Commercial Driver's License Program and Controlled Substances and Alcohol Use and Testing

SUMMARY: The Federal Highway Administration is making technical

amendments to its alcohol and drug testing rules and its regulations

implementing the commercial driver's license program. The testing rules

require employers to test drivers who are required to obtain commercial

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

substances. The amendments are necessary to correct minor errors in the

final rule, codify final dispositions of waivers of the commercial

driver's license program, and make conforming metrification changes.

EFFECTIVE DATE: This rule is effective March 8, 1996.

FOR FURTHER INFORMATION CONTACT: For information regarding program

issues: Office of Motor Carrier Research and Standards, (202) 366-1790,

For information regarding legal issues: Office of the Chief Counsel--

Motor Carrier Law Division, (202) 366-0834, Federal Highway

Administration, Department of Transportation, 400 Seventh Street, SW.,

Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,

e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

A final rule published in the Federal Register on February 15, 1994

(59 FR 7484), added 49 CFR part 382 and made conforming amendments to

parts 391, 392, and 395.

Applicability

Sections 382.103 and 383.3 are being revised to clarify which

driver groups have been exempted from commercial driver's license

requirements and, by extension, from alcohol and drug testing

requirements. Since the final rule was published on February 15, 1994,

numerous questions have arisen about which groups have been granted

waivers from CDL requirements and how those waivers apply to alcohol

and drug testing. For clarity about the driver groups exempted from

Federal CDL requirements in September 1988 (53 FR 37313, September 26,

1988), the FHWA is amending these sections to note those groups

(farmers, firefighters, military personnel, emergency response

personnel) identified in the waiver notice of final disposition. In the

September 1988 waiver notice, States were given the option to exempt

these groups from all CDL requirements. Drivers in States which have

exercised these options do not have to be tested. Drivers in States

which have not exercised these options, but require those drivers to

obtain CDLs, must be tested for alcohol and drugs under part 382.

The FHWA is also amending Sec. 383.3 to codify part 383 exceptions

to certain CDL requirements for drivers that meet specific conditions

in the State of Alaska, in the farm-related service industries or in

the pyrotechnics industry. The final dispositions of the restricted CDL

requirements for certain Alaskan drivers, farm-related service industry

drivers, and pyrotechnic industry drivers allow States to waive certain

requirements for CDL applicants under certain conditions. These drivers

must still obtain CDLs and will be subject to alcohol and drug testing

by their employers. The restrictions placed on the CDL do not exempt

these drivers from the requirements of the alcohol and drug testing

program. For more information about the State of Alaska, farm-related

service industry, and pyrotechnic industry final dispositions, see 54

FR 33230, August 14, 1989, 57 FR 13650, April 17, 1992, and 60 FR

34188, June 30, 1995.

Definitions

The FHWA is adding definitions in Sec. 382.107 for the terms

``controlled substances,'' ``disabling damage,'' and ``licensed medical

practitioner.'' The definition of controlled substances will include

the substances tested for in part 40 of this title. The FHWA is copying

the definition of ``disabling damage'' in Sec. 390.5 for placement in

Sec. 382.107 to clarify that this definition is to be used in

Sec. 382.303. The FHWA is adding a definition for ``licensed medical

practitioner'' that is patterned after the Sec. 390.5 definition of the

term ``medical examiner'' to state what types of individuals may

prescribe controlled substances to drivers under Sec. 382.213. See the

discussion below about licensed medical practitioners.

Finally, the FHWA is modifying the definitions of ``driver'' and

``safety-sensitive function.'' ``Driver'' is being modified to remove

the last sentence with respect to pre-employment testing. This change,

along with modification to pre-employment testing discussed later in

this document, will allow employers to conduct pre-hire road testing of

applicants that will ensure the applicants know how to properly operate

particular equipment of an employer. ``Safety-sensitive function'' is

being modified to remove the reference to the Sec. 395.2 On-duty time

definition and add the text of part of the on-duty time definition in

its place. The FHWA has received numerous comments that it is difficult

for the public to make a cross reference to part 395, especially for

employers not subject to it. Also, in light of the FHWA's future

recodification of the Federal Motor Carrier Safety Regulations under

its zero base regulatory review project, the FHWA is removing most

cross referencing within subchapter B of Chapter III of Title 49, Code

of Federal Regulations.

Starting Date for Testing Programs

The FHWA has had numerous questions as to which testing regulations

an interstate motor carrier is subject to when the motor carrier begins

operations after March 17, 1994. To clarify the FHWA's intent in

requiring such an interstate motor carrier to start drug testing under

part 391, the FHWA is amending paragraph (c) and adding paragraph (d)

to Sec. 382.115. This will clarify that employers that begin commercial

vehicle operations after March 17, 1994, will have until January 1,

1996, to implement testing programs required by part 382. However, if

an employer begins operating in interstate commerce after March 17,

1994, and prior to January 1, 1996, such an employer is considered an

interstate motor carrier and may be subject to part 391, subpart H. If

such an interstate motor carrier is required to implement the subpart H

testing program, it must do so immediately. On January 1, 1996, the

motor carrier will modify its drug testing program to part 382

requirements and add alcohol testing at that time.

Licensed Medical Practitioner

The FHWA has had inquiries concerning whether drivers, who are

prescribed medications by non-physicians licensed to dispense

controlled substances in their jurisdiction, may take such controlled

substances and not be considered to be in violation of Secs. 382.213

and 392.4. Although the terms ``medical review officer'' and

``substance abuse

[[Page 9547]]

professional'' use the term physician with a parenthetical describing

the type of physician, the FHWA did not intend that such a condition be

applied to the term ``physician'' in Secs. 382.213 and 392.4. The term

``physician'' in the definitions of ``medical review officer'' and

``substance abuse professional'' is followed by a parenthetical stating

``medical doctor or doctor of osteopathy.'' Therefore, the FHWA is

replacing the term ``physician'' in Secs. 382.213 and 392.4 with the

term ``licensed medical practitioner.'' A definition of the term

``licensed medical practitioner'' will be added to Sec. 382.107. A

licensed medical practitioner means a person who is licensed,

certified, and/or registered, in accordance with applicable Federal,

State, local, or foreign laws and regulations, to prescribe controlled

substances and other drugs. In addition, the FHWA is removing the

footnote to Sec. 392.4(a)(1). The Government Printing Office (GPO)

publishes Appendix D to the FMCSRs and the FHWA believes all

individuals have access to the GPO codified versions of Appendix D.

Pre-Employment Testing

The FHWA is amending Sec. 382.301(a) to clarify that an employer

must either administer a pre-employment controlled substances test for

drivers who the employer intends to hire or use or utilize the

exception and obtain specified information from previous employers. An

employer which obtains the information does not have to administer a

test. The information may also be obtained from third party service

providers that act as agents for employers. Regardless of which option

is chosen, an employer must comply with the separate requirements of

Sec. 382.413 to obtain certain prior testing information. Of course,

all testing information may be released only pursuant to the consent of

the driver.

Some questions have arisen regarding whether records prepared by or

obtained from former employers about a driver's pre-employment

controlled substances test results must be retained. These records must

be retained from one to five years in accordance with Sec. 382.401. In

order to be absolutely clear, the FHWA is adding the words ``and

retain'' to Sec. 382.301(d)(1) and is adding the types of records

required to be maintained by Sec. 382.301 to Sec. 382.401, Retention of

records, to address these concerns. Note, however, that such records

would only be subject to an information request under Sec. 382.413 if

the driver was actually employed or used as a driver by the employer.

Paragraph (d)(2) of Sec. 382.301 is also being revised. The rule

text is being rewritten to better explain use of the pre-employment

testing exception for occasional, intermittent, and casual drivers. A

similar paragraph has been in the drug testing rules of part 391 since

the rules were first promulgated. This paragraph relieves employers who

use intermittent, casual, or occasional drivers on a regular basis

(generally for short periods, such as trip-lease drivers or drivers

called from a union hiring hall) from the requirement to make the

verifications in Sec. 382.301(d)(1) each time the driver is used by the

employer to operate commercial motor vehicles (CMVs). These drivers may

be used as little as once each quarter or once each month by an

employer, and are generally in another employer's testing program or

are in a union hall's testing program that conforms to part 40 of this

title.

In response to questions regarding the intent of this section, the

FHWA believes that this revision will make the regulation more

understandable. When employer A uses a driver for the first time,

employer A must verify the information from former employers to ensure

the driver is actively participating in a testing program(s). The

driver may then work for employers B, C, or D, driving CMVs on a short

term basis, or return to driving on a regular basis for a regular

employer. If the driver returns to employer A to operate a CMV within

six months of the previous verification, no verification of the

information or pre-employment test is needed. If the driver returns to

drive a commercial motor vehicle for employer A more than six months

after employer A last verified the information as required under

Sec. 381.301(d)(1), employer A must again verify and record that the

driver is participating in a DOT agency testing program using part 40

procedures.

Post-Accident Testing

The FHWA is clarifying that drivers involved in accidents, as

defined in Sec. 390.5, are subject to post-accident testing. Despite

the general cross reference to Sec. 390.5 in Sec. 382.107, many people

appear to be unclear about what types of accidents require a test.

Therefore, the FHWA will include the definition of ``disabling damage''

to Sec. 382.107, revise the introductory phrase of Sec. 382.303(a), add

a clarifying phrase to Sec. 382.303(a)(2) that comports to the style of

Sec. 382.303(a)(1), and add Sec. 382.303(a)(3), a table to note when a

post-accident test is required.

Random Testing

On December 2, 1994, the FHWA, along with other DOT agencies,

published a final rule in the Federal Register (59 FR 62218) allowing

the agencies' Administrators to adjust the random drug testing rates

based on information obtained by the respective agencies in their drug

testing management information system reports. The agencies, generally,

require certain employers to submit a report covering their drug

testing program for a calendar year. The FHWA has randomly selected a

sample of interstate motor carriers in the past and will make random

selections of employers subject to part 382 in the future.

The FHWA included in the December 2, 1994, rule text of

Sec. 382.305(f) an example of when the FHWA Administrator may lower the

random drug testing rate. The example incorrectly stated that the

Federal Highway Administrator will have the first opportunity, based on

reported data, to reduce the random drug testing rate in 1997. In fact,

as stated in the DOT common preamble, the FHWA testing rate may first

be reduced in 1998. Recodified paragraph (g) of Sec. 382.305 is revised

accordingly.

Second, the rule changed the words ``average number of driver

positions'' in Sec. 382.305(a) to ``number of drivers each selection

period.'' This change was unintentional. Since the change was

unintentional, paragraph (a) is revised accordingly. The revised rule

is corrected using the original words ``average number of driver

positions.''

Third, employers have said that they believed they were not

required to have a random testing program, since the random testing

section does not specifically state that employers are required to have

one. The FHWA, therefore, is adding clarifying language to

Sec. 382.305(a) that states every employer must have a random testing

program and every driver shall submit to random testing.

Finally, employers have asked whether Sec. 382.305(k), recodified

as Sec. 382.305(l), prohibits a driver from driving a commercial motor

vehicle to a testing collection site after notification. The FHWA's

intent in requiring an employer to ensure that the driver ceases to

perform safety-sensitive functions prior to proceeding to the

collection site was to allow the driver to finish a task that may

affect workplace safety, e.g., lowering a load on a forklift prior to

leaving the forklift or finishing the securement of a load prior to

proceeding to the collection site. The FHWA did not intend for the

random

[[Page 9548]]

testing rule proviso in paragraph (k) to include driving a commercial

motor vehicle to a collection site to provide a breath, saliva, or

urine sample. A prohibition from using such a vehicle to travel to a

collection site is not reasonable to the FHWA when there is no

reasonable suspicion to suspect the driver is using alcohol or

controlled substances. Therefore, the FHWA will allow a driver to drive

a commercial motor vehicle to a collection site after being notified of

the driver's random selection. This will include allowing a driver to

be notified en route to proceed to a collection site en route. However,

the FHWA will not allow an employer, who has notified a driver of a

random test selection, to permit or require the driver to complete a

trip or dispatch the driver on another trip prior to the driver

providing the appropriate sample or specimen at the collection site(s)

for the random testing requirement. Of course, if an alcohol test

result of 0.02 or greater alcohol concentration is obtained from this

en route random testing, the driver is prohibited from completing all

trips. Recodified paragraph (l) of Sec. 382.305 is revised accordingly.

Computation of the Average Number of Driver Positions for Random

Testing

The FHWA explained how to compute the average number of driver

positions for the old drug testing program on the February 1, 1990 (55

FR 3546, at 3549). For clarity and to assist those employers that were

not subject to the old drug testing program under 49 CFR part 391, the

FHWA is reprinting this discussion.

The FHWA realizes that there are fluctuations in an employer's CMV

driver work force which will make an accurate computation of a testing

rate difficult. An employer's random testing program plan should take

into account these fluctuations by estimating the number of random

tests needed to be performed over the course of the year. If the

employer's CMV driver work force is expected to be relatively constant

(i.e., the total number of CMV driver positions are approximately the

same or changes at a relatively constant rate), then the number of

tests to be performed in any given year could be determined by

multiplying the average number of CMV driver positions by the testing

rate.

However, if there are large fluctuations in the number of CMV

driver positions throughout the year without any clear indication of

the average number of CMV driver positions, the employer should make a

reasonable estimate of the number of CMV driver positions. After making

the estimate, the employer should then be able to determine the number

of tests necessary. The total random tests taken for the year, however,

must equal or exceed the average number of CMV driver positions (for

calendar years 1996 and 1997, 50% for controlled substances testing and

25% for alcohol testing).

For example, if an employer decided to perform random selections

four times a year, the number of tests to be performed during each of

the testing periods (T) must equal or exceed 50% (25% for alcohol) of

the number of CMV driver positions eligible to be tested (D) divided by

the number of test periods per year (P). As a formula, the controlled

substances formula may be expressed as:

[GRAPHIC] [TIFF OMITTED] TR08MR96.002

The alcohol formula may be expressed as:

[GRAPHIC] [TIFF OMITTED] TR08MR96.003

At the time of selecting the individuals to be tested, the employer

determined that there were an average of 60 CMV drivers eligible for

testing during the period covered by the February test, 80 CMV drivers

in May, 100 CMV drivers in August, and 70 CMV drivers in November.

Using the formulas given above, the employer would have to perform 8

controlled substances tests and 4 alcohol tests in February (50% [25%]

times 60 divided by 4 equals 7.5 controlled substances (3.75 alcohol

tests) and rounding up to the nearest whole number ), 10 controlled

substances (5 alcohol tests) in May, 13 tests (7 alcohol tests) in

August, and 9 tests (5 alcohol tests) in November for a total of 40

controlled substances and 21 alcohol tests.

However, throughout the year the employer needed to perform 39

controlled substances (20 alcohol) tests in order to assure testing at

the 50% (25%) rate. This figure was computed using the same formula

with D equal to the summation of the number of drivers eligible for

testing in each of the selection periods (D=60+80+100+70=310 CMV

drivers), and by completing the formula, T=50% times 310 divided by

4=38.75) and rounding up to the nearest whole number, 39. For alcohol

testing, T=25% times 310 divided by 4=19.375) and rounding up to the

nearest whole number, 20. In these examples, the employer could perform

one less controlled substances test and one less alcohol test in the

last testing period.

