[Federal Register Volume 66, Number 160 (Friday, August 17, 2001)]
[Rules and Regulations]
[Pages 43097-43113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20426]
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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: Final rule.
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SUMMARY: The Department of Transportation published its drug and
alcohol testing procedures regulations on December 19, 2000. The FMCSA
is revising its conforming regulations entitled ``Controlled Substances
and Alcohol Use and Testing.'' The purpose of this revision is to make
the FMCSA's controlled substances and alcohol testing regulations
consistent with DOT's revised testing procedures and to avoid
duplication. Additionally, the FMCSA is amending its drug and alcohol
testing regulations to update obsolete provisions and to clarify
certain provisions of the rules.
DATES: The final rule is effective August 17, 2001.
FOR FURTHER INFORMATION CONTACT: Kenneth E. Rodgers, FMCSA,
Transportation Specialist, 400 7th Street, SW., MC-ECE, Washington, DC
20590, 202-366-4016 (voice), 202-366-7908 (fax), or
[email protected] (e-mail).
SUPPLEMENTARY INFORMATION: The Department of Transportation published a
comprehensive revision to the departmental drug and alcohol testing
procedural rule (49 CFR part 40) (December 19, 2000, 65 FR 79462). The
new part 40 makes numerous changes in the way that drug and alcohol
testing will be conducted in the future. The rule in its totality
became effective 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 FMCSA, which regulates the motor carrier industry,
publish rules that are consistent with the revised part 40 to avoid
duplication, conflict, or confusion among DOT regulatory requirements.
Therefore, we are publishing amended drug and alcohol testing
regulations to conform to part 40. We are also amending part 382 to
clarify certain provisions of the rules in response to public comments
received in this docket.
Background
On December 19, 2000, (65 FR 79462) the Department published a
final rule titled ``Procedures for Transportation Workplace Drug and
Alcohol Testing Programs.'' This rule revised 49 CFR part 40 to improve
the clarity of the organization and language of the regulation, to
incorporate guidance and interpretations of the rule into its text, and
to update the rule to respond to changes in technology, the testing
industry, and the Department's drug and alcohol testing program.
Consequently, the FMCSA proposed to change its drug testing rules
(49 CFR part 382) so that they would conform to the new requirements
contained in part 40. As such, the FMCSA is deleting provisions from
part 382 that are also covered in the new part 40. Employers and
employees affected by part 382 have always been required to adhere to
parts 40 and 382 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 final rule removes
regulatory text from part 382 regarding return to duty testing, follow-
up testing, medical review officer (MRO) notifications, inquiries from
previous employers, and referral, evaluation and treatment
requirements. Instead, the regulation incorporates by reference the
appropriate provisions of part 40 that address these issues.
The primary purpose of this final rule is to conform part 382 to
the new part 40. However, the FMCSA also proposed to update and clarify
existing text references that were either outdated or in need of
clarification. This included replacing references to the Federal
Highway Administration with the Federal Motor Carrier Safety
Administration, removing obsolete implementation dates and reporting
requirements, and providing clarification of the meaning of existing
requirements that were frequently the subject matter of questions from
the motor carrier industry.
The FMCSA issued a notice of proposed rulemaking (NPRM) on April
30, 2001 (66 FR 21538). We received 22 comments in response to this
NPRM. The final rule responds to these comments and makes appropriate
modifications to the existing rules governing the FMCSA's drug and
alcohol testing program.
Structure of the Rule
The Department restructured part 40 in the question and answer
format. Comments received were very complimentary about the
reorganization of that rule, generally praising the rule as much
clearer and easier to follow. As a result, the Department received the
plain English award ``No Gobbledygook'' for its efforts.
The FMCSA received several comments suggesting that we follow suit
with the Department and publish our final rule in the question and
answer format. Although this is a desirable concept that we hope to
implement eventually, the FMCSA was under an ambitious timetable to
publish this final rule to be effective simultaneously with the
effective date of part 40. Rewriting part 382 in question and answer
format would have taken a considerable amount of additional time.
Therefore, the FMCSA decided to publish the final rule in the current
format so that it will be effective as close at possible to the August
1, 2001, effective date for part 40.
In addition to detailed paragraph-by-paragraph comments on the text
of the NPRM, commenters focused on common policy issues that involved
interpretations of the current regulatory text. A comment was received
suggesting that we incorporate the published interpretations of part
382 into the regulations, as was done in part 40. Unlike the case with
part 40, the NPRM did not incorporate all of the published regulatory
guidance into the rule text for purposes of soliciting public comment.
Eventually, the FMCSA will rewrite the existing Federal Motor Carrier
Safety Regulations in question and answer format. This will include
incorporating regulatory guidance, however, this will not be
accomplished in this rulemaking proceeding. Consequently, we have
incorporated regulatory guidance into the final rule only to a limited
extent, i.e., when necessary to clarify confusion expressed by
commenters regarding the meaning of a particular regulatory provision.
