[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21538-21551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9414]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 382

[Docket No. FMCSA-2000-8456]
RIN 2126-AA58


Controlled Substances and Alcohol Use and Testing

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), 
DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for 
comments.

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SUMMARY: The Department of Transportation published a revision 
of its drug and alcohol testing procedures regulations on December 19, 
2000. Consequently, the FMCSA is proposing to amend its controlled 
substances and alcohol testing regulations to ensure consistency with 
DOT's revised testing procedures and to avoid duplication. In addition, 
the FMCSA is proposing to amend its drug and alcohol testing 
regulations to update outdated provisions and clarify existing rules.

DATES: You must submit comments on or before June 14, 2001.

ADDRESSES: You can mail or hand deliver written comments to the 
US Department of Transportation, Docket Management Facility, Room PL-
401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit on-
line at http://dmses.dot.gov/submit. You must include the 
docket number that appears in the heading of this document in your 
comment. You can examine and copy all comments from 9 a.m. to 5 p.m. 
e.t., Monday through Friday, except Federal holidays. If you want 
notification of receipt of comments, please include a self-addressed, 
stamped envelope or postcard, or after submitting comments 
electronically, print the acknowledgment page.

FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Rodgers, 
Transportation Specialist, MC-ECE, (202) 366-4016, or Mr. Michael Falk, 
Attorney-Advisor, MC-CC, (202) 366-0834, FMCSA, 400 Seventh Street, 
SW., Washington, DC 20590. Office hours are from 8:30 a.m. to 5:00 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: The Department of Transportation 
published a comprehensive revision to the drug and alcohol testing 
procedural rules (49 CFR Part 40) (December 19, 2000, 65 FR 79462). The 
new Part 40 makes numerous changes regarding the way that drug and 
alcohol testing will be conducted in the future. The majority of the 
changes in the rule will become effective August 1, 2001. However, some 
changes will become effective prior to August 1, 2001.
    Part 40 is one element of a One-DOT set of regulations designed to 
deter and detect the use of illegal drugs and the misuse of alcohol by 
employees performing safety-sensitive transportation functions. It is 
important that the six DOT agency rules that cover specific 
transportation industries be consistent with the revised Part 40, to 
avoid duplication, conflict, or confusion among DOT regulatory 
requirements. Therefore, we are proposing to amend our drug and alcohol 
testing regulations to conform with Part 40.

Background

    In this NPRM, the FMCSA proposes changes that would conform its 
drug and alcohol testing regulations (49 CFR Part 382) to the revised 
DOT procedures for transportation workplace drug and alcohol testing 
programs (49 CFR Part 40) published on December 19, 2000 (65 FR 79462).
    The FMCSA proposes to delete from part 382 provisions that are also 
covered in the new part 40. Motor carrier employers and employees 
affected by part 382 have always been required to read and adhere 
both part 382 and part 40 to comply with the FMCSA's drug and 
alcohol testing requirements. Referring the reader directly to part 40 
instead of duplicating part 40 rule text in part 382 would promote both 
drafting economy and consistency of interpretation. This NPRM proposes 
to delete from part 382 regulatory text regarding referral, evaluation 
and treatment requirements; follow-up testing; inquiries for alcohol 
and controlled substances information from previous employers; and 
substance abuse professionals. Instead, the regulations would reference 
the appropriate provisions of part 40 which deal with these issues.
    Although the primary purpose of this NPRM is to conform part 382 
with the new part 40, FMCSA would also delete outdated rule text 
references (e.g., past implementation dates and reporting requirements) 
that can currently be found throughout part 382. This includes 
replacing references to the Federal Highway Administration with

[[Page 21539]]

the Federal Motor Carrier Safety Administration.
    For ease of reference, FMCSA is publishing part 382 in its entirety 
with the proposed amendments discussed below. FMCSA intends to time 
publication of the final rule so that its conforming changes to part 
382 become effective concurrently with most of part 40 on August 1, 
2001.

Subpart A--General

Section 382.107  Definitions

    The following definitions have been added or modified in part 382 
in order to conform to the definitions in revised part 40:

Confirmation or confirmatory test
Confirmed drug test
Consortium/Third party administrator
Controlled substances
Designated employer representative (DER)
Employer
Refuse to submit
Screening test (or initial test)
Stand-down

Section 382.115  Starting Date for Testing Programs

    The starting date for testing programs has been modified to reflect 
that all implementation dates have elapsed. This section now requires 
all motor carriers, both domestic and foreign to implement the testing 
program requirements when they begin operating commercial motor 
vehicles in the United States. The implementation dates for large 
foreign employers and small foreign employers have been removed.

Section 382.117  Public Interest Exclusion

    This section has been included to ensure consistency with 49 CFR 
Part 40, subpart R. In an attempt to protect the public interest, and 
transportation employers and employees, the Department is incorporating 
the public interest exclusion (PIE) into its regulations. The FMCSA has 
included this section to inform motor carriers subject to the 
controlled substances and alcohol testing regulations that they may not 
use a service agent who has had a PIE issued against it. The Department 
uses public interest exclusions to exclude service agents who are in 
serious noncompliance with the drug and alcohol testing regulations 
from participating in DOT's drug and alcohol testing program.

Section 382.119  Stand-Down Waiver Provision

    This section has been added to include the stand-down waiver 
provision contained in 49 CFR Part 40. Section 40.21 maintains the 
departmental policy of prohibiting employers from standing an employee 
down, that is, removing the employee from safety-sensitive service 
after the medical review officer (MRO) has received a laboratory report 
of either a confirmed positive test result, adulterated test result, or 
substituted test result before the result has been verified by the MRO. 
The new section 40.21(d) authorizes each Administrator (or his or her 
designee) to waive this prohibition if doing so would effectively 
enhance safety while protecting employee fairness and confidentiality. 
Therefore, the new Sec. 382.119 stand-down waiver provision outlines 
the procedures for applying for a waiver to the FMCSA. The FMCSA would 
review petitions for a waiver and decide to grant or deny the petition 
based on the requirements established in Sec. 40.21.

Section 382.217  Actual Knowledge

    The FMCSA is proposing to add a new section to the regulations to 
clarify the term ``actual knowledge.'' Published regulatory guidance 
previously provided by the FMCSA indicates that actual knowledge may 
result from the employer's direct observation of the employee, the 
driver's previous employer(s), the employee's admission of alcohol use, 
or other occurrences. Some entities believe the reference to an 
employee's admission or other occurrences are too ambiguous and 
prevents an employee from coming forward to self-identify that a drug 
or alcohol problem exists. Since our primary purpose is to deter 
alcohol misuse or controlled substance use, we encourage employers to 
have self-identification programs. As a result, we propose to include 
in the regulations language similar to that in the regulatory guidance, 
but have provided an exception in proposed Sec. 382.219.

Section 382.219  Employee Admission of Alcohol and Controlled 
Substances Use

    This section has been developed to allow employers to establish 
self-identification programs that permit employees to self-identify 
without DOT consequences. The self-identification program does not 
allow employees to self-identify in order to avoid DOT testing. The 
program must prohibit employers from taking adverse actions against an 
employee making a voluntary admission. Lastly, the program must 
preserve the intent of the controlled substance and alcohol testing 
regulations by ensuring that problem drivers are removed from safety-
sensitive positions until the employee has successfully completed an 
educational or treatment program, as determined by a qualified 
substance abuse professional.

Section 382.301  Pre-employment Testing

    Since mandatory pre-employment alcohol testing has been suspended 
as a result of a court decision and subsequent legislation, the FMCSA 
would eliminate paragraphs (b), (b)(1), (b)(2) and (e), which address 
pre-employment alcohol testing. Paragraphs (c) and (d) would be 
redesignated as paragraphs (b) and (c), respectively. The FMCSA would 
permit, but not require, employers to conduct pre-employment alcohol 
testing. If an employer chooses to conduct pre-employment alcohol 
testing, the employer would have to do so in accordance with 49 CFR 
part 40 and the proposed new paragraph (d) of this section.

Section 382.303  Post-Accident Testing

    This section has been modified to include changes, deletions and 
updates to the post accident testing requirements. In many instances, 
motor carriers have conducted either alcohol or controlled substances 
tests, instead of conducting both tests as required by the regulations. 
Consequently, we are proposing to modify paragraph (a), which requires 
an employer to test for alcohol and controlled substances following an 
occurrence involving a commercial motor vehicle. The change removes 
controlled substances from paragraph (a) and places the post-accident 
controlled substances testing requirements in the proposed redesignated 
paragraph (b). The table previously codified as paragraph (a)(3) is 
proposed to be redesignated as paragraph (c). The requirements in 
paragraphs (b)(2) and (b)(3) of the current regulations are obsolete. 
Therefore, the FMCSA is proposing to delete these paragraphs, which 
required that certain information be submitted to the FHWA by March 15, 
1996, March 15, 1997, and March 15, 1998. Other paragraphs in this 
section will be redesignated to accommodate the proposed changes.