Since CMV driver populations may vary during any given period in a

year, an employer who only conducted random testing during low CMV

driver periods would not be able to meet the 50% and 25% random testing

ratios.

The employer's random testing policy/plan must be documented. The

FHWA emphasizes that each selection for random testing must include all

CMV drivers to whom the final rule applies, regardless of whether or

not the CMV drivers have been tested in the past. This would include

individuals who do not regularly drive CMVs (such as clerks, mechanics,

supervisors, officials), but are expected by the employer to be

immediately available to perform the safety-sensitive function of

driving a CMV, as defined in Sec. 382.107, for the employer. It is

quite likely with a large driver turnover rate that an employer, over

the course of the year, will be employing/using more CMV drivers than

there are CMV driver positions. In determining the number of tests, an

employer should use the number of CMV driver positions, not the number

of CMV drivers used/employed during the testing period.

To illustrate using the previous example, in the February selection

(which represents the quarter January 1 through March 31), the employer

determined that there were an average of 60 CMV driver positions.

However, during the same quarter (at least up to the date the employer

performed the random selection of CMV drivers to be tested, say

February 12) the employer used/employed a total of 75 individuals as

CMV drivers or persons expected to be CMV drivers. Of these 75

individuals, 15 were no longer used by the employer at the time the

selection was made (February 12). As noted earlier, eight individuals

will be selected for controlled substances testing and four individuals

will be selected for alcohol testing.

Training Supervisors for Reasonable Suspicion Testing

The FHWA has learned that some employers and drivers believe that

only certain supervisors of a driver are required to be trained in

techniques of determining reasonable suspicion of alcohol and drug use

or that this is subject to collective bargaining. The intent of the

FHWA was, however, to require that all persons designated to supervise

drivers be trained under Sec. 382.603. Section 382.307 is being amended

to clarify this requirement.

The current rule at Sec. 382.401(b)(2) may also be interpreted to

allow employers to discard documents proving that supervisors had

received

[[Page 9549]]

training to determine whether reasonable suspicion exists to conduct

alcohol and controlled substances testing two years after being

trained. The FHWA believes it is necessary to maintain documents

related to such training during the entire period for which a

supervisor is authorized to make such determinations. It was the FHWA's

intent to allow employers to discard such training records two years

after the supervisor leaves the employer or ceases to perform the tasks

requiring the training. The FHWA, therefore, is clarifying the record

retention requirements in Sec. 382.401(b)(4) for all persons who are

required to be trained or educated under the rules, such as collection

site personnel, breath alcohol technicians, screening test technicians

and supervisors.

Record Retention Requirements

The FHWA is revising the record retention section to clarify

certain requirements and to add items that were included in part 391

requirements for drug testing but inadvertently left out of the part

382 regulations.

The FHWA is clarifying that Sec. 382.401(b) is meant to note the

time periods for which records must be kept and Sec. 382.401(c) is

meant to specify most of the records that must be kept. The FHWA

declines to list every record that could be generated in an alcohol and

drug testing program. The FHWA's intent, however, is that all records

that are generated by an employer or its agents in the administration

of the testing program must be maintained to the same extent as

required in part 391. Administrative records are required to be

maintained for a minimum of five years under Sec. 391.87(d). The FHWA

is adding an item to Sec. 382.401(b) noting that administrative records

must be maintained for the same time period.

A new paragraph, Sec. 382.401(e), is also being added to note the

locations in the rule of information collection requirements required

by part 382. The FHWA believes that this provision will allow the

public to easily locate those rule sections which require documents to

be prepared and maintained.

Medical Review Officer Notification to the Employer

The FHWA also has received numerous questions regarding the new

requirement that signed, written notifications of the results be sent

from the MRO to the employer. Many MROs have asked whether their staff

may sign the reports, and if not, whether the MRO signature may be

handwritten, rubber stamped, or electronically produced. These MROs

stated that requiring them to personally sign written reports of

negative test results would be extremely burdensome. The FHWA's intent

with the new requirement was to get reliable information concerning

positive and negative test results into the hands of the employer and

avoid communication problems from occurring over the telephone. Some

employers have stated that they have heard the MRO say ``negative,''

when in fact, the MROs records indicate the driver was verified

positive for illegal controlled substances use.

The FHWA will continue to require that all test results be

forwarded to the employer in writing and be signed by the MRO within

three business days after completion of the verification of test

results. (Note that the Office of the Secretary of Transportation's

Drug Enforcement and Program Compliance office has held, under

Sec. 40.33, that positive test result verifications may not be

completed until part 2 of the Federal Custody and Control Form is

received by the MRO from the laboratory.) Some consortia have reported

that MROs never receive their copy from the collection site, Copy 4, of

the Federal Custody and Control Form. The FHWA would expect in these

circumstances that the MRO would contact the collection site or the

employer to obtain a photocopy of their copy of the form, Copies 6 or 7

in order to complete the verification process for both negatives and

positives.

To facilitate transmittal of information, Sec. 382.407(a) is being

changed to allow MROs to notify employers using a legible photocopy of

the fourth copy of part 40's Appendix A subtitled COPY 4--SEND DIRECTLY

TO MEDICAL REVIEW OFFICER--DO NOT SEND TO LABORATORY of the Federal

Custody and Control Form. This copy may be used in lieu of producing a

new record to make the signed, written notification to the employer,

provided that for verified positive test results the controlled

substance(s) identified and verified as positive shall be legibly noted

in the remarks section for step 8. If a Copy 4 is used, the MRO must

sign his or her name on the form.

The MRO shall forward the test results and other information

required by Sec. 382.407(a) within three business days after the

completion of the MRO's review of the test result and the MRO must sign

his or her name on positive notification records. The FHWA does not

believe a driver should be subject to the consequences of the rule

based on results that are not signed by a MRO. Therefore, the MRO's

signature must be handwritten by the MRO. The MRO's staff will not be

allowed to sign or rubber stamp verified positive test results for the

MRO. The MRO's staff, however, would be allowed to rubber stamp

negative test results for the MRO when the MRO delegates such authority

to the MRO staff. At this time, the FHWA shall not allow electronic

signature technology to be used. If such electronic signature

technology is considered in the future, the public will be provided an

opportunity to comment on such a proposal at that time.

Inquiring for Alcohol and Controlled Substances Information From

Previous Employers

The FHWA has had numerous questions about the new requirement to

obtain prior positive testing information from former employers. Many

questions have arisen about the good faith effort discussed in the

preamble and about other provisions of the section. Also, since

publication of the alcohol and drug testing rule, Congress enacted

legislation requiring interstate motor carriers subject to Sec. 391.23

to obtain safety information from former employers of drivers similar

to that required under Sec. 382.413 (Hazardous Materials Transportation

Authorization Act of 1994 (HazMat Act), Pub. L. 103-311, sec. 114). The

FHWA will provide notice and an opportunity for comment in a future

rulemaking on Sec. 391.23 about possible conforming changes to

Sec. 382.413.

Section 382.413 requires the sharing of information on certain

violations of part 382--positive drug test results, alcohol results of

0.04 alcohol concentration or greater, and refusals to be tested. It

should be noted that the records required to be obtained under

Sec. 382.413 are limited to only those records generated under part 382

after January 1, 1995. See paragraph (h). Employers are expected to

request the information from former employers as soon as the employer

expects to use/hire the driver to drive or perform other safety-

sensitive functions.

The rule continues to require that, if feasible, the employer

obtain the information prior to the first performance of safety-

sensitive functions by a driver. If obtaining the information prior to

the driver's first performance of safety-sensitive functions for the

employer is not feasible, the information should be obtained as soon as

possible, but not more than 14 days later. If a driver leaves a new

employer before the new employer obtains the information, the new

employer must continue to attempt to obtain the information. In

response to inquiry on this point, a clarifying amendment to

Sec. 382.413(b) expressly

[[Page 9550]]

limits this provision to drivers actually hired and used by the

employer to perform safety-sensitive functions. A prospective employer

need not obtain the information from an employer which tested but did

not hire a driver. This is consistent with Sec. 391.21, which requires

drivers to list only previous employers. However, a prospective

employer may request the information if it chooses to obtain the

information.

In another clarifying change, Sec. 382.413(a)(2) is being added to

explain that a new employer may obtain from a former employer

information on all records of that employer relevant to

Sec. 382.413(a)(1) (i)-(iii). This includes not only that information

recorded as the result of the driver's violations of the rules by that

former employer, but also any records of violations within the past two

years which the former employer obtained from other former employers.

For example, Sue Driver is applying for a job with ABC Trucking. Ms.

Driver notes on her application that she previously drove CMVs for

three employers--DEF City Schools, XYZ Airlines, and the Minnesota DOT

(MnDOT). ABC Trucking obtains from Ms. Driver three written

authorization requests to obtain information required by

Sec. 382.413(a)(1) and transmits them to the three employers. In

response to the request, DEF City Schools transmits all the relevant

information it has on file, including not only the information

resulting from tests it administered, but also all the information it

has in its files from XYZ Airlines and the MnDOT, if any, which it had

obtained pursuant to Sec. 382.413 and which referred to tests occurring

during the past two years. No information beyond the two year period is

required to be obtained. ABC Trucking would then have a complete,

perhaps overlapping, picture of Ms. Driver's testing and violation

history. ABC Trucking may, in turn, pass this information along to the

next employer with the information ABC develops from Ms. Driver's ABC

Trucking employment, provided it falls within the two year time period.

New and prospective employers should ensure that the driver's

written consent authorizes former employers to disclose all

prohibitions listed under Sec. 382.413(a)(1), that occurred within the

previous two years, of which the former employer has knowledge.

Otherwise, a former employer may be prohibited by Sec. 382.405(f) from

passing along to the inquiring employer any Sec. 382.413(a)(1)

information that was obtained from another previous employer. Section

382.405(f) states that records under part 382 may only be released to a

subsequent employer upon receipt of written authorization from a

driver. Disclosure of the part 382 records by the subsequent employer

is also permitted only as expressly authorized by the terms of the

driver's signed authorization. If the driver's authorization had

prohibited the subsequent employer from disclosing the information,

sharing that information with the inquiring employer would be in

violation of Sec. 382.405(f).

In another change, Sec. 382.413(f) is being added to explain that a

new employer may obtain directly from the driver the information

required to be shared in Sec. 382.413(a)(1) (i)-(iii). The purpose of

the provision is to facilitate information exchange where it might not

otherwise be possible. Drivers may be the sole source of their testing

records when their previous employers have gone out of business or

refuse to provide the required information. Given the fluidity of

driver-employer relationships in the commercial motor vehicle industry,

employers in some situations might find it difficult to obtain the

necessary testing information on certain drivers. Allowing drivers to

present the information should prevent Sec. 382.413 from being a

hindrance to operations while still ensuring that accurate information

is exchanged. It should also result in more information being

exchanged.

An employer presented with testing information from a driver must

assure itself that the copies of former employer's records provided by

the driver are true and accurate. The rule does not specify how an

employer can assure itself that the copies of former employer's testing

records are true and accurate and it may vary on a case-by-case basis.

One method might be to transmit a confidential fax to the former

employer's (listed on the employment application required by

Sec. 383.35) testing program representative, the driver's written

authorization for release of specific information and the list provided

by the driver. The prospective employer would then telephone the former

employer to verify the information on the testing record copies. A

former employer who has a driver's written authorization in hand and

verifies a prospective employer's inquiry over the telephone is less

sensitive to confidentiality than the former employer providing the

information without any written authorization. Verification might also

have to be made with SAPs directly when the former employer did not

provide for a full rehabilitative program. Prospective employer

verification of this information should help prevent drivers who have

violated the rules by testing positive from continually skipping from

one employer to the next without getting needed treatment. These

drivers will be subject to this previous employer verification check at

every employer where the drivers seek work. Former employers will be

able to share information on these drivers with prospective employers

about the problems with alcohol and/or drugs these drivers have had in

the past.

For example, Sam Trip works as an occasional driver for interstate

motor carriers that use his services in accordance with Sec. 391.63.

Mr. Trip arranges with PWC Contract Carriers to haul a load from

Chicago to Kansas City. PWC Contract Carriers continues to be subject

to Sec. 383.35 and must obtain an employment application from Sam Trip.

Mr. Trip lists three employers where he worked as a CMV operator since

January 1, 1995. Mr. Trip also provides copies of his testing records

for the period January 1, 1995, to the present. PWC Contract Carriers

transmits by confidential telecommunications the information in Sam

Trip's records for the past two years, including testing information

from January 1, 1995, with Mr. Trip's written authorization for release

of such information, verifies the information to be accurate, and

allows Mr. Trip to haul its load to Kansas City.

A subject of many questions since the publication of the February

15, 1994, final rule is the discussion of good faith effort which

appeared in the preamble to the final rule. In response, the good faith

concept is being incorporated into Sec. 382.413(b) of the rule. It is

recognized that, given the high level of fluidity of the motor carrier

population, obtaining responses to information requests may not always

prove to be easy. Former employers may have gone out of business,

changed locations, been less than diligent in reporting, or simply

refused to respond. Drivers and new employers should not be punished

for this situation when they have been diligent in requesting the

information. Therefore, it is provided that an employer may not use a

driver for more than 14 days without having made a good faith effort to

obtain the information.

Good faith in this context means a request of each former employer

listed on the driver's employment application or known to exist. Where

information is not forthcoming, a good faith effort consists of

something more than the original mailed request for information and

will vary depending on the situation. Except where there is a clear

refusal by the former employer to transmit the information, rendering

[[Page 9551]]

further requests futile, there should also be a follow-up attempt,

preferably by telephone, to obtain the information. Refusals to respond

should be reported to the FHWA for investigation as a violation of the

requirement in Sec. 382.405(f) to release information to a subsequent

employer.

In keeping with the intent of this section, there must be a good

faith effort in the first instance to obtain the information before

permitting the driver to drive. If that is not feasible, then the

information should be obtained as soon as possible, but no later than

expiration of the 14-day period. An employer is certainly not acting in

good faith when only beginning to attempt to obtain the information on

the 13th day. Moreover, if, for example, it is possible to obtain the

information in 5 days, it is not good faith and is a violation of the

rule to wait until the 12th day to obtain it. In most circumstances,

good faith dictates that the information should be requested by the new

employer immediately after making a conditional offer of employment.

If, after making a good faith effort, the information is not

available, Sec. 382.413(c) requires a record to be made of the attempt.

The employer may then continue to use the driver. Paragraph (c) also

requires all information obtained in response to a request under

paragraph (a) to be recorded, including failures to obtain the

information. This includes the information in paragraph (a)(1) (i)-

(iii) on violations, as well as the information that the former

employer has no records of any violations. If the information somehow

is made available after the 14-day period, the employer would then be

obligated to take appropriate action on it, including not using a

driver with a violation who has not been subsequently evaluated by an

SAP.

A typical good faith effort would begin with the employer obtaining

the driver's written consent on the employer's letterhead stationary.

The driver should complete the document at the time the driver prepares

other documents in the hiring process (e.g., the document the employer

is required to obtain from the driver in compliance with Sec. 383.35

Notification of Previous Employment or Sec. 391.21 Application for

Employment). Immediately after the employer makes a conditional offer

of employment, a written consent letter is sent via certified mail to

the former employer(s), along with instructions on how the information

should be transmitted back to the requesting employer (e.g., by secure

and confidential facsimile, by certified mail, or by telephone to a

designated person).