Effective Dates
Generally, final rules must be published at least 30 days before
their
[[Page 43098]]
effective dates. However, the Administrative Procedure Act (5 U.S.C.
sec. 553(d)(3)) creates an exception to this general rule on the basis
of good cause found by the agency and published rule. The FMCSA is
making this rule effective immediately upon publication, rather than 30
days from now. The good cause supporting this action is that the
purpose of this rule is to ensure that the FMCSA's drug and alcohol
testing regulation is consistent with the Department-wide 49 CFR part
40, which went into effect on August 1, 2001. This consistency is very
important in order to avoid overlap, conflict, duplication, or
confusion between different DOT drug and alcohol testing regulations.
Unless this regulation goes into effect immediately, this purpose of
the rule cannot be achieved during the 30-day period in which part 40
would be in effect but the conforming changes to this rule would not.
The FMCSA must make this rule effective immediately in order to ensure
that its purpose is achieved. We would point out that because the new
part 40 was published over seven months ago, affected parties have had
ample time to prepare to implement the changes it makes and to which
this amendment conforms the FMCSA's regulation.
Owner-Operators
Many of the comments received focused on the inherent problems that
arise in regards to controlled substances and alcohol testing for
owner-operators. The regulations require self-employed owner-operators
to join consortiums in order to meet the requirements of part 382. Most
of the comments addressed the role of a service agent in relation to
owner-operators. Section 40.355(f) permits service agents to act as
intermediaries in the transmission of substance abuse professional
(SAP) reports to an owner-operator or other self-employed individual.
Section 40.355(h) states that service agents may make decisions to test
an owner-operator based upon reasonable suspicion, post-accident,
return-to-duty, and follow-up determination criteria. Section 40.355(j)
permits service agents to determine that an owner-operator has refused
a drug or alcohol test, but only if authorized by a DOT agency
regulation..
Many service agents believe that they should be permitted, with the
owner-operator's consent, to serve as the designated employer
representative (DER) for the purpose of drug and alcohol compliance.
This is an area of great concern to the FMCSA. We are exploring
ways of dealing with this problem. For example, in section 226 of the
Motor Carrier Safety Improvement Act (MCSIA) of 1999, Congress required
the Secretary to conduct a study of the feasibility and merits of
requiring medical review officers or employers to report to the State
that issued the driver's commercial driver's license (CDL) all verified
positive controlled substances test results for any driver subject to
controlled substances testing in 49 CFR part 382. The study would also
consider the feasibility of requiring all prospective employers, before
hiring any driver, to query the State that issued the CDL on whether
the State has any record of a verified positive drug test on that
driver. Currently there are drivers who are found to have positive drug
and/or alcohol test results who quit a job after testing positive. They
may or may not receive any counseling or treatment and simply go to
another motor carrier/employer without any record of the positive drug
or alcohol test result. The motor carrier industry has expressed
interest in having a database that would house drug and alcohol test
results. The safety benefit of having records of positive drug and/or
alcohol tests would be in the ability to identify these drivers who are
safety risks to themselves and to the public.
In carrying out the study, Congress requires an assessment on
identifying methods for safeguarding the confidentiality of verified
drug test results. In addition, the study shall examine the costs,
benefits, and safety impacts of requiring States to maintain records of
verified positive drug test results; and whether a process should be
established to allow drivers to correct errors in their records and to
expunge information from their records after a reasonable period of
time. A notice soliciting public comment on this study was published in
the Federal Register on July 9, 2001 (66 FR 35825).
We hope the results of this report will help significantly in
addressing the issues relative to owner-operators. We recognize that
the drug and alcohol program is a deterrent program and that it does
not offer 100 percent guarantees that employers and employee alike will
adhere to the requirements outlined in the regulations.
We received various comments that suggested C/TPAs be allowed to
report positive test results on owner-operators to the FMCSA. To date,
we have not allowed this practice. The FMCSA believes to the extent
possible, all employers should be treated similarly regardless of size
in order to promote uniformity in the program. Employers are only
required to report drug and alcohol test results if they have been
requested by FMCSA to submit their annual calendar year summaries. The
FMCSA does not support the idea of C/TPAs reporting positive test
results on owner-operators. We believe that reporting positive test
results for owner-operators will not improve compliance or enforcement
efforts. We reached this conclusion because a positive test result in
and of itself does not indicate non-compliance with the regulations.
Non-compliance only occurs when the evidence suggests that an employer
allowed a driver to operate a CMV without adhering to the referral,
evaluation, and treatment and return to duty testing requirements after
testing positive for alcohol or a controlled substance. Additionally,
an argument can be made that all aspects of the Federal Motor Carrier
Safety Regulations (FMCSRs) should be strengthened to ensure owner-
operators comply with the various requirements in the safety
regulations. However, the FMCSA has no plausible data that suggest the
problems regarding owner-operators are so great that we should
establish specific requirements that target this class of employers.
The FMCSA remains confident the safety systems currently in place will
continue to allow us to focus our resources on problem employers to
ensure corrective actions are taken to resolve problems that may arise.
