[Federal Register: April 30, 2001 (Volume 66, Number 83)]
[Proposed Rules]
[Page 21538-21551]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap01-31]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 382
[Docket No. FMCSA-2000-8456]
RIN 2126-AA58
Controlled Substances and Alcohol Use and Testing
AGENCY: Federal Motor Carrier Safety Administration (FMCSA),
DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for
comments.
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SUMMARY: The Department of Transportation published a revision
of its drug and alcohol testing procedures regulations on December 19,
2000. Consequently, the FMCSA is proposing to amend its controlled
substances and alcohol testing regulations to ensure consistency with
DOT's revised testing procedures and to avoid duplication. In addition,
the FMCSA is proposing to amend its drug and alcohol testing
regulations to update outdated provisions and clarify existing rules.
DATES: You must submit comments on or before June 14, 2001.
ADDRESSES: You can mail or hand deliver written comments to the
US Department of Transportation, Docket Management Facility, Room PL-
401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit on-
line at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov/submit. You must include the
docket number that appears in the heading of this document in your
comment. You can examine and copy all comments from 9 a.m. to 5 p.m.
e.t., Monday through Friday, except Federal holidays. If you want
notification of receipt of comments, please include a self-addressed,
stamped envelope or postcard, or after submitting comments
electronically, print the acknowledgment page.
FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Rodgers,
Transportation Specialist, MC-ECE, (202) 366-4016, or Mr. Michael Falk,
Attorney-Advisor, MC-CC, (202) 366-0834, FMCSA, 400 Seventh Street,
SW., Washington, DC 20590. Office hours are from 8:30 a.m. to 5:00
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: The Department of Transportation
published a comprehensive revision to the drug and alcohol testing
procedural rules (49 CFR Part 40) (December 19, 2000, 65 FR 79462). The
new Part 40 makes numerous changes regarding the way that drug and
alcohol testing will be conducted in the future. The majority of the
changes in the rule will become effective August 1, 2001. However, some
changes will become effective prior to August 1, 2001.
Part 40 is one element of a One-DOT set of regulations designed to
deter and detect the use of illegal drugs and the misuse of alcohol by
employees performing safety-sensitive transportation functions. It is
important that the six DOT agency rules that cover specific
transportation industries be consistent with the revised Part 40, to
avoid duplication, conflict, or confusion among DOT regulatory
requirements. Therefore, we are proposing to amend our drug and alcohol
testing regulations to conform with Part 40.
Background
In this NPRM, the FMCSA proposes changes that would conform its
drug and alcohol testing regulations (49 CFR Part 382) to the revised
DOT procedures for transportation workplace drug and alcohol testing
programs (49 CFR Part 40) published on December 19, 2000 (65 FR 79462).
The FMCSA proposes to delete from part 382 provisions that are also
covered in the new part 40. Motor carrier employers and employees
affected by part 382 have always been required to read and adhere
both part 382 and part 40 to comply with the FMCSA's drug and
alcohol testing requirements. Referring the reader directly to part 40
instead of duplicating part 40 rule text in part 382 would promote both
drafting economy and consistency of interpretation. This NPRM proposes
to delete from part 382 regulatory text regarding referral, evaluation
and treatment requirements; follow-up testing; inquiries for alcohol
and controlled substances information from previous employers; and
substance abuse professionals. Instead, the regulations would reference
the appropriate provisions of part 40 which deal with these issues.
Although the primary purpose of this NPRM is to conform part 382
with the new part 40, FMCSA would also delete outdated rule text
references (e.g., past implementation dates and reporting requirements)
that can currently be found throughout part 382. This includes
replacing references to the Federal Highway Administration with
[[Page 21539]]
the Federal Motor Carrier Safety Administration.
For ease of reference, FMCSA is publishing part 382 in its entirety
with the proposed amendments discussed below. FMCSA intends to time
publication of the final rule so that its conforming changes to part
382 become effective concurrently with most of part 40 on August 1,
2001.
Subpart A--General
Section 382.107 Definitions
The following definitions have been added or modified in part 382
in order to conform to the definitions in revised part 40:
Confirmation or confirmatory test
Confirmed drug test
Consortium/Third party administrator
Controlled substances
Designated employer representative (DER)
Employer
Refuse to submit
Screening test (or initial test)
Stand-down
Section 382.115 Starting Date for Testing Programs
The starting date for testing programs has been modified to reflect
that all implementation dates have elapsed. This section now requires
all motor carriers, both domestic and foreign to implement the testing
program requirements when they begin operating commercial motor
vehicles in the United States. The implementation dates for large
foreign employers and small foreign employers have been removed.
Section 382.117 Public Interest Exclusion
This section has been included to ensure consistency with 49 CFR
Part 40, subpart R. In an attempt to protect the public interest, and
transportation employers and employees, the Department is incorporating
the public interest exclusion (PIE) into its regulations. The FMCSA has
included this section to inform motor carriers subject to the
controlled substances and alcohol testing regulations that they may not
use a service agent who has had a PIE issued against it. The Department
uses public interest exclusions to exclude service agents who are in
serious noncompliance with the drug and alcohol testing regulations
from participating in DOT's drug and alcohol testing program.
Section 382.119 Stand-Down Waiver Provision
This section has been added to include the stand-down waiver
provision contained in 49 CFR Part 40. Section 40.21 maintains the
departmental policy of prohibiting employers from standing an employee
down, that is, removing the employee from safety-sensitive service
after the medical review officer (MRO) has received a laboratory report
of either a confirmed positive test result, adulterated test result, or
substituted test result before the result has been verified by the MRO.
The new section 40.21(d) authorizes each Administrator (or his or her
designee) to waive this prohibition if doing so would effectively
enhance safety while protecting employee fairness and confidentiality.
Therefore, the new Sec. 382.119 stand-down waiver provision outlines
the procedures for applying for a waiver to the FMCSA. The FMCSA would
review petitions for a waiver and decide to grant or deny the petition
based on the requirements established in Sec. 40.21.
Section 382.217 Actual Knowledge
The FMCSA is proposing to add a new section to the regulations to
clarify the term ``actual knowledge.'' Published regulatory guidance
previously provided by the FMCSA indicates that actual knowledge may
result from the employer's direct observation of the employee, the
driver's previous employer(s), the employee's admission of alcohol use,
or other occurrences. Some entities believe the reference to an
employee's admission or other occurrences are too ambiguous and
prevents an employee from coming forward to self-identify that a drug
or alcohol problem exists. Since our primary purpose is to deter
alcohol misuse or controlled substance use, we encourage employers to
have self-identification programs. As a result, we propose to include
in the regulations language similar to that in the regulatory guidance,
but have provided an exception in proposed Sec. 382.219.
Section 382.219 Employee Admission of Alcohol and Controlled
Substances Use
This section has been developed to allow employers to establish
self-identification programs that permit employees to self-identify
without DOT consequences. The self-identification program does not
allow employees to self-identify in order to avoid DOT testing. The
program must prohibit employers from taking adverse actions against an
employee making a voluntary admission. Lastly, the program must
preserve the intent of the controlled substance and alcohol testing
regulations by ensuring that problem drivers are removed from safety-
sensitive positions until the employee has successfully completed an
educational or treatment program, as determined by a qualified
substance abuse professional.
Section 382.301 Pre-employment Testing
Since mandatory pre-employment alcohol testing has been suspended
as a result of a court decision and subsequent legislation, the FMCSA
would eliminate paragraphs (b), (b)(1), (b)(2) and (e), which address
pre-employment alcohol testing. Paragraphs (c) and (d) would be
redesignated as paragraphs (b) and (c), respectively. The FMCSA would
permit, but not require, employers to conduct pre-employment alcohol
testing. If an employer chooses to conduct pre-employment alcohol
testing, the employer would have to do so in accordance with 49 CFR
part 40 and the proposed new paragraph (d) of this section.
Section 382.303 Post-Accident Testing
This section has been modified to include changes, deletions and
updates to the post accident testing requirements. In many instances,
motor carriers have conducted either alcohol or controlled substances
tests, instead of conducting both tests as required by the regulations.
Consequently, we are proposing to modify paragraph (a), which requires
an employer to test for alcohol and controlled substances following an
occurrence involving a commercial motor vehicle. The change removes
controlled substances from paragraph (a) and places the post-accident
controlled substances testing requirements in the proposed redesignated
paragraph (b). The table previously codified as paragraph (a)(3) is
proposed to be redesignated as paragraph (c). The requirements in
paragraphs (b)(2) and (b)(3) of the current regulations are obsolete.
