Words or phrases used in this part are defined in §§386.2 and 390.5 of this subchapter, and §40.3 of this title, except as provided in this section-
Actual knowledge for the purpose of subpart B of this
part, means actual knowledge by an employer that a driver has used alcohol or
controlled substances 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 substance use,
except as provided in §382.121.
Direct observation as used in this definition means observation of alcohol or
controlled substances use and does not include observation of employee behavior
or physical characteristics sufficient to warrant reasonable suspicion testing
under §382.307.
Alcohol means the intoxicating agent in beverage
alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl
and isopropyl alcohol.
Alcohol concentration (or content) means the alcohol
in a volume of breath expressed in terms of grams of alcohol per 210 liters of
breath as indicated by an evidential breath test under this part.
Alcohol use means the drinking or swallowing of any
beverage, liquid mixture or preparation (including any medication), containing
alcohol.
Commerce means:
(1) Any trade, traffic or transportation within the
jurisdiction of the United
(2) Trade, traffic, and transportation in the
Commercial motor vehicle
means a motor vehicle or combination of motor vehicles used in commerce to
transport passengers or property if the vehicle-
(1) Has a gross combination weight rating of 11,794 or more
kilograms (26,001 or more pounds) inclusive of a towed unit with a gross
vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(2) Has a gross vehicle weight rating of 11,794 or more
kilograms (26,001 or more pounds); or
(3) Is designed to transport 16 or more passengers,
including the driver; or
(4) Is of any size and is used in the transportation of
materials found to be hazardous for the purposes of the Hazardous Materials
Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to
be placarded under the Hazardous Materials Regulations (49 CFR part 172,
subpart F).
Confirmation (or confirmatory) drug test means a
second analytical procedure performed on a urine specimen to identify and
quantify the presence of a specific drug or drug metabolite.
Confirmation (or confirmatory) validity test means a
second test performed on a urine specimen to further support a validity test
result.
Confirmed drug test means a confirmation test result
received by an MRO from a laboratory.
Consortium/Third party administrator (C/TPA) means a
service agent that provides or coordinates one or more drug and/or alcohol
testing services to DOT-regulated employers. C/TPAs
typically provide or coordinate the provision of a number of such services and
perform administrative tasks concerning the operation of the employers' drug
and alcohol testing programs. This term includes, but is not limited to, groups
of employers who join together to administer, as a single entity, the DOT drug
and alcohol testing programs of its members (e.g., having a combined random
testing pool). C/TPAs are not "employers"
for purposes of this part.
Controlled substances mean those substances
identified in §40.85 of this title.
Designated employer representative (DER) is an
individual identified by the employer as able to receive communications and
test results from service agents and who is authorized to take immediate
actions to remove employees from safety-sensitive duties and to make required
decisions in the testing and evaluation processes. The individual must be an
employee of the company. Service agents cannot serve as DERs.
Disabling damage means damage which precludes departure
of a motor vehicle from the scene of the accident in its usual manner in
daylight after simple repairs.
(1) Inclusions. Damage to motor
vehicles that could have been driven, but would have been further damaged if so
driven.
(2) Exclusions.
(i)
Damage which can be remedied temporarily at the scene of the accident without
special tools or parts.
(ii) Tire disablement without other damage even if no spare
tire is available.
(iii) Headlight or taillight damage.
(iv) Damage to turn signals, horn,
or windshield wipers which make them inoperative.
DOT Agency means an agency (or "operating
administration") of the United States Department of Transportation
administering regulations requiring alcohol and/or drug testing (14 CFR parts
61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, and 655), in accordance
with part 40 of this
title.
Driver means any person who operates a commercial
motor vehicle. This includes, but is not limited to: Full time, regularly
employed drivers; casual, intermittent or occasional drivers; leased drivers
and independent owner-operator contractors.
Employer means a person or entity employing one or
more employees (including an individual who is self-employed) that is subject
to DOT agency regulations requiring compliance with this part. The term, as
used in this part, means the entity responsible for overall implementation of
DOT drug and alcohol program requirements, including individuals employed by
the entity who take personnel actions resulting from violations of this part
and any applicable DOT agency regulations. Service agents are not employers for
the purposes of this part.