Section-by-Section Discussion
The following discussion addresses the comments received on the
NPRM on a section-by-section basis. Sections not specifically discussed
below generated no comments and, consequently, have been adopted
without further modification.
Subpart A--General
Section 382.103 Applicability
Two comments were received regarding the exceptions in section
382.103(d). Specifically, 382.103(d)(1) states that employers subject
to the Federal Transit Administration's (FTA) drug and alcohol testing
rules are not subject to part 382. However, although section
382.103(d)(1) references the requirements of 49 CFR parts 653 and 654,
the FTA has recodified its drug and alcohol testing requirements in
part 655. The FMCSA has amended the final rule to reference the correct
part.
Section 382.107 Definitions
Actual Knowledge
Most comments were favorable and praised the fact that we placed
the definition of actual knowledge in the regulatory text. However, the
comments
[[Page 43099]]
suggested this section should be removed from Subpart B--Prohibitions
because the definition of actual knowledge is not a prohibition. In
response, we have removed this section from subpart B and placed it in
section 382.107.
One comment voiced concern that including the ``employer's direct
observation'' within the definition of actual knowledge contradicts the
requirements for reasonable suspicion testing. The commenter suggested
inserting language stating, ``direct observation as used in this
definition does not include reasonable suspicion testing.''
Direct observation, for purposes of this definition, refers to
observation of actual drug and alcohol use rather than observation of
behavior or physical characteristics that indicate that the driver may
be under the influence of drugs or alcohol. We have adopted the
commenter's request to modify the definition to distinguish between
actual knowledge and the reasonable suspicion testing requirements.
Another comment described a scenario where a driver received a
traffic citation for driving a CMV while under the influence of alcohol
or controlled substances. The commenter noted that part 40 states that
only a violation of DOT rules triggers a SAP evaluation and questioned
whether a driver is subject to a SAP evaluation if the driver is cited
while driving a commercial motor vehicle. Subpart B of part 382 states
that no employer having actual knowledge that a driver has tested
positive for an alcohol or controlled substances test shall permit the
driver to perform safety-sensitive functions. Actual knowledge
``includes'' knowledge that the driver has received a traffic citation
for driving a CMV while under the influence of alcohol or controlled
substances. A CMV driver who receives a traffic citation while in a CMV
is considered to have violated subpart B. In this case, the employee is
subject to the referral, treatment, and evaluation requirements.
Driver
Comments regarding the definition of a driver suggested the
language is inconsistent with the new employer definition and proposed
that the definition be modified to delete the following reference shown
in quotation marks: ``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.'' We concur with the
comments and have modified the definition to remove the language in
question for consistency.
Employer
Comments were received regarding the definition of employer as it
relates to an owner-operator. The comments suggested that language in
the revised definition of the word ``employer'' which references an
individual who is self-employed is confusing and can be misconstrued.
The definition of employer in section 382.107 was modified to
correspond with the definition in revised part 40. Employer is defined
as a person or entity employing one or more employees (including an
individual who is self-employed) that is subject to DOT agency
regulations requiring compliance with this part. The term, as used in
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 action
resulting from violations of this part and any applicable DOT agency
regulation. Service agents are not employers for the purpose of this
part.
In spite of the change in terminology, we do not believe that the
part 40 definition intended to change the circumstances under which a
motor carrier is responsible for compliance with part 382 by self-
employed individuals whose CMV operations it directs or controls. In
published regulatory guidance, we have stated that ``an owner-operator
may act as both an employer and a driver at certain times, or as a
driver for another employer at certain times depending on contractual
arrangements and operational structure'' (62 FR 16384), and that owner-
operators who are not leased to motor carriers must belong to a
consortium for random testing purposes (62 FR 16387). A carrier that
uses owner-operators is not responsible for ensuring the owner-
operator's compliance with part 382 unless it can be shown that the
primary carrier has control of the owner-operator's operation of his or
her CMV.
A motor carrier is not automatically responsible for an owner-
operator's compliance with part 382 simply because the parties have
entered into an agreement or subcontract to provide transportation
services. However, inasmuch as our owner-operator leasing regulations,
at 49 CFR Sec. 376.12(c), require authorized carrier lessees to have
exclusive possession, control and use of the equipment during the term
of the lease, we consider an owner-operator operating a CMV under such
a lease to be under the lessee carrier's control and direction for
purposes of part 382 compliance. In the absence of a lease subject to
part 376, there are other activities which may indicate whether a motor
carrier controls or directs self-employed individuals including, but
not limited to (1) establishing work schedules, (2) providing the
origin, destination and/or routes for trips, (3) establishing worksite
procedures, or (4) determining what drivers shall do as work progresses
or assignments change. However, we decline to establish a bright line
rule defining what constitutes sufficient control and direction in
every case, as that determination depends on consideration of the
totality of circumstances, which may vary among carriers.