After a reasonable period without a response, the employer should

contact the driver's former employers' alcohol and drug testing program

managers to ask about the status of the request to obtain the driver's

testing records. The employer should not wait until a few days before

the first time the employer uses the driver to perform safety-sensitive

functions to make a follow-up contact with the former employers. Former

employers are required to forward, upon receipt of a former driver's

specific written consent, their testing information to the driver, the

employer or any third party the driver designates. Failure to do so is

a violation of Sec. 382.405.

If a driver's former employer has gone out of business or refuses

to comply with part 382, subpart D, requirements to forward its testing

information about the driver to the new employer, or for some other

reason the employer cannot obtain the testing information from a

particular former employer, the employer must document the facts and

any related information and retain this information in the employer's

files.

Finally, the section heading is being changed to clarify the intent

of the section and the current Sec. 382.413(a) is being removed. The

FHWA explained in the February 15, 1994, final rule preamble that

paragraph (a) restated Sec. 382.405(b) in terms of the prospective

employer. The FHWA wrote in the preamble ``An employer may obtain any

of the information retained by other employers under part 382, pursuant

to a driver's consent.'' Because this paragraph merely repeats

Sec. 382.405(f) requirements, it is being removed.

Part 391, Subpart H Record Retention

Questions have also been asked about whether interstate motor

carriers who prepare and maintain records under part 391 may discard

those records when, in accordance with Sec. 391.125, they cease

compliance with part 391 and begin complying with part 382. The intent

of the FHWA was to terminate compliance with the applicability,

consequences, and testing requirements of part 391. It was the FHWA's

intent that the records prepared and maintained under part 391 would

continue to be kept in accordance with part 382. The FHWA is amending

Sec. 391.125 to specify that the recordkeeping requirements of part

391, subpart H, will be transferred to part 382. Also, part 382 is

being amended to note that records generated under part 391, subpart H,

must be maintained under Sec. 382.401(c)(6)(v).

Possession of Alcohol

The FHWA has had numerous inquiries about the alcohol possession

prohibition in parts 382 and 392. The FHWA has reconsidered its

position on whether prohibiting unmanifested possession of alcohol on

commercial motor vehicles is necessary given the new regulations for

alcohol use. The FHWA believes the possession prohibition is not needed

in part 382.

Section 392.5 prohibits the possession of alcoholic beverages and

is generally enforced as a part of roadside inspections by FHWA and

State officials. Formerly, Sec. 392.5 prohibited possession of

intoxicating beverages. On February 15, 1994 (59 FR 7484), Sec. 392.5

was amended to prohibit possession of ``alcoholic beverages.'' The

intent of Sec. 392.5 is to prohibit the carrying of any substance on a

CMV that could be consumed by the driver and result in impairment.

However, it does not prohibit the possession of other forms of alcohol

that would be used for the safe operation of commercial motor vehicles,

such as alcohol formulations to be used in the fuel tank, on the

windshield, as cleaning agents, and for other safety uses.

Section 382.204, in contrast, could be construed as prohibiting the

possession of substances such as windshield washer fluid, denatured

alcohol, fuel line antifreeze, rubbing alcohol, and other products that

contain alcohol and have been allowed in the past for the safe

operation of CMVs. This section could also be construed to prohibit the

possession of shaving lotion, cologne, or room deodorizers. This is the

case because a broader definition of alcohol was used in part 382,

rather than ``alcoholic beverage.'' The FHWA believes, however, that

mere possession of alcohol in forms other than beverage does not render

a person unable to safely operate a CMV. Moreover, the new testing

regulations for alcohol will provide controls in addition to the

amended Sec. 392.5 to ensure that impaired drivers do not operate CMVs.

The FHWA does not believe, therefore, that it is necessary to repeat an

alcohol possession prohibition in part 382 and is removing it.

The FHWA will continue to prohibit the possession of alcoholic

beverages in Sec. 392.5 for interstate motor carriers and drivers. The

term ``alcoholic beverage'' is not defined in the general definitions

of Sec. 390.5, so the FHWA has decided to amend Sec. 392.5 to add the

content of the definition in Sec. 383.5. This definition is consistent

with the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) and is

restricted to beer, wine, and

[[Page 9552]]

distilled spirits as defined under the Internal Revenue Code of 1954.

In addition, consistent with an interpretation published on

November 17, 1993 (58 FR 60734), the FHWA is explaining the exception

for the possession of alcoholic beverages on buses and motorcoachs in

greater detail. The FHWA will not prohibit motor carriers from

transporting alcoholic beverages for distribution to passengers, or

alcoholic beverages that have been brought on board by passengers for

the passengers' personal consumption. However, any driver who is seated

in the passenger seating area or who is resting in sleeper berth

equipment shall be prohibited from possessing alcoholic beverages. It

should be noted, however, that States may have stricter laws regarding

whether bus passengers may possess alcoholic beverages. If a State

would have a stricter law regarding bus passenger possession of

alcoholic beverages, such a law would not be preempted by this rule.

The FHWA has had, and will continue to have, a strong policy of

zero tolerance of consumption and use of alcohol by commercial motor

vehicle drivers. The consumption or presence in the body of any form of

alcohol, including any alcoholic mixture, preparation, or beverage, is

strictly prohibited while driving. This includes any substance

containing alcohol, including, but not limited to, windshield washer

fluid, liquid fuels, fuel line antifreeze, denatured alcohol, shaving

lotion, cologne, beer, wine, and distilled spirits. In terms of

possession, the form of prohibited alcohol is narrower. Drivers subject

to Sec. 392.5 may not possess beer, wine, or distilled spirits. Many

States have laws that are similar to Sec. 392.5 regarding the

possession of alcoholic beverages for commercial motor vehicle drivers

operating in intrastate commerce and the FHWA does not believe that it

must supersede those State laws. The FHWA will allow those States to

use and enforce those laws without expressly preempting them.

Metric System

The Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418,

sec. 5164) amended the Metric Conversion Act of 1975 to require, among

other things, that each Federal agency, by the end of the fiscal year

1992, use the metric system of measurement in its procurements, grants,

and other business-related activities, except to the extent that such

use is impractical or is likely to cause significant inefficiencies or

loss of markets to United States firms, such as when foreign

competitors are producing competing products in non-metric units.

The term ``metric system'' means the International System of Units

(SI) established by the General Conference of Weights and Measures in

1960, as interpreted or modified from time to time for the United

States by the Secretary of Commerce under the authority of the Metric

Conversion Act of 1975 and the Metric Education Act of 1978. The

Commerce Department requires Federal agencies to coordinate and plan

for the use of the metric system in their procurements, grants and

other business-related activities consistent with the requirements of

the Metric Conversion Act, as amended. The FHWA has begun the

transition process to convert to the metric system. In so doing, the

FHWA believes it must convert to metric equivalents those parts of the

definition of the term, ``commercial motor vehicle,'' which use gross

vehicle weight ratings in the U.S. Customary System of measurement. The

FHWA is therefore taking this opportunity to change the definition to

the SI system in line with 15 CFR part 19. The customary equivalent is

provided parenthetically for convenience.

Locations of Regional Offices of Motor Carriers

The FHWA regional Offices of Motor Carriers for regions four and

nine have recently moved. The FHWA, therefore, is updating the title of

the section and the addresses in the table found in Sec. 390.27.

Rulemaking Analyses and Notices

Because this final rule simply makes minor edits to the FHWA's

alcohol and drug testing rules to clarify these regulations, the FHWA

believes that prior notice and opportunity for comment are unnecessary

under 5 U.S.C. 553(b)(3)(B). In addition, due to the technical nature

of this final rule, the FHWA has determined that prior notice and

opportunity for comment are not required under the Department of

Transportation's regulatory policies and procedures, as it is not

anticipated that such action would result in the receipt of useful

information. In this final rule, the FHWA is not exercising discretion

in a way that could be meaningfully affected by public comment.

This action also effectively grants an exemption from an alcohol

and drug testing regulation to employers and MROs. The amendments to

Sec. 382.407 relieve MROs from the requirement to prepare, in writing,

a document if they wish to legibly photocopy Copy 4 of the Federal

Chain of Custody form, fill in verified positive or negative test

information, add a statement about compliance with 49 CFR parts 40 and

382, and sign the photocopy.

Because this final rule relieves employers and MROs from certain

regulations cited above, the FHWA also believes that good cause exists

to publish this rule less than 30 days before it is effective, as is

ordinarily required under 5 U.S.C. 553(d). Accordingly, the FHWA is

proceeding directly to a final rule which is effective on its date of

publication.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is neither a significant

regulatory action under Executive Order 12866 or significant under the

Department of Transportation's regulatory policies and procedures. It

is anticipated that the economic impact of this action will not be

substantial because this rule simply makes minor, technical changes to

the Federal Motor Carrier Safety Regulations to clarify the FHWA's

alcohol and drug testing rules. Therefore, a full regulatory evaluation

is not warranted.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this rule on small

entities. This final rule will technically amend and clarify the

requirements for employers to test drivers for the use of alcohol and

controlled substances. Accordingly, the FHWA certifies that this action

will not have a significant economic impact on a substantial number of

small entities.

Executive Order 12612 (Federalism Assessment)

The amendments made by this rule do not have a substantial direct

effect on the States or on the relationship or distribution of power

between the national government and the States because they do little

to limit the policymaking discretion of the States. To the extent that

these amendments do require States to make minor modifications to their

laws or regulations, the authority to preempt inconsistent State and

local laws, regulations, rules and orders was expressly provided under

49 U.S.C. 31306(g). Therefore, the FHWA is not required to prepare a

separate Federalism Assessment for this rule.

[[Page 9553]]

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities apply to this program.

Paperwork Reduction Act

The Office of Management and Budget (OMB) has approved 2,900,717

hours for the information collection requirements in the existing drug

and alcohol testing regulations at 49 CFR part 382, under OMB control

no. 2125-0543. One of the changes contained in this rule will decrease

the burden hours required to comply with these regulations by a

significant amount. Other changes are due to technical modifications,

clarification of language, and closing loopholes for drivers with

numerous previous employers. Also, a rule amendment published on March

13, 1995, contains a significant decrease in burden hours. Accordingly,

the overall effect of these amendments is to decrease the burden of

complying with the recordkeeping and reporting requirements of the drug

and alcohol testing regulations.

In addition, the FHWA is clarifying the record retention provisions

in Sec. 382.401 to require that records documenting supervisors'

reasonable suspicion training be retained for two years after the

supervisor ceases to perform the tasks requiring this training,

replacing the current requirement to retain such records for two years

after the training is completed.

Finally, the total number of burden hours will be decreased by this

final rule as a result of the FHWA allowing MROs to send Copy 4 of the

Federal Custody and Control form rather than complete a new written

document that is signed as a notification of test results to the

employer of each driver tested. The net effect of these changes will be

a decrease in burden hours. The FHWA will be sending a revised burden

estimate for this information collection request to the Office of

Management and Budget.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has

determined that this action will not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR Parts 382, 383, 390, 391, and 392

Alcohol testing, Controlled substances testing, Drivers, Highways

and roads, Highway safety, Motor carriers, Motor vehicle safety,

Reporting and recordkeeping requirements, Safety, Transportation.

Issued on: February 29, 1996.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA is amending title 49,

CFR, subtitle B, chapter III, parts 382, 383, 390, 391, and 392 as set

forth below:

1. Part 382 is revised to read as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

Subpart A--General

Sec.

382.101 Purpose.

382.103 Applicability.

382.105 Testing procedures.

382.107 Definitions.

382.109 Preemption of State and local laws.

382.111 Other requirements imposed by employers.

382.113 Requirement for notice.

382.115 Starting date for testing programs.

Subpart B--Prohibitions

382.201 Alcohol concentration.

382.205 On-duty use.

382.207 Pre-duty use.

382.209 Use following an accident.

382.211 Refusal to submit to a required alcohol or controlled

substances test.

382.213 Controlled substances use.

382.215 Controlled substances testing.

Subpart C--Tests Required

382.301 Pre-employment testing.

382.303 Post-accident testing.

382.305 Random testing.

382.307 Reasonable suspicion testing.

382.309 Return-to-duty testing.

382.311 Follow-up testing.

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

Confidentiality

382.401 Retention of records.

382.403 Reporting of results in a management information system.

382.405 Access to facilities and records.

382.407 Medical review officer notifications to the employer.

382.409 Medical review officer record retention for controlled

substances.

382.411 Employer notifications.

382.413 Inquiries for alcohol and controlled substances information

from previous employers.

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

Conduct

382.501 Removal from safety-sensitive function.

382.503 Required evaluation and testing.

382.505 Other alcohol-related conduct.

382.507 Penalties.

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

Training, and Referral

382.601 Employer obligation to promulgate a policy on the misuse of

alcohol and use of controlled substances.

382.603 Training for supervisors.

382.605 Referral, evaluation, and treatment.

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

CFR 1.48.

Subpart A--General

Sec. 382.101 Purpose.

The purpose of this part is to establish programs designed to help

prevent accidents and injuries resulting from the misuse of alcohol or

use of controlled substances by drivers of commercial motor vehicles.

Sec. 382.103 Applicability.

(a) This part applies to every person and to all employers of such

persons who operate a commercial motor vehicle in commerce in any

State, and is subject to:

(1) The commercial driver's license requirements of part 383 of

this subchapter;

(2) The Licencia Federal de Conductor (Mexico) requirements; or

(3) The commercial driver's license requirements of the Canadian

National Safety Code.

(b) An employer who employs himself/herself as a driver must comply

with both the requirements in this part that apply to employers and the

requirements in this part that apply to drivers. An employer who

employs only himself/herself as a driver shall implement a random

alcohol and controlled substances testing program of two or more

covered employees in the random testing selection pool.

(c) The exceptions contained in Sec. 390.3(g) of this subchapter do

not apply to this part. The employers and drivers identified in

Sec. 390.3(g) must comply with the requirements of this part, unless

otherwise specifically provided in paragraph (d) of this section.

(d) Exceptions. This part shall not apply to employers and their

drivers:

(1) Required to comply with the alcohol and/or controlled

substances testing requirements of parts 653 and

[[Page 9554]]

654 of this title (Federal Transit Administration alcohol and

controlled substances testing regulations); or

(2) Who a State must waive from the requirements of part 383 of

this subchapter. These individuals include active duty military

personnel; members of the reserves; and members of the national guard

on active duty, including personnel on full-time national guard duty,

personnel on part-time national guard training and national guard

military technicians (civilians who are required to wear military

uniforms), and active duty U.S. Coast Guard personnel;

(3) Who a State has, at its discretion, exempted from the

requirements of part 383 of this subchapter. These individuals may be:

(i) Operators of a farm vehicle which is:

(A) Controlled and operated by a farmer;

(B) Used to transport either agricultural products, farm machinery,

farm supplies, or both to or from a farm;

(C) Not used in the operations of a common or contract motor

carrier; and

(D) Used within 241 kilometers (150 miles) of the farmer's farm.

(ii) Firefighters or other persons who operate commercial motor

vehicles which are necessary for the preservation of life or property

or the execution of emergency governmental functions, are equipped with

audible and visual signals, and are not subject to normal traffic

regulation.

