[Federal Register Volume 79, Number 34 (Thursday, February 20, 2014)]
[Proposed Rules]
[Pages 9703-9727]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03213]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 382

[Docket No. FMCSA-2010-0031]
RIN 2126-AB18


Commercial Driver's License Drug and Alcohol Clearinghouse

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

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: FMCSA proposes to establish the Commercial Driver's License 
Drug and Alcohol Clearinghouse (Clearinghouse), a database under the 
Agency's administration that will contain controlled substances (drug) 
and alcohol test result information for the holders of commercial 
driver's licenses (CDLs). The proposed rule would require FMCSA-
regulated motor carrier employers, Medical Review Officers (MROs), 
Substance Abuse Professionals (SAPs), and consortia/third party 
administrators (C/TPAs) supporting U.S. Department of Transportation 
(DOT) testing programs to report verified positive, adulterated, and 
substituted drug test results, positive alcohol test results, test 
refusals, negative return-to-duty test results, and information on 
follow-up testing. The proposed rule would also require employers to 
report actual knowledge of traffic citations for driving a commercial 
motor vehicle (CMV) while under the influence (DUI) of alcohol or 
drugs. The proposed rule would establish the terms of access to the 
database, including the conditions under which information would be 
submitted, accessed, maintained, updated, removed, and released to 
prospective employers, current employers, and other authorized 
entities. Finally, it would require laboratories that provide FMCSA-
regulated motor carrier employers with DOT drug testing services to 
report, annual, summary information about their testing activities. 
This rule is mandated by Section 32402 of the Moving Ahead for Progress 
in the 21st Century Act.

DATES: You must submit comments by April 21, 2014.

ADDRESSES: You may submit comments, identified by docket number FMCSA-
2010-0031 or RIN 2126-AB18, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m. ET, Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See 
the ``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Juan Moya,, Office of Enforcement 
and Program Delivery, 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., ET, Monday through Friday, 
except Federal holidays. If you have questions on viewing or submitting 
material to the docket, contact Barbara Hairston, Acting Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents

[[Page 9704]]

    C. Privacy Act
II. Executive Summary
III. Background
    A. Legal Basis for the Rulemaking
    B. Current Regulations
    C. Discussion of the Proposed Rule
    1. Clearinghouse for CDL Drivers' Drug and Alcohol Test Results
    2. FMCSA Oversight of Motor Carrier Implementation of Drug and 
Alcohol Testing Programs
IV. Section-by-Section Discussion of Regulatory Changes
V. Regulatory Analyses and Notices

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments, data, and related materials. All comments received 
will be posted without change to http://www.regulations.gov and will 
include any personal and/or copyrighted information you provide.

A. Submitting Comments

    You may submit your comments and material online or by fax, mail, 
or hand delivery, but please use only one of these means. FMCSA 
recommends that you include your name and a mailing address, an email 
address, or a phone number in the body of your document so that FMCSA 
can contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and 
in the search box insert the docket number ``FMCSA-2010-0031'' and 
click the search button. When the new screen appears, click on the blue 
``Comment Now!'' button on the right hand side of the page. On the new 
page, enter information required including the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. If you submit your comments by mail or 
hand delivery, submit them in an unbound format, no larger than 8\1/2\ 
by 11 inches, suitable for copying and electronic filing. If you submit 
comments by mail and would like to know that they reached the facility, 
please enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments. FMCSA may issue a final rule at any time after the close of 
the comment period.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble, To submit your comment online, go to http://www.regulations.gov and in the search box insert the docket number 
``FMCSA-2010-0031'' and click ``Search.'' Next, click ``Open Docket 
Folder'' and you will find all documents and comments related to the 
proposed rulemaking.

C. Privacy Act

    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
USDOT Privacy Act system of records notice for the DOT Federal Docket 
Management System (FDMS) in the Federal Register published on December 
29, 2010 (75 FR 82132) at http://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf.

II. Executive Summary

A. Purpose of the Clearinghouse

    CDL drivers who use drugs or alcohol while operating a CMV pose a 
significant risk to public safety. Under the current drug and alcohol 
screening program, employers do not have the tools to identify CDL 
holders who have received positive drug or alcohol test results, have 
refused a drug or alcohol test, or have otherwise violated the drug and 
alcohol testing requirements and thus, are not qualified to operate a 
CMV. Employers must rely on information provided by the driver, who 
might not disclose prior positive drug or alcohol test results, or 
refusals to test. As a result, such drivers continue to operate CMVs 
after violating the drug and alcohol regulations without completing the 
required return-to-duty process.
    This proposed rule would require employers and service agents to 
report information about current and prospective employees' drug and 
alcohol test results to a repository, the Drug and Alcohol 
Clearinghouse. It would also require employers and certain service 
agents to search the database for current and prospective employees' 
positive drug and alcohol test results, and refusals to test, as a 
condition of permitting those employees to perform safety-sensitive 
functions. This would provide FMCSA and employers the necessary tools 
to identify drivers who are prohibited from operating a CMV based on 
DOT drug and alcohol program violations and ensure that such drivers 
receive the required evaluation and treatment before performing safety-
sensitive functions.
    The Moving Ahead for Progress in the 21st Century Act (MAP-21), 
enacted on July 6, 2012,\1\ mandates that the Secretary of 
Transportation (Secretary) establish a national clearinghouse for 
controlled substance and alcohol test results of commercial motor 
vehicle operators. The FMCSA also has authority to promulgate safety 
standards under the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, 
Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act), which 
provides authority to regulate drivers, motor carriers, and vehicle 
equipment and requires the Secretary to prescribe minimum safety 
standards for CMVs.
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    \1\ Public Law 112-141, 126 Stat. 405 (July 6, 2012).
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B. Summary of Major Provisions

    The proposed rule would revise 49 CFR part 382, Controlled 
Substances and Alcohol Use and Testing to establish the Drug and 
Alcohol Clearinghouse. It would require employers and service agents to 
report information about current and prospective employees' positive 
drug and alcohol test results to the Clearinghouse. In addition, it 
would require employers to search the Clearinghouse for positive drug 
and alcohol test results, and refusals to test, on an annual basis for 
current employees and as a part of the pre-employment process for 
prospective employees. Finally, this proposal would require 
laboratories to provide FMCSA with annual summary reports on the 
testing activities of FMCSA-regulated motor carrier employers for whom 
they have provided testing services.
    Reporting positive test results and refusals to test would create a 
database employers could check to determine whether current or 
prospective employees are prohibited from operating CMVs under the DOT 
drug and alcohol screening program. This would diminish or eliminate 
the problem of a currently-employed commercial-driver's-license (CDL) 
holder testing positive for illegal drug or alcohol use with a second 
employer or another potential employer while continuing to operate 
commercial motor vehicles (CMVs) under his or her current employment 
without the current employer knowing and acting on the positive test.
    It would also diminish or eliminate the problem of a driver with 
previous positive tests seeking and obtaining work without prospective 
employers knowing and acting on that information. This could occur if a 
driver is fired for a positive test but does not inform prospective or 
future employers about the previous positive test result. This

[[Page 9705]]

could also occur if a new driver entering the workforce tests positive 
for drugs or alcohol during a pre-employment test, waits for the drugs 
to leave his/her system, then takes and passes another pre-employment 
test and gets hired without the employer having any knowledge of the 
previously failed pre-employment test.
    Currently motor carrier employers are required to implement DOT 
drug and alcohol testing programs for CDL holders and they must provide 
FMCSA with a summary of their annual drug and alcohol testing results. 
To improve employers' compliance, the proposed rule would require all 
laboratories performing DOT drug and alcohol testing for FMCSA-
regulated employers to file annual summary reports identifying the 
motor carrier employers for whom they performed testing services. The 
FMCSA would use the data provided by the laboratories to identify 
employers of CDL drivers that do not have an active drug and alcohol 
testing program.

C. Benefits and Costs

    The Agency estimates about $187 million in annual benefits from 
increased crash reduction from the rule--$53 million from the annual 
queries and $134 million from the pre-employment queries. FMCSA also 
estimates that the rule would result in $186 million in total annual 
costs, which include costs for employers to complete the annual ($28 
million) and pre-employment ($10 million) queries; employers to 
designate service agents and service agents to input information from 
drivers undergoing the return-to-duty process ($3 million); various 
entities to report positive tests and refusals ($1 million); various 
entities to register with the Clearinghouse, verify authorization, and 
become familiar with the rule ($5 million); for employers to obtain 
drivers' consent for release of their information ($35 million); for 
development of the Clearinghouse and management of records ($3 
million); and the cost for drivers to go through the return-to-duty 
process ($101 million). The estimated costs are about equal to its 
benefits: Total net benefits of the rule are just $1 million annually. 
The ten-year projection of net benefits is $8 million when discounted 
at seven percent and $9 million when discounted at three percent. 
However, 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 demonstrate the positive net benefits of this rule.

                               Total Net Benefit Projection Over a Ten-Year Period
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                           Total                                                  Ten-year          Ten-year
-----------------------------------------------------------      Annual      -----------------------------------
                       Discount rate                                                 7%                3%
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Total Benefits............................................      $187,000,000    $1,406,000,000    $1,643,000,000
    Total Costs...........................................       186,000,000     1,398,000,000     1,634,000,000
                                                           -----------------------------------------------------
        Total Net Benefits................................         1,000,000         8,000,000         9,000,000
----------------------------------------------------------------------------------------------------------------

III. Background

A. Legal Basis for the Rulemaking

    The Agency proposes to revise 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'' or ``Clearinghouse,'' for reporting of verified 
positive, adulterated, and substituted drug test results, positive 
alcohol test results, test refusals, negative return-to-duty test 
results, and information on follow-up testing. The proposed rule would 
also require employers to report actual knowledge of traffic citations 
for driving a CMV while under the influence of alcohol or drugs. Under 
the proposed rule, motor carrier employers would be required to query 
the Clearinghouse for drug and alcohol test result information on 
current and prospective employees subject to FMCSA drug and alcohol 
testing requirements. The proposed rule is intended to increase 
compliance with these testing requirements.
    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 for controlled substance and alcohol 
test results of commercial motor vehicle operators. This proposed rule 
would implement 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 (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. At a minimum, the regulations 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 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 under 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), (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 proposed rule 
would implement, in part, the Administrator's delegated authority under 
the 1984 Act to ensure that the physical condition of CMV operators is 
adequate to enable them to operate vehicles safely by increasing 
compliance with drug and alcohol testing requirements. FMCSA believes 
that this proposed rule would likely have the effect of preventing 
employers from exercising coercive influence over drivers. The proposed 
rule would also

[[Page 9706]]

exercise the broad recordkeeping and implementation authority under 
Section 211. The other subsections of Section 206(a) do not apply 
because this rulemaking would only address the physical condition of 
CMV drivers.
    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 required the Secretary 
to promulgate regulations for alcohol and drug 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 C/TPAs, who perform critical functions under 
DOT-wide drug and alcohol testing program requirements.
    In 1994, FMCSA's predecessor agency published a final rule 
addressing the OTETA and creating 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 proposed rule would incorporate 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, December 9, 
1999).

B. Current Regulations

    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 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 concerning the driver's use of alcohol or 
drugs while performing safety-sensitive functions. An employer has 
``actual knowledge'' of 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. Positive test results 
or instances of employers having actual knowledge can lead to 
termination of the driver's employment without the opportunity to 
complete the return-to-duty process.
    The Federal Motor Carrier Safety Regulations (FMCSRs) require that 
a motor carrier employer obtain information from job applicants 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 the 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 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 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 would be required to list such employer, when applying for a 
new covered position (see 49 CFR 40.25 and 391.21(b)).
    In addition to pre-employment drug testing, the background check 
process detailed above is currently the primary means by which an 
employer determines whether a job applicant is qualified to perform a 
safety-sensitive function such as operating a CMV.

