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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Rules and Regulations violation information. The changes also provide consistency with the reference in paragraph b5 to non-DOT followup testing.

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G. Section 382.123 Driver identification In 382.123b2, FMCSA corrects a reference to the Alcohol Testing Form ATF the subject of paragraph a, instead of the Federal Drug Testing Custody and Control Form CCF the subject of paragraph b. The heading of 382.123b Identification information on the Federal Drug Testing Custody and Control Form CCF indicates this paragraph relates to the information required to be provided on the CCF.
H. Section 382.701 Drug and Alcohol Clearinghouse Subpart G of part 382, beginning with 382.701, provides requirements and procedures for implementation of the Clearinghouse. In 382.701, FMCSA
amends paragraph d by adding after the first use of the word driver the words the employer employs or intends to hire or use. The sentence now reads, in part, No employer may allow a driver the employer employs or intends to hire or use to perform any safety-sensitive function if the results of a Clearinghouse query demonstrate that the driver has a verified positive, adulterated, or substituted controlled substances test result . . . .
The purpose of the amendment is to align 382.701d with 49 U.S.C.
31306a, which prohibits employers from using current and prospective employee-drivers to operate a commercial motor vehicle CMV if a query of the Clearinghouse shows the driver has violated the drug and alcohol testing program requirements and has not completed the return-to-duty process. In this regard, section 31306am5 defines employer as a person or entity employing, or seeking to employ, 1 or more employees including an individual who is selfemployed to be commercial motor vehicle operators. As currently drafted, 382.701d may imply that the prohibition against permitting a driver with unresolved drug and alcohol testing program violations to perform safety-sensitive functions applies to current, and not prospective, employeedrivers. This amendment makes clear that, consistent with the statute, the prohibition applies to employers of current and prospective drivers. In addition, the amendment conforms 382.701d to 382.301a Preemployment testing, which states, in part, No employer shall allow a driver, who the employer intends to hire or use,
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to perform safety-sensitive functions unless the employer has received a controlled substances test result from the Medical Review Officer MRO or Consortium/Third party Administrator C/TPA indicating a verified negative test result for that driver.
I. Section 382.705 Reporting to the Clearinghouse FMCSA amends three paragraphs of 382.705b. In paragraph b3iii, FMCSA replaces the word designated with the phrase authorized to act for clarity. This clarifying change avoids potential confusion caused by use of the word designate elsewhere in the section. In paragraph b6 of that same section, designate pertains to the designation of a C/TPA for Clearinghouse reporting purposes. By substituting authorized to act for designate in paragraph b3iii, FMCSA makes clear that, as intended, the C/TPA must have been acting with actual authority as a service agent when the refusal occurred; whether the C/TPA
is designated by the employer, as that term is used in paragraph b6, when the refusal occurs, is not relevant.
In paragraphs b3iv and b5vii, FMCSA adds if applicable to the end of each paragraph. This change clarifies that when reporting a failure to appear refusal under paragraph b3 or an actual knowledge violation under paragraphs b4 and 5, the requirement that employers submit documentation showing that the driver was provided with all the information reported to the Clearinghouse does not apply if the driver is registered in the Clearinghouse.
Drivers who are registered in the Clearinghouse have electronic access to the information and documents referenced in paragraphs b3 and 5, thereby making the employers separate delivery of the documentation to the driver unnecessary.
J. Section 382.717 Procedures for Correcting Certain Information in the Database In the heading of this section, FMCSA
adds the word certain after the word correcting to reflect more accurately the limited scope of this section, which sets forth procedures drivers may use to request correction or removal of certain types of information about them that exists in the Clearinghouse. In the heading of paragraph a, FMCSA
replaces the word inaccurately with incorrectly. The Agency also makes clarifying changes to 382.717a1 to ensure that drivers understand the narrow basis for the correction or removal of their Clearinghouse records
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permitted under this section. These clarifications are consistent with the limited scope of 382.717, as discussed in the preamble to the December 2016
final rule establishing the Clearinghouse requirements 81 FR 87686, 87715, Dec.
5, 2016, the Privacy Impact Assessment for the Clearinghouse, and the System of Records Notice for the Clearinghouse 84 FR 56521, 56526, Oct. 22, 2019. As explained collectively therein, the correction processes in 382.717 apply only to administrative errors or an employers failure to comply with documentation requirements for reporting certain test refusal and actual knowledge violations, as set forth in 382.703, paragraphs b3 and 5;
drivers may not contest the accuracy of drug and alcohol program violation information, such as test results or refusals.
K. Section 382.725 Access by State Licensing Authorities In 382.725c, FMCSA inserts the word commercial after chief in the second sentence for consistency with use of the term chief commercial drivers licensing official in that section. This amendment also helps to avoid confusion concerning the existing language, which may appear to introduce another category of licensing official.
L. Section 383.3 Applicability In 383.3c, FMCSA corrects a typographical error by adding a missing s to the word member, in the phrase member of the national guard on active duty, to improve readability.
M. Section 383.5 Definitions At the end of paragraph 1 in the definition of Commerce in 383.5, FMCSA changes the conjunctive and to or to be consistent with the definition of Commerce in 49 U.S.C.
313012. This action updates language that has been in 383.5 since FHWA
amended the FMCSRs to implement the requirements of the Commercial Motor Vehicle Safety Act of 1986 on June 1, 1987 52 FR 20574, 20587. Paragraph 2 of 49 U.S.C. 31301 provides that commerce means trade, traffic, and transportation in the United States between a place in a State and a place outside that State including a place outside the United States; or in the United States that affects trade, traffic, and transportation between a place in a State and a place outside that State. This definition applies to 49 U.S.C. 31302
Commercial drivers license requirement, including the definition of Commerce in 383.5 of 49 CFR part 383 Commercial drivers license
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