[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Rules and Regulations]
[Pages 9546-9567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5373]




[[Page 9545]]

_______________________________________________________________________

Part III





Department of Transportation





_______________________________________________________________________



Federal Highway Administration



_______________________________________________________________________



49 CFR Part 382, et al.



Commercial Driver's License Program and Controlled Substances and 
Alcohol Use and Testing; Final Rule

  Federal Register / Vol. 61, No. 47 / Friday, March 8, 1996 / Rules 
and Regulations   

[[Page 9546]]


DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 382, 383, 390, 391 and 392

[FHWA Docket Nos. MC-92-19 and MC-92-23]
RIN 2125-AD46


Commercial Driver's License Program and Controlled Substances and 
Alcohol Use and Testing

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; technical amendments.

-----------------------------------------------------------------------

SUMMARY: The Federal Highway Administration is making technical 
amendments to its alcohol and drug testing rules and its regulations 
implementing the commercial driver's license program. The testing rules 
require employers to test drivers who are required to obtain commercial 
driver's licenses (CDLs) for the illegal use of alcohol and controlled 
substances. The amendments are necessary to correct minor errors in the 
final rule, codify final dispositions of waivers of the commercial 
driver's license program, and make conforming metrification changes.

EFFECTIVE DATE: This rule is effective March 8, 1996.

FOR FURTHER INFORMATION CONTACT: For information regarding program 
issues: Office of Motor Carrier Research and Standards, (202) 366-1790, 
For information regarding legal issues: Office of the Chief Counsel--
Motor Carrier Law Division, (202) 366-0834, Federal Highway 
Administration, Department of Transportation, 400 Seventh Street, SW., 
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

    A final rule published in the Federal Register on February 15, 1994 
(59 FR 7484), added 49 CFR part 382 and made conforming amendments to 
parts 391, 392, and 395.

Applicability

    Sections 382.103 and 383.3 are being revised to clarify which 
driver groups have been exempted from commercial driver's license 
requirements and, by extension, from alcohol and drug testing 
requirements. Since the final rule was published on February 15, 1994, 
numerous questions have arisen about which groups have been granted 
waivers from CDL requirements and how those waivers apply to alcohol 
and drug testing. For clarity about the driver groups exempted from 
Federal CDL requirements in September 1988 (53 FR 37313, September 26, 
1988), the FHWA is amending these sections to note those groups 
(farmers, firefighters, military personnel, emergency response 
personnel) identified in the waiver notice of final disposition. In the 
September 1988 waiver notice, States were given the option to exempt 
these groups from all CDL requirements. Drivers in States which have 
exercised these options do not have to be tested. Drivers in States 
which have not exercised these options, but require those drivers to 
obtain CDLs, must be tested for alcohol and drugs under part 382.
    The FHWA is also amending Sec. 383.3 to codify part 383 exceptions 
to certain CDL requirements for drivers that meet specific conditions 
in the State of Alaska, in the farm-related service industries or in 
the pyrotechnics industry. The final dispositions of the restricted CDL 
requirements for certain Alaskan drivers, farm-related service industry 
drivers, and pyrotechnic industry drivers allow States to waive certain 
requirements for CDL applicants under certain conditions. These drivers 
must still obtain CDLs and will be subject to alcohol and drug testing 
by their employers. The restrictions placed on the CDL do not exempt 
these drivers from the requirements of the alcohol and drug testing 
program. For more information about the State of Alaska, farm-related 
service industry, and pyrotechnic industry final dispositions, see 54 
FR 33230, August 14, 1989, 57 FR 13650, April 17, 1992, and 60 FR 
34188, June 30, 1995.

Definitions

    The FHWA is adding definitions in Sec. 382.107 for the terms 
``controlled substances,'' ``disabling damage,'' and ``licensed medical 
practitioner.'' The definition of controlled substances will include 
the substances tested for in part 40 of this title. The FHWA is copying 
the definition of ``disabling damage'' in Sec. 390.5 for placement in 
Sec. 382.107 to clarify that this definition is to be used in 
Sec. 382.303. The FHWA is adding a definition for ``licensed medical 
practitioner'' that is patterned after the Sec. 390.5 definition of the 
term ``medical examiner'' to state what types of individuals may 
prescribe controlled substances to drivers under Sec. 382.213. See the 
discussion below about licensed medical practitioners.
    Finally, the FHWA is modifying the definitions of ``driver'' and 
``safety-sensitive function.'' ``Driver'' is being modified to remove 
the last sentence with respect to pre-employment testing. This change, 
along with modification to pre-employment testing discussed later in 
this document, will allow employers to conduct pre-hire road testing of 
applicants that will ensure the applicants know how to properly operate 
particular equipment of an employer. ``Safety-sensitive function'' is 
being modified to remove the reference to the Sec. 395.2 On-duty time 
definition and add the text of part of the on-duty time definition in 
its place. The FHWA has received numerous comments that it is difficult 
for the public to make a cross reference to part 395, especially for 
employers not subject to it. Also, in light of the FHWA's future 
recodification of the Federal Motor Carrier Safety Regulations under 
its zero base regulatory review project, the FHWA is removing most 
cross referencing within subchapter B of Chapter III of Title 49, Code 
of Federal Regulations.

Starting Date for Testing Programs

    The FHWA has had numerous questions as to which testing regulations 
an interstate motor carrier is subject to when the motor carrier begins 
operations after March 17, 1994. To clarify the FHWA's intent in 
requiring such an interstate motor carrier to start drug testing under 
part 391, the FHWA is amending paragraph (c) and adding paragraph (d) 
to Sec. 382.115. This will clarify that employers that begin commercial 
vehicle operations after March 17, 1994, will have until January 1, 
1996, to implement testing programs required by part 382. However, if 
an employer begins operating in interstate commerce after March 17, 
1994, and prior to January 1, 1996, such an employer is considered an 
interstate motor carrier and may be subject to part 391, subpart H. If 
such an interstate motor carrier is required to implement the subpart H 
testing program, it must do so immediately. On January 1, 1996, the 
motor carrier will modify its drug testing program to part 382 
requirements and add alcohol testing at that time.

Licensed Medical Practitioner

    The FHWA has had inquiries concerning whether drivers, who are 
prescribed medications by non-physicians licensed to dispense 
controlled substances in their jurisdiction, may take such controlled 
substances and not be considered to be in violation of Secs. 382.213 
and 392.4. Although the terms ``medical review officer'' and 
``substance abuse 

[[Page 9547]]
professional'' use the term physician with a parenthetical describing 
the type of physician, the FHWA did not intend that such a condition be 
applied to the term ``physician'' in Secs. 382.213 and 392.4. The term 
``physician'' in the definitions of ``medical review officer'' and 
``substance abuse professional'' is followed by a parenthetical stating 
``medical doctor or doctor of osteopathy.'' Therefore, the FHWA is 
replacing the term ``physician'' in Secs. 382.213 and 392.4 with the 
term ``licensed medical practitioner.'' A definition of the term 
``licensed medical practitioner'' will be added to Sec. 382.107. A 
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. In addition, the FHWA is removing the 
footnote to Sec. 392.4(a)(1). The Government Printing Office (GPO) 
publishes Appendix D to the FMCSRs and the FHWA believes all 
individuals have access to the GPO codified versions of Appendix D.

Pre-Employment Testing

    The FHWA is amending Sec. 382.301(a) to clarify that an employer 
must either administer a pre-employment controlled substances test for 
drivers who the employer intends to hire or use or utilize the 
exception and obtain specified information from previous employers. An 
employer which obtains the information does not have to administer a 
test. The information may also be obtained from third party service 
providers that act as agents for employers. Regardless of which option 
is chosen, an employer must comply with the separate requirements of 
Sec. 382.413 to obtain certain prior testing information. Of course, 
all testing information may be released only pursuant to the consent of 
the driver.
    Some questions have arisen regarding whether records prepared by or 
obtained from former employers about a driver's pre-employment 
controlled substances test results must be retained. These records must 
be retained from one to five years in accordance with Sec. 382.401. In 
order to be absolutely clear, the FHWA is adding the words ``and 
retain'' to Sec. 382.301(d)(1) and is adding the types of records 
required to be maintained by Sec. 382.301 to Sec. 382.401, Retention of 
records, to address these concerns. Note, however, that such records 
would only be subject to an information request under Sec. 382.413 if 
the driver was actually employed or used as a driver by the employer.
    Paragraph (d)(2) of Sec. 382.301 is also being revised. The rule 
text is being rewritten to better explain use of the pre-employment 
testing exception for occasional, intermittent, and casual drivers. A 
similar paragraph has been in the drug testing rules of part 391 since 
the rules were first promulgated. This paragraph relieves employers who 
use intermittent, casual, or occasional drivers on a regular basis 
(generally for short periods, such as trip-lease drivers or drivers 
called from a union hiring hall) from the requirement to make the 
verifications in Sec. 382.301(d)(1) each time the driver is used by the 
employer to operate commercial motor vehicles (CMVs). These drivers may 
be used as little as once each quarter or once each month by an 
employer, and are generally in another employer's testing program or 
are in a union hall's testing program that conforms to part 40 of this 
title.
    In response to questions regarding the intent of this section, the 
FHWA believes that this revision will make the regulation more 
understandable. When employer A uses a driver for the first time, 
employer A must verify the information from former employers to ensure 
the driver is actively participating in a testing program(s). The 
driver may then work for employers B, C, or D, driving CMVs on a short 
term basis, or return to driving on a regular basis for a regular 
employer. If the driver returns to employer A to operate a CMV within 
six months of the previous verification, no verification of the 
information or pre-employment test is needed. If the driver returns to 
drive a commercial motor vehicle for employer A more than six months 
after employer A last verified the information as required under 
Sec. 381.301(d)(1), employer A must again verify and record that the 
driver is participating in a DOT agency testing program using part 40 
procedures.

Post-Accident Testing

    The FHWA is clarifying that drivers involved in accidents, as 
defined in Sec. 390.5, are subject to post-accident testing. Despite 
the general cross reference to Sec. 390.5 in Sec. 382.107, many people 
appear to be unclear about what types of accidents require a test. 
Therefore, the FHWA will include the definition of ``disabling damage'' 
to Sec. 382.107, revise the introductory phrase of Sec. 382.303(a), add 
a clarifying phrase to Sec. 382.303(a)(2) that comports to the style of 
Sec. 382.303(a)(1), and add Sec. 382.303(a)(3), a table to note when a 
post-accident test is required.

