Under 49 CFR § 382.103(d)(1), the requirements of 49 CFR Part 382 do not apply to employers and their drivers “required to comply with the alcohol and/or controlled substances testing requirements of part 655 (Federal Transit Administration (FTA) alcohol and controlled substances testing regulations).” Does this mean that FTA-regulated employers and drivers are exempt from the Clearinghouse requirements?
It depends. Drivers who perform only FTA-regulated safety-sensitive functions are exempt from Part 382, including the Clearinghouse requirements, as are their employers. These drivers and employers are subject only to the alcohol and/or controlled substances testing requirements of Part 655. On the other hand, FTA-regulated entities that employ drivers who also perform FMCSA-regulated safety-sensitive functions must comply with the relevant alcohol and/or controlled substances testing requirements of Part 382. The following examples illustrate how employers subject to Part 655 also could be subject to Part 382.
Example #1: A driver operates a bus under the authority of the FTA during the week, but sometimes operates a charter bus, for the same employer, on the weekend. The charter operation is regulated by FMCSA, not FTA. If the driver is involved in a crash during the charter operation and is subject to post-accident testing, that testing is conducted under the authority of FMCSA (§ 382.303) and the results must be reported to the Clearinghouse. The same would be true for any testing conducted under the authority of FMCSA (e.g., random testing for drivers in an FMCSA random pool (§ 382.305)). This result is the same for any employer regulated by more than one Department of Transportation (DOT) mode; the modal authority under which the testing is conducted determines which modal regulations apply.
Example #2: A driver regularly operates a bus under the authority of the FTA, but sometimes operates a truck, for which a commercial driver’s license (CDL) is required, for the same employer. In situations like this, the dual FTA/FMCSA regulated employer must conduct a pre-employment query for any driver expected to perform any FMCSA-regulated safety-sensitive functions in the course of their employment, and conduct an annual query for all drivers who have performed any FMCSA-regulated function within the last year.
The Clearinghouse is a secure online database that gives employers, the Federal Motor Carrier Safety Administration (FMCSA), State Driver Licensing Agencies (SDLAs), and State law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations.
The Clearinghouse contains records of violations of drug and alcohol prohibitions in 49 CFR Part 382, Subpart B, including positive drug or alcohol test results and test refusals. When a driver completes the return-to-duty (RTD) process and follow-up testing plan, this information is also recorded in the Clearinghouse.
An employer or service agent who knowingly submits false information to the Clearinghouse may be subject to criminal and/or civil penalties.
Employers and consortia/third-party administrators (C/TPAs) are required to provide specific documentation to support the reporting of actual knowledge or a refusal to test (§§ 382.705(b)(3) and (4)). The Federal Motor Carrier Safety Administration (FMCSA) will remove information from the driver’s Clearinghouse record that is determined to be false.
Are employers required to query the Clearinghouse or report drug and alcohol program violations for drivers who do not hold a commercial driver’s license (CDL) or commercial learner’s permit (CLP)?
No. Only employers who employ drivers subject to the licensing requirements in 49 CFR Part 383 and the drug and alcohol testing requirements in 49 CFR Part 382 are required to query or report information in the Clearinghouse. However, employers of drivers not holding a CDL or CLP must still comply with the driver investigation requirements of § 391.23(e), which includes drug and alcohol violation history.
Can an employer or medical review officer (MRO) enter a drug and alcohol program violation in a CDL driver’s Clearinghouse record if the driver is not registered for the Clearinghouse?
Yes. When a violation is entered, the Clearinghouse associates it with a driver’s commercial driver’s license (CDL) information. This will be recorded even if the driver has not registered for the Clearinghouse. When an employer queries a driver’s information in the Clearinghouse (with the appropriate consent), they will enter the driver’s CDL information to verify if any violations are associated with that driver’s CDL.
A driver is required to enter their CDL information during their Clearinghouse registration. This allows them to view any violation or return-to-duty (RTD) information associated with their CDL.
May employers report the results of drug or alcohol tests not required by the Department of Transportation (DOT) to the Clearinghouse?
No. Only results of DOT drug or alcohol tests or refusals may be reported to the Clearinghouse. While employers may conduct drug and alcohol testing that is outside the scope of the DOT testing requirements, positive test results or refusals for non-DOT testing may not be reported to the Clearinghouse.
If a driver has a drug and alcohol program violation in one State, then applies for a commercial driver’s license (CDL) in another State, will the Clearinghouse be able to connect that driver’s drug and alcohol violation history to the new CDL?