Sec. 382.105 Testing procedures.

Each employer shall ensure that all alcohol or controlled

substances testing conducted under this part complies with the

procedures set forth in part 40 of this title. The provisions of part

40 of this title that address alcohol or controlled substances testing

are made applicable to employers by this part.

Sec. 382.107 Definitions.

Words or phrases used in this part are defined in Secs. 386.2 and

390.5 of this subchapter, and Sec. 40.3 of this title, except as

provided herein--

Alcohol means the intoxicating agent in beverage alcohol, ethyl

alcohol, or other low molecular weight alcohols including methyl and

isopropyl alcohol.

Alcohol concentration (or content) means the alcohol in a volume of

breath expressed in terms of grams of alcohol per 210 liters of breath

as indicated by an evidential breath test under this part.

Alcohol use means the consumption of any beverage, mixture, or

preparation, including any medication, containing alcohol.

Commerce means:

(1) Any trade, traffic or transportation within the jurisdiction of

the United States between a place in a State and a place outside of

such State, including a place outside of the United States and

(2) Trade, traffic, and transportation in the United States which

affects any trade, traffic, and transportation described in paragraph

(1) of this definition.

Commercial motor vehicle means a motor vehicle or combination of

motor vehicles used in commerce to transport passengers or property if

the motor vehicle--

(1) Has a gross combination weight rating of 11,794 or more

kilograms (26,001 or more pounds) inclusive of a towed unit with a

gross vehicle weight rating of more than 4,536 kilograms (10,000

pounds); or

(2) Has a gross vehicle weight rating of 11,794 or more kilograms

(26,001 or more pounds); or

(3) Is designed to transport 16 or more passengers, including the

driver; or

(4) Is of any size and is used in the transportation of materials

found to be hazardous for the purposes of the Hazardous Materials

Transportation Act and which require the motor vehicle to be placarded

under the Hazardous Materials Regulations (49 CFR part 172, subpart F).

Confirmation test for alcohol testing means a second test,

following a screening test with a result of 0.02 or greater, that

provides quantitative data of alcohol concentration. For controlled

substances testing means a second analytical procedure to identify the

presence of a specific drug or metabolite which is independent of the

screen test and which uses a different technique and chemical principle

from that of the screen test in order to ensure reliability and

accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only

authorized confirmation method for cocaine, marijuana, opiates,

amphetamines, and phencyclidine.)

Consortium means an entity, including a group or association of

employers or contractors, that provides alcohol or controlled

substances testing as required by this part, or other DOT alcohol or

controlled substances testing rules, and that acts on behalf of the

employers.

Controlled substances mean those substances identified in

Sec. 40.21(a) of this title.

Disabling damage means damage which precludes departure of a motor

vehicle from the scene of the accident in its usual manner in daylight

after simple repairs.

(1) Inclusions. Damage to motor vehicles that could have been

driven, but would have been further damaged if so driven.

(2) Exclusions.

(i) Damage which can be remedied temporarily at the scene of the

accident without special tools or parts.

(ii) Tire disablement without other damage even if no spare tire is

available.

(iii) Headlight or taillight damage.

(iv) Damage to turn signals, horn, or windshield wipers which make

them inoperative.

DOT Agency means an agency (or ``operating administration'') of the

United States Department of Transportation administering regulations

requiring alcohol and/or drug testing (14 CFR parts 61, 63, 65, 121,

and 135; 49 CFR parts 199, 219, 382, 653 and 654), in accordance with

part 40 of this title.

Driver means any person who operates a commercial motor vehicle.

This includes, but is not limited to: Full time, regularly employed

drivers; casual, intermittent or occasional drivers; leased drivers and

independent, owner-operator contractors who are either directly

employed by or under lease to an employer or who operate a commercial

motor vehicle at the direction of or with the consent of an employer.

Employer means any person (including the United States, a State,

District of Columbia, tribal government, or a political subdivision of

a State) who owns or leases a commercial motor vehicle or assigns

persons to operate such a vehicle. The term employer includes an

employer's agents, officers and representatives.

Licensed medical practitioner means a person who is licensed,

certified, and/or registered, in accordance with applicable Federal,

State, local, or foreign laws and regulations, to prescribe controlled

substances and other drugs.

Performing (a safety-sensitive function) means a driver is

considered to be performing a safety-sensitive function during any

period in which he or she is actually performing, ready to perform, or

immediately available to perform any safety-sensitive functions.

Positive rate means the number of positive results for random

controlled substances tests conducted under this part plus the number

of refusals of random controlled substances tests required by this

part, divided by the total of random controlled substances tests

conducted under this part plus the number of refusals of random tests

required by this part.

Refuse to submit (to an alcohol or controlled substances test)

means that a driver:

(1) Fails to provide adequate breath for alcohol testing as

required by part 40

[[Page 9555]]

of this title, without a valid medical explanation, after he or she has

received notice of the requirement for breath testing in accordance

with the provisions of this part,

(2) Fails to provide an adequate urine sample for controlled

substances testing as required by part 40 of this title, without a

genuine inability to provide a specimen (as determined by a medical

evaluation), after he or she has received notice of the requirement for

urine testing in accordance with the provisions of this part, or

(3) Engages in conduct that clearly obstructs the testing process.

Safety-sensitive function means all time from the time a driver

begins to work or is required to be in readiness to work until the time

he/she is relieved from work and all responsibility for performing

work. Safety-sensitive functions shall include:

(1) All time at an employer or shipper plant, terminal, facility,

or other property, or on any public property, waiting to be dispatched,

unless the driver has been relieved from duty by the employer;

(2) All time inspecting equipment as required by Secs. 392.7 and

392.8 of this subchapter or otherwise inspecting, servicing, or

conditioning any commercial motor vehicle at any time;

(3) All time spent at the driving controls of a commercial motor

vehicle in operation;

(4) All time, other than driving time, in or upon any commercial

motor vehicle except time spent resting in a sleeper berth (a berth

conforming to the requirements of Sec. 393.76 of this subchapter);

(5) All time loading or unloading a vehicle, supervising, or

assisting in the loading or unloading, attending a vehicle being loaded

or unloaded, remaining in readiness to operate the vehicle, or in

giving or receiving receipts for shipments loaded or unloaded; and

(6) All time repairing, obtaining assistance, or remaining in

attendance upon a disabled vehicle.

Screening test (also known as initial test) In alcohol testing, it

means an analytical procedure to determine whether a driver may have a

prohibited concentration of alcohol in his or her system. In controlled

substance testing, it means an immunoassay screen to eliminate

``negative'' urine specimens from further consideration.

Substance abuse professional means a licensed physician (Medical

Doctor or Doctor of Osteopathy), or a licensed or certified

psychologist, social worker, employee assistance professional, or

addiction counselor (certified by the National Association of

Alcoholism and Drug Abuse Counselors Certification Commission) with

knowledge of and clinical experience in the diagnosis and treatment of

alcohol and controlled substances-related disorders.

Violation rate means the number of drivers (as reported under

Sec. 382.305 of this part) found during random tests given under this

part to have an alcohol concentration of 0.04 or greater, plus the

number of drivers who refuse a random test required by this part,

divided by the total reported number of drivers in the industry given

random alcohol tests under this part plus the total reported number of

drivers in the industry who refuse a random test required by this part.

Sec. 382.109 Preemption of State and local laws.

(a) Except as provided in paragraph (b) of this section, this part

preempts any State or local law, rule, regulation, or order to the

extent that:

(1) Compliance with both the State or local requirement and this

part is not possible; or

(2) Compliance with the State or local requirement is an obstacle

to the accomplishment and execution of any requirement in this part.

(b) This part shall not be construed to preempt provisions of State

criminal law that impose sanctions for reckless conduct leading to

actual loss of life, injury, or damage to property, whether the

provisions apply specifically to transportation employees, employers,

or the general public.

Sec. 382.111 Other requirements imposed by employers.

Except as expressly provided in this part, nothing in this part

shall be construed to affect the authority of employers, or the rights

of drivers, with respect to the use of alcohol, or the use of

controlled substances, including authority and rights with respect to

testing and rehabilitation.

Sec. 382.113 Requirement for notice.

Before performing an alcohol or controlled substances test under

this part, each employer shall notify a driver that the alcohol or

controlled substances test is required by this part. No employer shall

falsely represent that a test is administered under this part.

Sec. 382.115 Starting date for testing programs.

(a) Large domestic employers. Each employer with fifty or more

drivers on March 17, 1994, will implement the requirements of this part

beginning on January 1, 1995.

(b) Small domestic employers. Each employer with less than fifty

drivers on March 17, 1994, will implement the requirements of this part

beginning on January 1, 1996.

(c) All domestic employers. Each domestic employer that begins

commercial motor vehicle operations after March 17, 1994, but before

January 1, 1996, will implement the requirements of this part beginning

on January 1, 1996. However, such an employer may be subject to the

requirements of part 391, subpart H on the date they begin operations,

if operating commercial motor vehicles in interstate commerce. A

domestic employer that begins commercial motor vehicle operations on or

after January 1, 1996, will implement the requirements of this part on

the date the employer begins such operations.

(d) Large foreign employers. Each foreign-domiciled employer with

fifty or more drivers assigned to operate commercial motor vehicles in

North America on December 17, 1995, must implement the requirements of

this part beginning on July 1, 1996.

(e) Small foreign employers. Each foreign-domiciled employer with

less than fifty drivers assigned to operate commercial motor vehicles

in North America on December 17, 1995, must implement the requirements

of this part beginning on July 1, 1997.

(f) All foreign employers. Each foreign-domiciled employer that

begins commercial motor vehicle operations in the United States after

December 17, 1995, but before July 1, 1997, must implement the

requirements of this part beginning on July 1, 1997. A foreign employer

that begins commercial motor vehicle operations in the United States on

or after July 1, 1997, must implement the requirements of this part on

the date the foreign employer begins such operations.

Subpart B--Prohibitions

Sec. 382.201 Alcohol concentration.

No driver shall report for duty or remain on duty requiring the

performance of safety-sensitive functions while having an alcohol

concentration of 0.04 or greater. No employer having actual knowledge

that a driver has an alcohol concentration of 0.04 or greater shall

permit the driver to perform or continue to perform safety-sensitive

functions.

Sec. 382.205 On-duty use.

No driver shall use alcohol while performing safety-sensitive

functions. No employer having actual knowledge that a driver is using

alcohol while

[[Page 9556]]

performing safety-sensitive functions shall permit the driver to

perform or continue to perform safety- sensitive functions.

Sec. 382.207 Pre-duty use.

No driver shall perform safety-sensitive functions within four

hours after using alcohol. No employer having actual knowledge that a

driver has used alcohol within four hours shall permit a driver to

perform or continue to perform safety-sensitive functions.

Sec. 382.209 Use following an accident.

No driver required to take a post-accident alcohol test under

Sec. 382.303 of this part shall use alcohol for eight hours following

the accident, or until he/she undergoes a post- accident alcohol test,

whichever occurs first.

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

substances test.

No driver shall refuse to submit to a post-accident alcohol or

controlled substances test required under Sec. 382.303, a random

alcohol or controlled substances test required under Sec. 382.305, a

reasonable suspicion alcohol or controlled substances test required

under Sec. 382.307, or a follow-up alcohol or controlled substances

test required under Sec. 382.311. No employer shall permit a driver who

refuses to submit to such tests to perform or continue to perform

safety-sensitive functions.

Sec. 382.213 Controlled substances use.

(a) No driver shall report for duty or remain on duty requiring the

performance of safety-sensitive functions when the driver uses any

controlled substance, except when the use is pursuant to the

instructions of a licensed medical practitioner, as defined in

Sec. 382.107 of this part, who has advised the driver that the

substance will not adversely affect the driver's ability to safely

operate a commercial motor vehicle.

(b) No employer having actual knowledge that a driver has used a

controlled substance shall permit the driver to perform or continue to

perform a safety-sensitive function.

(c) An employer may require a driver to inform the employer of any

therapeutic drug use.

Sec. 382.215 Controlled substances testing.

No driver shall report for duty, remain on duty or perform a

safety-sensitive function, if the driver tests positive for controlled

substances. No employer having actual knowledge that a driver has

tested positive for controlled substances shall permit the driver to

perform or continue to perform safety-sensitive functions.

Subpart C--Tests Required

Sec. 382.301 Pre-employment testing.

(a) Prior to the first time a driver performs safety-sensitive

functions for an employer, the driver shall undergo testing for alcohol

and controlled substances as a condition prior to being used, unless

the employer uses the exception in paragraphs (c) and (d) of this

section. No employer shall allow a driver, who the employer intends to

hire or use, to perform safety-sensitive functions unless the driver

has been administered an alcohol test with a result indicating an

alcohol concentration less than 0.04, and has received a controlled

substances test result from the MRO indicating a verified negative test

result. If a pre-employment alcohol test result under this section

indicates an alcohol content of 0.02 or greater but less than 0.04, the

provision of Sec. 382.505 shall apply.

(b) Exception for pre-employment alcohol testing. An employer is

not required to administer an alcohol test required by paragraph (a) of

this section if:

(1) The driver has undergone an alcohol test required by this

section or the alcohol misuse rule of another DOT agency under part 40

of this title within the previous six months, with a result indicating

an alcohol concentration less than 0.04; and

(2) The employer ensures that no prior employer of the driver of

whom the employer has knowledge has records of a violation of this part

or the alcohol misuse rule of another DOT agency within the previous

six months.

(c) Exception for pre-employment controlled substances testing. An

employer is not required to administer a controlled substances test

required by paragraph (a) of this section if:

(1) The driver has participated in a controlled substances testing

program that meets the requirements of this part within the previous 30

days; and

(2) While participating in that program, either

(i) Was tested for controlled substances within the past 6 months

(from the date of application with the employer) or

(ii) Participated in the random controlled substances testing

program for the previous 12 months (from the date of application with

the employer); and

(3) The employer ensures that no prior employer of the driver of

whom the employer has knowledge has records of a violation of this part

or the controlled substances use rule of another DOT agency within the

previous six months.

(d)(1) An employer who exercises the exception in either paragraph

(b) or (c) of this section shall contact the alcohol and/or controlled

substances testing program(s) in which the driver participates or

participated and shall obtain and retain from the testing program(s)

the following information:

(i) Name(s) and address(es) of the program(s).

(ii) Verification that the driver participates or participated in

the program(s).

(iii) Verification that the program(s) conforms to part 40 of this

title.

(iv) Verification that the driver is qualified under the rules of

this part, including that the driver has not refused to be tested for

controlled substances.

(v) The date the driver was last tested for alcohol or controlled

substances.

(vi) The results of any tests taken within the previous six months

and any other violations of subpart B of this part.

(2) An employer who uses, but does not employ, a driver more than

once a year to operate commercial motor vehicles must obtain the

information in paragraph (d)(1) of this section at least once every six

months. The records prepared under this paragraph shall be maintained

in accordance with Sec. 382.401. If the employer cannot verify that the

driver is participating in a controlled substances testing program in

accordance with this part and part 40, the employer shall conduct a

pre-employment alcohol and/or controlled substances test.

(e) Nothwithstanding any other provisions of this subpart, all

provisions and requirements in this section pertaining to pre-

employment testing for alcohol are vacated as of May 1, 1995.