Random Testing

    On December 2, 1994, the FHWA, along with other DOT agencies, 
published a final rule in the Federal Register (59 FR 62218) allowing 
the agencies' Administrators to adjust the random drug testing rates 
based on information obtained by the respective agencies in their drug 
testing management information system reports. The agencies, generally, 
require certain employers to submit a report covering their drug 
testing program for a calendar year. The FHWA has randomly selected a 
sample of interstate motor carriers in the past and will make random 
selections of employers subject to part 382 in the future.
    The FHWA included in the December 2, 1994, rule text of 
Sec. 382.305(f) an example of when the FHWA Administrator may lower the 
random drug testing rate. The example incorrectly stated that the 
Federal Highway Administrator will have the first opportunity, based on 
reported data, to reduce the random drug testing rate in 1997. In fact, 
as stated in the DOT common preamble, the FHWA testing rate may first 
be reduced in 1998. Recodified paragraph (g) of Sec. 382.305 is revised 
accordingly.
    Second, the rule changed the words ``average number of driver 
positions'' in Sec. 382.305(a) to ``number of drivers each selection 
period.'' This change was unintentional. Since the change was 
unintentional, paragraph (a) is revised accordingly. The revised rule 
is corrected using the original words ``average number of driver 
positions.''
    Third, employers have said that they believed they were not 
required to have a random testing program, since the random testing 
section does not specifically state that employers are required to have 
one. The FHWA, therefore, is adding clarifying language to 
Sec. 382.305(a) that states every employer must have a random testing 
program and every driver shall submit to random testing.
    Finally, employers have asked whether Sec. 382.305(k), recodified 
as Sec. 382.305(l), prohibits a driver from driving a commercial motor 
vehicle to a testing collection site after notification. The FHWA's 
intent in requiring an employer to ensure that the driver ceases to 
perform safety-sensitive functions prior to proceeding to the 
collection site was to allow the driver to finish a task that may 
affect workplace safety, e.g., lowering a load on a forklift prior to 
leaving the forklift or finishing the securement of a load prior to 
proceeding to the collection site. The FHWA did not intend for the 
random 

[[Page 9548]]
testing rule proviso in paragraph (k) to include driving a commercial 
motor vehicle to a collection site to provide a breath, saliva, or 
urine sample. A prohibition from using such a vehicle to travel to a 
collection site is not reasonable to the FHWA when there is no 
reasonable suspicion to suspect the driver is using alcohol or 
controlled substances. Therefore, the FHWA will allow a driver to drive 
a commercial motor vehicle to a collection site after being notified of 
the driver's random selection. This will include allowing a driver to 
be notified en route to proceed to a collection site en route. However, 
the FHWA will not allow an employer, who has notified a driver of a 
random test selection, to permit or require the driver to complete a 
trip or dispatch the driver on another trip prior to the driver 
providing the appropriate sample or specimen at the collection site(s) 
for the random testing requirement. Of course, if an alcohol test 
result of 0.02 or greater alcohol concentration is obtained from this 
en route random testing, the driver is prohibited from completing all 
trips. Recodified paragraph (l) of Sec. 382.305 is revised accordingly.

Computation of the Average Number of Driver Positions for Random 
Testing

    The FHWA explained how to compute the average number of driver 
positions for the old drug testing program on the February 1, 1990 (55 
FR 3546, at 3549). For clarity and to assist those employers that were 
not subject to the old drug testing program under 49 CFR part 391, the 
FHWA is reprinting this discussion.
    The FHWA realizes that there are fluctuations in an employer's CMV 
driver work force which will make an accurate computation of a testing 
rate difficult. An employer's random testing program plan should take 
into account these fluctuations by estimating the number of random 
tests needed to be performed over the course of the year. If the 
employer's CMV driver work force is expected to be relatively constant 
(i.e., the total number of CMV driver positions are approximately the 
same or changes at a relatively constant rate), then the number of 
tests to be performed in any given year could be determined by 
multiplying the average number of CMV driver positions by the testing 
rate.
    However, if there are large fluctuations in the number of CMV 
driver positions throughout the year without any clear indication of 
the average number of CMV driver positions, the employer should make a 
reasonable estimate of the number of CMV driver positions. After making 
the estimate, the employer should then be able to determine the number 
of tests necessary. The total random tests taken for the year, however, 
must equal or exceed the average number of CMV driver positions (for 
calendar years 1996 and 1997, 50% for controlled substances testing and 
25% for alcohol testing).
    For example, if an employer decided to perform random selections 
four times a year, the number of tests to be performed during each of 
the testing periods (T) must equal or exceed 50% (25% for alcohol) of 
the number of CMV driver positions eligible to be tested (D) divided by 
the number of test periods per year (P). As a formula, the controlled 
substances formula may be expressed as:
[GRAPHIC] [TIFF OMITTED] TR08MR96.002

    The alcohol formula may be expressed as:
    [GRAPHIC] [TIFF OMITTED] TR08MR96.003
    
    At the time of selecting the individuals to be tested, the employer 
determined that there were an average of 60 CMV drivers eligible for 
testing during the period covered by the February test, 80 CMV drivers 
in May, 100 CMV drivers in August, and 70 CMV drivers in November. 
Using the formulas given above, the employer would have to perform 8 
controlled substances tests and 4 alcohol tests in February (50% [25%] 
times 60 divided by 4 equals 7.5 controlled substances (3.75 alcohol 
tests) and rounding up to the nearest whole number ), 10 controlled 
substances (5 alcohol tests) in May, 13 tests (7 alcohol tests) in 
August, and 9 tests (5 alcohol tests) in November for a total of 40 
controlled substances and 21 alcohol tests.
    However, throughout the year the employer needed to perform 39 
controlled substances (20 alcohol) tests in order to assure testing at 
the 50% (25%) rate. This figure was computed using the same formula 
with D equal to the summation of the number of drivers eligible for 
testing in each of the selection periods (D=60+80+100+70=310 CMV 
drivers), and by completing the formula, T=50% times 310 divided by 
4=38.75) and rounding up to the nearest whole number, 39. For alcohol 
testing, T=25% times 310 divided by 4=19.375) and rounding up to the 
nearest whole number, 20. In these examples, the employer could perform 
one less controlled substances test and one less alcohol test in the 
last testing period.
    Since CMV driver populations may vary during any given period in a 
year, an employer who only conducted random testing during low CMV 
driver periods would not be able to meet the 50% and 25% random testing 
ratios.
    The employer's random testing policy/plan must be documented. The 
FHWA emphasizes that each selection for random testing must include all 
CMV drivers to whom the final rule applies, regardless of whether or 
not the CMV drivers have been tested in the past. This would include 
individuals who do not regularly drive CMVs (such as clerks, mechanics, 
supervisors, officials), but are expected by the employer to be 
immediately available to perform the safety-sensitive function of 
driving a CMV, as defined in Sec. 382.107, for the employer. It is 
quite likely with a large driver turnover rate that an employer, over 
the course of the year, will be employing/using more CMV drivers than 
there are CMV driver positions. In determining the number of tests, an 
employer should use the number of CMV driver positions, not the number 
of CMV drivers used/employed during the testing period.
    To illustrate using the previous example, in the February selection 
(which represents the quarter January 1 through March 31), the employer 
determined that there were an average of 60 CMV driver positions. 
However, during the same quarter (at least up to the date the employer 
performed the random selection of CMV drivers to be tested, say 
February 12) the employer used/employed a total of 75 individuals as 
CMV drivers or persons expected to be CMV drivers. Of these 75 
individuals, 15 were no longer used by the employer at the time the 
selection was made (February 12). As noted earlier, eight individuals 
will be selected for controlled substances testing and four individuals 
will be selected for alcohol testing.

Training Supervisors for Reasonable Suspicion Testing

    The FHWA has learned that some employers and drivers believe that 
only certain supervisors of a driver are required to be trained in 
techniques of determining reasonable suspicion of alcohol and drug use 
or that this is subject to collective bargaining. The intent of the 
FHWA was, however, to require that all persons designated to supervise 
drivers be trained under Sec. 382.603. Section 382.307 is being amended 
to clarify this requirement.
    The current rule at Sec. 382.401(b)(2) may also be interpreted to 
allow employers to discard documents proving that supervisors had 
received 

[[Page 9549]]
training to determine whether reasonable suspicion exists to conduct 
alcohol and controlled substances testing two years after being 
trained. The FHWA believes it is necessary to maintain documents 
related to such training during the entire period for which a 
supervisor is authorized to make such determinations. It was the FHWA's 
intent to allow employers to discard such training records two years 
after the supervisor leaves the employer or ceases to perform the tasks 
requiring the training. The FHWA, therefore, is clarifying the record 
retention requirements in Sec. 382.401(b)(4) for all persons who are 
required to be trained or educated under the rules, such as collection 
site personnel, breath alcohol technicians, screening test technicians 
and supervisors.

Record Retention Requirements

    The FHWA is revising the record retention section to clarify 
certain requirements and to add items that were included in part 391 
requirements for drug testing but inadvertently left out of the part 
382 regulations.
    The FHWA is clarifying that Sec. 382.401(b) is meant to note the 
time periods for which records must be kept and Sec. 382.401(c) is 
meant to specify most of the records that must be kept. The FHWA 
declines to list every record that could be generated in an alcohol and 
drug testing program. The FHWA's intent, however, is that all records 
that are generated by an employer or its agents in the administration 
of the testing program must be maintained to the same extent as 
required in part 391. Administrative records are required to be 
maintained for a minimum of five years under Sec. 391.87(d). The FHWA 
is adding an item to Sec. 382.401(b) noting that administrative records 
must be maintained for the same time period.
    A new paragraph, Sec. 382.401(e), is also being added to note the 
locations in the rule of information collection requirements required 
by part 382. The FHWA believes that this provision will allow the 
public to easily locate those rule sections which require documents to 
be prepared and maintained.

Medical Review Officer Notification to the Employer

    The FHWA also has received numerous questions regarding the new 
requirement that signed, written notifications of the results be sent 
from the MRO to the employer. Many MROs have asked whether their staff 
may sign the reports, and if not, whether the MRO signature may be 
handwritten, rubber stamped, or electronically produced. These MROs 
stated that requiring them to personally sign written reports of 
negative test results would be extremely burdensome. The FHWA's intent 
with the new requirement was to get reliable information concerning 
positive and negative test results into the hands of the employer and 
avoid communication problems from occurring over the telephone. Some 
employers have stated that they have heard the MRO say ``negative,'' 
when in fact, the MROs records indicate the driver was verified 
positive for illegal controlled substances use.
    The FHWA will continue to require that all test results be 
forwarded to the employer in writing and be signed by the MRO within 
three business days after completion of the verification of test 
results. (Note that the Office of the Secretary of Transportation's 
Drug Enforcement and Program Compliance office has held, under 
Sec. 40.33, that positive test result verifications may not be 
completed until part 2 of the Federal Custody and Control Form is 
received by the MRO from the laboratory.) Some consortia have reported 
that MROs never receive their copy from the collection site, Copy 4, of 
the Federal Custody and Control Form. The FHWA would expect in these 
circumstances that the MRO would contact the collection site or the 
employer to obtain a photocopy of their copy of the form, Copies 6 or 7 
in order to complete the verification process for both negatives and 
positives.
    To facilitate transmittal of information, Sec. 382.407(a) is being 
changed to allow MROs to notify employers using a legible photocopy of 
the fourth copy of part 40's Appendix A subtitled COPY 4--SEND DIRECTLY 
TO MEDICAL REVIEW OFFICER--DO NOT SEND TO LABORATORY of the Federal 
Custody and Control Form. This copy may be used in lieu of producing a 
new record to make the signed, written notification to the employer, 
provided that for verified positive test results the controlled 
substance(s) identified and verified as positive shall be legibly noted 
in the remarks section for step 8. If a Copy 4 is used, the MRO must 
sign his or her name on the form.
    The MRO shall forward the test results and other information 
required by Sec. 382.407(a) within three business days after the 
completion of the MRO's review of the test result and the MRO must sign 
his or her name on positive notification records. The FHWA does not 
believe a driver should be subject to the consequences of the rule 
based on results that are not signed by a MRO. Therefore, the MRO's 
signature must be handwritten by the MRO. The MRO's staff will not be 
allowed to sign or rubber stamp verified positive test results for the 
MRO. The MRO's staff, however, would be allowed to rubber stamp 
negative test results for the MRO when the MRO delegates such authority 
to the MRO staff. At this time, the FHWA shall not allow electronic 
signature technology to be used. If such electronic signature 
technology is considered in the future, the public will be provided an 
opportunity to comment on such a proposal at that time.