Yes. The Clearinghouse will identify drivers who move frequently and obtain CDLs in different States and link those CDLs, in order to maintain complete and accurate information on such drivers.
Employers who have actual knowledge that a driver has used alcohol or controlled substances in violation of Subpart B of Part 382 must report such violations to the Clearinghouse, in accordance with § 382.705(b)(4). Service agents, such as a consortium/third-party administrator (C/TPA), acting on the employer’s behalf may also report actual knowledge violations, as long as they comply with the reporting requirements in § 382.705(b)(4). Actual knowledge, as defined in § 382.107, is based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances, or an employee’s admission of alcohol or controlled substances use, except as provided in § 382.121.
No. The only negative test result reported to the Clearinghouse is a negative return-to-duty (RTD) result, which is reported by the employer or consortium/third-party administrator (C/TPA) in accordance with §§ 382.705(b)(1)(ii) or (b)(6). If the employer receives a negative-dilute RTD result from the MRO, the employer or C/TPA would report it to the Clearinghouse as a negative RTD result.
Yes. The final rule provides a petition process for drivers to request corrections to their Clearinghouse record (§ 382.717). Drivers may challenge only the accuracy of information reported, not the accuracy or validity of test results or refusals.
Do employers have access to violation information regarding current employees, including violations recorded by a different employer?
Employers may conduct a limited query, which requires consent outside of the Clearinghouse. If the limited query returns that records were found in the Clearinghouse for the queried driver, the employer must receive electronic consent for a full query from the driver in the Clearinghouse before detailed information may be released to the querying employer. The employer may also conduct a full query at any time, provided the employer has obtained the required electronic consent for the release of detailed violation information for the queried driver.
As of March 8, 2023, an employer will be notified via email if a driver they have queried has new information (such as an updated return-to-duty status, a removed violation, or a new violation) recorded in their Clearinghouse record within 12 months of a pre-employment or annual query. The Query History will also be updated to reflect that new information is available. This change is permitted as a “routine use” of the driver’s information under the Privacy Act and is set forth in FMCSA’s System of Records Notice for the Clearinghouse, accessible at 2019-22915.pdf (govinfo.gov).
Note: Previously, email notifications about new driver information were sent to employers within 30 days of a conducting pre-employment queries only. This has been expanded as described above.
How long will CDL driver violation records be available for release to employers from the Clearinghouse?
Driver violation records will be available in the Clearinghouse for five years from the date of the violation determination, or until the violation is resolved through the successful completion of the return-to-duty (RTD) process and follow-up testing plan, whichever is later.
Is a social security number (SSN) or employee identification number (EIN) required to enter a driver’s violation in the Clearinghouse?
No. The final rule requires the driver’s commercial driver’s license (CDL) number and issuing State must be used when reporting a drug and alcohol program violation in the Clearinghouse.
Should violations that occurred before the Clearinghouse Implementation Date be reported to the Clearinghouse?
No. The Clearinghouse contains only violations that occurred on or after January 6, 2020. If a driver’s violation occurred prior to January 6, 2020, and was in the return-to-duty (RTD) process when the Clearinghouse was implemented, the violation and any related RTD activity will not be entered into the Clearinghouse.
What are a medical review officer’s (MRO’s) responsibilities for reporting information to the Clearinghouse?
Within two business days of making a determination or verification of a Department of Transportation (DOT)-approved drug test, an MRO must report:
- Verified positive, adulterated, or substituted controlled substances test results; or
- Refusal-to-test determination.
The MRO must report any changes of a verified drug test within one business day of making any changes to the reported results.
Registration is required to complete these actions—visit https://clearinghouse.fmcsa.dot.gov/Register to register.
How are employers and consortia/third-party administrators (C/TPAs) required to use the Clearinghouse?
The Clearinghouse is a centralized database that employers use to report drug and alcohol program violations and to conduct queries, which check that current or prospective employees are not prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV), due to an unresolved drug and alcohol program violation—that is, a violation for which the driver has not completed the return-to-duty (RTD) process. Queries must be conducted as part of a pre-employment driver investigation, and at least annually for current employees.
In addition, employers may designate a C/TPA who can report violations and/or conduct queries on their behalf. An owner-operator—an employer that employs himself or herself as a CDL driver, typically a single-driver operation—must designate the C/TPA in the Clearinghouse.
To complete the actions outlined above, employers and C/TPAs are required to register in the Clearinghouse.
Are there plans to support an employer interface allowing for automated uploads via a web service, or similar?