Sec. 382.303 Post-accident testing.

(a) As soon as practicable following an occurrence involving a

commercial motor vehicle operating on a public road in commerce, each

employer shall test for alcohol and controlled substances each

surviving driver:

(1) Who was performing safety-sensitive functions with respect to

the vehicle, if the accident involved the loss of human life; or

(2) Who receives a citation under State or local law for a moving

traffic violation arising from the accident, if the accident involved:

(i) Bodily injury to any person who, as a result of the injury,

immediately receives medical treatment away from the scene of the

accident; or

(ii) One or more motor vehicles incurring disabling damage as a

result of

[[Page 9557]]

the accident, requiring the motor vehicle to be transported away from

the scene by a tow truck or other motor vehicle.

(3) This table notes when a post-accident test is required to be

conducted by paragraphs (a)(1) and (a)(2) of this section.

Table for Sec. 382.303(a)(3)

------------------------------------------------------------------------

Test must be

Type of accident involved Citation issued to performed by

the CMV driver employer

------------------------------------------------------------------------

Human fatality.................. YES............... YES.

NO................ YES.

Bodily injury with immediate YES............... YES.

medical treatment away from the

scene.

NO................ NO.

Disabling damage to any motor YES............... YES.

vehicle requiring tow away.

NO................ NO.

------------------------------------------------------------------------

(b)(1) Alcohol tests. If a test required by this section is not

administered within two hours following the accident, the employer

shall prepare and maintain on file a record stating the reasons the

test was not promptly administered. If a test required by this section

is not administered within eight hours following the accident, the

employer shall cease attempts to administer an alcohol test and shall

prepare and maintain the same record. Records shall be submitted to the

FHWA upon request of the Associate Administrator.

(2) For the years stated in this paragraph, employers who submit

MIS reports shall submit to the FHWA each record of a test required by

this section that is not completed within eight hours. The employer's

records of tests that are not completed within eight hours shall be

submitted to the FHWA by March 15, 1996; March 15, 1997, and March 15,

1998, for calendar years 1995, 1996, and 1997, respectively. Employers

shall append these records to their MIS submissions. Each record shall

include the following information:

(i) Type of test (reasonable suspicion/post-accident);

(ii) Triggering event (including date, time, and location);

(iii) Reason(s) test could not be completed within eight hours;

(iv) If blood alcohol testing could have been completed within

eight hours, the name, address, and telephone number of the testing

site where blood testing could have occurred; and

(3) Records of alcohol tests that could not be completed in eight

hours shall be submitted to the FHWA at the following address: Attn:

Alcohol Testing Program, Office of Motor Carrier Research and Standards

(HCS-1), Federal Highway Administration, 400 Seventh Street, SW.,

Washington, DC 20590.

(4) Controlled substance tests. If a test required by this section

is not administered within 32 hours following the accident, the

employer shall cease attempts to administer a controlled substances

test, and prepare and maintain on file a record stating the reasons the

test was not promptly administered. Records shall be submitted to the

FHWA upon request of the Associate Administrator.

(c) A driver who is subject to post-accident testing shall remain

readily available for such testing or may be deemed by the employer to

have refused to submit to testing. Nothing in this section shall be

construed to require the delay of necessary medical attention for

injured people following an accident or to prohibit a driver from

leaving the scene of an accident for the period necessary to obtain

assistance in responding to the accident, or to obtain necessary

emergency medical care.

(d) An employer shall provide drivers with necessary post-accident

information, procedures and instructions, prior to the driver operating

a commercial motor vehicle, so that drivers will be able to comply with

the requirements of this section.

(e)(1) The results of a breath or blood test for the use of

alcohol, conducted by Federal, State, or local officials having

independent authority for the test, shall be considered to meet the

requirements of this section, provided such tests conform to the

applicable Federal, State or local alcohol testing requirements, and

that the results of the tests are obtained by the employer.

(2) The results of a urine test for the use of controlled

substances, conducted by Federal, State, or local officials having

independent authority for the test, shall be considered to meet the

requirements of this section, provided such tests conform to the

applicable Federal, State or local controlled substances testing

requirements, and that the results of the tests are obtained by the

employer.

(f) Exception. This section does not apply to:

(1) An occurrence involving only boarding or alighting from a

stationary motor vehicle; or

(2) An occurrence involving only the loading or unloading of cargo;

or

(3) An occurrence in the course of the operation of a passenger car

or a multipurpose passenger vehicle (as defined in Sec. 571.3 of this

title) by an employer unless the motor vehicle is transporting

passengers for hire or hazardous materials of a type and quantity that

require the motor vehicle to be marked or placarded in accordance with

Sec. 177.823 of this title.

Sec. 382.305 Random testing.

(a) Every employer shall comply with the requirements of this

section. Every driver shall submit to random alcohol and controlled

substance testing as required in this section.

(b)(1) Except as provided in paragraphs (c) through (e) of this

section, the minimum annual percentage rate for random alcohol testing

shall be 25 percent of the average number of driver positions.

(2) Except as provided in paragraphs (f) through (h) of this

section, the minimum annual percentage rate for random controlled

substances testing shall be 50 percent of the average number of driver

positions.

(c) The FHWA Administrator's decision to increase or decrease the

minimum annual percentage rate for alcohol testing is based on the

reported violation rate for the entire industry. All information used

for this determination is drawn from the alcohol management information

system reports required by Sec. 382.403 of this part. In order to

ensure reliability of the data, the FHWA Administrator considers the

quality and completeness of the reported data, may obtain additional

information or reports from employers, and may make appropriate

modifications in calculating the industry violation rate. Each year,

the FHWA Administrator will publish in the Federal Register the minimum

annual percentage rate for random alcohol testing of drivers. The new

minimum annual percentage rate for random alcohol testing will be

applicable starting January 1 of the calendar year following

publication.

(d)(1) When the minimum annual percentage rate for random alcohol

testing is 25 percent or more, the FHWA Administrator may lower this

rate to 10 percent of all driver positions if the FHWA Administrator

determines that the data received under the reporting requirements of

Sec. 382.403 for two consecutive calendar years indicate that the

violation rate is less than 0.5 percent.

(2) When the minimum annual percentage rate for random alcohol

testing is 50 percent, the FHWA Administrator may lower this rate to 25

percent of all driver positions if the FHWA Administrator determines

that the data received under the reporting

[[Page 9558]]

requirements of Sec. 382.403 for two consecutive calendar years

indicate that the violation rate is less than 1.0 percent but equal to

or greater than 0.5 percent.

(e)(1) When the minimum annual percentage rate for random alcohol

testing is 10 percent, and the data received under the reporting

requirements of Sec. 382.403 for that calendar year indicate that the

violation rate is equal to or greater than 0.5 percent, but less than

1.0 percent, the FHWA Administrator will increase the minimum annual

percentage rate for random alcohol testing to 25 percent for all driver

positions.

(2) When the minimum annual percentage rate for random alcohol

testing is 25 percent or less, and the data received under the

reporting requirements of Sec. 382.403 for that calendar year indicate

that the violation rate is equal to or greater than 1.0 percent, the

FHWA Administrator will increase the minimum annual percentage rate for

random alcohol testing to 50 percent for all driver positions.

(f) The FHWA Administrator's decision to increase or decrease the

minimum annual percentage rate for controlled substances testing is

based on the reported positive rate for the entire industry. All

information used for this determination is drawn from the controlled

substances management information system reports required by

Sec. 382.403 of this part. In order to ensure reliability of the data,

the FHWA Administrator considers the quality and completeness of the

reported data, may obtain additional information or reports from

employers, and may make appropriate modifications in calculating the

industry positive rate. Each year, the FHWA Administrator will publish

in the Federal Register the minimum annual percentage rate for random

controlled substances testing of drivers. The new minimum annual

percentage rate for random controlled substances testing will be

applicable starting January 1 of the calendar year following

publication.

(g) When the minimum annual percentage rate for random controlled

substances testing is 50 percent, the FHWA Administrator may lower this

rate to 25 percent of all driver positions if the FHWA Administrator

determines that the data received under the reporting requirements of

Sec. 382.403 for two consecutive calendar years indicate that the

positive rate is less than 1.0 percent. However, after the initial two

years of random testing by large employers and the initial first year

of testing by small employers under this section, the FHWA

Administrator may lower the rate the following calendar year, if the

combined positive testing rate is less than 1.0 percent, and if it

would be in the interest of safety.

(h) When the minimum annual percentage rate for random controlled

substances testing is 25 percent, and the data received under the

reporting requirements of Sec. 382.403 for any calendar year indicate

that the reported positive rate is equal to or greater than 1.0

percent, the FHWA Administrator will increase the minimum annual

percentage rate for random controlled substances testing to 50 percent

of all driver positions.

(i) The selection of drivers for random alcohol and controlled

substances testing shall be made by a scientifically valid method, such

as a random number table or a computer-based random number generator

that is matched with drivers' Social Security numbers, payroll

identification numbers, or other comparable identifying numbers. Under

the selection process used, each driver shall have an equal chance of

being tested each time selections are made.

(j) The employer shall randomly select a sufficient number of

drivers for testing during each calendar year to equal an annual rate

not less than the minimum annual percentage rate for random alcohol and

controlled substances testing determined by the FHWA Administrator. If

the employer conducts random testing for alcohol and/or controlled

substances through a consortium, the number of drivers to be tested may

be calculated for each individual employer or may be based on the total

number of drivers covered by the consortium who are subject to random

alcohol and/or controlled substances testing at the same minimum annual

percentage rate under this part or any DOT alcohol or controlled

substances random testing rule.

(k) Each employer shall ensure that random alcohol and controlled

substances tests conducted under this part are unannounced and that the

dates for administering random alcohol and controlled substances tests

are spread reasonably throughout the calendar year.

(l) Each employer shall require that each driver who is notified of

selection for random alcohol and/or controlled substances testing

proceeds to the test site immediately; provided, however, that if the

driver is performing a safety-sensitive function, other than driving a

commercial motor vehicle, at the time of notification, the employer

shall instead ensure that the driver ceases to perform the safety-

sensitive function and proceeds to the testing site as soon as

possible.

(m) A driver shall only be tested for alcohol while the driver is

performing safety-sensitive functions, just before the driver is to

perform safety-sensitive functions, or just after the driver has ceased

performing such functions.

(n) If a given driver is subject to random alcohol or controlled

substances testing under the random alcohol or controlled substances

testing rules of more than one DOT agency for the same employer, the

driver shall be subject to random alcohol and/or controlled substances

testing at the annual percentage rate established for the calendar year

by the DOT agency regulating more than 50 percent of the driver's

function.

(o) If an employer is required to conduct random alcohol or

controlled substances testing under the alcohol or controlled

substances testing rules of more than one DOT agency, the employer

may--

(1) Establish separate pools for random selection, with each pool

containing the DOT-covered employees who are subject to testing at the

same required minimum annual percentage rate; or

(2) Randomly select such employees for testing at the highest

minimum annual percentage rate established for the calendar year by any

DOT agency to which the employer is subject.

Sec. 382.307 Reasonable suspicion testing.

(a) An employer shall require a driver to submit to an alcohol test

when the employer has reasonable suspicion to believe that the driver

has violated the prohibitions of subpart B of this part concerning

alcohol. The employer's determination that reasonable suspicion exists

to require the driver to undergo an alcohol test must be based on

specific, contemporaneous, articulable observations concerning the

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

(b) An employer shall require a driver to submit to a controlled

substances test when the employer has reasonable suspicion to believe

that the driver has violated the prohibitions of subpart B of this part

concerning controlled substances. The employer's determination that

reasonable suspicion exists to require the driver to undergo a

controlled substances test must be based on specific, contemporaneous,

articulable observations concerning the appearance, behavior, speech or

body odors of the driver. The observations may include indications of

the chronic and withdrawal effects of controlled substances.

(c) The required observations for alcohol and/or controlled

substances

[[Page 9559]]

reasonable suspicion testing shall be made by a supervisor or company

official who is trained in accordance with Sec. 382.603 of this part.

The person who makes the determination that reasonable suspicion exists

to conduct an alcohol test shall not conduct the alcohol test of the

driver.

(d) Alcohol testing is authorized by this section only if the

observations required by paragraph (a) of this section are made during,

just preceding, or just after the period of the work day that the

driver is required to be in compliance with this part. A driver may be

directed by the employer to only undergo reasonable suspicion testing

while the driver is performing safety-sensitive functions, just before

the driver is to perform safety-sensitive functions, or just after the

driver has ceased performing such functions.

(e)(1) If an alcohol test required by this section is not

administered within two hours following the determination under

paragraph (a) of this section, the employer shall prepare and maintain

on file a record stating the reasons the alcohol test was not promptly

administered. If an alcohol test required by this section is not

administered within eight hours following the determination under

paragraph (a) of this section, the employer shall cease attempts to

administer an alcohol test and shall state in the record the reasons

for not administering the test.

(2) For the years stated in this paragraph, employers who submit

MIS reports shall submit to the FHWA each record of a test required by

this section that is not completed within 8 hours. The employer's

records of tests that could not be completed within 8 hours shall be

submitted to the FHWA by March 15, 1996; March 15, 1997; and March 15,

1998; for calendar years 1995, 1996, and 1997, respectively. Employers

shall append these records to their MIS submissions. Each record shall

include the following information:

(i) Type of test (reasonable suspicion/post-accident);

(ii) Triggering event (including date, time, and location);

(iii) Reason(s) test could not be completed within 8 hours; and

(iv) If blood alcohol testing could have been completed within

eight hours, the name, address, and telephone number of the testing

site where blood testing could have occurred.

(3) Records of tests that could not be completed in eight hours

shall be submitted to the FHWA at the following address: Attn.: Alcohol

Testing program, Office of Motor Carrier Research and Standards (HCS-

1), Federal Highway Administration, 400 Seventh Street, SW.,

Washington, DC 20590.

(4) Notwithstanding the absence of a reasonable suspicion alcohol

test under this section, no driver shall report for duty or remain on

duty requiring the performance of safety-sensitive functions while the

driver is under the influence of or impaired by alcohol, as shown by

the behavioral, speech, and performance indicators of alcohol misuse,

nor shall an employer permit the driver to perform or continue to

perform safety-sensitive functions, until:

(i) An alcohol test is administered and the driver's alcohol

concentration measures less than 0.02; or

(ii) Twenty four hours have elapsed following the determination

under paragraph (a) of this section that there is reasonable suspicion

to believe that the driver has violated the prohibitions in this part

concerning the use of alcohol.

(5) Except as provided in paragraph (e)(2) of this section, no

employer shall take any action under this part against a driver based

solely on the driver's behavior and appearance, with respect to alcohol

use, in the absence of an alcohol test. This does not prohibit an

employer with independent authority of this part from taking any action

otherwise consistent with law.

(f) A written record shall be made of the observations leading to a

controlled substance reasonable suspicion test, and signed by the

supervisor or company official who made the observations, within 24

hours of the observed behavior or before the results of the controlled

substances test are released, whichever is earlier.

Sec. 382.309 Return-to-duty testing.

(a) Each employer shall ensure that before a driver returns to duty

requiring the performance of a safety-sensitive function after engaging

in conduct prohibited by subpart B of this part concerning alcohol, the

driver shall undergo a return-to-duty alcohol test with a result

indicating an alcohol concentration of less than 0.02.