Refuse To Submit
A commenter stated the definition used in part 382 is inconsistent
with the definition used in part 40 and suggested that part 382 defer
to part 40. The commenter stated that part 382's definition of
``refusal to submit'' does not incorporate the entire refusal to submit
definition in part 40. In response, we have modified the definition in
part 382 to be consistent with part 40 and have retained the definition
in part 382 so that the employer and employee clearly understand what
constitutes a refusal to submit. Another commenter was concerned that
certain employee actions that could be considered a refusal to test may
fall outside of the parameters outlined in this definition. The
commenter suggested that we should maintain the previously existing
language in part 382 which reads ``engaging in conduct that clearly
obstructs the testing process'' and use the language as a deterrent to
employees engaging in such conduct. We believe the definition in part
40, which we are adopting in these rules, satisfactorily addresses the
concern of the commenter by ensuring that any employee who fails to
cooperate with any part of the testing process could be in violation of
the regulation by refusing to submit to drug or alcohol testing.
Section 382.113 Requirement for Notice
One commenter suggested that we clarify that employers must give
notice to their drivers that an alcohol or controlled substances test
is required by part 382 prior to each test, rather than providing a
general notice. We have already published an interpretation to that
effect and, for clarification purposes, have inserted the word
[[Page 43100]]
``each'' in the regulatory text for this section.
Section 382.115 Starting Date for Testing Programs
The starting date for testing programs has been modified to reflect
that all previously codified implementation dates have elapsed. The
implementation dates for large foreign employers and small foreign
employers have been removed. 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.
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 incorporated 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 implement 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 section 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 section 40.21.
We received a comment stating that we should strengthen the
language in the preamble as it relates to sections 40.21 and 382.119.
In response, we have further clarified in the rule text that an
employer is prohibited from standing employees down, except as
consistent with the waiver provisions contained in section 40.21.
The FMCSA intends to grant waivers only to employers who present a
sound factual basis for their request and have in place a number of
provisions to protect employees' legitimate interests. The FMCSA has
the authority to grant or deny a stand-down petition and will make a
case-by-case decision about the merits of a stand-down petition with
respect to each company that applies for a waiver.
Section 382.121 Employee Admission of Alcohol and Controlled
Substances Use
This section appeared in the NPRM as section 382.219. It has been
moved from subpart B to subpart A because it is more in the nature of a
general regulatory requirement as opposed to a prohibition.
A number of commenters requested clarification concerning issues
raised by this section. The common issues centered around five areas.
The first area of concern was whether the self-admission program is a
voluntary program. The intent of this section is to allow employers to
establish programs that permit employees to self-identify drug use or
alcohol abuse without DOT consequences. The decision whether to
establish such a program is voluntary, and is not mandated by this
rule. However, if an employer chooses to implement a self-admission
program, the employer must ensure the program complies with the
requirements of this part.
The second area of concern involves employees who have admitted to
having a controlled substance or alcohol problem and want clarification
on what is meant by the requirement that the driver make the admission
of alcohol misuse or controlled substances use before performing a
safety sensitive function. The FMCSA's objective is to deter employees
from operating a CMV if they are using a controlled substance or
misusing alcohol. If an employer has a self-admission program, the
intent of that program is to allow a driver to disclose a problem and
not be subject to DOT sanctions. However, the employer's program is not
an excuse for an employee to abuse the good faith intent of the
program. The goal is to encourage employees to disclose a drug or
alcohol problem prior to reporting for duty on any given day. Once an
employee has reported for duty and participated in a safety-sensitive
function, it will be too late to self-disclose under the provisions of
the employer's self-admission program.
The third area of contention seeks a clarification on what criteria
are acceptable for employee treatment and evaluation prior to returning
to a safety-sensitive function. The FMCSA will require that employers
ensure the employee has obtained treatment from a drug and alcohol
abuse evaluation expert prior to the employee returning to a safety-
sensitive function. The expert can be an employee assistance
professional, substance abuse professional, or a qualified drug and
alcohol counselor. The criteria for returning to a safety-sensitive
function will be determined by sound clinical and established substance
abuse standards of care in clinical practice, and utilizing reliable
alcohol and drug abuse assessment tools. The evaluations must be
conducted face-to-face with the employee and should include a standard
psycho-social history; an in-depth drug and alcohol use history (with
information regarding onset, duration, frequency, and amount of use;
substance(s) of use and choice; emotional and physical characteristics
of use; associated health, work, family, personal, and interpersonal
problems); and a current evaluation of the employee's mental status.
The evaluation should provide a clinical assessment, treatment
recommendations, and a treatment plan to be successfully complied with
prior to the employee becoming eligible for follow-up evaluation and
subsequent return to safety-sensitive functions. The regulatory text
has been modified to add two new paragraphs to this section. Section
382.121(b)(4) establishes return-to-duty testing requirements and
section 382.121(b)(5) permits employers to incorporate employee
monitoring and non-DOT follow-up tests as part of a self-admission
program.