C. Discussion of the Proposed Rule

1. Clearinghouse for CDL Drivers' Drug and Alcohol Test Results
    The current background check system does not provide employers with 
enough tools to accurately identify CDL holders who have received 
positive drug or alcohol test results or have otherwise violated the 
drug and alcohol testing requirements and who are, therefore, not 
qualified to operate a CMV prior to completing the return-to-duty 
process. Employers must rely on information provided by the driver, who 
might not list part-time driving jobs or a prior or prospective 
employer that has records of positive drug or alcohol tests or other 
related violations. Or, after testing positive with one prospective 
employer, the driver might wait until the substance is out of his or 
her system and apply with a different carrier. As a result, such 
drivers continue to operate CMVs after violating the drug and alcohol 
regulations without completing the required return-to-duty process.
    CDL drivers who use drugs or alcohol while operating a CMV pose a 
significant risk to public safety. In 1999, a New Orleans bus crash 
resulted in 22 passenger fatalities. The motorcoach driver's post-
accident drug test showed use of marijuana and a sedating anti-
histamine prior to going on duty. The driver had also failed pre-
employment drug testing when applying for previous positions, a fact 
not revealed or known to the current employer. The driver also failed 
to disclose on his employment

[[Page 9707]]

application a previous employer who fired him after a positive drug 
test. As a result of the investigations of the 1999 New Orleans bus 
crash, the National Transportation Safety Board (NTSB) recommended that 
FMCSA ``develop a system that records all positive drug and alcohol 
test results and refusal determinations resulting from the U.S. 
Department of Transportation (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.'' (``Highway Accident Report: 
Motorcoach Run-Off-The-Road, New Orleans, Louisiana, May 9, 1999,'' 
NTSB Report Number: HAR-01-01, NTSB, Washington, DC, page 67 (http://www.ntsb.gov/doclib/reports/2001/HAR0101.pdf.)). This rulemaking 
addresses the NTSB's recommendations.
    Two 2008 Government Accountability Office (GAO) reports \2\ also 
analyzed the issue of CMV drivers who test positive or refuse to submit 
to drug or alcohol testing for one employer and then fail to disclose 
this information to a subsequent employer. GAO identified 43 instances 
in which a CMV driver tested positive for illegal drugs, such as 
cocaine, marijuana, and amphetamines, with one employer and 
subsequently tested negative with another employer who was unaware of 
the prior positive test. In its recommendations to Congress, GAO 
proposed establishing a national database, as outlined in this 
rulemaking, as a possible solution to these ``job hopping'' scenarios.
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    \2\ See GAO-08-600 ``Improvements to Drug Testing Programs Could 
Better Identify Illegal Drug Users and Keep Them Off the Road,'' May 
15, 2008, and GAO-08-829R, ``Examples of Job Hopping by Commercial 
Drivers After Failing Drug Tests,'' June 30, 2008.
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    Through MAP-21, Congress directed FMCSA to establish this 
clearinghouse to improve compliance with DOT's drug and alcohol testing 
program, as well as enhance safety by reducing accidents and injuries 
resulting from the misuse of alcohol and drugs by CDL holders. MAP-21 
directed a number of specific requirements that FMCSA has incorporated 
into this proposed rule. For example, in accordance with the 
requirements of MAP-21, this proposed rule would require employers and 
service agents to report information about current and prospective 
employees' drug and alcohol test results to the Clearinghouse and would 
require employers and certain service agents to check current and 
prospective employees against the database. In addition, employers 
would only access data in the clearinghouse to determine whether an 
employment prohibition exists (e.g., a positive test result or a 
refusal for which an individual has not completed the return-to-duty 
requirements).
    The proposed rule would provide FMCSA and regulated employers the 
necessary tools to identify drivers who are prohibited from operating a 
CMV based on DOT drug and alcohol program violations and ensure that 
such drivers receive the required evaluation and treatment before 
continuing to perform safety-sensitive functions. It would apply to 
persons and employers of such persons who operate CMVs in commerce in 
the United States and are subject to the CDL requirements in 49 CFR 
part 383 or the equivalent CDL requirements for Canadian and Mexican 
drivers. The proposed rule would not supersede an employer's obligation 
to comply with the current requirements of parts 40 and 382.The rule 
would also affect service agents, including MROs, C/TPAs and SAPs. MROs 
are licensed physicians responsible for independently receiving and 
reviewing laboratory drug test results generated by an employer's 
testing program. Under the proposed rule, MROs would report to the 
Clearinghouse all positive, adulterated, or substituted drug test 
results and refusals to test that require an MRO determination.
    C/TPAs are consortia and third party administrators who coordinate 
testing services for regulated motor carrier employers. FMCSA 
regulations require any employer who employs only himself/herself as a 
driver to join a random test selection pool. Consortia are the entities 
that manage these pools (49 CFR 382.103(b)). Third party 
administrators, which often include consortia, are entities that 
regulated motor carrier employers contract with to implement drug and 
alcohol testing programs. Under the proposed rule, C/TPAs would be 
subject to the same reporting requirements as employers when they 
assume a regulated employer's drug and alcohol testing functions. 
Specifically, C/TPAs that are required by regulation to perform 
employer functions (e.g., for self-employed drivers) would be required 
to report positive alcohol tests, drug or alcohol test refusals, 
negative return-to-duty tests, and successful completion of all follow-
up tests. Employers may contract with C/TPAs to perform reporting 
functions, but employers, in addition to their C/TPAs, remain 
responsible for meeting the reporting requirements.
    SAPs evaluate, assess and refer drivers for education and/or 
treatment after a positive test or refusal as a part of the return-to-
duty process (49 CFR part 40, subpart O). Under the proposed rule, SAPs 
would be required to report to the Clearinghouse the date that a driver 
began and successfully completed the return to duty process specified 
in 49 CFR part 40, subpart O, indicating driver eligibility for return-
to-duty testing. The SAP would also be required to report information 
on the follow-up testing plan.
    The requirements of this rule would also affect motor carriers 
employing owner-operators. The drug and alcohol testing regulations in 
part 382 impose requirements upon employers and drivers; owner-
operators can function as both. Currently, when an owner-operator acts 
as a driver for another employer, FMCSA requires that the employer 
treat the owner-operator as if he or she were an employee for the 
purposes of the employer's DOT drug and alcohol testing program. As a 
result, the proposed rule would require motor carriers employing owner-
operators to treat those drivers as employees for purposes of querying 
and reporting to the database.
2. FMCSA Oversight of Motor Carrier Implementation of Drug and Alcohol 
Testing Programs
    FMCSA primarily monitors motor carrier compliance with DOT drug and 
alcohol test program requirements through motor carrier compliance 
reviews and new entrant safety audits. In 2010, the Agency and its 
State partners conducted new entrant audits and compliance reviews on 
approximately 50,000 motor carriers. Although FMCSA and its State 
partners have significantly increased the number of carriers that it 
reviews through enhanced new entrant rules and improved compliance 
programs, the Agency captures only a small percentage of the more than 
520,000 motor carrier employers subject to the DOT drug and alcohol 
testing requirements. As a result, many motor carrier employers that do 
not have a testing program may go undetected. Based on the Agency's 
oversight activities, some motor carrier employers are not in 
compliance with the drug and alcohol program requirements.\3\
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    \3\ FMCSA has found that eighty-six percent of new entrant audit 
failures include either not having or not properly implementing a 
drug and alcohol program. (FMCSA, Office of Enforcement)
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    Current regulations require motor carrier employers to implement 
DOT drug and alcohol testing programs for CDL holders and to provide 
FMCSA with a summary of their annual drug and alcohol testing results 
upon the

[[Page 9708]]

Agency's request (49 CFR 382.403). Every year, FMCSA randomly selects 
and requires approximately 3,000 employers to submit a summary of 
testing program results through FMCSA's Drug and Alcohol Testing 
Survey. See Drug and Alcohol Testing Survey: 2008 Results, http://www.fmcsa.dot.gov/facts-research/research-technology/report/Drug_Alcohol_Survey_2008.pdf. The survey has been largely used to 
determine appropriate random testing rates for carriers and has not 
generally been used to monitor employer compliance with testing 
requirements. To improve employers' compliance with the requirement to 
implement a drug and alcohol testing program, the proposed rule would 
require all laboratories performing DOT drug testing for FMCSA-
regulated employers to file annual summary reports identifying the 
motor carrier employers for whom they performed testing services. The 
FMCSA would use the data provided by the laboratories to identify 
employers of CDL drivers that do not have an active drug and alcohol 
testing program.

IV. Section-by-Section Discussion of Regulatory Changes

    FMCSA is proposing to amend 49 CFR part 382 in the following ways.

Section 382.103

    Some of the proposed changes to 49 CFR part 382 in today's NPRM 
affect service agents. As a result, FMCSA proposes to amend existing 
Sec.  382.103(a), ``Applicability,'' by adding an express statement 
that the rules codified in 49 CFR part 382 would apply to service 
agents.

Section 382.107

    FMCSA proposes to add a new definition, ``Commercial Driver's 
License Drug and Alcohol Clearinghouse,'' to existing Sec.  382.107. 
The definition would explain that the Clearinghouse is a drug and 
alcohol testing information database to which this rule would require 
employers and service agents to report drug and alcohol testing 
information and that the rule would require employers and certain 
service agents to query for information on current and prospective 
employees' drug and alcohol test results. FMCSA proposes to add a 
definition for ``positive alcohol test'' to eliminate any confusion as 
to the type of alcohol test that constitutes a violation of the 
Agency's drug and alcohol program. As such FMCSA proposes to add a 
definition for ``negative return to duty test result'' to clarify that 
it is a negative drug test and/or an alcohol test with an alcohol 
concentration of less than 0.02.

Section 382.123

    FMCSA proposes to add a new Sec.  382.123 that would require 
employers to provide specific information on the Alcohol Testing Form 
(ATF) and Federal Drug Testing Custody and Control Form (CCF) that 
identifies drivers by use of their CDL number and State of issuance. 
Recording CDL number and State of issuance as the primary method of 
identification serves a critical data quality function. Using CDLs 
along with State of issuance and their unique record numbers to 
identify drivers and their test information will prevent 
misidentification resulting from similar names or the use of nicknames 
or initials. This proposal would allow employers to shift from reliance 
on the use of Social Security numbers on the current ATF and CCF and to 
identify drivers by better utilizing other types of readily-available 
and reliable information. Paragraph (a) would require that the employer 
list the driver's CDL number and State of issuance in Step 1, section B 
of the ATF. Under this proposal, employers would not be permitted to 
record drivers' Social Security numbers, and the only permitted 
employee ID number would be the driver's CDL number and State of 
issuance. If the driver tests positive for alcohol in violation of 49 
CFR parts 40 and 382, the employer or consortium responsible for 
reporting this information would use the driver's CDL number and State 
of issuance to report information to the Clearinghouse. Paragraph (a) 
would also require the employer to enter its USDOT or Internal Revenue 
Service (IRS)-issued Employer Identification Number (EIN) in Step 1, 
section C of the ATF, in addition to the information requested in that 
section of the ATF (i.e., employer name, street, city, State, and zip 
code). FMCSA would use the USDOT or EIN number as an employer 
identification to avoid confusion between similarly-named employers 
that enter information in the Clearinghouse. These numbers would be 
used to identify the employer for all aspects of the part 382 
requirements, including reporting employers' drug and alcohol test 
results and the annual summary laboratory test reports that proposed 
Sec.  382.404 would require.
    Paragraph (b) would require the employer to record its USDOT number 
or EIN in Step 1, section A of the CCF. This provision would clarify 
that for FMCSA's purposes, the USDOT number or EIN fulfills the form's 
requirement for an employer ``I.D. No.'' Paragraph (b) would also 
require the employer to record the driver's CDL number and State of 
issuance in Step 1, section C of the CCF. This proposal would change 
the current requirement that permits employers to use Social Security 
numbers or employee ID numbers. Under this proposal, employers would 
not be permitted to record drivers' Social Security numbers, and the 
only permitted employee ID number would be the driver's CDL number and 
State of issuance. If the driver tests positive for drugs in violation 
of 49 CFR parts 40 and 382, the MRO responsible for reporting this 
information would use the driver's CDL number and State of issuance as 
employee identification to report information to the Clearinghouse.
    FMCSA is aware that some self-employed drivers who are not required 
to have USDOT numbers use their Social Security numbers as their EINs 
for tax purposes. Any driver who is not comfortable using his or her 
Social Security number as an EIN could pursue one of two options. 
First, he or she could obtain a USDOT number. Drivers can get more 
information about obtaining USDOT numbers at http://www.fmcsa.dot.gov/registration-licensing/registration-licensing.htm. Second, he or she 
could change his or her EIN to a number that is different from his or 
her Social Security number. Drivers can get more information about 
changing their EINs by contacting the IRS.

Section 382.217

    FMCSA proposes to add a new Sec.  382.217 that would provide that 
an employer must not allow a driver to operate a CMV if the 
Clearinghouse has a record that shows that a driver has not 
successfully completed the return-to-duty process required by 49 CFR 
40.305. This section would implement that portion of MAP-21, codified 
at 49 U.S.C. 31306a(f)(3), that requires employers to use the 
Clearinghouse to determine whether any employment prohibitions exist 
for prospective CMV drivers.

Section 382.401

    FMCSA proposes to amend existing Sec.  382.401(b)(1)(vi) to require 
employers to maintain records related to drivers' traffic citations 
that establish the employer's actual knowledge of an employee driving a 
CMV under the influence of drugs or alcohol in violation of Sec. Sec.  
382.205 and 382.213(b). This change clarifies that employers who have 
actual knowledge of these types of traffic citations must maintain a 
record of them, just as they must for other aspects of their drug and 
alcohol testing programs. As is currently

[[Page 9709]]

required of all records that must be retained under Sec.  
382.401(b)(1), these records must be maintained for a minimum of 5 
years.

Section 382.404

    FMCSA proposes to add a new Sec.  382.404 to require each 
laboratory to submit to FMCSA an annual, aggregate statistical summary 
of test results for each motor carrier employer regulated under part 
382 for which the laboratory performs DOT testing services. The reports 
would draw from the information laboratories are currently required to 
provide to employers under part 40, Appendix B, but would be limited to 
the annual number of drug tests conducted by type of test. This report 
would include all employers who are testing under the FMCSA and DOT 
requirements, and would be organized by employer's USDOT number or EIN. 
The filing date would coincide with the January filing date required 
under Sec.  40.111(a). FMCSA proposes to require laboratories to file 
this information electronically. FMCSA envisions designating a specific 
format for filing, such as a commonly-available spreadsheet that the 
affected laboratories might already be using.
    FMCSA would use this information to improve its enforcement efforts 
in identifying employers who are not in compliance with drug and 
alcohol testing requirements.
    FMCSA seeks comments on what, if any, burden this reporting 
requirement would place on laboratories. Specifically, FMCSA would like 
comments on whether laboratories could use existing data collected as a 
part of existing business practices, or whether they would have to 
establish new processes and controls to collect and aggregate this 
information. In addition, FMCSA seeks comment on what type of 
electronic format would be the easiest and least burdensome method for 
reporting this information, or whether other less burdensome cost 
effective methods could be used to similarly identify employers who are 
not in compliance with drug and alcohol testing requirements.