(b) Each employer shall ensure that before a driver returns to duty

requiring the performance of a safety-sensitive function after engaging

in conduct prohibited by subpart B of this part concerning controlled

substances, the driver shall undergo a return-to-duty controlled

substances test with a result indicating a verified negative result for

controlled substances use.

Sec. 382.311 Follow-up testing.

(a) Following a determination under Sec. 382.605(b) that a driver

is in need of assistance in resolving problems associated with alcohol

misuse and/or use of controlled substances, each employer shall ensure

that the driver is subject to unannounced follow-up alcohol and/or

controlled substances testing as directed by a substance abuse

professional in accordance with the provisions of

Sec. 382.605(c)(2)(ii).

(b) Follow-up alcohol testing shall be conducted only when the

driver is performing safety-sensitive functions, just before the driver

is to perform safety-sensitive functions, or just after the driver has

ceased performing safety-sensitive functions.

Subpart D--Handling Of Test Results, Record Retention and

Confidentiality

Sec. 382.401 Retention of records.

(a) General requirement. Each employer shall maintain records of

its alcohol misuse and controlled substances use prevention programs as

provided in this section. The records shall be maintained in a secure

location with controlled access.

(b) Period of retention. Each employer shall maintain the records

in accordance with the following schedule:

(1) Five years. The following records shall be maintained for a

minimum of five years:

(i) Records of driver alcohol test results indicating an alcohol

concentration of 0.02 or greater,

(ii) Records of driver verified positive controlled substances test

results,

(iii) Documentation of refusals to take required alcohol and/or

controlled substances tests,

(iv) Driver evaluation and referrals,

(v) Calibration documentation,

(vi) Records related to the administration of the alcohol and

controlled substances testing programs, and

(vii) A copy of each annual calendar year summary required by

Sec. 382.403.

(2) Two years. Records related to the alcohol and controlled

substances collection process (except calibration of evidential breath

testing devices).

(3) One year. Records of negative and canceled controlled

substances test results (as defined in part 40 of this title) and

alcohol test results with a concentration of less than 0.02 shall be

maintained for a minimum of one year.

(4) Indefinite period. Records related to the education and

training of breath alcohol technicians, screening test technicians,

supervisors, and drivers shall be maintained by the employer while the

individual performs the functions which require the training and for

two years after ceasing to perform those functions.

(c) Types of records. The following specific types of records shall

be

[[Page 9560]]

maintained. ``Documents generated'' are documents that may have to be

prepared under a requirement of this part. If the record is required to

be prepared, it must be maintained.

(1) Records related to the collection process:

(i) Collection logbooks, if used;

(ii) Documents relating to the random selection process;

(iii) Calibration documentation for evidential breath testing

devices;

(iv) Documentation of breath alcohol technician training;

(v) Documents generated in connection with decisions to administer

reasonable suspicion alcohol or controlled substances tests;

(vi) Documents generated in connection with decisions on post-

accident tests;

(vii) Documents verifying existence of a medical explanation of the

inability of a driver to provide adequate breath or to provide a urine

specimen for testing; and

(viii) Consolidated annual calendar year summaries as required by

Sec. 382.403.

(2) Records related to a driver's test results:

(i) The employer's copy of the alcohol test form, including the

results of the test;

(ii) The employer's copy of the controlled substances test chain of

custody and control form;

(iii) Documents sent by the MRO to the employer, including those

required by Sec. 382.407(a).

(iv) Documents related to the refusal of any driver to submit to an

alcohol or controlled substances test required by this part; and

(v) Documents presented by a driver to dispute the result of an

alcohol or controlled substances test administered under this part.

(vi) Documents generated in connection with verifications of prior

employers' alcohol or controlled substances test results that the

employer:

(A) Must obtain in connection with the exception contained in

Sec. 382.301 of this part, and

(B) Must obtain as required by Sec. 382.413 of this subpart.

(3) Records related to other violations of this part.

(4) Records related to evaluations:

(i) Records pertaining to a determination by a substance abuse

professional concerning a driver's need for assistance; and

(ii) Records concerning a driver's compliance with recommendations

of the substance abuse professional.

(5) Records related to education and training:

(i) Materials on alcohol misuse and controlled substance use

awareness, including a copy of the employer's policy on alcohol misuse

and controlled substance use;

(ii) Documentation of compliance with the requirements of

Sec. 382.601, including the driver's signed receipt of education

materials;

(iii) Documentation of training provided to supervisors for the

purpose of qualifying the supervisors to make a determination

concerning the need for alcohol and/or controlled substances testing

based on reasonable suspicion;

(iv) Documentation of training for breath alcohol technicians as

required by Sec. 40.51(a) of this title, and

(v) Certification that any training conducted under this part

complies with the requirements for such training.

(6) Administrative records related to alcohol and controlled

substances testing:

(i) Agreements with collection site facilities, laboratories,

breath alcohol technicians, screening test technicians, medical review

officers, consortia, and third party service providers;

(ii) Names and positions of officials and their role in the

employer's alcohol and controlled substances testing program(s);

(iii) Quarterly laboratory statistical summaries of urinalysis

required by Sec. 40.29(g)(6) of this title;

(iv) The employer's alcohol and controlled substances testing

policy and procedures; and

(v) Records generated in connection with part 391, subpart H of

this subchapter.

(d) Location of records. All records required by this part shall be

maintained as required by Sec. 390.31 of this subchapter and shall be

made available for inspection at the employer's principal place of

business within two business days after a request has been made by an

authorized representative of the Federal Highway Administration.

(e)(1) OMB control number. The information collection requirements

of this part have been reviewed by the Office of Management and Budget

pursuant to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et

seq.) and have been assigned OMB control number 2125-0543, approved

through March 31, 1997.

(2) The information collection requirements of this part are found

in the following sections: Section 382.105, 382.113, 382.301, 382.303,

382.305, 382.307, 382.309, 382.311, 382.401, 382.403, 382.405, 382.407,

382.409, 382.411, 382.413, 382.601, 382.603, 382.605.

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

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

of its alcohol and controlled substances testing programs performed

under this part during the previous calendar year, when requested by

the Secretary of Transportation, any DOT agency, or any State or local

officials with regulatory authority over the employer or any of its

drivers.

(b) If an employer is notified, during the month of January, of a

request by the Federal Highway Administration to report the employer's

annual calendar year summary information, the employer shall prepare

and submit the report to the Federal Highway Administration by March 15

of that year. The employer shall ensure that the annual summary report

is accurate and received by March 15 at the location that the Federal

Highway Administration specifies in its request. The report shall be in

the form and manner prescribed by the Federal Highway Administration in

its request. When the report is submitted to the Federal Highway

Administration by mail or electronic transmission, the information

requested shall be typed, except for the signature of the certifying

official. Each employer shall ensure the accuracy and timeliness of

each report submitted by the employer or a consortium.

(c) Detailed summary. Each annual calendar year summary that

contains information on a verified positive controlled substances test

result, an alcohol screening test result of 0.02 or greater, or any

other violation of the alcohol misuse provisions of subpart B of this

part shall include the following informational elements:

(1) Number of drivers subject to Part 382;

(2) Number of drivers subject to testing under the alcohol misuse

or controlled substances use rules of more than one DOT agency,

identified by each agency;

(3) Number of urine specimens collected by type of test (e.g., pre-

employment, random, reasonable suspicion, post-accident);

(4) Number of positives verified by a MRO by type of test, and type

of controlled substance;

(5) Number of negative controlled substance tests verified by a MRO

by type of test;

(6) Number of persons denied a position as a driver following a

pre-employment verified positive controlled substances test and/or a

pre-employment alcohol test that indicates

[[Page 9561]]

an alcohol concentration of 0.04 or greater;

(7) Number of drivers with tests verified positive by a medical

review officer for multiple controlled substances;

(8) Number of drivers who refused to submit to an alcohol or

controlled substances test required under this subpart;

(9)(i) Number of supervisors who have received required alcohol

training during the reporting period; and

(ii) Number of supervisors who have received required controlled

substances training during the reporting period;

(10)(i) Number of screening alcohol tests by type of test; and

(ii) Number of confirmation alcohol tests, by type of test;

(11) Number of confirmation alcohol tests indicating an alcohol

concentration of 0.02 or greater but less than 0.04, by type of test;

(12) Number of confirmation alcohol tests indicating an alcohol

concentration of 0.04 or greater, by type of test;

(13) Number of drivers who were returned to duty (having complied

with the recommendations of a substance abuse professional as described

in Secs. 382.503 and 382.605), in this reporting period, who

previously:

(i) Had a verified positive controlled substance test result, or

(ii) Engaged in prohibited alcohol misuse under the provisions of

this part;

(14) Number of drivers who were administered alcohol and drug tests

at the same time, with both a verified positive drug test result and an

alcohol test result indicating an alcohol concentration of 0.04 or

greater; and

(15) Number of drivers who were found to have violated any non-

testing prohibitions of subpart B of this part, and any action taken in

response to the violation.

(d) Short summary. Each employer's annual calendar year summary

that contains only negative controlled substance test results, alcohol

screening test results of less than 0.02, and does not contain any

other violations of subpart B of this part, may prepare and submit, as

required by paragraph (b) of this section, either a standard report

form containing all the information elements specified in paragraph (c)

of this section, or an ``EZ'' report form. The ``EZ'' report shall

include the following information elements:

(1) Number of drivers subject to this Part 382;

(2) Number of drivers subject to testing under the alcohol misuse

or controlled substance use rules of more than one DOT agency,

identified by each agency;

(3) Number of urine specimens collected by type of test (e.g., pre-

employment, random, reasonable suspicion, post-accident);

(4) Number of negatives verified by a medical review officer by

type of test;

(5) Number of drivers who refused to submit to an alcohol or

controlled substances test required under this subpart;

(6)(i) Number of supervisors who have received required alcohol

training during the reporting period; and

(ii) Number of supervisors who have received required controlled

substances training during the reporting period;

(7) Number of screen alcohol tests by type of test; and

(8) Number of drivers who were returned to duty (having complied

with the recommendations of a substance abuse professional as described

in Secs. 382.503 and 382.605), in this reporting period, who

previously:

(i) Had a verified positive controlled substance test result, or

(ii) Engaged in prohibited alcohol misuse under the provisions of

this part.

(e) Each employer that is subject to more than one DOT agency

alcohol or controlled substances rule shall identify each driver

covered by the regulations of more than one DOT agency. The

identification will be by the total number of covered functions. Prior

to conducting any alcohol or controlled substances test on a driver

subject to the rules of more than one DOT agency, the employer shall

determine which DOT agency rule or rules authorizes or requires the

test. The test result information shall be directed to the appropriate

DOT agency or agencies.

(f) A consortium may prepare annual calendar year summaries and

reports on behalf of individual employers for purposes of compliance

with this section. However, each employer shall sign and submit such a

report and shall remain responsible for ensuring the accuracy and

timeliness of each report prepared on its behalf by a consortium.

Sec. 382.405 Access to facilities and records.

(a) Except as required by law or expressly authorized or required

in this section, no employer shall release driver information that is

contained in records required to be maintained under Sec. 382.401.

(b) A driver is entitled, upon written request, to obtain copies of

any records pertaining to the driver's use of alcohol or controlled

substances, including any records pertaining to his or her alcohol or

controlled substances tests. The employer shall promptly provide the

records requested by the driver. Access to a driver's records shall not

be contingent upon payment for records other than those specifically

requested.

(c) Each employer shall permit access to all facilities utilized in

complying with the requirements of this part to the Secretary of

Transportation, any DOT agency, or any State or local officials with

regulatory authority over the employer or any of its drivers.

(d) Each employer shall make available copies of all results for

employer alcohol and/or controlled substances testing conducted under

this part and any other information pertaining to the employer's

alcohol misuse and/or controlled substances use prevention program,

when requested by the Secretary of Transportation, any DOT agency, or

any State or local officials with regulatory authority over the

employer or any of its drivers.

(e) When requested by the National Transportation Safety Board as

part of an accident investigation, employers shall disclose information

related to the employer's administration of a post-accident alcohol

and/or controlled substance test administered following the accident

under investigation.

(f) Records shall be made available to a subsequent employer upon

receipt of a written request from a driver. Disclosure by the

subsequent employer is permitted only as expressly authorized by the

terms of the driver's request.

(g) An employer may disclose information required to be maintained

under this part pertaining to a driver, the decisionmaker in a lawsuit,

grievance, or other proceeding initiated by or on behalf of the

individual, and arising from the results of an alcohol and/or

controlled substance test administered under this part, or from the

employer's determination that the driver engaged in conduct prohibited

by subpart B of this part (including, but not limited to, a worker's

compensation, unemployment compensation, or other proceeding relating

to a benefit sought by the driver.)

(h) An employer shall release information regarding a driver's

records as directed by the specific, written consent of the driver

authorizing release of the information to an identified person. Release

of such information by the person receiving the information is

permitted only in accordance with the terms of the employee's consent.

Sec. 382.407 Medical review officer notifications to the employer.

(a) The medical review officer may report to the employer using any

communications device, but in all instances a signed, written

notification must be forwarded within three

[[Page 9562]]

business days of completion of the medical review officer's review,

pursuant to part 40 of this title. A legible photocopy of the fourth

copy of Part 40 Appendix A subtitled COPY 4--SEND DIRECTLY TO MEDICAL

REVIEW OFFICER--DO NOT SEND TO LABORATORY of the Federal Custody and

Control Form OMB Number 9999-0023 may be used to make the signed,

written notification to the employer for all test results (positive,

negative, canceled, etc.), provided that the controlled substance(s)

verified as positive, and the MRO's signature, shall be legibly noted

in the remarks section of step 8 of the form completed by the medical

review officer. The MRO must sign all verified positive test results.

An MRO may sign or rubber stamp negative test results. An MRO's staff

may rubber stamp negative test results under written authorization of

the MRO. In no event shall an MRO, or his/her staff, use electronic

signature technology to comply with this section. All reports, both

oral and in writing, from the medical review officer to an employer

shall clearly include:

(1) A statement that the controlled substances test being reported

was in accordance with part 40 of this title and this part, except for

legible photocopies of Copy 4 of the Federal Custody and Control Form;

(2) The full name of the driver for whom the test results are being

reported;

(3) The type of test indicated on the custody and control form

(i.e. random, post-accident, follow-up);

(4) The date and location of the test collection;

(5) The identities of the persons or entities performing the

collection, analyzing the specimens, and serving as the medical review

officer for the specific test;

(6) The results of the controlled substances test, positive,

negative, test canceled, or test not performed, and if positive, the

identity of the controlled substance(s) for which the test was verified

positive.

(b) A medical review officer shall report to the employer that the

medical review officer has made all reasonable efforts to contact the

driver as provided in Sec. 40.33(c) of this title. The employer shall,

as soon as practicable, request that the driver contact the medical

review officer prior to dispatching the driver or within 24 hours,

whichever is earlier.

Sec. 382.409 Medical review officer record retention for controlled

substances.

(a) A medical review officer shall maintain all dated records and

notifications, identified by individual, for a minimum of five years

for verified positive controlled substances test results.

(b) A medical review officer shall maintain all dated records and

notifications, identified by individual, for a minimum of one year for

negative and canceled controlled substances test results.