Therefore, the FMCSA is proposing to delete these paragraphs, which
required that certain information be submitted to the FHWA by March 15,
1996, March 15, 1997, and March 15, 1998. Other paragraphs in this
section will be redesignated to accommodate the proposed changes.
Section 382.305 Random Testing
Currently, the random testing regulations require the Administrator
to annually publish a Federal Register notice of the minimum annual
percentage rates for random alcohol and controlled substances testing.
The FMCSA is proposing to revise its random testing regulations to
require the Administrator to publish notice of
[[Page 21540]]
the minimum annual percentage rates for random testing only in the
event of a change in the annual percentage rates.
The FMCSA is seeking comments on the random testing regulations
related to motor carriers testing at the applicable rates. Motor
carriers may either administer their own random testing programs or
rely on consortia/third party administrators (C/TPAs) to provide that
service. There appears to be rising concern over how to calculate the
testing rates when the motor carrier is in a consortium, especially if
the consortium is not testing at the minimum rates, but the motor
carrier is. The agency seeks comment whether the regulations codified
in Sec. 382.305(j) are sufficiently clear, or do they need
clarification?
Section 382.307 Reasonable Suspicion Testing
The FMCSA is proposing to remove the regulatory test in
382.307(e)(2) requiring employers to submit MIS reports from March 15
1996 through March 15, 1998 respectively. This section will be
renumbered accordingly to adjust for the deletion of this paragraph.
Section 382.309 Return-to-Duty Testing
The FMCSA is proposing to remove the regulatory text regarding
return-to-duty testing requirements from part 382 in order to avoid
potential duplication and inconsistency with the requirements in part
40. Please refer to the Common Preamble, Transportation Workplace Drug
and Alcohol Testing Programs; Amendments to DOT Agency Rules Conforming
to the Department of Transportation Final Rule, published elsewhere in
this issue of the Federal Register.
Section 382.311 Follow-Up Testing
The FMCSA is proposing to remove the regulatory text regarding
follow-up testing requirements from part 382 in order to avoid
potential duplication and inconsistency with the requirements in part
40. Please refer to the Common Preamble, Transportation Workplace Drug
and Alcohol Testing Programs; Amendments to DOT Agency Rules Conforming
to 49 CFR Part 40, published elsewhere in this issue of the Federal
Register.
Section 382.401 Retention of Records
The FMCSA is proposing that employers maintain semi-annual
laboratory statistical summaries of urinalysis instead of quarterly
summaries, to be consistent with the new part Sec. 40.111(a).
Section 382.403 Reporting of Results in a Management Information
System
The FMCSA is proposing to amend the reporting requirements in
paragraphs (c)(8) and (d)(5) to include substituted or adulterated
specimens. This would be consistent with part 40 and will provide
clarifying information on positive drug test results that are accounted
for in the MIS reports.
Section 382.405 Access to Facilities and Records
The FMCSA is proposing to amend the requirements in paragraph (g)
regarding disclosure of information arising from a positive DOT drug or
alcohol test or refusal to test also include disclosure of adulterated
and substituted test results, consistent with Sec. 40.323(a)(1).
Additionally, this section allows an employer to disclose information
in criminal or civil actions as provided in Sec. 40.323(a)(2).
Section 382.407 Medical Review Officer Notifications to the Employer
The FMCSA is proposing to remove the regulatory text regarding
requirements for medical review officer notifications to the employer
from part 382 in avoid potential duplication and inconsistency with the
requirements of part 40. Please refer to the Common Preamble,
Transportation Workplace Drug and Alcohol Testing Programs; Amendments
to DOT Agency Rules Conforming to 49 CFR Part 40, published elsewhere
in this issue of the Federal Register.
Section 382.409 Medical Review Officer Record Retention for Controlled
Substances
This section requires the medical review officer to maintain dated
records and employer notifications for a period of time. The FMCSA
proposes to amend paragraphs (a),(b) and (c) to include third party
administrators within this requirement since part 40 now permits third
party administrators to transmit the MRO's findings to the employer.
Section 382.411 Employer Notifications
Paragraphs (b) and (c) has been modified to replace the term
designated management official with designated employer representative.
In addition, we propose to amend paragraph (c) to require the
designated employer representative to immediately notify the medical
review officer that the driver has been notified to contact the medical
review officer within 72 hours, in order to be consistent with
Sec. 40.131.
Section 382.413 Inquiries for Alcohol and Controlled Substances
Information from Previous Employers
The FMCSA is proposing to remove the regulatory text regarding
requirements for inquiries for alcohol and controlled substances
information from previous employers from Part 382 in order to avoid
potential duplication and inconsistency with Part 40. Please refer to
the Common Preamble, Transportation Workplace Drug and Alcohol Testing
Programs; Amendments to DOT Agency Rules Conforming to 49 CFR Part 40,
published elsewhere in this issue of the Federal Register.
Section 382.507 Penalties
The FMCSA is proposing to add a provision stating that an employer
who violates the requirements of part 40 will be subject to the
penalties in 49 U.S.C. 521(b). This is a clarification of existing law.
Section 382.105 makes the provisions of Part 40 applicable to employers
and a violation of Part 40 is treated like a violation of part 382 for
enforcement purposes.
Section 382.605 Referral, Evaluation, and Treatment
The FMCSA is proposing to remove the regulatory text regarding the
requirements for referral, evaluation, and treatment from Part 382 in
order to avoid potential duplication and inconsistency with the
requirements of Part 40. Please refer to the Common Preamble,
Transportation Workplace Drug and Alcohol Testing Programs; Amendments
to DOT Agency Rules Conforming to 49 CFR Part 40, published elsewhere
in this issue of the Federal Register.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
These proposed rules have been designated as non-significant under
Executive Order 12866 and the Department of Transportation's Regulatory
Policies and Procedures. They are non-significant because they merely
make changes to conform to the revised 49 CFR part 40, which has
already been subject to extensive comment and analysis, or seek to
remove obsolete provisions or clarify existing law. The proposed
changes would not have any incremental economic impacts on their own.
The economic impacts of the underlying part 40 changes were analyzed in
connection with the part 40 rulemaking.
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Regulatory Flexibility Act
Because these proposals have no incremental economic impacts, the
FMCSA certifies, under the Regulatory Flexibility Act, that these
proposals, if adopted, would not have a significant economic impact on
a substantial number of small entities.
Executive Order 13132 (Federalism)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, dated
August 4, 1999. The FMCSA has determined this proposed rule would not
have a substantial direct effect on, or sufficient federalism
implications for, the States, nor would it limit the policymaking
discretion of the States.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FMCSA has determined that there are no new requirements
for information collection associated with this proposed rule. All the
information collection requirements of part 40 have been analyzed and
approved by OMB. These proposed rules would impose no information
collection requirements that have not already been reviewed in the
context of the part 40 rulemaking, so no further Paperwork Reduction
Act review is necessary.
Unfunded Mandates Reform Act
This proposed rule would not impose a Federal mandate resulting in
the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year (2 U.S.C. 1531 et seq.).
Executive Order 12988 (Civil Justice Reform)
This proposed action meets applicable standards in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this proposal under Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks''. This proposed rule would not be economically significant and
would not concern an environmental risk to health or safety that would
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
The FMCSA certifies that this proposed rule has no taking
implications under the Fifth Amendment or Executive Order 12630,
Governmental Actions and Interference With Constitutionally Protected
Property Rights.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
National Environmental Policy Act
The agency has analyzed this proposal for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) and has determined that this action would not have an adverse
effect on the quality of the environment.
List of Subjects in 49 CFR Part 382
Administrative practice and procedure, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Highway safety, Motor carriers,
Penalties, Reporting and recordkeeping requirements, Safety,
Transportation.
Accordingly, the FMCSA proposes to revise Part 382 of 49 CFR to
read as follows:
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
Subpart A--General
Sec.
382.101 Purpose 382.103 Applicability.
382.105 Testing procedures.
382.107 Definitions.
382.109 Preemption of State and local laws.
382.111 Other requirements imposed by employers.
382.113 Requirements for notice.
382.115 Starting date for testing programs
382.117 Public interest exclusion.
382.119 Stand-down waiver provision.
Subpart B--Prohibitions
382.201 Alcohol concentration.
382.205 On-duty use.
382.207 Pre-duty use.
382.209 Use following an accident.
382.211 Refusal to submit to a required alcohol or controlled
substances test.