Section 382.405

    Section 382.405(d) currently requires employers 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. FMCSA proposes to extend these requirements to 
service agents who maintain records for an employer. This change is 
designed to make sure that the appropriate officials have access to all 
test results when employers use service agents to manage their drug and 
alcohol testing programs.
    Section 382.405(e) currently authorizes the NTSB to require 
employers of CDL drivers involved in crashes under investigation to 
produce information on an employer's administration of post-accident 
alcohol and drug tests. FMCSA proposes to amend Sec.  382.405(e) by 
adding a new paragraph authorizing 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. This change would implement 
the statutory requirement, codified at 49 U.S.C. 31306a(i), that the 
Agency establish a process for NTSB access and would provide the NTSB 
with additional tools to help it fulfill its safety mission.

Section 382.409

    FMCSA proposes to amend Sec.  382.409(c) by including the 
Clearinghouse in the list of entities to which an MRO or C/TPA is 
authorized to release a driver's drug test results. FMCSA also proposes 
to 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 382.415

    FMCSA proposes to add a new Sec.  382.415 that would require a 
driver to notify, in writing, all of his or her employers if he or she 
violates the drug and alcohol testing regulations in parts 40 or 382. 
Current regulations do not require drivers who work for more than one 
employer to report this information to their other employers. This 
change would place an affirmative obligation on drivers to report drug 
and alcohol violations to all current employers. The penalties in 
current Sec.  382.507, which include civil and criminal penalties, 
would apply to all drivers who do not comply with this section.
    Employers are reminded that, once each employer is notified that an 
employee has violated the drug and alcohol regulations, each employer 
must separately follow the return-to-duty provisions of Parts 40 and 
382 before allowing an employee to serve in a safety-sensitive 
position. This includes the requirement that each employer needs to 
implement a follow-up test plan on its own for each employee.

Section 382.601

    Current Sec.  382.601 requires employers 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. FMCSA proposes to add a 
new Sec.  382.601(b)(12), that would require employers to notify 
drivers that information about verified positive, adulterated, or 
substituted drug test results; positive alcohol test results; refusals 
to submit to any test required by subpart C of this part; employers' 
reports of actual knowledge that the driver received a traffic citation 
for driving a CMV while under the influence of alcohol or drugs; 
negative return-to-duty tests; employers' reports of completion of 
follow-up testing; and SAP reports will be reported to the 
Clearinghouse. Under this proposed requirement, employers must include 
all of this information in the educational materials they provide to 
their drivers, regardless of their internal employment policies 
regarding drivers violating drug and alcohol testing requirements. 
Employers may clarify internal employment policies pursuant to existing 
Sec.  382.601(c).

Part 382, Subpart G (Sec.  382.701 to Sec.  382.727)

    FMCSA proposes adding a new subpart G, entitled ``Requirements and 
Procedures for Implementation of the Commercial Driver's License Drug 
and Alcohol Clearinghouse,'' to part 382. Subpart G would describe 
employers' and drivers' rights and responsibilities with respect to the 
Clearinghouse, including how employers and service agents become 
authorized to submit information to the Clearinghouse and to obtain 
information from the database. It also would establish procedures for 
correcting and/or updating information in the database. New subpart G 
would implement Congress's general mandate in MAP-21 that the Agency 
develop a Clearinghouse to track CDL holders' positive drug and alcohol 
test results, and refusals to submit to drug and alcohol tests.

Section 382.701

    New Sec.  382.701 establishes employers' obligations to conduct 
pre-employment and annual queries of the database and prohibits them 
from using drivers in safety-sensitive positions when the queries 
return results showing certain violations of FMCSA's drug and alcohol 
program. The scope of the queries is covered later under proposed 
section 382.719.
    Paragraph (a) would establish an employer's obligation to conduct 
pre-

[[Page 9710]]

employment queries by prohibiting the employer from hiring drivers 
without first conducting a search of the Clearinghouse for drug and 
alcohol violations. Paragraph (a) would implement the requirement in 
MAP-21, codified at 49 U.S.C. 31306a(f)(3), that employers search the 
Clearinghouse for drug and alcohol violations prior to hiring an 
individual to drive a CMV. Paragraph (b) would establish an employer's 
obligation to conduct an annual query on all currently-employed 
drivers. Paragraph (b) would implement the requirement, codified at 49 
U.S.C. 31306a(f)(4), that employers conduct annual searches of drivers' 
drug and alcohol test result histories using the Clearinghouse. These 
requirements, which would apply to all drivers subject to the drug and 
alcohol testing regulations at part 382, are designed to make all 
current and prospective employers aware of applicants' and employees' 
reported drug and alcohol violations. Paragraph (c) would implement the 
statutory provision, codified at 49 U.S.C. 31306a(b)(3)(A), that 
requires FMCSA to notify an employer if new information about a driver 
is entered into the Clearinghouse within seven days of an employer 
conducting a query under this section.
    Paragraph (d) would allow employers to hire but would prohibit 
employers from allowing a driver to perform safety-sensitive functions 
if a query of the database shows any of the following violations of the 
drug and alcohol testing program: A verified positive, adulterated, or 
substituted drug test result; a positive alcohol test result; a refusal 
to submit to any test required by subpart C of this part; or an 
employer's report of actual knowledge that the driver received a 
traffic citation for driving a CMV while under the influence of alcohol 
or drugs. However, FMCSA does not propose to require employers and 
service agents to report all violations of subpart B.
    Under current regulations, an employer may not allow a driver to 
perform safety-sensitive functions if the employer has actual knowledge 
that the driver has used drugs or alcohol. Actual knowledge is defined 
at Sec.  382.107 to mean that an employer has actual knowledge of drug 
or alcohol use based on: Direct observation of an employee; information 
provided by the driver's previous employer(s); a traffic citation for 
driving a CMV while under the influence of drugs or alcohol; or an 
employee's admission of drug or alcohol use (except as provided in 
Sec.  382.21). As a part of this proposed rule, employers would only be 
required to report to the Clearinghouse violations based on actual 
knowledge of employees receiving a citation for operating a CMV under 
the influence of drugs or alcohol. FMCSA proposes to require only this 
one category of actual knowledge violation because a traffic citation 
provides objective documentation on which to base a report to the 
Clearinghouse. In the case of direct observation or an employee's 
admission, the employer has the obligation to remove the employee from 
performing safety-sensitive functions until he or she completes the 
return-to-duty process, but there is no requirement to report the 
observation or admission to the Clearinghouse. In the case of 
information provided by a previous employer, current rules require the 
employer to report the information to prospective employers during the 
pre-employment background check required by Sec. Sec.  40.25 and 
391.23. If the background check reveals prior drug or alcohol 
violations for which the employee has not successfully completed the 
return-to-duty process, the employer is prohibited from hiring the 
employee to perform safety-sensitive functions, such as driving.
    New Sec.  382.701(d) would also provide that, if the database 
search revealed one of these violations, an employer could nonetheless 
allow a driver to perform safety-sensitive functions if the driver 
completed the return-to-duty process in subpart O of part 40. Under 
subpart O, a driver who has completed the return-to-duty process, but 
has not completed all follow-up tests, would also be able to perform 
safety-sensitive functions provided the current employer assumes 
responsibility for managing the follow-up testing process. Finally, an 
employer may allow a driver to perform safety-sensitive functions if, 
after the time for final adjudication has expired, a traffic citation 
for driving under the influence of drugs or alcohol does not result in 
a conviction (as defined at 49 CFR 383.5). This provision does not 
permit an employer to allow a driver to perform a safety-sensitive 
function after receiving a DUI traffic citation, prior to receiving a 
final adjudication. All of the above provisions of paragraph (d) would 
implement the employment prohibitions required by MAP-21, codified at 
49 U.S.C. 31306a(f)(3) & (h)(1)(D).
    In accordance with the statutory mandate codified at 49 U.S.C. 
31306a(h)(1)(c), paragraph (e) would establish a record keeping 
requirement under which employers would be required to retain for three 
years a record of each query made under this section and the 
information received in response. However, FMCSA would also retain that 
information in the Clearinghouse for a minimum of three years for 
research and enforcement purposes. The Agency does not believe that it 
is necessary to burden employers with a redundant recordkeeping 
requirement. Accordingly, FMCSA will deem an employer to have satisfied 
this recordkeeping requirement if it conducts its query in accordance 
with a valid registration and the requirements of new subpart G.

Section 382.703

    In accordance with the requirements of 49 U.S.C. 31306a(h)(1)(A), 
new Sec.  382.703 would prohibit disclosure of information in the 
Clearinghouse without a driver's consent. Paragraph (a) would require 
an employer to obtain consent from drivers before querying the database 
to determine if there is any information in the database on that 
driver. Paragraph (b) would require the employer to obtain written 
consent from the driver for access to information in the Clearinghouse.
    These consents apply to the proposed requirement (Sec.  382.701) 
that employers conduct two types of queries: Pre-employment and annual. 
To reduce the burden on employers who would be required to conduct 
annual queries on multiple drivers at the same time, FMCSA envisions 
establishing two levels of queries. The first level, or ``full query,'' 
would grant employers or prospective employers access to the reportable 
information in a driver's record and would require the employer to 
obtain written consent from the driver for access to Clearinghouse 
information. FMCSA envisions using technology similar to that it 
currently uses in its Pre-Employer Screening Program (PSP) to verify a 
driver's identity. FMCSA would then allow the driver to designate which 
employer(s) or prospective employer(s) may view his or her record. All 
employers would be required to conduct a full query to satisfy the pre-
employment query requirement.
    The second level, or ``limited query,'' would not grant access to 
information in the Clearinghouse but would only indicate whether 
information exists in the database about a particular driver. Prior to 
conducting a limited query, an employer would have to obtain written 
consent from a driver. Employers would be required to retain this 
consent for 3 years after conducting a query and would be subject to 
audit.
    Employers would only be able to use the limited query in connection 
with annual searches on currently employed drivers. If the query 
indicates that information exists in the Clearinghouse

[[Page 9711]]

on a particular driver, then the employer would be required to conduct 
a full query, requiring the employer to obtain written consent from the 
driver to view the information in the Clearinghouse.
    FMCSA envisions that employers would require drivers to give 
blanket consent to allow employers to conduct a limited query on an 
annual basis for the duration of their employment. However, no driver 
may give blanket consent for a full query of his or her information in 
the Clearinghouse. Drivers must give specific written consent each time 
they allow employers to view their personal information in the 
Clearinghouse.
    Paragraph (c) would prohibit employers from using any driver who 
does not grant consent to search the Clearinghouse. If a driver refuses 
to grant consent for either the full or limited query, that driver 
could not perform any safety-sensitive function, including driving. 
Paragraph (d) would make clear that the consent granted under this 
proposed section would include consent for FMCSA to notify employers of 
information on a driver that was entered into the Clearinghouse within 
seven days of the employer conducting a query.

Section 382.705

    In accordance with Congress's mandate that drug and alcohol 
refusals and positive test results be reported to the Clearinghouse 
(codified at 49 U.S.C. 31306a(g)), new Sec.  382.705 would establish 
reporting requirements, assigning responsibility for inputting and 
updating information to individuals and entities. Paragraph (a) would 
require MROs to report to the Clearinghouse within 1 business day all 
verified positive, adulterated, or substituted drug test results and 
refusals to test that require a determination by the MRO as specified 
in 49 CFR 40.191. In the event an MRO changes the outcome of a test in 
accordance with 49 CFR part 40, he or she would be required to report 
this change within 1 business day. This paragraph would also require 
the MRO to provide the reason for the test; the Federal Drug Testing 
CCF specimen ID number; the collection site name and address; the 
driver's name, date of birth, and CDL number, and the State that issued 
the CDL; the employer's name, city/State, and USDOT or EIN; the date of 
the test; the date of the verified result; and the test result. The 
test result would either be (1) positive; (2) refusal to test: 
Adulterated; (3) refusal to test: Substituted; or (4) refusal to 
provide a specimen. This information will allow tracking and 
identification of specific test results. Information about the driver 
(i.e., name, date of birth, CDL number, and issuing State) and the 
employer (i.e., name, address, and USDOT or EIN number) is intended to 
assist in making a positive identification of the driver in the 
Clearinghouse, because information about more than one driver with the 
same name may be present in the database.
    FMCSA proposes to have MROs, rather than employers, report this 
information to the Clearinghouse. A large number of small motor carrier 
employers (approximately 86%) are responsible for administering drug 
and alcohol programs. Based on the Agency's observation that smaller 
employers have lower compliance rates with FMCSA's drug and alcohol 
testing program, due in part to the inherent business interests small 
companies have in retaining employees, the Agency believes that 
requiring MROs to report verified drug results would produce more 
accurate and comprehensive reporting to the Clearinghouse.
    The above notwithstanding, under DOT rules, MROs do not verify 
alcohol test results. As a result, paragraph (b) would require 
employers to report the following information to the Clearinghouse: 
Alcohol test results with an alcohol concentration of 0.04 or greater; 
negative return-to-duty tests; drug and alcohol test refusals; reports 
that drivers have successfully completed all follow-up tests; and 
reports of actual knowledge that a driver received a traffic citation 
for driving a CMV under the influence of drugs or alcohol. This section 
would also require that employers report the reason for the test; the 
driver's name, date of birth, CDL number and the State that issued the 
CDL; the employer's name, address, and USDOT number or EIN; date of the 
test; date the result was reported; and test result. The test result 
would be one of the following: Negative (for return-to-duty tests 
only), positive, or refusal. This information is required so that 
information about drivers with similar or identical names is not 
erroneously posted to the wrong driver's record.
    Employers would also be required to report each instance in which 
they have actual knowledge that an employee-driver received a traffic 
citation for driving a CMV under the influence of drugs or alcohol. The 
report would include the following information: The driver's name, date 
of birth, CDL number and State that issued the CDL; employer's name, 
address, and USDOT number or EIN; the date of the traffic citation; the 
date the employer became aware of the traffic citation; the name and 
State of the law enforcement agency issuing the traffic citation; the 
ticket or docket number associated with the citation; and the specific 
charge alleged in the traffic citation. This information is designed to 
ensure that a driver can identify any traffic citation reported to the 
database and verify that the information is correctly reported with the 
law enforcement agency that issued it. If the citation does not result 
in a conviction, a driver may request that FMCSA remove the employer's 
report from the Clearinghouse (see proposed Sec.  382.719). In that 
circumstance, the information FMCSA proposes to require in this 
paragraph will be important for tracking the citation and its 
subsequent adjudication. To the extent an employer uses a TPA to comply 
with his or her reporting duties, the employer remains responsible for 
ensuring that the TPA makes the required reports.
    Similar to the requirements in paragraph (b) that apply to 
employers, paragraph (c) would require C/TPAs acting on behalf of an 
employer who employs himself/herself, as required by 49 CFR 382.103(b), 
to report the following information to the Clearinghouse: Alcohol test 
results with an alcohol concentration of 0.04 or greater; negative 
return-to-duty tests; drug and alcohol test refusals; and reports that 
drivers have successfully completed all follow-up tests. This section 
would also require that C/TPAs report the reason for the test; the 
driver's name, date of birth, CDL number and the State that issued the 
CDL; the employer's name, address, and USDOT number or EIN; date of the 
test; date the result was reported; and test result. The test result 
would be one of the following: Negative (for return-to-duty tests 
only), positive, or refusal.
    Paragraph (d) would require SAPs to report information to the 
Clearinghouse about drivers who begin the return-to-duty process. That 
would include information identifying the SAP and the driver; the date 
of the initial SAP assessment. The SAP would also enter the date the 
SAP determined that the driver successfully completed the education 
and/or treatment process and was eligible for return-to-duty testing; 
and the frequency, number, and type of required follow-up tests; the 
duration of the follow-up testing plan; and any subsequent 
modifications to the plan. This information is important to potential 
future employers so that they may require a negative return-to-duty 
test and comply with the follow-up testing requirements. SAPs would be 
required to report this information within 1 business day of 
determining

