Controlled Substances & Alcohol Use and Testing

SUMMARY: The FHWA is adding regulations on controlled substances and

alcohol use and testing to the Federal Motor Carrier Safety Regulations

and making conforming amendments to other parts of those regulations.

This is being done to comply with the requirements of the Omnibus

Transportation Employee Testing Act of 1991. This rule requires

employers to test drivers who are required to obtain commercial

driver's licenses (CDLs) for the illegal use of alcohol and controlled

substances.

EFFECTIVE DATE: March 17, 1994.

FOR FURTHER INFORMATION CONTACT: For information regarding program

issues: Mr. David Miller, Office of Motor Carrier Standards, (202) 366-

2981, or for information regarding legal issues: Mr. David Sett, Office

of the Chief Counsel, (202) 366-0834, Federal Highway Administration,

Department of Transportation, 400 Seventh Street, SW., Washington, DC

20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION:

I. How to Read the FHWA Rules Published Today

A. Final Rules

The final rules requiring drug and alcohol testing of commercial

motor vehicle operators are published in three places in today's

Federal Register. This document contains the final rule for part 382,

consisting of the substantive requirements of who, what, where, and

when drug and alcohol testing must be done by employers. The text of

the rule follows the discussion in this preamble. This final rule

follows from two separate notices of proposed rulemakings--one for

alcohol testing and one for drug testing. Five other operating

administrations (OA) of the Department are publishing similar

substantive rules for alcohol testing in today's Federal Register.

In addition, a Department of Transportation-wide preamble precedes

this document in today's Federal Register. It is entitled Limitation on

Alcohol Use by Transportation Workers. This common preamble discusses

comments to the notices of proposed rulemakings (NPRM) published by six

operating administrations on December 15, 1992, including the FHWA, and

the parts of the final rules common to the six operating

administrations. It should be read in conjunction with this document to

ensure a complete understanding of the FHWA's final rule. There is no

common rule associated with the common preamble. The rule contained in

this document contains the requirements for motor carriers.

A third document, consisting of regulatory amendments and a

preamble, contains the technical testing procedures designed for use

when testing is required by part 382, this rule. Procedures for

Transportation Workplace Drug and Alcohol Testing Programs, also

published elsewhere in today's Federal Register, specifies how the

testing is to be conducted. It adds alcohol testing procedures and drug

testing amendments to 49 CFR part 40, the current Department-wide drug

testing procedures regulation.

B. Notices of Proposed Rulemakings

In addition to the final rules mentioned above, the FHWA is also

publishing in today's Federal Register three proposals to change

certain provisions of the final rules. For more information than

provided below, please refer to each NPRM.

The first NPRM contains a proposal to amend the part 382 final rule

you are now reading to include foreign-based employers and their

drivers who operate commercial motor vehicles in and through the United

States. Included is a discussion of the comments received in response

to an advanced notice of proposed rulemaking (ANPRM) published by the

FHWA on December 15, 1992, in which various issues related to foreign

coverage were raised.

The second NPRM proposes to amend part 40 to allow confirmatory

blood testing for alcohol during reasonable suspicion and post-accident

tests when an evidential breath testing device is not readily

available. The Department-wide proposal seeks comment on how blood

testing for alcohol should be conducted and what laboratories should be

used.

The third NPRM proposes a Department-wide procedure for each

operating administration's Administrator to adjust the random drug

testing rate. Paralleling the provisions for adjusting the alcohol

testing rate appearing in this rulemaking, the proposal would allow a

reduction in the drug testing rate based upon reliable statistics of

positive rates for each operating administration's program.

C. Use of Terms That Might Be Confusing to the Reader

In this document and the others published by the FHWA and the

Department in today's Federal Register, the terms ``drugs'' and

``controlled substances'' are interchangeable and have the same

meaning. Unless otherwise provided, drugs and controlled substances

refer to marijuana (THC), cocaine, opiates, phencyclidine (PCP), and

amphetamines (including methamphetamines).

II. Background

A. Statutory Authority

The Omnibus Transportation Employee Testing Act of 1991 (the

Omnibus Act) was signed by President Bush on October 28, 1991, as part

of the 1992 Department of Transportation and Related Agencies

Appropriations Act. Public Law 102-143, Title V, 105 Stat. 917, 952

(1991). The Omnibus Act requires the Secretary of Transportation to

promulgate regulations for alcohol and controlled substances testing

for persons in safety-sensitive positions in four modes of

transportation--motor carrier, airline, railroad, and mass transit. The

general requirements of the Omnibus Act are addressed in the Office of

the Secretary of Transportation's (OST) final rule amending 49 CFR part

40 and in the common preamble, applicable to all of the U.S. Department

of Transportation (DOT) modal agency rules on alcohol testing programs.

These documents appear elsewhere in today's issue of the Federal

Register.

Section 5 of the Omnibus Act addresses requirements specific to

employers who own or lease commercial motor vehicles (CMVs) or assign

persons to operate such vehicles. 49 U.S.C. 2717. This section amends

the Commercial Motor Vehicle Safety Act of 1986 (CMVSA). Public Law 99-

570, 100 Stat. 3207-170 (codified at 49 U.S.C. app. 2701-2718). The

CMVSA established the requirements for the Commercial Drivers License

(CDL). The FHWA has implemented the CDL provisions of the CMVSA through

the publication of several final rules.

The Omnibus Act requires the Secretary to issue regulations

requiring employers to conduct pre-employment, reasonable suspicion,

random and post-accident testing of drivers for the use, in violation

of law or Federal regulation, of alcohol or controlled substances.

Congress recognized current FHWA regulations for controlled substances

testing and the scientific and technical guidelines established by the

Department of Health and Human Services incorporated therein.

In addition, this rule is issued under the general safety

regulatory authority of the FHWA. See 49 U.S.C. 3102 and app. 2505.

B. Regulatory History

1. Current Regulations

The FHWA published a final rule on November 21, 1988, setting forth

regulations to require employers who operate CMVs in interstate

commerce to have an anti-controlled substances program, including the

testing of interstate CMV drivers. See 53 FR 47134. That rule required

employers to conduct five types of controlled substances tests: Pre-

employment/use; periodic; reasonable cause; post-accident; and random.

49 CFR part 391, subpart H.

Though there is no corresponding alcohol testing program currently

applicable to motor carriers, a number of other regulations prohibit

the misuse of alcohol and drugs when operating a CMV. Prohibitions on

use before and during driving appear in 49 CFR 392.4 and 392.5. A

driver who is convicted of being under the influence of drugs or

alcohol while driving a CMV is subject to CDL suspension. 49 CFR

383.51. A driver who uses Schedule I drugs, without medical

authorization, is physically unqualified to drive in interstate

commerce. 49 CFR 391.41(b)(12).

On the same date, November 21, 1988, and in conjunction with

publication of the FHWA drug testing rule, the OST published a

Department-wide interim final rule, ``Procedures for Transportation

Workplace Drug Testing Programs.'' See 53 FR 47002. On December 1,

1989, OST published a final rule amending certain portions of the

interim final rule. 54 FR 49854, 49 CFR part 40.

Subsequent to the publication of the November 21, 1988, FHWA final

rule, the FHWA published several notices relating to the controlled

substances testing requirements. See 54 FR 39546, 54 FR 46616, and 54

FR 53294. On February 1, 1990, the FHWA published an interim final rule

and requested additional comments to FHWA Docket No. MC-116 on the

changes to the rule and how to streamline the controlled substances

testing program. 55 FR 3546. The FHWA received 24 comments in response

to this interim final rule. The responses to two of these comments will

be addressed later in this document. The other comments were addressed

in a recent rulemaking on the drug testing management information

system (58 FR 68194 and 68220, December 23, 1993).

On November 2, 1989, OST published an advance notice of proposed

rulemaking (ANPRM) on alcohol testing. 54 FR 46326.

2. Notices of Proposed Rulemaking

On December 15, 1992, the FHWA requested public comments on two

notices of proposed rulemaking (NPRM) which address alcohol and

controlled substance testing:

1. Alcohol Testing [57 FR 59382, 59409, and 59516, December 15, 1992,

Docket No. MC-92-19], and

2. Controlled Substances Testing [57 FR 59382, 59409, and 59567,

December 15, 1992, Docket No. MC-92-23].

3. Public Hearings

The Department of Transportation and the FHWA held three 2-day

public hearings regarding the alcohol and controlled substances testing

NPRMs. The hearings were held in Washington, DC, on February 25 and 26,

Chicago, Illinois, on March 1 and 2, and San Francisco, California, on

March 4 and 5. The FHWA has included transcripts of each hearing in the

rulemaking dockets. Comments made at the hearings are discussed below

along with written comments submitted directly to the dockets.

4. Comments to the Dockets

A. Alcohol Testing [Docket MC-92-19]. Comments to docket MC-92-19

that relate to rule provisions common to all operating administrations

are discussed in the common preamble, Limitation on Alcohol Use by

Transportation Workers, published elsewhere in today's Federal

Register. Discussion in this rulemaking document will focus on aspects

or applications of the rule which are unique to FHWA. Where a

discussion is included in this document, the corresponding section in

the common preamble should also be consulted for a complete

understanding of this final rule.

The FHWA received 323 comments to docket MC-92-19, the alcohol

NPRM, by the close of business on April 14, 1993. The commenters

included employers, drivers, trade associations, unions, medical review

officers (MROs), substance abuse professionals (SAPs), and governmental

agencies, including law enforcement agencies, and school districts.

Applicability

Comments: Many custom harvesters stated that their industry should

retain the current exemption from drug testing in 49 CFR part 391,

Qualification of Drivers, and also be exempt from alcohol testing. Some

commenters, including The Kansas Electric Coop, stated that rural

electric cooperatives should be exempt from testing because job

responsibilities are different from those of over-the-road truck

drivers. They stated that their employees spend minimal time on high

speed thoroughfares in close proximity to small passenger cars. A local

government agency stated that mechanics should not be subject to

alcohol and controlled substances testing because they could not afford

such a program.

The Virginia State Police, among others, stated that only employees

subject to 49 CFR part 391 should be tested. They stated that the

controlled substances testing program is in place and working. The

additional testing for alcohol could readily be implemented. Some

comments recommended a partial exemption for foreign drivers and a

total exemption for electrical contractors.

Other commenters, including the Owner-Operator Independent Drivers

Association (OOIDA), disagreed with the principle of industry-wide

waivers from alcohol-testing regulations. Though it opposes non-

probable cause testing, the OOIDA stated that if testing were imposed,

all drivers should be treated equally. The Federal mandate is that

government and school bus drivers be tested as other drivers are

tested.

One commenter stated that employees who worked for employers

subject to the Federal Transit Administration (FTA) rules should be

tested under FTA rules. Another commenter asked how to report CDL

drivers who are subject to the Federal Transit Act, and whether non-CDL

and non-Section 18 drivers must be tested. The Montana and South Dakota

Departments of Transportation recommended that transit systems with

fewer than 15 safety-sensitive employees should be exempt from testing

regulations. The Association of American Railroads (AAR) and Transtar,

Inc. stated that railroad employees who operate CMVs should be tested

under the jurisdiction of the FRA, not the FHWA. The AAR stated that

most railroad employees, who operate CMVs, drive their vehicles

sporadically. Driving is not their primary responsibility. Some

commenters stated pipeline employees, who operate CMVs, should only be

subject to Research and Special Programs Administration (RSPA)

jurisdiction.

The Tennessee Valley Authority (TVA) and other commenters stated

that employees subject to the Nuclear Regulatory Commission (NRC)

should be tested under NRC regulations. The TVA stated that there is

needless, costly duplication which significantly compounds the

opportunity for human error in the testing program. The U.S. Postal

Workers Union stated that the U.S. Post Office has a credible

controlled substances testing program and should be given credit for

their program. Pinnacle Transport Services, Inc. stated that drivers of

CMVs should only be subject to FHWA regulations.

Other commenters, including the Washington State Patrol (WSP),

stated that government employees should be totally exempted from the

alcohol testing regulations. The WSP stated that requiring governmental

agencies, including school bus drivers and highway road crews, to

implement random alcohol testing would further reduce limited budgets

for these agencies. The WSP also stated that their state currently has

a strong and effective school bus inspection program.

FHWA Response: The Omnibus Act, as stated above, amended the CMVSA,

subjecting all drivers of CMVs who are required to obtain CDLs to

testing for the illegal use of alcohol and controlled substances. The

Omnibus Act does not provide specific waiver authority apart from the

CMVSA. The CMVSA gives the Secretary the discretion to waive classes of

drivers and vehicles from all or part of the statute's requirements.

The FHWA does not believe that this waiver authority is broad enough to

waive all drivers from requirements of the Omnibus Act. See H.R. Rep.

No. 901, 99th Cong., 2d Sess. 4 (1986). Moreover, the FHWA does not

believe it is in the public interest to grant industry-wide exemptions

from testing requirements beyond those permitted in the CDL program as

a whole. Therefore, only those few categories of drivers that have

received full waivers from CDL requirements are similarly waived from

drug and alcohol testing requirements.

Employers not subject to this rule will be those employers who

exclusively employ drivers that are not subject to commercial driver's

license requirements. Such employers may be Department of Defense (DoD)

agencies who only employ active duty military personnel. Those (DoD)

agencies that employ civilian and non-active duty drivers will be

subject to these rules and must implement FHWA required testing

programs for those civilian and non-active duty drivers. Other

employers not subject to this rule include farmers, emergency response

and firefighting companies, when they employ drivers that have been

waived from the CDL requirements by their State of licensure.

Employers who are subject to the Federal Transit Administration's

(FTA) alcohol and controlled substances testing regulations are not

subject to the FHWA's regulations. The FTA generally requires its

grantee's to be subject to its rules. The FTA, however, will not

require recipients receiving Federal funding under section 16(b)(2) of

the Federal Transit Act to follow the FTA substance testing rule. The

Federal Transit Act, under section 16(b)(2), provides capital

assistance through a State to organizations that provide specialized

transportation services to elderly persons and persons with

disabilities. The funds may go to nonprofit organizations, and under

certain circumstances, to public bodies.

Though some commenters suggested to the FHWA and the FTA that the

FTA cover section 16(b)(2) recipients in the FTA rule, the Omnibus Act

does not provide such coverage. Therefore, the CMV drivers of section

16(b)(2) recipients will be covered under this FHWA rule. See the FTA

final rule published elsewhere in today's Federal Register for further

information.

As for employers and drivers subject to other Federal agencies'

testing programs, the FHWA, along with the other operating

administrations in the Department and the OST, have worked with the

NRC, the Departments of Energy (DOE) and Health and Human Services

(DHHS) and other Federal agencies to establish similar requirements for

testing of both the agencies' Federal employees and regulated entities.