The fourth area of concern involves the required action to be taken
if an employee refuses to submit to the treatment required under the
self-admission program. The FMCSA believes that an employee who has
admitted to a problem with drugs or alcohol under the employer's self-
admission program must comply with the requirements of the employer's
self-admission program. If an employee fails to comply with any part of
the program, or fails to obtain the recommended treatment as prescribed
by the employee assistance professional, substance abuse professional,
or drug and alcohol abuse
[[Page 43101]]
counselor, the employee has violated the conditions of the employer's
self-admission program and is therefore subject to the provisions of
subpart B of part 382. The employer would be required to remove the
employee from a safety-sensitive function and comply with the DOT
referral, evaluation, and treatment requirements contained in Subpart O
of part 40.
The fifth area of concern centers upon what is meant by adverse
action. The FMCSA's intent is that the self-admission program not be
used as a disciplinary tool, as it would defeat the purpose of
encouraging employees to voluntarily seek treatment. Because the
program is voluntary, an employer can choose not to have such a program
and still abide by DOT requirements. The FMCSA has remained silent on
disciplinary actions, hiring/firing decisions, or financial matters. We
have been steadfast in insisting that employers establish policies that
outline their drug and alcohol program in accordance with 382.601.
However, if an employer establishes a self-admission program, it must
not take adverse action against an employee who makes a disclosure
under the provisions of the self-admission program.
Subpart B--Prohibitions
As noted above, proposed sections 382.217 and 382.219 have been
moved to subpart A. None of the other sections in this subpart
generated comments and no other modifications have been made.
Subpart C--Tests Required
Section 382.301 Pre-Employment Testing
One comment received on pre-employment alcohol testing expressed
concern that it is confusing to include detailed requirements on
permissive pre-employment alcohol testing, as it appears to endorse
employer pre-employment alcohol testing programs. This section neither
endorses nor discourages an employer from conducting pre-employment
alcohol testing. It simply requires an employer that chooses to conduct
pre-employment alcohol testing to comply with 49 CFR part 40 and the
requirements outlined in paragraph (d)(1)-(5) of this section.
Section 382.303 Post-Accident Testing
We proposed to modify this section because it was brought to our
attention that post-accident testing procedures were routinely being
misinterpreted for requiring post-accident testing for either
controlled substances or alcohol, but not both. Consequently, we tried
to clarify this section by separating the provisions for alcohol and
controlled substances testing into two distinct requirements in the
rule text. Most comments that addressed this change were favorable.
However, some commenters pointed out that situations exist where law
enforcement officers do not give citations at the time of the accident
and, in some cases, do so after the time limitations for conducting
post-accident tests have expired. The post-accident testing rules state
that employers should cease attempts to conduct post-accident tests
once the allotted time has expired and document the reason why post-
accident tests were not performed. We believe that reinforcing these
time constraints enhances understanding of the rule text. As a result,
we incorporated the appropriate time limits into sections 382.303(a)(2)
and (b)(2). If the law enforcement officer does not issue a citation
within the specified time frames, the employer should not attempt to
conduct post-accident testing and should proceed with documenting the
reason why the test was not performed. If an employer wants to pursue
testing under its own program, the employer may conduct non-DOT test
accordingly.
In response to a comment seeking clarification of an employer's
obligation to test surviving drivers, we have changed the regulatory
text of sections 382.303(a) and (b) to require each employer to test
each ``of its'' surviving drivers for alcohol and controlled substances
following an accident.
As proposed in the NPRM, we have eliminated the outdated reporting
requirements that formerly appeared in sections 382.303(b)(2) and
(b)(3).
Section 382.305 Random Testing
The NPRM proposed revising this section to require publication of
the notice of minimum annual random testing percentage rates only when
the rates change. There were several comments that opposed this
proposal. Commenters stated the proposal would cause employers to
constantly monitor Federal Registers to ensure compliance, imposing a
greater regulatory burden on employers and service agents.
The FMCSA considered the potential burden on the industry if the
testing rates were only published when changed. Currently, the FMCSA
has experienced difficulties in publishing the rates on a timely basis
as prescribed in the regulations. This is in large part due to the lack
of compliance from the industry in responding to the drug and alcohol
surveys needed to determine the appropriate percentage testing rates.
Often, the FMCSA has to resubmit survey requests and extend reporting
deadlines in order to obtain a valid sample of participants to properly
assess the testing rates. As a result, it has been difficult to publish
the notice of applicable percentage testing rates prior to the
beginning of each calendar year, as required by the regulations. The
FMCSA contends that publishing the rates when a change is required will
not pose additional burdens upon the industry. In addition to
publishing the prospective testing rates in the Federal Register, the
FMCSA would post them on its Website and provide the information to
various industry newsletters, trade magazines, and other relevant
publications. There would be ample time for the industry to implement
the new testing rates.
In an attempt to make the rules more clear and concise and easier
to follow, the FMCSA has separated the specific requirements of
sections 382.305(i) and (k) into separate paragraphs. Section
382.305(i)(1) describes the types of methods to be used for selecting
drivers for random testing. The requirement is the same as before, but
now stands alone. In newly designated section 382.305(i)(2), we require
that each driver selected for random testing shall have an equal chance
of being tested. This restates the existing requirement, but is
intended toclarify that employers must test the drivers selected and
may not choose alternate drivers for the purpose of complying with the
applicable rates at the expense of ensuring that random testing is
conducted properly. Section 382.305(i)(3) has been added to require
that drivers be tested during the applicable testing selection periods.
