[Federal Register Volume 79, Number 34 (Thursday, February 20, 2014)]
[Proposed Rules]
[Pages 9703-9727]
[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<PHONE_NUMBER>.

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<EMAIL_ADDRESS>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<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

    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

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
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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

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

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

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

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-

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

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

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

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

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:

                              --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.

                         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

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.

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

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.

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