(c) No person may obtain the individual controlled substances test

results retained by a medical review officer, and no medical review

officer shall release the individual controlled substances test results

of any driver to any person, without first obtaining a specific,

written authorization from the tested driver. Nothing in this paragraph

shall prohibit a medical review officer from releasing, to the employer

or to officials of the Secretary of Transportation, any DOT agency, or

any State or local officials with regulatory authority over the

controlled substances testing program under this part, the information

delineated in Sec. 382.407(a) of this subpart.

Sec. 382.411 Employer notifications.

(a) An employer shall notify a driver of the results of a pre-

employment controlled substance test conducted under this part, if the

driver requests such results within 60 calendar days of being notified

of the disposition of the employment application. An employer shall

notify a driver of the results of random, reasonable suspicion and

post-accident tests for controlled substances conducted under this part

if the test results are verified positive. The employer shall also

inform the driver which controlled substance or substances were

verified as positive.

(b) The designated management official shall make reasonable

efforts to contact and request each driver who submitted a specimen

under the employer's program, regardless of the driver's employment

status, to contact and discuss the results of the controlled substances

test with a medical review officer who has been unable to contact the

driver.

(c) The designated management official shall immediately notify the

medical review officer that the driver has been notified to contact the

medical review officer within 24 hours.

Sec. 382.413 Inquiries for alcohol and controlled substances

information from previous employers.

(a)(1) An employer shall, pursuant to the driver's written

authorization, inquire about the following information on a driver from

the driver's previous employers, during the preceding two years from

the date of application, which are maintained by the driver's previous

employers under Sec. 382.401(b)(1) (i) through (iii) of this subpart:

(i) Alcohol tests with a result of 0.04 alcohol concentration or

greater;

(ii) Verified positive controlled substances test results; and

(iii) Refusals to be tested.

(2) The information obtained from a previous employer may contain

any alcohol and drug information the previous employer obtained from

other previous employers under paragraph (a)(1) of this section.

(b) If feasible, the information in paragraph (a) of this section

must be obtained and reviewed by the employer prior to the first time a

driver performs safety-sensitive functions for the employer. If not

feasible, the information must be obtained and reviewed as soon as

possible, but no later than 14-calendar days after the first time a

driver performs safety-sensitive functions for the employer. An

employer may not permit a driver to perform safety-sensitive functions

after 14 days without having made a good faith effort to obtain the

information as soon as possible. If a driver hired or used by the

employer ceases performing safety-sensitive functions for the employer

before expiration of the 14-day period or before the employer has

obtained the information in paragraph (a) of this section, the employer

must still make a good faith effort to obtain the information.

(c) An employer must maintain a written, confidential record of the

information obtained under paragraph (a) or (f) of this section. If,

after making a good faith effort, an employer is unable to obtain the

information from a previous employer, a record must be made of the

efforts to obtain the information and retained in the driver's

qualification file.

(d) The prospective employer must provide to each of the driver's

previous employers the driver's specific, written authorization for

release of the information in paragraph (a) of this section.

(e) The release of any information under this section may take the

form of personal interviews, telephone interviews, letters, or any

other method of transmitting information that ensures confidentiality.

(f) The information in paragraph (a) of this section may be

provided directly to the prospective employer by the driver, provided

the employer assures itself that the information is true and accurate.

(g) An employer may not use a driver to perform safety-sensitive

functions if

[[Page 9563]]

the employer obtains information on a violation of the prohibitions in

subpart B of this part by the driver, without obtaining information on

subsequent compliance with the referral and rehabilitation requirements

of Sec. 382.605 of this part.

(h) Employers need not obtain information under paragraph (a) of

this section generated by previous employers prior to the starting

dates in Sec. 382.115 of this part.

Subpart E--Consequences For Drivers Engaging In Substance Use-

Related Conduct

Sec. 382.501 Removal from safety-sensitive function.

(a) Except as provided in subpart F of this part, no driver shall

perform safety-sensitive functions, including driving a commercial

motor vehicle, if the driver has engaged in conduct prohibited by

subpart B of this part or an alcohol or controlled substances rule of

another DOT agency.

(b) No employer shall permit any driver to perform safety-sensitive

functions, including driving a commercial motor vehicle, if the

employer has determined that the driver has violated this section.

(c) For purposes of this subpart, commercial motor vehicle means a

commercial motor vehicle in commerce as defined in Sec. 382.107, and a

commercial motor vehicle in interstate commerce as defined in Part 390

of this subchapter.

Sec. 382.503 Required evaluation and testing.

No driver who has engaged in conduct prohibited by subpart B of

this part shall perform safety-sensitive functions, including driving a

commercial motor vehicle, unless the driver has met the requirements of

Sec. 382.605. No employer shall permit a driver who has engaged in

conduct prohibited by subpart B of this part to perform safety-

sensitive functions, including driving a commercial motor vehicle,

unless the driver has met the requirements of Sec. 382.605.

Sec. 382.505 Other alcohol-related conduct.

(a) No driver tested under the provisions of subpart C of this part

who is found to have an alcohol concentration of 0.02 or greater but

less than 0.04 shall perform or continue to perform safety-sensitive

functions for an employer, including driving a commercial motor

vehicle, nor shall an employer permit the driver to perform or continue

to perform safety-sensitive functions, until the start of the driver's

next regularly scheduled duty period, but not less than 24 hours

following administration of the test.

(b) Except as provided in paragraph (a) of this section, no

employer shall take any action under this part against a driver based

solely on test results showing an alcohol concentration less than 0.04.

This does not prohibit an employer with authority independent of this

part from taking any action otherwise consistent with law.

Sec. 382.507 Penalties.

Any employer or driver who violates the requirements of this part

shall be subject to the penalty provisions of 49 U.S.C. section 521(b).

Subpart F--Alcohol Misuse and Controlled Substances Use

Information, Training, and Referral

Sec. 382.601 Employer obligation to promulgate a policy on the misuse

of alcohol and use of controlled substances.

(a) General requirements. Each employer shall provide educational

materials that explain the requirements of this part and the employer's

policies and procedures with respect to meeting these requirements.

(1) The employer shall ensure that a copy of these materials is

distributed to each driver prior to the start of alcohol and controlled

substances testing under this part and to each driver subsequently

hired or transferred into a position requiring driving a commercial

motor vehicle.

(2) Each employer shall provide written notice to representatives

of employee organizations of the availability of this information.

(b) Required content. The materials to be made available to drivers

shall include detailed discussion of at least the following:

(1) The identity of the person designated by the employer to answer

driver questions about the materials;

(2) The categories of drivers who are subject to the provisions of

this part;

(3) Sufficient information about the safety-sensitive functions

performed by those drivers to make clear what period of the work day

the driver is required to be in compliance with this part;

(4) Specific information concerning driver conduct that is

prohibited by this part;

(5) The circumstances under which a driver will be tested for

alcohol and/or controlled substances under this part, including post-

accident testing under Sec. 382.303(d);

(6) The procedures that will be used to test for the presence of

alcohol and controlled substances, protect the driver and the integrity

of the testing processes, safeguard the validity of the test results,

and ensure that those results are attributed to the correct driver,

including post-accident information, procedures and instructions

required by Sec. 382.303(d) of this part;

(7) The requirement that a driver submit to alcohol and controlled

substances tests administered in accordance with this part;

(8) An explanation of what constitutes a refusal to submit to an

alcohol or controlled substances test and the attendant consequences;

(9) The consequences for drivers found to have violated subpart B

of this part, including the requirement that the driver be removed

immediately from safety-sensitive functions, and the procedures under

Sec. 382.605;

(10) The consequences for drivers found to have an alcohol

concentration of 0.02 or greater but less than 0.04;

(11) Information concerning the effects of alcohol and controlled

substances use on an individual's health, work, and personal life;

signs and symptoms of an alcohol or a controlled substances problem

(the driver's or a coworker's); and available methods of intervening

when an alcohol or a controlled substances problem is suspected,

including confrontation, referral to any employee assistance program

and or referral to management.

(c) Optional provision. The materials supplied to drivers may also

include information on additional employer policies with respect to the

use of alcohol or controlled substances, including any consequences for

a driver found to have a specified alcohol or controlled substances

level, that are based on the employer's authority independent of this

part. Any such additional policies or consequences must be clearly and

obviously described as being based on independent authority.

(d) Certificate of receipt. Each employer shall ensure that each

driver is required to sign a statement certifying that he or she has

received a copy of these materials described in this section. Each

employer shall maintain the original of the signed certificate and may

provide a copy of the certificate to the driver.

Sec. 382.603 Training for supervisors.

Each employer shall ensure that all persons designated to supervise

drivers receive at least 60 minutes of training on alcohol misuse and

receive at least an additional 60 minutes of training on controlled

substances use. The training will be used by the supervisors to

determine whether reasonable suspicion exists to require a driver to

undergo

[[Page 9564]]

testing under Sec. 382.307. The training shall include the physical,

behavioral, speech, and performance indicators of probable alcohol

misuse and use of controlled substances.

Sec. 382.605 Referral, evaluation, and treatment.

(a) Each driver who has engaged in conduct prohibited by subpart B

of this part shall be advised by the employer of the resources

available to the driver in evaluating and resolving problems associated

with the misuse of alcohol and use of controlled substances, including

the names, addresses, and telephone numbers of substance abuse

professionals and counseling and treatment programs.

(b) Each driver who engages in conduct prohibited by subpart B of

this part shall be evaluated by a substance abuse professional who

shall determine what assistance, if any, the employee needs in

resolving problems associated with alcohol misuse and controlled

substances use.

(c)(1) Before a driver returns to duty requiring the performance of

a safety- sensitive function after engaging in conduct prohibited by

subpart B of this part, the driver shall undergo a return-to-duty

alcohol test with a result indicating an alcohol concentration of less

than 0.02 if the conduct involved alcohol, or a controlled substances

test with a verified negative result if the conduct involved a

controlled substance.

(2) In addition, each driver identified as needing assistance in

resolving problems associated with alcohol misuse or controlled

substances use,

(i) Shall be evaluated by a substance abuse professional to

determine that the driver has properly followed any rehabilitation

program prescribed under paragraph (b) of this section, and

(ii) Shall be subject to unannounced follow-up alcohol and

controlled substances tests administered by the employer following the

driver's return to duty. The number and frequency of such follow-up

testing shall be as directed by the substance abuse professional, and

consist of at least six tests in the first 12 months following the

driver's return to duty. The employer may direct the driver to undergo

return-to-duty and follow-up testing for both alcohol and controlled

substances, if the substance abuse professional determines that return-

to-duty and follow-up testing for both alcohol and controlled

substances is necessary for that particular driver. Any such testing

shall be performed in accordance with the requirements of 49 CFR part

40. Follow-up testing shall not exceed 60 months from the date of the

driver's return to duty. The substance abuse professional may terminate

the requirement for follow-up testing at any time after the first six

tests have been administered, if the substance abuse professional

determines that such testing is no longer necessary.

(d) Evaluation and rehabilitation may be provided by the employer,

by a substance abuse professional under contract with the employer, or

by a substance abuse professional not affiliated with the employer. The

choice of substance abuse professional and assignment of costs shall be

made in accordance with employer/driver agreements and employer

policies.

(e) The employer shall ensure that a substance abuse professional

who determines that a driver requires assistance in resolving problems

with alcohol misuse or controlled substances use does not refer the

driver to the substance abuse professional's private practice or to a

person or organization from which the substance abuse professional

receives remuneration or in which the substance abuse professional has

a financial interest. This paragraph does not prohibit a substance

abuse professional from referring a driver for assistance provided

through--

(1) A public agency, such as a State, county, or municipality;

(2) The employer or a person under contract to provide treatment

for alcohol or controlled substance problems on behalf of the employer;

(3) The sole source of therapeutically appropriate treatment under

the driver's health insurance program; or

(4) The sole source of therapeutically appropriate treatment

reasonably accessible to the driver.

(f) The requirements of this section with respect to referral,

evaluation and rehabilitation do not apply to applicants who refuse to

submit to a pre-employment alcohol or controlled substances test or who

have a pre-employment alcohol test with a result indicating an alcohol

concentration of 0.04 or greater or a controlled substances test with a

verified positive test result.

PART 383--[AMENDED]

2. The authority citation for 49 CFR part 383 is revised to read as

follows:

Authority: 49 U.S.C. 31101 et seq., 31136, and 31502; and 49 CFR

1.48.

3. Section 383.3 is revised to read as follows:

Sec. 383.3 Applicability.

(a) The rules in this part apply to every person who operates a

commercial motor vehicle (CMV) in interstate, foreign, or intrastate

commerce, to all employers of such persons, and to all States.

(b) The exceptions contained in Sec. 390.3(g) of this subchapter do

not apply to this part. The employers and drivers identified in

Sec. 390.3(g) must comply with the requirements of this part, unless

otherwise provided in this section.

(c) Exception for certain military drivers. Each State must exempt

from the requirements of this part individuals who operate CMVs for

military purposes. This exception is applicable to active duty military

personnel; members of the military reserves; member of the national

guard on active duty, including personnel on full-time national guard

duty, personnel on part-time national guard training, and national

guard military technicians (civilians who are required to wear military

uniforms); and active duty U.S. Coast Guard personnel. This exception

is not applicable to U.S. Reserve technicians.

(d) Exception for farmers, firefighters and emergency response

vehicle drivers. A State may, at its discretion, exempt individuals

identified in paragraphs (d)(1), (d)(2), and (d)(3) of this section

from the requirements of this part. The use of this waiver is limited

to the driver's home State unless there is a reciprocity agreement with

adjoining States.

(1) Operators of a farm vehicle which is:

(i) Controlled and operated by a farmer, including operation by

employees or family members;

(ii) Used to transport either agricultural products, farm

machinery, farm supplies, or both to or from a farm;

(iii) Not used in the operations of a common or contract motor

carrier; and

(iv) Used within 241 kilometers (150 miles) of the farmer's farm.

(2) Firefighters and other persons who operate CMVs which are

necessary to the preservation of life or property or the execution of

emergency governmental functions, are equipped with audible and visual

signals and are not subject to normal traffic regulation. These

vehicles include fire trucks, hook and ladder trucks, foam or water

transport trucks, police SWAT team vehicles, ambulances, or other

vehicles that are used in response to emergencies.

(e) Restricted commercial drivers license (CDL) for certain drivers

in the State of Alaska. (1) The State of Alaska may, at its discretion,

waive only the following requirements of this part and issue a CDL to

each driver that meets

[[Page 9565]]

the conditions set forth in paragraphs (e) (2) and (3) of this section:

(i) The knowledge tests standards for testing procedures and

methods of subpart H, but must continue to administer knowledge tests

that fulfill the content requirements of subpart G for all applicants;

(ii) All the skills test requirements; and

(iii) The requirement under Sec. 383.153(a)(4) to have a photograph

on the license document.

(2) Drivers of CMVs in the State of Alaska must operate exclusively

over roads that meet both of the following criteria to be eligible for

the exception in paragraph (e)(1) of this section:

(i) Such roads are not connected by land highway or vehicular way

to the land-connected State highway system; and

(ii) Such roads are not connected to any highway or vehicular way

with an average daily traffic volume greater than 499.