Some employers are not testing drivers selected during a testing period
because the drivers are not available for testing on a given day, i.e.,
a pre-determined testing date. Therefore, the employer skips the driver
and moves to the next driver on the list. This prevents the driver that
was initially selected from having an equal chance of being tested.
Most employers are using quarterly testing cycles to conduct their
random testing. Therefore, employers should have ample time to ensure
that drivers selected during a testing cycle can be tested within that
testing cycle. Although events may occur that prohibit a driver from
being tested during a testing cycle, we want to ensure that this is the
exception, and not the normal practice.
In response to a comment expressing confusion about the meaning of
the second sentence of section 382.305(j), we have eliminated the words
``or any DOT alcohol or controlled substances
[[Page 43102]]
random testing rule may be calculated for the employer.''
The final section that we modified for clarity is 382.305(k). The
newly designated 382.305(k)(1) requires employers to ensure that random
testing is unannounced. Correspondingly, 382.305(k)(2) requires that
random testing dates be spread apart reasonably throughout the calendar
year. Section 382.305(k) was separated into distinct paragraphs to
clarify that the employer must address two specific requirements.
Section 382.307 Reasonable Suspicion Testing
A commenter noted that 382.307(f) requires a written record of the
observations leading to a controlled substance test and makes a case
that documentation should also be required for alcohol testing. The
FMCSA agrees with the commenter and has modified this section to
require a written record for observations leading to a reasonable
suspicion alcohol test.
Subpart D--Handling of Test Results, Record Retention and
Confidentiality
Section 382.401 Retention of Records
Commenters were generally pleased that the laboratory quarterly
statistical summaries had been modified to a semi-annual requirement,
thus reducing the paperwork burden.
Section 382.413 Inquiries for Alcohol and Controlled Substances
Information From Previous Employers
We proposed changing this section by eliminating most of the
regulatory text and incorporating the requirements of part 40, subpart
B. The FMCSA received one comment stating the changes in this section
had no effects on the requirements in part 40; therefore, the commenter
was in support of the proposed change.
Subpart E--Consequences for Drivers Engaging in Substance Use-
Related Conduct
Section 382.507 Penalties
We received one comment proposing that we add ``civil and/or
criminal'' to this section to further define the requirements. We
agree, and have modified this section accordingly.
Subpart F--Alcohol Misuse and Controlled Substances Use
Information, Training, and Referral
Section 382.603 Training for Supervisors
We often receive inquiries regarding the need for recurring
supervisory training. We received a comment suggesting that this
section should be modified to require recurring training. The FMCSA
requires that supervisors obtain 60 minutes of training on alcohol
misuse and receive an additional 60 minutes of training on controlled
substances use. This regulation does not require additional training
for supervisors and we do not believe a recurring training requirement
is necessary.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
These final 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. The economic
impacts of the underlying part 40 changes were analyzed in connection
with the part 40 rulemaking.
Regulatory Flexibility Act
Because this rule has no incremental economic impacts, the FMCSA
certifies, under the Regulatory Flexibility Act, that it will not have
a significant economic impact on a substantial number of small
entities.
Executive Order 13132 (Federalism)
This 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 final 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 final rule. All the
information collection requirements of part 40 have been analyzed and
approved by OMB. This rule 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 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 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 rule under Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks''. This 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 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 rule 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 revises part 382 of 49 CFR to read as
follows:
[[Page 43103]]
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.
382.121 Employee admission of alcohol and controlled substances
use.
Subpart B--Prohibitions
382.201 Alcohol concentration.
382.205 On-duty use.
382.207 Pre-duty use.
382.209 Use following an accident.
382.211 Refusal to submit to a required alcohol or controlled
substances test.
382.213 Controlled substances use.
382.215 Controlled substances testing.
Subpart C--Tests Required
382.301 Pre-employment testing.
382.303 Post-accident testing.
382.305 Random testing.
382.307 Reasonable suspicion testing.
382.309 Return-to-duty testing.
382.311 Follow-up testing.
Subpart D--Handling of Test Results, Record Retention, and
Confidentiality
382.401 Retention of records.
382.403 Reporting of results in a management information system.
382.405 Access to facilities and records.
382.407 Medical review officer notifications to the employer.
382.409 Medical review officer record retention for controlled
substances.
382.411 Employer notifications.
382.413 Inquiries for alcohol and controlled substances information
from previous employers.
Subpart E--Consequences for Drivers Engaging in Substance Use-Related
Conduct
382.501 Removal from safety-sensitive function.
382.503 Required evaluation and testing.
382.505 Other alcohol-related conduct.
382.507 Penalties.
Subpart F--Alcohol Misuse and Controlled Substances Use Information,
Training, and Referral
382.601 Employer obligation to promulgate a policy on the misuse of
alcohol and use of controlled substances.