Inquiring for Alcohol and Controlled Substances Information From 
Previous Employers

    The FHWA has had numerous questions about the new requirement to 
obtain prior positive testing information from former employers. Many 
questions have arisen about the good faith effort discussed in the 
preamble and about other provisions of the section. Also, since 
publication of the alcohol and drug testing rule, Congress enacted 
legislation requiring interstate motor carriers subject to Sec. 391.23 
to obtain safety information from former employers of drivers similar 
to that required under Sec. 382.413 (Hazardous Materials Transportation 
Authorization Act of 1994 (HazMat Act), Pub. L. 103-311, sec. 114). The 
FHWA will provide notice and an opportunity for comment in a future 
rulemaking on Sec. 391.23 about possible conforming changes to 
Sec. 382.413.
    Section 382.413 requires the sharing of information on certain 
violations of part 382--positive drug test results, alcohol results of 
0.04 alcohol concentration or greater, and refusals to be tested. It 
should be noted that the records required to be obtained under 
Sec. 382.413 are limited to only those records generated under part 382 
after January 1, 1995. See paragraph (h). Employers are expected to 
request the information from former employers as soon as the employer 
expects to use/hire the driver to drive or perform other safety-
sensitive functions.
    The rule continues to require that, if feasible, the employer 
obtain the information prior to the first performance of safety-
sensitive functions by a driver. If obtaining the information prior to 
the driver's first performance of safety-sensitive functions for the 
employer is not feasible, the information should be obtained as soon as 
possible, but not more than 14 days later. If a driver leaves a new 
employer before the new employer obtains the information, the new 
employer must continue to attempt to obtain the information. In 
response to inquiry on this point, a clarifying amendment to 
Sec. 382.413(b) expressly 

[[Page 9550]]
limits this provision to drivers actually hired and used by the 
employer to perform safety-sensitive functions. A prospective employer 
need not obtain the information from an employer which tested but did 
not hire a driver. This is consistent with Sec. 391.21, which requires 
drivers to list only previous employers. However, a prospective 
employer may request the information if it chooses to obtain the 
information.
    In another clarifying change, Sec. 382.413(a)(2) is being added to 
explain that a new employer may obtain from a former employer 
information on all records of that employer relevant to 
Sec. 382.413(a)(1) (i)-(iii). This includes not only that information 
recorded as the result of the driver's violations of the rules by that 
former employer, but also any records of violations within the past two 
years which the former employer obtained from other former employers. 
For example, Sue Driver is applying for a job with ABC Trucking. Ms. 
Driver notes on her application that she previously drove CMVs for 
three employers--DEF City Schools, XYZ Airlines, and the Minnesota DOT 
(MnDOT). ABC Trucking obtains from Ms. Driver three written 
authorization requests to obtain information required by 
Sec. 382.413(a)(1) and transmits them to the three employers. In 
response to the request, DEF City Schools transmits all the relevant 
information it has on file, including not only the information 
resulting from tests it administered, but also all the information it 
has in its files from XYZ Airlines and the MnDOT, if any, which it had 
obtained pursuant to Sec. 382.413 and which referred to tests occurring 
during the past two years. No information beyond the two year period is 
required to be obtained. ABC Trucking would then have a complete, 
perhaps overlapping, picture of Ms. Driver's testing and violation 
history. ABC Trucking may, in turn, pass this information along to the 
next employer with the information ABC develops from Ms. Driver's ABC 
Trucking employment, provided it falls within the two year time period.
    New and prospective employers should ensure that the driver's 
written consent authorizes former employers to disclose all 
prohibitions listed under Sec. 382.413(a)(1), that occurred within the 
previous two years, of which the former employer has knowledge. 
Otherwise, a former employer may be prohibited by Sec. 382.405(f) from 
passing along to the inquiring employer any Sec. 382.413(a)(1) 
information that was obtained from another previous employer. Section 
382.405(f) states that records under part 382 may only be released to a 
subsequent employer upon receipt of written authorization from a 
driver. Disclosure of the part 382 records by the subsequent employer 
is also permitted only as expressly authorized by the terms of the 
driver's signed authorization. If the driver's authorization had 
prohibited the subsequent employer from disclosing the information, 
sharing that information with the inquiring employer would be in 
violation of Sec. 382.405(f).
    In another change, Sec. 382.413(f) is being added to explain that a 
new employer may obtain directly from the driver the information 
required to be shared in Sec. 382.413(a)(1) (i)-(iii). The purpose of 
the provision is to facilitate information exchange where it might not 
otherwise be possible. Drivers may be the sole source of their testing 
records when their previous employers have gone out of business or 
refuse to provide the required information. Given the fluidity of 
driver-employer relationships in the commercial motor vehicle industry, 
employers in some situations might find it difficult to obtain the 
necessary testing information on certain drivers. Allowing drivers to 
present the information should prevent Sec. 382.413 from being a 
hindrance to operations while still ensuring that accurate information 
is exchanged. It should also result in more information being 
exchanged.
    An employer presented with testing information from a driver must 
assure itself that the copies of former employer's records provided by 
the driver are true and accurate. The rule does not specify how an 
employer can assure itself that the copies of former employer's testing 
records are true and accurate and it may vary on a case-by-case basis. 
One method might be to transmit a confidential fax to the former 
employer's (listed on the employment application required by 
Sec. 383.35) testing program representative, the driver's written 
authorization for release of specific information and the list provided 
by the driver. The prospective employer would then telephone the former 
employer to verify the information on the testing record copies. A 
former employer who has a driver's written authorization in hand and 
verifies a prospective employer's inquiry over the telephone is less 
sensitive to confidentiality than the former employer providing the 
information without any written authorization. Verification might also 
have to be made with SAPs directly when the former employer did not 
provide for a full rehabilitative program. Prospective employer 
verification of this information should help prevent drivers who have 
violated the rules by testing positive from continually skipping from 
one employer to the next without getting needed treatment. These 
drivers will be subject to this previous employer verification check at 
every employer where the drivers seek work. Former employers will be 
able to share information on these drivers with prospective employers 
about the problems with alcohol and/or drugs these drivers have had in 
the past.
    For example, Sam Trip works as an occasional driver for interstate 
motor carriers that use his services in accordance with Sec. 391.63. 
Mr. Trip arranges with PWC Contract Carriers to haul a load from 
Chicago to Kansas City. PWC Contract Carriers continues to be subject 
to Sec. 383.35 and must obtain an employment application from Sam Trip. 
Mr. Trip lists three employers where he worked as a CMV operator since 
January 1, 1995. Mr. Trip also provides copies of his testing records 
for the period January 1, 1995, to the present. PWC Contract Carriers 
transmits by confidential telecommunications the information in Sam 
Trip's records for the past two years, including testing information 
from January 1, 1995, with Mr. Trip's written authorization for release 
of such information, verifies the information to be accurate, and 
allows Mr. Trip to haul its load to Kansas City.
    A subject of many questions since the publication of the February 
15, 1994, final rule is the discussion of good faith effort which 
appeared in the preamble to the final rule. In response, the good faith 
concept is being incorporated into Sec. 382.413(b) of the rule. It is 
recognized that, given the high level of fluidity of the motor carrier 
population, obtaining responses to information requests may not always 
prove to be easy. Former employers may have gone out of business, 
changed locations, been less than diligent in reporting, or simply 
refused to respond. Drivers and new employers should not be punished 
for this situation when they have been diligent in requesting the 
information. Therefore, it is provided that an employer may not use a 
driver for more than 14 days without having made a good faith effort to 
obtain the information.
    Good faith in this context means a request of each former employer 
listed on the driver's employment application or known to exist. Where 
information is not forthcoming, a good faith effort consists of 
something more than the original mailed request for information and 
will vary depending on the situation. Except where there is a clear 
refusal by the former employer to transmit the information, rendering 

[[Page 9551]]
further requests futile, there should also be a follow-up attempt, 
preferably by telephone, to obtain the information. Refusals to respond 
should be reported to the FHWA for investigation as a violation of the 
requirement in Sec. 382.405(f) to release information to a subsequent 
employer.
    In keeping with the intent of this section, there must be a good 
faith effort in the first instance to obtain the information before 
permitting the driver to drive. If that is not feasible, then the 
information should be obtained as soon as possible, but no later than 
expiration of the 14-day period. An employer is certainly not acting in 
good faith when only beginning to attempt to obtain the information on 
the 13th day. Moreover, if, for example, it is possible to obtain the 
information in 5 days, it is not good faith and is a violation of the 
rule to wait until the 12th day to obtain it. In most circumstances, 
good faith dictates that the information should be requested by the new 
employer immediately after making a conditional offer of employment.
    If, after making a good faith effort, the information is not 
available, Sec. 382.413(c) requires a record to be made of the attempt. 
The employer may then continue to use the driver. Paragraph (c) also 
requires all information obtained in response to a request under 
paragraph (a) to be recorded, including failures to obtain the 
information. This includes the information in paragraph (a)(1) (i)-
(iii) on violations, as well as the information that the former 
employer has no records of any violations. If the information somehow 
is made available after the 14-day period, the employer would then be 
obligated to take appropriate action on it, including not using a 
driver with a violation who has not been subsequently evaluated by an 
SAP.
    A typical good faith effort would begin with the employer obtaining 
the driver's written consent on the employer's letterhead stationary. 
The driver should complete the document at the time the driver prepares 
other documents in the hiring process (e.g., the document the employer 
is required to obtain from the driver in compliance with Sec. 383.35 
Notification of Previous Employment or Sec. 391.21 Application for 
Employment). Immediately after the employer makes a conditional offer 
of employment, a written consent letter is sent via certified mail to 
the former employer(s), along with instructions on how the information 
should be transmitted back to the requesting employer (e.g., by secure 
and confidential facsimile, by certified mail, or by telephone to a 
designated person).
    After a reasonable period without a response, the employer should 
contact the driver's former employers' alcohol and drug testing program 
managers to ask about the status of the request to obtain the driver's 
testing records. The employer should not wait until a few days before 
the first time the employer uses the driver to perform safety-sensitive 
functions to make a follow-up contact with the former employers. Former 
employers are required to forward, upon receipt of a former driver's 
specific written consent, their testing information to the driver, the 
employer or any third party the driver designates. Failure to do so is 
a violation of Sec. 382.405.
    If a driver's former employer has gone out of business or refuses 
to comply with part 382, subpart D, requirements to forward its testing 
information about the driver to the new employer, or for some other 
reason the employer cannot obtain the testing information from a 
particular former employer, the employer must document the facts and 
any related information and retain this information in the employer's 
files.
    Finally, the section heading is being changed to clarify the intent 
of the section and the current Sec. 382.413(a) is being removed. The 
FHWA explained in the February 15, 1994, final rule preamble that 
paragraph (a) restated Sec. 382.405(b) in terms of the prospective 
employer. The FHWA wrote in the preamble ``An employer may obtain any 
of the information retained by other employers under part 382, pursuant 
to a driver's consent.'' Because this paragraph merely repeats 
Sec. 382.405(f) requirements, it is being removed.