The FHWA has attempted to have substantially compatible regulations

with all Federal agencies that require testing of Federal and non-

Federal employees. However, operators of CMVs and their employers must

comply with the requirements of the Omnibus Act regardless of whether

an employer has an existing drug and/or alcohol testing program.

This section also specifies that persons who are both an employer

and a driver, that is, the person who owns a business and also drives a

commercial motor vehicle for that business (generally called an owner-

operator), must comply with both the driver and the employer

requirements contained in part 382. This section also stipulates that

an employer with only one driver may not have an independent random

testing program. Such employers must join a group of other DOT

regulated employers, generally known as a consortium, to conduct random

testing for alcohol and drug testing. This requirement is necessary to

ensure a truly random selection, since it is impossible to randomly

select from a pool that contains only one person.

Definitions

Comments: The Council of Special Transportation and the County of

Somerset, New Jersey stated that the term ``safety-sensitive position''

should be defined in the regulations. The Council of Special

Transportation added that the FHWA and FTA should minimize

inconsistencies in their respective regulations and definitions. Other

commenters stated that the definition of the term ``accident'' should

be consistent with current rules.

FHWA Response: The term ``safety-sensitive function'' was defined

in the proposal and is defined in this final rule. A safety-sensitive

function or position in the mass transit industry encompasses more

functions than the FHWA's exclusive definition of a CMV driver and

thus, the FHWA and FTA cannot have identical definitions for this term.

Testing is restricted to CMV operators in Section 5 of the Omnibus Act.

Section 6, in contrast, allows the FTA to determine what mass

transportation employees are responsible for safety-sensitive

functions. See the FTA final rule published elsewhere in today's

Federal Register for a complete discussion of FTA covered safety-

sensitive functions.

The FHWA proposed a definition of ``accident'' to be consistent

with the Omnibus Act, which requires that drivers involved in an

accident where there is loss of human life, regardless of fault be

tested. The Secretary is also given the discretion to determine what

other serious accidents, involving bodily injury or significant

property damage, trigger post-accident testing. The FHWA is maintaining

the definition as proposed in the NPRM, which adopted the definition of

accident appearing in 49 CFR 390.5.

Requirement for Notice

Comments: Numerous commenters opposed any requirement to provide

written notification, stating that because the proposed regulations

prohibit an employer from representing a non-DOT test as a test

conducted under the regulations of the Department, no written notice is

necessary. Other commenters stated that written notice should be

provided. The Amalgamated Transit Union (ATU) stated that a written

notice requirement would establish uniformity and confirm that notice

has been properly given. Recommendations regarding the time frame for

written notice ranged from immediately prior to the test to the day of

the test.

FHWA Response: This requirement is necessary to address the

concerns of drivers who have complained that their employers purported

to require a test under the current drug testing program when, in fact,

the test was not required by FHWA regulations. In order to provide

employers with flexibility, the form of the notification is not

prescribed. It may be oral or written. The breath alcohol testing form

and the drug testing custody and control form may be used to meet the

requirement for notice. The final rule requires only that notification

be given prior to the administration of the test.

Medication Exception.

Comments: Several commenters, including the American Trucking

Associations (ATA), stated that an exception should not be made for the

consumption of prescription medication containing alcohol. However, the

ATA also stated that employees should be allowed to possess

prescription medicine containing alcohol.

Other comments, including those from the OOIDA, stated that an

exception should be allowed for the consumption of prescription

medicine containing alcohol. STA United Inc. recommended removing the

stipulation that an employer must have actual knowledge that an

employee possesses alcohol, arguing that actual knowledge implies the

existence of a witness and the presence of a witness justifies the

performance of a reasonable suspicion test.

FHWA Response: The FHWA received no comments regarding whether a

driver is as safe on the highway using medications as a driver who does

not use them. We believe that the public interest is better served if

we continue our long-standing prohibition on the possession and

consumption of substances containing any amount of alcohol. Highway

safety is of paramount importance, and there are alternative

medications which do not contain alcohol. The FHWA continues to believe

that CMV drivers must use non-impairing medications while driving CMVs.

Finally, it should be noted that mere possession of alcohol,

standing alone, does not give rise to a reasonable suspicion test under

this part, which must be based on observations concerning the

appearance, behavior, speech, or body odors of a driver.

Pre-duty Alcohol Use

Comments: Several commenters stated that drivers should abstain

from consuming alcohol prior to duty, but there was no consensus on the

length of the required abstinence. The US DOE recommended 5 hours. The

Texas Pupil Transportation Drug Testing Advisory Committee recommended

6 hours. Other commenters, including the American Bus Association (ABA)

and U.S. West Communications, recommended 8 hours. The ABA believed

that an 8 hour abstinence is necessary in order to prevent an otherwise

lawful use of alcohol from invalidating a post-accident test. The

Council on Special Transportation opposed the pre-duty prohibition on

the use of alcohol because it is unfair to ``on call'' drivers and the

employer can not enforce such a regulation.

FHWA Response: Current regulations applicable to persons who

operate CMVs in interstate commerce prohibit a person from consuming an

intoxicating beverage regardless of its alcohol content within 4 hours

before going on duty, operating or having physical control of a motor

vehicle. See 49 CFR 392.5. The FHWA believes that the public's interest

in safety is better served if the current pre-duty alcohol prohibition

is extended to all CMV operators subject to alcohol and controlled

substances testing. All commenters who were in favor of prohibiting

pre-duty alcohol use supported abstinence periods of 4 or more hours.

The FHWA understands the concern of the ABA that the pre-duty use of

alcohol may register during a post-accident test. The 4 hour abstinence

period, however, is a minimum requirement, regardless of a driver's

alcohol concentration. A driver may in fact need to abstain for a

longer period in order to be below 0.02 BAC while operating a CMV.

Pre-employment/Pre-duty Testing

Comments: The ATA stated that pre-employment testing is unnecessary

and that the FHWA should waive such testing under section 12013 of the

CMVSA. Once a driver is hired, they state, the person is subject to

random and probable cause testing, which is sufficient to deter misuse.

FHWA Response: Even accepting, for the sake of the argument, the

comment's presumption that pre-employment testing is inherently

useless, the FHWA does not believe it has the authority to waive all

drivers from a major provision of the legislation. Eliminating all pre-

employment tests would greatly diminish the number of required tests,

and would, in effect, rewrite the statute.

Post-accident Testing

Comments: There were numerous comments to this section dealing with

such issues as who should be required or permitted to perform the post-

accident testing and how long after an accident occurs should a driver

be required to be tested. Commenters, including the California Trucking

Association (CTA), supported the position that law enforcement

officials either be required or permitted to perform post-accident

testing. The CTA stated that the police should perform post-accident

testing because they have the necessary equipment and training to

perform the tests. One commenter stated that the test should be

performed if the accident is reportable, regardless of whether a

citation is issued. Other commenters supported post-accident testing

only if the driver receives a citation. The NEA opposed the requirement

to test all CMV drivers involved in fatal accidents because the tested

driver may not have caused the accident. The National Education

Association (NEA) stated that there should be some showing of fault or

culpability before a driver is required to be tested. A few commenters

opposed post-accident testing.

There was no consensus on the maximum time limit after the accident

an employer should be required to test the driver. The US DOE

recommended one hour while others recommended either four or eight

hours as the maximum limit. A few commenters did not like the eight

hour time limit but did not recommend an alternative.

The National Solid Waste Management Association (NSWMA) stated that

a post-accident test should not be voided if the testing official fails

to give notice that the test is required by regulation. Other

commenters stated that either police or employers should be permitted

to conduct the test at the employer's option.

FHWA Response: The Omnibus Act expressly requires that every CMV

driver involved in an accident that involves a fatality must be tested

for alcohol and controlled substances, regardless of whether the driver

was culpable or at fault.

The statute does allow, however, the FHWA to determine what other

types of ``serious accidents involving bodily injury or significant

property damage'' should lead to a driver being tested for alcohol and

controlled substances. In order to be consistent with current

standards, accidents as defined in 49 CFR 390.5 (towaway and medical

assistance criteria) are considered serious enough to trigger testing.

In addition, there must be some determination by a third party law

enforcement official, through issuance of a traffic citation to the

driver arising from the accident, that the driver's actions may have

contributed to the accident.

Certain tests conducted by law enforcement officials with

independent authority may be substituted by the employer for a post-

accident test if the employer obtains the results. Since such tests

would be conducted independent of this part, a law enforcement official

would not give the notification required in this part.

Post-accident testing must be done as soon as possible after an

accident. However, the FHWA realizes that there are times when, because

of unforeseen problems, a test is not obtainable in the first couple of

hours after the accident. The FHWA believes that the eight hour time

frame for alcohol testing is therefore necessary to allow for testing

under such circumstances. A driver who was over 0.10 BAC at the time of

the accident may continue to test above 0.02 BAC at the time of the

test. It is generally accepted that alcohol dissipates from the body in

a very short time. However, the FHWA believes that a driver, who

continues to have a prohibited alcohol concentration up to 8 hours

after an accident that requires an alcohol/controlled substances test,

should be subject to evaluation by a substance abuse professional.

Random Testing

See Limitation on Alcohol Use by Transportation Workers for

discussion of random alcohol testing comments, including the random

roadside testing option proposed in the NPRM but not included in the

final rule.

Reasonable Suspicion Testing

Comments: A few commenters, including the IBT, were opposed to

lowering the number of supervisors needed to make a reasonable

suspicion observation, from the current rule's two to the proposal's

one. The union stated that it weakens protection for workers. Other

commenters supported the single supervisor requirement.

FHWA Response: The FHWA believes that requiring only one supervisor

or company official to make a reasonable suspicion determination

responds to the operational realities of motor carrier operations. The

FHWA received many comments and much oral testimony stating that there

are often not two supervisors available to make such determinations on

those relatively infrequent occasions when some drivers return to

terminals. Only one supervisor or company official might be present and

available to observe the driver.

The current drug testing rule, moreover, requires observation by

two supervisors or company officials only where feasible. It is the

FHWA's experience in administering the rule that motor carriers often,

due to the operational characteristics noted above, have not found it

feasible to obtain observations from two supervisors. After the fact

evaluation by the FHWA of feasibility has proven difficult. In effect,

therefore, this rule may not be diminishing significantly the overall

numbers of supervisors and company officials making reasonable

suspicion determinations.

In order to counteract any perceived increase in the potential for

abuse by company officials caused by eliminating the two supervisor

requirement, the one supervisor who makes the reasonable suspicion

determination is prohibited from conducting the alcohol test. Thus, it

remains that at least two company officials must become involved before

any driver is determined to have violated this rule such that the

driver is referred to a SAP. Drivers are further protected by the

requirement for all persons making reasonable suspicion determinations

to receive at least 60 minutes of training on the physical, behavioral,

speech, and performance indicators of alcohol misuse.

Exceptions for Testing Performed by Consortiums

Comments: Pinnacle Transport Services, Inc. stated that the

reference in the title of this topic to consortiums should be removed

because it did not accurately and completely reference the applicable

sections.

FHWA Response: The FHWA agrees, and has removed this as a separate

exception. The only exceptions available in the final rule are placed

under the pre-employment testing sections. The random testing exception

has been removed entirely.

Retention of Records

Comments: Numerous commenters, including the ATA, recommended

reducing the record retention period from the proposed 5-year period to

a 3-year period. Roadway Express, Inc. stated that a maximum record

retention period of three years would be consistent with other FHWA

recordkeeping requirements for medical records. The US DOE recommended

that equipment records be retained for 2 years since they are similar

in nature to collection process records. Pinnacle Transport Services,

Inc. recommended that the threshold for alcohol test results which are

required to be kept for 5 years should be changed from 0.02 BAC to 0.04

BAC. The NSWMA recommended that the annual report of test results be

kept for no more than 5 years.

The Arlington, Virginia Public Schools recommended that employers

not be required to keep equipment calibration records because the

police department does the alcohol testing for the school system.

FHWA Response: The proposed regulations were designed to be

consistent among all modes of the Department to permit compliance for

employers that are subject to the regulations of two or more DOT

agencies. The FHWA does not believe that sufficient justification was

presented to warrant a change to the record retention requirements.

With regard to maintenance of records by a party other than the

employer, the FHWA currently allows agents of the employer to maintain

certain records, provided the employer obtains such records for

auditing within two business days after the request of an authorized

representative of the FHWA. This language is included in

Sec. 382.401(d).

Access to Facilities and Records

See Limitation of Alcohol Use by Transportation Workers for

discussion of this section.

Required Evaluation and Testing

See Limitation on Alcohol Use by Transportation Workers for

discussion of comments on this section.

Other Alcohol-Related Conduct

See Limitation on Alcohol Use by Transportation Workers for

discussion of comments on this section.

Disqualifications and Consequences

Comments: The OOIDA and the NEA both recommended that a driver not

be disqualified without the benefit of a hearing. The Idaho Department

of Law Enforcement recommended that a driver only be disqualified upon

conviction of an alcohol violation, not a positive test.

FHWA Response: Because the FHWA has not included the MCSAP random

roadside testing option in the final rule, the associated CDL

suspension penalties, and the corresponding driving prohibition periods

in the employer-based testing option, are also not included in the

final rule. The only consequence under this rule for violation of the

alcohol prohibitions is referral to a substance abuse professional, who

may require the driver to undergo treatment before returning to perform

safety-sensitive functions, and a return-to-duty test with a result

below 0.02. The purpose is to ensure that drivers are evaluated for

alcohol problems, and that they get the treatment they need before

returning to duty. Therefore, the time period a driver is actually

prohibited from driving will vary, depending on the speed with which a

SAP is consulted and the results of the SAP's evaluation.

Of course, the driver disqualifications and 24 hour out-of-service

period provided for discovery and conviction of certain alcohol

offenses by law enforcement officials remain. See 49 CFR 383.51 and

392.5.

Motor Carrier Obligation to Promulgate a Policy on the Misuse of

Controlled Substances

See Limitations on Alcohol Use by Transportation Workers for

discussion of comments on this section.

Controlled Substance Training for Supervisors and Company Officials

See Limitations on Alcohol Use by Transportation Workers for

discussion of comments on this section.

Referral, Evaluation and Treatment

See Limitations on Alcohol Use by Transportation Workers for

discussion of this section.

Part 392--Alcohol Prohibition

Comments: The Shell Oil Company and the Organization Resources

Counselors Inc. stated that an out-of-service order should be produced

only for an alcohol concentration of 0.04 BAC or more. Pinnacle

Transport Services opposed the requirement that no driver shall be on

duty or operate a CMV if by the person's appearance, the driver may

have used alcohol.

FHWA Response: The FHWA has had a policy of zero tolerance for

alcohol use by CMV drivers since the early 1940's. The safety of the

traveling public is paramount. An employee who has either recently

consumed an alcoholic beverage or who has any detected presence of

alcohol may not be on duty until the alcohol has dissipated from the

person's system. It is not specified in this section how the alcohol is

detected or how long it takes to dissipate.