[[Page 9712]]

that the driver has completed the return-to-duty requirements.
    Paragraph (e) would require persons reporting information to the 
Clearinghouse to do so truthfully and accurately. FMCSA proposes to 
prohibit anyone from reporting false or inaccurate information. Anyone 
making an inadvertent error should make a correction immediately upon 
discovering the error. Anyone violating the provisions of this 
paragraph would be subject to the civil and criminal penalties set 
forth in current Sec.  382.507, as well as any other applicable 
penalties.

Section 382.707

    In accordance with the statutory requirement, codified at 49 U.S.C. 
31306a(g)(4), that requires the Agency to notify individuals about 
changes to their records in the Clearinghouse, new Sec.  382.707 would 
require FMCSA to notify a driver when information about that driver is 
entered in, revised, or removed from the Clearinghouse. It would also 
require FMSA to notify a driver when information from the Clearinghouse 
is released to an employer and to state the reason for the release. The 
default method of notification would be to send a letter by U.S. Mail 
to the address on record with the SDLA that issued the driver's CDL. 
However, drivers would be able to provide an alternate address or 
method of communications, such as electronic mail. This section would 
require FMCSA to alert a driver each time a change occurred to his or 
her record in the Clearinghouse. The driver would then be able to 
access the Clearinghouse to review the new or revised data and request 
changes, if appropriate.

Section 382.709

    As mandated by MAP-21 and codified at 49 U.S.C. 31306a(j)(1), new 
Sec.  382.709 would grant a driver the right to review information in 
the Clearinghouse about himself or herself, except as otherwise 
restricted by law, but reminds drivers that consistent with Part 40, 
drivers cannot obtain their follow-up testing plan.

Section 382.711

    New Sec.  382.711, implements the statutory requirement, codified 
at 49 U.S.C. 31306a(h)(1) that the Agency establish a process for 
employers and/or their agents to request information from the 
Clearinghouse. This section would establish strict registration 
procedures for employers and service agents. Only employers and 
designated service agents--MROs, C/TPAs, and SAPs--would be authorized 
to submit information on a driver to the Clearinghouse. All 
Clearinghouse registrants would be required to provide their names, 
addresses, and telephone numbers, as well as any other information 
necessary to validate identity. In addition, employers would be 
required to submit their USDOT numbers or EINs and the name of the 
person or persons authorized to access the Clearinghouse. C/TPAs would 
also be required to identify the person or persons authorized to access 
the Clearinghouse. Employers and C/TPAs would be required to update 
annually the names of the people they authorize to access the 
Clearinghouse. MROs and SAPs would be required to provide a 
certification and evidence that they meet the DOT's qualifications and 
training requirements under 49 CFR part 40 in order to register.
    DOT recognizes the uniqueness of ``owner-operators'' in the motor 
carrier industry. 49 CFR 40.355(f)(h) & (j) provide specific exceptions 
to enable service agents (e.g., SAPs, C/TPAs, and MROs) to better 
manage this situation where the employee is also the employer. Under 49 
CFR 382.305, FMCSA requires owner-operators to participate in a 
consortium for random testing. New Sec.  382.711(b) would expressly 
require employers that are owner-operators to identify the C/TPA that 
it uses for testing purposes and authorize that C/TPA to submit 
information on a driver, including themselves, to the Clearinghouse. 
This section would be mandatory for owner-operator and self-employed 
individuals and permissive for other employers that may use C/TPAs to 
perform testing services.

Section 382.713

    New Sec.  382.713 would set forth the terms under which 
Clearinghouse registrations would remain active, or would be revoked or 
cancelled. The initial Clearinghouse registration term would be 5 years 
unless the Agency took action to revoke or cancel it. The Agency 
proposes to cancel any registrant that does not use the Clearinghouse 
to view or input information for 2 years. The Agency would also have 
the authority to revoke the Clearinghouse registration of entities who 
do not comply with Clearinghouse regulations.
    If an entity's Clearinghouse privileges are revoked, they would 
still be obligated to perform all of the functions under this rule. If 
it was unable to do so because of revocation, then FMCSA staff would 
become involved and process the requests on behalf of the employers. 
There is no reason why an entity could not request reconsideration if 
its registration were revoked.

Section 382.715

    New Sec.  382.715 would require employers to designate C/TPAs 
before the C/TPA could enter information relating to them into the 
Clearinghouse.

Section 382.717

    New Sec.  382.717 would implement the statutory requirement, 
codified at 49 U.S.C. 31306a(j)(2), that the Agency provide a dispute 
resolution procedure to remedy administrative errors in an individual's 
Clearinghouse record. This section would establish procedures for 
drivers to petition FMCSA to correct inaccurate information in the 
Clearinghouse. Drivers would be required to submit a petition within 18 
months of the date the information in question was reported to the 
Clearinghouse. Drivers would need to include information identifying 
themselves and the information they want to be corrected, the reasons 
they believe the information is inaccurate, and evidence supporting 
their challenge. Drivers would not be able to challenge the accuracy or 
validity of the alcohol or controlled substance test results under 
these new procedures. Nothing in this rule would change the limitation 
on a driver's ability to challenge the validity of a test result or a 
refusal.
    The procedures that would be established under this section would 
be used to correct clerical errors, such as reporting results to the 
wrong driver's record; an incorrect name or CDL number; a misidentified 
test type, such as a pre-employment identified as a random test; or 
other inaccuracies in the reported data. These procedures could also be 
used to request that an employer's report of actual knowledge of a 
traffic citation for driving a CMV under the influence of drugs or 
alcohol be removed from the Clearinghouse if the citation did not 
result in a conviction. FMCSA would resolve petitions and notify the 
driver of its decision within 90 days of receiving a complete petition. 
The rule would also establish an expedited review to elevate those 
petitions seeking correction of critical information as opposed to 
those petitions addressing errors that do not impact an individual's 
ability to perform safety-sensitive functions. In this manner, the 
Agency will be able to provide the critical function served by this 
section and appropriately manage any number of petitions that seek 
less-critical, but nevertheless valid, requests for data correction. If 
resolution of the decision would affect the driver's ability

[[Page 9713]]

to perform safety-sensitive functions, he or she could request 
expedited review. If FMCSA granted expedited review, it would inform 
the driver of its decision within 30 days of receiving a complete 
petition.
    This section would also give drivers the opportunity to request 
administrative review of FMCSA's disposition of a petition to correct 
information in the Clearinghouse. A driver challenging FMCSA's decision 
would be required to present his or her request in writing to the 
Associate Administrator for Enforcement and Program Delivery, along 
with an explanation of the error he or she asserts FMCSA made and 
documentation to support his or her position. The Associate 
Administrator would make a decision within 60 days, and this would 
constitute final Agency action.
    With respect to the administrative review procedures for denials of 
requests for data correction in 382.717(f), we would note that this is 
not an appeal of a factual or evidentiary nature it is a second level 
of review of a data correction system. The Agency based the procedures 
for administrative review in the NPRM on existing procedures in FMCSA 
regulations where the administrative review is similarly based on 
``agency error.'' See 49 CFR 385.15 (administrative review of safety 
ratings), 385.113 (administrative review of Mexican carrier safety 
ratings), 385.327 (administrative review of new entrant safety audits), 
385.423 (administrative review of hazmat safety permit denials). None 
of these existing processes include an explicit standard for review, 
explanation of how decisions will be made by the identified deciding 
official, or evidentiary standards. None of these sections have been 
deemed inadequate. The standard, as here, is whether the Agency erred 
in making its initial decision. In addition, all petitioners will have 
the right to obtain counsel if they so choose.

Section 382.719

    New Sec.  382.719 would provide that an employer seeking to 
determine whether an employment prohibition exists would not have 
access to information about a particular violation once certain 
conditions are met. FMCSA proposes that once a driver successfully 
completes all aspects of the return-to-duty process, information about 
a positive test result or a refusal will remain accessible to employers 
for a period of either three or five years. FMCSA proposes both options 
based on two provisions in MAP-21 that can be interpreted to require 
employers to have access to this information for either a three or 
five-year period. Compare 49 U.S.C. 31306a(f) (requiring employers to 
determine whether a driver has had an employment prohibition for a 
three-year period prior to hiring), with 49 U.S.C. 31306(g)(6) 
(requiring the Secretary to retain records in the clearinghouse for 
five years, and remove records after five years, ``unless the 
individual fails to meet a return-to-duty or follow-up requirement 
under title 49, Code of Federal Regulations'').
    Based on this analysis, FMCSA proposes the following requirements 
to determine when records will no longer be available for review by 
employers conducting queries of the database: (1) The SAP reports that 
the driver has successfully completed the prescribed education and/or 
treatment as required by 49 CFR 40.305 and is eligible for return-to-
duty testing; (2) the employer or C/TPA reports that the driver has 
received negative return-to-duty test results; (3) the driver's present 
employer or employer's consortium (for owner/operators) 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; and (4) 3 years have passed since the date of the violation 
determination. As an alternate to subparagraph (4), FMCSA proposes to 
limit the time period during which an employer could access information 
about a violation that the driver has addressed by successful 
completion of the return to duty process to a period of five years from 
the date of violation instead of three years. FMCSA seeks comment on 
whether three or five years from the date of the violation is the 
appropriate amount of time to make this test result information 
available after a driver has completed the return-to-duty process.
    Regardless of whether three years or five years has passed since 
the date of the violation determination, this section would also 
provide that violation information would remain in the Clearinghouse 
indefinitely and be available to employers conducting a query if a 
driver failed to complete the return-to-duty process. The above 
notwithstanding, FMCSA will remove information about a traffic citation 
for driving a CMV under the influence of drugs or alcohol within 2 
business days of making the determination that it did not result in a 
conviction. This section would also make clear that FMCSA could 
continue to use data removed from the Clearinghouse for research, 
auditing, and enforcement purposes.

Section 382.721

    As authorized by 49 U.S.C. 31306a(e), new Sec.  382.721 would 
establish the Agency's ability to collect reasonable fees from entities 
that are required to query the Clearinghouse. The Agency would be 
prohibited from collecting fees from drivers accessing their own 
records.

Section 382.723

    New Sec.  382.723 would prohibit anyone from accessing the 
Clearinghouse except as authorized by this proposed rule. It would also 
prohibit anyone from reporting inaccurate or misleading information to 
the Clearinghouse. No one would be permitted to disclose or disseminate 
any information obtained from the Clearinghouse, except as otherwise 
authorized by law. As required by statute, codified at 49 U.S.C. 
31306a(h)(1)(D), employers would be specifically prohibited from using 
information from the Clearinghouse for any purpose other than to assess 
or evaluate whether a driver is prohibited from operating a CMV. 
Employers would be further prohibited from divulging any such 
information to anyone not directly involved in that assessment or 
evaluation, as required by 49 U.S.C. 31306a(h)(1)(E)(ii). Anyone who 
violates this rule would be subject to the civil and criminal penalties 
established by existing Sec.  382.507. In addition, employers and 
service agents remain subject to the requirements concerning 
``Confidentiality and Release of Information'' found in 49 CFR part 40, 
subpart P. These provisions are incorporated and made applicable to 
motor carrier employers in 49 CFR 382.105. This section would not, 
however, prohibit FMCSA from accessing the information in the 
Clearinghouse for research 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

    In accordance with Congress's mandate in MAP-21 (codified at 49 
U.S.C. 31306a(h)(2), new Sec.  382.725 would grant each State chief 
commercial driver's license official the right to access information in 
the Clearinghouse about an applicant for a commercial driver's license 
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 
commercial driver's

[[Page 9714]]

license. The chief commercial driver's license officials are required 
to protect the privacy and confidentiality of the information they 
receive under this proposed section. Failure to comply with the terms 
of this proposed section would result in the official losing his or her 
right of access.

