for a commercial driver's 
license from that State.
    (b) By applying for a commercial driver's license, a driver is 
deemed to have consented to the release of information from the 
Clearinghouse in accordance with this section.
    (c) The chief commercial driver's licensing official's use of 
information received from the Clearinghouse is limited to determining 
an individual's qualifications to operate a commercial motor vehicle. 
No chief driver's licensing official may divulge or permit any other 
person or entity to divulge any information from the Clearinghouse to 
any person or entity not directly involved in determining an 
individual's qualifications to operate a commercial motor vehicle.
    (d) A chief commercial driver's licensing official who does not 
take appropriate safeguards to protect the privacy and confidentiality 
of information obtained under this section is subject to revocation of 
his or her right of access under this section.


Sec.  382.727  Penalties.

    An employer, employee, MRO, or service agent who violates any 
provision of this subpart shall be subject to the civil and/or criminal 
penalty provisions of 49 U.S.C. 521(b)(2)(C).

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
13. The authority citation for part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 
1012(b) of Pub. L. 107-56, 115 Stat. 272, 297; sec. 4140 of Pub. L. 
109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126 
Stat. 405, 830; sec. 7208 of Pub. L. 114-94, 129 Stat. 1312, 1593; 
and 49 CFR 1.87.


0
14. Amend Sec.  383.73 by:
0
a. Removing the word ``and'' at the end of paragraph (b)(8);
0
b. Removing the period at the end of paragraph (b)(9) and adding ``; 
and'' in its place;
0
c. Adding paragraph (b)(10);
0
d. Removing ``and:'' at the end of paragraph (c)(8) and adding a 
semicolon in its place;
0
e. Removing the period at the end of paragraph (c)(9) and adding ``; 
and'' in its place;
0
f. Adding paragraph (c)(10);
0
g. Removing the word ``and'' at the end of paragraph (d)(7);
0
h. Removing the period at the end of paragraph (d)(8) and adding ``; 
and'' in its place;
0
i. Adding paragraph (d)(9);
0
j. Removing ``and:'' at the end of paragraph (e)(6) and adding a 
semicolon in its place;
0
k. Removing the period at the end of paragraph (e)(7) and adding ``; 
and'' in its place;
0
l. Adding paragraphs (e)(8) and (f)(4).
    The additions read as follows:


Sec.  383.73   State procedures.

* * * * *
    (b) * * *
    (10) Beginning January 6, 2020, request information from the Drug 
and Alcohol Clearinghouse in accordance with Sec.  382.725 of this 
chapter.
    (c) * * *
    (10) Beginning January 6, 2020, request information from the Drug 
and Alcohol Clearinghouse in accordance with Sec.  382.725 of this 
chapter.
    (d) * * *
    (9) Beginning January 6, 2020, request information from the Drug 
and Alcohol Clearinghouse in accordance with Sec.  382.725 of this 
chapter.
    (e) * * *
    (8) Beginning January 6, 2020, request information from the Drug 
and Alcohol Clearinghouse in accordance with Sec.  382.725 of this 
chapter.
    (f) * * *
    (4) Beginning January 6, 2020, for drivers seeking issuance, 
renewal, upgrade or transfer of a non-domiciled CDL, request 
information from the Drug and Alcohol Clearinghouse in accordance with 
Sec.  382.725 of this chapter.
* * * * *

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
15. The authority citation for this part is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103 
and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; sec. 32934 of Pub. 
L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114-94, 129 
Stat. 1312, 1560; and 49 CFR 1.87.


0
16. Add Sec.  384.235 to read as follows:


Sec.  384.235  Commercial driver's license Drug and Alcohol 
Clearinghouse.

    Beginning January 6, 2020, the State must request information from 
the Clearinghouse in accordance with Sec.  383.73 of this chapter.

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE 
(LCV) DRIVER INSTRUCTORS

0
17. The authority citation for part 391 continues to read as follows:

    Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502; 
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of 
Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 
113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 
830; and 49 CFR 1.87.

0
18. Amend Sec.  391.23 by adding paragraph (e)(4) and revising 
paragraph (f) to read as follows:


Sec.  391.23   Investigation and inquiries.

* * * * *
    (e) * * *
    (4) As of January 6, 2023, employers subject to Sec.  382.701(a) of 
this chapter must use the Drug and Alcohol Clearinghouse to comply with 
the requirements of this section with respect to FMCSA-regulated 
employers.
    (i) Exceptions. (A) If an applicant who is subject to follow-up 
testing has not successfully completed all follow-up tests, the 
employer must request the applicant's follow-up testing plan directly 
from the previous employer in accordance with Sec.  40.25(b)(5) of this 
title.
    (B) If an applicant was subject to an alcohol and controlled 
substance testing program under the requirements of a DOT mode other 
than FMCSA, the employer must request alcohol and controlled substances 
information required under this section directly from those employers 
regulated by a DOT mode other than FMCSA.
    (ii) [Reserved]
    (f)(1) A prospective motor carrier employer must provide to the 
previous employer the driver's consent meeting the requirements of 
Sec.  40.321(b) of this title for the release of the information in 
paragraph (e) of this section. If the driver refuses to provide this 
consent, the prospective motor carrier employer must not permit the 
driver to operate a commercial motor vehicle for that motor carrier.
    (2) If a driver refuses to grant consent for the prospective motor 
carrier

[[Page 87731]]

employer to query the Drug and Alcohol Clearinghouse in accordance with 
paragraph (e)(4) of this section, the prospective motor carrier 
employer must not permit the driver to operate a commercial motor 
vehicle.
* * * * *

    Issued under the authority delegated in 49 CFR 1.87 on: November 
8, 2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-27398 Filed 12-2-16; 8:45 am]
BILLING CODE 4910-EX-P