In addition, section 382.505 provides that drivers are prohibited

from driving for 24 hours, though not placed out-of-service, when they

are discovered through testing under part 382 to have an alcohol

concentration of 0.02 or greater, but less than 0.04. Results below

0.02 through testing under this part are considered ``negative.''

The 24 hours out-of-service period is required by the CMVSA to be

imposed on drivers discovered by law enforcement officials to have

violated the proscriptions in Sec. 392.5, including any measured

concentration of alcohol. It is designed to ensure that the employee is

provided enough time to become alcohol free prior to driving a CMV

again. See discussion below of Section 382.505 in Section-by-Section

Analysis.

On-Duty Time

Comments: Several commenters, including the ATA, oppose recording

time spent submitting to an alcohol or controlled substances test as

on-duty time. The ATA stated that time spent acquiring or renewing a

CDL or taking a physical examination is not logged as on-duty time. The

recording of on-duty time while performing a mandatory test would have

a significant impact on the industry in terms of lost productivity and

other costs. Testing is a fitness for duty issue, they believe, not the

performing of work for an employer. The OOIDA stated that return-to-

duty testing should always be on-duty time. STA United Inc. stated that

return-to-duty testing should be on-duty time if the driver continues

to work for the same employer in a job not related to safety during

rehabilitation.

FHWA Response: Testing under these requirements is done to deter

CMV drivers from using alcohol and controlled substances. The FHWA

continues to believe that all time spent travelling to and

participating in either a drug or alcohol test is to be logged as on-

duty time when a random, reasonable suspicion, post-accident, or

follow-up test is directed by or on behalf of a motor carrier.

B. Controlled Substances Docket MC-92-23

The comments to docket MC-92-23 which are similar to those

considered in the discussion of the comments to the alcohol testing

docket MC-92-19 are not discussed again below. The following discussion

involves only comments that are different from those submitted to

docket no. MC-92-19 and the common preamble, Limitation on Alcohol Use

by Transportation Workers.

The FHWA received 107 comments to this NPRM. The commenters

included: Employers; drivers; driver's associations; unions; MROs;

SAPs; and Federal, State and local governments. Commenters from

government agencies included law enforcement agencies and school

districts.

Applicability

Comments: The American Postal Workers Union (APWU) stated that

postal workers should be exempt from controlled substances testing. The

Truck Stop Operators Association stated that mechanics should be

subject to the FHWA rules.

FHWA Response: As stated above, only drivers waived from CDL

requirements are similarly waived from the alcohol and controlled

substances testing regulations. Mechanics who hold CDLs to operate CMVs

for truck stop operators will be required by this rule to submit to

alcohol and drug testing if they operate CMVs on public highways.

Definitions

Comments: One commenter stated that the definition of MRO should

include health care professionals because the FHWA allows these

professionals to perform medical examinations. One commenter at the San

Francisco, California, hearing recommended that a definition of

``verified negative test'' be included in this section. Commenters to

the docket and at the Washington, D.C. hearing that the definition of

SAP should include a ``certified employee assistance professional'',

``occupational health nurse'' and ``certified addiction counselor''.

The Employee Assistance Professionals Association recommended that only

their members be allowed to serve as SAPs.

The IBT said that ``canceled test'' should be defined in part 40,

if at all. The IBT believed that the use of the word ``adulteration''

in the definition of ``canceled test'' was confusing. In addition, the

IBT recommended that MROs be required to take MRO courses and pass a

qualifying examination. The IBT also believed that SAPs should be

certified, be in current practice and have appropriate training.

FHWA Response: The FHWA agrees with the IBT that the definition of

the term ``canceled test'' was confusing and has concluded that the

FHWA's restatement of part 40 issues is unwarranted. The FHWA has

decided to remove this section, making part 40 procedures for canceled

tests to be the FHWA standard.

The definitions of a SAP, verified negative test, and the

qualifications of MROs and SAPs also involve Department-wide issues and

thus will be controlled by regulations issued the Office of the

Secretary 49 CFR Part 40. See the Office of the Secretary's responses

to these comments in the final rule amending part 40, Docket No. 48153,

Procedures for Transportation Workplace Drug and Alcohol Testing

Programs, published elsewhere in today's Federal Register.

Starting Date for Controlled Substances Testing Programs

Comments: One commenter was confused about the proposed 382.115(c)

regarding employers who begin business after the second year after

implementation of the rule. One commenter stated that the

implementation dates should be the same for all employers. Other

commenters believed that the alcohol and controlled substances testing

programs should be implemented within 6 months of the effective date of

the regulations. The Montana Office of Public Instruction suggested

that implementation be delayed until July 1, 1995, to allow Montana

school districts to minimize negative fiscal consequences to existing

programs.

FHWA Response: Given its experience administering the drug testing

program under part 391, subpart H, the FHWA believes that small

employers will require more time to implement changes mandated by the

Omnibus Act than large employers. Small entities may have difficulty

implementing all of the requirements within one year. Larger employers,

however, should be able to implement the programs within approximately

one year.

Accordingly, large employers (fifty or more drivers) will be

required to implement a complete, fully operational program that

complies with this rule and part 40 on January 1, 1995. Small employers

(fewer than fifty drivers) must implement the requirements of this part

and part 40 on January 1, 1996.

Furthermore, the Department has decided that all employers subject

to the current drug testing regulations at part 391, subpart H, must

begin split sample collections and provide CMV drivers the opportunity

for split sample reconfirmation of a verified positive drug test result

within 6 months from today, in accordance with the amended part 40.

Since this only affects those persons subject to current drug testing

under subpart H, amendatory language has been inserted in subpart H

requiring this Department-wide procedure.

Controlled Substances Testing--General

Comments: The IBT recommended removing the reference to

``prescription drug'', because such a reference was not in the present

rule.

FHWA Response: The FHWA agrees that the reference to prescription

controlled substance use should be deleted. The FHWA has used the term,

``therapeutic drug use'' in Sec. 391.97(d) and has placed that phrase

into this rule.

Pre-Employment/Pre-Duty Testing

Comments: The International Brotherhood of Teamsters recommended

retaining the 12-month participation option which is currently part of

the exception criteria in subpart H. Two commenters recommended that

employers be permitted to obtain and use an applicant's prior testing

information during the hiring process as a condition of employment. The

OOIDA was opposed to requiring a driver to sign an authorization for

the release of test results as a condition of employment.

FHWA Response: The subpart H, ``12 month participation in a random

drug testing program'' allowance will be retained. 49 CFR

391.103(d)(2)(ii)(B). See the discussion of Sec. 382.413 below for a

discussion of release of previous employers' testing information.

Post-Accident Testing

Comments: The OOIDA opposed post-accident testing without probable

cause. Other commenters believed that the term ``safety sensitive

function'' should be defined. The Edison Electric Institute suggested

that paragraph (a)(1) be revised to read ``* * * performing a safety

sensitive function with regard to driving, loading or securing loads on

vehicles that are driven on a public highway.'' In addition, commenters

asked if continuous procedural instructions about post-accident testing

would include ensuring that post-accident testing kits are kept in each

vehicle and that reminders are posted on bulletin boards.

The ATA believed that post-accident testing should apply only to

those drivers involved in a fatal accident for which they were issued a

citation for a moving violation. One commenter was opposed to the

provision that a citation had to be issued. A few commenters stated

that there should be no acceptable reason for leaving the scene of an

accident.

One commenter believed that the ``tow-away'' requirement in

accidents should be replaced with minimum dollar amounts. For example,

$2,500 for ``vans'' and $5,000 for ``buses and trucks'' could be used.

Another commenter suggested that the FHWA either require that a blood

test be performed on a driver who is incapacitated for at least 24

hours or require a law enforcement official to perform the test.

FHWA Response: The Omnibus Act requires that testing be conducted

after all fatal accidents, regardless of whether or not a citation is

issued. Safety-sensitive functions are defined in Sec. 382.107 of the

rule. The regulations require that the employer provide employees with

necessary post-accident information, procedures, and instructions so

that the employees may be able to comply with the requirements of this

section. The FHWA believes that the employer should be given maximum

flexibility in implementing the post-accident drug testing

requirements. ``Post-accident testing kits'' and bulletin board notices

might be possible options for complying with the regulations, but there

is no requirement to produce either such kits or notices. There is also

no requirement, or authorization, to take specimens of any kind from an

incapacitated driver unable to consent to testing.

The FHWA believes that the ``tow-away'' criteria appearing in the

definition, adopted from 49 CFR 390.5, is better criteria for an

accident because property damage estimates sometimes change. Finally,

it is reasonable to allow drivers subject to post-accident testing to

leave the scene of the accident for medical and other emergencies.

Random Testing

Comments: One commenter was opposed to any random testing for

controlled substances. A few commenters recommended testing by

employers. Though not proposed, other commenters recommended that the

drug testing be done at the roadside by government officials.

Although the FHWA did not provide any options for a random testing

rate in the drug testing NPRM, many commenters recommended rates

differing from 50%.

One commenter suggested that a statement should be added to this

section regarding the legality of requiring an employee to submit to

testing on off-duty time. Another commenter questioned the requirement

to perform random selections at least quarterly.

FHWA Response: For a discussion of adjusting the random drug

testing rate in a manner similar to the alcohol testing rate adjustment

provided in this rule, see the NPRM published elsewhere in today's

Federal Register.

To preserve randomness and the deterrent value of the program,

drivers must have an equal chance of being randomly tested throughout

the year. Due to the varying sizes of employers, however, nowhere in

the rule is it required that random selection be made at least on a

quarterly basis for all employers. The rule merely requires that

testing be spread reasonably throughout the year.

As stated above, the time spent performing most tests must be

logged as on duty. Compensation arrangements between drivers and their

employers is beyond the scope of FHWA regulatory authority.

Reasonable Suspicion Testing

Comments: One commenter suggested that the supervisor's

observations leading to a reasonable suspicion test be documented

within two hours of the observation. Another suggested that the time

requirement for documentation be reduced to within two to six hours

from the 24 hours provided in the proposal. One commenter stated that

documentation should not be attached to the results, but should be

available upon request.

FHWA Response: The FHWA currently requires in 49 CFR Sec. 391.99(d)

that documentation of reasonable suspicion determinations for drug

tests be completed within 24 hours of the observed behavior or before

the results of the tests are received, whichever is earlier. There is

no requirement that the written documentation for a reasonable

suspicion test be attached to the test result itself.

This requirement is being carried over for drug testing only in

this rule. An employer may need more than two or six hours to document

a reasonable suspicion test. The 24 hour period should allow

documentation to occur by the next day's shift at the latest because,

in most situations, test results will not be available within 24 hours.

Written documentation is required for reasonable suspicion drug

testing, but not alcohol testing, because of the greater difficulty in

recognizing indications of drug use. Unlike alcohol use, drug use,

largely because of its general illegality, is not something with which

most people are widely familiar. The physical effects may also be more

subtle, even to those exposed to drug use and to professional Drug

Recognition Experts (DRE). While 60 minutes of training in the

indicators of drug use is required by the rule, it is not expected to

transform employers into DREs.

Documentation will allow employers to review reasonable suspicion

determinations made by its officials. By comparing the observations

recorded before both positive and negative test results, employers may

be able to evaluate patterns or procedures which are affecting the

efficacy of reasonable suspicion testing, and make changes accordingly.

In this way, documentation should also serve to reduce the potential

for the use of reasonable suspicion testing as a method of harassing

drivers.

Exceptions for Testing Performed by Consortiums

Comments: One commenter stated that this section omits

certifications from other employers for trip lease, interchange, or

contract drivers.

FHWA Response: Because the exception is being moved to the pre-

employment/pre-duty testing section, certifications for trip lease,

interchange, or contract drivers are still acceptable.

Split Sample Testing

Comments: A number of commenters were in favor of the section as

proposed. One of them stated that it provides further protection of

privacy and due process rights.

The ATA stated that split sample testing should only be required

for reasonable suspicion testing. One commenter, the Food Marketing

Institute (FMI), stated that there has been no demonstrated need for

split samples and suggested that split samples be allowed as an option.

The FMI recommended that an employer be allowed to choose the testing

lab and require the employee to pay for testing. One commenter believed

that the employer should not have to pay for the split sample test.

Another commenter suggested that the FHWA allow the same laboratory to

test the split sample so that employers could avoid both the additional

cost of blind sample testing and the necessity of a contract with

another laboratory.

STA United believed that part 40 and part 382 should explain which

sample is primary and which is secondary by milliliter example. STA

United stated that split sample testing is costly. The California

Department of Personnel Administration was opposed to split sample

testing.

FHWA Response: Because split sample testing involves the issue of

testing methodology, the regulations on split sample testing are being

written by the Office of the Secretary. The FHWA has decided to remove

this section and defer to the requirements in part 40. See the part 40

rulemaking published elsewhere in today's Federal Register, Procedures

for Transportation Workplace Drug and Alcohol Testing Program.

Canceled Tests

Comments: Several commenters to this section agreed with it as

written and cited the deterrent effect. One commenter recommended that

a retest should be performed if the employer requests it. Other

commenters recommended adding canceled, follow-up, random, and

reasonable suspicion tests to those that require a driver to resubmit a

sample. One commenter stated that the requirements of this section were

burdensome and costly and should be the responsibility of the testing

laboratories and MRO.

FHWA Response: Because canceled tests involve testing procedures

applicable to all modes of DOT, the FHWA has decided to remove this

section and defer to the requirements in part 40. See the part 40

rulemaking published elsewhere in today's Federal Register, Procedures

for Transportation Workplace Drug and Alcohol Testing Program.

Laboratory Notifications

Comments: The California Department of Personnel Administration

suggested that laboratory reports be sent directly to the employer.

FHWA Response: The FHWA has decided to remove this section and

defer to the requirements in part 40. See the part 40 rulemaking

published elsewhere in today's Federal Register, Procedures for

Transportation Workplace Drug and Alcohol Testing Program.

Medical Review Officer Notifications to the Tested Individual

Comments: One commenter stated that the prescription medication

affirmative defense to allegations of driving while using a controlled

substance should be removed. STA United stated that if a MRO does not

make contact with the employee, the MRO must include complete

documentation with the hard copy test result. The California Department

of Personnel Administration believed that the time limit allowed for a

MRO review should be restricted. The Department also believed that the

employer should instruct the employee to be available for a MRO

contact; the MRO to contact the employer within three days if unable to

contact the employee; and the employee to contact the MRO within three

days. One commenter supported the requirement for the employer to

contact the employee promptly if the MRO is unable to reach the

employee.

FHWA Response: Because MRO notification to the tested individual

involves a multi-modal procedural issue, the FHWA has decided to remove

this section and defer to the requirements in part 40. See the part 40

rulemaking published elsewhere in today's Federal Register, Procedures

for Transportation Workplace Drug and Alcohol Testing Program.

