[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