Part 391, Subpart H Record Retention

    Questions have also been asked about whether interstate motor 
carriers who prepare and maintain records under part 391 may discard 
those records when, in accordance with Sec. 391.125, they cease 
compliance with part 391 and begin complying with part 382. The intent 
of the FHWA was to terminate compliance with the applicability, 
consequences, and testing requirements of part 391. It was the FHWA's 
intent that the records prepared and maintained under part 391 would 
continue to be kept in accordance with part 382. The FHWA is amending 
Sec. 391.125 to specify that the recordkeeping requirements of part 
391, subpart H, will be transferred to part 382. Also, part 382 is 
being amended to note that records generated under part 391, subpart H, 
must be maintained under Sec. 382.401(c)(6)(v).

Possession of Alcohol

    The FHWA has had numerous inquiries about the alcohol possession 
prohibition in parts 382 and 392. The FHWA has reconsidered its 
position on whether prohibiting unmanifested possession of alcohol on 
commercial motor vehicles is necessary given the new regulations for 
alcohol use. The FHWA believes the possession prohibition is not needed 
in part 382.
    Section 392.5 prohibits the possession of alcoholic beverages and 
is generally enforced as a part of roadside inspections by FHWA and 
State officials. Formerly, Sec. 392.5 prohibited possession of 
intoxicating beverages. On February 15, 1994 (59 FR 7484), Sec. 392.5 
was amended to prohibit possession of ``alcoholic beverages.'' The 
intent of Sec. 392.5 is to prohibit the carrying of any substance on a 
CMV that could be consumed by the driver and result in impairment. 
However, it does not prohibit the possession of other forms of alcohol 
that would be used for the safe operation of commercial motor vehicles, 
such as alcohol formulations to be used in the fuel tank, on the 
windshield, as cleaning agents, and for other safety uses.
    Section 382.204, in contrast, could be construed as prohibiting the 
possession of substances such as windshield washer fluid, denatured 
alcohol, fuel line antifreeze, rubbing alcohol, and other products that 
contain alcohol and have been allowed in the past for the safe 
operation of CMVs. This section could also be construed to prohibit the 
possession of shaving lotion, cologne, or room deodorizers. This is the 
case because a broader definition of alcohol was used in part 382, 
rather than ``alcoholic beverage.'' The FHWA believes, however, that 
mere possession of alcohol in forms other than beverage does not render 
a person unable to safely operate a CMV. Moreover, the new testing 
regulations for alcohol will provide controls in addition to the 
amended Sec. 392.5 to ensure that impaired drivers do not operate CMVs. 
The FHWA does not believe, therefore, that it is necessary to repeat an 
alcohol possession prohibition in part 382 and is removing it.
    The FHWA will continue to prohibit the possession of alcoholic 
beverages in Sec. 392.5 for interstate motor carriers and drivers. The 
term ``alcoholic beverage'' is not defined in the general definitions 
of Sec. 390.5, so the FHWA has decided to amend Sec. 392.5 to add the 
content of the definition in Sec. 383.5. This definition is consistent 
with the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) and is 
restricted to beer, wine, and 

[[Page 9552]]
distilled spirits as defined under the Internal Revenue Code of 1954.
    In addition, consistent with an interpretation published on 
November 17, 1993 (58 FR 60734), the FHWA is explaining the exception 
for the possession of alcoholic beverages on buses and motorcoachs in 
greater detail. The FHWA will not prohibit motor carriers from 
transporting alcoholic beverages for distribution to passengers, or 
alcoholic beverages that have been brought on board by passengers for 
the passengers' personal consumption. However, any driver who is seated 
in the passenger seating area or who is resting in sleeper berth 
equipment shall be prohibited from possessing alcoholic beverages. It 
should be noted, however, that States may have stricter laws regarding 
whether bus passengers may possess alcoholic beverages. If a State 
would have a stricter law regarding bus passenger possession of 
alcoholic beverages, such a law would not be preempted by this rule.
    The FHWA has had, and will continue to have, a strong policy of 
zero tolerance of consumption and use of alcohol by commercial motor 
vehicle drivers. The consumption or presence in the body of any form of 
alcohol, including any alcoholic mixture, preparation, or beverage, is 
strictly prohibited while driving. This includes any substance 
containing alcohol, including, but not limited to, windshield washer 
fluid, liquid fuels, fuel line antifreeze, denatured alcohol, shaving 
lotion, cologne, beer, wine, and distilled spirits. In terms of 
possession, the form of prohibited alcohol is narrower. Drivers subject 
to Sec. 392.5 may not possess beer, wine, or distilled spirits. Many 
States have laws that are similar to Sec. 392.5 regarding the 
possession of alcoholic beverages for commercial motor vehicle drivers 
operating in intrastate commerce and the FHWA does not believe that it 
must supersede those State laws. The FHWA will allow those States to 
use and enforce those laws without expressly preempting them.

Metric System

    The Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, 
sec. 5164) amended the Metric Conversion Act of 1975 to require, among 
other things, that each Federal agency, by the end of the fiscal year 
1992, use the metric system of measurement in its procurements, grants, 
and other business-related activities, except to the extent that such 
use is impractical or is likely to cause significant inefficiencies or 
loss of markets to United States firms, such as when foreign 
competitors are producing competing products in non-metric units.
    The term ``metric system'' means the International System of Units 
(SI) established by the General Conference of Weights and Measures in 
1960, as interpreted or modified from time to time for the United 
States by the Secretary of Commerce under the authority of the Metric 
Conversion Act of 1975 and the Metric Education Act of 1978. The 
Commerce Department requires Federal agencies to coordinate and plan 
for the use of the metric system in their procurements, grants and 
other business-related activities consistent with the requirements of 
the Metric Conversion Act, as amended. The FHWA has begun the 
transition process to convert to the metric system. In so doing, the 
FHWA believes it must convert to metric equivalents those parts of the 
definition of the term, ``commercial motor vehicle,'' which use gross 
vehicle weight ratings in the U.S. Customary System of measurement. The 
FHWA is therefore taking this opportunity to change the definition to 
the SI system in line with 15 CFR part 19. The customary equivalent is 
provided parenthetically for convenience.

Locations of Regional Offices of Motor Carriers

    The FHWA regional Offices of Motor Carriers for regions four and 
nine have recently moved. The FHWA, therefore, is updating the title of 
the section and the addresses in the table found in Sec. 390.27.

Rulemaking Analyses and Notices

    Because this final rule simply makes minor edits to the FHWA's 
alcohol and drug testing rules to clarify these regulations, the FHWA 
believes that prior notice and opportunity for comment are unnecessary 
under 5 U.S.C. 553(b)(3)(B). In addition, due to the technical nature 
of this final rule, the FHWA has determined that prior notice and 
opportunity for comment are not required under the Department of 
Transportation's regulatory policies and procedures, as it is not 
anticipated that such action would result in the receipt of useful 
information. In this final rule, the FHWA is not exercising discretion 
in a way that could be meaningfully affected by public comment.
    This action also effectively grants an exemption from an alcohol 
and drug testing regulation to employers and MROs. The amendments to 
Sec. 382.407 relieve MROs from the requirement to prepare, in writing, 
a document if they wish to legibly photocopy Copy 4 of the Federal 
Chain of Custody form, fill in verified positive or negative test 
information, add a statement about compliance with 49 CFR parts 40 and 
382, and sign the photocopy.
    Because this final rule relieves employers and MROs from certain 
regulations cited above, the FHWA also believes that good cause exists 
to publish this rule less than 30 days before it is effective, as is 
ordinarily required under 5 U.S.C. 553(d). Accordingly, the FHWA is 
proceeding directly to a final rule which is effective on its date of 
publication.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is neither a significant 
regulatory action under Executive Order 12866 or significant under the 
Department of Transportation's regulatory policies and procedures. It 
is anticipated that the economic impact of this action will not be 
substantial because this rule simply makes minor, technical changes to 
the Federal Motor Carrier Safety Regulations to clarify the FHWA's 
alcohol and drug testing rules. Therefore, a full regulatory evaluation 
is not warranted.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small 
entities. This final rule will technically amend and clarify the 
requirements for employers to test drivers for the use of alcohol and 
controlled substances. Accordingly, the FHWA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities.

Executive Order 12612 (Federalism Assessment)

    The amendments made by this rule do not have a substantial direct 
effect on the States or on the relationship or distribution of power 
between the national government and the States because they do little 
to limit the policymaking discretion of the States. To the extent that 
these amendments do require States to make minor modifications to their 
laws or regulations, the authority to preempt inconsistent State and 
local laws, regulations, rules and orders was expressly provided under 
49 U.S.C. 31306(g). Therefore, the FHWA is not required to prepare a 
separate Federalism Assessment for this rule. 

[[Page 9553]]


Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved 2,900,717 
hours for the information collection requirements in the existing drug 
and alcohol testing regulations at 49 CFR part 382, under OMB control 
no. 2125-0543. One of the changes contained in this rule will decrease 
the burden hours required to comply with these regulations by a 
significant amount. Other changes are due to technical modifications, 
clarification of language, and closing loopholes for drivers with 
numerous previous employers. Also, a rule amendment published on March 
13, 1995, contains a significant decrease in burden hours. Accordingly, 
the overall effect of these amendments is to decrease the burden of 
complying with the recordkeeping and reporting requirements of the drug 
and alcohol testing regulations.
    In addition, the FHWA is clarifying the record retention provisions 
in Sec. 382.401 to require that records documenting supervisors' 
reasonable suspicion training be retained for two years after the 
supervisor ceases to perform the tasks requiring this training, 
replacing the current requirement to retain such records for two years 
after the training is completed.
    Finally, the total number of burden hours will be decreased by this 
final rule as a result of the FHWA allowing MROs to send Copy 4 of the 
Federal Custody and Control form rather than complete a new written 
document that is signed as a notification of test results to the 
employer of each driver tested. The net effect of these changes will be 
a decrease in burden hours. The FHWA will be sending a revised burden 
estimate for this information collection request to the Office of 
Management and Budget.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that this action will not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Parts 382, 383, 390, 391, and 392

    Alcohol testing, Controlled substances testing, Drivers, Highways 
and roads, Highway safety, Motor carriers, Motor vehicle safety, 
Reporting and recordkeeping requirements, Safety, Transportation.