Section 382.727

    As directed by Congress in MAP-21 (codified at 49 U.S.C. 31306a(k), 
new Sec.  382.727 would establish civil and criminal penalties for 
violations of the proposed Clearinghouse regulations. As stated above, 
49 CFR 382.507 already establishes civil and criminal liability for 
employers and drivers that violate any provision of 49 CFR part 382. 
However, new Sec.  382.727 would extend civil and criminal liability to 
all employees, medical review officers and service agents for 
violations of 49 CFR subpart G.

Summary of Responsibilities and Data Access

    Table 1 summarizes the obligations of each entity responsible for 
reporting information to the Clearinghouse database.

              Table 1--Reporting Entities and Circumstances
------------------------------------------------------------------------
                                           When information would be
           Reporting entity                reported to clearinghouse
------------------------------------------------------------------------
Prospective Employer of CDL Driver...  --Positive pre-employment test
                                        result.
                                       --Refusal to test (drug) not
                                        requiring a determination by the
                                        MRO as specified in 49 CFR
                                        40.191.
Current Employer of CDL Driver.......  --Positive alcohol test result.
                                       --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.
                                       --Citations (DUI in a CMV).
                                       --Negative return-to-duty test
                                        results.
                                       --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.
Third Party Administrator (if          --Positive alcohol test result.
 designated by employer to report on   --Refusal to test (alcohol) as
 its behalf).                           specified in 49 CFR 40.261.
                                       --Refusal to test (drug) not
                                        requiring a determination by the
                                        MRO as specified in 49 CFR
                                        40.191.
                                       --Negative return-to-duty test
                                        results.
Consortium (reporting for owner/       --Positive alcohol test result.
 operators).                           --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.
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.
                                       --Follow-up testing requirements.
------------------------------------------------------------------------

    Table 2 summarizes the conditions under which entities would be 
able to view information in the Clearinghouse.

      Table 2--Querying Entities and Information Obtained From the
                              Clearinghouse
------------------------------------------------------------------------
                                  Type of data         Requirements to
       Querying entity              obtained             obtain data
------------------------------------------------------------------------
Prospective Employer of CDL   Records in the        Employer obtains
 Driver (full query).          Clearinghouse         written consent
                               pertaining to the     from driver.
                               applicant
                               concerning:
                              --positive alcohol
                               test result;
                              --verified positive,
                               adulterated, or
                               substituted drug
                               test result;
                              --refusal to test
                               (alcohol or drug);
                              --citations (actual
                               knowledge);
                              --return-to-duty
                               negative test
                               result;
                              --follow-up testing
                               program
                               information.
Current Employer of CDL       Records in the        Employer obtains
 Driver (full query).          Clearinghouse         written consent
                               pertaining to the     from driver.
                               CDL driver
                               concerning:
                              --positive alcohol
                               test result;
                              --verified positive,
                               adulterated, or
                               substituted drugs
                               test result;
                              --refusal to test
                               (alcohol or drug);
                              --citations (actual
                               knowledge);
                              --return-to-duty
                               negative test
                               result;
                              --follow-up testing
                               program
                               information.
Current Employer of CDL       Notice of whether     Employer obtains
 Driver (limited query).       information for the   written consent for
                               driver exists in      a limited query.
                               the Clearinghouse.
CDL Driver..................  Records in the        Specific request of
                               Clearinghouse         the CDL driver;
                               pertaining to the     FMCSA verifies
                               CDL driver.           driver identity.
MRO.........................  No access.
SAP.........................  No access.
Consortium (full query).....  Records in the        Consortium obtains
                               Clearinghouse         written consent for
                               pertaining to the     a full query.
                               CDL driver
                               concerning:

[[Page 9715]]

 
                              --positive alcohol
                               test result;
                              --verified positive,
                               adulterated, or
                               substituted drugs
                               test result;
                              --refusal to test
                               (alcohol or drug);
                              --citations (actual
                               knowledge);
                              --return-to-duty
                               negative test
                               result;
                              --follow-up testing
                               program
                               information.
Consortium (limited query)..  Notice of whether     Consortium obtains
                               information for the   written consent for
                               driver exists in      a limited query.
                               the Clearinghouse.
Third Party Administrator...  Access limited to     TPA obtains written
                               authority delegated   consent for a
                               by employer to        limited or full
                               review data in        query;
                               Clearinghouse.       TPA must have
                                                     specific written
                                                     consent from the
                                                     employer of the CDL
                                                     driver.
FMCSA.......................  Full access.........  No consent required.
NTSB........................  Records of driver     No consent required.
                               involved in
                               accidents under
                               investigation.
------------------------------------------------------------------------

    Table 3 summarizes the types of queries that an employer is 
required to conduct.

                                            Table 3--Types of Queries
----------------------------------------------------------------------------------------------------------------
          Type of query                 Type of consent             When required         Type of data obtained
----------------------------------------------------------------------------------------------------------------
Full query.......................  Employer obtains written   Pre-employment screening  Information on driver's
                                    consent from driver.                                 drug and alcohol test
                                                                                         results.
Full query.......................  Employer obtains written   Annual query results      Information on driver's
                                    consent from driver.       show that the driver      drug and alcohol test
                                                               has drug or alcohol       results.
                                                               testing information in
                                                               the Clearinghouse.
Limited query....................  Employer must obtain and   Annually................  Notice of whether
                                    maintain written consent                             information for the
                                    for at least 3 years                                 driver exists in the
                                    following the query.                                 Clearinghouse.
----------------------------------------------------------------------------------------------------------------

V. Regulatory Analyses and Notices

Executive Order 12866

    This proposed rule is a significant regulatory action under section 
3(f) of Executive Order 12866, Regulatory Planning and Review. The 
Office of Management and Budget has reviewed it under that Order. It 
requires an assessment of potential costs and benefits under section 
6(a)(3) of that Order. A draft Regulatory Impact Analysis (RIA) is 
available in the docket where indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. A 
summary of the RIA follows:

RIA Estimates of Benefits and Costs

    All employers subject to the drug and alcohol testing regulations 
would be required to query the database (1) on an annual basis to 
examine each driver's positive test record 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,4 5 concrete improvements in the 
process of disseminating positive-test results and making them 
accessible to employers are expected to bring substantial benefits.
---------------------------------------------------------------------------

    \4\ 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.
    \5\ 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 $187 million in annual benefits from 
increased crash reduction from the rule--$53 million from the annual 
queries and $134 from the pre-employment queries. FMCSA estimates about 
$186 million in total annual costs, which include costs for: Employers 
to complete the annual ($28 million) and pre-employment ($10 million) 
queries; employers and drivers to designate service agents and report 
driver information ($3 million); various entities to report positive 
tests ($1 million) and to register, verify authorization, and become 
familiar with the rule ($5 million); consent to release driver 
information ($35 million); clearinghouse development and records 
management ($3 million); and the cost for drivers to go through the 
return-to-duty process ($101 million). The estimated costs are about 
equal to its benefits: Total net benefits of the rule are just $1 
million annually. The ten-year projection of net benefits is $8 million 
when discounted at seven percent and $9 million when discounted at 
three percent. However, 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 demonstrate the positive net benefits 
of this rule. The table below summarizes these net-benefit estimates.

[[Page 9716]]



                         Total and Annual Net Benefit Projection Over a Ten-Year Period
----------------------------------------------------------------------------------------------------------------
                           Total                                 Annual            10-Year           10-Year
----------------------------------------------------------------------------------------------------------------
                       Discount Rate                                                 7%                3%
----------------------------------------------------------------------------------------------------------------
Total Benefits............................................      $187,000,000    $1,406,000,000    $1,643,000,000
Total Costs...............................................       186,000,000     1,398,000,000     1,634,000,000
                                                           -----------------------------------------------------
    Total Net Benefits....................................         1,000,000         8,000,000         9,000,000
----------------------------------------------------------------------------------------------------------------

    The RIA contains sections describing the benefits and costs 
associated with implementing the following provisions of the proposed 
rule:
 Mandatory Queries
    a. Employers would be required to query the Clearinghouse annually 
for each of their drivers in order to ascertain if any of them failed 
drug or alcohol tests during the previous year.
    b. Prospective employers would be required to query the 
Clearinghouse as part of their pre-employment screening process of 
potential hires in order to ascertain if a prospective employee failed 
a drug or alcohol test with a previous employer or prospective 
employer.
 Designating Service Agents
    c. Employers would be required to designate (and submit 
authorization for) their C/TPAs and SAPs with the Clearinghouse.
 Reports and Notifications of Positive Tests
    d. MROs would report verified positive controlled-substances test 
results for CDL drivers to the Clearinghouse. Each test would be 
identified as pre-employment, post-accident, random, reasonable 
suspicion, return-to-duty, or follow-up. MROs would also be required to 
report certain drug test refusals to the Clearinghouse.
    e. FMCSA would notify each driver testing positive that information 
about them has been reported to, revised or removed from the 
Clearinghouse. The drivers would also have the opportunity to review 
this information.
    f. SAPs would report to the Clearinghouse information about the 
evaluation and treatment process as well as the number of required 
follow-up tests to be given after a return-to-duty test.
    g. Employers or C/TPAs acting on the employer's behalf would report 
verified alcohol test results at or above 0.04 alcohol concentration 
for CDL drivers to the Clearinghouse, subsequent follow-up test results 
stemming from the initial test at or above 0.04 alcohol concentration, 
and refusals. Each test would be identified as pre-employment, post-
accident, random, reasonable suspicion, return-to-duty, or follow-up. 
Employers or TPAs would also report negative return-to-duty test 
results.
    h. All employers subject to 49 CFR part 382, or C/TPAs acting on 
the employer's behalf would report information on refusals to test.
    i. Employers would be required to report actual knowledge of a 
driver's traffic citation for driving a CMV under the influence of 
drugs or alcohol).
 Clearinghouse Registration
    j. Employers, C/TPAs, MROs, and SAPs would be required to register 
with the Clearinghouse.
    k. Employers (and C/TPAs) would be required to verify, on an annual 
basis, the names of person(s) authorized to report and obtain 
information from the Clearinghouse.
 Driver Consent Verification
    l. Written consent must be obtained from the driver prior to 
release of information from the Clearinghouse.
 Submission of Annual Reports
    m. All drug-testing laboratories would submit employer specific 
summary reports of test results directly to FMCSA annually.

Benefit Analysis

    The benefits to the rule derive from reductions in crashes due to 
the additional information on employee-failed and refused drug and 
alcohol tests disseminated to employers solely because of the annual 
and pre-employment queries. This represents information that employers 
would not otherwise know about and act on.
    The current drug-testing program is estimated to generate $160 
million in annual crash-reduction benefits from 35,145 annual positive 
tests, which averages to approximately $4,600 per positive drug test 
($160 million/35,145, rounded to the nearest hundred). The mandated 
annual query in the proposed rule would result in 9,200 instances of 
employer alerts to positive drug tests of their drivers that current 
employers would not otherwise have known about. A requirement that 
disseminates additional information on 9,200 other positive testing 
drivers can be estimated to generate the same proportion of benefits 
that the 35,145 from the current program generates. If 35,145 positive 
tests and consequent alerts generate $160 million in benefits, then 
9,200 additional alerts would generate $42 million in benefits (($160 
million/35,145) = ($41.9 million/9,200), rounded to the nearest 
million).
    The current alcohol testing program is estimated to generate $43 
million in annual crash-reduction benefits from 3,465 annual positive 
alcohol tests, which averages to approximately $9,200 per positive 
alcohol test ($43 million/3,465, rounded to nearest hundred). The 
mandated annual query in the proposed rule would result in 900 
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 900 other positive testing 
drivers can be estimated to generate the same proportion of benefits 
that the 3,465 from the current program generates. If 3,465 positive 
tests and consequent alerts generate $43 million in benefits, then 900 
additional alerts would generate about $11 million in benefits (($43 
million/3,465) = ($11.2 million/900), rounded to the nearest million).
    With annual benefits to the drug-testing side of the annual queries 
estimated at $42 million and the alcohol-testing side at $11 million, 
total annual benefits to mandated annual queries are thus estimated at 
$53 million ($42 million + $11 million).
    The mandated pre-employment query in the proposed rule would result 
in 23,100 instances of employer alerts to positive drug tests that 
prospective employers would not otherwise have known about. A 
requirement that disseminates additional information on 23,100 other 
positive drug testing drivers can be estimated to generate the same 
proportion of benefits that the 35,145 from the current program 
generates. If 35,145 positive tests and consequent alerts generate $160 
million in benefits, then 23,100 additional alerts would generate $105 
million in benefits (($160 million/35,145) = ($105.2

[[Page 9717]]

million/23,100), rounded to the nearest million).
    The mandated pre-employment query in the proposed rule would result 
in 2,300 instances of employer alerts to positive alcohol tests of 
their drivers that prospective employers would not otherwise have known 
about. A requirement that disseminates additional information on 2,300 
other positive testing drivers can be estimated to generate the same 
proportion of benefits that the 3,465 from the current program 
generates. If 3,465 positive tests and consequent alerts generate $43 
million in benefits, then 2,300 additional alerts would generate $29 
million in benefits (($43 million/3,465) = ($28.5 million/2,300), 
rounded to the nearest million).
    With annual benefits to the drug-testing side of the pre-employment 
queries estimated at $105 million and the alcohol-testing side at $29 
million, total annual benefits to mandated pre-employment queries are 
thus estimated at $134 million ($105 million + $29 million).
    Given the $53 million in annual benefits from the information on 
positive tests disseminated because of the mandatory annual queries 
($42 million drug and $11 million alcohol) and the $134 million in 
annual benefits from the information on positive tests disseminated 
because of the mandatory pre-employment queries ($105 million drug and 
$29 million alcohol), the total benefits to the proposed rule are $187 
million annually. The table below presents these benefit totals.