Medical Review Officer Notification to the Employer

Comments: One commenter believed that the MRO should be required to

send a signed written notification to the employer within three days of

the MRO's final completion of paperwork necessary to generate the final

report. Another commenter recommended that the MRO be allowed fourteen

days to mail the results.

One commenter recommended that the MRO should only be permitted to

use electronic transmission devices which provide confidentiality of

results; MROs should not be permitted to use a facsimile machine.

Another commenter supported the use of facsimile machines to transmit

controlled substances test results. One commenter believed that a

written report of the results was a burden; the MRO should only be

required to review and certify the results. STA United recommended that

the ``three day mail'' requirement be clarified. The commenter also

stated that the requirement that the name of the donor be provided by

the MRO compromises privacy.

FHWA Response: A signed, written notification from the MRO to the

employer identifying the driver and test results is essential to the

effective administration of this rule. If a motor carrier allows an MRO

to report controlled substances test results by the use of a facsimile

machine, the employer must control access to reports transmitted in

this manner.

The FHWA also disagrees with the comment that the MRO should be

required to send signed written notification within three days of the

MRO's final completion of paperwork and the commenter who recommended

that the MRO be allowed fourteen days to mail the test results. Three

business days after completion of the MRO's review of the test result

is sufficient time to both generate a controlled substances test result

report and begin the report transmission process to the employer.

Certain tests, such as a pre-employment/pre-duty or return-to-duty

test, require the employer to receive a negative test result before

allowing the employee to perform a safety sensitive function. An

excessive time limit in obtaining a controlled substances test result

may affect an employee's livelihood.

Employer Notifications

Comments: One commenter recommended that the employer not be

required to notify pre-employment controlled substances test subjects

that the MRO was unable to contact them, unless they requested the

results of the tests. One commenter stated that it is unrealistic to

require an employer to contact applicants who tested positive for a

controlled substance because they probably no longer want the job.

The Carolina Power & Light believed that there should be no

requirement that employees be notified after every test. Employers

should be allowed to communicate the test results in their own way.

FHWA Response: Notifying the driver of positive test results is

essential to fairness. The procedures contained in subpart H and

included in this rule are adequate to ensure notification. Yet, it is

desirable that review of applicant's tests be concluded in some way. In

the current drug testing program, tests are conducted and MROs hold

results indefinitely until a driver is contacted. It is only at the

point that a driver is contacted that the five day period begins to run

to verify a confirmed positive test result. To remedy that situation,

under this final rule, an employer is required to make a reasonable

effort to contact the applicant and inform the applicant that he/she

must contact the MRO immediately. If the applicant does not contact the

MRO after 5 days, the MRO will verify the test as positive and close

the donor's file rather than leave it open indefinitely.

Laboratory Recordkeeping and Record Retention

Comments: The IBT believed that because the requirements of this

section are adequately addressed in part 40, the section should be

removed. The OOIDA was in support of this section.

FHWA Response: The FHWA agrees. This section is removed.

Medical Review Officer Recordkeeping and Record Retention

Comments: Some commenters stated that they saw no compelling reason

for this requirement and recommended that employers be permitted to be

the custodians of test results.

FHWA Response: The FHWA does not agree that employers should be the

sole custodians of test results. Because the MRO makes controlled

substances test determinations, the MRO must also retain copies of test

results as a back-up and for use in compliance enforcement and in

resolving potential disputes involving test results.

Employer Record Retention

Comments: The OOIDA was in favor of the regulations as proposed.

Mobile Laboratory Services recommended that employers be allowed to

retain any copy of the custody and control form because employers often

do not get the copy that shows the controlled substances test results

from the MRO.

Roadway Express Inc. and ATA recommended that the record retention

period should be reduced to three years, consistent with other FHWA

record retention requirements. The Baltimore Gas & Electric Company

believed that a retention period should be assigned to each record to

eliminate errors in their maintenance.

FHWA Response: The FHWA disagrees with the commenter who stated

that the employer be allowed to retain any copy of the custody and

control form because employers do not always receive the employer copy

of the form. The employer is required to retain the employer's copy of

the custody and control form, and not, for instance, the copy of the

form which the testing laboratory sends to the MRO. The MRO might

change a laboratory confirmed positive test result to a verified

negative test result after affording the donor an opportunity to

present an affirmative defense.

The FHWA believes it must remain consistent with the other

operating Administrations who all have a five year recordkeeping

requirement for positive test results.

Reporting of Results in a Management Information System

Comments: One commenter stated that the amount of information

submitted in response to the annual reporting requirement should be

dependent on the number of persons subject to the rule. The DOT should

provide the annual reporting form and alcohol testing form free of

charge. One commenter suggested that the reporting year should be July

1 through June 30 with the due date in August of each year. Conoco Inc.

objected to the proposed annual reporting requirement and suggested

continuation of the current system.

FHWA Response: Annual reporting of results will assist the FHWA in

determining the need for future action on the programs. Without such

information, the FHWA has no way of discovering whether the use of

drugs and/or alcohol is decreasing or increasing. This information is

needed to reassess such things as the efficacy of the program, the

random testing rate, the need for various types of testing programs,

and whether additional countermeasures are necessary. Though the FHWA

wishes to simplify recordkeeping, it must maintain similar

recordkeeping requirements as other DOT modes, especially for those

employers subject to the jurisdiction of two or more Administrations.

The calendar year is used as the reporting year. The model forms

provided with this rule may be used to compile the annual report.

Access to Individual Records

Comments: Many commenters expressed their frustration with the lack

of a system of drug testing information under the current drug testing

rule. Many responded favorably to the question in the NPRM's preamble

about making release of such information a condition of employment as a

driver. Some went so far as to say that the program was meaningless

without some system, because drivers who test positive merely go to

work for another employer without ever being recertified as medically

qualified or taking a return-to-duty test. Other commenters strongly

opposed requiring information sharing as a violation of privacy rights.

FHWA Response: The FHWA agrees that the lack of shared information

has left the current drug testing program with a large hole through

which drivers can avoid the purpose of the program--to deter drug use

by drivers. Some drivers are continuing to use drugs, and when caught,

merely change employers. Section 382.413 of this final rule has been

designed to ensure that drivers complete the required rehabilitation

and return-to-duty tests. By making the information releasable only

pursuant to the driver's consent, privacy concerns are obviated.

Required Evaluation and Testing

Comments: NSWMA recommended that drivers who have tested positive

for controlled substances only be allowed to perform safety-sensitive

functions necessary to respond to an emergency under a motor carrier or

government escort.

FHWA Response: Though not stated expressly in the rule, it is

reasonable to allow a driver to temporarily continue to perform safety-

sensitive functions after a violation of the rule's prohibitions in an

emergency situation. In such a situation, an employer or government

official may not always be available to oversee the driver's action.

For example, a driver who has violated the rules may move a truck

carrying hazardous materials off of a bridge or a railroad track

crossing. These types of instances will be rare. If the driver is the

only available person at the scene capable of eliminating the imminent

danger of a threat to public safety, the driver should be allowed to

perform the safety-sensitive function only until the danger has ceased.

Disqualifications and Penalties

Comments: The IBT stated that a one year loss of driving privileges

for a refusal to submit to a required test is unduly harsh. A refusal

to test should be the same penalty as a positive controlled substances

test. The union stated that often it is unclear whether or not the

driver's words or behavior constituted a refusal to be tested.

The ATA recommended that an employee who tests positive for a

controlled substances test also be disqualified for 120 days for each

violation. DAC Services stated that the penalties proposed in the NPRM

should be made stricter, with the penalty for testing positive at least

as severe as a refusal to be tested. Roadway Express Inc. recommended a

120 day disqualification for the first offense and a lifetime

disqualification for the second offense. The employer stated that the

mere testing or even detection without significant job consequences for

positive tests will not deter controlled substances use. National MRO

stated that a verified positive test after a fatal accident should

trigger stricter penalties in addition to barring a driver from holding

a CDL. Another consortium, Bensinger/Dupont Inc., opposed the 60 day

disqualification for a second positive controlled substances test,

recommending, instead, a minimum of six random follow-up tests.

FHWA Response: The FHWA has not included any CDL suspensions or

other disqualifications from the final rule, including for a refusal to

test. The only driving prohibition period for a controlled substances

violation is similar to that for alcohol--completion of rehabilitation

requirements and a return-to-duty test with a negative result.

Motor Carrier Obligation to Promulgate a Policy on the Misuse of

Controlled Substances

Comments: The ATA and the Roadway Express Inc. stated that the

proposed NPRM details the educational material requirements to such a

degree that the employer is unduly restricted in material development.

Both commenters recommended that the employee have access to this

information upon request rather than requiring an employer to provide

every covered employee with a copy of the material. The employee does

not need to be informed of the controlled substances testing procedures

because they are already in the Department's regulations if the

employee wishes to consult them.

The IBT recommended at least one hour of training for employees

conducted by an instructor who is able to answer questions from the

participants, rather than the proposed requirement to notify employees

of the availability of this material.

FHWA Response: The FHWA believes that the motor carrier is not

unduly restricted in educational material development. The final rule

contains the minimum required educational material content. The FHWA

allows the employer considerable latitude regarding additional

materials and the form of dissemination. A live presentation is not

required. The regulations require that the educational materials must

be provided to the employee and that the employee and employer sign the

employer's notice of the availability of the materials.

Controlled Substance Training for Supervisors and Company Officials

See Limitations on Alcohol Use by Transportation Workers for

discussion of this section.

Referral, Evaluation and Treatment

See Limitations on Alcohol Use by Transportation Workers for

discussion of this section.

PART 395--HOURS OF SERVICE OF DRIVERS

Definitions

Comments: Several commenters supported requiring time spent in the

controlled substances testing process as on-duty time. The IBT

recommended including time spent traveling to and from the collection

site as on-duty time. Other commenters stated that the definition of

on-duty time should include return-to-duty testing.

The Western Company believed that including testing as on-duty time

would cause a significant burden on the industry.

FHWA Response: See the response to comments under Docket MC-92-19

above.

D. Docket No. MC-116--Other Comments Regarding Controlled Substances

Testing

Comments: The ATA stated that physicians who perform biennial

medical examinations and prospective employers should have access to

prior controlled substances test results without the need for an

employee's authorization.

The regulations require a CMV driver who receives a citation in an

accident to be tested, yet the employee may not receive the citation

until days after the accident, when any controlled substances in the

body present during the accident have dissipated.

The ATA stated that part 394 of the FMCSRs requires a motor carrier

to notify the FHWA of a fatality. The requirement to report controlled

substances test results poses difficulties, they believe, because it

may take up to 10 days to receive a controlled substances test result.

FHWA Response: The elimination of periodic controlled substances

testing obviates any need to provide for the release of prior

controlled substances testing information to physicians. Previous

employers may release prior controlled substances test results to

prospective employers, but only with the driver's written consent.

The FHWA does not believe, however, that 32 hours is an

extraordinary time period to conduct a controlled substances test. If a

citation is issued within 32 hours of the accident, a test must be

conducted.

Notification to FHWA by the employer is no longer required after

any accidents, because part 394 of the FMCSRs has been eliminated. See

58 FR 6726, February 2, 1993. Therefore, a motor carrier no longer has

to notify the FHWA regarding controlled substances test results as part

of a fatal accident report.

Comments: The College of American Pathologists stated that

Sec. 391.115(b) of the FMCSRs makes the driver responsible for

collecting the required sample and forwarding it to a National

Institute of Drug Abuse certified laboratory. The College stated that

the motor carrier should be responsible for ensuring that the required

sample is collected and sent to a proper laboratory.

FHWA Response: The final rule requires an employer to provide

necessary post-accident information, procedures, and instructions to

the employee prior to the operation of a CMV so that the employee is

able to comply with post-accident testing requirements. An employer

will not have control over a driver after all accidents. The driver is

responsible in some situations to ensure collection of a specimen or

sample.

Section-by-Section Analysis

The Department-wide common preamble, Limitation on Alcohol Use by

Transportation Workers, published elsewhere in today's Federal

Register, should be reviewed for a discussion of each section's common

requirements and intent. Discussion in the common preamble is not

repeated here. This analysis is confined to the sections and parts of

sections which are not considered in the part of the common preamble

entitled, ``Overview of the Operating Administration's Final Rules.''

The drug and alcohol testing requirements are, to the extent

possible, identical. For example, the preemptive effects of the Omnibus

Act are the same for both the alcohol and drug elements of the program,

and is discussed as a whole. In contrast, there is a difference between

the exception criteria to a pre-employment alcohol test and a pre-

employment drug test, and both provisions are discussed.

Subpart A--General

Section 382.101 Purpose

The purpose of this rule is to establish employer-based alcohol and

controlled substances testing programs to help prevent accidents and

injuries resulting from the misuse of alcohol and controlled substances

by drivers of commercial motor vehicles. This rule prohibits any

alcohol misuse that could affect performance of driving a CMV,

including: (1) Use on the job; (2) use during the four hours before

driving a CMV; (3) having prohibited concentrations of alcohol in the

system while driving CMVs; (4) use during 8 hours following an

accident; and (5) refusal to take a required test. This rule prohibits

any controlled substances use, without a licensed doctor of medicine or

osteopathy's written prescription.

This rule requires pre-employment, reasonable suspicion, random,

post-accident, return-to-duty and follow-up testing using procedures

specified in 49 CFR part 40. These procedures use an evidential breath

testing device for alcohol testing. For controlled substances testing,

urine specimen collection and testing by a laboratory certified by the

Department of Health and Human Services is required. Additional testing

under the authority of this rule for drugs other than those specified

in part 40, without the permission of the Department, is strictly

prohibited. The primary purpose of the testing provisions is to deter

misuse of alcohol and controlled substances.

Following a determination that an employee has misused alcohol,

this rule requires the employee's removal from safety-related functions

and provides minimum requirements for return to performance of safety-

sensitive functions:

(1) Following a determination that the employee has violated the

alcohol prohibitions in subpart B of these rules, including having a

test result of 0.04 BAC or greater, an employee must be removed from,

and cannot be returned to, a safety-sensitive function until, at a

minimum,

(a) The employee undergoes evaluation, and where necessary,

rehabilitation,

(b) A substance abuse professional determines that the employee has

successfully complied with any required rehabilitation, and

(c) The employee undergoes a return-to-duty test with a result of

less than 0.02.

(2) An employee with an alcohol concentration of 0.02 or greater

but less than 0.04 is not permitted to perform safety-sensitive

functions for a minimum of 24 hours.

(3) Following a determination that an employee has misused

controlled substances, as determined through testing, this rule

requires the employer to remove the employee from safety-related

functions until, at a minimum,

(a) The employee undergoes evaluation, and where necessary,

rehabilitation,

(b) A substance abuse professional determines that the employee has

successfully complied with any required rehabilitation, and

(c) The employee takes a return-to-duty test with a verified

negative test result.