    Issued on: February 29, 1996.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA is amending title 49, 
CFR, subtitle B, chapter III, parts 382, 383, 390, 391, and 392 as set 
forth below:
    1. Part 382 is revised 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  Requirement for notice.
382.115  Starting date for testing programs.

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.

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 1.48.

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 two or more 
covered employees in the random testing selection pool.
    (c) The exceptions contained in Sec. 390.3(g) of this subchapter do 
not apply to this part. The employers and drivers identified in 
Sec. 390.3(g) 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 

[[Page 9554]]
654 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;
    (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 Secs. 386.2 and 
390.5 of this subchapter, and Sec. 40.3 of this title, except as 
provided herein--
    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 consumption of any beverage, mixture, 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 motor vehicle--
    (1) Has a gross combination weight rating of 11,794 or more 
kilograms (26,001 or more pounds) inclusive of a towed unit with a 
gross vehicle weight rating of more than 4,536 kilograms (10,000 
pounds); or
    (2) Has a gross vehicle weight rating of 11,794 or more kilograms 
(26,001 or more pounds); or
    (3) Is designed to transport 16 or more passengers, including the 
driver; or
    (4) Is of any size and is used in the transportation of materials 
found to be hazardous for the purposes of the Hazardous Materials 
Transportation Act and which require the motor vehicle to be placarded 
under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
    Confirmation test for alcohol testing means a second test, 
following a screening test with a result of 0.02 or greater, that 
provides quantitative data of alcohol concentration. For controlled 
substances testing means a second analytical procedure to identify the 
presence of a specific drug or metabolite which is independent of the 
screen test and which uses a different technique and chemical principle 
from that of the screen test in order to ensure reliability and 
accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only 
authorized confirmation method for cocaine, marijuana, opiates, 
amphetamines, and phencyclidine.)
    Consortium means an entity, including a group or association of 
employers or contractors, that provides alcohol or controlled 
substances testing as required by this part, or other DOT alcohol or 
controlled substances testing rules, and that acts on behalf of the 
employers.
    Controlled substances mean those substances identified in 
Sec. 40.21(a) of this title.
    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 any person (including the United States, a State, 
District of Columbia, tribal government, or a political subdivision of 
a State) who owns or leases a commercial motor vehicle or assigns 
persons to operate such a vehicle. The term employer includes an 
employer's agents, officers and representatives.
    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 provide adequate breath for alcohol testing as 
required by part 40 

[[Page 9555]]
of this title, without a valid medical explanation, after he or she has 
received notice of the requirement for breath testing in accordance 
with the provisions of this part,
    (2) Fails to provide an adequate urine sample for controlled 
substances testing as required by part 40 of this title, without a 
genuine inability to provide a specimen (as determined by a medical 
evaluation), after he or she has received notice of the requirement for 
urine testing in accordance with the provisions of this part, or
    (3) Engages in conduct that clearly obstructs 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 Secs. 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 (also known as initial test) In alcohol testing, it 
means an analytical procedure to determine whether a driver may have a 
prohibited concentration of alcohol in his or her system. In controlled 
substance testing, it means an immunoassay screen to eliminate 
``negative'' urine specimens from further consideration.
    Substance abuse professional means a licensed physician (Medical 
Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or 
addiction counselor (certified by the National Association of 
Alcoholism and Drug Abuse Counselors Certification Commission) with 
knowledge of and clinical experience in the diagnosis and treatment of 
alcohol and controlled substances-related disorders.
    Violation rate means the number of drivers (as reported under 
Sec. 382.305 of this part) 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 and 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) Large domestic employers. Each employer with fifty or more 
drivers on March 17, 1994, will implement the requirements of this part 
beginning on January 1, 1995.
    (b) Small domestic employers. Each employer with less than fifty 
drivers on March 17, 1994, will implement the requirements of this part 
beginning on January 1, 1996.
    (c) All domestic employers. Each domestic employer that begins 
commercial motor vehicle operations after March 17, 1994, but before 
January 1, 1996, will implement the requirements of this part beginning 
on January 1, 1996. However, such an employer may be subject to the 
requirements of part 391, subpart H on the date they begin operations, 
if operating commercial motor vehicles in interstate commerce. A 
domestic employer that begins commercial motor vehicle operations on or 
after January 1, 1996, will implement the requirements of this part on 
the date the employer begins such operations.
    (d) Large foreign employers. Each foreign-domiciled employer with 
fifty or more drivers assigned to operate commercial motor vehicles in 
North America on December 17, 1995, must implement the requirements of 
this part beginning on July 1, 1996.
    (e) Small foreign employers. Each foreign-domiciled employer with 
less than fifty drivers assigned to operate commercial motor vehicles 
in North America on December 17, 1995, must implement the requirements 
of this part beginning on July 1, 1997.
    (f) All foreign employers. Each foreign-domiciled employer that 
begins commercial motor vehicle operations in the United States after 
December 17, 1995, but before July 1, 1997, must implement the 
requirements of this part beginning on July 1, 1997. A foreign employer 
that begins commercial motor vehicle operations in the United States on 
or after July 1, 1997, must implement the requirements of this part on 
the date the foreign employer begins such operations.

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 

[[Page 9556]]
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 of this part 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 of this part, 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 for controlled 
substances. No employer having actual knowledge that a driver has 
tested positive for controlled substances shall permit the driver to 
perform or continue to perform safety-sensitive functions.

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 alcohol 
and controlled substances as a condition prior to being used, unless 
the employer uses the exception in paragraphs (c) and (d) of this 
section. No employer shall allow a driver, who the employer intends to 
hire or use, to perform safety-sensitive functions unless the driver 
has been administered an alcohol test with a result indicating an 
alcohol concentration less than 0.04, and has received a controlled 
substances test result from the MRO indicating a verified negative test 
result. If a pre-employment alcohol test result under this section 
indicates an alcohol content of 0.02 or greater but less than 0.04, the 
provision of Sec. 382.505 shall apply.
    (b) Exception for pre-employment alcohol testing. An employer is 
not required to administer an alcohol test required by paragraph (a) of 
this section if:
    (1) The driver has undergone an alcohol test required by this 
section or the alcohol misuse rule of another DOT agency under part 40 
of this title within the previous six months, with a result indicating 
an alcohol concentration less than 0.04; and
    (2) 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 alcohol misuse rule of another DOT agency within the previous 
six months.
    (c) Exception for pre-employment controlled substances testing. 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.
    (d)(1) An employer who exercises the exception in either paragraph 
(b) or (c) of this section shall contact the alcohol and/or 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 alcohol or 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 (d)(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, the employer shall conduct a 
pre-employment alcohol and/or controlled substances test.
    (e) Nothwithstanding any other provisions of this subpart, all 
provisions and requirements in this section pertaining to pre-
employment testing for alcohol are vacated as of May 1, 1995.


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 and controlled substances 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 

[[Page 9557]]
the accident, requiring the motor vehicle to be transported away from 
the scene by a tow truck or other motor vehicle.
    (3) This table notes when a post-accident test is required to be 
conducted by paragraphs (a)(1) and (a)(2) of this section.

                      Table for Sec.  382.303(a)(3)                     
------------------------------------------------------------------------
                                                         Test must be   
   Type of accident  involved     Citation issued to     performed by   
                                    the CMV driver         employer     
------------------------------------------------------------------------
Human fatality..................  YES...............  YES.              
                                  NO................  YES.              
Bodily injury with immediate      YES...............  YES.              
 medical treatment away from the                                        
 scene.                                                                 
                                  NO................  NO.               
Disabling damage to any motor     YES...............  YES.              
 vehicle requiring tow away.                                            
                                  NO................  NO.               
------------------------------------------------------------------------

    (b)(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 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 
FHWA upon request of the Associate Administrator.
    (2) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FHWA each record of a test required by 
this section that is not completed within eight hours. The employer's 
records of tests that are not completed within eight hours shall be 
submitted to the FHWA by March 15, 1996; March 15, 1997, and March 15, 
1998, for calendar years 1995, 1996, and 1997, respectively. Employers 
shall append these records to their MIS submissions. Each record shall 
include the following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Reason(s) test could not be completed within eight hours;
    (iv) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred; and
    (3) Records of alcohol tests that could not be completed in eight 
hours shall be submitted to the FHWA at the following address: Attn: 
Alcohol Testing Program, Office of Motor Carrier Research and Standards 
(HCS-1), Federal Highway Administration, 400 Seventh Street, SW., 
Washington, DC 20590.
    (4) 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 
FHWA upon request of the Associate Administrator.
    (c) 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.
    (d) 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.
    (e)(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.
    (f) 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 25 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 FHWA 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 of this part. In order to 
ensure reliability of the data, the FHWA 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. Each year, 
the FHWA Administrator will publish in the Federal Register the 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.
    (d)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the FHWA Administrator may lower this 
rate to 10 percent of all driver positions if the FHWA 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 FHWA Administrator may lower this rate to 25 
percent of all driver positions if the FHWA Administrator determines 
that the data received under the reporting 

[[Page 9558]]
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 FHWA 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 
FHWA Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent for all driver positions.
    (f) The FHWA 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 of this part. In order to ensure reliability of the data, 
the FHWA 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. Each year, the FHWA Administrator will publish 
in the Federal Register the minimum annual percentage rate for random 
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.
    (g) When the minimum annual percentage rate for random controlled 
substances testing is 50 percent, the FHWA Administrator may lower this 
rate to 25 percent of all driver positions if the FHWA 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. However, after the initial two 
years of random testing by large employers and the initial first year 
of testing by small employers under this section, the FHWA 
Administrator may lower the rate the following calendar year, if the 
combined positive testing rate is less than 1.0 percent, and if it 
would be in the interest of safety.
    (h) When the minimum annual percentage rate for random controlled 
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 FHWA 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 FHWA Administrator. If 
the employer conducts random testing for alcohol and/or controlled 
substances through a consortium, 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 consortium 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.
    (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 

[[Page 9559]]
reasonable suspicion testing shall be made by a supervisor or company 
official who is trained in accordance with Sec. 382.603 of this part. 
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) For the years stated in this paragraph, employers who submit 
MIS reports shall submit to the FHWA each record of a test required by 
this section that is not completed within 8 hours. The employer's 
records of tests that could not be completed within 8 hours shall be 
submitted to the FHWA by March 15, 1996; March 15, 1997; and March 15, 
1998; for calendar years 1995, 1996, and 1997, respectively. Employers 
shall append these records to their MIS submissions. Each record shall 
include the following information:
    (i) Type of test (reasonable suspicion/post-accident);
    (ii) Triggering event (including date, time, and location);
    (iii) Reason(s) test could not be completed within 8 hours; and
    (iv) If blood alcohol testing could have been completed within 
eight hours, the name, address, and telephone number of the testing 
site where blood testing could have occurred.
    (3) Records of tests that could not be completed in eight hours 
shall be submitted to the FHWA at the following address: Attn.: Alcohol 
Testing program, Office of Motor Carrier Research and Standards (HCS-
1), Federal Highway Administration, 400 Seventh Street, SW., 
Washington, DC 20590.
    (4) 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.
    (5) 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 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.