382.603 Training for supervisors.
382.605 Referral, evaluation, and treatment.
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49
CFR 1.73.
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 drivers license requirements of the Canadian
National Safety Code.
(b) An employer who employs himself/herself as a driver must comply
with both the requirements in this part that apply to employers and the
requirements in this part that apply to drivers. An employer who
employs only himself/herself as a driver shall implement a random
alcohol and controlled substances testing program of two or more
covered employees in the random testing selection pool.
(c) The exceptions contained in Sec. 390.3(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 part 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 Secs. 386.2 and
390.5 of this subchapter, and Sec. 40.3 of this title, except as
provided in this section--
Actual knowledge for the purpose of subpart B of this part, means
actual knowledge by an employer that a driver has used alcohol or
controlled substances based on the employer's direct observation of the
employee, information provided by the driver's previous employer(s), a
traffic citation for driving a CMV while under the influence of alcohol
or controlled substances or an employee's admission of alcohol or
controlled substance use, except as provided in Sec. 382.121. Direct
observation as used in this definition means observation of alcohol or
controlled substances use and does not include observation of employee
behavior or physical characteristics sufficient to warrant reasonable
suspicion testing under Sec. 382.307.
Alcohol means the intoxicating agent in beverage alcohol, ethyl
alcohol, or other low molecular weight alcohols including methyl and
isopropyl alcohol.
Alcohol concentration (or content) means the alcohol in a volume of
breath expressed in terms of grams of alcohol per 210 liters of breath
as indicated by an evidential breath test under this part.
Alcohol use means the drinking or swallowing of any beverage,
liquid mixture or preparation (including any medication), containing
alcohol.
Commerce means:
(1) Any trade, traffic or transportation within the jurisdiction of
the United
[[Page 43104]]
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 4,536 kilograms (10,000
pounds); or
(2) Has a gross vehicle weight rating of 11,794 or more kilograms
(26,001 or more pounds); or
(3) Is designed to transport 16 or more passengers, including the
driver; or
(4) Is of any size and is used in the transportation of materials
found to be hazardous for the purposes of the Hazardous Materials
Transportation Act (49 U.S.C. 5103(b)) and which require the motor
vehicle to be placarded under the Hazardous Materials Regulations (49
CFR part 172, subpart F).
Confirmation (or confirmatory) drug test means a second analytical
procedure performed on a urine specimen to identify and quantify the
presence of a specific drug or drug metabolite.
Confirmation (or confirmatory) validity test means a second test
performed on a urine specimen to further support a validity test
result.
Confirmed drug test means a confirmation test result received by an
MRO from a laboratory.
Consortium/Third party administrator (C/TPA) means a service agent
that provides or coordinates one or more drug and/or alcohol testing
services to DOT-regulated employers. C/TPAs typically provide or
coordinate the provision of a number of such services and perform
administrative tasks concerning the operation of the employers' drug
and alcohol testing programs. This term includes, but is not limited
to, groups of employers who join together to administer, as a single
entity, the DOT drug and alcohol testing programs of its members (e.g.,
having a combined random testing pool). C/TPAs are not ``employers''
for purposes of this part.
Controlled substances mean those substances identified in
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, and 655), in accordance with part
40 of this title.
Driver means any person who operates a commercial motor vehicle.
This includes, but is not limited to: Full time, regularly employed
drivers; casual, intermittent or occasional drivers; leased drivers and
independent owner-operator contractors.
Employer means a person or entity employing one or more employees
(including an individual who is self-employed) that is subject to DOT
agency regulations requiring compliance with this part. The term, as
used in this part, means the entity responsible for overall
implementation of DOT drug and alcohol program requirements, including
individuals employed by the entity who take personnel actions resulting
from violations of this part and any applicable DOT agency regulations.
Service agents are not employers for the purposes of this part.
Licensed medical practitioner means a person who is licensed,
certified, and/or registered, in accordance with applicable Federal,
State, local, or foreign laws and regulations, to prescribe controlled
substances and other drugs.
Performing (a safety-sensitive function) means a driver is
considered to be performing a safety-sensitive function during any
period in which he or she is actually performing, ready to perform, or
immediately available to perform any safety-sensitive functions.