This rule mandates reporting and recordkeeping requirements and

provide for alcohol and controlled substances misuse information for

employees, supervisor training, and referral of employees to substance

abuse professionals (SAP).

Section 382.103 Applicability

The FHWA's existing drug rules generally cover persons who perform

sensitive safety-related functions in interstate commercial

transportation on highways. They affect approximately 3 million persons

and include commercial truck and motor coach drivers. This final rule

for alcohol and controlled substances testing covers the same

population, but also extends coverage to both inter- and intrastate

truck and motor coach operations (including those operated by Federal,

State and local government agencies, church and civic organizations,

Indian tribes, farmers, custom harvesters, for-hire and private

companies) as required by the Omnibus Act. This increases the total

number of persons covered by the alcohol and controlled substances

testing rules to over 6 million.

The FHWA's rule focuses on function rather than a defined job or

position. An individual's job may encompass several different

functions, some of which are not safety-sensitive. Since alcohol is a

legal substance, alcohol use is relevant only to the extent its use

coincides with performance of a safety-related function. As a safety

regulatory matter, for example, the rule does not prohibit a school bus

driver from having a drink before or while performing functions that

are not safety-sensitive (as long as no other regulation is violated).

For example, if the school bus driver is receiving all-day training on

retirement planning along with non-safety employees and the other

employees can have a drink at lunch, the school bus driver may also,

provided the driver will not be operating a school bus within 4 hours.

Testing only applies to drivers operating in the United States.

Consistent with CDL requirements, this rule does not apply to drivers

operating outside the 50 States and the District of Columbia. Drivers

operating in territories of the United States, such as Guam or Puerto

Rico, therefore, are not covered by this rule.

At this time, testing also does not apply to those drivers who

operate in the United States, but normally report for duty in a foreign

country, whether or not the employer is foreign-owned or the employee

is a foreigner. An NPRM, published elsewhere in today's Federal

Register, proposes, however, to add foreign-based drivers operating in

the United States to the program. In the meantime, only foreign and

American citizens who report for duty at an employer's terminal in the

United States are subject to these requirements.

Section 382.105 Testing Procedures

The final rule requires that employers ensure that all alcohol and

controlled substances testing conducted under these rules complies with

the procedures in the amended 49 CFR part 40. See Procedures for

Transportation Workplace Drug and Alcohol Testing published by the

Department elsewhere in today's Federal Register. The FHWA rule

incorporates by reference the amended 49 CFR part 40.

Section 382.107 Definitions

See Limitations on Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.109 Preemption of State and Local Laws

See Limitations on Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.111 Other Requirements Imposed by Employers

See Limitations on Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.113 Requirement for Notice

Before performing an alcohol or controlled substances test under

these rules, the employer must notify the driver being tested that the

alcohol or controlled substances test being administered is required by

the rule. The notice can be oral or written. Use of the U.S. Department

of Transportation Breath Alcohol Testing Form or the controlled

substances custody and control form, whichever is appropriate, may

serve as the required notice. An employer shall not falsely represent

that a test administered under their own or other authority independent

of FHWA's authority is being administered under FHWA requirements.

Section 382.115 Starting Date for Testing Programs

Interstate motor carriers subject to 49 CFR part 391, subpart H

prior to the effective date of this rule must implement the split

sample urine collection procedure within six months of the publication

date of this final rule. The split sample urine collection procedures

for controlled substances testing have been codified in the regulations

since the original FHWA controlled substances testing regulations went

into effect on December 21, 1988, though, until now, it was merely an

option and not required. See 49 CFR 40.25(f)(10). Therefore, employers

currently subject to part 391 controlled substances testing should not

be overly burdened in changing their programs to incorporate the split

sample requirement. The Department is changing the procedures slightly

with respect to the laboratory that will perform the analysis of the

split sample. Those changes are contained in the part 40 amendments

published elsewhere in today's Federal Register.

Except for the split sample urine collection implementation date

for interstate motor carriers subject to part 391, subpart H, all large

employers must implement the requirements of the rule beginning on

January 1, 1995. Small employers must implement the rule beginning on

January 1, 1996. The size of the employer is determined by the number

of drivers it employs. Interstate motor carriers currently subject to

49 CFR part 391, subpart H must switch to implementation of part 382 on

the appropriate date. An employer beginning operations before the

applicable implementation date of part 382 is required to implement

part 391 drug testing only, and then will be required to implement part

382 alcohol testing and change to part 382 drug testing on the

appropriate implementation date.

The staggered timetable should allow smaller employers to join

alcohol and controlled substances testing programs already established

by larger employers or preexisting consortia, which may reduce their

costs. The implementation schedules also take into account the time

needed by manufacturers to produce the required breath test devices.

All employers must have an alcohol and controlled substances testing

program in compliance with this final rule in place two years after the

effective date of this rule.

Subpart B--Prohibitions

This rule prohibits certain drug and alcohol usage by CMV drivers.

A driver is prohibited from performing, and an employer is prohibited

from using a driver to perform, safety-sensitive functions after a

positive drug test result or an alcohol test result indicating a 0.02

BAC, regardless of when the drug or alcohol was ingested and regardless

of whether or not the driver is under the influence of alcohol or

drugs, as defined in Federal, State, or local law.

Section 382.201 Alcohol Concentration

See Limitations of Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.203 Alcohol Possession

This section prohibits a driver from possessing unmanifested

alcohol products while driving a CMV. The FHWA has had a long-standing

requirement that no driver shall drive a CMV while possessing any

product containing alcohol, regardless of its alcohol content. The FHWA

will extend this requirement to all CMV drivers subject to this rule. A

driver may not possess medication, food, or other alcohol-containing

products that are not specifically manifested to be on the truck or

bus. A manifested alcohol product is any product that is being

transported on the CMV as a part of the shipment of freight.

Section 382.205 On-Duty Use

See Limitations of Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.207 Pre-Duty Use

See Limitations of Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.209 Alcohol Use Following an Accident

See Limitations of Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.211 Refusal to Submit to a Required Test

The FHWA will disqualify drivers for one year, under the procedures

in 49 CFR part 386, if a driver refuses to submit to a post-accident

test after a fatal accident. See Sec. 382.507.

An applicant's or driver's refusal to submit to a pre-employment

test or a return-to-duty test will not trigger the need for evaluation

by a SAP. In those cases, the applicant or driver is not performing a

safety-sensitive position from which to be removed. Since those tests

are a condition precedent to starting or returning to perform safety-

sensitive functions, the applicant or driver simply could not be hired

or returned to duty.

Section 382.213 Controlled Substances Use

The FHWA currently prohibits the use of controlled substances by

drivers (49 CFR Sec. 392.4). Drivers who use drugs are rendered

medically unqualified to drive in interstate commerce (49 CFR

Sec. 391.41(b)(12). Similarly, this section prohibits drivers from

using controlled substances, except pursuant to a doctor's

prescription. The doctor must also advise the driver that the substance

does not adversely affect the driver's ability to safely operate a

commercial motor vehicle. Employers are prohibited from permitting a

driver to perform safety-sensitive functions who uses drugs. The

employer may require a driver to inform it of any therapeutic drug use

otherwise prohibited by this section.

Section 382.215 Controlled Substances Testing

Similar to the current drug testing program, drivers are prohibited

from driving, and employers are prohibited from using a driver, who

tests positive for drugs or with a 0.04 or greater BAC. The prohibition

remains in effect until the driver complies with the requirements of

section 382.605, including evaluation by a SAP.

A driver who is prohibited from performing safety-sensitive

functions may be assigned to non-safety-sensitive functions until such

time as the driver complies with the requirements for returning to duty

in this part.

Subpart C--Tests Required

The FHWA's current drug testing regulations require pre-employment,

periodic, reasonable cause/suspicion, post-accident and random tests

(testing also is required for drivers who seek to return to work

following a positive test or refusal to submit to a test). The Omnibus

Act requires all these forms of testing except periodic tests, which

generally are performed as part of required physical examinations for

some drivers operating in interstate commerce, and may be suspended if

certain conditions are met.

Although periodic tests are discretionary under the Omnibus Act,

the FHWA will not to require or authorize periodic testing for alcohol

or controlled substances. Of course, employers that wish to continue to

perform periodic testing under their own authority may do so.

Section 382.301 Pre-employment/Pre-Duty Testing

In order to give employers flexibility, this section allows an

employer to forgo administration of a pre-employment test if the driver

has had an alcohol test conducted under any DOT agency's alcohol misuse

rule following part 40 procedures with a result less than 0.04 within

the previous six months and the employer ensures that no prior employer

of whom the employer has knowledge has records showing a violation of

these rules within the previous six months. Generally, this means that

when checking prior employers to obtain test results within the past

six months, the new employer must also determine that the prior

employers have no records of a violation of an OA alcohol misuse rule

within 6 months. The new employer wishing to avail itself of this

exception, must check all known prior employers within the last six

months.

The exception for pre-employment drug testing is narrower. In

addition to the above criteria, there are participation requirements,

which are carried over from the current rule, Sec. 391.103(d).

In order to avail itself of either exception, an employer must

obtain the information listed in paragraph (d).

In the current testing program, the FHWA expects employers to

conduct pre-employment testing of drivers each time a driver returns to

work after a lay-off period when the driver does not continue to be

subject to random drug testing or has been employed by another entity.

However, if a driver is laid off, but continues to be subject to random

drug testing and is not employed by another entity, a pre-employment

test is not required under this section.

The following examples describe situations in which an employer

must perform pre-employment tests.

1. A new employer just started operating CMVs in commerce. All

drivers that would be hired to drive CMVs subject to this rule will

fall under the pre-employment testing requirements.

2. Employer A purchases Employer B. The pre-employment testing

requirements would not be applicable to Employer A, because the

individual's employment status has not been interrupted.

3. All scenarios in which an employer name changes occur, the pre-

employment requirements would not apply.

4. An employer is organized in divisions and subsidiaries. In any

case where a driver would be transferred from one division to another,

the pre-employment requirements would not apply. Under this scenario

the employer is one corporate entity. The situation where a driver

transfers from one wholly owned subsidiary to another, a pre-employment

test would be needed, because each subsidiary is considered a separate

corporate entity.

5. A driver usually drives vehicles for which a CDL is not required

to operate, but then is required to obtain a CDL and drive CMVs for the

same employer. A pre-employment test would be required because the

driver will be subject to part 382.

6. Any time a driver is hired and has not been part of a drug

program that complies with the FHWA regulations for the previous 30

days, a pre-employment drug test is required.

When any pre-employment test is required, an employer must actually

test the individual or meet all of the respective requirements for pre-

employment exceptions for alcohol or controlled substances.

Section 382.303 Post-Accident Testing

The definition of accidents that trigger a post-accident test is

contained in 49 CFR Sec. 390.5. As soon as practicable following an

accident, an employer shall test a surviving driver for alcohol and

controlled substances, when any person involved in the accident has

been fatally injured or the driver received a citation for a moving

traffic violation arising from performance of a safety-sensitive

functions with respect to the accident. The need for testing is

presumed. Any decision not to administer a test must be based on the

employer's determination, using the best information available at the

time, that a human being did not die or that the employer's CMV driver

was not cited for a moving traffic violation arising from the accident

within such time that a test could be conducted within 32 hours after

the time of the accident.

Employers are also obligated to provide information to their

drivers to allow them to be tested after an accident. This is

especially important for employers whose operations occur in remote

areas. Drivers are then obligated to follow the instructions and see

that the tests are conducted. Any driver subject to post-accident

testing who leaves the scene of an accident before a test is

administered or fails to remain readily available for testing may be

deemed by the employer to have refused to submit to testing. Such a

refusal is treated as if the driver had a verified positive controlled

substances test result or had an alcohol test result of 0.04 or

greater. The employer is responsible for judging whether the driver

remained readily available and must record any failure to administer

tests within the time periods provided.

Employers should make every effort possible, given the

circumstances surrounding the accident, to ensure that the driver is

available for a post-accident test. This, of course, does not mean that

necessary medical treatment for injured people should be delayed or

that a driver cannot leave the scene of an accident for the period

necessary to obtain assistance in responding to the accident or to

obtain necessary emergency medical care.

Testing of drivers for drugs must be initiated prior to the 32nd

hour after the accident. As in alcohol testing, if the citation is not

issued by the key hour or testing is not initiated by that hour, there

is less likelihood of obtaining a meaningful result. The employer then

will have to cease attempts to administer the test and must explain why

the employer was unable to administer a drug test. Under no

circumstances is an employer authorized by this rule to conduct alcohol

or drug testing on dead CMV drivers.

In lieu of administering a post-accident test, employers may

substitute a breath or blood test for the use of alcohol and a urine

test for the use of drugs administered by on-site police or public

safety officials under separate authority. This may be particularly

useful if that test can be administered before the employer can get to

the scene. These local authorities often are first to arrive at an

accident site, particularly if the accident occurs in a remote area,

and sometimes are equipped to conduct field alcohol breath and

controlled substances tests. The employer is allowed to substitute a

blood or breath alcohol test and a urine drug test performed by such

local officials, using procedures required by their jurisdictions, if

the employer obtains the test results from the local jurisdiction or

the driver.

An employer substituting a law enforcement-based post-accident test

must take the actions appropriate to the result--not using the driver

for 24 hours for an alcohol test result between 0.02 and 0.039 BAC, and

referral to a SAP for an alcohol test result of 0.04 BAC or greater or

a positive drug test result.

For example, a rental car company's airport shuttle bus driver is

involved in an accident on an airport access road with a non-CMV driver

and the non-CMV driver is killed instantly. The CMV driver must be

tested under this rule for both alcohol and controlled substances. An

airport police officer at the scene determines, under authority

independent of this rule, that the CMV driver should be tested for

alcohol use. The police officer requires the CMV driver to submit to a

blood test at the airport health clinic using procedures developed by

the airport police department for such alcohol use testing. When the

rental car company obtains the blood test result from either the driver

or the airport police department, such a test will be allowed to

substitute for the alcohol test. However, the rental car company will

have to require its CMV driver to also submit to a controlled

substances test under this rule, since both tests are required after a

human being is killed.

Another example could involve an air freight delivery truck driver

who falls asleep at the wheel, her truck runs into a median barrier

causing the front axle to be bent and inoperable and requiring the

vehicle to be towed from the scene. The investigating State patrol

officer, based upon observations and material found at the scene, has

cause to believe the driver was using an illegal substance and the

driver was speeding excessively. The officer cites the CMV driver for

excessive speed and requires the CMV driver to submit to urine testing

at a local hospital. The urine is sent, as required by that State's

laws, to the State's forensic crime laboratory for drug testing. When

the employer receives the test result from the driver or State patrol,

the employer may use the result, regardless of whether the laboratory

used Department of Health and Human Services or part 40 procedures for

testing the specimen, rather than requiring the driver to submit to

another drug test.

