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

(a)

In general

Chapter 313 of title 49, United States Code, is amended— (1)in section 31306(a), by inserting and section 31306a after this section; and (2)by inserting after section 31306 the following:

31306a.

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

(a)

Establishment

(1)

In general

Not later than 2 years after the date of the enactment of the Safe Roads Act of 2011, the Secretary of Transportation (referred to in this section as the Secretary) shall establish 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 substance testing program applicable to commercial motor vehicle operators; (B)to facilitate access to information about an individual before that individual is employed as a commercial motor vehicle operator; (C)to enhance the safety of our United States roadways by reducing accident fatalities involving commercial motor vehicles; and (D)to reduce the demand for illegal drugs and the number of impaired commercial motor vehicle operators. (3)

Contents

The clearinghouse shall function as a repository for records relating to the verified 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 and experienced private entity to operate and maintain the clearinghouse and to collect fees on behalf of the Secretary under subsection (e). Such entity shall establish, operate, maintain, and expand the clearinghouse and permit access to deliver information and records from the clearinghouse to individuals and employers only as authorized by the Secretary 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 (Public Law 106–159); 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 all applicable Federal security standards; (B)registering and authenticating authorized users of the clearinghouse; (C)registering and authenticating individuals required to report to the clearinghouse under subsection (g); (D)preventing the unauthorized access of information from the clearinghouse; (E)storing and transmitting data; (F)individuals 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 consider developing a secure method for electronically notifying an employer of any additional positive test results or other noncompliance for an individual that are entered into the clearinghouse during the 7-day period immediately following an employer’s inquiry about such individual. (4)

Archive capability

In establishing the clearinghouse, the Secretary shall develop a process for archiving all clearinghouse records, including the depositing of personal records, records relating to each individual in the database, and access requests for personal records, for the purposes of— (A)auditing and evaluating the timeliness, accuracy, and completeness of data in the clearinghouse; and (B)auditing to monitor compliance and enforce penalties for noncompliance. (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; and (III)other data systems, as appropriate; and (ii)any changes to the administration of the current testing program, such as forms, that are necessary to collect data for the clearinghouse. (c)

Standard forms

The Secretary shall develop standard forms to be used— (1)by employers and other authorized users of the clearinghouse to— (A)request records from the clearinghouse; and (B)obtain the consent of each individual who is the subject of a request from the clearinghouse; and (2)to notify individuals that positive alcohol and controlled substances test results, refusals to test, and violations of prohibitions set forth in 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

Information may not be released from the clearinghouse unless such release complies with all applicable Federal privacy laws and regulations, including the Health Insurance Portability and Accountability Act of 1996 (Public Law 104–191) and fair information practices under the Privacy Act of 1974 (5 U.S.C. 552a). (e)

Fees

(1)

Authority to collect fees

Except as provided under paragraph (3), the Secretary may collect reasonable, customary, and nominal fees from employers and other authorized users of the clearinghouse for requests 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 any individual requesting information from the clearinghouse that pertains to the record of the individual. (f)

Employer requirements

(1)

Determination concerning use of clearinghouse

The Secretary shall determine which commercial motor carrier employers are 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 commercial motor carrier employer and service agent shall comply with the alcohol and controlled substances testing requirements under title 49, Code of Federal Regulations. (3)

Employment prohibitions

A commercial motor carrier employer shall not hire an individual to operate a commercial motor vehicle unless the employer has determined that the individual, during the preceding 3-year period— (A)has been tested for the use of alcohol and controlled substances, as required under title 49, Code of Federal Regulations; (B)(i)has not tested positive for the use of alcohol or controlled substances in violation of such regulations; or (ii)has tested positive for the use of alcohol or controlled substances and has completed the required return-to-duty process described in title 49, Code of Federal Regulations; (C)has not refused to take the alcohol or controlled substance tests required under title 49, Code of Federal Regulations; and (D)has not violated any other provision of subpart B of part 382 of title 49, Code of Federal Regulations (or any subsequent corresponding regulations). (g)

Reporting of records

(1)

In general

Medical review officers, employers, service agents, and other appropriate persons, as determined by the Secretary, shall promptly submit to the Secretary records in their possession of any individual who— (A)has refused to take an alcohol or controlled substance test required under title 49, Code of Federal Regulations; (B)has tested positive for alcohol or a controlled substance in violation of such regulations; or (C)has violated 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 all records of positive test results and test refusals received pursuant to 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, unless such notification would be duplicative, an individual when— (A)a record relating to the individual has been received by the clearinghouse; (B)any record in the clearinghouse relating to the individual is modified or deleted, and include in such notification the reason for such modification or deletion; or (C)any record in the clearinghouse relating to the individual is released to an employer and shall include in such notification the reason for such a 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 individual, employer, or State licensing official; and (C)the individuals with records in the clearinghouse have a cause of action for the inappropriate use of information included in the clearinghouse. (6)