(3) Any CDL issued under the terms of this paragraph must carry two

restrictions:

(i) Holders may not operate CMVs over roads other than those

specified in paragraph (e)(2) of this section; and

(ii) The license is not valid for CMV operation outside the State

of Alaska.

(f) Restricted CDL for certain drivers in farm-related service

industries. (1) A State may, at its discretion, waive the required

knowledge and skills tests of subpart H of this part and issue

restricted CDLs to employees of these designated farm-related service

industries:

(i) Agri-chemical businesses;

(ii) Custom harvesters;

(iii) Farm retail outlets and suppliers;

(iv) Livestock feeders.

(2) A restricted CDL issued pursuant to this paragraph shall meet

all the requirements of this part, except subpart H of this part. A

restricted CDL issued pursuant to this paragraph shall be accorded the

same reciprocity as a CDL meeting all of the requirements of this part.

The restrictions imposed upon the issuance of this restricted CDL shall

not limit a person's use of the CDL in a non-CMV during either

validated or non-validated periods, nor shall the CDL affect a State's

power to administer its driver licensing program for operators of

vehicles other than CMVs.

(3) A State issuing a CDL under the terms of this paragraph must

restrict issuance as follows:

(i) Applicants must have a good driving record as defined in this

paragraph. Drivers who have not held any motor vehicle operator's

license for at least one year shall not be eligible for this CDL.

Drivers who have between one and two years of driving experience must

demonstrate a good driving record for their entire driving history.

Drivers with more than two years of driving experience must have a good

driving record for the two most recent years. For the purposes of this

paragraph, the term good driving record means that an applicant:

(A) Has not had more than one license (except in the instances

specified in Sec. 383.21(b));

(B) Has not had any license suspended, revoked, or canceled;

(C) Has not had any conviction for any type of motor vehicle for

the disqualifying offenses contained in Sec. 383.51(b)(2);

(D) Has not had any conviction for any type of motor vehicle for

serious traffic violations; and

(E) Has not had any conviction for a violation of State or local

law relating to motor vehicle traffic control (other than a parking

violation) arising in connection with any traffic accident, and has no

record of an accident in which he/she was at fault.

(ii) Restricted CDLs shall have the same renewal cycle as

unrestricted CDLs, but shall be limited to the seasonal period or

periods as defined by the State of licensure, provided that the total

number of calendar days in any 12-month period for which the restricted

CDL is valid does not exceed 180. If a State elects to provide for more

than one seasonal period, the restricted CDL is valid for commercial

motor vehicle operation only during the currently approved season, and

must be revalidated for each successive season. Only one seasonal

period of validity may appear on the license document at a time. The

good driving record must be confirmed prior to any renewal or

revalidation.

(iii) Restricted CDL holders are limited to operating Group B and C

vehicles, as described in subpart F of this part.

(iv) Restricted CDLs shall not be issued with any endorsements on

the license document. Only the limited tank vehicle and hazardous

materials endorsement privileges that the restricted CDL automatically

confers and are described in paragraph (f)(3)(v) of this section are

permitted.

(v) Restricted CDL holders may not drive vehicles carrying any

placardable quantities of hazardous materials, except for diesel fuel

in quantities of 3,785 liters (1,000 gallons) or less; liquid

fertilizers (i.e., plant nutrients) in vehicles or implements of

husbandry in total quantities of 11,355 liters (3,000 gallons) or less;

and solid fertilizers (i.e., solid plant nutrients) that are not

transported with any organic substance.

(vi) Restricted CDL holders may not hold an unrestricted CDL at the

same time.

(vii) Restricted CDL holders may not operate a commercial motor

vehicle beyond 241 kilometers (150 miles) from the place of business or

the farm currently being served.

(g) Restricted CDL for certain drivers in the pyrotechnic industry.

(1) A State may, at its discretion, waive the required hazardous

materials knowledge tests of subpart H of this part and issue

restricted CDLs to part-time drivers operating commercial motor

vehicles transporting less than 227 kilograms (500 pounds) of fireworks

classified as DOT Class 1.3G explosives.

(2) A State issuing a CDL under the terms of this paragraph must

restrict issuance as follows:

(i) The GVWR of the vehicle to be operated must be less than 4,537

kilograms (10,001 pounds);

(ii) If a State believes, at its discretion, that the training

required by Sec. 172.704 of this title adequately prepares part-time

drivers meeting the other requirements of this paragraph to deal with

fireworks and the other potential dangers posed by fireworks

transportation and use, the State may waive the hazardous materials

knowledge tests of subpart H of this part. The State may impose any

requirements it believes is necessary to ensure itself that a driver is

properly trained pursuant to Sec. 172.704 of this title.

(iii) A restricted CDL document issued pursuant to this paragraph

shall have a statement clearly imprinted on the face of the document

that is substantially similar as follows: ``For use as a CDL only

during the period from June 30 through July 6 for purposes of

transporting less than 227 kilograms (500 pounds) of fireworks

classified as DOT Class 1.3G explosives in a vehicle with a GVWR of

less than 4,537 kilograms (10,001 pounds).

(3) A restricted CDL issued pursuant to this paragraph shall meet

all the requirements of this part, except those specifically

identified. A restricted CDL issued pursuant to this paragraph shall be

accorded the same reciprocity as a CDL meeting all of the requirements

of this part. The restrictions imposed upon the issuance of this

restricted CDL shall not limit a person's use of the CDL in a non-CMV

during either validated or non-validated periods, nor shall the CDL

affect a State's power to administer its driver licensing program for

operators of vehicles other than CMVs.

[[Page 9566]]

(4) Restricted CDLs shall have the same renewal cycle as

unrestricted CDLs, but shall be limited to the seasonal period of June

30 through July 6 of each year or a lesser period as defined by the

State of licensure.

(5) Persons who operate commercial motor vehicles during the period

from July 7 through June 29 for purposes of transporting less than 227

kilograms (500 pounds) of fireworks classified as DOT Class 1.3G

explosives in a vehicle with a GVWR of less than 4,537 kilograms

(10,001 pounds) and who also operate such vehicles for the same

purposes during the period June 30 through July 6 shall not be issued a

restricted CDL pursuant to this paragraph.

4. Section 383.5 is amended by revising the term ``commercial motor

vehicle'' to read as follows:

Sec. 383.5 Definitions.

* * * * *

Commercial motor vehicle (CMV) means a motor vehicle or combination

of motor vehicles used in commerce to transport passengers or property

if the motor vehicle--

(a) Has a gross combination weight rating of 11,794 kilograms or

more (26,001 pounds or more) inclusive of a towed unit with a gross

vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or

(b) Has a gross vehicle weight rating of 11,794 or more kilograms

(26,001 pounds or more); or

(c) Is designed to transport 16 or more passengers, including the

driver; or

(d) Is of any size and is used in the transportation of materials

found to be hazardous for the purposes of the Hazardous Materials

Transportation Act and which require the motor vehicle to be placarded

under the Hazardous Materials Regulations (49 CFR part 172, subpart F).

* * *

* * * * *

5. Section 383.91 is amended by revising paragraph (a) to read as

follows:

Sec. 383.91 Commercial motor vehicle groups.

(a) Vehicle group descriptions. Each driver applicant must possess

and be tested on his/her knowledge and skills, described in subpart G

of this part, for the commercial motor vehicle group(s) for which he/

she desires a CDL. The commercial motor vehicle groups are as follows:

(1) Combination vehicle (Group A)--Any combination of vehicles with

a gross combination weight rating (GCWR) of 11,794 kilograms or more

(26,001 pounds or more) provided the GVWR of the vehicle(s) being towed

is in excess of 4,536 kilograms (10,000 pounds).

(2) Heavy Straight Vehicle (Group B)--Any single vehicle with a

GVWR of 11,794 kilograms or more (26,001 pounds or more), or any such

vehicle towing a vehicle not in excess of 4,536 kilograms (10,000

pounds) GVWR.

(3) Small Vehicle (Group C)--Any single vehicle, or combination of

vehicles, that meets neither the definition of Group A nor that of

Group B as contained in this section, but that either is designed to

transport 16 or more passengers including the driver, or is used in the

transportation of materials found to be hazardous for the purposes of

the Hazardous Materials Transportation Act and which require the motor

vehicle to be placarded under the Hazardous Materials Regulations (49

CFR part 172, subpart F).

* * * * *

PART 390--[AMENDED]

6. The authority citation for part 390 continues to read as

follows:

Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and

31504; and 49 CFR 1.48.

Sec. 390.5 [Amended]

7. Section 390.5 is amended by revising the definition of

``commercial motor vehicle'' to read as follows:

* * * * *

Commercial motor vehicle means any self-propelled or towed vehicle

used on public highways in interstate commerce to transport passengers

or property when:

(a) The vehicle has a gross vehicle weight rating or gross

combination weight rating of 4,537 or more kilograms (10,001 or more

pounds); or

(b) The vehicle is designed to transport more than 15 passengers,

including the driver; or

(c) The vehicle is used in the transportation of hazardous

materials in a quantity requiring placarding under regulations issued

by the Secretary under the Hazardous Materials Transportation Act (49

U.S.C. 5101 et. seq.).

* * * * *

8. Section 390.27 is revised to read as follows:

Sec. 390.27 Locations of regional offices of motor carriers.

------------------------------------------------------------------------

Location of regional

Region No. Territory included office

------------------------------------------------------------------------

1........................... Connecticut, Maine, Leo W. O'Brien

Massachusetts, New Federal Office

Jersey, New Building, Clinton &

Hampshire, New Pearl Streets, Room

York, Rhode Island, 737, Albany, NY

Vermont, Puerto 12207-2334.

Rico, and the

Virgin Islands.

That part of Canada

east of Highways 19

and 8 from Port

Burwell to

Goderich, thence a

straight line

running north

through Tobermory

and Sudbury, and

thence due north to

the Canadian border.

3........................... Delaware, District City Crescent

of Columbia, Building, #10 South

Maryland, Howard Street,

Pennsylvania, Suite 4000,

Virginia, and West Baltimore, MD 21201-

Virginia. 2819.

4........................... Alabama, Florida, 1720 Peachtree Road,

Georgia, Kentucky, NW., Suite 200,

Mississippi, North Atlanta, GA 30367-

Carolina, South 2349.

Carolina, and

Tennessee.

5........................... Illinois, Indiana, 19900 Governors

Michigan, Drive, Suite 210,

Minnesota, Ohio, Olympia Fields, IL

and Wisconsin. That 60461-1021.

part of Canada west

of Highways 19 and

8 from Port Burwell

to Goderich, thence

a straight line

running north

through Tobermory

and Sudbury, and

thence due north to

the Canadian

border, and east of

the boundary

between the

Provinces of

Ontario and

Manitoba to Hudson

Bay and thence a

straight line north

to the Canadian

border.

6........................... Arkansas, Louisiana, Room 8A00, Federal

New Mexico, Building, 819

Oklahoma, and Taylor Street, P.O.

Texas. All of Box 902003, Fort

Mexico, except the Worth, TX 76102.

States of Baja

California and

Sonora and the

Territory of Baja

California Sur.,

Mexico. All nations

south of Mexico.

[[Page 9567]]

7........................... Iowa, Kansas, 6301 Rockhill Road,

Missouri, and P.O. Box 419715,

Nebraska. Kansas City, MO

64141-6715.

8........................... Colorado, Montana, 555 Zang Street,

North Dakota, South room 190, Lakewood,

Dakota, Utah, CO 80228-1014.

Wyoming. That part

of Canada west of

the boundary

between the

Provinces of

Ontario and

Manitoba to Hudson

Bay and thence a

straight line due

north to the

Canadian border,

and east of Highway

95 from Kingsgate

to Blaeberry and

thence a straight

line due north to

the Canadian border.

9........................... Arizona, California, 201 Mission Street,

Hawaii, Nevada, Suite 2100, San

Guam, American Francisco, CA

Samoa, and Mariana 94105.

Islands. The States

of Baja California

and Sonora, Mexico,

and the Territory

of Baja California

Sur., Mexico.

10.......................... Alaska, Idaho, KOIN Center, suite

Oregon and 600, 222 SW

Washington. That Columbia Street,

part of Canada west Portland, OR 97201-

of Highway 95 from 2491.

Kingsgate to

Blaeberry and

thence a straight

line due north to

the Canadian

border, and all the

Province of British

Columbia.

------------------------------------------------------------------------

PART 391--[AMENDED]

9. The authority citation for part 391 continues to read as

follows:

Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR

1.48.

10. Section 391.85 is amended by removing the term and definition

of ``drivers subject to testing'' and by revising the definition

``commercial motor vehicle'' to read as follows:

Sec. 391.85 Definitions.

* * * * *

Commercial motor vehicle means any self-propelled or towed motor

vehicle used on public highways in interstate commerce to transport

passengers or property when:

(a) The motor vehicle has a gross vehicle weight rating or gross

combination weight rating of 11,794 or more kilograms (26,001 or more

pounds); or

(b) The motor vehicle is designed to transport more than 15

passengers, including the driver; or

(c) The motor vehicle is used in the transportation of hazardous

materials in a quantity requiring placarding under regulations issued

by the Secretary under the Hazardous Materials Transportation Act (49

U.S.C. 5101 et. seq.).

* * * * *

11. Section 391.125 is revised to read as follows:

Sec. 391.125 Termination schedule of this subpart.

(a) All motor carriers shall retain all records generated in

connection with this subpart as required by Sec. 382.401 of this

subchapter.

(b) Large employers. Except as provided in paragraph (a) of this

section, each motor carrier with fifty or more drivers on March 17,

1994, shall terminate compliance with this subpart and shall implement

the requirements of part 382 of this subchapter beginning on January 1,

1995.

(c) Small employers. Except as provided in paragraph (a) of this

section, each motor carrier with fewer than fifty drivers on March 17,

1994, shall terminate compliance with this subpart and shall implement

the requirements of Part 382 of this subchapter beginning on January 1,

1996.

(d) Except as provided in paragraph (a) of this section, all motor

carriers shall terminate compliance with this subpart on January 1,

1996.

PART 392--[AMENDED]

12. The authority citation for part 392 continues to read as

follows:

Authority: 49 U.S.C. 31136 and 31502; and 49 CFR 1.48.

13. Section 392.4 is revised to read as follows:

Sec. 392.4 Drugs and other substances.

(a) No driver shall be on duty and possess, be under the influence

of, or use, any of the following drugs or other substances:

(1) Any Schedule I drug or other substance identified in appendix D

to this subchapter;

(2) An amphetamine or any formulation thereof (including, but not

limited, to ``pep pills,'' and ``bennies'');

(3) A narcotic drug or any derivative thereof; or

(4) Any other substance, to a degree which renders the driver

incapable of safely operating a motor vehicle.

(b) No motor carrier shall require or permit a driver to violate

paragraph (a) of this section.

(c) Paragraphs (a) (2), (3), and (4) do not apply to the possession

or use of a substance administered to a driver by or under the

instructions of a licensed medical practitioner, as defined in

Sec. 382.107 of this subchapter, who has advised the driver that the

substance will not affect the driver's ability to safely operate a

motor vehicle.

(d) As used in this section, ``possession'' does not include

possession of a substance which is manifested and transported as part

of a shipment.

14. Section 392.5 is amended by revising paragraph (a) to

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