Section 382.305 Random Testing

See Limitations of Alcohol Use by Transportation Workers for a

discussion of adjusting the random alcohol testing rate based on the

industry positive rate. The alcohol testing rate is set initially at

25%. See also the NPRM on adjusting the random drug testing rate,

published elsewhere in today's Federal Register.

This section requires random alcohol testing that is limited to the

time period surrounding the performance of safety-related functions. A

driver may only be tested 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. Obviously, the best time to test is before the driver

begins to perform the safety-sensitive function. Detection at that

point will prevent the driver from actually performing the function

while he or she has alcohol in his or her system. However, if the

driver understands that a random test will only be administered before

he or she begins work and there is an opportunity to drink during work,

deterrence is limited. The ability to test just before, during or just

after performance increases the deterrent effect and may enable

detection of drivers who use alcohol on the job. The purpose of the

concept of ``just before'' and ``just after'' is to avoid the problem

that some safety-sensitive functions could not be interrupted for the

performance of a test (e.g., driving a school bus). It is intended to

be close enough to the actual performance of the safety-sensitive

function, however, that the test results will clearly indicate that the

driver has engaged in the misuse of alcohol when performing or about to

perform those functions.

This rule, however, will not place such a requirement on controlled

substances testing. Controlled substances testing may be performed at

anytime while the driver is at work for the employer. The driver may be

doing clerical or mechanical repair duties at the time of notification

by the employer.

This rule will provide that employers require that each driver

selected for random testing proceed to the testing site immediately. In

the event the driver is performing a safety-sensitive function when

notified, the employer must ensure that the driver ceases the function,

consistent with safety, and proceeds to the site as soon as possible.

An employer may not delay a test based upon a consignor's,

consignee's, or employer's demand to move freight or passengers.

Employers should plan their notifications to reduce conflict with such

demands affecting their random alcohol and drug testing programs.

However, employers are expected to notify and conduct tests on drivers

as soon as possible after a selection of drivers is made. This means

that when a selection of drivers has been made, the employer shall

require all drivers selected to submit to testing at their first

available time in the terminal or other appropriate location. Employers

shall not delay testing for drivers until just before the next

selection of drivers names. Although the FHWA has allowed this practice

in the past, the FHWA believes that some employers may use such an

interpretation to perform quasi-reasonable suspicion tests of drivers

by manipulating the timing of such tests, rather than conducting random

testing that is not based on individualized suspicion. In addition,

employers may have been delaying testing to move freight or allow a

driver with a problem to ``clean up'' prior to taking the test. Under

normal circumstances, employers shall not dispatch selected driver on a

new trip, from a work reporting location where other drivers are or

have been tested, until to only test drivers once every few years.

Rather, it will have to test at least once a year and establish a

program that will ensure that there is no period of time during which

employees know testing ``is done for the year.'' For example, if an

employer is required to conduct only two tests and that number of tests

are completed by mid-summer, the employer's program must ensure that

more tests could be conducted before the end of the calendar year. Such

an employer could conduct random testing every quarter or could

randomly select the month, within the next 12 months, for conducting

the next test(s). Depending on the month selected, the employer may in

fact test more than once in a calendar year. Using a revolving

calendar, the first selection and test is made in May 1995 for the

calendar year 1995; the next selection must be for the 12 months from

May 1995 to April 1996. In addition, if a consortium sets up a testing

pool where this scenario would be applicable, the consortium must also

follow this procedure.

Another alternative is for employers to join a consortium with

testing pools large enough so that their drivers are always subject to

random testing. Although the FHWA has eased the burden on small

employers in a number of ways, these restrictions that may raise the

effective annual random testing rate are necessary to achieve

deterrence in alcohol and controlled substances use. A small employer,

of course, can achieve the benefits of a lower random rate without the

higher costs of meeting the deterrence requirements if it joins a

consortium.

Random testing pools may be formed in a variety of ways. To promote

efficiency and reduce costs, particularly for smaller employers and

employers subject to more than one DOT agency rule, the FHWA permits

the combination of geographically-proximate drivers covered by

different DOT agency rules into one pool. To maintain fairness and the

equal chance of each driver to be selected and tested, certain

conditions must be met. For example, drivers in any industry who travel

most of the time should constitute one pool; others who remain in the

vicinity of the testing site should be in another, as long as the

selection and testing rates are the same. However, if testing is

required of drivers immediately upon selection or whenever they first

return to the testing location after their selection (but still

unannounced), there would be no need for separate pools. Any acceptable

method must ensure that each driver has an equal chance of actually

being tested. Although multi-modal pools will be permitted, other

specific DOT agency requirements will have to be met, such as the FAA

requirement for prior approval of consortium-operated random testing

pools.

If the employer joins a consortium, this rule will permit the

calculation of the annual rate on either the total number of drivers

for each individual employer or the total number of covered employees

subject to random testing by the consortium's pool covering the

employer. This will mean that a consortium member could have less than

its required number of random tests conducted if the overall consortium

rate equals the required rate. Thus, if Employer A has ten drivers and

the consortium has 500 drivers in the pool covering Employer A, and a

50 percent rate applies, if Employer A chooses to have the rate based

on the consortium, the consortium must conduct at least 250 tests even

if only four or fewer drivers of Employer A are tested. So long as each

driver has an equal chance of being tested each time the consortium

conducts random tests, the requisite deterrence factor remains.

Membership in a consortium, as noted earlier, should improve deterrence

for small companies because their drivers will continue to perceive an

equal chance of being selected and tested throughout the year.

The FHWA has had many inquiries regarding compliance by owner-

operators with the random testing requirements in Part 391. It has been

the FHWA's view and will continue to be the view that owner-operators

cannot conduct their own random testing program. Owner-operators must

meet the conditions of random testing, which include that the random

selection process must provide for testing to be unannounced and the

timing of such test unpredictable. The FHWA believes that the

requirement of unannounced testing requires that an owner-operator must

join a consortium or testing pool that includes at least two or more

drivers. Owner-operators are expected to join consortiums that have at

least two or more covered employees. The other covered employees may be

subject to aviation, railroad, mass transit, maritime or pipeline

industries, provided that the applicable regulations for those other

industries allows inclusion of CMV drivers in their testing pools.

Upon each of the implementation dates for this rule, the FHWA will

remove, for the employers subject to the applicable implementation

dates, the current prohibition that intrastate commercial motor vehicle

drivers shall not be included in random testing selection pools with

interstate commercial drivers. As this new rule applies to all inter-

and intrastate drivers with CDLs, there will be no need for the

separation. However, the FHWA will prohibit the inclusion in the random

selection pools of any employees not subject to any of the DOT agency

testing rules. When a representative of the FHWA or any DOT agency is

investigating an employer subject to these rules, the representative of

FHWA must determine whether the required testing rate has been met.

Prohibiting non-drivers and other non-DOT covered employees from

participating in the same random selection pools will assist the

employer in complying with these rules, especially in ensuring that

drivers are tested at the required minimum annual percentage rate.

If a driver works for two or more employers subject to FHWA or DOT

agency regulations, the driver must be in all of the employers' random

testing programs.

When drivers are off work due to long-term lay-offs, illnesses,

injuries or vacations, the employer has three options. First, the

driver's name could be skipped and the next driver's name on the

selection list could be selected and tested. If this occurs, the

employer must keep documentation that the driver was ill, injured, laid

off, or on vacation and that the driver was in the random selection

pool for that cycle. Second, the employer could remove the driver's

name from the selection pool for that cycle. If this is done for drug

testing and the driver is out of the program for more than 30 days, the

pre-employment testing provisions of this rule will apply. Finally, the

employer could set the driver's name aside until the driver comes back

from the extended leave and the employer would conduct the test at that

time. The employer shall not, however, notify any driver to submit to a

test while the driver is off work due to these extended leave periods.

Employers with seasonal fluctuations in the number of drivers actually

driving should adjust each random selection episode to reflect the

fluctuation, thereby ensuring an equal chance of all drivers being

selected.

A consortium that performs selection and/or testing services as

agents for the employer must prepare and provide to the employer

complete and comprehensive descriptions of the procedures used by the

consortium. An employer must have this information readily available

for inspection. The consortium, and an employer who does not use a

consortium, must include in these descriptions: how the random

selection pool is assembled; the method of selection and notification

of drivers; the location of collection sites (at terminals, clinics,

``on the road'', etc.); methods of reporting the test results on each

driver; and summary reports of the consortium's program. Also,

documentation must be provided that the consortium is testing at the

prescribed minimum annual percentage rate for alcohol and/or controlled

substances. Each employer is at no time relieved of the duty to comply

with each requirement of this rule.

Section 382.307 Reasonable Suspicion Testing

See Limitations of Alcohol Use by Transportation Workers for

discussion of the majority of the elements of this section.

In the FHWA rule, only one supervisor is required to make the

reasonable suspicion determination. That supervisor may not, however,

conduct the alcohol test on the driver. Documentation of the grounds

for reasonable suspicion to require a controlled substances test must

be made and signed by the supervisor within 24 hours of the observed

behavior or before the results of the test are released, whichever is

later.

Section 382.309 Return-to-Duty Testing

See Limitations of Alcohol Use by Transportation Workers for

discussion of this section.

Section 382.311 Follow-Up Testing

See Limitations of Alcohol Use by Transportation Workers for

discussion of this section.

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

Confidentiality

Section 382.401 Retention of Records

To provide for FHWA oversight of the alcohol and controlled

substances testing programs and to protect driver confidentiality, an

employer is required to maintain, for a specified period, in a secure

location with controlled access, certain records of its alcohol and

controlled substance use prevention program. This section itself does

not require any records to be generated. Other sections of the rule

does that. This section merely sets forth the retention periods for

records generated pursuant to other sections of the rule.

The records may be included in personnel records that have

controlled and secure access only by authorized personnel. The FHWA is

requiring all documents be maintained in accordance with Sec. 390.31,

which sets forth requirements for copies and long-tern storage of

documents, including computer storage systems. Though the records may

be maintained anywhere, the employer must make them available to an

FHWA representative, upon two days notice, at the employer's principal

place of business.

Section 382.403 Reporting of Results in a Management Information

System

For oversight purposes, each employer will be required to generate

and retain, at a minimum, an annual calendar year summary of the

results of its alcohol and controlled substances prevention program for

each calendar year. The FHWA will randomly select a sample of employers

from all employers subject to part 382. The sample of employers will be

large enough so that the sample statistics will have a tolerable error

of plus or minus one percentage point in a 99 percent confidence

interval. For example, this means the FHWA will be 99 percent confident

that the actual industry positive rate is within plus or minus one

percentage point of the sample statistics.

Employers selected to submit data will be notified by mail during

the month of January of the year in which the data is due. For example,

an employer who is selected and notified in January 1998 must report

data for calendar year 1997 by March 15, 1998. The notice to submit

data will specify the name and address where the data are to be

submitted and enclose copies of both a long and a short ``EZ'' form.

Employers will have the option to submit either form by electronic

transmission and will receive information on how to submit the forms

electronically.

Previous versions of the forms were included in the NPRMs [57 FR

59409] as appendix B to 49 CFR part 40. The FHWA foresees that the

forms or instructions may be changed in the future to make them more

understandable based on future comments. Therefore, the most current

versions of the long and short ``EZ'' forms are contained in this

document for informational purposes only as Illustrations I and II in

the Appendix to this document respectively. This appendix will not

appear in the Code of Federal Regulations. The FHWA is not soliciting

employers to submit data by including the forms in this document. The

FHWA will not enter information into the MIS from unsolicited

respondents because the sample is random in nature. The acceptance of

unsolicited responses would bias the sample. The aggregation of

information collected from solicited reports will be utilized for

program analysis and to respond to requests for information from

Federal agencies, members of Congress, and the general public.

Employers whose drivers had any verified positive controlled

substances test results or any alcohol test results of 0.02 or greater

in the preceding calendar year must utilize the long form. Employers

whose drivers had no verified positive controlled substances test

results and no alcohol test results indicating alcohol concentrations

of less than 0.02 in the preceding calendar year will be allowed to

utilize the short form. Employers whose drivers had refused to test in

the preceding calendar year will be allowed to utilize the short form

if no drivers had verified positive controlled substances test results

or alcohol test results indicating concentrations 0.02 or greater in

the preceding year. Controlled substances test results must be reported

for the calendar year in which the MRO made the final determination of

the test result regardless of the date the specimen was collected. For

example, a final determination of a controlled substances test result

made by a MRO on January 2, 1996, for a specimen collected on December

30, 1995, must be included in the data for calendar year 1996.

Within Section B (Covered Employees) of both the long and short

``EZ'' forms, employers must submit the number of covered employees in

each category subject to testing under the alcohol and controlled

substances testing regulations of more than one DOT operating

administration (OA), identified by OA. As formulated by the Department,

employers who are subject to the alcohol and/or controlled substances

testing regulations of two or more OAs must submit data to each

regulating OA for those employees covered by that OA's rule. Employees

who perform functions covered by more than one OA should be identified

by their employer under the covered position that they will be

reported. Data on dual covered employees should be reported to the

appropriate OA.

The issue of multi-modal coverage affects railroads, aviation,

maritime, and pipeline safety operations. Although many commenters

suggested that all CDL holders in the various industries should report

to their primary OA, the OAs believe that reportability should be

determined by employee function. Therefore, drivers who are subject to

the alcohol and/or controlled substances testing regulations of more

than one OA must be reported as follows:

For pre-employment and random testing, a driver should be reported

to whichever OA covers more than 50% of that driver's function. If the

driver is subject to three or more OA rules, the employer must

determine which function the driver performs the greatest percentage of

the time and report the pre-employment and random testing results to

the OA covering the greatest percentage of the driver's duties, e.g.

driving CMVs 45 percent of the time, flying airplanes 35 percent of the

time, and operating railroad equipment 30 percent of the time. For

post-accident and reasonable suspicion testing, however, reportability

should be determined by the function the driver was performing at the

time of the accident or incident. Finally, for return to duty and

follow-up testing, the employee should be reported to the same OA to

whom the initial positive controlled substances test or alcohol test

indicating a concentration of 0.04 or greater was reported. The FHWA

must stress here that, although the driver has been tested and is

reported to other DOT agencies under their regulations, the driver is

prohibited from operating any CMV as required by Subpart E of this

rule.

Section 382.405 Access to Facilities and Records

See Limitations of Alcohol Use by Transportation Workers for

discussion of this section.

Section 382.413 Release of Alcohol and Controlled Substances Test

Information by Previous Employers

Paragraph (a) restates Sec. 382.405(b) in terms of the employer. An

employer may obtain any of the information retained by other employers

under part 382, pursuant to a driver's consent.