382.213 Controlled substances use.
382.215 Controlled substances testing.
382.217 Actual knowledge.
382.219 Employee admission of alcohol and controlled substances
use.
Subpart C--Tests Required
382.301 Pre-employment testing.
382.303 Post-accident testing.
382.305 Random testing.
382.307 Reasonable suspicion testing.
382.309 Return-to-duty testing.
382.311 Follow-up testing.
Subpart D--Handling of Test Results, Record Retention, and
Confidentiality
382.401 Retention of records.
382.403 Reporting of results in a management information system.
382.405 Access to facilities and records.
382.407 Medical review officer notifications to the employer.
382.409 Medical review officer record retention for controlled
substances.
382.411 Employer notifications.
382.413 Inquiries for alcohol and controlled substances
information from previous employers.
Subpart E--Consequences for Drivers Engaging in Substance Use-Related
Conduct
382.501 Removal from safety-sensitive function.
382.503 Required evaluation and testing.
382.505 Other alcohol-related conduct.
382.507 Penalties.
Subpart F--Alcohol Misuse and Controlled Substances Use Information,
Training, and Referral
382.601 Employer obligation to promulgate a policy on the misuse
of alcohol and use of controlled substances.
382.603 Training for supervisors.
382.605 Referral, evaluation, and treatment.
Authority: 49 U.S.C. 31133, 31136, 31301 et
seq., 31502; and 49 CFR 1.73.
Subpart A--General
Sec. 382.101 Purpose.
The purpose of this part is to establish programs designed to help
prevent accidents and injuries resulting from the misuse of alcohol or
use of controlled substances by drivers of commercial motor vehicles.
Sec. 382.103 Applicability.
(a) This part applies to every person and to all employers of such
persons who operate a commercial motor vehicle in commerce in any
State, and is subject to:
(1) The commercial driver's license requirements of part 383 of
this subchapter;
(2) The Licencia Federal de Conductor (Mexico) requirements; or
(3) The commercial driver's license requirements of the Canadian
National Safety Code.
(b) An employer who employs himself/herself as a driver must comply
with both the requirements in this part that apply to employers and the
requirements in this part that apply to drivers. An employer who
employs only himself/herself as a driver shall implement a random
alcohol and controlled substances testing program of
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two or more covered employees in the random testing selection pool.
(c) The exceptions contained in Sec. 390.3(f) of this subchapter do
not apply to this part. The employers and drivers identified in
Sec. 390.3(f) of this subchapter must comply with the requirements of
this part, unless otherwise specifically provided in paragraph (d) of
this section.
(d) Exceptions. This part shall not apply to employers and
their drivers:
(1) Required to comply with the alcohol and/or controlled
substances testing requirements of parts 653 and 655 of this title
(Federal Transit Administration alcohol and controlled substances
testing regulations); or
(2) Who a State must waive from the requirements of part 383 of
this subchapter. These individuals include active duty military
personnel; members of the reserves; and members of the national guard
on active duty, including personnel on full-time national guard duty,
personnel on part-time national guard training and national guard
military technicians (civilians who are required to wear military
uniforms), and active duty U.S. Coast Guard personnel; or
(3) Who a State has, at its discretion, exempted from the
requirements of part 383 of this subchapter. These individuals may be:
(i) Operators of a farm vehicle which is:
(A) Controlled and operated by a farmer;
(B) Used to transport either agricultural products, farm machinery,
farm supplies, or both to or from a farm;
(C) Not used in the operations of a common or contract motor
carrier; and
(D) Used within 241 kilometers (150 miles) of the farmer's farm.
(ii) Firefighters or other persons who operate commercial motor
vehicles which are necessary for the preservation of life or property
or the execution of emergency governmental functions, are equipped with
audible and visual signals, and are not subject to normal traffic
regulation.
Sec. 382.105 Testing procedures.
Each employer shall ensure that all alcohol or controlled
substances testing conducted under this part complies with the
procedures set forth in part 40 of this title. The provisions of part
40 of this title that address alcohol or controlled substances testing
are made applicable to employers by this part.
Sec. 382.107 Definitions.
Words or phrases used in this part are defined in Sec. Sec. 386.2
and 390.5 of this subchapter, and Sec. 40.3 of this title, except as
provided in this section--
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 mixiture or preparation (including any medication),
containing alcohol.
Commerce means:
(1) Any trade, traffic or transportation within the jurisdiction of
the United States between a place in a State and a place outside of
such State, including a place outside of the United States; and
(2) Trade, traffic, and transportation in the United States which
affects any trade, traffic, and transportation described in paragraph
(1) of this definition.
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 of 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 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 an
dquantify 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
Sec. 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, 653 and
654), 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 who are either
directly employed by or under lease to an employer or who operate a
commercial motor vehicle at the direction of or with the consent of an
employer.
Employer means an 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
[[Page 21543]]
term, as used in these regulations, refers to the entity responsible
for overall implementation of DOT drug and alcohol program
requirements, as well as those 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 means the number of positive results for
random controlled substances tests conducted under this part plus the
number of refusals of random controlled substances tests required by
this part, divided by the total of random controlled substances tests
conducted under this part plus the number of refusals of random tests
required by this part.
Refuse to submit (to an alcohol or controlled substances test)
means that a driver:
(1) Fails to show up for any test within a reasonable time after
being directed to do so by the employer or to remain at the testing
site until the testing process is complete. This includes the failure
of an employee (including an owner-operator) to appear for a test when
called by a C/TPA (see Sec. 40.61(a) of this title);
(2) Fails to provide a urine specimen for any drug test required by
this part;
(3) In the case of a directly observed or monitored collection in a
drug test, fails to permit the observation or monitoring of the
provision of a specimen (Sec. Sec. 40.67(k) and 40.69(g) of this
title);
(4) Fails to provide a sufficient amount of urine when directed,
unless it has been determined, through a required medical evaluation,
that there was an adequate medical explanation for the failure (see
Sec. 40.193(d)(2) of this title);
(5) Fails or declines to take a second test the employer has
directed following a negative dilute result (see Sec. 40.197(g) of this
title);
(6) Fails to undergo an additional medical examination, as directed
by the MRO as part of the verification process, or as directed by the
DER concerning the evaluation as part of the ``shy bladder'' procedures
in part 40, subpart I, of this title; or
(7) Fails to cooperate (e.g., leaves the test site before the
collection process is completed, refuses to empty pockets) with any
part of the testing process.
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 Sec. Sec. 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 Sec. 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 means the number of drivers (as reported
under Sec. 382.305) found during random tests given under this part to
have an alcohol concentration of 0.04 or greater, plus the number of
drivers who refuse a random test required by this part, divided by the
total reported number of drivers in the industry given random alcohol
tests under this part plus the total reported number of drivers in the
industry who refuse a random test required by this part.
Sec. 382.109 Preemption of State and local laws.
(a) Except as provided in paragraph (b) of this section, this part
preempts any State or local law, rule, regulation, or order to the
extent that:
(1) Compliance with both the State or local requirement in this
part is not possible; or
(2) Compliance with the State or local requirement is an obstacle
to the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of State
criminal law that impose sanctions for reckless conduct leading to
actual loss of life, injury, or damage to property, whether the
provisions apply specifically to transportation employees, employers,
or the general public.
Sec. 382.111 Other requirements imposed by employers.
Except as expressly provided in this part, nothing in this part
shall be construed to affect the authority of employers, or the rights
of drivers, with respect to the use of alcohol, or the use of
controlled substances, including authority and rights with respect to
testing and rehabilitation.
Sec. 382.113 Requirement for notice.
Before performing an alcohol or controlled substances test under
this part, each employer shall notify a driver that the alcohol or
controlled substances test is required by this part. No employer shall
falsely represent that a test is administered under this part.
Sec. 382.115 Starting date for testing programs.
(a) All domestic-domiciled employers must implement the
requirements of this part on the date the employer begins commercial
motor vehicle operations.
(b) All foreign-domiciled employers must implement the requirements
of this part on the date the employer begins commercial motor vehicle
operations in the United States.
Sec. 382.117 Public interest exclusion.
No employer shall use the services of a service agent who is
subject to a
[[Page 21544]]
public interest exclusion in accordance with 49 CFR part 40, subpart R.
Sec. 382.119 Stand-down waiver provision.