Retention of records

The Secretary shall— (A)retain all the records submitted to the clearinghouse during the 5-year period beginning on the date on which such records are submitted; (B)remove such records from the clearinghouse at the end of such 5-year period, unless the individual has not met required return-to-duty and follow-up requirements under title 49, Code of Federal Regulations; and (C)retain records beyond the end of such 5-year period in a separate location for archiving and auditing purposes. (h)

Access to clearinghouse by employers

(1)

In general

The Secretary shall establish a process to require employers to request and review any records in the clearinghouse pertaining to an individual before employing the individual and each year thereafter as long as the individual is under the employ of the employers. (2)

Consent requirement

An employer may not be granted access to any records in the clearinghouse pertaining to an individual until after the employer— (A)obtains the prior written or electronic consent of the individual for access to such records; and (B)submits proof of such consent to the Secretary. (3)

Access to records

Upon receiving from an employer a request, in compliance with paragraph (2), for records in the clearinghouse pertaining to an individual, the Secretary shall provide access to the records to the employer as expeditiously as practicable. (4)

Retention of record requests

The Secretary shall require employers to retain, for a 3-year period— (A)a record of each request made by the employer for records from the clearinghouse; and (B)any information received pursuant to such request. (5)

Use of records

(A)

In general

An employer may use a record of an individual received from the clearinghouse only to assess and evaluate the qualifications of the individual to operate a commercial motor vehicle for such employer. (B)

Protection or privacy of individuals

An employer that receives a record from the clearinghouse pertaining to an individual 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 any person or entity who is not directly involved in assessing and evaluating the qualifications of the individual to operate a commercial motor vehicle for the employer receiving the record. (i)

Access to clearinghouse by individuals

(1)

In general

The Secretary shall establish a process by which any individual may 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 such 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 has received requests for information regarding the individual. (2)

Dispute procedure

The Secretary shall establish a procedure, including an appeal process, for any individual to dispute and remedy administrative errors contained in a record in the clearinghouse that pertains to such individual. (j)

Access to clearinghouse by State licensing authorities

(1)

In general

The Secretary shall establish a process by which the chief commercial driver’s licensing official of a State may request and receive records from the clearinghouse that pertain to an individual applying for a commercial driver’s license from such State. (2)

Implied consent

The chief commercial driver’s licensing official of a State may be granted access to any records in the clearinghouse pertaining to an individual without obtaining the prior written or electronic consent of the individual and submitting proof of such consent. Any individual who holds a commercial driver’s license shall be deemed to have consented to such access. Consent is implied by obtaining a commercial driver’s license from the State and by driving a commercial motor vehicle. (3)

Protection of privacy of individuals

If the chief commercial driver’s licensing official of a State receives a record from the clearinghouse pertaining to an individual, the official shall— (A)protect the privacy of the individual and the confidentiality of record; and (B)ensure that information contained in the record is not divulged to any person within or outside the State government who is not directly involved in assessing and evaluating the qualifications of the individual to operate a commercial motor vehicle. (k)

Penalties

An employer, employee, medical review officer, or service agent who violates any provision of this section or section 3 of the Safe Roads Act of 2011 shall be subject to the civil and criminal penalties described in section 521(b) of title 49, United States Code, and other applicable civil and criminal penalties, as determined by the Secretary. (l)

Compatibility of State and local laws

(1)

Preemption

Except as provided under paragraph (3), any law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe related to commercial driver’s license holders subject to alcohol or controlled substance testing under title 49, Code of Federal Regulations, which is inconsistent with the requirements under this section or any regulation issued pursuant to the authority of this section is preempted. (2)

Applicability

The preemption under paragraph (1) shall apply to— (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 actions taken with respect to a commercial motor vehicle operator’s commercial driver’s license or driving record as a result of such 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 users

The term authorized users means employers, State licensing authorities, and other individuals granted access to the clearinghouse. (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 is— (A)in possession of a valid commercial driver’s license issued in accordance with section 31308; and (B)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 laboratory results generated under the testing program; (B)evaluating medical explanations for alcohol and controlled substances tests required under title 49, Code of Federal Regulations; and (C)deciding the outcome of controlled substance tests. (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.

(b)

Clerical amendment

The analysis for chapter 313 of title 49, United States Code, is amended by inserting after the item relating to section 31306 the following:

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