Paragraph (b), by contrast, provides that an employer shall obtain

certain elements of that information, also pursuant to the driver's

consent. This merely makes mandatory that which employers have had the

option to do under the current drug testing program--make release of

previous testing information a condition of employment as a driver.

Information on alcohol and controlled substances testing results from

the driver's previous employers must be obtained generally before using

the driver. An employer is, of course, free to make release of any

information a condition of employment, though this section only

requires certain information.

Since the information is releasable by the previous employer only

pursuant to a driver's written authorization, an employer must make

obtaining such authorization a condition of the driver performing

safety-sensitive functions for the employer. Requiring the driver's

consent will ensure that the information remains confidential and is

released only to the extent authorized by the driver. The protections

of Sec. 382.405 remain in full effect, including allowance of the re-

release of information also only pursuant to the driver's consent.

The information to be released under this section is limited to

positive controlled substances test results, alcohol test results of

0.04 or greater, and refusals to be tested, for the two years preceding

the date of inquiry. None of the other information required to be

maintained by the employer in this rule is required to be released

under paragraph (b). Restricting the content of the mandatory

inquiries, by not requiring negative drug test results and alcohol

tests with results less than 0.04 to be obtained, should minimize the

burden of compliance on employers.

This section is necessary to effectuate the referral, evaluation,

and treatment requirements of the rule. Whereas the NPRM proposed a

system of information and penalty suspensions tied to the driver's CDL,

this final rule includes no CDL consequences because the law-

enforcement based testing option has not been chosen. Licensing

agencies would be understandably reluctant to issue suspensions based

solely on the results of employer-based tests, without affording the

driver a review process.

Comments to the dockets and experience in administering the current

drug testing program make it clear that some system of information is

necessary to give effect to the requirements of the rule. One of the

major problems with the current drug testing rule is that drivers who

test positive merely apply to work with a different employer without

taking the required retest or becoming medically recertified to drive.

The new employer has no clear way and, unfortunately, too often, no

incentive to determine if the driver-applicant is avoiding the

requirements. With the rehabilitation requirements in this rule over

and above those in the current drug testing program, the incentive to

avoid them will only be increased.

The problem is particularly acute in the motor carrier industry,

due to its size and turnover rate. Of the approximately 270,000 known

interstate carriers, about 10% enter and leave business each year.

Adding intrastate carriers, also covered by this rule, only serves to

increase the number of carriers in flux. Similarly, of the

approximately 6.6 million drivers covered by the rule, it is

conservatively estimated that 20% work for a different employer from

one year to the next. Given these numbers, it is not difficult to see

the potential for getting lost and avoiding the rule's requirements,

especially where there is no tracking system being used, such as the

CDL Information System.

Sharing information on recent positive tests, and the requirement

in paragraph (g) that employers obtain proof of completion of

rehabilitation and return-to-duty test requirements after positive

tests, is not such a tracking system. It will help keep drivers, and

employers, from avoiding evaluation and possible treatment following a

violation, however. Again, it must be emphasized that this section

requires nothing that could not be willingly accomplished by employers

under the current rule. An employer could make release of prior results

a condition of employment as a driver, and should require drivers with

positive tests to prove they have been retested and medically

recertified as qualified. Employers are, after all, prohibited from

using a driver it knows has tested positive but has not been

recertified and tested negative. By making such inquiries and

conditions mandatory, this section merely sets forth a standard of

knowledge for new employers to comply with the rule.

An employer that learns that a driver-applicant is prohibited from

driving need not refer the driver to a SAP for evaluation and

treatment. The employer must, however, obtain proof of a SAP evaluation

and return-to-duty test before using the driver-applicant. Therefore,

drivers with positive drug test results, alcohol test results of 0.04

or greater, or refusals to test should either maintain copies of

subsequent SAP evaluations and return-to-duty tests, or should also

consent to release of them along with the required information, in

order to show compliance with the rule. Similarly, of the approximately

6.6 million drivers covered by the rule, it is conservatively estimated

that 20% work for a different employer from one year to the next. Given

these numbers, it is not difficult to see the potential for getting

lost and avoiding the rule's requirements, especially where there is no

tracking system being used, such as the CDL Information System.

Sharing information on recent positive tests, and the requirement

in paragraph (g) that employers obtain proof of completion of

rehabilitation and return-to-duty test requirements after positive

tests, is not such a tracking system. It will help keep drivers, and

employers, from avoiding evaluation and possible treatment following a

violation, however. Again, it must be emphasized that this section

requires nothing that could not be willingly accomplished by employers

under the current rule. An employer could make release of prior results

a condition of employment as a driver, and should require drivers with

positive tests to prove they have been retested and medically

recertified as qualified. Employers are, after all, prohibited from

using a driver it knows has tested positive but has not been

recertified and tested negative. By making such inquiries and

conditions mandatory, this section merely sets forth a standard of

knowledge for new employers to comply with the rule.

An employer that learns that a driver-applicant is prohibited from

driving need not refer the driver to a SAP for evaluation and

treatment. The employer must, however, obtain proof of a SAP evaluation

and return-to-duty test before using the driver-applicant. Therefore,

drivers with positive drug test results, alcohol test results of 0.04

or greater, or refusals to test should either maintain copies of

subsequent SAP evaluations and return-to-duty tests, or should also

consent to release of them along with the required information, in

order to show compliance with the rule. Alternatively, a pre-employment

test directed by the hiring employer may serve as a return-to-duty test

under such circumstances.

In no case should any test result for alcohol or drugs under this

part be used to infer that a person is an alcoholic or drug addict.

Testing under this part determines whether a driver may need to be

removed from safety-sensitive functions and must be referred to a

substances abuse professional only. The tests under this part are

conduct test only, and do not determine the status of any person.

Prospective employers should refer to the requirements of the Americans

with Disabilities Act, and implementing regulations, 42 CFR 1630,

before taking any employment actions based on SAP evaluations released

by drivers to the prospective employer.

This section is consistent with 49 CFR 391.21 and 391.23, which

requires a driver-applicant to list the names, addresses, and dates of

employment for all employers in the preceding three years (10 years for

CDL drivers), and requires employers to investigate the driver's record

by contacting all of the driver's previous employers within the three

preceding years. The information on testing could be easily added to

the inquiry. This inquiry requirement has been included in part 382,

and not part 391, because part 391 does not cover many of the drivers

to which this rule applies. Drivers' and employers' compliance with the

requirement to list and investigate prior employers for purposes of

test result information, will be enforced in the same manner that part

391 is currently enforced.

The maximum (14 calendar days) period granted to the employer to

obtain the testing information is shorter than the period allowed to

investigate the driver's employment record, as required in 49 CFR

391.23. Since the period of investigation is also shorter, three years

rather than two, the burden of compliance is lessened. Fourteen days

also makes it more difficult to abuse the section's intent by

discharging drivers before the information is absolutely required to be

obtained. As an additional incentive to promptly obtain the required

information, and to facilitate future inquiries, paragraph (d) requires

the employer to obtain the information even if the driver stops driving

before the information is obtained or before the 14 day period had

expired.

In this rule, also differing from Sec. 391.23, an employer is

required in the first instance to obtain the information prior to using

the driver. Only if such promptness is not feasible, and only for as

long as it remains infeasible, may an employer delay obtaining the

information. Obviously, the utility of this provision is diminished the

longer an employer waits to make the inquiries. The potential is there,

however, for a prudent employer, especially those many commenters who

have requested a provision allowing the exchange of information, to

obtain meaningful information and to aid drivers who misuse alcohol and

drugs by ensuring completion of rehabilitation.

An employer is prohibited in paragraph (c) from using a driver for

longer than 14 days without obtaining the prior testing information.

The new employer must make a good faith effort to obtain the

information. An employer who makes a good faith effort, but through no

fault of its own is unable to obtain the information, may continue to

use the driver if it makes a note under paragraph (f) of the attempt.

For instance, if a previous employer refuses, in violation of

Sec. 382.405, to make the information available pursuant to the

driver's request, the new employer should note the attempt to obtain

the information and place the note with the driver's other testing

information.

Finally, paragraph (f) leaves the form of the release of

information to the discretion of the employer. The employer must,

however, ensure confidentiality of the information in the same manner

as provided in Sec. 382.405.

Subpart E--Consequences for Drivers Engaging in Substance Abuse--

Related Conduct

Section 382.501 Removal From Safety-Sensitive Function

Paragraph (c) extends all of the driving consequences of violating

the rule, provided in subpart E, to commercial motor vehicles in

interstate commerce as defined in part 390, as well as CMVs in commerce

as defined in Sec. 382.107. For example, a driver removed from

performing safety sensitive functions because of a rule violation

occurring in a 26,001 pound or greater vehicle in inter- or intrastate

commerce, also is prohibited from driving a 10,001 pound or greater

vehicle in interstate commerce, until complying with Sec. 382.605. This

provision extends consequences of violations incurred in transportation

under CDL jurisdiction to transportation covered by the Federal Motor

Carrier Safety Regulations.

Section 382.503 Required Evaluation and Testing

See Limitations of Alcohol Use by Transportation Workers, published

elsewhere in today's Federal Register.

Section 382.505 Other Alcohol-Related Conduct

Though the minimum alcohol concentration to incur referral to a SAP

and a return-to-duty test is 0.04, alcohol tests with result below 0.04

are also serious and represent a threat to the safety of the motoring

public. An alcohol concentration of 0.039 does not warrant evaluation

and rehabilitation under the rule, but it may have an adverse effect on

a driver's abilities. In addition, the driver's blood alcohol curve may

be rising. In other words, the individual may have just consumed enough

alcohol to eventually produce an alcohol concentration of 0.04 or

greater, but the alcohol is just entering the bloodstream and, at the

time of testing, the alcohol concentration is below 0.04, but rising.

It is, rather, a matter of testing fora.

Part 382 establishes a program of employer-based testing. Section

382.505 requires a driving prohibition of 24 hours for a test result of

0.02 or greater but less than 0.04. (In most instances, the

rehabilitation referral requirements of Sec. 382.605 will also take at

least 24 hours.)

Section 392.5 (c) and (d), on the other hand, requires law

enforcement officials to issue a 24 hour out-of-service order to a

driver with any measured alcohol concentration or detected presence of

alcohol. There is no 24 hour driving prohibition period in Sec. 392.5

required directly of the driver and employer without the involvement of

a law enforcement official. Section 392.5(a) and (b) merely prohibit

driving after a measured alcohol concentration or detected presence of

alcohol, without placing any time limit. Moreover, because tests

conducted under part 382 with results below 0.02 are deemed to be

``negative'' or zero, there can be no measured alcohol concentration

for which to prohibit driving under Sec. 392.5 when the result is less

than 0.02.

Still, an employer must comply with the driving prohibition in

Sec. 392.5, regardless of a test result below 0.02 or not, if it

discovers violation of any of the other proscriptions provided in the

section, such as pre-duty use, possession, and detected presence of

alcohol. In most circumstances, a driver would also be removed from

safety-sensitive functions and referred to a SAP under part 382 for

committing such violations, in effect imposing the driving prohibition

in Sec. 392.5 anyway. If a driver subject to Sec. 392.5 is given a

test, however, which results in a concentration below 0.02, but the

employer detects the presence of alcohol in the driver through other

means, the employer is prohibited from using the driver until there is

no longer the presence of alcohol.

Post-accident tests administered by a law enforcement official

under independent authority may result in a 24 hour out-of-service

order issued by the official for concentrations below 0.02 because the

test is not administered under part 382.

Section 382.507 Penalties

Section 5(f) of the Act allows the Secretary to determine

appropriate sanctions for drivers who are determined through testing

developed under this Act to have used alcohol or controlled substances

in violation of law or Federal regulation, but are not under the

influence of alcohol or controlled substances as provided in the CMVSA.

Regulations issued pursuant to the CMVSA impose disqualifications and

other penalties for ``conviction'' by Federal, State, or local law

enforcement officials of driving under the influence of alcohol or

controlled substances (Sec. 383.51). This section provides that

employers and drivers who violate these rules, which do not provide for

``convictions'' or CDL disqualifications, are subject to 49 U.S.C.

521(b), which allow civil forfeiture penalties of up to $10,000.

Subpart F--Alcohol and Controlled Substances Misuse Information,

Training, and Referral

Section 382.601 Motor Carrier Obligation To Promulgate a Policy on the

Misuse of Alcohol and Controlled Substances

Materials explaining how the employer implements the requirements

of this part and the employer's policies must be provided to each

driver. Written notice of the availability of these materials must be

provided to representatives of employee labor organizations.

In addition to educational information, the materials also may

include the description of any self-identification program or procedure

under which a driver may decline to perform or continue to perform

safety-sensitive functions without penalty when he or she may be in

violation of these rules, including any limits on the program. The

employer also may include information on additional employer policies

with respect to the use or possession of alcohol, including any

consequences for a driver found to have a specified alcohol

concentration, that are based on the employer's authority independent

of these rules. These additional policies must be clearly identified as

based on the employer's independent authority.

Motivating drivers about safety in the workplace and good health is

important to making an alcohol and controlled substances use prevention

program work. Because the primary objective of this alcohol and

controlled substances misuse program is deterrence rather than

detection, it is especially important that, before any testing is

begun, employers make their drivers fully aware of the dangers of

alcohol and controlled substances misuse in their jobs, advise them

where help can be obtained if they have a problem with alcohol or

controlled substances use, and the potential consequences for people

who violate this rule. An effective company policy and educational

effort can more than pay for itself with the benefits it can achieve.

Section 382.603 Training for Supervisors

See Limitations of Alcohol Use by Transportation Workers for

discussion of this section.

Section 382.605 Referral, Evaluation, and Treatment

The Omnibus Act requires that an opportunity for treatment be made

available to drivers. This does not require employers to provide or pay

for rehabilitation or to hold a job open for a driver with or without

salary. In the current drug testing rules, the Department decided that

it was inappropriate to establish a Federal role in mandating that

employers provide for rehabilitation and that it should be left to

management/driver negotiation. The same logic will apply here. The FHWA

has decided not to mandate employer-provided rehabilitation in this

rule.

We encourage those employers who can afford to provide

rehabilitation to do so through established health insurance programs,

since it helps their drivers, benefits morale, is often cost-effective

and ultimately contributes to the success of both their business and

their testing programs.

This section requires an employer to advise a driver who engages in

conduct prohibited under these rules of the available resources for

evaluation and treatment of alcohol and controlled substances problems.

The employer will have no similar obligation to applicants who refuse

to submit to or fail a pre-employment test.

A SAP will evaluate each driver who violates these rules to

determine whether the driver needs assistance resolving problems

associated with alcohol misuse and refer the driver for any necessary

treatment. Before returning to duty after a violation, each driver must

undergo an applicable alcohol or controlled substances test with a

result of less than 0.02 alcohol concentration and/or a verified

negative controlled substances test result. In addition, each driver

identified as needing assistance must (1) Be evaluated again by a SAP

to determine whether the driver has successfully complied with the

rehabilitation program prescribed following the initial evaluation, and

(2) be subject to a minimum of six (6) unannounced, follow-up tests

over the following twelve (12) months. Compliance with the prescribed

treatment and passing the test(s) will not guarantee a right of

reemployment. They will be preconditions the driver must meet in order

to perform safety-sensitive functions.