                                        Total Annual Benefits of the Rule
----------------------------------------------------------------------------------------------------------------
                             Queries                                   Drug           Alcohol          Total
----------------------------------------------------------------------------------------------------------------
Annual..........................................................     $42,000,000     $11,000,000     $53,000,000
Pre-Employment..................................................     105,000,000      29,000,000     134,000,000
                                                                 -----------------------------------------------
    Total.......................................................     147,000,000      40,000,000     187,000,000
----------------------------------------------------------------------------------------------------------------

    Based on the annual benefits of $187 million, the 10-year benefit 
projection is $1.406 billion when discounted at 7 percent and $1.643 
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 costs of the proposed rule total $186 
million annually, which can be separated into nine categories. From the 
above descriptions of the requirements of the rule (a though m above): 
(a) The cost to employers to complete the annual queries of their 
drivers is estimated at $28 million annually; (b) the cost to 
prospective employers to complete pre-employment queries as part of the 
pre-employment screening process is $10 million annually; (c) the cost 
to employers to designate their C/TPAs and SAPs to input driver 
information is $3 million annually; (d, e, f, g, h, and i) the cost to 
MROs, SAPs, C/TPAs, and employers to report positive tests to the 
Agency totals $1 million annually; (j and k) the cost for employers, C/
TPAs, MROs, and SAPs to register with the Agency, verify persons 
authorized to access, and become familiar with the new processes (this 
familiarization is not, per se, ``required'' by the rulemaking, but is 
an obvious result of it) is $5 million annually: (l) The cost to 
process access requests is $35 million annually, (m) the cost to FMCSA 
to develop the clearinghouse and manage driver records is $3 million 
annually, the cost for drivers to undergo the return-to-duty process is 
$101 million annually, and the cost for laboratories to submit annual 
reports of test results to FMCSA is insignificant (less than $1,500). 
These components of the cost estimate are presented in the table below 
and FMCSA seeks comment on the estimates summarized here and discussed 
further in the RIA.

              Summary of the Total Annual Costs of the Rule
------------------------------------------------------------------------
           Cost category                   Entity           Annual cost
------------------------------------------------------------------------
Annual Queries....................  Employers...........     $28,000,000
Pre-Employment Queries............  Employers...........      10,000,000
Designate Service Agents/Input      Employers...........       3,000,000
 Driver Information.
Report Positive Tests.............  Various.............       1,000,000
Register, Rule Familiarize, Verify  Various.............       5,000,000
 Authorization.
Access............................  Drivers.............      35,000,000
Development and Records Management  FMCSA...............       3,000,000
Return-to-Duty Process............  Drivers.............     101,000,000
                                                         ---------------
    Grand Total...................  ....................     186,000,000
------------------------------------------------------------------------

    Based on the annual cost of $186 million, the ten-year cost 
projection would be $1.398 billion when discounted at 7 percent and 
$1.634 billion when discounted at 3 percent.

Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), (5 U.S.C. 601-
612), 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.

[[Page 9718]]

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. The initial Regulatory Flexibility Analysis (IRFA) must 
cover the following topics:
(1) A Description of the Reasons Why Action by the Agency Is Being 
Considered
    A 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. His 
employer at the time of the crash did not know about any of this.
    As a result, the National Transportation Safety Board (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 
alcohol test results and refusal determinations that are conducted 
under the U.S. Department of Transportation (USDOT) 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.'' This proposed 
rulemaking addresses the NTSB's recommendation.
    Two recent Government Accountability Office (GAO) reports discuss 
``job hopping'' by CMV drivers after failing, or refusing to submit to, 
drug or alcohol tests (see: GAO-08-600 and GAO-08-0829R). The GAO 
identified and verified 43 cases (based on insider information supplied 
by a third party to a Congressman) where CMV drivers had tested 
positive for illegal drugs (such as cocaine, marijuana, and 
amphetamines) with one employer and within 1 month tested negative with 
another employer. In its recommendations to Congress, the GAO advocated 
a national database and this rulemaking as possible methods to 
eliminate the job-hopping problems.
    The purpose of this rule is to mandate that employers annually 
query the Clearinghouse to determine whether each of their drivers has 
tested positive for illegal drug or alcohol use in the previous year. 
Additionally, the rule mandates that employers query the Clearinghouse 
as part of their pre-employment screening process of prospective 
drivers.
    The purpose of the annual query is to diminish or eliminate the 
problem of a currently-employed CDL holder testing positive for illegal 
drug or alcohol use with another or prospective employer, but then 
simply continuing to operate CMVs with his or her current employer 
without that employer knowing and acting on the positive test.
    The purpose of the pre-employment query is to diminish or eliminate 
the problem of a driver with previous positive tests seeking and 
obtaining work without prospective employers knowing and acting on the 
information. This could occur if a driver is fired for a positive 
test--for example, failing a post-accident or reasonable-suspicion 
test--but does not inform future employers about the previous employer 
that fired her.
    This could also occur if a new driver entering the workforce tests 
positive for drugs or alcohol during a pre-employment test, waits for 
the drugs to leave her system, then takes and passes another pre-
employment test and gets hired without the employer having any 
knowledge of the previously failed pre-employment test.
(2) A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The Agency proposes to revise 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 verified positive, adulterated, or 
substituted drug test results; positive alcohol test results; refusals; 
and negative return-to-duty test results. Under the proposed rule, 
motor carrier would be required to query the Clearinghouse for drug and 
alcohol test result information on employees and prospective employees. 
The proposed rule is intended to increase compliance with drug and 
alcohol testing requirements.
    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) provides 
authority to regulate drivers, motor carriers, and vehicle equipment 
and requires the Secretary to prescribe minimum safety standards for 
CMVs. 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 required the Secretary 
of Transportation to promulgate regulations for alcohol and drug 
testing for persons in safety-sensitive positions in four modes of 
transportation, motor carrier, airline, railroad, and mass transit.
(3) A Description--and, Where Feasible, an Estimate of the Number--of 
Small Entities to Which the Proposed Rule Will Apply
    Carriers are not required to report revenue to the Agency, but are 
required to provide the Agency with the number of CMVs they operate, 
when they register with the Agency, and to update this figure 
biennially. Because FMCSA does not have direct revenue figures for all 
motor carriers, CMVs serve as a proxy to determine the carrier size 
that would 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 CMV.
    With regard to truck CMVs, the Agency determined in the Hours-of-
Service Supporting Documents Rulemaking RIA \6\ that a CMV produces 
about $173,000 in revenue annually (adjusted for inflation to 2012 
dollars).\7\ According to the SBA, motor carriers with annual revenue 
of $25.5 million are considered small businesses.\8\ This equates to 
about 147 CMVs (147.4 = $25,500,000/$173,000). Thus, FMCSA considers 
motor carriers of property with 147 CMVs 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 
would fall under that definition (of having 147 CMVs or fewer). The 
results indicate that at least 99 percent of all interstate property 
carriers with recent activity have 147 CMVs or fewer.\9\ This amounts 
to

[[Page 9719]]

515,000 carriers (99 percent of 520,000 active motor carriers = 
514,800, rounded to the nearest thousand). Therefore, an overwhelming 
majority of interstate carriers of property would be considered small 
entities.
---------------------------------------------------------------------------

    \6\ FMCSA Regulatory Analysis, ``Hours of Service of Drivers,'' 
Final Rule. Federal Register/Vol. 76, No. 248/Tuesday, December 27, 
2011/Rules and Regulations, p. 81181. Using data from the 2007 
Economic Census, FMCSA estimated that the average carrier earns 
roughly $160,000 in annual revenue per truck (in year 2007 dollars).
    \7\ GDP Deflator. Available from the Bureau of Economic Analysis 
online, NIPA tables, Section 1, Table 1.1.4, ``Price Indexes for 
Gross Domestic Product,'' years 2007-2012. Accessed on July 29, 2013 
at http://www.bea.gov/iTable/index_nipa.cfm.
    \8\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
System (NAICS) codes, effective January 7, 2013. See NAIC subsector 
484, Truck Transportation. Accessed on July 26, 2013 at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
    \9\ An August 24, 2012 MCMIS snapshot indicates that carriers 
possessing 100 CMVs or less comprise of 99.26 percent of all 
interstate motor carriers with recent activity.
---------------------------------------------------------------------------

    To provide a conservative estimate on the impact of small entities, 
the Agency assumes that every active motor carrier would be subject to 
this regulation because under full participation all carriers would 
complete annual and pre-employment queries. Hence the rule applies to 
all (estimated) 515,000 motor carriers considered small entities.
    Assuming there are 1.05 drivers per CMV \10\ and a maximum of 147 
CMVs per small entity, FMCSA estimates that at most 154 drivers (154.35 
= 147 x 1.05) would be annually queried by a small entity. With an 
annual average of 1,876,000 drug pre-employment tests conducted on 4 
million CDL drivers, the estimated rate of pre-employment tests per 
population would be 47 percent (0.469 = 1,876,000/4,000,000). With the 
assumption that this rate is proportionate to a 154-driver entity, it 
would result in about 72 pre-employment tests (47 percent of 154 
drivers) and consequently 72 pre-employment queries per year, on 
average. In total, the maximum number of annual and pre-employment 
queries that a small entity may encounter would be 226 per year (154 
annual + 72 pre-employment).
---------------------------------------------------------------------------

    \10\ There was a total of 4,211,880 interstate drivers and 
4,020,464 CMVs according to a MCMIS August 24, 2012 snapshot based 
on count of interstate drivers and CMVs (4,211,880/4,020,464 = 
1.05). Further, the driver-to-CMV ratio remains at 1.05 when 
considering carriers that possess 200 CMVs or less.
---------------------------------------------------------------------------

    At ten minutes per query, 38 hours would be required to complete 
226 queries (37.67 = 226 queries x \1/6\ queries per hour). About 
another half-hour would be necessary to designate and verify a C/TPA 
(10 minutes), register with the Clearinghouse (10 minutes) and become 
familiar with the rule (10 minutes). In total, then, a 154-driver small 
entity would need to spend 38.5 hours (38 + \1/2\) to comply with the 
rule.
    The occupational salary of a bookkeeping, accounting, or auditing 
clerk is taken as the median of $16.91 per hour (BLS, May 2012).\11\ 
Two adjustments are made to this hourly compensation estimate. First, 
employee benefits are estimated at 50 percent of the employee wage.\12\ 
Second, the employee wage and benefits are increased by 27 percent to 
include relevant firm overhead.\13\ Applying the estimated 50 percent 
of wages for employee benefits and 27 percent for overhead results in 
$32.21 in hourly compensation for the clerk ($32.21 = $16.91 x (1 + 
0.50) x (1 + 0.27). Given $32.21 per hour for 38.5 hours, the annual 
cost of the queries incurred by a bookkeeping clerk would be $1,240 
($1,240.22 = 38.5 x $32.21, rounded to the nearest dollar) for a 154-
driver small entity.
---------------------------------------------------------------------------

    \11\ Occupational Employment Statistics, Occupational Employment 
and Wages, May 2012, 43-3031 Bookkeeping, Accounting, or Auditing 
Clerks. Accessed on July 29, 2013 at http://www.bls.gov/oes/current/oes433031.htm.
    \12\ See FMCSA's calculation of the employee benefit rate at 
Section 7.1, above.
    \13\ Berwick, Farooq. ``Truck Costing Model for Transportation 
Managers''. Upper Great Plains Transportation Institute, North 
Dakota State University (2003). Weighted average management and 
overhead costs total $10,721 annually for a truck travelling 100,000 
miles (page 29), or $0.107 per mile ($10,721/100,000 on page 47). 
Labor costs total $0.39 per mile (pages 42-43). Management/overhead 
costs are thus 27% of labor costs (0.107/0.390). Accessed at http://ntl.bts.gov/lib/24000/24200/24223/24223.pdf on 8-March=2011.
---------------------------------------------------------------------------

    In addition, a fee would be required to access the Clearinghouse 
during the query process. A full query would cost $5 and a limited 
query would cost $2.50. Full queries are required by all pre-employment 
screening. Given 72 pre-employment queries for a 154-driver small 
entity, fees for access would be $360 (72 x $5). If an annual query 
indicates that information exists on a particular driver in the 
Clearinghouse, then a limited query would lead to a full query. As 
explained in Section 7.6, there are an estimated 512,000 full queries, 
annually. Given 4,000,000 drivers in the industry, there would be a 
12.8 percent chance (512,000/4,000,000 = 0.128) that a driver would 
require a full query during an annual screening. Therefore, a 154-
driver small entity is estimated to perform about 20 full queries 
annually (154 x 0.128 = 19.7). The amount of limited queries to be 
performed would be 134 (154 total queries--20 full queries). 
Accordingly, the cost of access requests for annual queries is $335 
(134 x $2.50) for limited queries and $100 (20 x $5) for full queries. 
In sum, the annual cost of fees for access for pre-employment and 
annual queries is $795 ($360 + $335 + $100) for a 154-driver small 
entity.
    The maximum possible cost to a small entity thus totals $2,035 
annually ($1,240 + $795). This sets the maximum cost for a small entity 
as defined by the SBA Most motor carriers, however, employ 
significantly fewer drivers than the estimated 154 SBA limit. The 
Agency estimates that nearly 75 percent of motor carriers employ three 
drivers or less.\14\ Under this proposed rule, a motor carrier would 
incur approximately $13.22 per driver ($2,035/154 drivers) annually. 
Accordingly, a motor carrier that employs four drivers--a more typical 
carrier in the industry--would pay less than $40 annually for this 
testing.
---------------------------------------------------------------------------

    \14\ From an August 24, 2012 MCMIS snapshot, less than 74.5 
percent of active interstate motor carriers employed 3 CMVs or less.
---------------------------------------------------------------------------

    The table below summarizes the cost analysis.