(a) An employer subject to this part who seeks a waiver from the
prohibition against standing down an employee before the MRO has
completed the verification process shall follow the procedures in 49
CFR 40.21. The employer must send a written request which includes all
of the information required by that section to the Federal Motor
Carrier Safety Administrator (or the Administrator's designee), U.S.
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590.
(b) The final decision whether to grant or deny the application for
a waiver will be made by the Administrator or the Administrator's
designee.
(c) After a decision is signed by the Administrator or the
Administrator's designee, the employer will be sent a copy of the
decision, which will include the terms and conditions for the waiver or
the reason for denying the application for a waiver.
(d) Questions regarding waiver applications should be directed to
the Office of Enforcement and Compliance, Federal Motor Carrier Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590. The
telephone number is (202) 366-5720.
Subpart B--Prohibitions
Sec. 382.201 Alcohol concentration.
No driver shall report for duty or remain on duty requiring the
performance of safety-sensitive functions while having an alcohol
concentration of 0.04 or greater. No employer having actual knowledge
that a driver has an alcohol concentration of 0.04 or greater shall
permit the driver to perform or continue to perform safety-sensitive
functions.
Sec. 382.205 On-duty use.
No driver shall use alcohol while performing safety-sensitive
functions. No employer having actual knowledge that a driver is using
alcohol while performing safety-sensitive functions shall permit the
driver to perform or continue to perform safety-sensitive functions.
Sec. 382.207 Pre-duty use.
No driver shall perform safety-sensitive functions within four
hours after using alcohol. No employer having actual knowledge that a
driver has used alcohol within four hours shall permit a driver to
perform or continue to perform safety-sensitive functions.
Sec. 382.209 Use following an accident.
No driver required to take a post-accident alcohol test under
Sec. 382.303 shall use alcohol for eight hours following the accident,
or until he/she undergoes a post-accident alcohol test, whichever
occurs first.
Sec. 382.211 Refusal to submit to a required alcohol or controlled
substances test.
No driver shall refuse to submit to a post-accident alcohol or
controlled substances test required under Sec. 382.303, a random
alcohol or controlled substances test required under Sec. 382.305, a
reasonable suspicion alcohol or controlled substances test required
under Sec. 382.307, or a follow-up alcohol or controlled substances
test required under Sec. 382.311. No employer shall permit a driver who
refuses to submit to such tests to perform or continue to perform
safety-sensitive functions.
Sec. 382.213 Controlled substances use.
(a) No driver shall report for duty or remain on duty requiring the
performance of safety-sensitive functions when the driver uses any
controlled substance, except when the use is pursuant to the
instructions of a licensed medical practitioner, as defined in
Sec. 382.107, who has advised the driver that the substance will not
adversely affect the driver's ability to safely operate a commercial
motor vehicle.
(b) No employer having actual knowledge that a driver has used a
controlled substance shall permit the driver to perform or continue to
perform a safety-sensitive function.
(c) An employer may require a driver to inform the employer of any
therapeutic drug use.
Sec. 382.215 Controlled substances testing.
No driver shall report for duty, remain on duty or perform a
safety-sensitive function, if the driver tests positive or has
adulterated or substituted a test specimen for controlled substances.
No employer having actual knowledge that a driver has tested positive
or has adulterated or substituted a test specimen for controlled
substances shall permit the driver to perform or continue to perform
safety-sensitive functions.
Sec. 382.217 Actual knowledge.
For the purposes of this subpart, an employer can obtain actual
knowledge 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
substances use, except as provided in Sec. 382.219.
Sec. 382.219 Employee admission of alcohol and controlled substances
use.
(a) Employees who admit to alcohol misuse or controlled substances
use are not subject to the referral, evaluation and treatment
requirements of this part and part 40 of this title, provided that:
(1) The admission is in accordance with a written employer-
established voluntary self-identification program or policy which meets
the requirements of paragraph (b) of this section;
(2) The driver does not self-identify in order to avoid testing
under the requirements of this part;
(3) The driver makes the admission of alcohol misuse or controlled
substances use before performing a safety sensitive function; and
(4) The driver does not perform a safety sensitive function until
the employer is satisfied that the employee has been evaluated and has
successfully completed education or treatment requirements in
accordance with the self-identification program guidelines.
(b) A qualified voluntary self-identification program or policy
must contain the following elements:
(1) It must prohibit the employer from taking adverse action
against an employee making a voluntary admission of alcohol misuse or
controlled substances use within the parameters of the program or
policy and paragraph (a) of this section;
(2) It must allow the employee sufficient opportunity to seek
evaluation, education or treatment to establish control over the
employee's drug or alcohol problem; and
(3) It must permit the employee to return to safety sensitive
duties only upon successful completion of an educational or treatment
program, as determined by a substance abuse professional.
Subpart C--Tests Required
Sec. 382.301 Pre-employment testing.
(a) Prior to the first time a driver performs safety-sensitive
functions for an employer, the driver shall undergo testing for
controlled substances as a condition prior to being used, unless the
employer uses the exception in paragraph (b) of this section. No
employer shall allow a driver, who the employer intends to hire or use,
to perform safety-sensitive functions unless the employer has received
a controlled substances test result from the MRO or C/TPA indicating a
verified negative test result for that driver.
[[Page 21545]]
(b) An employer is not required to administer a controlled
substances test required by paragraph (a) of this section if:
(1) The driver has participated in a controlled substances testing
program that meets the requirements of this part within the previous 30
days; and
(2) While participating in that program, either--
(i) Was tested for controlled substances within the past 6 months
(from the date of application with the employer), or
(ii) Participated in the random controlled substances testing
program for the previous 12 months (from the date of application with
the employer); and
(3) The employer ensures that no prior employer of the driver of
whom the employer has knowledge has records of a violation of this part
or the controlled substances use rule of another DOT agency within the
previous six months.
(c)(1) An employer who exercises the exception in paragraph (b) of
this section shall contact the controlled substances testing program(s)
in which the driver participates or participated and shall obtain and
retain from the testing program(s) the following information:
(i) Name(s) and address(es) of the program(s).
(ii) Verification that the driver participates or participated in
the program(s).
(iii) Verification that the program(s) conforms to part 40 of this
title.
(iv) Verification that the driver is qualified under the rules of
this part, including that the driver has not refused to be tested for
controlled substances.
(v) The date the driver was last tested for controlled substances.
(vi) The results of any tests taken within the previous six months
and any other violations of subpart B of this part.
(2) An employer who uses, but does not employ, a driver more than
once a year to operate commercial motor vehicles must obtain the
information in paragraph (c)(1) of this section at least once every six
months. The records prepared under this paragraph shall be maintained
in accordance with Sec. 382.401. If the employer cannot verify that the
driver is participating in a controlled substances testing program in
accordance with this part and part 40 of this title, the employer shall
conduct a pre-employment controlled substances test.
(d) An employer may, but is not required to, conduct pre-employment
alcohol testing under this part. If an employer chooses to conduct pre-
employment alcohol testing, it must comply with the following
requirements:
(1) It must conduct a pre-employment alcohol test before the first
performance of safety-sensitive functions by every covered employee
(whether a new employee or someone who has transferred to a position
involving the performance of safety-sensitive functions).
(2) It must treat all safety-sensitive employees performing safety-
sensitive functions the same for the purpose of pre-employment alcohol
testing (i.e., it must not test some covered employees and not others).
(3) It must conduct the pre-employment tests after making a
contingent offer of employment or transfer, subject to the employee
passing the pre-employment alcohol test.
(4) It must conduct all pre-employment alcohol tests using the
alcohol testing procedures of part 40 of this title.
(5) It must not allow a covered employee to begin performing
safety-sensitive functions unless the result of the employee's test
indicates an alcohol concentration of less than 0.04.
Sec. 382.303 Post-accident testing.
(a) As soon as practicable following an occurrence involving a
commercial motor vehicle operating on a public road in commerce, each
employer shall test for alcohol for each surviving driver:
(1) Who was performing safety-sensitive functions with respect to
the vehicle, if the accident involved the loss of human life; or
(2) Who receives a citation under State or local law for a moving
traffic violation arising from the accident, if the accident involved:
(i) Bodily injury to any person who, as a result of the injury,
immediately receives medical treatment away from the scene of the
accident; or
(ii) One or more motor vehicles incurring disabling damage as a
result of the accident, requiring the motor vehicle to be transported
away from the scene by a tow truck or other motor vehicle.
