PocketLaw | USC 49 | National clearinghouse for controlled substance

National clearinghouse for controlled substance and alcohol test results of commercial motor vehicle operators

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§31306a. National clearinghouse for controlled substance and alcohol test results of commercial motor vehicle operators

(a) Establishment.-

(1) In general.-Not later than 2 years after the date of enactment of the Safe Roads Act of 2012, the Secretary of Transportation shall establish, operate, and maintain a national clearinghouse for records relating to alcohol and controlled substances testing of commercial motor vehicle operators.

(2) Purposes.-The purposes of the clearinghouse shall be-

(A) to improve compliance with the Department of Transportation's alcohol and controlled substances testing program applicable to commercial motor vehicle operators; and

(B) to enhance the safety of our United States roadways by reducing accident and injuries involving the misuse of alcohol or use of controlled substances by operators of commercial motor vehicles.

(3) Contents.-The clearinghouse shall function as a repository for records relating to the positive test results and test refusals of commercial motor vehicle operators and violations by such operators of prohibitions set forth in subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations).

(4) Electronic exchange of records.-The Secretary shall ensure that records can be electronically submitted to, and requested from, the clearinghouse by authorized users.

(5) Authorized operator.-The Secretary may authorize a qualified private entity to operate and maintain the clearinghouse and to collect fees on behalf of the Secretary under subsection (e). The entity shall operate and maintain the clearinghouse and permit access to driver information and records from the clearinghouse in accordance with this section.

(b) Design of Clearinghouse.-

(1) Use of federal motor carrier safety administration recommendations.-In establishing the clearinghouse, the Secretary shall consider-

(A) the findings and recommendations contained in the Federal Motor Carrier Safety Administration's March 2004 report to Congress required under section 226 of the Motor Carrier Safety Improvement Act of 1999 (49 U.S.C. 31306 note); and

(B) the findings and recommendations contained in the Government Accountability Office's May 2008 report to Congress entitled "Motor Carrier Safety: Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them off the Road.".

(2) Development of secure processes.-In establishing the clearinghouse, the Secretary shall develop a secure process for-

(A) administering and managing the clearinghouse in compliance with applicable Federal security standards;

(B) registering and authenticating authorized users of the clearinghouse;

(D) preventing the unauthorized access of information from the clearinghouse;

(E) storing and transmitting data;

(F) persons required to report to the clearinghouse under subsection (g) to timely and accurately submit electronic data to the clearinghouse;

(G) generating timely and accurate reports from the clearinghouse in response to requests for information by authorized users; and

(H) updating an individual's record upon completion of the return-to-duty process described in title 49, Code of Federal Regulations.

(3) Employer alert of positive test result.-In establishing the clearinghouse, the Secretary shall develop a secure method for electronically notifying an employer of each additional positive test result or other noncompliance-

(A) for an employee, that is entered into the clearinghouse during the 7-day period immediately following an employer's inquiry about the employee; and

(B) for an employee who is listed as having multiple employers.

(4) Archive capability.-In establishing the clearinghouse, the Secretary shall develop a process for archiving all clearinghouse records for the purposes of auditing and evaluating the timeliness, accuracy, and completeness of data in the clearinghouse.

(5) Future needs.-

(A) Interoperability with other data systems.-In establishing the clearinghouse, the Secretary shall consider-

(i) the existing data systems containing regulatory and safety data for commercial motor vehicle operators;

(ii) the efficacy of using or combining clearinghouse data with 1 or more of such systems; and

(iii) the potential interoperability of the clearinghouse with such systems.

(B) Specific considerations.-In carrying out subparagraph (A), the Secretary shall determine-

(i) the clearinghouse's capability for interoperability with-

(I) the National Driver Register established under section 30302;

(II) the Commercial Driver's License Information System established under section 31309;

(III) the Motor Carrier Management Information System for preemployment screening services under section 31150; and

(IV) other data systems, as appropriate; and

(ii) any change to the administration of the current testing program, such as forms, that is necessary to collect data for the clearinghouse.