At this time, there are no integration specifications available. Due to the Federal Motor Carrier Safety Administration (FMCSA) security requirements and the sensitive nature of driver violation information, employers and consortia/third-party administrators (C/TPAs) must access the Clearinghouse directly. In addition, the Clearinghouse final rule requires FMCSA to record specific consent for the release of the driver’s detailed violation information within the Clearinghouse.
Can Canadian and Mexican medical review officers (MROs) report confirmed positive test results and refusals to test to the Clearinghouse?
Yes, if the MRO meets the requirements under § 40.121.
The Clearinghouse will notify the driver using the method indicated during the driver’s Clearinghouse registration—either mail or email—any time information about the driver is added, revised, or removed. If the driver has not yet registered for the Clearinghouse, these notifications will be sent by mail using the address associated with the driver’s commercial driver’s license (CDL).
Employers who have previously conducted a query on a driver will be notified by email when there is new information in a driver’s Clearinghouse record if:
- The query was initiated on or after the September 14, 2022 System of Records Notice; and
- The new information was recorded after March 8, 2023.
All users registered under the employer, including Assistants, will receive the notification email. If a consortium third-party administrator (C/TPA) initiated the query on behalf of the employer, the C/TPA’s Clearinghouse users will also receive the notification email. These users will also see a notice of new information in the Query History.
May an employer authorize a consortium/third-party administrator (C/TPA) to conduct queries in the Clearinghouse on their behalf?
Yes. Employers may designate a C/TPA or C/TPAs to conduct queries and/or report violations on their behalf. The C/TPA must be registered in the Clearinghouse before an employer can select the C/TPA, and C/TPAs must be designated by the employer before reporting drug and alcohol program violations or querying the Clearinghouse on their behalf.An owner-operator (an employer that employs himself or herself as a commercial driver’s license (CDL) driver, typically a single-driver operation) must designate their C/TPA(s) as part of their Clearinghouse registration process.
If a DOT drug testing specimen was collected prior to January 6, 2020, but the MRO did not verify a result as positive until January 6, 2020 or later, must the MRO report the verified positive result to the Clearinghouse?
Can a substance abuse professional (SAP) modify or delete return-to-duty (RTD) information he/she has reported?
Yes. If a SAP made an error while entering a driver’s RTD information, the SAP, or the SAP’s Clearinghouse Assistants, can make changes to this information. Entries may be removed one at a time by deleting the most recent entry. See pages 5-6 of the How to Report RTD Information: SAPs job aid for instructions.
Should an employer report to the Clearinghouse the results of a test conducted under the authority of another U.S. Department of Transportation (DOT) agency?
No. Only Part 382 drug and alcohol program violations may be reported to the Clearinghouse.
The Federal Drug Testing Custody and Control Form (CCF) specifies the DOT agency requesting the test, and employers may only report to the Clearinghouse a positive result when FMCSA is agency designated on the CCF.
What is the timeframe in which an employer must submit a report of an employee’s drug and alcohol program violation to the Clearinghouse?
Employers are required to report a drug and alcohol program violation by the close of the third business day following the date on which the employer obtained the information.
An owner-operator (an employer who employs himself or herself as a CDL driver, typically a single-driver operation) is subject to the requirements pertaining to employers as well as those pertaining to drivers. Under the Clearinghouse final rule, an employer who employs himself or herself as a CDL driver must designate a consortium/third-party administrator (C/TPA) to comply with the employer’s Clearinghouse reporting requirements (§ 382.705(b)(6)).
If a driver violated the drug and alcohol program prior to January 6, 2020, but the employer did not obtain actual knowledge (as defined in § 382.107) of the violation until January 6, 2020 or later, is the employer required to report the violation to the Clearinghouse?
What information is a medical review officer (MRO) required to provide when reporting a determination or verification?
The following information must be provided:
- Reason for the test;
- Federal Drug Testing Chain of Custody Form (CCF) specimen ID number;
- Driver’s name, date of birth, and commercial driver’s license (CDL) number and State of issuance;
- Employer’s name, address, and USDOT Number, if applicable;
- Date of the test and date of the verified result;
- Test result;
- In the case of an adulterated specimen, the adulterant/reason must also be provided.
Per § 382.705, the following individuals must report the following information:
- Employers, or consortia/third-party administrators (C/TPAs) acting on behalf of an employer, enter drug and alcohol program violation information into the Clearinghouse.
- Medical review officers (MROs) enter drug violation information. The driver does not need to be registered in the Clearinghouse for a violation to be added to their Clearinghouse record.
- Substance abuse professionals (SAPs) enter the date of initial SAP assessment and date the driver is eligible for RTD testing.