Section 382.305  Random Testing

    Currently, the random testing regulations require the Administrator 
to annually publish a Federal Register notice of the minimum annual 
percentage rates for random alcohol and controlled substances testing. 
The FMCSA is proposing to revise its random testing regulations to 
require the Administrator to publish notice of

[[Page 21540]]

the minimum annual percentage rates for random testing only in the 
event of a change in the annual percentage rates.
    The FMCSA is seeking comments on the random testing regulations 
related to motor carriers testing at the applicable rates. Motor 
carriers may either administer their own random testing programs or 
rely on consortia/third party administrators (C/TPAs) to provide that 
service. There appears to be rising concern over how to calculate the 
testing rates when the motor carrier is in a consortium, especially if 
the consortium is not testing at the minimum rates, but the motor 
carrier is. The agency seeks comment whether the regulations codified 
in Sec. 382.305(j) are sufficiently clear, or do they need 
clarification?

Section 382.307  Reasonable Suspicion Testing

    The FMCSA is proposing to remove the regulatory test in 
382.307(e)(2) requiring employers to submit MIS reports from March 15 
1996 through March 15, 1998 respectively. This section will be 
renumbered accordingly to adjust for the deletion of this paragraph.

Section 382.309  Return-to-Duty Testing

    The FMCSA is proposing to remove the regulatory text regarding 
return-to-duty testing requirements from part 382 in order to avoid 
potential duplication and inconsistency with the requirements in part 
40. Please refer to the Common Preamble, Transportation Workplace Drug 
and Alcohol Testing Programs; Amendments to DOT Agency Rules Conforming 
to the Department of Transportation Final Rule, published elsewhere in 
this issue of the Federal Register.

Section 382.311  Follow-Up Testing

    The FMCSA is proposing to remove the regulatory text regarding 
follow-up testing requirements from part 382 in order to avoid 
potential duplication and inconsistency with the requirements in part 
40. Please refer to the Common Preamble, Transportation Workplace Drug 
and Alcohol Testing Programs; Amendments to DOT Agency Rules Conforming 
to 49 CFR Part 40, published elsewhere in this issue of the Federal 
Register.

Section 382.401  Retention of Records

    The FMCSA is proposing that employers maintain semi-annual 
laboratory statistical summaries of urinalysis instead of quarterly 
summaries, to be consistent with the new part Sec. 40.111(a).

Section 382.403  Reporting of Results in a Management Information 
System

    The FMCSA is proposing to amend the reporting requirements in 
paragraphs (c)(8) and (d)(5) to include substituted or adulterated 
specimens. This would be consistent with part 40 and will provide 
clarifying information on positive drug test results that are accounted 
for in the MIS reports.

Section 382.405  Access to Facilities and Records

    The FMCSA is proposing to amend the requirements in paragraph (g) 
regarding disclosure of information arising from a positive DOT drug or 
alcohol test or refusal to test also include disclosure of adulterated 
and substituted test results, consistent with Sec. 40.323(a)(1). 
Additionally, this section allows an employer to disclose information 
in criminal or civil actions as provided in Sec. 40.323(a)(2).

Section 382.407  Medical Review Officer Notifications to the Employer

    The FMCSA is proposing to remove the regulatory text regarding 
requirements for medical review officer notifications to the employer 
from part 382 in avoid potential duplication and inconsistency with the 
requirements of part 40. Please refer to the Common Preamble, 
Transportation Workplace Drug and Alcohol Testing Programs; Amendments 
to DOT Agency Rules Conforming to 49 CFR Part 40, published elsewhere 
in this issue of the Federal Register.

Section 382.409  Medical Review Officer Record Retention for Controlled 
Substances

    This section requires the medical review officer to maintain dated 
records and employer notifications for a period of time. The FMCSA 
proposes to amend paragraphs (a),(b) and (c) to include third party 
administrators within this requirement since part 40 now permits third 
party administrators to transmit the MRO's findings to the employer.

Section 382.411  Employer Notifications

    Paragraphs (b) and (c) has been modified to replace the term 
designated management official with designated employer representative. 
In addition, we propose to amend paragraph (c) to require the 
designated employer representative to immediately notify the medical 
review officer that the driver has been notified to contact the medical 
review officer within 72 hours, in order to be consistent with 
Sec. 40.131.

Section 382.413  Inquiries for Alcohol and Controlled Substances 
Information from Previous Employers

    The FMCSA is proposing to remove the regulatory text regarding 
requirements for inquiries for alcohol and controlled substances 
information from previous employers from Part 382 in order to avoid 
potential duplication and inconsistency with Part 40. Please refer to 
the Common Preamble, Transportation Workplace Drug and Alcohol Testing 
Programs; Amendments to DOT Agency Rules Conforming to 49 CFR Part 40, 
published elsewhere in this issue of the Federal Register.

Section 382.507  Penalties

    The FMCSA is proposing to add a provision stating that an employer 
who violates the requirements of part 40 will be subject to the 
penalties in 49 U.S.C. 521(b). This is a clarification of existing law. 
Section 382.105 makes the provisions of Part 40 applicable to employers 
and a violation of Part 40 is treated like a violation of part 382 for 
enforcement purposes.

Section 382.605  Referral, Evaluation, and Treatment

    The FMCSA is proposing to remove the regulatory text regarding the 
requirements for referral, evaluation, and treatment from Part 382 in 
order to avoid potential duplication and inconsistency with the 
requirements of Part 40. Please refer to the Common Preamble, 
Transportation Workplace Drug and Alcohol Testing Programs; Amendments 
to DOT Agency Rules Conforming to 49 CFR Part 40, published elsewhere 
in this issue of the Federal Register.

Rulemaking Analyses and Notices

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

    These proposed rules have been designated as non-significant under 
Executive Order 12866 and the Department of Transportation's Regulatory 
Policies and Procedures. They are non-significant because they merely 
make changes to conform to the revised 49 CFR part 40, which has 
already been subject to extensive comment and analysis, or seek to 
remove obsolete provisions or clarify existing law. The proposed 
changes would not have any incremental economic impacts on their own. 
The economic impacts of the underlying part 40 changes were analyzed in 
connection with the part 40 rulemaking.

[[Page 21541]]

Regulatory Flexibility Act

    Because these proposals have no incremental economic impacts, the 
FMCSA certifies, under the Regulatory Flexibility Act, that these 
proposals, if adopted, would not have a significant economic impact on 
a substantial number of small entities.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999. The FMCSA has determined this proposed rule would not 
have a substantial direct effect on, or sufficient federalism 
implications for, the States, nor would it limit the policymaking 
discretion of the States.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FMCSA has determined that there are no new requirements 
for information collection associated with this proposed rule. All the 
information collection requirements of part 40 have been analyzed and 
approved by OMB. These proposed rules would impose no information 
collection requirements that have not already been reviewed in the 
context of the part 40 rulemaking, so no further Paperwork Reduction 
Act review is necessary.

Unfunded Mandates Reform Act

    This proposed rule would not impose a Federal mandate resulting in 
the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year (2 U.S.C. 1531 et seq.).

Executive Order 12988 (Civil Justice Reform)

    This proposed action meets applicable standards in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this proposal under Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks''. This proposed rule would not be economically significant and 
would not concern an environmental risk to health or safety that would 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    The FMCSA certifies that this proposed rule has no taking 
implications under the Fifth Amendment or Executive Order 12630, 
Governmental Actions and Interference With Constitutionally Protected 
Property Rights.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

National Environmental Policy Act

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

List of Subjects in 49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Alcohol 
testing, Drug abuse, Drug testing, Highway safety, Motor carriers, 
Penalties, Reporting and recordkeeping requirements, Safety, 
Transportation.

    Accordingly, the FMCSA proposes to revise Part 382 of 49 CFR to 
read as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

Subpart A--General

Sec.
382.101   Purpose 382.103 Applicability.
382.105   Testing procedures.
382.107   Definitions.
382.109   Preemption of State and local laws.
382.111   Other requirements imposed by employers.
382.113   Requirements for notice.
382.115   Starting date for testing programs
382.117   Public interest exclusion.
382.119   Stand-down waiver provision.
Subpart B--Prohibitions
382.201   Alcohol concentration.
382.205   On-duty use.
382.207   Pre-duty use.
382.209   Use following an accident.
382.211   Refusal to submit to a required alcohol or controlled 
substances test.
382.213   Controlled substances use.
382.215   Controlled substances testing.
382.217   Actual knowledge.
382.219   Employee admission of alcohol and controlled substances 
use.
Subpart C--Tests Required
382.301   Pre-employment testing.
382.303   Post-accident testing.
382.305   Random testing.
382.307   Reasonable suspicion testing.
382.309   Return-to-duty testing.
382.311   Follow-up testing.
Subpart D--Handling of Test Results, Record Retention, and 
Confidentiality
382.401   Retention of records.
382.403   Reporting of results in a management information system.
382.405   Access to facilities and records.
382.407   Medical review officer notifications to the employer.
382.409   Medical review officer record retention for controlled 
substances.
382.411   Employer notifications.
382.413   Inquiries for alcohol and controlled substances 
information from previous employers.
Subpart E--Consequences for Drivers Engaging in Substance Use-Related 
Conduct
382.501   Removal from safety-sensitive function.
382.503   Required evaluation and testing.
382.505   Other alcohol-related conduct.
382.507   Penalties.
Subpart F--Alcohol Misuse and Controlled Substances Use Information, 
Training, and Referral
382.601   Employer obligation to promulgate a policy on the misuse 
of alcohol and use of controlled substances.
382.603   Training for supervisors.
382.605   Referral, evaluation, and treatment.