(1) by an authorized user of the clearinghouse to-

(A) request a record from the clearinghouse; and

(B) obtain the consent of an individual who is the subject of a request from the clearinghouse, if applicable; and

(2) to notify an individual that a positive alcohol or controlled substances test result, refusing to test, and a violation of any of the prohibitions under subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations), will be reported to the clearinghouse.

(d) Privacy.-A release of information from the clearinghouse shall-

(1) comply with applicable Federal privacy laws, including the fair information practices under the Privacy Act of 1974 (5 U.S.C. 552a);

(2) comply with applicable sections of the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); and

(3) not be made to any person or entity unless expressly authorized or required by law.

(e) Fees.-

(1) Authority to collect fees.-Except as provided under paragraph (3), the Secretary may collect a reasonable, customary, and nominal fee from an authorized user of the clearinghouse for a request for information from the clearinghouse.

(2) Use of fees.-Fees collected under this subsection shall be used for the operation and maintenance of the clearinghouse.

(3) Limitation.-The Secretary may not collect a fee from an individual requesting information from the clearinghouse that pertains to the record of that individual.

(f) Employer Requirements.-

(1) Determination concerning use of clearinghouse.-The Secretary shall determine if an employer is authorized to use the clearinghouse to meet the alcohol and controlled substances testing requirements under title 49, Code of Federal Regulations.

(2) Applicability of existing requirements.-Each employer and service agent shall continue to comply with the alcohol and controlled substances testing requirements under title 49, Code of Federal Regulations.

(3) Employment prohibitions.-After the clearinghouse is established under subsection (a), at a date determined to be appropriate by the Secretary and published in the Federal Register, an employer shall utilize the clearinghouse to determine whether any employment prohibitions exist and shall not hire an individual to operate a commercial motor vehicle unless the employer determines that the individual, during the preceding 3-year period-

(A) if tested for the use of alcohol and controlled substances, as required under title 49, Code of Federal Regulations-

(i) did not test positive for the use of alcohol or controlled substances in violation of the regulations; or

(ii) tested positive for the use of alcohol or controlled substances and completed the required return-to-duty process under title 49, Code of Federal Regulations;

(B)(i) did not refuse to take an alcohol or controlled substance test under title 49, Code of Federal Regulations; or

(ii) refused to take an alcohol or controlled substance test and completed the required return-to-duty process under title 49, Code of Federal Regulations; and

(C) did not violate any other provision of subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations).

(4) Annual review.-After the clearinghouse is established under subsection (a), at a date determined to be appropriate by the Secretary and published in the Federal Register, an employer shall request and review a commercial motor vehicle operator's record from the clearinghouse annually for as long as the commercial motor vehicle operator is under the employ of the employer.

(g) Reporting of Records.-

(1) In general.-Beginning 30 days after the date that the clearinghouse is established under subsection (a), a medical review officer, employer, service agent, and other appropriate person, as determined by the Secretary, shall promptly submit to the Secretary any record generated after the clearinghouse is initiated of an individual who-

(A) refuses to take an alcohol or controlled substances test required under title 49, Code of Federal Regulations;

(B) tests positive for alcohol or a controlled substance in violation of the regulations; or

(C) violates any other provision of subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations).

(2) Inclusion of records in clearinghouse.-The Secretary shall include in the clearinghouse the records of positive test results and test refusals received under paragraph (1).

(3) Modifications and deletions.-If the Secretary determines that a record contained in the clearinghouse is not accurate, the Secretary shall modify or delete the record, as appropriate.

(4) Notification.-The Secretary shall expeditiously notify an individual, unless such notification would be duplicative, when-

(A) a record relating to the individual is received by the clearinghouse;

(B) a record in the clearinghouse relating to the individual is modified or deleted, and include in the notification the reason for the modification or deletion; or

(C) a record in the clearinghouse relating to the individual is released to an employer and specify the reason for the release.