For a CMV driver to return to duty following a controlled

substances test that results in a verified positive test result, the

CMV driver must stop using drugs, be evaluated by a substance abuse

professional, and take a return-to-duty controlled substances test with

a negative result. The SAP evaluation takes the place of the

requirement in 49 CFR 391.45(c) that drivers who test positive for

drugs, and are thereby rendered medically unqualified to drive under

Sec. 391.41(b)(12), must be recertified as medically qualified to

drive. Drivers identified as needing assistance must also complete any

rehabilitation required by the substance abuse professional, be re-

evaluated by a substance abuse professional to determine whether

rehabilitation requirements were followed, and be subject to follow-up

tests.

Follow-up and return-to-duty tests need not be confined to the

substance involved in the violation. If the SAP determines that a

driver needs assistance with a poly-substance abuse problem, the SAP

may, for instance, require alcohol tests to be performed along with the

required drug follow-up and/or return-to-duty tests, after a driver has

violated the drug testing prohibition.

The rule will provide that the evaluation and the rehabilitation

may be provided by the employer, by a SAP under contract with the

employer or by a SAP not affiliated with the employer. The choice of

SAP and assignment of costs will be made in accordance with employer/

driver agreements and employer policies.

Other Issues

As in the current drug testing rules, the FHWA wants to provide

program flexibility to allow employers to carry out their programs in a

more efficient, cost-effective manner and to ease the compliance burden

on small businesses. Testing, for example, may be conducted by the

employer, an outside contractor, a consortium, a union, or any other

party or agent of the employer. The employer remains responsible for

compliance with the requirements of this part.

The use of consortia has worked well in the drug testing area. In

fact, it is the predominant method of compliance in some industries,

particularly among smaller employers. One reason to delay

implementation of this rule for smaller employers is to enable them to

form or join consortia or large employer testing programs, rather than

have to establish their own programs.

Employers may find it more cost-effective and convenient to conduct

alcohol testing at the same time they conduct drug testing. Because we

are requiring alcohol testing at or near the time of performance, drug

testing also would have to occur at such times. For random testing,

employers could easily accomplish this by randomly choosing the

driver's number and then testing the driver the next time he or she

performs safety-sensitive functions.

Multi-Agency Coverage

In some industries, a significant percentage of drivers are subject

to the testing rules of more than one DOT OA; some are subject to the

testing rules of more than one federal agency (e.g., drivers covered by

the Department of Energy may also be covered by FHWA). Where it will

not compromise the effectiveness of the testing program or other

requirements, one DOT agency will defer to another or recognize the

validity of the other's requirements.

There are different situations in which multi-agency coverage can

occur:

(1) A driver may perform different modal functions for the same

employer. For example, a driver may act as both a railroad repair

person and a truck driver for a single employer, activities regulated

by the FRA and the FHWA, respectively. Such a driver could be in a

single random pool under these rules, but will have to have an equal

chance of being selected for random testing while performing either

track repair or driving functions.

(2) A driver may have two employers. For example, a driver may fly

for one employer and drive for another. That driver will be subject to

two random testing requirements and will generally be in two different

pools. As discussed above, however, the driver could be covered by one

random testing pool, e.g., one run by a consortium; in both situations,

the driver will be subject to random testing in either job.

This rule will require that drivers cease safety-sensitive

functions in every mode of transportation, once determined to be in

violation of any one of the OA rules. We also have been consulting with

other federal agencies during this rulemaking proceeding in an attempt

to make Federal government rules as consistent as possible. The

Department of Energy (DOE) already has issued a similar rule on alcohol

misuse for drivers in nuclear facilities. To avoid any potential

conflict, DOE officials have indicated that they plan to defer to the

DOT rules where there are entities covered by both programs.

Self-Identification/Peer-Referral Programs

Since the FHWA's primary purpose is to deter drivers from having

alcohol and controlled substances in their systems while performing

safety-sensitive functions, drivers should be able to identify

themselves as unfit to work. The FHWA encourages employers to establish

self-identification or peer-referral programs and encourage drivers to

use them. These programs, which already exist in some segments of the

highway transportation industries, generally allow a driver to decline,

without penalty, to perform or continue to perform her job if the

driver knows that she is or may be impaired by alcohol or controlled

substances. The FHWA will not require self-identification programs,

because we believe that they are a matter more appropriate for labor/

management negotiations. The successful implementation of such programs

depends upon joint labor-management commitment to an alcohol/drug-free

work environment.

Any such program, however, could not interfere with the tests

required by these rules. For example, a driver could not identify

himself as unfit to drive after having been notified of a random or

reasonable suspicion test and expect to avoid the consequences for a

positive test or a refusal to test. Such a program could, however,

permit a driver to initiate a voluntary alcohol test to determine

whether the driver is in violation of these rules, without fear of

consequences required by this rule, regardless of the test results.

Education

There is some disagreement about the respective effectiveness of

education vis-a-vis enforcement. Some researchers claim that education

is more effective in preventing alcohol misuse than apprehension of the

abuser. The American Automobile Association Foundation for Traffic

Safety compared eight states that adopted tougher drunk driving laws

with six that did not. The new laws had no effect at all on traffic

fatalities. The Foundation attributes the overall decline in U.S.

traffic-related deaths between 1980 and 1985 to public awareness

campaigns by such groups as Mothers Against Drunk Driving (MADD). A

Boston University researcher similarly concluded that social pressure

and publicity ``may be as important as government regulations in

reducing drunk driving and fatal crashes.'' (Both quoted in ``USA

Today'', Wednesday, August 3, 1988.)

These studies have been criticized as poorly designed and

misleading, since education programs were never isolated as an

independent variable for comparison. NHTSA believes that the most

effective programs are those that combine education and enforcement.

Public information and education programs, in the absence of

enforcement activities or sanctions, have never been shown to have an

impact on alcohol-related fatal crashes. Conversely, scores of studies

have found that programs involving enhanced enforcement, roadside

sobriety checkpoints, and the use of sanctions such as license

suspensions frequently have resulted in significant reductions of

alcohol-related fatalities. Although there is disagreement on the

effectiveness of education alone, it appears that using education as an

adjunct to deterrent measures will make both more effective.

Removal of Part 391, Subpart H

The present regulations for controlled substances testing are

contained as a subpart to the FHWA's driver qualification regulations

in part 391, and are applicable only to drivers subject to part 391.

Generally, parts 390 through 399 of title 49 subchapter B are

applicable to motor carriers and drivers who operate in interstate

commerce. The Omnibus Act requires the FHWA to expand the scope of

persons required to be tested beyond those subject to part 391. This

rule will completely replace 49 CFR part 391, subpart H controlled

substances testing on January 1, 1996.

The Omnibus Act requires all operators of CMVs to be tested for

controlled substances and alcohol. This encompasses far more drivers

than have been subject to parts 390 through 399. It applies to all

drivers required to obtain a CDL. Drivers to which Federal drug testing

requirements are newly applicable include, but are not limited to

drivers and their employers operating wholly in intrastate commerce,

employed directly by Federal, State and local governments, including

school districts, and drivers with restricted-use CDLs or drivers in a

State that does not recognize State option waiver CDLs (farm vehicle

operators, firefighters and operators of emergency equipment).

The FHWA will make part 391, subpart H ineffective on the two

implementation dates of part 382 to enable motor carriers to continue

to use the existing regulations until all requirements of part 382 are

to be complied with fully. Table I shows the existing regulations at 49

CFR part 391, subpart H and the section where the FHWA has moved the

existing regulation into this rule.

Table I

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

Name Old section Change New section

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

Purpose and scope.................... 391.81(a).............. ....................... 382.101

391.81(b).............. Removed................

391.81(c).............. Removed................

Applicability........................ 391.83................. Omnibus Act............ 382.103

Definitions.......................... 391.85................. ....................... 382.107

Notifications of test results and 391.87(a).............. ....................... 382.407(a)

recordkeeping.

391.87(b).............. ....................... 382.411(a)

391.87(c).............. ....................... 382.411(a)

391.87(d).............. ....................... 382.401

391.87(e).............. Removed................ .......................

391.87(f).............. ....................... 382.407(a)

391.87(g).............. ....................... 382.405(c)

391.87(h).............. ....................... 382.403

Access to individual test results or 391.89(a).............. ....................... 382.405(a)

test findings.

391.89(b).............. ....................... 382.405(b)

Implementation schedule.............. 391.93................. ....................... 382.115

Drug use prohibitions................ 391.95(a).............. ....................... 382.213

391.95(b).............. ....................... 382.215

391.95(c).............. Removed................ .......................

391.95(d).............. ....................... 382.211

Prescribed drugs; Affirmative defense 391.97................. ....................... 40.33(c)

Reasonable cause testing requirements 391.99................. ....................... 382.307

391.101................ ....................... .......................

Pre-employment testing requirements.. 391.103................ ....................... 382.301

Biennial (periodic) testing 391.105&391.107........ Removed................ .......................

requirements.

Randomtestingrequirements............ 391.109................ ....................... 382.305

Random testing exceptions............ 391.109(d)............. Removed................ .......................

Post-accident testing................ 391.113................ Omnibus Act............ 382.303

Disqualifications.................... 391.117................ Removed................ .......................

Employee Assistance Program.......... 391.119................ Omnibus Act............ 382.601

EAP Training Program................. 391.121................ ....................... 382.603

After-care Monitoring................ 391.123................ ....................... 382.605(c)

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

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is a significant

regulatory action within the meaning of Executive Order 12866. This

rule has been reviewed under this order. It is significant within the

meaning of Department of Transportation regulatory policies and

procedures, too. It is anticipated that the economic impact of this

rulemaking will be substantial; therefore, a full regulatory evaluation

is required and has been prepared. The regulatory evaluation is

included in the docket.

Executive Order 12875 (Enhancing the Intergovernmental Partnership)

The FHWA has determined that this action's NPRM published on

December 15, 1992 (57 FR 59516) contained a requirement that must be

analyzed in accordance with Executive Order 12875. The FHWA has

reviewed the final rule under this order. The FHWA has determined that

the proposed requirement for random roadside alcohol testing by State

and local law enforcement officials would mandate States to perform

roadside alcohol testing on commercial motor vehicle drivers. The

requirement would not completely reimburse States for the cost of such

a mandated program. The FHWA has decided not to mandate roadside

alcohol testing as proposed, because of many factors including this

Executive Order. See the section ``Other Issues--Motor Carrier Safety

Assistance Program (MCSAP)'' in Limitations of Alcohol Use by

Transportation Workers elsewhere in today's Federal Register for

further discussion of the FHWA's and the DOT's analysis of this

Executive Order as it relates to this final rule.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,

5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on

small entities. This final rule will require employers to test drivers

for the use of alcohol and controlled substances. It will have a

significant economic impact on small entities. The FHWA has lessened

the economic impact on small entities by allowing them an additional

year to comply with the rule over and above the time given to large

employers.

Executive Order 12612 (Federalism Assessment)

This action adds part 382 to the FMCSRs pertaining to testing for

alcohol and controlled substances by drivers of commercial motor

vehicles operating in commerce on public roads and highways. These

requirements directly affect employers and their drivers, including

State and local employers and their drivers. The rule also will

regulate employers and drivers who have historically been regulated

only by their State of residence or where the employer's business is

located. These requirements preempt State and local laws, regulations,

rules, and orders that are inconsistent with the requirements of this

rule. The preemption authority for this document was specifically

provided for under 49 U.S.C. app. 2717, Section 12020(e)(1) of the

Omnibus Transportation Employee Testing Act of 1991.

Under the Motor Carrier Safety Assistance Program, States will not

be required to adopt compatible part 382 regulations for drug or

alcohol testing as a condition for receiving grant monies under the

program.

For the reasons set forth above, the agency is not required to

prepare a Federalism Assessment for this proposal.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities applies to this program.

Paperwork Reduction Act

The information collection requirements in part 382 of this rule

have been submitted to the Office of Management and Budget for approval

under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

Information collection requirements are not effective until Paperwork

Reduction Act clearance has been received.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has

determined that this action will not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN number contained in the

heading of this document can be used to cross reference this action

with the Unified Agenda.

List of Subjects in 49 CFR Parts 382, 391, 392 and 395

Alcohol testing, Controlled substances testing, Highways and roads,

Highway safety, Motor carriers, Motor vehicle safety.

Issued on: January 25, 1994.

Federico Pena,

Secretary of Transportation.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

49, CFR subtitle B, chapter III, parts 391, 392, and 395, and add part

382 as set forth below:

1. Chapter III is amended by adding part 382 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

Subpart A--General

Sec.

382.101 Purpose.

382.103 Applicability.

382.105 Testing procedures.

382.107 Definitions.

382.109 Preemption of State and local laws.

382.111 Other requirements imposed by employers.

382.113 Requirement for notice.

382.115 Starting date for testing programs.

Subpart B--Prohibitions

382.201 Alcohol concentration.

382.204 Alcohol possession.

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 Release of alcohol and controlled substances test

information by 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 Motor carrier 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. app. 2505; 49 U.S.C. app. 2701 et seq.; 49

U.S.C. 3102; 49 CFR 1.48.

Subpart A--General

Sec. 382.101 Purpose.

The purpose of this part is to establish programs designed to help

prevent accidents and injuries resulting from the misuse of alcohol or

use of controlled substances by drivers of commercial motor vehicles.

Sec. 382.103 Applicability.

(a) This part applies to every person who operates a commercial

motor vehicle in interstate or intrastate commerce, and is subject to

the commercial driver's license requirements of part 383 of this

subchapter.

(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 an alcohol and

controlled substances testing program that includes more persons than

himself/herself as covered employees in the random testing pool.

(c) This part shall not apply to employers and their drivers:

(1) Required to comply with the alcohol and/or controlled

substances testing requirements of parts 653 and 654 of this title; or

(2) Granted a full waiver from the requirements of the commercial

driver's license program; or

(3) Granted an optional State waiver from the requirements of part

383 of this subchapter; or

(4) Of foreign domiciled operations, with respect to any driver

whose place of reporting for duty (home terminal) for commercial motor

vehicle transportation services is located outside the territory of the

United States.

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 or Sec. 40.73 of this title,

except as provided herein--

Alcohol means the intoxicating agent in beverage alcohol, ethyl

alcohol, or other low molecular weight alcohols including methyl and

isopropyl alcohol.

Alcohol concentration (or content) means the alcohol in a volume of

breath expressed in terms of grams of alcohol per 210 liters of breath

as indica

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