    (a) Each employer shall ensure that before a driver returns to duty 
requiring the performance of a safety-sensitive function after engaging 
in conduct prohibited by subpart B of this part concerning alcohol, the 
driver shall undergo a return-to-duty alcohol test with a result 
indicating an alcohol concentration of less than 0.02.
    (b) Each employer shall ensure that before a driver returns to duty 
requiring the performance of a safety-sensitive function after engaging 
in conduct prohibited by subpart B of this part concerning controlled 
substances, the driver shall undergo a return-to-duty controlled 
substances test with a result indicating a verified negative result for 
controlled substances use.


Sec. 382.311  Follow-up testing.

    (a) Following a determination under Sec. 382.605(b) that a driver 
is in need of assistance in resolving problems associated with alcohol 
misuse and/or use of controlled substances, each employer shall ensure 
that the driver is subject to unannounced follow-up alcohol and/or 
controlled substances testing as directed by a substance abuse 
professional in accordance with the provisions of 
Sec. 382.605(c)(2)(ii).
    (b) Follow-up alcohol testing shall be conducted only when 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 safety-sensitive functions.

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 

[[Page 9560]]
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 Sec. 382.407(a).
    (iv) Documents related to the refusal of any driver to submit to an 
alcohol or controlled substances test required by this part; and
    (v) Documents presented by a driver to dispute the result of an 
alcohol or controlled substances test administered under this part.
    (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 of this part, and
    (B) Must obtain as required by Sec. 382.413 of this subpart.
    (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. 40.51(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) Quarterly laboratory statistical summaries of urinalysis 
required by Sec. 40.29(g)(6) of this title;
    (iv) The employer's alcohol and controlled substances testing 
policy and procedures; and
    (v) Records generated in connection with part 391, subpart H of 
this subchapter.
    (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 Highway Administration.
    (e)(1) OMB control number. The information collection requirements 
of this part have been reviewed by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et 
seq.) and have been assigned OMB control number 2125-0543, approved 
through March 31, 1997.
    (2) The information collection requirements of this part are found 
in the following sections: Section 382.105, 382.113, 382.301, 382.303, 
382.305, 382.307, 382.309, 382.311, 382.401, 382.403, 382.405, 382.407, 
382.409, 382.411, 382.413, 382.601, 382.603, 382.605.


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 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 Highway Administration to report the employer's 
annual calendar year summary information, the employer shall prepare 
and submit the report to the Federal Highway Administration 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 Federal 
Highway Administration specifies in its request. The report shall be in 
the form and manner prescribed by the Federal Highway Administration in 
its request. When the report is submitted to the Federal Highway 
Administration 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 Part 382;
    (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 

[[Page 9561]]
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;
    (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 Secs. 382.503 and 382.605), 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 382;
    (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;
    (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 Secs. 382.503 and 382.605), 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 consortium 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 consortium.


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 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, the decisionmaker in a lawsuit, 
grievance, or other proceeding initiated by or on behalf of the 
individual, and arising from the results of an alcohol and/or 
controlled substance test administered under this part, or from the 
employer's determination that the driver engaged in conduct prohibited 
by subpart B 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.)
    (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.

    (a) The medical review officer may report to the employer using any 
communications device, but in all instances a signed, written 
notification must be forwarded within three 

[[Page 9562]]
business days of completion of the medical review officer's review, 
pursuant to part 40 of this title. A legible photocopy of the fourth 
copy of Part 40 Appendix A subtitled COPY 4--SEND DIRECTLY TO MEDICAL 
REVIEW OFFICER--DO NOT SEND TO LABORATORY of the Federal Custody and 
Control Form OMB Number 9999-0023 may be used to make the signed, 
written notification to the employer for all test results (positive, 
negative, canceled, etc.), provided that the controlled substance(s) 
verified as positive, and the MRO's signature, shall be legibly noted 
in the remarks section of step 8 of the form completed by the medical 
review officer. The MRO must sign all verified positive test results. 
An MRO may sign or rubber stamp negative test results. An MRO's staff 
may rubber stamp negative test results under written authorization of 
the MRO. In no event shall an MRO, or his/her staff, use electronic 
signature technology to comply with this section. All reports, both 
oral and in writing, from the medical review officer to an employer 
shall clearly include:
    (1) A statement that the controlled substances test being reported 
was in accordance with part 40 of this title and this part, except for 
legible photocopies of Copy 4 of the Federal Custody and Control Form;
    (2) The full name of the driver for whom the test results are being 
reported;
    (3) The type of test indicated on the custody and control form 
(i.e. random, post-accident, follow-up);
    (4) The date and location of the test collection;
    (5) The identities of the persons or entities performing the 
collection, analyzing the specimens, and serving as the medical review 
officer for the specific test;
    (6) The results of the controlled substances test, positive, 
negative, test canceled, or test not performed, and if positive, the 
identity of the controlled substance(s) for which the test was verified 
positive.
    (b) A medical review officer shall report to the employer that the 
medical review officer has made all reasonable efforts to contact the 
driver as provided in Sec. 40.33(c) of this title. The employer shall, 
as soon as practicable, request that the driver contact the medical 
review officer prior to dispatching the driver or within 24 hours, 
whichever is earlier.


Sec. 382.409  Medical review officer record retention for controlled 
substances.

    (a) A medical review officer 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 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, and no medical review 
officer 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 
shall prohibit a medical review officer 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 Sec. 382.407(a) of this subpart.


Sec. 382.411  Employer notifications.

    (a) An employer shall notify a driver of the results of a pre-
employment controlled substance 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 management official 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 management official shall immediately notify the 
medical review officer that the driver has been notified to contact the 
medical review officer within 24 hours.


Sec. 382.413  Inquiries for alcohol and controlled substances 
information from previous employers.

    (a)(1) An employer shall, pursuant to the driver's written 
authorization, inquire about the following information on a driver from 
the driver's previous employers, during the preceding two years from 
the date of application, which are maintained by the driver's previous 
employers under Sec. 382.401(b)(1) (i) through (iii) of this subpart:
    (i) Alcohol tests with a result of 0.04 alcohol concentration or 
greater;
    (ii) Verified positive controlled substances test results; and
    (iii) Refusals to be tested.
    (2) The information obtained from a previous employer may contain 
any alcohol and drug information the previous employer obtained from 
other previous employers under paragraph (a)(1) of this section.
    (b) If feasible, the information in paragraph (a) of this section 
must be obtained and reviewed by the employer prior to the first time a 
driver performs safety-sensitive functions for the employer. If not 
feasible, the information must be obtained and reviewed as soon as 
possible, but no later than 14-calendar days after the first time a 
driver performs safety-sensitive functions for the employer. An 
employer may not permit a driver to perform safety-sensitive functions 
after 14 days without having made a good faith effort to obtain the 
information as soon as possible. If a driver hired or used by the 
employer ceases performing safety-sensitive functions for the employer 
before expiration of the 14-day period or before the employer has 
obtained the information in paragraph (a) of this section, the employer 
must still make a good faith effort to obtain the information.
    (c) An employer must maintain a written, confidential record of the 
information obtained under paragraph (a) or (f) of this section. If, 
after making a good faith effort, an employer is unable to obtain the 
information from a previous employer, a record must be made of the 
efforts to obtain the information and retained in the driver's 
qualification file.
    (d) The prospective employer must provide to each of the driver's 
previous employers the driver's specific, written authorization for 
release of the information in paragraph (a) of this section.
    (e) The release of any information under this section may take the 
form of personal interviews, telephone interviews, letters, or any 
other method of transmitting information that ensures confidentiality.
    (f) The information in paragraph (a) of this section may be 
provided directly to the prospective employer by the driver, provided 
the employer assures itself that the information is true and accurate.
    (g) An employer may not use a driver to perform safety-sensitive 
functions if 

[[Page 9563]]
the employer obtains information on a violation of the prohibitions in 
subpart B of this part by the driver, without obtaining information on 
subsequent compliance with the referral and rehabilitation requirements 
of Sec. 382.605 of this part.
    (h) Employers need not obtain information under paragraph (a) of 
this section generated by previous employers prior to the starting 
dates in Sec. 382.115 of this part.

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 
Sec. 382.605. 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 Sec. 382.605.


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 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. section 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) of this part;
    (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 
Sec. 382.605;
    (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 coworker'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 

[[Page 9564]]
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.

    (a) Each driver who has engaged in conduct prohibited by subpart B 
of this part shall be advised by the employer of the resources 
available to the driver in evaluating and resolving problems associated 
with the misuse of alcohol and use of controlled substances, including 
the names, addresses, and telephone numbers of substance abuse 
professionals and counseling and treatment programs.
    (b) Each driver who engages in conduct prohibited by subpart B of 
this part shall be evaluated by a substance abuse professional who 
shall determine what assistance, if any, the employee needs in 
resolving problems associated with alcohol misuse and controlled 
substances use.
    (c)(1) Before a driver returns to duty requiring the performance of 
a safety- sensitive function after engaging in conduct prohibited by 
subpart B of this part, the driver shall undergo a return-to-duty 
alcohol test with a result indicating an alcohol concentration of less 
than 0.02 if the conduct involved alcohol, or a controlled substances 
test with a verified negative result if the conduct involved a 
controlled substance.
    (2) In addition, each driver identified as needing assistance in 
resolving problems associated with alcohol misuse or controlled 
substances use,
    (i) Shall be evaluated by a substance abuse professional to 
determine that the driver has properly followed any rehabilitation 
program prescribed under paragraph (b) of this section, and
    (ii) Shall be subject to unannounced follow-up alcohol and 
controlled substances tests administered by the employer following the 
driver's return to duty. The number and frequency of such follow-up 
testing shall be as directed by the substance abuse professional, and 
consist of at least six tests in the first 12 months following the 
driver's return to duty. The employer may direct the driver to undergo 
return-to-duty and follow-up testing for both alcohol and controlled 
substances, if the substance abuse professional determines that return-
to-duty and follow-up testing for both alcohol and controlled 
substances is necessary for that particular driver. Any such testing 
shall be performed in accordance with the requirements of 49 CFR part 
40. Follow-up testing shall not exceed 60 months from the date of the 
driver's return to duty. The substance abuse professional may terminate 
the requirement for follow-up testing at any time after the first six 
tests have been administered, if the substance abuse professional 
determines that such testing is no longer necessary.
    (d) Evaluation and rehabilitation may be provided by the employer, 
by a substance abuse professional under contract with the employer, or 
by a substance abuse professional not affiliated with the employer. The 
choice of substance abuse professional and assignment of costs shall be 
made in accordance with employer/driver agreements and employer 
policies.
    (e) The employer shall ensure that a substance abuse professional 
who determines that a driver requires assistance in resolving problems 
with alcohol misuse or controlled substances use does not refer the 
driver to the substance abuse professional's private practice or to a 
person or organization from which the substance abuse professional 
receives remuneration or in which the substance abuse professional has 
a financial interest. This paragraph does not prohibit a substance 
abuse professional from referring a driver for assistance provided 
through--
    (1) A public agency, such as a State, county, or municipality;
    (2) The employer or a person under contract to provide treatment 
for alcohol or controlled substance problems on behalf of the employer;
    (3) The sole source of therapeutically appropriate treatment under 
the driver's health insurance program; or
    (4) The sole source of therapeutically appropriate treatment 
reasonably accessible to the driver.
    (f) The requirements of this section with respect to referral, 
evaluation and rehabilitation do not apply to applicants who refuse to 
submit to a pre-employment alcohol or controlled substances test or who 
have a pre-employment alcohol test with a result indicating an alcohol 
concentration of 0.04 or greater or a controlled substances test with a 
verified positive test result.