(5) Data quality and security standards for reporting and releasing.-The Secretary may establish additional requirements, as appropriate, to ensure that-

(A) the submission of records to the clearinghouse is timely and accurate;

(B) the release of data from the clearinghouse is timely, accurate, and released to the appropriate authorized user under this section; and

(C) an individual with a record in the clearinghouse has a cause of action for any inappropriate use of information included in the clearinghouse.

(6) Retention of records.-The Secretary shall-

(A) retain a record submitted to the clearinghouse for a 5-year period beginning on the date the record is submitted;

(B) remove the record from the clearinghouse at the end of the 5-year period, unless the individual fails to meet a return-to-duty or follow-up requirement under title 49, Code of Federal Regulations; and

(h) Authorized Users.-

(1) Employers.-The Secretary shall establish a process for an employer, or an employer's designated agent, to request and receive an individual's record from the clearinghouse.

(A) Consent.-An employer may not access an individual's record from the clearinghouse unless the employer-

(i) obtains the prior written or electronic consent of the individual for access to the record; and

(ii) submits proof of the individual's consent to the Secretary.

(B) Access to records.-After receiving a request from an employer for an individual's record under subparagraph (A), the Secretary shall grant access to the individual's record to the employer as expeditiously as practicable.

(i) a record of each request made by the employer for records from the clearinghouse; and

(ii) the information received pursuant to the request.

(D) Use of records.-An employer may use an individual's record received from the clearinghouse only to assess and evaluate whether a prohibition applies with respect to the individual to operate a commercial motor vehicle for the employer.

(E) Protection of privacy of individuals.-An employer that receives an individual's record from the clearinghouse under subparagraph (B) shall-

(i) protect the privacy of the individual and the confidentiality of the record; and

(ii) ensure that information contained in the record is not divulged to a person or entity that is not directly involved in assessing and evaluating whether a prohibition applies with respect to the individual to operate a commercial motor vehicle for the employer.

(2) State licensing authorities.-The Secretary shall establish a process for the chief commercial driver's licensing official of a State to request and receive an individual's record from the clearinghouse if the individual is applying for a commercial driver's license from the State.

(A) Consent.-The Secretary may grant access to an individual's record in the clearinghouse under this paragraph without the prior written or electronic consent of the individual. An individual who holds a commercial driver's license shall be deemed to consent to such access by obtaining a commercial driver's license.

(B) Protection of privacy of individuals.-A chief commercial driver's licensing official of a State that receives an individual's record from the clearinghouse under this paragraph shall-

(i) protect the privacy of the individual and the confidentiality of the record; and

(ii) ensure that the information in the record is not divulged to any person that is not directly involved in assessing and evaluating the qualifications of the individual to operate a commercial motor vehicle.

(i) National Transportation Safety Board.-The Secretary shall establish a process for the National Transportation Safety Board to request and receive an individual's record from the clearinghouse if the individual is involved in an accident that is under investigation by the National Transportation Safety Board.

(j) Access to Clearinghouse by Individuals.-

(1) In general.-The Secretary shall establish a process for an individual to request and receive information from the clearinghouse-

(A) to determine whether the clearinghouse contains a record pertaining to the individual;

(B) to verify the accuracy of a record;

(C) to update an individual's record, including completing the return-to-duty process described in title 49, Code of Federal Regulations; and

(D) to determine whether the clearinghouse received requests for the individual's information.

(2) Dispute procedure.-The Secretary shall establish a procedure, including an appeal process, for an individual to dispute and remedy an administrative error in the individual's record.

(k) Penalties.-

(1) In general.-An employer, employee, medical review officer, or service agent who violates any provision of this section shall be subject to civil penalties under section 521(b)(2)(C) and criminal penalties under section 521(b)(6)(B), and any other applicable civil and criminal penalties, as determined by the Secretary.