(b) As soon as practicable following an occurrence involving a
commercial motor vehicle operating on a public road in commerce, each
employer shall test for controlled substances for each surviving
driver:
(1) Who was performing safety-sensitive functions with respect to
the vehicle, if the accident involved the loss of human life; or (2)
Who receives a citation under State or local law for a moving traffic
violation arising from the accident, if the accident involved:
(i) Bodily injury to any person who, as a result of the injury,
immediately receives medical treatment away from the scene of the
accident; or
(ii) One or more motor vehicles incurring disabling damage as a
result of the accident, requiring the motor vehicle to be transported
away from the scene by a tow truck or other motor vehicle.
(c) The following table notes when a post-accident test is required
to be conducted by paragraphs (a)(1), (a)(2), (b)(1), and (b)(2) of
this section:
Table for Sec. 382.303(a) and (b)
----------------------------------------------------------------------------------------------------------------
Test must be performed by
Type of accident involved Citation issued to the CMV driver employer
----------------------------------------------------------------------------------------------------------------
i. Human fatality........................ Yes............................... Yes.
No................................ Yes.
----------------------------------------------------------------------------------------------------------------
ii. Bodily injury with immediate medical Yes............................... Yes.
treatment away from the scene.. No................................ No.
----------------------------------------------------------------------------------------------------------------
iii. Disabling damage to any motor Yes............................... Yes.
vehicle requiring tow away.. No................................ No.
----------------------------------------------------------------------------------------------------------------
(d)(1) Alcohol tests. If a test required by this section is
not administered within two hours following the accident, the employer
shall prepare and maintain on file a record stating the reasons the
test was not promptly
[[Page 21546]]
administered. If a test required by this section is not administered
within eight hours following the accident, the employer shall cease
attempts to administer an alcohol test and shall prepare and maintain
the same record. Records shall be submitted to the FMCSA upon request.
(2) Controlled substance tests. If a test required by this
section is not administered within 32 hours following the accident, the
employer shall cease attempts to administer a controlled substances
test, and prepare and maintain on file a record stating the reasons the
test was not promptly administered. Records shall be submitted to the
FMCSA upon request.
(e) A driver who is subject to post-accident testing shall remain
readily available for such testing or may be deemed by the employer to
have refused to submit to testing. Nothing in this section shall be
construed to require the delay of necessary medical attention for
injured people following an accident or to prohibit a driver from
leaving the scene of an accident for the period necessary to obtain
assistance in responding to the accident, or to obtain necessary
emergency medical care.
(f) An employer shall provide drivers with necessary post-accident
information, procedures and instructions, prior to the driver operating
a commercial motor vehicle, so that drivers will be able to comply with
the requirements of this section.
(g)(1) The results of a breath or blood test for the use of
alcohol, conducted by Federal, State, or local officials having
independent authority for the test, shall be considered to meet the
requirements of this section, provided such tests conform to the
applicable Federal, State or local alcohol testing requirements, and
that the results of the tests are obtained by the employer.
(2) The results of a urine test for the use of controlled
substances, conducted by Federal, State, or local officials having
independent authority for the test, shall be considered to meet the
requirements of this section, provided such tests conform to the
applicable Federal, State or local controlled substances testing
requirements, and that the results of the tests are obtained by the
employer.
(h) Exception. This section does not apply to:
(1) An occurrence involving only boarding or alighting from a
stationary motor vehicle; or
(2) An occurrence involving only the loading or unloading of cargo;
or
(3) An occurrence in the course of the operation of a passenger car
or a multipurpose passenger vehicle (as defined in Sec. 571.3 of this
title) by an employer unless the motor vehicle is transporting
passengers for hire or hazardous materials of a type and quantity that
require the motor vehicle to be marked or placarded in accordance with
Sec. 177.823 of this title.
Sec. 382.305 Random testing.
(a) Every employer shall comply with the requirements of this
section. Every driver shall submit to random alcohol and controlled
substance testing as required in this section.
(b)(1) Except as provided in paragraphs (c) through (e) of this
section, the minimum annual percentage rate for random alcohol testing
shall be 10 percent of the average number of driver positions.
(2) Except as provided in paragraphs (f) through (h) of this
section, the minimum annual percentage rate for random controlled
substances testing shall be 50 percent of the average number of driver
positions.
(c) The FMCSA Administrator's decision to increase or decrease the
minimum annual percentage rate for alcohol testing is based on the
reported violation rate for the entire industry. All information used
for this determination is drawn from the alcohol management information
system reports required by Sec. 382.403. In order to ensure reliability
of the data, the FMCSA Administrator considers the quality and
completeness of the reported data, may obtain additional information or
reports from employers, and may make appropriate modifications in
calculating the industry violation rate. In the event of a change in
the annual percentage rate, the FMCSA Administrator will publish in the
Federal Register the new minimum annual percentage rate for
random alcohol testing of drivers. The new minimum annual percentage
rate for random alcohol testing will be applicable starting January 1
of the calendar year following publication in the Federal
Register.
(d)(1) When the minimum annual percentage rate for random alcohol
testing is 25 percent or more, the FMCSA Administrator may lower this
rate to 10 percent of all driver positions if the FMCSA Administrator
determines that the data received under the reporting requirements of
Sec. 382.403 for two consecutive calendar years indicate that the
violation rate is less than 0.5 percent.
(2) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the FMCSA Administrator may lower this rate to
25 percent of all driver positions if the FMCSA Administrator
determines that the data received under the reporting requirements of
Sec. 382.403 for two consecutive calendar years indicate that the
violation rate is less than 1.0 percent but equal to or greater than
0.5 percent.
(e)(1) When the minimum annual percentage rate for random alcohol
testing is 10 percent, and the data received under the reporting
requirements of Sec. 382.403 for that calendar year indicate that the
violation rate is equal to or greater than 0.5 percent, but less than
1.0 percent, the FMCSA Administrator will increase the minimum annual
percentage rate for random alcohol testing to 25 percent for all driver
positions.
(2) When the minimum annual percentage rate for random alcohol
testing is 25 percent or less, and the data received under the
reporting requirements of Sec. 382.403 for that calendar year indicate
that the violation rate is equal to or greater than 1.0 percent, the
FMCSA Administrator will increase the minimum annual percentage rate
for random alcohol testing to 50 percent for all driver positions.
(f) The FMCSA Administrator's decision to increase or decrease the
minimum annual percentage rate for controlled substances testing is
based on the reported positive rate for the entire industry. All
information used for this determination is drawn from the controlled
substances management information system reports required by
Sec. 382.403. In order to ensure reliability of the data, the FMCSA
Administrator considers the quality and completeness of the reported
data, may obtain additional information or reports from employers, and
may make appropriate modifications in calculating the industry positive
rate. In the event of a change in the annual percentage rate, the FMCSA
Administrator will publish in the Federal Register the new
minimum annual percentage rate for controlled substances testing of
drivers. The new minimum annual percentage rate for random controlled
substances testing will be applicable starting January 1 of the
calendar year following publication in the Federal Register.
(g) When the minimum annual percentage rate for random controlled
substances testing is 50 percent, the FMCSA Administrator may lower
this rate to 25 percent of all driver positions if the FMCSA
Administrator determines that the data received under the reporting
requirements of Sec. 382.403 for two consecutive calendar years
indicate that the positive rate is less than 1.0 percent.
(h) When the minimum annual percentage rate for random controlled
[[Page 21547]]
substances testing is 25 percent, and the data received under the
reporting requirements of Sec. 382.403 for any calendar year indicate
that the reported positive rate is equal to or greater than 1.0
percent, the FMCSA Administrator will increase the minimum annual
percentage rate for random controlled substances testing to 50 percent
of all driver positions.
(i) The selection of drivers for random alcohol and controlled
substances testing shall be made by a scientifically valid method, such
as a random number table or a computer-based random number generator
that is matched with drivers' Social Security numbers, payroll
identification numbers, or other comparable identifying numbers. Under
the selection process used, each driver shall have an equal chance of
being tested each time selections are made.
(j) The employer shall randomly select a sufficient number of
drivers for testing during each calendar year to equal an annual rate
not less than the minimum annual percentage rate for random alcohol and
controlled substances testing determined by the FMCSA Administrator. If
the employer conducts random testing for alcohol and/or controlled
substances through a C/TPA, the number of drivers to be tested may be
calculated for each individual employer or may be based on the total
number of drivers covered by the C/TPA who are subject to random
alcohol and/or controlled substances testing at the same minimum annual
percentage rate under this part or any DOT alcohol or controlled
substances random testing rule may be calculated for the employer.