PART 383--[AMENDED]

    2. The authority citation for 49 CFR part 383 is revised to read as 
follows:

    Authority: 49 U.S.C. 31101 et seq., 31136, and 31502; and 49 CFR 
1.48.

    3. Section 383.3 is revised to read as follows:


Sec. 383.3  Applicability.

    (a) The rules in this part apply to every person who operates a 
commercial motor vehicle (CMV) in interstate, foreign, or intrastate 
commerce, to all employers of such persons, and to all States.
    (b) The exceptions contained in Sec. 390.3(g) of this subchapter do 
not apply to this part. The employers and drivers identified in 
Sec. 390.3(g) must comply with the requirements of this part, unless 
otherwise provided in this section.
    (c) Exception for certain military drivers. Each State must exempt 
from the requirements of this part individuals who operate CMVs for 
military purposes. This exception is applicable to active duty military 
personnel; members of the military reserves; member 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. This exception 
is not applicable to U.S. Reserve technicians.
    (d) Exception for farmers, firefighters and emergency response 
vehicle drivers. A State may, at its discretion, exempt individuals 
identified in paragraphs (d)(1), (d)(2), and (d)(3) of this section 
from the requirements of this part. The use of this waiver is limited 
to the driver's home State unless there is a reciprocity agreement with 
adjoining States.
    (1) Operators of a farm vehicle which is:
    (i) Controlled and operated by a farmer, including operation by 
employees or family members;
    (ii) Used to transport either agricultural products, farm 
machinery, farm supplies, or both to or from a farm;
    (iii) Not used in the operations of a common or contract motor 
carrier; and
    (iv) Used within 241 kilometers (150 miles) of the farmer's farm.
    (2) Firefighters and other persons who operate CMVs which are 
necessary to 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. These 
vehicles include fire trucks, hook and ladder trucks, foam or water 
transport trucks, police SWAT team vehicles, ambulances, or other 
vehicles that are used in response to emergencies.
    (e) Restricted commercial drivers license (CDL) for certain drivers 
in the State of Alaska. (1) The State of Alaska may, at its discretion, 
waive only the following requirements of this part and issue a CDL to 
each driver that meets 

[[Page 9565]]
the conditions set forth in paragraphs (e) (2) and (3) of this section:
    (i) The knowledge tests standards for testing procedures and 
methods of subpart H, but must continue to administer knowledge tests 
that fulfill the content requirements of subpart G for all applicants;
    (ii) All the skills test requirements; and
    (iii) The requirement under Sec. 383.153(a)(4) to have a photograph 
on the license document.
    (2) Drivers of CMVs in the State of Alaska must operate exclusively 
over roads that meet both of the following criteria to be eligible for 
the exception in paragraph (e)(1) of this section:
    (i) Such roads are not connected by land highway or vehicular way 
to the land-connected State highway system; and
    (ii) Such roads are not connected to any highway or vehicular way 
with an average daily traffic volume greater than 499.
    (3) Any CDL issued under the terms of this paragraph must carry two 
restrictions:
    (i) Holders may not operate CMVs over roads other than those 
specified in paragraph (e)(2) of this section; and
    (ii) The license is not valid for CMV operation outside the State 
of Alaska.
    (f) Restricted CDL for certain drivers in farm-related service 
industries. (1) A State may, at its discretion, waive the required 
knowledge and skills tests of subpart H of this part and issue 
restricted CDLs to employees of these designated farm-related service 
industries:
    (i) Agri-chemical businesses;
    (ii) Custom harvesters;
    (iii) Farm retail outlets and suppliers;
    (iv) Livestock feeders.
    (2) A restricted CDL issued pursuant to this paragraph shall meet 
all the requirements of this part, except subpart H of this part. A 
restricted CDL issued pursuant to this paragraph shall be accorded the 
same reciprocity as a CDL meeting all of the requirements of this part. 
The restrictions imposed upon the issuance of this restricted CDL shall 
not limit a person's use of the CDL in a non-CMV during either 
validated or non-validated periods, nor shall the CDL affect a State's 
power to administer its driver licensing program for operators of 
vehicles other than CMVs.
    (3) A State issuing a CDL under the terms of this paragraph must 
restrict issuance as follows:
    (i) Applicants must have a good driving record as defined in this 
paragraph. Drivers who have not held any motor vehicle operator's 
license for at least one year shall not be eligible for this CDL. 
Drivers who have between one and two years of driving experience must 
demonstrate a good driving record for their entire driving history. 
Drivers with more than two years of driving experience must have a good 
driving record for the two most recent years. For the purposes of this 
paragraph, the term good driving record means that an applicant:
    (A) Has not had more than one license (except in the instances 
specified in Sec. 383.21(b));
    (B) Has not had any license suspended, revoked, or canceled;
    (C) Has not had any conviction for any type of motor vehicle for 
the disqualifying offenses contained in Sec. 383.51(b)(2);
    (D) Has not had any conviction for any type of motor vehicle for 
serious traffic violations; and
    (E) Has not had any conviction for a violation of State or local 
law relating to motor vehicle traffic control (other than a parking 
violation) arising in connection with any traffic accident, and has no 
record of an accident in which he/she was at fault.
    (ii) Restricted CDLs shall have the same renewal cycle as 
unrestricted CDLs, but shall be limited to the seasonal period or 
periods as defined by the State of licensure, provided that the total 
number of calendar days in any 12-month period for which the restricted 
CDL is valid does not exceed 180. If a State elects to provide for more 
than one seasonal period, the restricted CDL is valid for commercial 
motor vehicle operation only during the currently approved season, and 
must be revalidated for each successive season. Only one seasonal 
period of validity may appear on the license document at a time. The 
good driving record must be confirmed prior to any renewal or 
revalidation.
    (iii) Restricted CDL holders are limited to operating Group B and C 
vehicles, as described in subpart F of this part.
    (iv) Restricted CDLs shall not be issued with any endorsements on 
the license document. Only the limited tank vehicle and hazardous 
materials endorsement privileges that the restricted CDL automatically 
confers and are described in paragraph (f)(3)(v) of this section are 
permitted.
    (v) Restricted CDL holders may not drive vehicles carrying any 
placardable quantities of hazardous materials, except for diesel fuel 
in quantities of 3,785 liters (1,000 gallons) or less; liquid 
fertilizers (i.e., plant nutrients) in vehicles or implements of 
husbandry in total quantities of 11,355 liters (3,000 gallons) or less; 
and solid fertilizers (i.e., solid plant nutrients) that are not 
transported with any organic substance.
    (vi) Restricted CDL holders may not hold an unrestricted CDL at the 
same time.
    (vii) Restricted CDL holders may not operate a commercial motor 
vehicle beyond 241 kilometers (150 miles) from the place of business or 
the farm currently being served.
    (g) Restricted CDL for certain drivers in the pyrotechnic industry. 
(1) A State may, at its discretion, waive the required hazardous 
materials knowledge tests of subpart H of this part and issue 
restricted CDLs to part-time drivers operating commercial motor 
vehicles transporting less than 227 kilograms (500 pounds) of fireworks 
classified as DOT Class 1.3G explosives.
    (2) A State issuing a CDL under the terms of this paragraph must 
restrict issuance as follows:
    (i) The GVWR of the vehicle to be operated must be less than 4,537 
kilograms (10,001 pounds);
    (ii) If a State believes, at its discretion, that the training 
required by Sec. 172.704 of this title adequately prepares part-time 
drivers meeting the other requirements of this paragraph to deal with 
fireworks and the other potential dangers posed by fireworks 
transportation and use, the State may waive the hazardous materials 
knowledge tests of subpart H of this part. The State may impose any 
requirements it believes is necessary to ensure itself that a driver is 
properly trained pursuant to Sec. 172.704 of this title.
    (iii) A restricted CDL document issued pursuant to this paragraph 
shall have a statement clearly imprinted on the face of the document 
that is substantially similar as follows: ``For use as a CDL only 
during the period from June 30 through July 6 for purposes of 
transporting less than 227 kilograms (500 pounds) of fireworks 
classified as DOT Class 1.3G explosives in a vehicle with a GVWR of 
less than 4,537 kilograms (10,001 pounds).
    (3) A restricted CDL issued pursuant to this paragraph shall meet 
all the requirements of this part, except those specifically 
identified. A restricted CDL issued pursuant to this paragraph shall be 
accorded the same reciprocity as a CDL meeting all of the requirements 
of this part. The restrictions imposed upon the issuance of this 
restricted CDL shall not limit a person's use of the CDL in a non-CMV 
during either validated or non-validated periods, nor shall the CDL 
affect a State's power to administer its driver licensing program for 
operators of vehicles other than CMVs. 

[[Page 9566]]

    (4) Restricted CDLs shall have the same renewal cycle as 
unrestricted CDLs, but shall be limited to the seasonal period of June 
30 through July 6 of each year or a lesser period as defined by the 
State of licensure.
    (5) Persons who operate commercial motor vehicles during the period 
from July 7 through June 29 for purposes of transporting less than 227 
kilograms (500 pounds) of fireworks classified as DOT Class 1.3G 
explosives in a vehicle with a GVWR of less than 4,537 kilograms 
(10,001 pounds) and who also operate such vehicles for the same 
purposes during the period June 30 through July 6 shall not be issued a 
restricted CDL pursuant to this paragraph.
    4. Section 383.5 is amended by revising the term ``commercial motor 
vehicle'' to read as follows:


Sec. 383.5  Definitions.