(2) Violation of privacy.-The Secretary shall establish civil and criminal penalties, consistent with paragraph (1), for an authorized user who violates paragraph (1) or (2) of subsection (h).

(l) Compatibility of State and Local Laws.-

(1) Preemption.-Except as provided under paragraph (2), any law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe related to a commercial driver's license holder subject to alcohol or controlled substance testing under title 49, Code of Federal Regulations, that is inconsistent with this section or a regulation issued pursuant to this section is preempted.

(2) Applicability.-The preemption under paragraph (1) shall include-

(A) the reporting of valid positive results from alcohol screening tests and drug tests;

(B) the refusal to provide a specimen for an alcohol screening test or drug test; and

(C) other violations of subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations).

(3) Exception.-A law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe shall not be preempted under this subsection to the extent it relates to an action taken with respect to a commercial motor vehicle operator's commercial driver's license or driving record as a result of the driver's-

(A) verified positive alcohol or drug test result;

(B) refusal to provide a specimen for the test; or

(C) other violations of subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations).

(m) Definitions.-In this section-

(1) Authorized user.-The term "authorized user" means an employer, State licensing authority, or other person granted access to the clearinghouse under subsection (h).

(2) Chief commercial driver's licensing official.-The term "chief commercial driver's licensing official" means the official in a State who is authorized to-

(A) maintain a record about commercial driver's licenses issued by the State; and

(B) take action on commercial driver's licenses issued by the State.

(3) Clearinghouse.-The term "clearinghouse" means the clearinghouse established under subsection (a).

(4) Commercial motor vehicle operator.-The term "commercial motor vehicle operator" means an individual who-

(A) possesses a valid commercial driver's license issued in accordance with section 31308; and

(B) is subject to controlled substances and alcohol testing under title 49, Code of Federal Regulations.

(5) Employer.-The term "employer" means a person or entity employing, or seeking to employ, 1 or more employees (including an individual who is self-employed) to be commercial motor vehicle operators.

(6) Medical review officer.-The term "medical review officer" means a licensed physician who is responsible for-

(A) receiving and reviewing a laboratory result generated under the testing program;

(B) evaluating a medical explanation for a controlled substances test under title 49, Code of Federal Regulations; and

(7) Secretary.-The term "Secretary" means the Secretary of Transportation.

(8) Service agent.-The term "service agent" means a person or entity, other than an employee of the employer, who provides services to employers or employees under the testing program.

(9) Testing program.-The term "testing program" means the alcohol and controlled substances testing program required under title 49, Code of Federal Regulations.

(Added Pub. L. 112–141, div. C, title II, §32402(a)(2), July 6, 2012, 126 Stat. 795 .)

References in Text

The date of enactment of the Safe Roads Act of 2012, referred to in subsec. (a)(1), is the date of enactment of subtitle D of title II of div. C of Pub. L. 112–141, which was approved July 6, 2012.

Section 226 of the Motor Carrier Safety Improvement Act of 1999, referred to in subsec. (b)(1)(A), is section 226 of Pub. L. 106–159, which is set out as a note under section 31306 of this title.

The Privacy Act of 1974, referred to in subsec. (d)(1), is Pub. L. 93–579, Dec. 31, 1974, 88 Stat. 1896 , which enacted section 552a of Title 5, Government Organization and Employees, and provisions set out as notes under section 552a of Title 5. For complete classification of this Act to the Code, see Short Title of 1974 Amendment note set out under section 552a of Title 5 and Tables.

The Fair Credit Reporting Act, referred to in subsec. (d)(2), is title VI of Pub. L. 90–321, as added by Pub. L. 91–508, title VI, §601, Oct. 26, 1970, 84 Stat. 1127 , which is classified generally to subchapter III (§1681 et seq.) of chapter 41 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 15 and Tables.

Effective Date

Section effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways.

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