    Authority: 49 U.S.C. 31133, 31136, 31301 et 
seq., 31502; and 49 CFR 1.73.

Subpart A--General


Sec. 382.101  Purpose.

    The purpose of this part is to establish programs designed to help 
prevent accidents and injuries resulting from the misuse of alcohol or 
use of controlled substances by drivers of commercial motor vehicles.


Sec. 382.103  Applicability.

    (a) This part applies to every person and to all employers of such 
persons who operate a commercial motor vehicle in commerce in any 
State, and is subject to:
    (1) The commercial driver's license requirements of part 383 of 
this subchapter;
    (2) The Licencia Federal de Conductor (Mexico) requirements; or
    (3) The commercial driver's license requirements of the Canadian 
National Safety Code.
    (b) An employer who employs himself/herself as a driver must comply 
with both the requirements in this part that apply to employers and the 
requirements in this part that apply to drivers. An employer who 
employs only himself/herself as a driver shall implement a random 
alcohol and controlled substances testing program of

[[Page 21542]]

two or more covered employees in the random testing selection pool.
    (c) The exceptions contained in Sec. 390.3(f) of this subchapter do 
not apply to this part. The employers and drivers identified in 
Sec. 390.3(f) of this subchapter must comply with the requirements of 
this part, unless otherwise specifically provided in paragraph (d) of 
this section.
    (d) Exceptions. This part shall not apply to employers and 
their drivers:
    (1) Required to comply with the alcohol and/or controlled 
substances testing requirements of parts 653 and 655 of this title 
(Federal Transit Administration alcohol and controlled substances 
testing regulations); or
    (2) Who a State must waive from the requirements of part 383 of 
this subchapter. These individuals include active duty military 
personnel; members of the reserves; and members of the national guard 
on active duty, including personnel on full-time national guard duty, 
personnel on part-time national guard training and national guard 
military technicians (civilians who are required to wear military 
uniforms), and active duty U.S. Coast Guard personnel; or
    (3) Who a State has, at its discretion, exempted from the 
requirements of part 383 of this subchapter. These individuals may be:
    (i) Operators of a farm vehicle which is:
    (A) Controlled and operated by a farmer;
    (B) Used to transport either agricultural products, farm machinery, 
farm supplies, or both to or from a farm;
    (C) Not used in the operations of a common or contract motor 
carrier; and
    (D) Used within 241 kilometers (150 miles) of the farmer's farm.
    (ii) Firefighters or other persons who operate commercial motor 
vehicles which are necessary for the preservation of life or property 
or the execution of emergency governmental functions, are equipped with 
audible and visual signals, and are not subject to normal traffic 
regulation.


Sec. 382.105  Testing procedures.

    Each employer shall ensure that all alcohol or controlled 
substances testing conducted under this part complies with the 
procedures set forth in part 40 of this title. The provisions of part 
40 of this title that address alcohol or controlled substances testing 
are made applicable to employers by this part.


Sec. 382.107  Definitions.

    Words or phrases used in this part are defined in Sec. Sec. 386.2 
and 390.5 of this subchapter, and Sec. 40.3 of this title, except as 
provided in this section--
    Alcohol means the intoxicating agent in beverage alcohol, 
ethyl alcohol, or other low molecular weight alcohols including methyl 
and isopropyl alcohol.
    Alcohol concentration (or content) means the alcohol in a 
volume of breath expressed in terms of grams of alcohol per 210 liters 
of breath as indicated by an evidential breath test under this part.
    Alcohol use means the drinking or swallowing of any 
beverage, liquid mixiture or preparation (including any medication), 
containing alcohol.
    Commerce means:
    (1) Any trade, traffic or transportation within the jurisdiction of 
the United States between a place in a State and a place outside of 
such State, including a place outside of the United States; and
    (2) Trade, traffic, and transportation in the United States which 
affects any trade, traffic, and transportation described in paragraph 
(1) of this definition.
    Commercial motor vehicle means a motor vehicle or 
combination of motor vehicles used in commerce to transport passengers 
or property if the vehicle--
    (1) Has a gross combination weight rating of 11,794 or more 
kilograms (26,001 or more pounds) inclusive of a towed unit with a 
gross vehicle weight rating of more than of 4,536 kilograms (10,000 
pounds); or
    (2) Has a gross vehicle weight rating of 11,794 or more kilograms 
(26,001 or more pounds); or
    (3) Is designed to transport 16 or more passengers, including the 
driver; or
    (4) Is of any size and is used in the transportation of materials 
found to be hazardous for the purposes of the Hazardous Materials 
Transportation Act and which require the motor vehicle to be placarded 
under the Hazardous Materials Regulations (49 CFR Part 172, subpart F).
    Confirmation (or confirmatory) drug test means a second 
analytical procedure performed on a urine specimen to identify an 
dquantify the presence of a specific drug or drug metabolite.
    Confirmation (or confirmatory) validity test means a second 
test performed on a urine specimen to further support a validity test 
result.
    Confirmed drug test means a confirmation test result 
received by an MRO from a laboratory.
    Consortium/Third party administrator (C/TPA) means a 
service agent that provides or coordinates one or more drug and/or 
alcohol testing services to DOT-regulated employers. C/TPAs typically 
provide or coordinate the provision of a number of such services and 
perform administrative tasks concerning the operation of the employers' 
drug and alcohol testing programs. This term includes, but is not 
limited to, groups of employers who join together to administer, as a 
single entity, the DOT drug and alcohol testing programs of its members 
(e.g., having a combined random testing pool). C/TPAs are not 
``employers'' for purposes of this part.
    Controlled substances mean those substances identified in 
Sec. 40.85 of this title.
    Designated employer representative (DER) is an individual 
identified by the employer as able to receive communications and test 
results from service agents and who is authorized to take immediate 
actions to remove employees from safety-sensitive duties and to make 
required decisions in the testing and evaluation processes. The 
individual must be an employee of the company. Service agents cannot 
serve as DERs.
    Disabling damage means damage which precludes departure of 
a motor vehicle from the scene of the accident in its usual manner in 
daylight after simple repairs.
    (1) Inclusions. Damage to motor vehicles that could have 
been driven, but would have been further damaged if so driven.
    (2) Exclusions. (i) Damage which can be remedied 
temporarily at the scene of the accident without special tools or 
parts.
    (ii) Tire disablement without other damage even if no spare tire is 
available.
    (iii) Headlight or taillight damage.
    (iv) Damage to turn signals, horn, or windshield wipers which make 
them inoperative.
    DOT Agency means an agency (or ``operating 
administration'') of the United States Department of Transportation 
administering regulations requiring alcohol and/or drug testing (14 CFR 
parts 61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, 653 and 
654), in accordance with Part 40 of this title.
    Driver means any person who operates a commercial motor 
vehicle. This includes, but is not limited to: Full time, regularly 
employed drivers; casual, intermittent or occasional drivers; leased 
drivers and independent owner-operator contractors who are either 
directly employed by or under lease to an employer or who operate a 
commercial motor vehicle at the direction of or with the consent of an 
employer.
    Employer means an entity employing one or more employees 
(including an individual who is self-employed) that is subject to DOT 
agency regulations requiring compliance with this part. The

[[Page 21543]]

