Accordingly, in order to ensure compliance with current part 40
requirements, in this rule FMCSA removes the proposed requirement in
Sec.  382.705 that SAPs report the follow-up testing plan to the
Clearinghouse. SAPs will thus continue to provide that information
directly to the employer as part of the follow-up evaluation report
required by Sec.  40.311(d). Therefore, follow-up testing plans will
not be included in a driver's Clearinghouse record. Subsequent
employers will be required to obtain the follow-up testing plan from
the previous employer, if the driver's Clearinghouse record does not
indicate that follow-up testing has been completed. In cases where a
driver who is subject to follow-up testing is not currently employed,
the gaining employer may obtain the driver's follow-up testing plan
from the SAP, whose contact information will be available in the
Clearinghouse. (See, also, discussion of this issue under ``Pre-
Employment Investigations Under Sec. Sec.  40.25, 382.413 and 391.23'',
above.) Finally, nothing in this rule requires drivers to query the
Clearinghouse. Drivers are, however, free to query their own records at
any time and as often as they choose.

Clearinghouse Registration (Section 382.711)

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

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

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

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

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

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

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

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

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

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

Availability and Removal of Information (Sec.  382.719)

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

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

Fees (Sec.  382.721)

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

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

    \3\ https://www.psp.fmcsa.dot.gov/psp/default.aspx.
---------------------------------------------------------------------------

Unauthorized Access or Use Prohibited (Section 382.723)

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

Access by State Licensing Authorities (Sec.  382.725)

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

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

Penalties (Sec.  382.727)

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

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

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

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

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

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

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

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

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

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

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

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

A. Part 382

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

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

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

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

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

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

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

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

C. Part 383

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

D. Part 384

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

E. Part 391

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

VII. Regulatory Analyses and Notices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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