Licensed medical practitioner means a person who is
licensed, certified, and/or registered, in accordance with applicable Federal,
State, local, or foreign laws and regulations, to prescribe controlled
substances and other drugs.
Performing (a safety-sensitive function) means a
driver is considered to be performing a safety-sensitive function during any
period in which he or she is actually performing, ready to perform, or
immediately available to perform any safety-sensitive functions.
Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under this part plus the number of refusals of random drug tests required by this part, divided by the total number of random drug tests results (i.e.,positives, negatives, and refusals) under this part.
Refuse to submit (to an alcohol or controlled substances
test) means that a driver:
(1) Fail to appear for any test (except a pre-employment
test) within a reasonable time, as determined by the employer, consistent with
applicable DOT agency regulations, after being directed to do so by the
employer. This includes the failure of an employee (including an
owner-operator) to appear for a test when called by a C/TPA (see §40.61(a) of this title);
(2) Fail to remain at the testing site until the testing
process is complete. Provided, that an employee who leaves the testing site
before the testing process commences (see §40.63(c) of this title)
a pre- employment test is not deemed to have refused to test;
(3) Fail to provide a urine specimen for any drug test required
by this part or DOT agency regulations. Provided, that an employee who does not
provide a urine specimen because he or she has left the testing site before the
testing process commences (see §40.63(c) of this title)
for a pre-employment test is not deemed to have refused to test;
(4) In the case of a directly observed or monitored
collection in a drug test, fails to permit the observation or monitoring of the
driver's provision of a specimen (see §§40.67(l) and 40.69(g) of this title);
(5) Fail to provide a sufficient amount of urine when
directed, and it has been determined, through a required medical evaluation,
that there was no adequate medical explanation for the failure (see §40.193(d)(2) of this title);
(6) Fail or declines to take a second test the employer or
collector has directed the driver to take;
(7) Fail to undergo a medical examination or evaluation, as
directed by the MRO as part of the verification process, or as directed by the
DER under §40.193(d)
of this title. In the case of a pre- employment drug test, the employee is
deemed to have refused to test on this basis only if the pre-employment test is
conducted following a contingent offer of employment;
(8) Fail to cooperate with any part of the testing process
(e.g., refuse to empty pockets when so directed by the collector, behave in a
confrontational way that disrupts the collection process); or
(9) Is reported by the MRO as having a verified adulterated
or substituted test result.
Safety-sensitive function means all time from the
time a driver begins to work or is required to be in readiness to work until
the time he/she is relieved from work and all responsibility for performing
work. Safety-sensitive functions shall include:
(1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by §§392.7 and 392.8 of this subchapter or
otherwise inspecting, servicing, or conditioning any commercial motor vehicle
at any time;
(3) All time spent at the driving controls of a commercial
motor vehicle in operation;
(4) All time, other than driving time, in or upon any
commercial motor vehicle except time spent resting in a sleeper berth (a berth
conforming to the requirements of §393.76 of this subchapter);
(5) All time loading or unloading a vehicle, supervising, or
assisting in the loading or unloading, attending a vehicle being loaded or
unloaded, remaining in readiness to operate the vehicle, or in giving or
receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining
in attendance upon a disabled vehicle.
Screening test (or initial test) means:
(1) In drug testing, a test to eliminate "negative"
urine specimens from further analysis or to identify a specimen that requires
additional testing for the presence of drugs.
(2) In alcohol testing, an analytical procedure to determine
whether an employee may have a prohibited concentration of alcohol in a breath
or saliva specimen.
Stand-down means the practice of temporarily removing
an employee from the performance of safety-sensitive functions based only on a
report from a laboratory to the MRO of a confirmed positive test for a drug or
drug metabolite, an adulterated test, or a substituted test, before the MRO has
completed verification of the test results.
Violation rate for random alcohol testing means the number of 0.04 and above random alcohol confirmation test results conducted under this part plus the number of refusals of random alcohol tests required by this part, divided by the total number of random alcohol screening tests (including refusals) conducted under this part.
[66 FR 43103,