                                     Maximum Possible Cost to Small Entities
----------------------------------------------------------------------------------------------------------------
                                                                Fees for access
   Maximum number for a small entity        Annual     --------------------------------           Notes
                                                         Limited query    Full query
----------------------------------------------------------------------------------------------------------------
CMVs..................................             147  ..............  ..............  Small Entity Maximum.
Drivers Per CMV.......................            1.05  ..............  ..............  MCMIS.
Drivers and Annual Queries............             154             134              20  147 x 1.05. 154 - (0.128
                                                                                         x 154). 0.128 x 154.
Estimated Percentage of Pre-Employment             47%  ..............  ..............  1,876,000/4,000,000.
 Queries.
Pre-Employment Queries................              72               0              72  47% of 154.
                                       ------------------------------------------------
Total Queries.........................             226             134              92  154 + 72.
Hours Per Query (10 minutes)..........             1/6  ..............  ..............  10 minutes.
Total Hours for Annual and Pre-                     38  ..............  ..............  226 x 1/6.
 Employment Queries.
Hours for Designation and Verification             1/6  ..............  ..............  FMCSA Estimate.
 of a C/TPA.

[[Page 9720]]

 
Hours for Registration and Rule                    1/3  ..............  ..............  FMCSA Estimate.
 Familiarization.
Total Hours...........................            38.5  ..............  ..............  38 + 1/6 + 1/3
Wage ($) Per Hour.....................          $16.91  ..............  ..............  BLS, General Office
                                                                                         Clerk.
Fringe Benefits (as a % of Wage)......             50%  ..............  ..............  BLS, Employee
                                                                                         Compensation.
Overhead (as a % of Wage and Fringe                27%  ..............  ..............  BLS, Employee
 Benefits).                                                                              Compensation.
Total Compensation Per Hour/Fee per             $32.21           $2.50           $5.00  $16.91 x (1 + 0.50) x (1
 Query.                                                                                  + 0.27).
Cost for Annual and Pre-Employment              $1,240            $335            $460  38.5 hrs x $32.21 per
 Queries.                                                                                hr. 134 x $2.50. 92 x
                                                                                         $5.
                                       ------------------------------------------------
    Total Cost (146 Drivers)..........                      $2,035                      $1,240 + $335 + $460.
    Total Cost per Driver.............                      $13.22                      $2,035/154 drivers.
----------------------------------------------------------------------------------------------------------------

(4) Reporting, Recordkeeping, and Other Compliance Requirements (for 
Small Entities) of the Proposed Rule, Including an Estimate of the 
Classes of Small Entities That Will Be Subject to the Requirement and 
the Types of Professional Skills Necessary for Preparation of the 
Report or Record
    There are an estimated 82,900 annual positive drug (75,800) and 
alcohol (7,100) test-results at full participation (including 
refusals). Each positive drug test result would be reported by an MRO. 
Each positive alcohol test would be reported by an employer or a C/TPA. 
Each driver's subsequent return-to-duty process for positive test 
results and test refusals would be reported by an SAP. Ninety-nine 
percent of motor carriers, MROs, C/TPAs, and SAPs are most likely small 
entities. FMCSA estimates that bookkeeping clerks would perform this 
reporting.
(5) Duplicative, Overlapping, or Conflicting Federal Rules
    FMCSA is not aware of any other rules which conflict with the 
proposed action. The proposed rule would require laboratories to report 
summary test information on each motor carrier covered by FMCSA's drug 
and alcohol rules for which they perform tests. The purpose of this 
requirement is to help FMCSA identify motor carriers that do not comply 
with mandatory drug and alcohol testing requirements. Currently, there 
exists a DOT-wide requirement for laboratories to report summary 
information on testing services provided to DOT-regulated entities, but 
does not require the information to be broken down on a carrier-by-
carrier basis. The DOT-wide report overlaps with the proposed rule in 
the sense that it contains some of the same aggregate information that 
would be required under the proposed rule. However, since the reports 
do not contain summary information specific to each motor carrier for 
which the laboratory provide services, FMCSA cannot use this 
information to identify non-compliant motor-carriers. In addition the 
Agency requests drug and alcohol testing summary reports from 
approximately 3,000 employers per year through FMCSA's Drug and Alcohol 
Testing Survey. This information is not collected from every covered 
motor carrier. Instead, the purpose of the survey is to produce 
nationally representative estimates for drug and alcohol usage rates 
among CDL drivers, in order to determine whether to increase or 
decrease random testing rates in accordance with 49 CFR 382.305(c).
(6) A Description of Any Significant Alternatives to the Proposed Rule 
Which Minimize Any Significant Impacts on Small Entities
    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. Because small 
businesses are such a large part of the demographic the Agency 
regulates, providing alternatives to small business to permit 
noncompliance with FMCSA regulations is not feasible and not consistent 
with sound public policy.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.) 
requires Agencies to evaluate whether an Agency action would result in 
the expenditure by State, local and tribal governments, in the 
aggregate, or by the private sector, of $151 million or more (as 
adjusted for inflation) in any one year, and if so, to take steps to 
minimize these unfunded mandates. The proposed rulemaking would result 
in private sector expenditures of $186 million, which is in excess of 
the $151 million threshold. The estimated costs are about equal to its 
benefits: Total net benefits of the rule are just $1 million annually. 
The ten-year projection of net benefits is $8 million when discounted 
at seven percent and $9 million when discounted at three percent. 
However, 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 demonstrate the positive net benefits of this rule.

Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA has analyzed this proposed action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. We have determined preliminarily that this rulemaking 
would not create an environmental risk to health or safety that would 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with

[[Page 9721]]

Constitutionally Protected Property Rights.

Executive Order 13132 (Federalism)

    A rule has implications for Federalism under Executive Order 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 recognizes 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 American Association of Motor Vehicle 
Administrators (AAMVA) on the topic of developing a database that the 
Agency believes may 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 a response to this letter. State and local governments 
will also be able to raise Federalism issues during the comment period 
for this NPRM.
    In addition, Sec.  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.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (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 proposal 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 the 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 to be 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 under a proposal 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 
proposed Clearinghouse will obtain information from the forms covered 
by the two information collections, this proposal does not create any 
revisions or additional burden under those collections.
    This proposal would create a new information collection to cover 
the requirements set forth in the proposed amendments to 49 CFR parts 
382. These amendments would create new requirements for CDL drivers, 
carriers/employers of CDL drivers, MROs, SAPs, and C/TPAs to register 
with the new database, which would be created and administered by the 
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 would be required to query the 
Clearinghouse to determine if job applicants have controlled substance 
or alcohol testing violations that should 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. 
Carriers, 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. The proposed 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...............  Carriers.......  Bookkeeping            5,200,000              10         866,667
                                                 Clerk.
Pre-Employment Queries.......  Carriers.......  Bookkeeping            1,876,000              10         312,667
                                                 Clerk.
Designate C/TPAs.............  Carriers.......  Bookkeeping              520,000              10          86,667
                                                 Clerk.
SAPs Inputting Driver          SAPs...........  SAPs............          82,900              10          13,817
 Information.
Report/Notify Positive Tests.  Various........  Bookkeeping              165,800              10          27,633
                                                 Clerk.
Register/Familiarize/Verify..  Various........  Bookkeeping              792,750          20. 10         155,083
                                                 Clerk.
Driver Consent Verifications.  Drivers........  Drivers.........       2,388,000              10         398,000
Annual Summaries.............  Laboratories...  Bookkeeping                   32              90              48
                                                 Clerk.
                                                                 -----------------------------------------------
    Total Instances/Hours....  ...............  ................      11,025,482  ..............       1,860,581
----------------------------------------------------------------------------------------------------------------

FMCSA has prepared an information collection request and supporting 
statement that is being submitted to the Office of Management and 
Budget and that will be made available for public comment pursuant to a 
notice to be published in the Federal Register.

National Environmental Policy Act and Clean Air Act

FMCSA analyzed this proposal for the purpose of the National 
Environmental

[[Page 9722]]

Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). FMCSA conducted an 
environmental assessment (EA) of the proposed alternatives considered 
by FMCSA and determined that if the rule reduced CMV crashes as 
estimated, there would be a small net benefit to the environment. These 
benefits result from the reduction of CMV crashes and include: Lives 
saved and injuries prevented from reducing CMV crashes, the reduction 
of fuel consumed and prevention of air 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. FMCSA does 
not, however, expect these environmental impacts to be considered 
significant under NEPA and do not require further analysis in an 
Environmental Impact Statement. FMCSA does not believe the EA results 
require any type of mitigation, as the impacts to the environment are 
beneficial in nature. The EA has been placed in the rulemaking docket. 
FMCSA requests comments on this EA.
    In addition to the NEPA requirements to examine impacts on air 
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.) 
also requires FMCSA to analyze the potential impact of its actions on 
air quality and to ensure that FMCSA actions conform to State and local 
air quality implementation plans. The additional reductions to air 
emissions from either of the alternatives are expected to fall within 
the CAA de minimis standards and are not expected to be subject to the 
Environmental Protection Agency's General Conformity Rule (40 CFR parts 
51 and 93).

Executive Order 13211 (Energy Effects)

    FMCSA has analyzed this proposed rule under Executive Order 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 preliminarily 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.

Privacy Impact Assessment

    FMCSA conducted a privacy impact assessment of this rule as 
required by section 522(a)(5) of division H of the FY 2005 Omnibus 
Appropriations Act, Public Law 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 
NPRM would impact the handling of 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 proposal in order to 
mitigate potential privacy risks. The PIA for this proposed rulemaking 
is available for review in the docket for this rulemaking.

List of Subjects in 49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Highway safety, Motor carriers, Penalties, Safety, 
Transportation.
    For the reasons discussed in the preamble, the Federal Motor 
Carrier Safety Administration proposes to amend 49 CFR part 382 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; and 49 
CFR 1.73.

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 is subject to:
* * * * *
0
3. Amend Sec.  382.107 to add the following definitions in alphabetical 
order:


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 negative drug test 
result and/or an alcohol test with an alcohol concentration of less 
than 0.02.
* * * * *
    Positive alcohol test means a DOT alcohol confirmation test having 
an alcohol concentration of 0.04 or greater.
* * * * *
0
4. Add new 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 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 B of the ATF.
    (2) The employer's USDOT number or Internal Revenue Service 
Employer Identification Number (EIN) and the employer's name and other 
identifying information required in Step 1, section C 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 employer's USDOT number or Internal Revenue Service 
Employer Identification Number (EIN) in Step 1, section A of the CCF.
    (2) The driver's commercial driver's license number and State of 
issuance in Step 1, section C of the CCF in place of the ``donor SSN or 
Employee I.D. No.''
0
5. Add new 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 a positive alcohol test result of 0.04 or 
higher alcohol concentration conducted under part 40 of this title; or
    (c) The driver refused to submit to a test for drugs or alcohol 
required under part 382 of this chapter.
    (d) An employer has actual knowledge that a driver has used alcohol 
or controlled substances, as defined at Sec.  382.107.
0
6. Amend Sec.  382.401 by revising paragraph (b)(1)(vi) to read as 
follows:

[[Page 9723]]

Sec.  382.401  Retention of records.

* * * * *
    (b) * * *
    (1) * * *
    (vi) Records related to the administration of the controlled 
substances and alcohol testing programs, including records related to 
traffic citations establishing employer actual knowledge of driving 
under the influence of alcohol or controlled substances, and
* * * * *
0
7. Add Sec.  382.404 to read as follows:


Sec.  382.404  Laboratories' duty to report controlled substances test 
results.

    (a) Annually, each laboratory performing controlled substances 
testing for an employer regulated by this part must submit an aggregate 
statistical summary of the number of drug tests, by drug test type, 
organized by employers' USDOT number or Internal Revenue Service issued 
Employer Identification Number (EIN).
    (b) The summary must be sent by January 31 of each year for January 
1 through December 31 of the previous year.
    (c) The summary must be submitted in electronic format to: Federal 
Motor Carrier Safety Administration, Office of Enforcement and 
Compliance, 1200 New Jersey Avenue SE., Washington, DC 20590.
0
8. 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 that are involved with the crash under 
investigation.
* * * * *
0
9. 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 or a consortium/third 
party administrator, and no medical review officer or consortium/third 
party administrator 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 medical review officer or a consortium/
third party administrator from releasing to the employer, the 
Clearinghouse, or to officials of 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
10. Add a new 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 parts 40 or 382 of this title, must notify in 
writing all current employers of such violation(s). 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 adding a new paragraph (b)(12) to read 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) A positive alcohol test result;
    (iii) A refusal to submit to any test required by subpart C of this 
part;
    (iv) 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;
    (v) A substance-abuse-professional report of the successful 
completion of the return-to-duty process, and the follow-up testing 
plan;
    (vi) A negative return-to-duty test; and
    (vii) An employer's report of completion of follow-up testing.
* * * * *
0
12. Add a new 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 and employers of placement, 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.
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) Employers may 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 on whether the driver has a 
verified positive, adulterated, or substituted controlled substances 
test result; has a positive alcohol test result; has refused to submit 
to any test required by subpart C of this part; or that an employer has 
reported actual knowledge that the driver received a traffic citation 
for driving a commercial motor vehicle while under the influence of 
alcohol or controlled substances.

