Public interest exclusion (PIE)

Scope

The regulations apply to the service providers involved in the drug and alcohol testing process as it relates to drivers of commercial motor vehicles (CMVs) and motor carriers involved in interstate, intrastate, and foreign commerce.

Regulatory citations

• 49 CFR 40, Subpart R — Public interest exclusions
• 49 CFR 382.117 — Public interest exclusion

Key definitions

• Public interest exclusion (PIE): A serious action taken by the Department of Transportation (DOT) to remedy situations of serious noncompliance by service agents involved in a motor carrier’s drug and alcohol testing program.

Summary of requirements

The DOT uses PIEs to exclude from participation in its drug and alcohol testing program any service agent who, by serious noncompliance, has shown that it is not currently acting in a responsible manner.

A PIE is a serious action the DOT takes to remedy situations of serious noncompliance. The following are some examples of serious noncompliance that the DOT views as grounds for starting a PIE proceeding:

• For an MRO, verifying tests positive without interviewing the employees as required by Part 40;
• For a laboratory, a pattern or practice of testing errors that result in the cancellation of tests;
• For a collector, a pattern or practice of directly observing collections when doing so is unauthorized, or failing or refusing to directly observe collections when doing so is mandatory;
• For collectors, breath alcohol technicians (BATs), or screening test technicians (STTs), a pattern or practice of using forms, testing equipment, or collection kits that do not meet Part 40 standards;
• For a laboratory, falsifying, concealing, or destroying documentation concerning any part of the drug testing process, including, but not limited to, documents in a “litigation package”;
• For substance abuse professionals (SAPs), providing SAP services while not meeting SAP qualifications required by Part 40 or performing evaluations without face-to-face interviews; or
• For any service agent, disclosing an employee’s test result information to any party Part 40 or a DOT agency regulation does not authorize, including obtaining a “blanket” consent from employees or by creating a data base from which employers or others can retrieve an employee’s DOT test results without specific consent of the employee.

Correction notice. Prior to the initiation of a PIE proceeding, a service agent will receive a correction notice. The correction notice identifies the specific areas in which the service agent must come into compliance to avoid being subject to a PIE proceeding.

If, within 60 days, appropriate corrections are made and documented and the corrections are verified a PIE proceeding will not be initiated.

If the compliance matter is not correctable, or if it hasn’t been resolved, a PIE proceeding will begin.

PIE proceeding. The proceeding begins with the issuance of a notice of proposed exclusion (NOPE). The NOPE contains recommendations concerning the issuance of a PIE, but is not a decision by the DOT to issue a PIE.

A service agent that receives a NOPE may contest the issuance of the PIE within 30 days of receiving the NOPE.

Several factors may be considered prior to the issuance of a PIE including:

• Actual harm or potential harm that results or may result from noncompliance;
• The frequency of incidents and/or duration of noncompliance;
• Whether there is a pattern or prior history of noncompliance; and
• Whether the noncompliance was pervasive within the organization.

A decision on whether a PIE will be issued will be made within 60 days of the date when the record of a PIE proceeding is complete. This may be extended for up to an additional 30 days.

The service provider will receive written notice as to whether a PIE will be issued.

If a PIE is issued to a service agent, the PIE applies to all divisions, organizational elements, and types of services that are involved with or affected by the noncompliance that forms the factual basis for issuing the PIE.

The duration of a PIE ranges from one to five years.

Public notification. The DOT maintains a document called the “List of Excluded Drug and Alcohol Service Agents.” This document may be found on the DOT’s website. The DOT also publishes a Federal Register notice when a PIE is added to or taken off the list.

Client notification. A service agent that receives a PIE must notify each of its DOT-regulated employer clients, in writing, about the issuance, scope, duration, and effect of the PIE. This notification must take place within three working days of the issuance of the PIE.

As part of the notice, the service agent must offer to transfer immediately all records pertaining to the employer and its employees to the employer or to any other service agent the employer designates. This transfer must be carried out as soon as the employer requests it.

Employer responsibilities. An employer should check the “List of Excluded Drug and Alcohol Service Agents” to ensure that any service agents being used or planned on being used are not subject to a PIE.

An employer who is using a service agent for whom a PIE has been issued must stop using the service of the service agent within 90 days after the DOT publishes a notice in the Federal Register or posts it on its website. An employer can apply for a 30-day extension if the employer can demonstrate that it cannot find a suitable service agent within 90 days.

An employer that uses a service provider that has received a PIE, is in violation of DOT regulations and is subject to sanctions.

The issuance of a PIE does not result in the cancellation of drug or alcohol tests conducted using the service agent involved before issuance of the PIE or up to 90 days following its publication in the Federal Register or posting on the DOT’s website, unless otherwise specified.