[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