(k) Each employer shall ensure that random alcohol and controlled
substances tests conducted under this part are unannounced and that the
dates for administering random alcohol and controlled substances tests
are spread reasonably throughout the calendar year.
(l) Each employer shall require that each driver who is notified of
selection for random alcohol and/or controlled substances testing
proceeds to the test site immediately; provided, however, that if the
driver is performing a safety-sensitive function, other than driving a
commercial motor vehicle, at the time of notification, the employer
shall instead ensure that the driver ceases to perform the safety-
sensitive function and proceeds to the testing site as soon as
possible.
(m) A driver shall only be tested for alcohol while the driver is
performing safety-sensitive functions, just before the driver is to
perform safety-sensitive functions, or just after the driver has ceased
performing such functions.
(n) If a given driver is subject to random alcohol or controlled
substances testing under the random alcohol or controlled substances
testing rules of more than one DOT agency for the same employer, the
driver shall be subject to random alcohol and/or controlled substances
testing at the annual percentage rate established for the calendar year
by the DOT agency regulating more than 50 percent of the driver's
function.
(o) If an employer is required to conduct random alcohol or
controlled substances testing under the alcohol or controlled
substances testing rules of more than one DOT agency, the employer
may--
(1) Establish separate pools for random selection, with each pool
containing the DOT-covered employees who are subject to testing at the
same required minimum annual percentage rate; or
(2) Randomly select such employees for testing at the highest
minimum annual percentage rate established for the calendar year by any
DOT agency to which the employer is subject.
Sec. 382.307 Reasonable suspicion testing.
(a) An employer shall require a driver to submit to an alcohol test
when the employer has reasonable suspicion to believe that the driver
has violated the prohibitions of subpart B of this part concerning
alcohol. The employer's determination that reasonable suspicion exists
to require the driver to undergo an alcohol test must be based on
specific, contemporaneous, articulable observations concerning the
appearance, behavior, speech or body odors of the driver.
(b) An employer shall require a driver to submit to a controlled
substances test when the employer has reasonable suspicion to believe
that the driver has violated the prohibitions of subpart B of this part
concerning controlled substances. The employer's determination that
reasonable suspicion exists to require the driver to undergo a
controlled substances test must be based on specific, contemporaneous,
articulable observations concerning the appearance, behavior, speech or
body odors of the driver. The observations may include indications of
the chronic and withdrawal effects of controlled substances.
(c) The required observations for alcohol and/or controlled
substances reasonable suspicion testing shall be made by a supervisor
or company official who is trained in accordance with Sec. 382.603. The
person who makes the determination that reasonable suspicion exists to
conduct an alcohol test shall not conduct the alcohol test of the
driver.
(d) Alcohol testing is authorized by this section only if the
observations required by paragraph (a) of this section are made during,
just preceding, or just after the period of the work day that the
driver is required to be in compliance with this part. A driver may be
directed by the employer to only undergo reasonable suspicion testing
while the driver is performing safety-sensitive functions, just before
the driver is to perform safety-sensitive functions, or just after the
driver has ceased performing such functions.
(e)(1) If an alcohol test required by this section is not
administered within two hours following the determination under
paragraph (a) of this section, the employer shall prepare and maintain
on file a record stating the reasons the alcohol test was not promptly
administered. If an alcohol test required by this section is not
administered within eight hours following the determination under
paragraph (a) of this section, the employer shall cease attempts to
administer an alcohol test and shall state in the record the reasons
for not administering the test.
(2) Notwithstanding the absence of a reasonable suspicion alcohol
test under this section, no driver shall report for duty or remain on
duty requiring the performance of safety-sensitive functions while the
driver is under the influence of or impaired by alcohol, as shown by
the behavioral, speech, and performance indicators of alcohol misuse,
nor shall an employer permit the driver to perform or continue to
perform safety-sensitive functions, until:
(i) An alcohol test is administered and the driver's alcohol
concentration measures less than 0.02; or
(ii) Twenty four hours have elapsed following the determination
under paragraph (a) of this section that there is reasonable suspicion
to believe that the driver has violated the prohibitions in this part
concerning the use of alcohol.
(3) Except as provided in paragraph (e)(2) of this section, no
employer shall take any action under this part against a driver based
solely on the driver's behavior and appearance, with respect to alcohol
use, in the absence of an alcohol test. This does not prohibit an
employer with independent authority of this part from taking any action
otherwise consistent with law.
(f) A written record shall be made of the observations leading to a
controlled substance reasonable suspicion test, and signed by the
supervisor or company
[[Page 21548]]
official who made the observations, within 24 hours of the observed
behavior or before the results of the controlled substances test are
released, whichever is earlier.
Sec. 382.309 Return-to-duty testing.
The requirements for return-to-duty testing must be performed in
accordance with 49 CFR part 40, Subpart O.
Sec. 382.311 Follow-up testing.
The requirements for following-up testing must be performed in
accordance with 49 CFR part 40, Subpart O.
Subpart D--Handling of Test Results, Record Retention, and
Confidentiality
Sec. 382.401 Retention of records.
(a) General requirement. Each employer shall maintain
records of its alcohol misuse and controlled substances use prevention
programs as provided in this section. The records shall be maintained
in a secure location with controlled access.
(b) Period of retention. Each employer shall maintain the
records in accordance with the following schedule:
(1) Five years. The following records shall be maintained
for a minimum of five years:
(i) Records of driver alcohol test results indicating an alcohol
concentration of 0.02 or greater,
(ii) Records of driver verified positive controlled substances test
results,
(iii) Documentation of refusals to take required alcohol and/or
controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation,
(vi) Records related to the administration of the alcohol and
controlled substances testing programs, and
(vii) A copy of each annual calendar year summary required by
Sec. 382.403.
(2) Two years. Records related to the alcohol and
controlled substances collection process (except calibration of
evidential breath testing devices).
(3) One year. Records of negative and canceled controlled
substances test results (as defined in part 40 of this title) and
alcohol test results with a concentration of less than 0.02 shall be
maintained for a minimum of one year.
(4) Indefinite period. Records related to the education and
training of breath alcohol technicians, screening test technicians,
supervisors, and drivers shall be maintained by the employer while the
individual performs the functions which require the training and for
two years after ceasing to perform those functions.
(c) Types of records. The following specific types of
records shall be maintained. ``Documents generated'' are documents that
may have to be prepared under a requirement of this part. If the record
is required to be prepared, it must be maintained.
(1) Records related to the collection process:
(i) Collection logbooks, if used;
(ii) Documents relating to the random selection process;
(iii) Calibration documentation for evidential breath testing
devices;
(iv) Documentation of breath alcohol technician training;
(v) Documents generated in connection with decisions to administer
reasonable suspicion alcohol or controlled substances tests;
(vi) Documents generated in connection with decisions on post-
accident tests;
(vii) Documents verifying existence of a medical explanation of the
inability of a driver to provide adequate breath or to provide a urine
specimen for testing; and
(viii) Consolidated annual calendar year summaries as required by
Sec. 382.403.
(2) Records related to a driver's test results:
(i) The employer's copy of the alcohol test form, including the
results of the test;
(ii) The employer's copy of the controlled substances test chain of
custody and control form;
(iii) Documents sent by the MRO to the employer, including those
required by part 40, subpart G, of this title;
(iv) Documents related to the refusal of any driver to submit to an
alcohol or controlled substances test required by this part;
(v) Documents presented by a driver to dispute the result of an
alcohol or controlled substances test administered under this part; and
(vi) Documents generated in connection with verifications of prior
employers' alcohol or controlled substances test results that the
employer:
(A) Must obtain in connection with the exception contained in
Sec. 382.301, and
(B) Must obtain as required by Sec. 382.413.
(3) Records related to other violations of this part.
(4) Records related to evaluations:
(i) Records pertaining to a determination by a substance abuse
professional concerning a driver's need for assistance; and
(ii) Records concerning a driver's compliance with recommendations
of the substance abuse professional.