- Employers enter the negative RTD test result(s) and the date the driver’s follow-up testing plan has been successfully completed.
What information is an employer required to report to the Clearinghouse when reporting actual knowledge that a CDL driver used alcohol or controlled substance, as defined in § 382.107?
Per § 382.705(b)(5), when reporting actual knowledge, employers must report the following:
- Driver's name, date of birth, commercial driver’s license (CDL) number and State of issuance;
- Employer name, address, and USDOT number, if applicable;
- Date the employer obtained actual knowledge of the violation;
- Witnesses to the violation, if any, including contact information;
- Description of the violation;
- Evidence supporting each fact alleged in the description of the violation, which may include, but is not limited to, affidavits, photographs, video or audio recordings, employee statements (other than admissions pursuant to § 382.121), correspondence, or other documentation; and
- A certificate of service or other evidence showing that the employer provided the employee with all information reported.
Are Canadian and Mexican employers required to report drug and alcohol program violations to the Clearinghouse?
Only Canadian and Mexican employers operating in the United States that are subject to the Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol testing requirements must report drug and alcohol program violations to the Clearinghouse.
When an employer receives a notification that there is a change to information in a driver’s Clearinghouse record, the employer should complete a full follow-on query within 24 hours to determine if the new information prohibits the driver from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV).
In order for the employer to conduct the follow-on query, the driver must provide specific consent electronically in the Clearinghouse. In accordance with 49 CFR 382.703(c), if the driver refuses to grant specific consent, the employer must remove the driver from safety-sensitive functions until a full query is conducted and the results obtained. Once the full query is conducted, the driver may resume safety-sensitive functions only if the query returns a “Not Prohibited” status.
Per § 382.705(b), employers must report the following information to the Clearinghouse:
- An alcohol confirmation test result with an alcohol concentration of 0.04 or greater;
- A CDL driver’s refusal to submit to a Department of Transportation (DOT) test for drug or alcohol use;
- Actual knowledge, as defined in § 382.107;
- The negative RTD test results;
- The date the driver successfully completed all follow-up tests as ordered by the substance abuse professional (SAP).
What identifying number should be documented for drivers on the Federal Drug Testing Chain of Custody Form (CCF) and Alcohol Testing Form (ATF)?
The current paper versions of the CCF and ATF specifically permit the use of either the driver’s social security number (SSN) or an employee identification number (EIN). However, under § 382.705, the driver’s commercial driver’s license (CDL) number and the state of issuance must be used in place of the SSN or EIN when completing the Federal CCF or ATF.
If a medical review officer (MRO) changes a verified drug test result per 49 CFR Part 40, how long does the MRO have to submit the change to the Clearinghouse?
If an MRO changes a verified drug test, the MRO must submit that change to the Clearinghouse within one business day of making the change in the reported results.
What are the repercussions if an employer does not meet the required timeframe for reporting a violation?
The employer may still report the drug and alcohol program violation even if the required timeframe has passed. However, the Clearinghouse captures the date the violation was reported. This information may be reviewed during an investigation of the employer’s operations and compliance with the Federal Motor Carrier Safety Regulations.
Are motor carrier employers operating in Puerto Rico required to query/report to the Clearinghouse if they employ commercial driver’s license (CDL) holders who rely on the CDL to legally operate a commercial motor vehicle (CMV) in Puerto Rico?
No. The Clearinghouse final rule did not change the underlying requirements in 49 CFR Part 382, which apply to employers of individuals subject to the Federal Motor Carrier Safety Administration (FMCSA) drug and alcohol use testing requirements. As stated in § 382.103, those testing requirements apply to CDL holders who operate a CMV in commerce “in any State.” As defined in § 383.5, State means “a State of the United States and the District of Columbia.”
How does the Clearinghouse impact employers of commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders?
The Clearinghouse offers employers a centralized location to query driver information and report drug and alcohol program violations incurred by their current and prospective employees holding CDLs and CLPs. The employer must use the Clearinghouse to:
- Conduct a full query of the Clearinghouse as part of each pre-employment driver investigation process.
- Conduct limited queries at least annually for every driver they employ.
- Request electronic consent from the driver for a full query, including pre-employment queries.
- Report drug and alcohol program violations.
- Record the negative return-to-duty (RTD) test results and the date of successful completion of a follow-up testing plan for any driver they employ with unresolved drug and alcohol program violations.
Employers and C/TPAs can assign Assistants to conduct queries and report drug and alcohol program violation information on their behalf. MROs and SAPs can assign Assistants to enter information in the Clearinghouse on their behalf.