term, as used in these regulations, refers to the entity responsible 
for overall implementation of DOT drug and alcohol program 
requirements, as well as those individuals employed by the entity who 
take personnel actions resulting from violations of this part and any 
applicable DOT agency regulations. Service agents are not employers for 
the purposes of this part.
    Licensed medical practitioner means a person who is 
licensed, certified, and/or registered, in accordance with applicable 
Federal, State, local, or foreign laws and regulations, to prescribe 
controlled substances and other drugs.
    Performing (a safety-sensitive function) means a driver is 
considered to be performing a safety-sensitive function during any 
period in which he or she is actually performing, ready to perform, or 
immediately available to perform any safety-sensitive functions.
    Positive rate means the number of positive results for 
random controlled substances tests conducted under this part plus the 
number of refusals of random controlled substances tests required by 
this part, divided by the total of random controlled substances tests 
conducted under this part plus the number of refusals of random tests 
required by this part.
    Refuse to submit (to an alcohol or controlled substances test) 
means that a driver:
    (1) Fails to show up for any test within a reasonable time after 
being directed to do so by the employer or to remain at the testing 
site until the testing process is complete. This includes the failure 
of an employee (including an owner-operator) to appear for a test when 
called by a C/TPA (see Sec. 40.61(a) of this title);
    (2) Fails to provide a urine specimen for any drug test required by 
this part;
    (3) In the case of a directly observed or monitored collection in a 
drug test, fails to permit the observation or monitoring of the 
provision of a specimen (Sec. Sec. 40.67(k) and 40.69(g) of this 
title);
    (4) Fails to provide a sufficient amount of urine when directed, 
unless it has been determined, through a required medical evaluation, 
that there was an adequate medical explanation for the failure (see 
Sec. 40.193(d)(2) of this title);
    (5) Fails or declines to take a second test the employer has 
directed following a negative dilute result (see Sec. 40.197(g) of this 
title);
    (6) Fails to undergo an additional medical examination, as directed 
by the MRO as part of the verification process, or as directed by the 
DER concerning the evaluation as part of the ``shy bladder'' procedures 
in part 40, subpart I, of this title; or
    (7) Fails to cooperate (e.g., leaves the test site before the 
collection process is completed, refuses to empty pockets) with any 
part of the testing process.
    Safety-sensitive function means all time from the time a 
driver begins to work or is required to be in readiness to work until 
the time he/she is relieved from work and all responsibility for 
performing work. Safety-sensitive functions shall include:
    (1) All time at an employer or shipper plant, terminal, facility, 
or other property, or on any public property, waiting to be dispatched, 
unless the driver has been relieved from duty by the employer;
    (2) All time inspecting equipment as required by Sec. Sec. 392.7 
and 392.8 of this subchapter or otherwise inspecting, servicing, or 
conditioning any commercial motor vehicle at any time;
    (3) All time spent at the driving controls of a commercial motor 
vehicle in operation;
    (4) All time, other than driving time, in or upon any commercial 
motor vehicle except time spent resting in a sleeper berth (a berth 
conforming to the requirements of Sec. 393.76 of this subchapter);
    (5) All time loading or unloading a vehicle, supervising, or 
assisting in the loading or unloading, attending a vehicle being loaded 
or unloaded, remaining in readiness to operate the vehicle, or in 
giving or receiving receipts for shipments loaded or unloaded; and
    (6) All time repairing, obtaining assistance, or remaining in 
attendance upon a disabled vehicle.
    Screening test (or initial test) means:
    (1) In drug testing, a test to eliminate ``negative'' urine 
specimens from further analysis or to identify a specimen that requires 
additional testing for the presence of drugs.
    (2) In alcohol testing, an analytical procedure to determine 
whether an employee may have a prohibited concentration of alcohol in a 
breath or saliva specimen.
    Stand-down means the practice of temporarily removing an 
employee from the performance of safety-sensitive functions based only 
on a report from a laboratory to the MRO of a confirmed positive test 
for a drug or drug metabolite, an adulterated test, or a substituted 
test, before the MRO has completed verification of the test results.
    Violation rate means the number of drivers (as reported 
under Sec. 382.305) found during random tests given under this part to 
have an alcohol concentration of 0.04 or greater, plus the number of 
drivers who refuse a random test required by this part, divided by the 
total reported number of drivers in the industry given random alcohol 
tests under this part plus the total reported number of drivers in the 
industry who refuse a random test required by this part.


Sec. 382.109  Preemption of State and local laws.

    (a) Except as provided in paragraph (b) of this section, this part 
preempts any State or local law, rule, regulation, or order to the 
extent that:
    (1) Compliance with both the State or local requirement in this 
part is not possible; or
    (2) Compliance with the State or local requirement is an obstacle 
to the accomplishment and execution of any requirement in this part.
    (b) This part shall not be construed to preempt provisions of State 
criminal law that impose sanctions for reckless conduct leading to 
actual loss of life, injury, or damage to property, whether the 
provisions apply specifically to transportation employees, employers, 
or the general public.


Sec. 382.111  Other requirements imposed by employers.

    Except as expressly provided in this part, nothing in this part 
shall be construed to affect the authority of employers, or the rights 
of drivers, with respect to the use of alcohol, or the use of 
controlled substances, including authority and rights with respect to 
testing and rehabilitation.


Sec. 382.113  Requirement for notice.

    Before performing an alcohol or controlled substances test under 
this part, each employer shall notify a driver that the alcohol or 
controlled substances test is required by this part. No employer shall 
falsely represent that a test is administered under this part.


Sec. 382.115  Starting date for testing programs.

    (a) All domestic-domiciled employers must implement the 
requirements of this part on the date the employer begins commercial 
motor vehicle operations.
    (b) All foreign-domiciled employers must implement the requirements 
of this part on the date the employer begins commercial motor vehicle 
operations in the United States.


Sec. 382.117  Public interest exclusion.

    No employer shall use the services of a service agent who is 
subject to a

[[Page 21544]]

public interest exclusion in accordance with 49 CFR part 40, subpart R.


Sec. 382.119  Stand-down waiver provision.

    (a) An employer subject to this part who seeks a waiver from the 
prohibition against standing down an employee before the MRO has 
completed the verification process shall follow the procedures in 49 
CFR 40.21. The employer must send a written request which includes all 
of the information required by that section to the Federal Motor 
Carrier Safety Administrator (or the Administrator's designee), U.S. 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590.
    (b) The final decision whether to grant or deny the application for 
a waiver will be made by the Administrator or the Administrator's 
designee.
    (c) After a decision is signed by the Administrator or the 
Administrator's designee, the employer will be sent a copy of the 
decision, which will include the terms and conditions for the waiver or 
the reason for denying the application for a waiver.
    (d) Questions regarding waiver applications should be directed to 
the Office of Enforcement and Compliance, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590. The 
telephone number is (202) 366-5720.

Subpart B--Prohibitions


Sec. 382.201  Alcohol concentration.

    No driver shall report for duty or remain on duty requiring the 
performance of safety-sensitive functions while having an alcohol 
concentration of 0.04 or greater. No employer having actual knowledge 
that a driver has an alcohol concentration of 0.04 or greater shall 
permit the driver to perform or continue to perform safety-sensitive 
functions.


Sec. 382.205  On-duty use.

    No driver shall use alcohol while performing safety-sensitive 
functions. No employer having actual knowledge that a driver is using 
alcohol while performing safety-sensitive functions shall permit the 
driver to perform or continue to perform safety-sensitive functions.


Sec. 382.207  Pre-duty use.

    No driver shall perform safety-sensitive functions within four 
hours after using alcohol. No employer having actual knowledge that a 
driver has used alcohol within four hours shall permit a driver to 
perform or continue to perform safety-sensitive functions.


Sec. 382.209  Use following an accident.

    No driver required to take a post-accident alcohol test under 
Sec. 382.303 shall use alcohol for eight hours following the accident, 
or until he/she undergoes a post-accident alcohol test, whichever 
occurs first.


Sec. 382.211  Refusal to submit to a required alcohol or controlled 
substances test.

    No driver shall refuse to submit to a post-accident alcohol or 
controlled substances test required under Sec. 382.303, a random 
alcohol or controlled substances test required under Sec. 382.305, a 
reasonable suspicion alcohol or controlled substances test required 
under Sec. 382.307, or a follow-up alcohol or controlled substances 
test required under Sec. 382.311. No employer shall permit a driver who 
refuses to submit to such tests to perform or continue to perform 
safety-sensitive functions.


Sec. 382.213  Controlled substances use.

    (a) No driver shall report for duty or remain on duty requiring the 
performance of safety-sensitive functions when the driver uses any 
controlled substance, except when the use is pursuant to the 
instructions of a licensed medical practitioner, as defined in 
Sec. 382.107, who has advised the driver that the substance will not 
adversely affect the driver's ability to safely operate a commercial 
motor vehicle.
    (b) No employer having actual knowledge that a driver has used a 
controlled substance shall permit the driver to perform or continue to 
perform a safety-sensitive function.
    (c) An employer may require a driver to inform the employer of any 
therapeutic drug use.


Sec. 382.215  Controlled substances testing.

    No driver shall report for duty, remain on duty or perform a 
safety-sensitive function, if the driver tests positive or has 
adulterated or substituted a test specimen for controlled substances. 
No employer having actual knowledge that a driver has tested positive 
or has adulterated or substituted a test specimen for controlled 
substances shall permit the driver to perform or continue to perform 
safety-sensitive functions.


Sec. 382.217  Actual knowledge.

    For the purposes of this subpart, an employer can obtain actual 
knowledge that a driver has used alcohol or controlled substances based 
on the employer's direct observation of the employee, information 
provided by the driver's previous employer(s), a traffic citation for 
driving a CMV while under the influence of alcohol or controlled 
substances or an employee's admission of alcohol or controlled 
substances use, except as provided in Sec. 382.219.


Sec. 382.219  Employee admission of alcohol and controlled substances 
use.

    (a) Employees who admit to alcohol misuse or controlled substances 
use are not subject to the referral, evaluation and treatment 
requirements of this part and part 40 of this title, provided that:
    (1) The admission is in accordance with a written employer-
established voluntary self-identification program or policy which meets 
the requirements of paragraph (b) of this section;
    (2) The driver does not self-identify in order to avoid testing 
under the requirements of this part;
    (3) The driver makes the admission of alcohol misuse or controlled 
substances use before performing a safety sensitive function; and
    (4) The driver does not perform a safety sensitive function until 
the employer is satisfied that the employee has been evaluated and has 
successfully completed education or treatment requirements in 
accordance with the self-identification program guidelines.
    (b) A qualified voluntary self-identification program or policy 
must contain the following elements:
    (1) It must prohibit the employer from taking adverse action 
against an employee making a voluntary admission of alcohol misuse or 
controlled substances use within the parameters of the program or 
policy and paragraph (a) of this section;
    (2) It must allow the employee sufficient opportunity to seek 
evaluation, education or treatment to establish control over the 
employee's drug or alcohol problem; and
    (3) It must permit the employee to return to safety sensitive 
duties only upon successful completion of an educational or treatment 
program, as determined by a substance abuse professional.

Subpart C--Tests Required


Sec. 382.301  Pre-employment testing.

    (a) Prior to the first time a driver performs safety-sensitive 
functions for an employer, the driver shall undergo testing for 
controlled substances as a condition prior to being used, unless the 
employer uses the exception in paragraph (b) of this section. No 
employer shall allow a driver, who the employer intends to hire or use, 
to perform safety-sensitive functions unless the employer has received 
a controlled substances test result from the MRO or C/TPA indicating a 
verified negative test result for that driver.