(5) Records related to education and training:
(i) Materials on alcohol misuse and controlled substance use
awareness, including a copy of the employer's policy on alcohol misuse
and controlled substance use;
(ii) Documentation of compliance with the requirements of
Sec. 382.601, including the driver's signed receipt of education
materials;
(iii) Documentation of training provided to supervisors for the
purpose of qualifying the supervisors to make a determination
concerning the need for alcohol and/or controlled substances testing
based on reasonable suspicion;
(iv) Documentation of training for breath alcohol technicians as
required by Sec. 40.213(a) of this title; and
(v) Certification that any training conducted under this part
complies with the requirements for such training.
(6) Administrative records related to alcohol and controlled
substances testing:
(i) Agreements with collection site facilities, laboratories,
breath alcohol technicians, screening test technicians, medical review
officers, consortia, and third party service providers;
(ii) Names and positions of officials and their role in the
employer's alcohol and controlled substances testing program(s);
(iii) Semi-annual laboratory statistical summaries of urinalysis
required by Sec. 40.111(a) of this title; and
(iv) The employer's alcohol and controlled substances testing
policy and procedures.
(d) Location of records. All records required by this part
shall be maintained as required by Sec. 390.31 of this subchapter and
shall be made available for inspection at the employer's principal
place of business within two business days after a request has been
made by an authorized representative of the Federal Motor Carrier
Safety Administration.
(e) OMB control number. (1) The information collection
requirements of this part have been reviewed by the Office of
Management and Budget pursuant to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) and have been assigned OMB control
number 2126-0012.
(2) The information collection requirements of this part are found
in the following sections: Sections 382.105, 382.113, 382.301, 382.303,
382.305, 382.307, 382.401, 382.403, 382.405, 382.409, 382.411, 382.601,
382.603.
Sec. 382.403 Reporting of results in a management information system.
(a) An employer shall prepare and maintain a summary of the results
of its
[[Page 21549]]
alcohol and controlled substances testing programs performed under this
part during the previous calendar year, when requested by the Secretary
of Transportation, any DOT agency, or any State or local officials with
regulatory authority over the employer or any of its drivers.
(b) If an employer is notified, during the month of January, of a
request by the Federal Motor Carrier Safety Administration to report
the employer's annual calendar year summary information, the employer
shall prepare and submit the report to the FMCSA by March 15 of that
year. The employer shall ensure that the annual summary report is
accurate and received by March 15 at the location that the FMCSA
specifies in its request. The report shall be in the form and manner
prescribed by the FMCSA in its request. When the report is submitted to
the FMCSA by mail or electronic transmission, the information requested
shall be typed, except for the signature of the certifying official.
Each employer shall ensure the accuracy and timeliness of each report
submitted by the employer or a consortium.
(c) Detailed summary. Each annual calendar year summary
that contains information on a verified positive controlled substances
test result, an alcohol screening test result of 0.02 or greater, or
any other violation of the alcohol misuse provisions of subpart B of
this part shall include the following informational elements:
(1) Number of drivers subject to this part;
(2) Number of drivers subject to testing under the alcohol misuse
or controlled substances use rules of more than one DOT agency,
identified by each agency;
(3) Number of urine specimens collected by type of test (e.g., pre-
employment, random, reasonable suspicion, post-accident);
(4) Number of positives verified by a MRO by type of test, and type
of controlled substance;
(5) Number of negative controlled substance tests verified by a MRO
by type of test;
(6) Number of persons denied a position as a driver following a
pre-employment verified positive controlled substances test and/or a
pre-employment alcohol test that indicates an alcohol concentration of
0.04 or greater;
(7) Number of drivers with tests verified positive by a medical
review officer for multiple controlled substances;
(8) Number of drivers who refused to submit to an alcohol or
controlled substances test required under this subpart, including those
who submitted substituted or adulterated specimens;
(9)(i) Number of supervisors who have received required alcohol
training during the reporting period; and
(ii) Number of supervisors who have received required controlled
substances training during the reporting period;
(10)(i) Number of screening alcohol tests by type of test; and
(ii) Number of confirmation alcohol tests, by type of test;
(11) Number of confirmation alcohol tests indicating an alcohol
concentration of 0.02 or greater but less than 0.04, by type of test;
(12) Number of confirmation alcohol tests indicating an alcohol
concentration of 0.04 or greater, by type of test;
(13) Number of drivers who were returned to duty (having complied
with the recommendations of a substance abuse professional as described
in Sec. 382.503 and part 40, subpart O, of this title), in this
reporting period, who previously:
(i) Had a verified positive controlled substance test result, or
(ii) Engaged in prohibited alcohol misuse under the provisions of
this part;
(14) Number of drivers who were administered alcohol and drug tests
at the same time, with both a verified positive drug test result and an
alcohol test result indicating an alcohol concentration of 0.04 or
greater; and
(15) Number of drivers who were found to have violated any non-
testing prohibitions of subpart B of this part, and any action taken in
response to the violation.
(d) Short summary. Each employer's annual calendar year
summary that contains only negative controlled substance test results,
alcohol screening test results of less than 0.02, and does not contain
any other violations of subpart B of this part, may prepare and submit,
as required by paragraph (b) of this section, either a standard report
form containing all the information elements specified in paragraph (c)
of this section, or an ``EZ'' report form. The ``EZ'' report shall
include the following information elements:
(1) Number of drivers subject to this part;
(2) Number of drivers subject to testing under the alcohol misuse
or controlled substance use rules of more than one DOT agency,
identified by each agency;
(3) Number of urine specimens collected by type of test (e.g., pre-
employment, random, reasonable suspicion, post-accident);
(4) Number of negatives verified by a medical review officer by
type of test;
(5) Number of drivers who refused to submit to an alcohol or
controlled substances test required under this subpart, including those
who submitted substituted or adulterated specimens;
(6)(i) Number of supervisors who have received required alcohol
training during the reporting period; and
(ii) Number of supervisors who have received required controlled
substances training during the reporting period;
(7) Number of screen alcohol tests by type of test; and
(8) Number of drivers who were returned to duty (having complied
with the recommendations of a substance abuse professional as described
in Sec. 382.503 and part 40, subpart O, of this title), in this
reporting period, who previously:
(i) Had a verified positive controlled substance test result, or
(ii) Engaged in prohibited alcohol misuse under the provisions of
this part.
(e) Each employer that is subject to more than one DOT agency
alcohol or controlled substances rule shall identify each driver
covered by the regulations of more than one DOT agency. The
identification will be by the total number of covered functions. Prior
to conducting any alcohol or controlled substances test on a driver
subject to the rules of more than one DOT agency, the employer shall
determine which DOT agency rule or rules authorizes or requires the
test. The test result information shall be directed to the appropriate
DOT agency or agencies.
(f) A C/TPA may prepare annual calendar year summaries and reports
on behalf of individual employers for purposes of compliance with this
section. However, each employer shall sign and submit such a report and
shall remain responsible for ensuring the accuracy and timeliness of
each report prepared on its behalf by a C/TPA.
Sec. 382.405 Access to facilities and records.
(a) Except as required by law or expressly authorized or required
in this section, no employer shall release driver information that is
contained in records required to be maintained under Sec. 382.401.
(b) A driver is entitled, upon written request, to obtain copies of
any records pertaining to the driver's use of alcohol or controlled
substances, including any records pertaining to his or her alcohol or
controlled substances tests. The employer shall promptly provide the
records requested by the driver. Access to a driver's records shall not
be contingent upon payment for records other than those specifically
requested.
(c) Each employer shall permit access to all facilities utilized in
complying
[[Page 21550]]
with the requirements of this part to the Secretary of Transportation,
any DOT agency, or any State or local officials with regulatory
authority over the employer or any of its drivers.
(d) Each employer shall make available copies of all results for
employer alcohol and/or controlled substances testing conducted under
this part and any other information pertaining to the employer's
alcohol misuse and/or controlled substances use prevention program,
when requested by the Secretary of Transportation, any DOT agency, or
any State or local officials with regulatory authority over the
employer or any of its drivers.
(e) When requested by the National Transportation Safety Board as
part of an accident investigation, employers shall disclose information
related to the employer's administration of a post-accident alcohol
and/or controlled substance test administered following the accident
under investigation.
(f) Records shall be made available to a subsequent employer upon
receipt of a written request from a driver. Disclosure by the
subsequent employer is permitted only as expressly authorized by the
terms of the driver's request.
(g) An employer may disclose information required to be maintained
under this part pertaining to a driver to the decision maker in a
lawsuit, grievance, or administrative proceeding initiated by or on
behalf of the individual, and arising from a positive DOT drug or
alcohol test or a refusal to test (including, but not limited to,
adulterated or substituted test results) of this part (including, but
not limited to, a worker's compensation, unemployment compensation, or
other proceeding relating to a benefit sought by the driver.)
