[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Rules and Regulations]
[Pages 87686-87731]
[FR Doc No: 2016-27398]

Vol. 81

Monday,

No. 233

December 5, 2016

Part II

Department of Transportation

-----------------------------------------------------------------------

Federal Motor Carrier Safety Administration

-----------------------------------------------------------------------

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

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

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

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 382, 383, 384 and 391

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

Commercial Driver's License Drug and Alcohol Clearinghouse

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

ACTION: Final rule.

-----------------------------------------------------------------------

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

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

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

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Executive Summary

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

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

B. Benefits and Costs

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

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

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

II. Abbreviations

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

III. Legal Basis for the Rulemaking

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

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

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

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

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

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

V. Discussion of Comments Received on the Proposed Rule

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

General Support/Opposition to the Clearinghouse

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

Compliance Date

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

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

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

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

Applicability--Motor Carriers Operating Non-CDL CMVs

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

Applicability--Non-DOT Tests

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

Applicability--Municipalities

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

Applicability--Fair Credit Reporting Act (FCRA)

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

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

Federalism

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

Privacy Considerations

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

Motor Carrier Registration

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

Definition of Positive Alcohol Test (Sec.  382.107)

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

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

Driver Identification (Sec.  382.123)

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

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

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

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

Employer Responsibilities (Sec.  382.217)

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

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

Retention of Records (Section 382.401)

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

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

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

Access to Facilities and Records (Sec.  382.405)

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

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

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

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

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

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

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

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

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

Drug and Alcohol Clearinghouse (Sec.  382.701)

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

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

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

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

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

Reporting to the Clearinghouse (Sec.  382.705)

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

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

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

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

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

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

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

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

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

    Comment. FMCSA proposed to grant drivers access to any information
in their Clearinghouse record, except as restricted by law. Two
commenters recommended that FMCSA prohibit drivers from having access
to their own follow-up testing plans and prohibit employers from
sharing that information with drivers. One of those commenters said
that many employers believe that they are not prohibited from sharing
follow-up testing plans with drivers. Boeing was concerned that owner-
operators would have access to their follow-up plans. Finally, a driver
requested clarification about how often he would be required to check
his own records in the Clearinghouse.
    Response. Section 382.705(d)(1)(v) of the NPRM proposed that SAPs
report to the Clearinghouse the frequency, number, and type of follow-
up tests as well as the duration of the follow-up testing plan. Section
40.329 currently requires that SAPs redact the follow-up testing
information from any reports provided to employees so that they will
not be aware of either the number or type of follow-up tests or the
duration of the testing period. When DOT adopted this requirement in
2001, it noted the concern that providing employees with access to
their follow-up plans ``could lessen the deterrent effect of follow-up
tests'' (66 FR 41949 (August 2001)). However, the Privacy Act generally
requires that an employee be permitted, upon request, access to
information about him/her in their Clearinghouse record that is
retrievable by that employee's name or other identifying particular.