[[Page 21545]]

    (b) An employer is not required to administer a controlled 
substances test required by paragraph (a) of this section if:
    (1) The driver has participated in a controlled substances testing 
program that meets the requirements of this part within the previous 30 
days; and
    (2) While participating in that program, either--
    (i) Was tested for controlled substances within the past 6 months 
(from the date of application with the employer), or
    (ii) Participated in the random controlled substances testing 
program for the previous 12 months (from the date of application with 
the employer); and
    (3) The employer ensures that no prior employer of the driver of 
whom the employer has knowledge has records of a violation of this part 
or the controlled substances use rule of another DOT agency within the 
previous six months.
    (c)(1) An employer who exercises the exception in paragraph (b) of 
this section shall contact the controlled substances testing program(s) 
in which the driver participates or participated and shall obtain and 
retain from the testing program(s) the following information:
    (i) Name(s) and address(es) of the program(s).
    (ii) Verification that the driver participates or participated in 
the program(s).
    (iii) Verification that the program(s) conforms to part 40 of this 
title.
    (iv) Verification that the driver is qualified under the rules of 
this part, including that the driver has not refused to be tested for 
controlled substances.
    (v) The date the driver was last tested for controlled substances.
    (vi) The results of any tests taken within the previous six months 
and any other violations of subpart B of this part.
    (2) An employer who uses, but does not employ, a driver more than 
once a year to operate commercial motor vehicles must obtain the 
information in paragraph (c)(1) of this section at least once every six 
months. The records prepared under this paragraph shall be maintained 
in accordance with Sec. 382.401. If the employer cannot verify that the 
driver is participating in a controlled substances testing program in 
accordance with this part and part 40 of this title, the employer shall 
conduct a pre-employment controlled substances test.
    (d) An employer may, but is not required to, conduct pre-employment 
alcohol testing under this part. If an employer chooses to conduct pre-
employment alcohol testing, it must comply with the following 
requirements:
    (1) It must conduct a pre-employment alcohol test before the first 
performance of safety-sensitive functions by every covered employee 
(whether a new employee or someone who has transferred to a position 
involving the performance of safety-sensitive functions).
    (2) It must treat all safety-sensitive employees performing safety-
sensitive functions the same for the purpose of pre-employment alcohol 
testing (i.e., it must not test some covered employees and not others).
    (3) It must conduct the pre-employment tests after making a 
contingent offer of employment or transfer, subject to the employee 
passing the pre-employment alcohol test.
    (4) It must conduct all pre-employment alcohol tests using the 
alcohol testing procedures of part 40 of this title.
    (5) It must not allow a covered employee to begin performing 
safety-sensitive functions unless the result of the employee's test 
indicates an alcohol concentration of less than 0.04.


Sec. 382.303  Post-accident testing.

    (a) As soon as practicable following an occurrence involving a 
commercial motor vehicle operating on a public road in commerce, each 
employer shall test for alcohol for each surviving driver:
    (1) Who was performing safety-sensitive functions with respect to 
the vehicle, if the accident involved the loss of human life; or
    (2) Who receives a citation under State or local law for a moving 
traffic violation arising from the accident, if the accident involved:
    (i) Bodily injury to any person who, as a result of the injury, 
immediately receives medical treatment away from the scene of the 
accident; or
    (ii) One or more motor vehicles incurring disabling damage as a 
result of the accident, requiring the motor vehicle to be transported 
away from the scene by a tow truck or other motor vehicle.
    (b) As soon as practicable following an occurrence involving a 
commercial motor vehicle operating on a public road in commerce, each 
employer shall test for controlled substances for each surviving 
driver:
    (1) Who was performing safety-sensitive functions with respect to 
the vehicle, if the accident involved the loss of human life; or (2) 
Who receives a citation under State or local law for a moving traffic 
violation arising from the accident, if the accident involved:
    (i) Bodily injury to any person who, as a result of the injury, 
immediately receives medical treatment away from the scene of the 
accident; or
    (ii) One or more motor vehicles incurring disabling damage as a 
result of the accident, requiring the motor vehicle to be transported 
away from the scene by a tow truck or other motor vehicle.
    (c) The following table notes when a post-accident test is required 
to be conducted by paragraphs (a)(1), (a)(2), (b)(1), and (b)(2) of 
this section:

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

    (d)(1) Alcohol tests. If a test required by this section is 
not administered within two hours following the accident, the employer 
shall prepare and maintain on file a record stating the reasons the 
test was not promptly

[[Page 21546]]

administered. If a test required by this section is not administered 
within eight hours following the accident, the employer shall cease 
attempts to administer an alcohol test and shall prepare and maintain 
the same record. Records shall be submitted to the FMCSA upon request.
    (2) Controlled substance tests. If a test required by this 
section is not administered within 32 hours following the accident, the 
employer shall cease attempts to administer a controlled substances 
test, and prepare and maintain on file a record stating the reasons the 
test was not promptly administered. Records shall be submitted to the 
FMCSA upon request.
    (e) A driver who is subject to post-accident testing shall remain 
readily available for such testing or may be deemed by the employer to 
have refused to submit to testing. Nothing in this section shall be 
construed to require the delay of necessary medical attention for 
injured people following an accident or to prohibit a driver from 
leaving the scene of an accident for the period necessary to obtain 
assistance in responding to the accident, or to obtain necessary 
emergency medical care.
    (f) An employer shall provide drivers with necessary post-accident 
information, procedures and instructions, prior to the driver operating 
a commercial motor vehicle, so that drivers will be able to comply with 
the requirements of this section.
    (g)(1) The results of a breath or blood test for the use of 
alcohol, conducted by Federal, State, or local officials having 
independent authority for the test, shall be considered to meet the 
requirements of this section, provided such tests conform to the 
applicable Federal, State or local alcohol testing requirements, and 
that the results of the tests are obtained by the employer.
    (2) The results of a urine test for the use of controlled 
substances, conducted by Federal, State, or local officials having 
independent authority for the test, shall be considered to meet the 
requirements of this section, provided such tests conform to the 
applicable Federal, State or local controlled substances testing 
requirements, and that the results of the tests are obtained by the 
employer.
    (h) Exception. This section does not apply to:
    (1) An occurrence involving only boarding or alighting from a 
stationary motor vehicle; or
    (2) An occurrence involving only the loading or unloading of cargo; 
or
    (3) An occurrence in the course of the operation of a passenger car 
or a multipurpose passenger vehicle (as defined in Sec. 571.3 of this 
title) by an employer unless the motor vehicle is transporting 
passengers for hire or hazardous materials of a type and quantity that 
require the motor vehicle to be marked or placarded in accordance with 
Sec. 177.823 of this title.


Sec. 382.305  Random testing.

    (a) Every employer shall comply with the requirements of this 
section. Every driver shall submit to random alcohol and controlled 
substance testing as required in this section.
    (b)(1) Except as provided in paragraphs (c) through (e) of this 
section, the minimum annual percentage rate for random alcohol testing 
shall be 10 percent of the average number of driver positions.
    (2) Except as provided in paragraphs (f) through (h) of this 
section, the minimum annual percentage rate for random controlled 
substances testing shall be 50 percent of the average number of driver 
positions.
    (c) The FMCSA Administrator's decision to increase or decrease the 
minimum annual percentage rate for alcohol testing is based on the 
reported violation rate for the entire industry. All information used 
for this determination is drawn from the alcohol management information 
system reports required by Sec. 382.403. In order to ensure reliability 
of the data, the FMCSA Administrator considers the quality and 
completeness of the reported data, may obtain additional information or 
reports from employers, and may make appropriate modifications in 
calculating the industry violation rate. In the event of a change in 
the annual percentage rate, the FMCSA Administrator will publish in the 
Federal Register the new minimum annual percentage rate for 
random alcohol testing of drivers. The new minimum annual percentage 
rate for random alcohol testing will be applicable starting January 1 
of the calendar year following publication in the Federal 
Register.
    (d)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the FMCSA Administrator may lower this 
rate to 10 percent of all driver positions if the FMCSA Administrator 
determines that the data received under the reporting requirements of 
Sec. 382.403 for two consecutive calendar years indicate that the 
violation rate is less than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the FMCSA Administrator may lower this rate to 
25 percent of all driver positions if the FMCSA Administrator 
determines that the data received under the reporting requirements of 
Sec. 382.403 for two consecutive calendar years indicate that the 
violation rate is less than 1.0 percent but equal to or greater than 
0.5 percent.
    (e)(1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 382.403 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the FMCSA Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent for all driver 
positions.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the 
reporting requirements of Sec. 382.403 for that calendar year indicate 
that the violation rate is equal to or greater than 1.0 percent, the 
FMCSA Administrator will increase the minimum annual percentage rate 
for random alcohol testing to 50 percent for all driver positions.
    (f) The FMCSA Administrator's decision to increase or decrease the 
minimum annual percentage rate for controlled substances testing is 
based on the reported positive rate for the entire industry. All 
information used for this determination is drawn from the controlled 
substances management information system reports required by 
Sec. 382.403. In order to ensure reliability of the data, the FMCSA 
Administrator considers the quality and completeness of the reported 
data, may obtain additional information or reports from employers, and 
may make appropriate modifications in calculating the industry positive 
rate. In the event of a change in the annual percentage rate, the FMCSA 
Administrator will publish in the Federal Register the new 
minimum annual percentage rate for controlled substances testing of 
drivers. The new minimum annual percentage rate for random controlled 
substances testing will be applicable starting January 1 of the 
calendar year following publication in the Federal Register.
    (g) When the minimum annual percentage rate for random controlled 
substances testing is 50 percent, the FMCSA Administrator may lower 
this rate to 25 percent of all driver positions if the FMCSA 
Administrator determines that the data received under the reporting 
requirements of Sec. 382.403 for two consecutive calendar years 
indicate that the positive rate is less than 1.0 percent.
    (h) When the minimum annual percentage rate for random controlled