Additionally, an employer may disclose information in criminal or civil
actions in accordance with Sec. 40.323(a)(2) of this title.
(h) An employer shall release information regarding a driver's
records as directed by the specific, written consent of the driver
authorizing release of the information to an identified person. Release
of such information by the person receiving the information is
permitted only in accordance with the terms of the employee's consent.
Sec. 382.407 Medical review officer notifications to the employer.
Medical review officers shall report the results of controlled
substances tests to employers in accordance with the requirements of
part 40, subpart G, of this title.
Sec. 382.409 Medical review officer record retention for controlled
substances.
(a) A medical review officer or third party administrator shall
maintain all dated records and notifications, identified by individual,
for a minimum of five years for verified positive controlled substances
test results.
(b) A medical review officer or third party administrator shall
maintain all dated records and notifications, identified by individual,
for a minimum of one year for negative and canceled controlled
substances test results.
(c) No person may obtain the individual controlled substances test
results retained by a medical review officer or third party
administrator, and no medical review officer or third party
administrator shall release the individual controlled substances test
results of any driver to any person, without first obtaining a
specific, written authorization from the tested driver. Nothing in this
paragraph (c) shall prohibit a medical review officer or third party
administrator from releasing, to the employer or to officials of the
Secretary of Transportation, any DOT agency, or any State or local
officials with regulatory authority over the controlled substances
testing program under this part, the information delineated in part 40,
Subpart G, of this title.
Sec. 382.411 Employer notifications.
(a) An employer shall notify a driver of the results of a pre-
employment controlled substances test conducted under this part, if the
driver requests such results within 60 calendar days of being notified
of the disposition of the employment application. An employer shall
notify a driver of the results of random, reasonable suspicion and
post-accident tests for controlled substances conducted under this part
if the test results are verified positive. The employer shall also
inform the driver which controlled substance or substances were
verified as positive.
(b) The designated employer representative shall make reasonable
efforts to contact and request each driver who submitted a specimen
under the employer's program, regardless of the driver's employment
status, to contact and discuss the results of the controlled substances
test with a medical review officer who has been unable to contact the
driver.
(c) The designated employer representative shall immediately notify
the medical review officer that the driver has been notified to contact
the medical review officer within 72 hours.
Sec. 382.413 Inquiries for alcohol and controlled substances
information from previous employers.
Employers shall request alcohol and controlled substances
information from previous employers in accordance with the requirements
of part 40, subpart B, of this title.
Subpart E--Consequences for Drivers Engaging in Substance Use-
Related Conduct
Sec. 382.501 Removal from safety-sensitive function.
(a) Except as provided in subpart F of this part, no driver shall
perform safety-sensitive functions, including driving a commercial
motor vehicle, if the driver has engaged in conduct prohibited by
subpart B of this part or an alcohol or controlled substances rule of
another DOT agency.
(b) No employer shall permit any driver to perform safety-sensitive
functions, including driving a commercial motor vehicle, if the
employer has determined that the driver has violated this section.
(c) For purposes of this subpart, commercial motor vehicle means a
commercial motor vehicle in commerce as defined in Sec. 382.107, and a
commercial motor vehicle in interstate commerce as defined in part 390
of this subchapter.
Sec. 382.503 Required evaluation and testing.
No driver who has engaged in conduct prohibited by subpart B of
this part shall perform safety-sensitive functions, including driving a
commercial motor vehicle, unless the driver has met the requirements of
part 40, subpart O, of this title. No employer shall permit a driver
who has engaged in conduct prohibited by subpart B of this part to
perform safety-sensitive functions, including driving a commercial
motor vehicle, unless the driver has met the requirements of part 40,
subpart O, of this title.
Sec. 382.505 Other alcohol-related conduct.
(a) No driver tested under the provisions of subpart C of this part
who is found to have an alcohol concentration of 0.02 or greater but
less than 0.04 shall perform or continue to perform safety-sensitive
functions for an employer, including driving a commercial motor
vehicle, nor shall an employer permit the driver to perform or continue
to perform safety-sensitive functions, until the start of the driver's
next regularly scheduled duty period, but not less than 24 hours
following administration of the test.
(b) Except as provided in paragraph (a) of this section, no
employer shall
[[Page 21551]]
take any action under this part against a driver based solely on test
results showing an alcohol concentration less than 0.04. This does not
prohibit an employer with authority independent of this part from
taking any action otherwise consistent with law.
Sec. 382.507 Penalties.
Any employer or driver who violates the requirements of this part
shall be subject to the penalty provisions of 49 U.S.C. 521(b). In
addition, any employer or driver who violates the requirements of 49
CFR part 40 shall be subject to the penalty provisions of 49 U.S.C.
521(b).
Subpart F--Alcohol Misuse and Controlled Substances Use
Information, Training, and Referral
Sec. 382.601 Employer obligation to promulgate a policy on the misuse
of alcohol and use of controlled substances.
(a) General requirements. Each employer shall provide
educational materials that explain the requirements of this part and
the employer's policies and procedures with respect to meeting these
requirements.
(1) The employer shall ensure that a copy of these materials is
distributed to each driver prior to the start of alcohol and controlled
substances testing under this part and to each driver subsequently
hired or transferred into a position requiring driving a commercial
motor vehicle.
(2) Each employer shall provide written notice to representatives
of employee organizations of the availability of this information.
(b) Required content. The materials to be made available to
drivers shall include detailed discussion of at least the following:
(1) The identity of the person designated by the employer to answer
driver questions about the materials;
(2) The categories of drivers who are subject to the provisions of
this part;
(3) Sufficient information about the safety-sensitive functions
performed by those drivers to make clear what period of the work day
the driver is required to be in compliance with this part;
(4) Specific information concerning driver conduct that is
prohibited by this part;
(5) The circumstances under which a driver will be tested for
alcohol and/or controlled substances under this part, including post-
accident testing under Sec. 382.303(d);
(6) The procedures that will be used to test for the presence of
alcohol and controlled substances, protect the driver and the integrity
of the testing processes, safeguard the validity of the test results,
and ensure that those results are attributed to the correct driver,
including post-accident information, procedures and instructions
required by Sec. 382.303(d);
(7) The requirement that a driver submit to alcohol and controlled
substances tests administered in accordance with this part;
(8) An explanation of what constitutes a refusal to submit to an
alcohol or controlled substances test and the attendant consequences;
(9) The consequences for drivers found to have violated subpart B
of this part, including the requirement that the driver be removed
immediately from safety-sensitive functions, and the procedures under
part 40, subpart O, of this title;
(10) The consequences for drivers found to have an alcohol
concentration of 0.02 or greater but less than 0.04;
(11) Information concerning the effects of alcohol and controlled
substances use on an individual's health, work, and personal life;
signs and symptoms of an alcohol or a controlled substances problem
(the driver's or a co-worker's); and available methods of intervening
when an alcohol or a controlled substances problem is suspected,
including confrontation, referral to any employee assistance program
and or referral to management.
(c) Optional provision. The materials supplied to drivers
may also include information on additional employer policies with
respect to the use of alcohol or controlled substances, including any
consequences for a driver found to have a specified alcohol or
controlled substances level, that are based on the employer's authority
independent of this part. Any such additional policies or consequences
must be clearly and obviously described as being based on independent
authority.
(d) Certificate of receipt. Each employer shall ensure that
each driver is required to sign a statement certifying that he or she
has received a copy of these materials described in this section. Each
employer shall maintain the original of the signed certificate and may
provide a copy of the certificate to the driver.
Sec. 382.603 Training for supervisors.
Each employer shall ensure that all persons designated to supervise
drivers receive at least 60 minutes of training on alcohol misuse and
receive at least an additional 60 minutes of training on controlled
substances use. The training will be used by the supervisors to
determine whether reasonable suspicion exists to require a driver to
undergo testing under Sec. 382.307. The training shall include the
physical, behavioral, speech, and performance indicators of probable
alcohol misuse and use of controlled substances.
Sec. 382.605 Referral, evaluation, and treatment.
The requirements for referral, evaluation, and treatment must be
performed in accordance with 49 CFR part 40, subpart O.
Date Issued: March 16, 2001.
Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety
Administration.
[FR Doc. 01-9414 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-EX-P