[[Page 9724]]

    (b) Employers must conduct annual queries of the Clearinghouse for 
information on all employees subject to controlled substance and 
alcohol testing under this part to determine whether information exists 
in the Clearinghouse about those employees. If an annual query 
indicates that information exists in the Clearinghouse, the employer 
must conduct the same query required in paragraph (a) of this section.
    (c) If any information described in paragraph (a) of this section 
is entered into the Clearinghouse about a driver during the seven-day 
period immediately following an employer conducting a query of that 
driver's records, FMCSA will notify the employer of that additional 
information.
    (d) No employer may allow a driver to perform any safety-sensitive 
function if the results of a database query demonstrate that the driver 
has a verified positive, adulterated, or substituted controlled 
substances test result; has a positive alcohol test result; has refused 
to submit to any test required by subpart C of this part; or that an 
employer has reported actual knowledge that the driver received a 
traffic citation for driving a commercial motor vehicle while under the 
influence of alcohol or controlled substances, except where a query of 
the Clearinghouse demonstrates the following circumstances:
    (1) The driver has successfully completed the substance-abuse-
professional 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 process 
prescribed by the substance abuse professional.
    (2) If the driver has not completed all follow-up tests as 
prescribed by the substance abuse professional in accordance with Sec.  
40.307 of this title and specified in the substance-abuse-professional 
report required by Sec.  40.311 of this title, the employer may only 
use the driver in a safety-sensitive position if the driver has 
completed the substance-abuse-professional 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) Employers must retain for three years a record of each query 
and all information received in response to each query made under this 
section. Exception: An employer with valid registration that queries 
the Clearinghouse in accordance with the requirements of this subpart, 
will be deemed to have satisfied this requirement.


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

    (a) No employer may search the Clearinghouse to determine whether a 
record exists on any particular driver without first obtaining that 
driver's written consent. The employer conducting the search must 
retain the written consent for 3 years from the date of the last 
search.
    (b) Before receiving access to information contained in the 
Clearinghouse record, the employer must obtain written consent from the 
driver for access to the following specific records:
    (1) A verified positive, adulterated, or substituted controlled 
substances test result;
    (2) A positive alcohol test result;
    (3) A refusal to submit to any test required by subpart C of this 
part;
    (4) 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;
    (5) A substance-abuse-professional report of the successful 
completion of the return-to-duty process, and the follow-up testing 
plan;
    (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 grants consent for 
FMCSA to release information to an employer in accordance with Sec.  
382.701(c).


Sec.  382.705  Reporting to the Clearinghouse.

    (a) Medical Review Officers (MROs). (1) Within 1 business day of 
making a determination or verification, medical review officers 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 medical review officer as 
described in 49 CFR 40.191.
    (2) Medical review officers must provide the following information 
for each controlled substances test result specified in paragraph 
(a)(1) of this section:
    (i) Reason for the test;
    (ii) Federal Drug Testing Custody and Control Form specimen ID 
number;
    (iii) Driver's name, date of birth, and commercial driver's license 
number and commercial driver's license-issuing State's abbreviation 
(U.S. Postal Service abbreviation. See Publication 59, ``Abbreviations 
for Use with ZIP Code,'' U.S. Postal Service, October 1963);
    (iv) Employer's name, address, and USDOT number or Internal Revenue 
Service issued Employer Identification Number (EIN);
    (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.
    (3) Within 1 business day of making any change to the results 
report in accordance with paragraph (a)(1) of this section, a medical 
review officer must report that changed result to the Clearinghouse.
    (b) Employers. (1) Employers must report the following information 
about a driver to the Clearinghouse within 1 business day of obtaining 
that information:
    (i) An alcohol 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 pursuant to 49 CFR 40.191;
    (v) A report that the driver has successfully completed all follow-
up tests as prescribed in the substance-abuse-professional report in 
accordance with Sec. Sec.  40.307, 40.309, and 40.311 of this title; 
and
    (vi) Actual knowledge that the driver received a traffic citation 
for driving a commercial motor vehicle while under the influence of 
alcohol or controlled substances.
    (2) Employers must report the following information concerning each 
positive alcohol test result, refusal to submit to alcohol testing 
pursuant to 49 CFR 40.261, and refusal to provide a specimen for 
controlled substances testing listed in 49 CFR 40.191:
    (i) Reason for the test;
    (ii) Driver's name, date of birth, and commercial driver's license 
number and the commercial driver's license-issuing State's 
abbreviation;

[[Page 9725]]

    (iii) Employer name, address, and USDOT number or Internal Revenue 
Service-issued Employer Identification Number (EIN);
    (iv) Date of the test;
    (v) Date of result 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) Employers must report the following information concerning each 
instance in which the employer has actual knowledge that a driver 
received a traffic citation for driving a commercial motor vehicle 
while under the influence of alcohol or controlled substances, as 
defined at Sec.  383.5 of this chapter:
    (i) Driver's name, date of birth, commercial driver's license 
number, and the commercial driver's license-issuing State abbreviation;
    (ii) Employer name, address, and USDOT number or Employer 
Identification Number (EIN);
    (iii) Date of the traffic citation;
    (iv) Date the employer became aware of the traffic citation.
    (v) The name and State of the law enforcement agency issuing the 
traffic citation;
    (vi) The ticket or docket number associated with the citation; and
    (vii) The specific charge alleged in the traffic citation.
    (c) C/TPAs. (1) C/TPAs acting on behalf of an employer who employs 
himself/herself, as required by Sec.  382.103(b) must immediately 
report the following information about a driver to the Clearinghouse 
within one business day of obtaining that information:
    (i) An alcohol 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 provide a specimen for controlled substances 
testing pursuant to 49 CFR 40.191;
    (v) A report that the driver has successfully completed all follow-
up tests as prescribed in the substance-abuse-professional report in 
accordance with Sec. Sec.  40.307, 40.309, and 40.311 of this title; 
and
    (2) C/TPAs acting on behalf of an employer who employs himself/
herself, as required by 49 CFR 382.103(b) must report the following 
information concerning each positive alcohol test result, refusal to 
submit to alcohol testing pursuant to 49 CFR 40.261, and refusal to 
provide a specimen for controlled substances testing listed in 49 CFR 
40.191:
    (i) Reason for the test;
    (ii) Driver's name, date of birth, and commercial driver's license 
number and the commercial driver's license-issuing State's 
abbreviation;
    (iii) Employer name, address, and USDOT number or Internal Revenue 
Service-issued Employer Identification Number (EIN);
    (iv) Date of the test;
    (v) Date of result 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 provide a specimen or take a test.
    (d) Substance Abuse Professionals (SAPs). (1) Substance abuse 
professionals must report to the Clearinghouse for each driver who has 
completed the return-to-duty process for a DOT verified positive, 
adulterated, or substituted controlled substances test result, a 
positive alcohol test result, a testing refusal, or actual knowledge 
that the driver received a traffic citation for driving a commercial 
motor vehicle while under the influence of alcohol or controlled 
substances the following information:
    (i) Substance abuse professional's name, address, and telephone 
number;
    (ii) Driver's name, date of birth, and commercial driver's license 
number and the commercial driver's license-issuing State's 
abbreviation;
    (iii) Date of the initial substance-abuse-professional assessment;
    (iv) Date the substance abuse professional determined that the 
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 this part;
    (v) Frequency, number, and type of required follow-up tests, the 
duration of the follow-up testing plan; and
    (vi) Any modifications to the follow-up testing plan.
    (2) Substance abuse professionals must report the information 
required by paragraphs (d)(1)(i)-(iii) of this section within 1 
business day of the date of the initial substance abuse assessment, and 
must report the information required by paragraphs (d)(1)(iv)-(vi) of 
this section within 1 business day of determining 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 knowingly reporting false or 
inaccurate information.


Sec.  382.707  Notice to drivers and employers of placement, 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.


Sec.  382.711  Clearinghouse registration.

    (a) Clearinghouse registration required. Each employer and 
designated service agent to an employer supporting its controlled 
substances and/or alcohol testing program must register with FMCSA 
before accessing or reporting information in the Clearinghouse.
    (b) Employers. Employer Clearinghouse registration must include:
    (1) Name, address, and telephone number;
    (2) USDOT number or Internal Revenue Service-issued Employer 
Identification Number (EIN); and
    (3) Name of the person(s) and their position(s) that the employer 
authorizes to report information to and obtain information from the 
Clearinghouse and any additional information FMCSA needs to validate 
the applicant's identity.
    (4) Employers must verify the names of the person(s) authorized 
under paragraph (b)(3) of this section annually.
    (5) Identification of the C/TPA used for testing purposes and 
authorization for the C/TPA to report information to the Clearinghouse 
for self-employed individuals or owner-operators that are required to 
use C/TPAs for testing purposes. Employers subject to this requirement 
must update any changes to this information.
    (c) Medical review officers and substance abuse professionals. Each 
medical review officer or substance

[[Page 9726]]

abuse professional 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) Consortia/third party administrators. Each consortium or third 
party administrator 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 consortium or third party administrator 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 
that are inactive 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 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 in part 40 of this title.


Sec.  382.715  Authorization to enter information into the 
Clearinghouse.

    No consortium/third party administrator may enter information into 
the Clearinghouse on an employer's behalf unless the employer 
designates the consortium/third party administrator as its service 
agent.


Sec.  382.717  Procedures for correcting information in the database.

    (a) Petition. Any driver or authorized representative of the driver 
may submit a petition to the FMCSA contesting the accuracy of 
information within 18 months of the date the information was reported 
to the Clearinghouse. The petition must include:
    (1) The petitioner's name, address, telephone number and commercial 
driver's license number with State of issuance;
    (2) Detailed description of the basis for the allegation that the 
information is not accurate;
    (3) Evidence supporting the allegation that the information is not 
accurate. Failure to submit evidence is cause for dismissing the 
petition.
    (b) Address. The petition must be submitted to: Federal Motor 
Carrier Safety Administration, Office of Enforcement and Compliance, 
1200 New Jersey Avenue SE., Washington, DC 20590.
    (c) Petitions limited to inaccurately reported information. (1) 
Under this section, petitioners may challenge only the accuracy of 
information reporting, not the accuracy or validity of positive test 
results or refusals.
    (2) Exception. 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.
    (d) Notice of decision. FMCSA will inform the driver in writing 
within 90 days of receipt of a complete petition whether FMCSA will 
remove, retain, or correct the information in the database and provide 
the basis for the decision.
    (e) Request for expedited treatment. A driver may request expedited 
treatment of his or her petition to correct inaccurate information if 
the inaccuracy is currently preventing him or her from performing 
safety-sensitive functions. If FMCSA grants expedited treatment, it 
will inform the driver of its decision in writing within 30 days of 
receipt of a complete petition. This request may be included in the 
original petition or as a separate document.
    (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 paragraphs (d) or (e) of this section was in 
error.
    (2) The driver must submit his/her request in writing to the 
Associate Administrator for Enforcement and Program Delivery (MC-E), 
Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., 
Washington, DC 20590.
    (3) The driver's request must explain the error it 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 60 
days after receiving the driver's request for review. The Associate 
Administrator's decision will constitute the final Agency action.


Sec.  382.719  Availability and removal of information.

    (a) 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 substance abuse professional reports to the Clearinghouse 
the information required in Sec.  382.705(d);
    (2) The employer or consortium/third party administrator reports to 
the Clearinghouse that the driver received negative return-to-duty test 
results;
    (3) The driver's current employer or consortium reports that the 
driver has successfully completed all follow-up tests as prescribed in 
the substance-abuse-professional report in accordance with Sec. Sec.  
40.307, 40.309, and 40.311 of this title; and
    (4) Three years have passed since the date of the violation 
determination.
    Alternate: (4) Five years have passed since the date of the 
violation determination.
    (b) Information about a particular driver's drug or alcohol 
violation will remain in the Clearinghouse record and be available to 
employers conducting a query until all requirements in paragraph (a) of 
this section have been met.
    (c) Exception. Within 2 business days of granting a request 
pursuant to Sec.  382.717(c)(2), FMCSA will remove information from the 
Clearinghouse about an employer's report of actual knowledge that a 
driver received a traffic citation for driving a commercial motor 
vehicle while under the influence of alcohol or controlled substances.
    (d) 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

[[Page 9727]]

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 assessing or evaluating whether a 
prohibition applies to a driver operating 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 assessing or evaluating whether a prohibition 
applies to a driver operating 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 
or enforcement purposes.


Sec.  382.725  Access by State licensing authorities.

    (a) The chief commercial driver's licensing official of a State may 
request and receive a 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 driver's licensing official's use of information 
received from the Clearinghouse is limited to assessing or evaluating 
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 assessing or evaluating 
an individual's qualifications to operate a commercial motor vehicle.
    (d) A chief commercial driver's licensing official that 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, medical review officer, 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).

    Issued under the authority delegated in 49 CFR 1.87 on: February 
3, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-03213 Filed 2-19-14; 8:45 am]
BILLING CODE 4910-EX-P