[[Page 21547]]

substances testing is 25 percent, and the data received under the 
reporting requirements of Sec. 382.403 for any calendar year indicate 
that the reported positive rate is equal to or greater than 1.0 
percent, the FMCSA Administrator will increase the minimum annual 
percentage rate for random controlled substances testing to 50 percent 
of all driver positions.
    (i) The selection of drivers for random alcohol and controlled 
substances testing shall be made by a scientifically valid method, such 
as a random number table or a computer-based random number generator 
that is matched with drivers' Social Security numbers, payroll 
identification numbers, or other comparable identifying numbers. Under 
the selection process used, each driver shall have an equal chance of 
being tested each time selections are made.
    (j) The employer shall randomly select a sufficient number of 
drivers for testing during each calendar year to equal an annual rate 
not less than the minimum annual percentage rate for random alcohol and 
controlled substances testing determined by the FMCSA Administrator. If 
the employer conducts random testing for alcohol and/or controlled 
substances through a C/TPA, the number of drivers to be tested may be 
calculated for each individual employer or may be based on the total 
number of drivers covered by the C/TPA who are subject to random 
alcohol and/or controlled substances testing at the same minimum annual 
percentage rate under this part or any DOT alcohol or controlled 
substances random testing rule may be calculated for the employer.
    (k) Each employer shall ensure that random alcohol and controlled 
substances tests conducted under this part are unannounced and that the 
dates for administering random alcohol and controlled substances tests 
are spread reasonably throughout the calendar year.
    (l) Each employer shall require that each driver who is notified of 
selection for random alcohol and/or controlled substances testing 
proceeds to the test site immediately; provided, however, that if the 
driver is performing a safety-sensitive function, other than driving a 
commercial motor vehicle, at the time of notification, the employer 
shall instead ensure that the driver ceases to perform the safety-
sensitive function and proceeds to the testing site as soon as 
possible.
    (m) A driver shall only be tested for alcohol while the driver is 
performing safety-sensitive functions, just before the driver is to 
perform safety-sensitive functions, or just after the driver has ceased 
performing such functions.
    (n) If a given driver is subject to random alcohol or controlled 
substances testing under the random alcohol or controlled substances 
testing rules of more than one DOT agency for the same employer, the 
driver shall be subject to random alcohol and/or controlled substances 
testing at the annual percentage rate established for the calendar year 
by the DOT agency regulating more than 50 percent of the driver's 
function.
    (o) If an employer is required to conduct random alcohol or 
controlled substances testing under the alcohol or controlled 
substances testing rules of more than one DOT agency, the employer 
may--
    (1) Establish separate pools for random selection, with each pool 
containing the DOT-covered employees who are subject to testing at the 
same required minimum annual percentage rate; or
    (2) Randomly select such employees for testing at the highest 
minimum annual percentage rate established for the calendar year by any 
DOT agency to which the employer is subject.


Sec. 382.307  Reasonable suspicion testing.

    (a) An employer shall require a driver to submit to an alcohol test 
when the employer has reasonable suspicion to believe that the driver 
has violated the prohibitions of subpart B of this part concerning 
alcohol. The employer's determination that reasonable suspicion exists 
to require the driver to undergo an alcohol test must be based on 
specific, contemporaneous, articulable observations concerning the 
appearance, behavior, speech or body odors of the driver.
    (b) An employer shall require a driver to submit to a controlled 
substances test when the employer has reasonable suspicion to believe 
that the driver has violated the prohibitions of subpart B of this part 
concerning controlled substances. The employer's determination that 
reasonable suspicion exists to require the driver to undergo a 
controlled substances test must be based on specific, contemporaneous, 
articulable observations concerning the appearance, behavior, speech or 
body odors of the driver. The observations may include indications of 
the chronic and withdrawal effects of controlled substances.
    (c) The required observations for alcohol and/or controlled 
substances reasonable suspicion testing shall be made by a supervisor 
or company official who is trained in accordance with Sec. 382.603. The 
person who makes the determination that reasonable suspicion exists to 
conduct an alcohol test shall not conduct the alcohol test of the 
driver.
    (d) Alcohol testing is authorized by this section only if the 
observations required by paragraph (a) of this section are made during, 
just preceding, or just after the period of the work day that the 
driver is required to be in compliance with this part. A driver may be 
directed by the employer to only undergo reasonable suspicion testing 
while the driver is performing safety-sensitive functions, just before 
the driver is to perform safety-sensitive functions, or just after the 
driver has ceased performing such functions.
    (e)(1) If an alcohol test required by this section is not 
administered within two hours following the determination under 
paragraph (a) of this section, the employer shall prepare and maintain 
on file a record stating the reasons the alcohol test was not promptly 
administered. If an alcohol test required by this section is not 
administered within eight hours following the determination under 
paragraph (a) of this section, the employer shall cease attempts to 
administer an alcohol test and shall state in the record the reasons 
for not administering the test.
    (2) Notwithstanding the absence of a reasonable suspicion alcohol 
test under this section, no driver shall report for duty or remain on 
duty requiring the performance of safety-sensitive functions while the 
driver is under the influence of or impaired by alcohol, as shown by 
the behavioral, speech, and performance indicators of alcohol misuse, 
nor shall an employer permit the driver to perform or continue to 
perform safety-sensitive functions, until:
    (i) An alcohol test is administered and the driver's alcohol 
concentration measures less than 0.02; or
    (ii) Twenty four hours have elapsed following the determination 
under paragraph (a) of this section that there is reasonable suspicion 
to believe that the driver has violated the prohibitions in this part 
concerning the use of alcohol.
    (3) Except as provided in paragraph (e)(2) of this section, no 
employer shall take any action under this part against a driver based 
solely on the driver's behavior and appearance, with respect to alcohol 
use, in the absence of an alcohol test. This does not prohibit an 
employer with independent authority of this part from taking any action 
otherwise consistent with law.
    (f) A written record shall be made of the observations leading to a 
controlled substance reasonable suspicion test, and signed by the 
supervisor or company

[[Page 21548]]

official who made the observations, within 24 hours of the observed 
behavior or before the results of the controlled substances test are 
released, whichever is earlier.


Sec. 382.309  Return-to-duty testing.

    The requirements for return-to-duty testing must be performed in 
accordance with 49 CFR part 40, Subpart O.


Sec. 382.311  Follow-up testing.

    The requirements for following-up testing must be performed in 
accordance with 49 CFR part 40, Subpart O.

Subpart D--Handling of Test Results, Record Retention, and 
Confidentiality


Sec. 382.401  Retention of records.