Positive rate 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) Fail to appear for any test (except a pre-employment test)
within a reasonable time, as determined by the employer, consistent
with applicable DOT agency regulations, after being directed to do so
by the employer. This includes the failure of an employee (including an
owner-operator) to appear for a test when called by a C/TPA (see
Sec. 40.61(a) of this title);
(2) Fail to remain at the testing site until the testing process is
complete. Provided, that an employee who leaves the testing site before
the testing process commences (see Sec. 40.63(c) of this title) a pre-
employment test is not deemed to have refused to test;
(3) Fail to provide a urine specimen for any drug test required by
this part or DOT agency regulations. Provided, that an employee who
does not provide a urine specimen because he or she has left the
testing site before the testing process commences (see Sec. 40.63(c) of
this title) for a pre-employment test is not deemed to have refused to
test;
(4) In the case of a directly observed or monitored collection in a
drug test, fails to permit the observation or monitoring of the
driver's provision of a specimen (see Secs. 40.67(l) and 40.69(g) of
this title);
(5) Fail to provide a sufficient amount of urine when directed, and
it has been determined, through a required medical evaluation, that
there was no adequate medical explanation for the failure (see
Sec. 40.193(d)(2) of this title);
(6) Fail or declines to take a second test the employer or
collector has directed the driver to take;
(7) Fail to undergo a medical examination or evaluation, as
directed by the MRO as part of the verification process, or as directed
by the DER under Sec. 40.193(d) of this title. In the case of a pre-
employment drug test, the employee is deemed to have refused to test on
this basis only if the pre-employment test is conducted following a
contingent offer of employment;
(8) Fail to cooperate with any part of the testing process (e.g.,
refuse to empty
[[Page 43105]]
pockets when so directed by the collector, behave in a confrontational
way that disrupts the collection process); or
(9) Is reported by the MRO as having a verified adulterated or
substituted test result.
Safety-sensitive function means all time from the time a driver
begins to work or is required to be in readiness to work until the time
he/she is relieved from work and all responsibility for performing
work. Safety-sensitive functions shall include:
(1) All time at an employer or shipper plant, terminal, facility,
or other property, or on any public property, waiting to be dispatched,
unless the driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by Secs. 392.7 and
392.8 of this subchapter or otherwise inspecting, servicing, or
conditioning any commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor
vehicle in operation;
(4) All time, other than driving time, in or upon any commercial
motor vehicle except time spent resting in a sleeper berth (a berth
conforming to the requirements of Sec. 393.76 of this subchapter);
(5) All time loading or unloading a vehicle, supervising, or
assisting in the loading or unloading, attending a vehicle being loaded
or unloaded, remaining in readiness to operate the vehicle, or in
giving or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in
attendance upon a disabled vehicle.
Screening test (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 each 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 public interest exclusion in accordance with 49 CFR part 40,
Subpart R.
Sec. 382.119 Stand-down waiver provision.
(a) Employers are prohibited from standing employees down, except
consistent with a waiver from the Federal Motor Carrier Safety
Administration as required under this section.
(b) 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.
(c) The final decision whether to grant or deny the application for
a waiver will be made by the Administrator or the Administrator's
designee.
(d) 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.
(e) 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.
Sec. 382.121 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 that 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 prior to performing a safety sensitive function (i.e.,
prior to reporting for duty); 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.
[[Page 43106]]
(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;
(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 drug and alcohol abuse evaluation expert,
i.e., employee assistance professional, substance abuse professional,
or qualified drug and alcohol counselor;
(4) It must ensure that:
(i) Prior to the employee participating in a safety sensitive
function, the employee shall undergo a return to duty test with a
result indicating an alcohol concentration of less than 0.02; and/or
(ii) Prior to the employee participating in a safety sensitive
function, the employee shall undergo a return to duty controlled
substance test with a verified negative test result for controlled
substances use; and
(5) It may incorporate employee monitoring and include non-DOT
follow-up testing.
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.
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.
(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
[[Page 43107]]
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 49 CFR 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 of its surviving drivers:
(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 within 8 hours of the occurrence 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 of its surviving
drivers:
(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 within thirty-two hours of the
occurrence 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)
----------------------------------------------------------------------------------------------------------------
Type of accident involved Citation issued to the CMV driver Test must be performed by employer
----------------------------------------------------------------------------------------------------------------
i. Human fatality..................... YES................................ YES.
NO................................. YES.
ii. Bodily injury with immediate YES................................ YES.
medical 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 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
[[Page 43108]]
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
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)(1) 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.
(2) Each driver selected for random alcohol and controlled
substances testing under the selection process used, shall have an
equal chance of being tested each time selections are made.
(3) Each driver selected for testing shall be testing during the
selection period.
(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.
(k)(1) Each employer shall ensure that random alcohol and
controlled substances tests conducted under this part are unannounced.
(2) Each employer shall ensure that the dates for administering
random alcohol and controlled substances tests conducted under this
part are spread
[[Page 43109]]
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
an alcohol or controlled substances reasonable suspicion test, and
signed by the supervisor or company official who made the observations,
within 24 hours of the observed behavior or before the results of the
alcohol or controlled substances tests 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 follow-up testing must be performed in
accordance with 49 CFR part 40, Subpart O.
Subpart D--Handling of Test Results, Records 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.
[[Page 43110]]
(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 employee'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 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;
[[Page 43111]]
(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 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
[[Page 43112]]
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 specific
written consent as outlined in Sec. 40.321(b) of this title.
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 Sec. 40.25 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 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 civil and/or criminal 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 civil and/or
criminal 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:
[[Page 43113]]
(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. Recurrent training for
supervisory personnel is not required.
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: August 8, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 01-20426 Filed 8-16-01; 8:45 am]
BILLING CODE 4910-EX-P