* * * * *
    Commercial motor vehicle (CMV) means a motor vehicle or combination 
of motor vehicles used in commerce to transport passengers or property 
if the motor vehicle--
    (a) Has a gross combination weight rating of 11,794 kilograms or 
more (26,001 pounds or more) inclusive of a towed unit with a gross 
vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
    (b) Has a gross vehicle weight rating of 11,794 or more kilograms 
(26,001 pounds or more); or
    (c) Is designed to transport 16 or more passengers, including the 
driver; or
    (d) 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). 
* * *
* * * * *
    5. Section 383.91 is amended by revising paragraph (a) to read as 
follows:


Sec. 383.91  Commercial motor vehicle groups.

    (a) Vehicle group descriptions. Each driver applicant must possess 
and be tested on his/her knowledge and skills, described in subpart G 
of this part, for the commercial motor vehicle group(s) for which he/
she desires a CDL. The commercial motor vehicle groups are as follows:
    (1) Combination vehicle (Group A)--Any combination of vehicles with 
a gross combination weight rating (GCWR) of 11,794 kilograms or more 
(26,001 pounds or more) provided the GVWR of the vehicle(s) being towed 
is in excess of 4,536 kilograms (10,000 pounds).
    (2) Heavy Straight Vehicle (Group B)--Any single vehicle with a 
GVWR of 11,794 kilograms or more (26,001 pounds or more), or any such 
vehicle towing a vehicle not in excess of 4,536 kilograms (10,000 
pounds) GVWR.
    (3) Small Vehicle (Group C)--Any single vehicle, or combination of 
vehicles, that meets neither the definition of Group A nor that of 
Group B as contained in this section, but that either is designed to 
transport 16 or more passengers including the driver, or 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).
* * * * *

PART 390--[AMENDED]

    6. The authority citation for part 390 continues to read as 
follows:

    Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and 
31504; and 49 CFR 1.48.


Sec. 390.5  [Amended]

    7. Section 390.5 is amended by revising the definition of 
``commercial motor vehicle'' to read as follows:
* * * * *
    Commercial motor vehicle means any self-propelled or towed vehicle 
used on public highways in interstate commerce to transport passengers 
or property when:
    (a) The vehicle has a gross vehicle weight rating or gross 
combination weight rating of 4,537 or more kilograms (10,001 or more 
pounds); or
    (b) The vehicle is designed to transport more than 15 passengers, 
including the driver; or
    (c) The vehicle is used in the transportation of hazardous 
materials in a quantity requiring placarding under regulations issued 
by the Secretary under the Hazardous Materials Transportation Act (49 
U.S.C. 5101 et. seq.).
* * * * *
    8. Section 390.27 is revised to read as follows:


Sec. 390.27  Locations of regional offices of motor carriers.

------------------------------------------------------------------------
                                                    Location of regional
         Region No.            Territory included          office       
------------------------------------------------------------------------
1...........................  Connecticut, Maine,   Leo W. O'Brien      
                               Massachusetts, New    Federal Office     
                               Jersey, New           Building, Clinton &
                               Hampshire, New        Pearl Streets, Room
                               York, Rhode Island,   737, Albany, NY    
                               Vermont, Puerto       12207-2334.        
                               Rico, and the                            
                               Virgin Islands.                          
                               That part of Canada                      
                               east of Highways 19                      
                               and 8 from Port                          
                               Burwell to                               
                               Goderich, thence a                       
                               straight line                            
                               running north                            
                               through Tobermory                        
                               and Sudbury, and                         
                               thence due north to                      
                               the Canadian border.                     
3...........................  Delaware, District    City Crescent       
                               of Columbia,          Building, #10 South
                               Maryland,             Howard Street,     
                               Pennsylvania,         Suite 4000,        
                               Virginia, and West    Baltimore, MD 21201-
                               Virginia.             2819.              
4...........................  Alabama, Florida,     1720 Peachtree Road,
                               Georgia, Kentucky,    NW., Suite 200,    
                               Mississippi, North    Atlanta, GA 30367- 
                               Carolina, South       2349.              
                               Carolina, and                            
                               Tennessee.                               
5...........................  Illinois, Indiana,    19900 Governors     
                               Michigan,             Drive, Suite 210,  
                               Minnesota, Ohio,      Olympia Fields, IL 
                               and Wisconsin. That   60461-1021.        
                               part of Canada west                      
                               of Highways 19 and                       
                               8 from Port Burwell                      
                               to Goderich, thence                      
                               a straight line                          
                               running north                            
                               through Tobermory                        
                               and Sudbury, and                         
                               thence due north to                      
                               the Canadian                             
                               border, and east of                      
                               the boundary                             
                               between the                              
                               Provinces of                             
                               Ontario and                              
                               Manitoba to Hudson                       
                               Bay and thence a                         
                               straight line north                      
                               to the Canadian                          
                               border.                                  
6...........................  Arkansas, Louisiana,  Room 8A00, Federal  
                               New Mexico,           Building, 819      
                               Oklahoma, and         Taylor Street, P.O.
                               Texas. All of         Box 902003, Fort   
                               Mexico, except the    Worth, TX 76102.   
                               States of Baja                           
                               California and                           
                               Sonora and the                           
                               Territory of Baja                        
                               California Sur.,                         
                               Mexico. All nations                      
                               south of Mexico.                         

[[Page 9567]]
                                                                        
7...........................  Iowa, Kansas,         6301 Rockhill Road, 
                               Missouri, and         P.O. Box 419715,   
                               Nebraska.             Kansas City, MO    
                                                     64141-6715.        
8...........................  Colorado, Montana,    555 Zang Street,    
                               North Dakota, South   room 190, Lakewood,
                               Dakota, Utah,         CO 80228-1014.     
                               Wyoming. That part                       
                               of Canada west of                        
                               the boundary                             
                               between the                              
                               Provinces of                             
                               Ontario and                              
                               Manitoba to Hudson                       
                               Bay and thence a                         
                               straight line due                        
                               north to the                             
                               Canadian border,                         
                               and east of Highway                      
                               95 from Kingsgate                        
                               to Blaeberry and                         
                               thence a straight                        
                               line due north to                        
                               the Canadian border.                     
9...........................  Arizona, California,  201 Mission Street, 
                               Hawaii, Nevada,       Suite 2100, San    
                               Guam, American        Francisco, CA      
                               Samoa, and Mariana    94105.             
                               Islands. The States                      
                               of Baja California                       
                               and Sonora, Mexico,                      
                               and the Territory                        
                               of Baja California                       
                               Sur., Mexico.                            
10..........................  Alaska, Idaho,        KOIN Center, suite  
                               Oregon and            600, 222 SW        
                               Washington. That      Columbia Street,   
                               part of Canada west   Portland, OR 97201-
                               of Highway 95 from    2491.              
                               Kingsgate to                             
                               Blaeberry and                            
                               thence a straight                        
                               line due north to                        
                               the Canadian                             
                               border, and all the                      
                               Province of British                      
                               Columbia.                                
------------------------------------------------------------------------



PART 391--[AMENDED]

    9. The authority citation for part 391 continues to read as 
follows:

    Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR 
1.48.

    10. Section 391.85 is amended by removing the term and definition 
of ``drivers subject to testing'' and by revising the definition 
``commercial motor vehicle'' to read as follows:


Sec. 391.85  Definitions.

* * * * *
    Commercial motor vehicle means any self-propelled or towed motor 
vehicle used on public highways in interstate commerce to transport 
passengers or property when:
    (a) The motor vehicle has a gross vehicle weight rating or gross 
combination weight rating of 11,794 or more kilograms (26,001 or more 
pounds); or
    (b) The motor vehicle is designed to transport more than 15 
passengers, including the driver; or
    (c) The motor vehicle is used in the transportation of hazardous 
materials in a quantity requiring placarding under regulations issued 
by the Secretary under the Hazardous Materials Transportation Act (49 
U.S.C. 5101 et. seq.).
* * * * *
    11. Section 391.125 is revised to read as follows:


Sec. 391.125  Termination schedule of this subpart.

    (a) All motor carriers shall retain all records generated in 
connection with this subpart as required by Sec. 382.401 of this 
subchapter.
    (b) Large employers. Except as provided in paragraph (a) of this 
section, each motor carrier with fifty or more drivers on March 17, 
1994, shall terminate compliance with this subpart and shall implement 
the requirements of part 382 of this subchapter beginning on January 1, 
1995.
    (c) Small employers. Except as provided in paragraph (a) of this 
section, each motor carrier with fewer than fifty drivers on March 17, 
1994, shall terminate compliance with this subpart and shall implement 
the requirements of Part 382 of this subchapter beginning on January 1, 
1996.
    (d) Except as provided in paragraph (a) of this section, all motor 
carriers shall terminate compliance with this subpart on January 1, 
1996.

PART 392--[AMENDED]

    12. The authority citation for part 392 continues to read as 
follows:

    Authority: 49 U.S.C. 31136 and 31502; and 49 CFR 1.48.

    13. Section 392.4 is revised to read as follows:


Sec. 392.4  Drugs and other substances.

    (a) No driver shall be on duty and possess, be under the influence 
of, or use, any of the following drugs or other substances:
    (1) Any Schedule I drug or other substance identified in appendix D 
to this subchapter;
    (2) An amphetamine or any formulation thereof (including, but not 
limited, to ``pep pills,'' and ``bennies'');
    (3) A narcotic drug or any derivative thereof; or
    (4) Any other substance, to a degree which renders the driver 
incapable of safely operating a motor vehicle.
    (b) No motor carrier shall require or permit a driver to violate 
paragraph (a) of this section.
    (c) Paragraphs (a) (2), (3), and (4) do not apply to the possession 
or use of a substance administered to a driver by or under the 
instructions of a licensed medical practitioner, as defined in 
Sec. 382.107 of this subchapter, who has advised the driver that the 
substance will not affect the driver's ability to safely operate a 
motor vehicle.
    (d) As used in this section, ``possession'' does not include 
possession of a substance which is manifested and transported as part 
of a shipment.
    14. Section 392.5 is amended by revising paragraph (a) to read as 
follows:


Sec. 392.5  Alcohol prohibition.

    (a) No driver shall--
    (1) Use alcohol, as defined in Sec. 382.107 of this subchapter, or 
be under the influence of alcohol, within 4 hours before going on duty 
or operating, or having physical control of, a commercial motor 
vehicle; or
    (2) Use alcohol, be under the influence of alcohol, or have any 
measured alcohol concentration or detected presence of alcohol, while 
on duty, or operating, or in physical control of a commercial motor 
vehicle; or
    (3) Be on duty or operate a commercial motor vehicle while the 
driver possesses wine of not less than one-half of one per centum of 
alcohol by volume, beer as defined in 26 U.S.C. 5052(a), of the 
Internal Revenue Code of 1954, and distilled spirits as defined in 
section 5002(a)(8), of such Code. However, this does not apply to 
possession of wine, beer, or distilled spirits which are:
    (i) Manifested and transported as part of a shipment; or
    (ii) Possessed or used by bus passengers.
* * * * *
[FR Doc. 96-5373 Filed 3-7-96; 8:45 am]
BILLING CODE 4910-22-P