    (a) General requirement. Each employer shall maintain 
records of its alcohol misuse and controlled substances use prevention 
programs as provided in this section. The records shall be maintained 
in a secure location with controlled access.
    (b) Period of retention. Each employer shall maintain the 
records in accordance with the following schedule:
    (1) Five years. The following records shall be maintained 
for a minimum of five years:
    (i) Records of driver alcohol test results indicating an alcohol 
concentration of 0.02 or greater,
    (ii) Records of driver verified positive controlled substances test 
results,
    (iii) Documentation of refusals to take required alcohol and/or 
controlled substances tests,
    (iv) Driver evaluation and referrals,
    (v) Calibration documentation,
    (vi) Records related to the administration of the alcohol and 
controlled substances testing programs, and
    (vii) A copy of each annual calendar year summary required by 
Sec. 382.403.
    (2) Two years. Records related to the alcohol and 
controlled substances collection process (except calibration of 
evidential breath testing devices).
    (3) One year. Records of negative and canceled controlled 
substances test results (as defined in part 40 of this title) and 
alcohol test results with a concentration of less than 0.02 shall be 
maintained for a minimum of one year.
    (4) Indefinite period. Records related to the education and 
training of breath alcohol technicians, screening test technicians, 
supervisors, and drivers shall be maintained by the employer while the 
individual performs the functions which require the training and for 
two years after ceasing to perform those functions.
    (c) Types of records. The following specific types of 
records shall be maintained. ``Documents generated'' are documents that 
may have to be prepared under a requirement of this part. If the record 
is required to be prepared, it must be maintained.
    (1) Records related to the collection process:
    (i) Collection logbooks, if used;
    (ii) Documents relating to the random selection process;
    (iii) Calibration documentation for evidential breath testing 
devices;
    (iv) Documentation of breath alcohol technician training;
    (v) Documents generated in connection with decisions to administer 
reasonable suspicion alcohol or controlled substances tests;
    (vi) Documents generated in connection with decisions on post-
accident tests;
    (vii) Documents verifying existence of a medical explanation of the 
inability of a driver to provide adequate breath or to provide a urine 
specimen for testing; and
    (viii) Consolidated annual calendar year summaries as required by 
Sec. 382.403.
    (2) Records related to a driver's test results:
    (i) The employer's copy of the alcohol test form, including the 
results of the test;
    (ii) The employer's copy of the controlled substances test chain of 
custody and control form;
    (iii) Documents sent by the MRO to the employer, including those 
required by part 40, subpart G, of this title;
    (iv) Documents related to the refusal of any driver to submit to an 
alcohol or controlled substances test required by this part;
    (v) Documents presented by a driver to dispute the result of an 
alcohol or controlled substances test administered under this part; and
    (vi) Documents generated in connection with verifications of prior 
employers' alcohol or controlled substances test results that the 
employer:
    (A) Must obtain in connection with the exception contained in 
Sec. 382.301, and
    (B) Must obtain as required by Sec. 382.413.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a driver's need for assistance; and
    (ii) Records concerning a driver's compliance with recommendations 
of the substance abuse professional.
    (5) Records related to education and training:
    (i) Materials on alcohol misuse and controlled substance use 
awareness, including a copy of the employer's policy on alcohol misuse 
and controlled substance use;
    (ii) Documentation of compliance with the requirements of 
Sec. 382.601, including the driver's signed receipt of education 
materials;
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol and/or controlled substances testing 
based on reasonable suspicion;
    (iv) Documentation of training for breath alcohol technicians as 
required by Sec. 40.213(a) of this title; and
    (v) Certification that any training conducted under this part 
complies with the requirements for such training.
    (6) Administrative records related to alcohol and controlled 
substances testing:
    (i) Agreements with collection site facilities, laboratories, 
breath alcohol technicians, screening test technicians, medical review 
officers, consortia, and third party service providers;
    (ii) Names and positions of officials and their role in the 
employer's alcohol and controlled substances testing program(s);
    (iii) Semi-annual laboratory statistical summaries of urinalysis 
required by Sec. 40.111(a) of this title; and
    (iv) The employer's alcohol and controlled substances testing 
policy and procedures.
    (d) Location of records. All records required by this part 
shall be maintained as required by Sec. 390.31 of this subchapter and 
shall be made available for inspection at the employer's principal 
place of business within two business days after a request has been 
made by an authorized representative of the Federal Motor Carrier 
Safety Administration.
    (e) OMB control number. (1) The information collection 
requirements of this part have been reviewed by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.) and have been assigned OMB control 
number 2126-0012.
    (2) The information collection requirements of this part are found 
in the following sections: Sections 382.105, 382.113, 382.301, 382.303, 
382.305, 382.307, 382.401, 382.403, 382.405, 382.409, 382.411, 382.601, 
382.603.


Sec. 382.403  Reporting of results in a management information system.

    (a) An employer shall prepare and maintain a summary of the results 
of its

[[Page 21549]]

alcohol and controlled substances testing programs performed under this 
part during the previous calendar year, when requested by the Secretary 
of Transportation, any DOT agency, or any State or local officials with 
regulatory authority over the employer or any of its drivers.
    (b) If an employer is notified, during the month of January, of a 
request by the Federal Motor Carrier Safety Administration to report 
the employer's annual calendar year summary information, the employer 
shall prepare and submit the report to the FMCSA by March 15 of that 
year. The employer shall ensure that the annual summary report is 
accurate and received by March 15 at the location that the FMCSA 
specifies in its request. The report shall be in the form and manner 
prescribed by the FMCSA in its request. When the report is submitted to 
the FMCSA by mail or electronic transmission, the information requested 
shall be typed, except for the signature of the certifying official. 
Each employer shall ensure the accuracy and timeliness of each report 
submitted by the employer or a consortium.
    (c) Detailed summary. Each annual calendar year summary 
that contains information on a verified positive controlled substances 
test result, an alcohol screening test result of 0.02 or greater, or 
any other violation of the alcohol misuse provisions of subpart B of 
this part shall include the following informational elements:
    (1) Number of drivers subject to this part;
    (2) Number of drivers subject to testing under the alcohol misuse 
or controlled substances use rules of more than one DOT agency, 
identified by each agency;
    (3) Number of urine specimens collected by type of test (e.g., pre-
employment, random, reasonable suspicion, post-accident);
    (4) Number of positives verified by a MRO by type of test, and type 
of controlled substance;
    (5) Number of negative controlled substance tests verified by a MRO 
by type of test;
    (6) Number of persons denied a position as a driver following a 
pre-employment verified positive controlled substances test and/or a 
pre-employment alcohol test that indicates an alcohol concentration of 
0.04 or greater;
    (7) Number of drivers with tests verified positive by a medical 
review officer for multiple controlled substances;
    (8) Number of drivers who refused to submit to an alcohol or 
controlled substances test required under this subpart, including those 
who submitted substituted or adulterated specimens;
    (9)(i) Number of supervisors who have received required alcohol 
training during the reporting period; and
    (ii) Number of supervisors who have received required controlled 
substances training during the reporting period;
    (10)(i) Number of screening alcohol tests by type of test; and
    (ii) Number of confirmation alcohol tests, by type of test;
    (11) Number of confirmation alcohol tests indicating an alcohol 
concentration of 0.02 or greater but less than 0.04, by type of test;
    (12) Number of confirmation alcohol tests indicating an alcohol 
concentration of 0.04 or greater, by type of test;
    (13) Number of drivers who were returned to duty (having complied 
with the recommendations of a substance abuse professional as described 
in Sec. 382.503 and part 40, subpart O, of this title), in this 
reporting period, who previously:
    (i) Had a verified positive controlled substance test result, or
    (ii) Engaged in prohibited alcohol misuse under the provisions of 
this part;
    (14) Number of drivers who were administered alcohol and drug tests 
at the same time, with both a verified positive drug test result and an 
alcohol test result indicating an alcohol concentration of 0.04 or 
greater; and
    (15) Number of drivers who were found to have violated any non-
testing prohibitions of subpart B of this part, and any action taken in 
response to the violation.
    (d) Short summary. Each employer's annual calendar year 
summary that contains only negative controlled substance test results, 
alcohol screening test results of less than 0.02, and does not contain 
any other violations of subpart B of this part, may prepare and submit, 
as required by paragraph (b) of this section, either a standard report 
form containing all the information elements specified in paragraph (c) 
of this section, or an ``EZ'' report form. The ``EZ'' report shall 
include the following information elements:
    (1) Number of drivers subject to this part;
    (2) Number of drivers subject to testing under the alcohol misuse 
or controlled substance use rules of more than one DOT agency, 
identified by each agency;
    (3) Number of urine specimens collected by type of test (e.g., pre-
employment, random, reasonable suspicion, post-accident);
    (4) Number of negatives verified by a medical review officer by 
type of test;
    (5) Number of drivers who refused to submit to an alcohol or 
controlled substances test required under this subpart, including those 
who submitted substituted or adulterated specimens;
    (6)(i) Number of supervisors who have received required alcohol 
training during the reporting period; and
    (ii) Number of supervisors who have received required controlled 
substances training during the reporting period;
    (7) Number of screen alcohol tests by type of test; and
    (8) Number of drivers who were returned to duty (having complied 
with the recommendations of a substance abuse professional as described 
in Sec. 382.503 and part 40, subpart O, of this title), in this 
reporting period, who previously:
    (i) Had a verified positive controlled substance test result, or
    (ii) Engaged in prohibited alcohol misuse under the provisions of 
this part.
    (e) Each employer that is subject to more than one DOT agency 
alcohol or controlled substances rule shall identify each driver 
covered by the regulations of more than one DOT agency. The 
identification will be by the total number of covered functions. Prior 
to conducting any alcohol or controlled substances test on a driver 
subject to the rules of more than one DOT agency, the employer shall 
determine which DOT agency rule or rules authorizes or requires the 
test. The test result information shall be directed to the appropriate 
DOT agency or agencies.
    (f) A C/TPA may prepare annual calendar year summaries and reports 
on behalf of individual employers for purposes of compliance with this 
section. However, each employer shall sign and submit such a report and 
shall remain responsible for ensuring the accuracy and timeliness of 
each report prepared on its behalf by a C/TPA.


Sec. 382.405  Access to facilities and records.

    (a) Except as required by law or expressly authorized or required 
in this section, no employer shall release driver information that is 
contained in records required to be maintained under Sec. 382.401.
    (b) A driver is entitled, upon written request, to obtain copies of 
any records pertaining to the driver's use of alcohol or controlled 
substances, including any records pertaining to his or her alcohol or 
controlled substances tests. The employer shall promptly provide the 
records requested by the driver. Access to a driver's records shall not 
be contingent upon payment for records other than those specifically 
requested.
    (c) Each employer shall permit access to all facilities utilized in 
complying

[[Page 21550]]

with the requirements of this part to the Secretary of Transportation, 
any DOT agency, or any State or local officials with regulatory 
authority over the employer or any of its drivers.
    (d) Each employer shall make available copies of all results for 
employer alcohol and/or controlled substances testing conducted under 
this part and any other information pertaining to the employer's 
alcohol misuse and/or controlled substances use prevention program, 
when requested by the Secretary of Transportation, any DOT agency, or 
any State or local officials with regulatory authority over the 
employer or any of its drivers.
    (e) When requested by the National Transportation Safety Board as 
part of an accident investigation, employers shall disclose information 
related to the employer's administration of a post-accident alcohol 
and/or controlled substance test administered following the accident 
under investigation.
    (f) Records shall be made available to a subsequent employer upon 
receipt of a written request from a driver. Disclosure by the 
subsequent employer is permitted only as expressly authorized by the 
terms of the driver's request.
    (g) An employer may disclose information required to be maintained 
under this part pertaining to a driver to the decision maker in a 
lawsuit, grievance, or administrative proceeding initiated by or on 
behalf of the individual, and arising from a positive DOT drug or 
alcohol test or a refusal to test (including, but not limited to, 
adulterated or substituted test results) of this part (including, but 
not limited to, a worker's compensation, unemployment compensation, or 
other proceeding relating to a benefit sought by the driver.) 
Additionally, an employer may disclose information in criminal or civil 
actions in accordance with Sec. 40.323(a)(2) of this title.
    (h) An employer shall release information regarding a driver's 
records as directed by the specific, written consent of the driver 
authorizing release of the information to an identified person. Release 
of such information by the person receiving the information is 
permitted only in accordance with the terms of the employee's consent.


Sec. 382.407  Medical review officer notifications to the employer.

    Medical review officers shall report the results of controlled 
substances tests to employers in accordance with the requirements of 
part 40, subpart G, of this title.


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

    (a) A medical review officer or third party administrator shall 
maintain all dated records and notifications, identified by individual, 
for a minimum of five years for verified positive controlled substances 
test results.
    (b) A medical review officer or third party administrator shall 
maintain all dated records and notifications, identified by individual, 
for a minimum of one year for negative and canceled controlled 
substances test results.
    (c) No person may obtain the individual controlled substances test 
results retained by a medical review officer or third party 
administrator, and no medical review officer or third party 
administrator shall release the individual controlled substances test 
results of any driver to any person, without first obtaining a 
specific, written authorization from the tested driver. Nothing in this 
paragraph (c) shall prohibit a medical review officer or third party 
administrator from releasing, to the employer or to officials of the 
Secretary of Transportation, any DOT agency, or any State or local 
officials with regulatory authority over the controlled substances 
testing program under this part, the information delineated in part 40, 
Subpart G, of this title.


Sec. 382.411  Employer notifications.

    (a) An employer shall notify a driver of the results of a pre-
employment controlled substances test conducted under this part, if the 
driver requests such results within 60 calendar days of being notified 
of the disposition of the employment application. An employer shall 
notify a driver of the results of random, reasonable suspicion and 
post-accident tests for controlled substances conducted under this part 
if the test results are verified positive. The employer shall also 
inform the driver which controlled substance or substances were 
verified as positive.
    (b) The designated employer representative shall make reasonable 
efforts to contact and request each driver who submitted a specimen 
under the employer's program, regardless of the driver's employment 
status, to contact and discuss the results of the controlled substances 
test with a medical review officer who has been unable to contact the 
driver.
    (c) The designated employer representative shall immediately notify 
the medical review officer that the driver has been notified to contact 
the medical review officer within 72 hours.


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

    Employers shall request alcohol and controlled substances 
information from previous employers in accordance with the requirements 
of part 40, subpart B, of this title.

Subpart E--Consequences for Drivers Engaging in Substance Use-
Related Conduct


Sec. 382.501  Removal from safety-sensitive function.

    (a) Except as provided in subpart F of this part, no driver shall 
perform safety-sensitive functions, including driving a commercial 
motor vehicle, if the driver has engaged in conduct prohibited by 
subpart B of this part or an alcohol or controlled substances rule of 
another DOT agency.
    (b) No employer shall permit any driver to perform safety-sensitive 
functions, including driving a commercial motor vehicle, if the 
employer has determined that the driver has violated this section.
    (c) For purposes of this subpart, commercial motor vehicle means a 
commercial motor vehicle in commerce as defined in Sec. 382.107, and a 
commercial motor vehicle in interstate commerce as defined in part 390 
of this subchapter.


Sec. 382.503  Required evaluation and testing.

    No driver who has engaged in conduct prohibited by subpart B of 
this part shall perform safety-sensitive functions, including driving a 
commercial motor vehicle, unless the driver has met the requirements of 
part 40, subpart O, of this title. No employer shall permit a driver 
who has engaged in conduct prohibited by subpart B of this part to 
perform safety-sensitive functions, including driving a commercial 
motor vehicle, unless the driver has met the requirements of part 40, 
subpart O, of this title.


Sec. 382.505  Other alcohol-related conduct.

    (a) No driver tested under the provisions of subpart C of this part 
who is found to have an alcohol concentration of 0.02 or greater but 
less than 0.04 shall perform or continue to perform safety-sensitive 
functions for an employer, including driving a commercial motor 
vehicle, nor shall an employer permit the driver to perform or continue 
to perform safety-sensitive functions, until the start of the driver's 
next regularly scheduled duty period, but not less than 24 hours 
following administration of the test.
    (b) Except as provided in paragraph (a) of this section, no 
employer shall

[[Page 21551]]

take any action under this part against a driver based solely on test 
results showing an alcohol concentration less than 0.04. This does not 
prohibit an employer with authority independent of this part from 
taking any action otherwise consistent with law.


Sec. 382.507  Penalties.

    Any employer or driver who violates the requirements of this part 
shall be subject to the penalty provisions of 49 U.S.C. 521(b). In 
addition, any employer or driver who violates the requirements of 49 
CFR part 40 shall be subject to the penalty provisions of 49 U.S.C. 
521(b).

Subpart F--Alcohol Misuse and Controlled Substances Use 
Information, Training, and Referral


Sec. 382.601  Employer obligation to promulgate a policy on the misuse 
of alcohol and use of controlled substances.

    (a) General requirements. Each employer shall provide 
educational materials that explain the requirements of this part and 
the employer's policies and procedures with respect to meeting these 
requirements.
    (1) The employer shall ensure that a copy of these materials is 
distributed to each driver prior to the start of alcohol and controlled 
substances testing under this part and to each driver subsequently 
hired or transferred into a position requiring driving a commercial 
motor vehicle.
    (2) Each employer shall provide written notice to representatives 
of employee organizations of the availability of this information.
    (b) Required content. The materials to be made available to 
drivers shall include detailed discussion of at least the following:
    (1) The identity of the person designated by the employer to answer 
driver questions about the materials;
    (2) The categories of drivers who are subject to the provisions of 
this part;
    (3) Sufficient information about the safety-sensitive functions 
performed by those drivers to make clear what period of the work day 
the driver is required to be in compliance with this part;
    (4) Specific information concerning driver conduct that is 
prohibited by this part;
    (5) The circumstances under which a driver will be tested for 
alcohol and/or controlled substances under this part, including post-
accident testing under Sec. 382.303(d);
    (6) The procedures that will be used to test for the presence of 
alcohol and controlled substances, protect the driver and the integrity 
of the testing processes, safeguard the validity of the test results, 
and ensure that those results are attributed to the correct driver, 
including post-accident information, procedures and instructions 
required by Sec. 382.303(d);
    (7) The requirement that a driver submit to alcohol and controlled 
substances tests administered in accordance with this part;
    (8) An explanation of what constitutes a refusal to submit to an 
alcohol or controlled substances test and the attendant consequences;
    (9) The consequences for drivers found to have violated subpart B 
of this part, including the requirement that the driver be removed 
immediately from safety-sensitive functions, and the procedures under 
part 40, subpart O, of this title;
    (10) The consequences for drivers found to have an alcohol 
concentration of 0.02 or greater but less than 0.04;
    (11) Information concerning the effects of alcohol and controlled 
substances use on an individual's health, work, and personal life; 
signs and symptoms of an alcohol or a controlled substances problem 
(the driver's or a co-worker's); and available methods of intervening 
when an alcohol or a controlled substances problem is suspected, 
including confrontation, referral to any employee assistance program 
and or referral to management.
    (c) Optional provision. The materials supplied to drivers 
may also include information on additional employer policies with 
respect to the use of alcohol or controlled substances, including any 
consequences for a driver found to have a specified alcohol or 
controlled substances level, that are based on the employer's authority 
independent of this part. Any such additional policies or consequences 
must be clearly and obviously described as being based on independent 
authority.
    (d) Certificate of receipt. Each employer shall ensure that 
each driver is required to sign a statement certifying that he or she 
has received a copy of these materials described in this section. Each 
employer shall maintain the original of the signed certificate and may 
provide a copy of the certificate to the driver.


Sec. 382.603  Training for supervisors.

    Each employer shall ensure that all persons designated to supervise 
drivers receive at least 60 minutes of training on alcohol misuse and 
receive at least an additional 60 minutes of training on controlled 
substances use. The training will be used by the supervisors to 
determine whether reasonable suspicion exists to require a driver to 
undergo testing under Sec. 382.307. The training shall include the 
physical, behavioral, speech, and performance indicators of probable 
alcohol misuse and use of controlled substances.


Sec. 382.605  Referral, evaluation, and treatment.

    The requirements for referral, evaluation, and treatment must be 
performed in accordance with 49 CFR part 40, subpart O.

    Date Issued: March 16, 2001.
Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety 
Administration.
[FR Doc. 01-9414 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-EX-P